Pilon v State of New South Wales (NSW Police Force)
[2025] NSWPICMP 838
•29 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Pilon v State of New South Wales (NSW Police Force) [2025] NSWPICMP 838 |
| APPELLANT: | Timothy Pilon |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 29 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by traumatised police officer from 6% whole person impairment (WPI) assessment for psychological injury; whether Medical Assessor (MA) had made findings contrary to evidence before her without adequate reasons; Held – Campbelltown City Council v Vegan authority for requirement for MA to refer to contradictory evidence if factual findings inconsistent; to adequately explain their reasoning; MA failed to do so generally but specifically in two of the five impugned categories; re-examination conducted; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 April 2025 Timothy Pilon, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 March 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 ground(s) 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). “WPI” is reference to whole person impairment. “Baseline WPI" is a reference to the total WPI assessed before deduction or modification pursuant to the relevant legislative authority.
RELEVANT FACTUAL BACKGROUND
On 28 February 2025 this matter was referred to the Medical Assessor for a WPI assessment of psychological/psychiatric disorder caused by an injury on a deemed date of 13 January 2023.
Mr Pilon was employed by the respondent as a Detective Senior Constable who began work with the respondent in 2011. He ceased on 1 January 2023.
He was subject to the usual traumatic experiences that first responders encounter during the course of their employment.
He served some time in Bourke from 2016 and was transferred to Ballina in 2019 and later to Tweed Heads. In 2020 he was transferred to Byron Bay.
The Medical Assessor assessed 6% WPI.
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 the worker should undergo a further medical examination for the reasons given below.
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.
Further medical examination
Medical Assessor Michael Hong of the Appeal Panel conducted an examination of the worker on 14 August 2025 and reported to the Appeal Panel.
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 which have been considered by the Appeal Panel.
FINDINGS AND REASONS
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.
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 MAC
In reporting Mr Pilon’s daily activities, the Medical Assessor conveniently considered them in the context of each psychiatric impairment rating scale (PIRS) category. She said, relevantly:[1]
“Social activities/ADL:
-Self-Care And Personal Hygiene: Mr Pilon showers once a day as compared to showering twice a day before the incident. He brushes his teeth and changes into clean clothes on a regular basis. He is able to do household chores like vacuuming, washing, barbeque veggies and cooks at least three times a week and makes chicken nuggets and fish for his children. He denied losing or gaining weight since the incidents.
-Social and recreational activities: Mr Pilon previously enjoyed surfing, going to the gym. He said that he has not surfed in a long time. He has however got his own gym equipment and exercise about three times a week. He catches up with his friend who is also an ex- police officer every second week for a coffee in the mornings. He also met up with his family in Newcastle around Christmas.
…..
-Social Functioning: His parents live in Dubbo, and his parents and one of his sisters live in Dubbo, while his other sister lives on the Sunshine Coast. He continues to have a positive relationship with his mother and talks to her regularly. His father has been diagnosed with dementia. He has a positive relationship with his wife, but since he gets short-tempered, it occasionally impacts his relationship. He has lost a few friendships.
….”
[1] Appeal papers page 35.
At [10c] of the MAC the Medical Assessor said that he disagreed with Dr Chivaurah’s assessment, and explained her opinion in similar terms to her Table 11.8 PIRS Rating Form, which we now copy:
PIRS Category
Class
Reason for Decision
Self-Care and personal hygiene
1
Mr Pilon showers once a day as compared to showering twice a day before the incident. He brushes his teeth and changes into clean clothes on a regular basis. He is able to do household chores like vacuuming, washing, barbeque veggies and cooks at least three times a week and makes chicken nuggets and fish for his children. He denied losing or gaining weight since the incidents.
Social and recreational activities
2
Mr Pilon previously enjoyed surfing, going to the gym. He said that he has not surfed in a long time. He has however got his own gym equipment and exercise about three times a week. He catches up with his friend who is also an ex-police officer every second week for a coffee in the mornings. He also met up with his family in Newcastle around Christmas.
Travel
1
He picks and drops his children to school and drives there. He leaves his home to get groceries and medical appointments. When I asked him if there was any reason why he does not drive long distances to which he said he does not have anywhere to go and hence does not drive long distances generally. He said that he has however driven to long distances. He was able to drive to Dubbo which is about 10 hours just before Christmas. He also travelled to Sunshine Coast and drove there to meet his sister about six months back.
Social functioning
2
His parents live in Dubbo and his parents and one of his sisters live in Dubbo and his other sister lives in Sunshine Coast. He continues to have positive relationship with his mother and talks to her on a regular basis. His father has been diagnosed with dementia. He has positive relationship with his wife but since he gets short-tempered, but it occasionally impacts his relationship. He has lost friendships few friendships.
Concentration, persistence and pace
2
Mr Pilon reported that his memory is pretty good and has been alright. He is able to complete household chores on time and denied making mistakes when doing them or cooking food. He reported that he watches Netflix at night and listens to podcasts when he is doing other household chores. He denied playing video games or reading books. He reported that his attention and concentration fluctuate, but was not able to give any relevant examples for the same. Objectively, he scored 3/3 on 3-word repeat and 3/3 on 3-word recall. He was able to state the days in a week in both forward and backward manner.
Employability
4
Mr Pilon was not sure of what he wants to do work wise. I believe that he can work for less than 20 hours per fortnight and cannot work more than one or two days at a time. He continues to be impacted by symptoms of depression and PTSD which have impacted his capacity to continue working and remain employed with pre-injury employers and in pre-injury duties and hours.
Score
Median Class
1
1
2
2
2
4
= 2
Aggregate Score Impairment Total %
+1
+2
+4
+6
+8
12
6
SUBMISSIONS
After referring to the accepted authorities regarding incorrect criteria and demonstrable error, Mr Pilon submitted that the Medical Assessor had fallen into error with regard to her assessment of each category of the PIRS, save that of travel.
Self-care and personal hygiene
We were referred to the comments made by the Medical Assessor in this category when she assessed a class 1.
Mr Pilon kindly copied into his submissions the relevant class descriptors for classes 1 and 2 in this category. He submitted that the class 1 allocation was inconsistent with the evidence and underestimated the severity of Mr Pilon's impairment.
The Medical Assessor, he said, did not give adequate consideration to his statement of
6 February 2025 and was not addressed in any detail in her MAC.We were referred to various factual matters which will be considered below as to the Medical Assessor's error.
We were also referred to comments by both medical experts. Dr Chivaurah was the medical expert retained by Mr Pilon and Dr Young was retained for the Police Service.
The Medical Assessor explained why she differed from Dr Chivaurah and we were referred to her comments in that regard. It was submitted that she had not however explained how her opinion differed from Dr Young's comments notwithstanding that he found that maximum medical improvement had not been reached.
It was submitted:
“The inconsistency between [the Medical Assessor's] report and what was documented by other independent Medical Assessors... casts doubt over the accuracy of her assessment and suggests she has applied the incorrect criteria and made a demonstrable error...”
Social and recreational activities
Mr Pilon again kindly uploaded the relevant descriptors for a class 2 and class 3 rating.
We were referred to the Medical Assessor's reasons for giving a class 2 rating.
We were again referred to the observations of the medico-legal experts before the Medical Assessor. It was submitted that the Medical Assessor's rating did not take into consideration her notes that the appellant was no longer taking part in social activities he previously did such as surfing and going to the gym and that he would have lost friendships as a result.
The inconsistency between the report of the Medical Assessor and what was documented by other independent Medical Assessors cast doubt over the accuracy of the assessment,
Mr Pilon said.It was submitted that the Medical Assessor did not adequately consider Mr Pilon's statement of 6 February 2025 as it was not addressed in any detail in her MAC. Mr Pilon said that the statement gave context to this category and the Medical Assessor fell into error in not attaching any weight to it.
We referred to the reports of Dr Chivaurah and Dr Young, both of which concurred that
Mr Pilon told them that he cooked about three times nights of the week and that he did the washing. It was submitted that Dr Young, by acknowledging Mr Pilon's ability to manage his personal hygiene and household tasks, nonetheless highlighted a lack of motivation for broader activities. This, it was submitted, suggested a mild impairment.We were referred to the Medical Assessor's explanation as to why she differed from
Dr Chivaurah - particularly that he now showered once a day whereas he used to shower twice a day. This, it was also submitted, indicated a mild impairment and not the minor deficit found by the Medical Assessor.Criticism was made of the Medical Assessor that she had not explained how her opinion differed from Dr Young's comments regarding the appellant's functioning.
Social and recreational activities
The class 2 rating given by the Medical Assessor it was submitted was erroneous. We were kindly supplied with the relevant class descriptors in the PIRS and reference was made to Medical Assessor's reasons for the class 2 functioning.
Mr Pilon submitted that there was an inconsistency between the history taken by the Medical Assessor and Dr Chivaurah.
The Medical Assessor recorded that Mr Pilon had his own gym equipment which he used about three times a week and that he caught up with his ex-police officer friend every second week for coffee.
To Dr Chivaurah the history was given that Mr Pilon “catches up for coffee” with “another copper who is off work about once every two weeks.”
Dr Chivaurah recorded that Mr Pilon used the gym at home alone twice a week whereas “before medication I was probably doing it four to five times a week.”
It was alleged that the Medical Assessor, in explaining her differences of opinion with those of Dr Chivaurah and Dr Young, failed to take into consideration “her notes that the appellant is no longer taking part in the social activities he previously did such as surfing and going to the gym and would have lost friendships from this.”
It was submitted that this alleged inconsistency “suggests that [the Medical Assessor] has applied the incorrect criteria and made a demonstrable error in her assessment of this category.”
Social functioning
The demonstrable error alleged was that the class 2 rating was based on the terminology of the descriptors rather than an objective assessment of the facts that the evidence demonstrated.
It was submitted that the Medical Assessor did not taken into account the fact that there had been four separations within the marriage, which was contrary to her finding that there had been no such periods. We were referred also to Dr Chivaurah’s findings and rating of a
class 3 impairment on the history he took that there had been four marital separations.
Concentration persistence and pace
The relevant descriptors for class 2 and class 3 were kindly made available and Mr Pilon referred to the Medical Assessor's reasons within the PIRS Table 11.8. Again, Mr Pilon contrasted what was recorded by the Medical Assessor with the histories taken by Dr Young and Dr Chivaurah.
It was submitted that the reason put forward by the Medical Assessor for disagreeing with
Dr Chivaurah’s assessment had not been clearly articulated.It was submitted that the assumption made by the Medical Assessor that listening to podcasts was intellectually demanding was not explained. There was a significant difference with the history recorded by Dr Chivaurah that Mr Pilon said “I tried to listen to podcasts” and the history recorded by the Medical Assessor that he did listen to podcasts for 30 minutes.
Employability
The relevant class descriptors were again reproduced, and Mr Pilon submitted that the
class 4 rating was inconsistent with the evidence. There was, it was argued, no medical evidence that certified Mr Pilon as being fit for 20 hours per week. Further, it was submitted that the Medical Assessor gave inadequate reasons for her finding.We were again referred to the reports of the opposing medical experts, about which Mr Pilon said that Dr Chivaurah noted that no employment either paid or voluntary had been performed by him since he ceased work. Dr Young noted that he could not return to police work for 12 months and that he was temporarily incapacitated. The contrast between the opinions of the medical experts and that of the Medical Assessor was such that a
re-examination was required, Mr Pilon said.
RESPONDENT
The respondent firstly made some general submissions regarding the role of a Medical Assessor. It argued that there was no requirement to reproduce the relevant descriptors, and that there was no requirement for an explanation as to any disagreement with the medical experts. It submitted that adequate reasons for each category rating had been given.
Self-care and hygiene
The respondent submitted that the class 1 rating was proper, bearing in mind the relevant evidence, which it referred to.
Social and recreational activities
It was submitted that the Medical Assessor was not bound to follow the opinion of
Dr Chivaurah, and that her assessment was consistent with the history she obtained from
Mr Pilon. He was able to occasionally go out to events without needing a support person and did not become actively involved, which was consonant with the class 2 rating given by the Medical Assessor.
Social functioning
The respondent referred to the findings of the Medical Assessor that there was a positive relationship with Mr Pilon’s wife that was occasionally impacted by his short temper, but that the relationship had been improving. The four periods of separation had been noted, but the evidence did not establish that the relationship was severely strained, as was required for a class 3 rating. Mr Pilon’s care for his children was also more consistent with a class 2 rating, it was submitted.
Concentration persistence and pace
The respondent noted that on the evidence of Mr Pilon’s daily routine, a class 1 rating might have been appropriate, but accepted that the class 2 assessment was justified by the history taken by the Medical Assessor. This included the “objective” tests administered by her.
Mr Pilon’s statement, it was argued, established that he was able to type long documents and provide a consistent history, which indicated an ability to carry out the activities indicated in the descriptors for a class 2 rating. Dr Chivaurah did not suggest that Mr Pilon had any more serious limitations, and his opinion was also consonant with a class 2 assessment, notwithstanding his class 3 finding.
Employability
The class 4 rating was made based on the Medical Assessor’s own opinion following the clinical examination and history given to her at the examination, the respondent said. It referred to Dr Young’s opinion that Mr Pilon’s earning capacity would only be impacted for
12 months or so, and four months later Mr Pilon’s daily activities indicated some capacity to earn.
DISCUSSION
The psychiatric impairment rating scale
The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from one to five. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[2] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[2] Guides page 55.
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[3]
[3] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[4] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[5]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[4] [2017] NSWSC 887.
[5] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[6] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[6] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated, or
(d) if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[7] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of ss 327(3) and 328(2).
[7] [2022] NSWSC 929.
It is axiomatic however, that the reasons given by a Medical Assessor be adequate to explain the assessment made. In Vegan, Basten JA (Handley & McColl JJA agreeing) said:
“121 where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, 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. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant’s condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel, and
122 on the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment (Authority omitted). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.”
These reasons are equally applicable to the function of a Medical Assessor.
The arguments advanced by Mr Pilon were directed at the failure by the Medical Assessor to explain her reasons by reference to seemingly contradictory evidence which was before her. We agree with that criticism, but rather than discuss every category, his submissions regarding the following categories are illustrative of the problem, which can only be resolved by a re-examination.
Social and recreational activities
Table 11.2 provides relevantly:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2 Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
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.”
The reasons given for the class 2 rating by the Medical Assessor were, to repeat:
“Mr Pilon previously enjoyed surfing, going to the gym. He said that he has not surfed in a long time. He has however got his own gym equipment and exercise about three times a week. He catches up with his friend who is also an ex-police officer every second week for a coffee in the mornings. He also met up with his family in Newcastle around Christmas.”
Mr Pilon’s submissions were directed to the accuracy of that history. Whilst, as noted above, the pre-eminence of the clinical examination cannot be underrated, if a Medical Assessor takes a clinical history that is factually different from the evidence that was before him/her, the Medical Assessor is required to refer to “the evidence or other material” on which her findings were based, as was determined in Vegan.
In his statement of 6 February 2025, Mr Pilon said that he had lost interest in activities he used to enjoy. He no longer went to the gym four to five times per week, and he needed a support person if he was driving in certain situations.[8] He said that he did exercise alone at home three to four times per week, but all the relevant evidence needed to be referred to in explaining why the Medical Assessor formed her opinion.
[8] Appeal papers page 54 at 56.
Both experts on each side of the record had recorded a different history as to Mr Pilon’s activities. Dr Chivaurah noted a similar history.
Dr Young noted:[9]
Leisure activities:
· socially withdrawn, prefers staying at home;
· occasionally meets a friend for coffee but stated, "I don't really go anywhere... I just stay home", and
· no participation in previous hobbies or sports.
[9] Appeal papers page 83.
Dr Young said of Dr Chivaurah’s report:[10]
“The report provides a reasonable and consistent account of Mr. Pilon’s psychiatric condition and impairments but in my opinion prematurely concludes that MMI has been reached.”
[10] Appeal papers page 86.
We observe that Dr Young’s findings were consistent with a class 3 rating, and that he agreed with Dr Chivaurah’s opinion as being reasonable and consistent.
The reasons given by the Medical Assessor portrayed a person who appeared to be quite active. They gave insufficient recognition to the more moderate impairment suggested by the class 3 descriptors. Mr Pilon did not appear to have gone out to relevant events, and he appeared to be more quiet and withdrawn than her reasons suggested.
We determined that there is an error, being an insufficient explanation of the rating based on the available information, and a re-examination was necessary to explore these additional facts.
Social functioning
Table 11.4 provides relevantly:
“Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The Medical Assessor said, to repeat:
“His parents live in Dubbo and his parents and one of his sisters live in Dubbo and his other sister lives in Sunshine Coast. He continues to have positive relationship with his mother and talks to her on a regular basis. His father has been diagnosed with dementia. He has positive relationship with his wife but since he gets short-tempered, but it occasionally impacts his relationship. He has lost friendships few friendships.”
Again, relevant facts have not been referred to. When discussing Dr Chivaurah’s report at [10c], the Medical Assessor said:
“Social functioning: I have noted there are tension and arguments with his partner but no periods of domestic violence or separation or spouses or community services looking after children. This warrants mild rather than moderate impairment.”
We assume that the Medical Assessor intended to convey that she was noting the marital discord as she wrote, and was not referring to any earlier note to that effect, as none was made. She earlier noted that Mr Pilon was married in 2013, and that they had two children and that his wife went running with him three weeks earlier.[11]
[11] Appeal papers page 35.
The Medical Assessor did not refer to Mr Pilon’s statement:[12]
“There has been about four times where I have stayed at my parent’s place about
10 hours away due to the difficulties in my marriage. When this occurred I stayed about a week each time.”
[12] Appeal papers page 56.
Nor did she refer to the history taken by Dr Chivaurah:[13]
“His relationship with his wife is improving ‘it’s not the best’ because ‘I was just drinking, was agitated and even now feel withdrawn.’ They have considered separation but ‘we are still together’ and ‘I have gone to stay with my parents for a couple of weeks’ on four separate occasions.”
[13] Appeal papers page 117.
Nor that of Dr Young:
“Mr Pilon's relationship with his wife has become strained. ‘Not the best... I'm trying to... I've got to get some counselling and stuff... things are not going well,’ he admitted. They plan to seek couples counselling to address their issues.
…
Mr Pilon has been married since 2013; together since approximately 2008. He has two children: a daughter nearly 10 and a son aged 7. Currently experiencing marital difficulties; plans to initiate couples counselling.”[14]
[14] Appeal papers pages 76 and 78 respectively.
The Medical Assessor appears to have erred in fact by finding there were no periods of separation, and she did not explain that finding in the light of the evidence before her that there had in fact been four such periods, nor did she refer to that evidence. This was a further matter that gave us pause, and to determine that a re-examination was required.
There is little utility in discussing the findings relating to the remaining impugned categories, as the re-examination must consider all the challenges. Medical Assessor Hong’s report follows:
“1. HISTORY RELATING TO THE INJURY
·Brief history after MAC:
Mr Pilon joined the police in 2011 and reached the rank of a senior constable. He ceased working in January 2023 and has not worked since.
He reported his mental health declined from around 5 years before he ceased working and related to exposure to deaths and people with horrific injuries, violence and major accidents, and also lack of support at work (he said, it was not bullying and harassment as Dr Peter Young wrote, and that he had a disagreement with another officer).
He developed anxiety and depression, and described alcohol overuse from early 2020. He would cry for no reason at work, but persist with working.
·Present treatment:
Mr Pilon is taking Sertraline 50 mg and previously took 100 mg.
He continues to consult Toby Wilson, a psychologist, recently having reviews every 2-3 weeks. They have done trauma-based Cognitive behaviour therapy.
He also sees Dr Mark Scurrah, a Psychiatrist, recently every 2-3 months. He has not had group-based treatment or psychiatric admission.
·Present symptoms:
Mr Pilon's anxiety and depression are similar as when assessed by Dr Surabhi Verma. He does not drink alcohol anymore, and explained he cannot stop once he starts drinking. He has frequent nightmares and his sleep is slightly better off alcohol. He takes Melatonin as needed for sleep. He has distressing memories related to work.
Mr Pilon's anxiety symptoms are triggered by certain places, unfamiliar places, crowded places and he does not like to talk about himself, or answer questions about what he does. He worries something bad would happen when out.
He eats regularly and exercises a couple of times a week, and has a stable weight. Recently, he exercised less, due to a shoulder problem.
He has occasional suicidal ideations, and never acts on them. He described being irritable without acting out. He said he goes 0 to 100 over little things.
He said his concentration varies depending on the activities. He struggles with reading and prefers to listen to podcasts, and can listen for 30 minutes when doing housework. He has never been one to read books or novels, but at work, he read a lot without concentration difficulties, but now, he cannot read similar material. With forms, he rereads the same material and asks his wife to help.
· Social activities/ADL:
Normally, he has many interests and recreational activities, including surfing and regular workouts at the gym. He enjoyed group sporting activities with friends, generally different sports every week in teams, with a club at the sports centre. But he does not do these activities anymore. He said he gets paranoid near water, as he fears people would drown in water and he would need to intervene.
He uses the home gym regularly, but no longer uses professional gyms with strangers.
On a typical day, Mr Pilon said he does not do a lot, he does some housework as he listens to podcasts, he watches TV and watches Netflix for hours, generally TV series, comedies and dramas. He avoids podcasts and shows about traumatic content, e.g. a person with a rough childhood. He does not watch documentaries or crime shows.
He drives and does the school drop-off, and some gardening and weeding. He buys the groceries sometimes and his wife does more. He goes to the shops when it is quiet and not many people there. He cooks a couple of times a week, but finds it harder to organize it, and generally his wife tells him what to buy and cook.
He said sometimes he only showers once daily and previously, he showered daily twice, as he has always done.
His parents are 10 hours away in Dubbo and he talks to his mother regularly, but his father has dementia, and cannot hold conversations. He only visits his parents once a year, and his parents cannot really travel to visit him due to his father's condition. He has 2 sisters, but one is 10 hours away and another is on Sunshine Coast, 3.5 hours away. The relationship is ok, but they only meet up once a year.
He has withdrawn from his friends since the work injury. He said he stopped talking to some people. He has a friend, an ex-police officer and they have coffee every 2 weeks. The friend is supportive.
He has been married since 2013, but the marital relationship is not good, as he gets angry at home. They separated 4 times and he left to live in his parents' home, 10 hours away. He said the last time was a while back, and he could not recall when. He said they seemed to be ok, but the marriage is always up and down, even now.
I asked about trips away, Mr Pilon reported going to Nelson Bay in December 2024, and met up with his parents and sisters, and was in a caravan park with his wife and children. He did not like being there. In 2023, they went to Dubbo as a family for Christmas. As a family, they went to the Sunshine Coast once in 2024 for his sister's birthday, and they have not gone away in 2025.
He uses iPad for Netflix and does not use social media.
2. FINDINGS ON EXAMINATION
Mr Pilon was assessed by video. He was at home during the assessment. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity. He spoke spontaneously in a soft tone. He struggles to remember details. Before I completed the assessment, I asked him for additional information that he wanted to add and he had nothing to add.
3. SUMMARY
· summary of injuries and diagnoses:
Mr Pilon reports that due to his work experience, he started overusing alcohol and has developed depression, anxiety, and trauma symptoms consistent with Post-traumatic stress disorder. His condition has not significantly improved over time and certainly not since being assessed by Dr Verma.
Mr Pilon's described difficulties are generally similar to his statement, noting that he avoids certain places, has difficulty concentrating and focusing, cannot read more than a few sentences and has to re-read, and has been forgetful. There is quite significant social isolation and apart from one friend, he does not catch up with anybody outside his family. He has rare trips and only goes to social gatherings with support from his family, but even when going away with his family of origin, he remains withdrawn.
Mr Pilon's described functioning is also generally similar as that noted by Dr Peter Young in 2024, who noted his plan to go to Nelson Bay for a trip with his family of origin for Christmas.
Looking at Dr Bernard Chivaurah’s PIRS, he rated self-care and personal hygiene as 2, but in fact, he did not identify any specific deficit. Mr Pilon reported a level of functioning consistent with 1.
Even though Dr Chivaurah rated concentration, persistence and pace as 4, the described explanation could be consistent with a 2 or a 3. The Panel rated 3 on the basis that Mr Pilon used to be able to focus on reading material for hours at work, but now he struggles even with basic forms. He watches Netflix, but these are all shows that do not require much concentration. Similarly, he listens to podcasts while doing housework and is not always focused on them.
In terms of employability, even though Mr Pilon is not at work, he does regular activities at home, attending to tasks at home and he is not completely devoid of productivity, and this is consistent with a 4.
· consistency of presentation
I have found no inconsistency in Mr Pilon's presentation.”
We adopt Medical Assessor Hong’s report. It is apparent that the Medical Assessor did not adequately consider the evidence before her in determining Mr Pilon’s assessment, which in turn caused her to fall into error.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 March 2025 should be revoked, and a new MAC should be issued. The new certificate and PIRS rating form is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1354/25 |
Applicant: | Timothy Pilon |
Respondent: | State of New South Wales (NSW Police Force) |
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 Surabhi Verma and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| 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) |
| Psychological/Psychiatric | 13 January 2023 (deemed) | Chapter 11 | N/A | 15% | Nil | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
Table 11.8: PIRS Rating Form
| Name | Timothy Pilon | Claim reference number (if known) | W1354/25 |
| Age at time of injury | 35 years old | ||
| Date of Injury | 13 January 2023 | Occupation at time of injury | Detective Senior Constable. |
| Date of Assessment | 17 March 2025 | Marital Status before injury | Married |
| Psychiatric diagnoses | o Post-Traumatic Stress Disorder. o Major Depressive Disorder. o Alcohol Use Disorder in remission. |
| Psychiatric treatment | Yes |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-care and personal hygiene | 1 | Apart from showering once instead of twice a day, there are no significant changes compared to before the subject injury. There is only a minor deficit, attributable to the normal variation in the general population. | |||||||||
| Social and recreational activities | 3 | He has rare social and recreational activities and remains quiet and withdrawn, and needs a support person. He has coffee with a friend for support. | |||||||||
| Social functioning | 3 | Mr Pilon's relationship with his wife is severely strained and they have separated several times. The relationship is not significantly better since the last separation. He is anxious and socially avoidant, and ceased contact with most of his friends. The relationship with his general family is more distant and remains intact. | |||||||||
| Concentration, persistence and pace | 3 | Mr Pilon described having poor concentration. He has not undertaken study since the subject injury. He does not read as he can only focus for a couple of minutes. He listens to podcasts when doing household chores, for 30 minutes, but does not focus on it . He cannot engage in intellectually demanding tasks anywhere near 30 minutes. | |||||||||
| Employability | 4 | Mr Pilon has not worked since the subject injury and his anxieties and concentration difficulties impact on his capacity to work. He regularly performs tasks at home, which are remunerable under different circumstance, consistent with productivity less than 20 hours per fortnight. | |||||||||
| Score | Median Class | ||||||||||
| 1 | 1 | 3 | 3 | 3 | 4 | =3 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| + | + | + | + | + | 15 | 15 | |||||
Final WPI
15%
0
5
0