Peek v Secretary, Department of Education
[2025] NSWPICMP 720
•18 September 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Peek v Secretary, Department of Education [2025] NSWPICMP 720 |
| APPELLANT: | Gregory Peek |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 18 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of permanent impairment for psychological injury; psychiatric impairment rating scale (PIRS) for social and recreational activities; Ballas v Department of Education, Tasevski v Westpac Banking Corporation, and Tradieh v LM Hayter & Sons Pty Ltd; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 July 2025 Gregory Peek lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 July 2025.
Mr Peek relies on the grounds of appeal under s 327(3) (c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d) in respect of the Medical Assessor’s assessment under the Psychiatric Impairment Rating Scale (PIRS) with respect to social and recreational activities. We conducted a review of the original medical assessment, 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, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Peek was employed by the Secretary, Department of Education (the Secretary) as a teacher when he suffered a psychological injury which is deemed to have occurred on 11 February 2021.
The Medical Assessor assessed 9% whole person impairment (WPI), placing Mr Peek in class 2 for self-care and personal hygiene, social and recreational activities, travel and social functioning. The Medical Assessor assessed Mr Peek in class 3 for concentration, persistence and pace and class 5 for employability. He did not make any allowance for the effects of treatment, nor did he make any deduction for a pre-existing condition.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Mr Peek to undergo a further medical examination because the MAC does not disclose error. In those circumstances, an Appeal Panel does not have the power to re-examine.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33].
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Peek submitted that the Medical Assessor failed to give adequate or proper reasons and denied him natural justice in the history recorded in relation to social and recreational activities. Mr Peek said that the Medical Assessor was required to set out a “path of reasons with respect to the medical controversies and disputes in circumstances where a higher class of impairment was available”. Mr Peek said that the Medical Assessor failed to correctly apply the findings of the clinical examination and the medical evidence to the PIRS when he assessed Mr Peek in class 2 for social and recreational activities, noting that Dr Khan, who saw him at the request of his solicitors, assessed him in class 3.
Referring to his statement Mr Peek said that beekeeping is not a social and recreational activity and he started it at the recommendation of his psychologist. Instead of “catching up with friends over coffee”, Mr Peek said that he sees his father and the neighbour who helped him set up his hive. The reduction in time spent fishing was said to be consistent with class 3 rather than class 2. Mr Peek offered an explanation in the submissions as to his ability to accompany his wife to a wedding. He said that cooking was not relevant to social and recreational activities, citing Ballas v Department of Education (State of NSW)[2] (Ballas) nor was servicing his vehicle. Mr Peek said that his ability to service his car was relevantly considered in respect of concentration, persistence and pace. Mr Peek said that the Medical Assessor’s reference to him enjoying activities was inconsistent with his statement. He said that because the difference to Dr Khan’s assessment was so stark, the Medical Assessor should have put that difference to Mr Peek so he could offer an explanation.
[2] [2020] NSWCA 86.
Mr Peek sought that a fresh MAC be issued certifying 19% WPI or that there be a
re-examination.In reply, the Secretary submitted that it is not necessary for a Medical Assessor to be satisfied of every nuance of every class, citing the Medical Appeal Panel decision in NSW Police Force v Wark[3] to argue that there was no “glaringly improbable categorisation” nor was the Medical Assessor “unaware of significant factual matters”. The Secretary said that the Medical Assessor provided adequate reasons to explain why he agreed or disagreed with the assessments made by the doctors who had examined Mr Peek.
[3] [2012] NSWWCCMA 26.
The Secretary said that Mr Peek’s introduction to beekeeping through his neighbour demonstrated that it had a social element and the Medical Assessor’s history was that Mr Peek also sees another local friend. The Secretary said that this demonstrated an ability to engage in social and recreational activities, regardless of the number of friends he has. Despite a reduction in the frequency of fishing, Mr Peek continued to engage in that activity and attending a wedding in difficult circumstances shows that he remains socially involved. The Secretary submitted that cooking can be a recreational activity not merely a means of satiating the appetite and that Mr Peek’s working on a vehicle, either alone or with his sons can be social or recreational. There was no evidence that Mr Peek required prompting or a support person.
Referring to the Medical Appeal Panel decision in Beatty v State of New South Wales[4] the Secretary said that the “criteria” should be approached on a “best fit” basis and that the Medical Assessor considered that the best fit was class 2.
[4] [2021] NSWPICMP 92.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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.
In Campbelltown City Council v Vegan[5] the Court of Appeal held that an 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.
[5] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[6] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[6] [2021] NSWCA 304 at [26].
We are required to determine if the Medical Assessor applied incorrect criteria or made a demonstrable error. Our task is not to determine whether the categorisation under the PIRS was “glaringly improbable” or “open” to the Medical Assessor – see Chalkias v New South Wales[7] and Masters v Healthshare New South Wales.[8]
[7] [2018] NSWSC 1561.
[8] [2025] NSWSC 821.
The MAC
The Medical Assessor set out a history of the injury and Mr Peek’s treatment. He described Mr Peek’s present symptoms, including that he “has social anxiety. He previously watched football in person, but cannot tolerate crowded places and stopped going.”
The Medical Assessor recorded that Mr Peek “eats regularly and healthy diet” [sic] and “likes to cook at home and look after his family. He ensures everyone is looked after.”
Describing Mr Peek’s social activities and activities of daily living the Medical Assessor said:
“He sees his father every 1-2 weeks, he visits him and chats with him, and he relates well to his stepmother.
…
He has withdrawn from his friends, and sees a couple of friends only. He started doing beekeeping, with a friend from up the road in the past 12 months. The friend has been teaching him and he enjoys this. He walks up the road to see another friend, and chat over coffee at his home.
…
He goes fishing with his sons, when they are free, and in 2024, he went 2-3 times. Normally, he went monthly on his boat and this has reduced.
Mr Peek went to a wedding in Bowral and stayed overnight, in October 2023.
….
They used to go out to restaurants but he said they ceased it now, due to the crowds there. Mr Peek's wife said he worries about seeing people from the school. After he went off work, he saw another teacher at the shopping centre and he had a panic attack, as the principal told others not to talk to him.
Mr Peek said he had friends at the school, but the principal told them not to contact him. It upsets him that he cannot contact his friends, due to the principal.”
The Medical Assessor considered Mr Peek’s statement and the other reports in the file. He said:
“Mr Peek's statement noted a similar history with work and reported that due to the issues at work, he developed depression and was referred to a psychiatrist in May 2022. By November 2022, he was medically retired, which he said was a foregone conclusion by the department. He discussed reports from Dr Khan and Dr Anand and said Dr Anand was not interested in his elaboration and determined that he could work 20 hours per week. Mr Peek disagreed with him because he only spoke to him for about 20 minutes. Dr Anand painted a picture of a man with no problem travelling to his mother or attending a wedding, but this is not a proper portrayal. He often takes his dog, who is like a therapy dog. Mr Peek struggled to concentrate and operate under any kind of time constraint or supervision. He also disagreed with the 1% deduction for pre-existing psychological conditions. Mr Peek stated that he does a bit of cooking now, but does not go to the hairdresser because it caused too much anxiety. He no longer goes to the Central Coast Mariner Games with his sons to watch live sport. He cannot get started on the renovation he wants to do. In terms of driving and going out, he cannot go to places with noises or crowds. Mr Peek cannot read more than a couple of lines and becomes frustrated.”
Contrasting his assessment with that of Dr Khan, the Medical Assessor said:
“In terms of social recreation, Dr Abdal Khan rated 3 and said that Mr Peek no longer engaged in any social recreation activity and remains isolated at home. I noted that he did not consider the other recreation activities such as learning beekeeping, catching up with friends over coffee, going fishing, or even attending a wedding. I noticed that the main barrier in recreational activities, had been in a crowded environment and being around people, and especially seeing people from the school. Mr Peek reported he enjoys cooking, beekeeping, servicing his vehicle, going fishing. He does not require prompting or support person as he does most of this by himself and therefore I do not believe a rating of 3 can be supported.”
The Medical Assessor summarised the reasons for his assessment in the PIRS rating form:
“He continues to have occasional recreational activities, including beekeeping,
catch-up with friends at home, fishing with his sons, doing projects on the vehicle, and he is actively engaged in these activities. He has different recreational activities with different people and also enjoys solitary activities. He self-initiates and goes on his own, and does not need prompting.”
Assessment under the PIRS
The Medical Assessor was required to assess Mr Peek as he presented on the day of the examination, using his own clinical judgement to form a diagnosis and assess WPI.[9]
[9] Guidelines paragraph 1.6.
Before we consider the impugned assessment for social and recreational activities, it is relevant to observe that the important part of the description of each class is the level of impairment – e.g. no deficit, mild impairment, moderate impairment. The PIRS recognises that there a range of conduct which can be described as “normal”. Assessment in class 1 is appropriate where there is “no deficit or minor deficit attributable to the normal variation in the general population”.
Rather than providing criteria for assessment, what follows the description of the level of impairment in each class are some examples of limitations on activities which are consistent with the level of impairment. In Jenkins v Ambulance Service of New South Wales (Jenkins)[10] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[10] [2015] NSWSC 633 at [65].
In Ballas v Department of Education (State of NSW) (Ballas),[11] Bell P and Payne JA explained the operation of the Guidelines:
“Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self-care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”
[11] [2020] NSWCA 86 at [94]-[95].
In Tasevski v Westpac Banking Corporation,[12] (Tasevski) Schmidt AJ said:
“There are many things in life, medicine and the law which reasonably permit of more than one answer. Assessment of the degree of a person’s impairment is one of them. Inevitably, in a case where it is the impairment of a human being as the result of a psychological injury which is being assessed, consideration must be given to matters of degree and impression, about which reasonable minds may differ.
But that is what this statutory scheme seeks to regulate by its adoption of the applicable Guidelines. They require conclusions to be reached about the severity of an impairment by a determination of which scale particular conduct relates to and the resulting class assignment of that scale, by reference only to that conduct, considered in light of the person's cultural background, age, sex and cultural norms. ...
By confining the assessment of the six scales to the totality of the conduct relevant to each scale, an overall conclusion is arrived at about the injured person’s whole person impairment, as the result of the psychological injury suffered. That is a result not left to an assessor’s discretion. It must be undertaken in accordance with all of the applicable statutory requirements.
Class assignment of one scale thus does not permit account to be taken of conduct relevant to another scale, because, as explained in Ballas, scale assignment of conduct can only have one conclusion. The statutory scheme thus requires an assessor to reach a conclusion about the correct class assignment for that scale, by considering the relevant conduct in light of the class description, which is given by way of example.
When the Guidelines require the assessor to assign particular conduct to the relevant scale and then assign each scale to one of the statutory classes, the assessor undoubtedly has to exercise a degree of clinical judgment: Ballas at [93]. That is what gives rise to the possibility that reasonable minds may differ. But still the exercise which the assessor has to undertake in arriving at a conclusion about the correct class is confined by the considerations which the Guidelines require. Assignment of conduct to the relevant class is not left to be determined as a matter of discretion.”
[12] [2024] NSWSC 401 at [27]-[31].
To the extent that the Medical Appeal Panel’s statement in Beatty is inconsistent with those principles, we adopt Scmidt J’s statement, noting that the decision of another Appeal Panel is not binding on us.
The Medical Assessor is directed by the standard MAP template to comment on other opinions and provide the reasons why his or her opinion differs. That is so the parties understand how and why a different result was reached, not because the Medical Assessor is required to agree with or choose between the previous assessments. The fact that another assessor made a different observation on a different day should not influence the Medical Assessor’s opinion. In Tradieh v LM Hayter & Sons Pty Limited,[13] Stern JA said that the medical dispute between the parties was not a dispute between the assessments made by their independent medical examiners. Her Honour said:[14]
“Ultimately, as is clear from Wingfoot v Kocak and IAG v Keen, both of which arose in the context of (for this purpose) relevantly analogous legislative schemes, [the Medical Assessor] was required to make an assessment of the factual or evaluative question referred under s 319(c) of the 1998 Act, being the degree of the plaintiff’s permanent impairment as a result of the Injuries. Notwithstanding that s 321 of the 1998 Act provides for a medical dispute to be referred for assessment, the role of the medical assessor is not to adjudicate between or to resolve the competing positions of the parties. A medical assessor must plainly consider the material before him or her, and that material will likely include expert assessments of WPI relied upon by a claimant and an employer where the dispute is as to the degree of the claimant’s WPI, but no higher level of ‘engagement’ is required under the 1998 Act.”
[13] [2025] NSWSC 840.
[14] At [37].
Mr Peek relied on Dr Khan’s opinion to support assessment in class 3. A review of Dr Khan’s two reports dated 17 April 2024 shows that they contain little information to support his findings. Dr Khan set out a detailed history of the injury but did not describe Mr Peek’s day to day activities to any extent. His description of Mr Peek’s current functioning was limited to:
“Mr Peek continued to experience pervasive symptoms of depression and anxiety, which negatively impacted on his functioning in the domains of self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability. His current functioning has been further detailed in the assessment of whole person impairment in the annexed report dated 17 April 2024.”
Dr Khan’s reasons for assessing Mr Peek in class 3 were general:
“Mr Peek previously enjoyed socialising with family and friends, attending outings and watching football matches with his family. He no longer actively engages in any social and recreational activities. Mr Peek prefers to remain socially isolated at his home.”
In his submissions, Mr Peek contrasted the Medical Assessor’s history with matters in his statement. We note that much of Mr Peek’s statement focuses on what he is no longer able to do and seeks to critique and disagree with Dr Anand’s assessment. While it was relevant for the Medical Assessor to review the statement, he was required to take a detailed history from Mr Peek on the day of his examination to ascertain his current level of functioning. The descriptions elicited during the consultation may be different from those included in a statement prepared some time earlier. Obtaining a history different to the matters in the statement is not a demonstrable error.
Social and recreational activities
The heading of Table 11.2 is “Social and recreational activities” but the examples provided deal only with attending social events. Those for classes 2 and 3 are:
“Class 2: Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved.
Class 3: Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
Mr Peek submitted that the table does not apply to isolated activities, suggesting that it only applies to activities undertaken in company. While the submission did not refer to Ballas, it may be based on comments at [100] of that decision. However, in Ballas, the Court of Appeal was considering in that paragraph the level of satisfaction required of the President’s delegate as a gatekeeper in determining whether a medical appeal should proceed to an appeal panel. As Basten AJ said in Lancaster v Foxtel Management Pty Ltd:[15]
“The proposition that gambling (or running) may fall within the descriptor ‘social and recreational activities’ if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term ‘recreational’ by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist.”
[15] [2022] NSWSC 929.
While many of the examples in the table refer to activities undertaken in company, the heading of the table refers also to recreational activities. Many recreational activities are undertaken alone. A person who is psychiatrically unwell may lose interest in previous recreational activities which brought pleasure, as well as being reluctant to undertake activities with other people.
In the submissions, Mr Peek said that the Medical Assessor was in error to conclude that he had a mild impairment because he attended one wedding. The references to Mr Peek’s attendance at a family wedding on one occasion in 2023 have limited relevance to the assessment. The circumstances surrounding the wedding disclosed in the evidence are sad and he may not have attended if they were otherwise. However, Mr Peek was able to attend and to sit at a table with family members. The Medical Assessor did not rely on this event in the reasons for his assessment of social and recreational activities in the PIRS table.
The Medical Assessor recorded that Mr Peek told him that he enjoys cooking at home and that he cooks for his family. Mr Peek said that Ballas precluded the consideration of cooking other than with respect to self-care and personal hygiene. Table 11.1 encompasses eating regular meals in the context of the ability to look after oneself and live independently. While there can be a recreational component to cooking – particularly when undertaken for others and for enjoyment - the Medical Assessor did not rely on it in his assessment of social and recreational activities.
The Medical Assessor did say that Mr Peek’s undertaking projects on his vehicle was relevant. The history he took was that the Medical Assessor did this with and for his sons. One of the examples of a moderate impairment of concentration, persistence and pace is the reduced ability through lack of concentration or the ability to persist with a task to make significant repairs to a motor vehicle. That does not mean that the activity does not also have a social and a recreational character. It was not the only activity relied on by the Medical Assessor.
The Medical Assessor obtained a history that Mr Peek maintains some friendships, undertaking activities with two friends. He goes fishing when his sons are available. He undertakes some recreational activities and he has taken up a new activity in beekeeping. Importantly, Mr Peek initiates activities. On that basis, the Medical Assessor was not in error to assess Mr Peek in class 2.
Measurement of impairment
The appeal is limited to the assessment of social and recreational activities and that is the only table under which the Medical Assessor’s assessment differs from that of Dr Khan. Dr Khan’s examination took place 15 months before that of the Medical Assessor and some changes in functioning would be anticipated over that period. As noted above, Dr Khan’s assessment lacked specific examples of functioning.
The measurement of impairment under the PIRS is described in paragraphs 11.13 to 11.20 of the Guidelines. An assessor is required to determine the median class score - by arranging the scores under the tables of the PIRS in ascending order and averaging the two middle scores (paragraph 11.14) - and the aggregate score. Table 11.7 is used to convert those scores to WPI.
Dr Khan’s assessment converts to a median class score of 2.5, rounded to 3, an aggregate score of 17 and WPI of 19%. The Medical Assessor’s scores convert to a median class score of 2 and an aggregate of 16 and WPI of 9%. Table 11.7 clearly shows the impact of that one point difference on the assessment of WPI.
For these reasons, we have determined that the MAC issued on 4 July 2025 should be confirmed.
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