Patterson v State of New South Wales (Western Sydney Local Health District)

DETERMINATION OF APPEAL PANEL
CITATION:	Patterson v State of New South Wales (Western Sydney Local Health District) [2025] NSWPICMP 606
APPELLANT:	Kelly Patterson
RESPONDENT:	State of New South Wales (Western Sydney Local Health District)
APPEAL PANEL
MEMBER:	Mitchell Strachan
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	13 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); section 327(3); Medical Assessor (MA) fell into error in assessment of employability under psychiatric impairment rating scale (PIRS) where he had found appellant could not work at all; MA to assess impairment as at the date of the assessment; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 May 2025, Kelly Patterson, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ronald Gill, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 April 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant was employed by the respondent as an enrolled nurse working at Blacktown Hospital. She suffered a psychological injury as a result of a traumatic incident experienced in the course of her employment on 26 October 2022. Her mental health deteriorated sharply, working only another two shifts and has not returned to work since 1 November 2022.
On 9 April 2024 the appellant made a claim for lump sum compensation relying on a report of Dr Kumagaya dated 4 April 2024 which assessed the applicant with 19% whole person impairment (WPI). The applicant was assessed by Dr Anand at the request of the respondent. Dr Anand provided a report dated 29 July 2024 where he expressed the opinion the appellant had not reached maximum medical improvement and was unable to assess the appellant’s degree of WPI at that time.
On 4 February 2025 the appellant filed an Application to Resolve a Dispute. The respondent filed a Reply on 25 February 2025.
The appellant was assessed by Medical Assessor Roanld Gill on 28 March 2025 resulting in a MAC dated 14 April 2025. The Medical Assessor assessed the appellant’s permanent impairment, using the PIRS criteria, at 19% WPI. Relevantly to the current appeal the Medical Assessor assessed the PIRS employability category as class 4.
The appellant now appeals this MAC.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient material already before the Appeal Panel to allow the Appeal Panel to determine the appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits that the appeal is brought only with respect to the Medical Assessor’s assessment of the Psychiatric Impairment Rating Scale (PIRS) category of employability for which the Medical Assessor assigned class 4.
The appellant submits that the evidence before the Medical Assessor and the Medical Assessor’s findings on examination ought to have resulted in class 5 being the assigned category.
In reply, the respondent submits that while other qualified experts have assessed the appellant as class 5 with respect to employability, the Medical Assessor is entitled to assess the appellant independently and in accordance with her presentation at the time of the assessment by the Medical Assessor. The Appeal Panel accepts that this submission is consistent with paragraph 1.6 of the Guidelines.
The respondent submitted that,
“when taking into account the Appellant’s functioning as assessed in the other PIRS categories, that when looked at as a whole and objectively, that there is some possibility of capacity due to the Appellant’s ability to function when she has the responsibility of caring for her son (Dr Anand); that she remains independent in managing basic daily activities (Dr Gill); that she is active on social media (Dr Anand); that she is capable of travelling across the country and spending time with family (Dr Anand) and that she is capable of travelling independently albeit in familiar areas and she still attends some limited social engagements with a close friend.”
The respondent submitted that while it accepted the appellant was suffering from post-traumatic stress disorder this of itself does not render the appellant totally incapacitated for any and all forms of employment.
The respondent further submitted that the appellant’s capacity for employment needed to be looked at objectively and “in light of what functioning encompasses and comprises in 2025”.
The respondent’s submissions with respect to the practical implications of any change in the impairment assessment and the legal avenues the appellant may seek to pursue are irrelevant to the exercise of the Appeal Panel’s jurisdiction and the issues raised by the appellant on appeal. For this reason, the Appeal Panel has not engaged further with these submissions.

FINDINGS AND REASONS

In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made (being the errors identified by the parties in their submissions) (see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792).
To this end, an appeal panel must not disturb any findings in a MAC that are not challenged and subject to the parties’ submissions.
In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated (at [35]):
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and [emphasis in original] the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor’s reasoning with respect to that finding; neither course was part of its statutory function.”
The only finding challenged and the subject of submissions is with respect to the assessment of the relevant class for “employability” within the PIRS matrix.
In assessing the appellant’s degree of permanent impairment, the Medical Assessor made the following findings:
“Daily sleep remains disrupted with insomnia, nightmares, and poor sleep quality exacerbating fatigue and cognitive difficulties. She has substantial problems with attention, concentration, and memory, affecting basic daily tasks. Socially withdrawn,
Ms Patterson avoids most interactions and isolates herself extensively, often relying solely on a single trusted friend for practical and emotional support. Her symptoms significantly impair her daily functioning, resulting in poor self-care, neglected personal hygiene, and a markedly diminished capacity to manage routine domestic responsibilities.
…
Her symptoms remain severe and entrenched, encompassing frequent intrusive traumatic recollections, recurrent distressing nightmares, pervasive anxiety, and emotional numbing. Significant depressive symptoms, including persistent low mood, feelings of worthlessness, profound guilt, and reduced energy, compound her psychological presentation. These conditions have consistently impaired her daily functioning, leading to chronic fatigue, diminished self-care, cognitive deficits, and profound social withdrawal.
…
Her overall psychiatric state remains unchanged despite repeated therapeutic interventions, underscoring the chronic and stable nature of her psychological injuries.
…
Clinical assessments over an extended period show no significant fluctuation or meaningful improvement in her psychiatric symptoms or functioning.
…
My assessment considered her pronounced difficulties in essential areas such as social interaction, emotional stability, cognitive functioning, and daily self-care. Her psychiatric symptoms profoundly affect basic daily activities, significantly restrict her capacity to engage socially, and entirely prevent any form of vocational participation at present. Clinically, Ms Patterson’s presentation indicated the permanency of her impairment, with no meaningful improvements observed despite appropriate psychiatric treatment efforts over a prolonged period.”
The Medical Assessor then reached the following conclusions before assigning class 4 for employability:
“Ms Patterson’s employability is severely impaired. All assessing psychiatrists uniformly indicate her complete incapacity for employment, including Dr Kumar, Dr Anand, Dr Kumagaya, Dr Virk, and Dr Phonesouk. Her persistent PTSD and depressive symptoms, cognitive limitations, emotional instability, and social avoidance severely restrict her ability to meet workplace demands. Although minimal vocational engagement or voluntary work may theoretically be considered in the distant future, her employability is severely compromised.”
The Guidelines describe class 4 and 5 with respect to employability as follows:
Class 4: “Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.”
Class 5: “Cannot work at all.”
It is evident that in assigning the appellant’s impairment to class 4 with respect to employability the Medical Assessor, while accepting her employability is severely compromised, has relied on an optimistic impression of the appellant’s theoretical future capacity for vocational and volunteer work.
Paragraph 1.6 of the Guidelines provide that the Medical Assessor was required to assess “the claimant as they present on the day of the assessment taking account of the claimant’s relevant medical history and all available medical information…”.
By assessing impairment with respect to theoretical capacity for employment in the distant future, rather than as the appellant presented on the day, the Medical Assessor has applied incorrect criteria and fallen into error.
The Appeal Panel is satisfied that assessment was made on the basis of incorrect criteria. The ground of appeal is made out. The Appeal Panel must correct that error.
The respondent submitted that Dr Kumagaya and Dr Anand had both assessed class 5 with respect to employability however in taking into account the appellant’s functioning as assessed in other PIRS categories there is some possibility of capacity.
This type of analysis was undertaken by the Medical Assessor in the MAC and the Medical Assessor concluded the appellant was entirely prevented from any form of vocational participation at present:
“My assessment considered her pronounced difficulties in essential areas such as social interaction, emotional stability, cognitive functioning, and daily self-care. Her psychiatric symptoms profoundly affect basic daily activities, significantly restrict her capacity to engage socially, and entirely prevent any form of vocational participation at present. Clinically, Ms Patterson’s presentation indicated the permanency of her impairment, with no meaningful improvements observed despite appropriate psychiatric treatment efforts over a prolonged period.”
Having considered the evidence before the appeal panel, the findings of the Medical Assessor on examination, together with the reasons of the Medical Assessor, the Panel considers that the assessment by the Medical Assessor of class 4 for employability is inconsistent with the history taken and findings made by the Medical Assessor including that her symptomology “entirely prevent any form of vocational participation at present” and “severely restrict her ability to meet workplace demands”.
These findings are consistent with the appellant not being able to work at all and an assessment that the impairment falls into category 5 with respect to employability.
For these reasons the Appeal Panel is satisfied, in assessing the appellant’s permanent impairment, that category 5 is the appropriate impairment rating with respect to employability.
No issue is taken on appeal with the balance of the PIRS categories and these remain undisturbed by the Appeal Panel.
As such, the PIRS ratings are as follows: 2, 2, 3, 3, 3, 5.
The medical class remains 3 and the aggregate score is now 18 equating to a whole person impairment of 22%.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 April 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W1137/25
Applicant:	Kelly Patterson
Respondent:	State of New South Wales (Western Sydney Local Health District)

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Ronald Gill and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Psychiatric and psychological disorders	26 October 2022	Chap 11, p54-60	NA	22%	Nil	22%
Total % WPI (the Combined Table values of all sub-totals)					22%

[2025] NSWPICMP 606

13 August 2025