Podesta v The Hills Shire Council

DETERMINATION OF APPEAL PANEL
CITATION:	Podesta v The Hills Shire Council [2025] NSWPICMP 319
APPELLANT:	Michael Anthony Podesta
RESPONDENT:	The Hills Shire Council
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	7 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant submits that the Medical Assessor erred in his assessments under four categories of the psychiatric impairment rating scale (PIRS); Held – Appeal Panel found error in one category only; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 December 2024, Michael Anthony Podesta (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 December 2024.
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, 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).

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 although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal, for reasons which will become apparent 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.

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 Medical Assessor erred in his whole person impairment (WPI) assessment of four of the categories of the psychiatric impairment rating scale (PIRS), namely Self-care and personal hygiene, Social and recreational activities, Travel and Concentration, Persistence and Pace (cpp).
In reply, the respondent submits that no errors were made.

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 appellant was referred to the Medical Assessor for assessment of WPI in respect of a primary psychological injury on a deemed date of injury of 17 October 2023.
The Medical Assessor obtained the following history:
“Mr Podesta has worked at the Hills Shire Council for about 18 years and was the leading hand in the workshop, and he is a motor mechanic by trade.
In terms of work stress, he said that it started with a specific coordinator who was abusive and would throw phones and throw things at work, and often turn up to work smelling alcohol. The whole workshop was being bullied and abused by him. He said that the worker eventually resigned, but he thinks that he had been asked to leave. The coordinator had made threats and said things like "if I go down, you're all going down with me".
Mr Podesta said the managers knew about the problem and investigated, but it was a smokescreen. After the investigation, several people lost their jobs, but there was ongoing corruption at work. He said that they made him the scapegoat and he was held responsible, even though it was never his fault. There was an internal investigation, then an ICAC investigation. They investigated the purchasing orders, the orders never came from him, and he was unfairly sacked because of it. He said ICAC investigated stolen trailers and missing money. The police even charged some of the managers, and there were never any charges against him.
Mr Podesta said normally he was a happy person who advocated for others at work, and it was the best job he had. But when the management changed, he was made the scapegoat. Now, he couldn't do any work anymore because he lost trust in people. He has no motivation or confidence to do anything.
He went to discuss the surveillance material and that he had been followed since he made the Workcover claim.”
Present treatment was noted as follows:
“Mr Podesta is taking:
Desvenlafaxine 200 mg
Davigo 5 mg
Statin, cholesterol-lowering and cardiac-protective medication
He has been consulting Dr Raiz Ismail, psychiatrist around 3 years, recently every few months. He has been consulting Chi Morris, psychologist every 3-6 weeks. He said she invited him out to coffee to help his anxiety when he is out. I noted he said he has been able to go out regularly in October and November 2024, on his own or with his family.”
Present symptoms were noted as follows:
“Mr Podesta described having depressed mood nearly everyday. He said medication numbs his bitterness and he has good days, and days in dark places. He struggles day-to-day, to be positive and feels like he is not happy go lucky now. He sleeps better now, with a sleeping pill, and generally sleeps 6-7 hours. He wakes up at 12am and watches YouTube videos sometimes. He said his energy level is ok. He said he loves driving and seeing different sceneries, but finds it hard to drive long distances, as he gets tired. He can drive 45 minutes then pull over to smoke. If he has to go further, he asks his sister to drive.
Mr Podesta said he does not trust people outside his family. He reported suicidal ideation without suicide attempt. He feels frustrated without anger problems. He said his concentration and memory are not as good, and he goes to the shops and buys things he did not intend to buy or forgets to buy something. He gained weight, from 76kg to 90kg. He is now 83kg as he takes walks and has better diet - he successfully lost weight in the past few months. He reported that he has been drinking most days of the week and can drink one to eight beers in a day. He would drink at home or in the pub. He would drink by himself and with other people.”
The Medical Assessor then set out details of the impact of his injury on his social activities and activities of daily living (ADL’s) as follows:
“Mr Podesta lives on his own at the Ponds. He has a holiday house in Lake Macquarie. His sister, mother and niece all live in Mortlake in separate apartments. He said that he often stays with his sister, maybe two or three times a week, because she is closer to his mother, and he doesn't have to drive 35 to 40 minutes from home to go and see his mother. He said his sister often drives him as he cannot manage long distances driving, although later, he said he can drive to Lake Macquarie from the Ponds, around 100km, on his own.
On a typical day, Mr Podesta said he takes walks near the water, watches YouTube videos, tinkers in the shed and tidies up. He sorts out his tools and throws things away. He also said he takes walks every day for 2-3 days then stops for 2-3 weeks. He can walk 2 hours sometimes. Sometimes he drives somewhere, then he parks and walks near the water or the bush in Windsor.
He put insulation in his colorbond shed 6 months ago. He visits his sister and mother a few times a week. He said he does not have many friends now. He talks to his friends overseas, in Vietnam and Thailand. Some friends are angry with him as he does not go out with them. He visits a friend in Scofield and had coffee, 5-6 months ago.
Mr Podesta has never been married and was in a long-term relationship, which ended in 2012, and this was the mother of his daughter. He said that he had a partner before the work injury started. They did not live together, but they were together for about 12 months. They would drive to the park and do shopping together. He met his son, although he never met her other family. He said the relationship ended 3-4 months after work stress began.
Initially, Mr Podesta said he goes out to eat maybe once or twice a week, at the pub or hotel. We discussed his bank account statement and he said that it could be more, it depends on where he is going. We discussed that in November 2024, he ate out frequently in different places and he confirmed he was going to different places almost every day.
He said recently, he organized for a carpenter to come to move a built-in wardrobe. He was helping to move some of the internal panels, but he dropped one of them, causing an abrasion to his leg.
He said that a friend moved overseas and gave him some fish, so he decided to build a pond. It should be an easy job, but it took him 18 months to build it. He finished it maybe a year ago. He had 9 fish, and now there are 22, and they are thriving.
Mr Podesta said he stopped playing musical instruments - he used to play the guitar and drum. He said he listens to music on YouTube and listens to Italian music. He can spend a couple of hours on YouTube watching videos or listening to music.
He was restoring a car, and said the car came under investigation. They had alleged that he was doing it in the workshop or he purchased parts for it. So he stopped restoring it and paid somebody to finish building the car. He said he drove it in January 2024 with his daughter, but he hasn't driven it again and maybe he will sell it because he doesn't use it.
In November 2022, he flew by himself to Vietnam and was picked up by a family friend and stayed with the friend for 3 weeks. He said he enjoyed visiting Vietnam and did meditation there.
Mr Podesta reported that his mother is 93, and he often takes her to different places, for example, to the pub to eat. He would have one beer when going out with her at the pub. They eat at the pub, and sometimes his sister will come, sometimes his brother will come, and sometimes his niece will come. He said he trusts his family, and the relationship with them is good.
He has a 15-year-old daughter who lives with her mother in Melbourne, and he regularly talks to her by phone. He paid for her plane ticket, and she came to see him in January 2024. He would like her to come more often.
He said that when he has friends visiting from overseas, he likes to go on outings and small trips, and they visited the beach. He has a friend in Vietnam, and she had visited Australia maybe three times, and they went to Cabramatta together, which is shown in the surveillance material.
Mr Podesta reported that he had been to his Lake Macquarie property maybe a dozen times in 2024. Generally, he takes his mother with him and sometimes he goes by himself. He would stay at the property for three or four days. He said he likes to go there because he likes to be near the water. He buys some groceries when he is up there, and buys fish and chips to eat near the water, which he said is very soothing.
He discussed that one of the photos of him eating at Leaf cafe was actually his psychologist and at her request.
We discussed the bank account expense entry in Umina Beach, and he said that a school friend called up, so he decided to meet up with the friend and they ate out together.”
Findings on examination were reported as follows:
“Mr Podesta was assessed by video. He was alone at his sister’s home during the assessment. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment.
Mr Podesta had a shaved head and a light beard. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was mildly restricted in his affect range and reactivity. He was generally talkative throughout the assessment. He spoke spontaneously. He was not thought disordered.
At the end of the assessment, I asked for further information that may be relevant and, he said he lost trust and confidence, his life is all changed, driving is easy and good for him to see different sceneries, as he goes into dark places. He said people called him 2 years after he left and wanted to book in their cars. He is trying to get well and he did not do anything wrong.”
The Medical Assessor then summarised the injuries and diagnoses as follows:
“Mr Podesta has no past psychiatric history or previous alcohol problems. He reported long term problems at work and eventually, he ceased work. He developed anxiety and depressive symptoms, consistent with a Major depressive disorder and drinks alcohol to excess. He has had sufficient psychological/psychiatric treatment and his psychological injury has stabilized.”
He added:
“Mr Podesta is less impaired than described in previous reports, which I concluded was due to further treatment, and he has gained further improvement in his psychological injury.”
The Medical Assessor assessed 7% WPI to which he added 1% for treatment effects, a total of 8% WPI.
He then set out a summary of the material he had before him.
Relevant to the issues in dispute, he said:
“I have reviewed the supplied videos, which do not change my overall assessment opinion or ratings as they are consistent with my assessment.
Dr Kaplan, 12th of March 2021. Mr Podesta reported that he showers only every three or four days and does not change his clothes and forget to brush his teeth. Cooks sometimes but often can't take away food. He will have coffee, go out for a walk, listen to the radio and call his mother. He watches cooking programmes and listens to YouTube music. He plays guitar but not for long. He does gardening, growing vegetables and was building a pond. He tinkers in the shed and does mechanical work. He has only one friend in contact but he does not go out with him. He enjoys seeing his niece and nephew and teaching them to play guitar. He went to Vietnam for three weeks with a friend. He provides WPI 311-235. Which came to 15%.
Dr Frank Chow, 12th of May 2021, noted Mr Podesta's work history and concluded he suffered a psychological injury. In a further report, dated 29th of September 2023, he wrote that he remained unfit for work. He suffered an adjustment disorder and alcohol use disorder. He provided PIRS 3, 3, 2, 3, 3, 5, which came to 24%. It should be noted that Mr Podesta described to me a much higher level of functioning compared to that assessment, and he has gained psychological improvement with further treatments since the assessment.
Comment:
In terms of self-care, both IME psychiatrists rate 3 but interestingly, both doctors' explanations are consistent with 2 as there is no evidence that Mr Podesta could not look after himself independently or that he needs prompting with his self-care or personal hygiene tasks. In my assessment, I took the history that he is quite independent in all matters and in self-care. Based on the updated history from him, I concluded a rating of 2 would be the maximum rating and 3 cannot be supported.
In terms of social recreation, Dr Kaplan rated 1. Dr Chow rated 3. Dr Kaplan said he does not engage socially or in most of his hobbies, and he tries to play guitar, but it's not consistent. In my assessment, Mr Podesta reported that he had been overseas since his work injury and stayed with a family friend.
He had received overseas visitors and went to Cabramatta together. He went out regularly by himself to eat at different venues and pubs, and also with some family members. Sometimes he made detours as he likes to spend time near the water in different places. He goes to his property in Lake Macquarie and has been there a dozen times in 2024, either by himself or taking his mother or other family with him. He also said the entry in Umina Beach was to catch up with a school friend and they ate out together. He enjoys regular and sometimes daily activities, on his own and with people. Taken all together, my view is a rating of 1 is more accurate.
In terms of travel, Dr Kaplan rated 1. Dr Chow rated 2, and said he can drive and walk locally, but is easily anxious. I noted his explanation doesn't actually contain an impairment, and I rated 1, as he drives to many places on his own, goes out on foot and went overseas and to unfamiliar places on his own.
In terms of social functioning, Dr Kaplan rated 2, and I noted there is no dispute Mr Podesta had a relationship with his girlfriend and this had broken down, therefore I rated 3.
In terms of concentration, persistence and pace, both IMEs rated 3, as he's distracted, easily forgetful, loses interest, cannot read for long, or more than a page. He forgets what to buy, his sister tells him, but he buys the wrong things and loses items. I noted the recorded history is at odds with how he presented during my assessment, and I discussed with him, his concentration seems good today. I noted he tinkers in his shed and build things, he built a pond which took longer than usual but nevertheless completed it. He can sometimes spend hours on YouTube, and he can drive long distances. Based on his presentation on the day, where he remained focused for an hour, my view is that a rating 2 is more accurate.”

The appellant’s submissions

These may be summarised as follows:
Self-careand personal hygiene
(a)the Medical Assessor’s own comments are inconsistent with his assessment;
(b)the appellant relies heavily on his sister for help in this category;
(c)he stays with his sister a number of days each week;
(d)the Medical Assessor acknowledged that he only showers a couple of times per week and changes his clothes irregularly;
(e)his kitchen is “a mess” and he resorts to take-away food because he runs out of food;
(f)he shaves his head to avoid having to comb;
(g)he is patently not living independently without the support of at least his sister and others, and
(h)a moderate impairment is appropriate.
Social and recreational activities
(a)the Medical Assessor’s summary in the Table is selective and does not reflect the significant impact that his injury has had on his social and recreational activities;
(b)the Medical Assessor has failed to have regard to the various statements given by the appellant;
(c)the Medical Assessor failed to ask the appellant about his pre-injury activities, for example, playing the guitar;
(d)his trip to Vietnam was encouraged by his family and he was met by a friend. Its purpose was to pursue therapeutic medication, not for leisure, and
(e)a class 2 rating at the least is appropriate.
Travel
(a)the Medical Assessor’s assessment of no deficit is inconsistent with the evidence;
(b)the Medical Assessor focussed on the single trip overseas to justify his assessment;
(c)the overseas journey he took was not genuinely independent because he was accompanied at all times apart from during the actual flight;
(d)the Medical Assessor has again failed to engage with all of the evidence, in particular the appellant’s statements;
(e)he tends to walk locally, consistent with the surveillance material;
(f)his sister regularly drives him, especially on longer trips, and
(g)the appellant clearly has a restricted capacity to engage in travel.
Concentration, persistence and pace
(a)the Medical Assessor said that the appellant’s presentation on the day of the assessment was “at odds with how he presented during my assessment…his concentration seems good today”;
(b)this attempt at justification is entirely insufficient;
(c)the Medical Assessor’s comments are entirely impressionistic and not based on any genuine interrogation of the appellant;
(d)just because he was focussed during the assessment is not a reliable indicator of the impact of his injury in this category;
(e)watching YouTube clips for lengthy periods does not require any significant capacity;
(f)there is no suggestion made by the Medical Assessor that the appellant reads extensively or is capable of following complex instructions and semi-complex tasks. The opposite is true;
(g)the appellant suffers at least a moderate impairment, and
(h)in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas) the Court of Appeal held that conduct must be assigned to the appropriate category, stating at [94]:
“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.”

The respondent’s submissions

As indicated earlier, the respondent submits that no errors were made.

Discussion

Self-care and personal hygiene

The Medical Assessor assessed a Class 2 rating and said:
“Mr Podesta mows the lawn. He buys takeaway food and KFC. Sometimes he cooks, he said around 2 days every 2 weeks. When he runs out of food, he buys takeaway food. He said he tries to be tidy but is "not thorough". If he makes a mess in the kitchen he would clean up. When his friend from Vietnam visits, she would help him with cleaning. His sister comes to help him with household chores on rare occasions, as he does it himself but at a lower level of thoroughness. He said he makes the bed himself. He showers a couple of times per week and changes to clean clothes after showering, and said he does not need to shower more as he does not go out that much. He said he could not comb his hair so he cuts his hair off. He is capable of independent living without regular support, and does not need prompting with self-care.”
The descriptor for a Class 2 rating reads: “Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
For a Class 3 it reads:
“Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit)
2–3 times per week to ensure minimum level of hygiene and nutrition.”
There is nothing in the history obtained by the Medical Assessor that fits with a Class 3 rating.
As the appellant said, “he does not need to shower more as he does not go out that much.” He is able to clean up any mess he makes.
There is also no evidence that that Mr Podesta can’t live independently, or needs prompting to shower, or regularly misses meals, or requires assistance “to ensure minimum level of hygiene”. His sister only visits him rarely to help out and he stays with her not out of need for aid in self care but because her home is nearer to their mother’s home.
It must be remembered that cl 1.6 of the Guidelines provides:
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment (our emphasis) taking account the claimant’s relevant medical history and all available relevant medical information…”
The history given to the Medical Assessor at the time of his assessment is consistent with the descriptor for a Class 2 rating.
The Medical Assessor addressed all the relevant issues in this category. He took a detailed description of the appellant’s restrictions in this category, and his assessment was consistent with the evidence.

Social and recreational activities

The Medical Assessor assessed a Class 1 rating and said:
“Since his work injury, he has been overseas once. He went to Lake Macquarie around 12 times in 2024, and he regularly goes out and visits pubs and hotels. He does not gamble. He likes to visit places near the water. He also socializes with his family and eats out with them regularly. He confirmed he enjoyed catching up with a school friend in September 2024, based on his bank transaction. As he initiates and actively engages in regular recreational activities, he enjoys solitary activities and activities with people, and does not need prompting or a support person, I concluded there is no deficit or minor deficit, attributable to the normal variation in the general population. I noted he does not play musical instruments, or inconsistently now.”
The descriptor for a Class 1 reads:
“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.”
For a Class 2 it reads:
“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).”
It is not uncommon for people to fall on the cusp of some ratings in the PIRS.
In this case, there is some argument that a Class 2 rating could be achieved, however, our task is to identify any error by the Medical Assessor in his assessments. On balance, we believe that Class1 rating most accurately reflects the correct category.
It is perhaps timely at this point to note the decision in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“[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’ (our emphasis).
[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’…
[37] The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’…”
Although in recent times the decision in Wark has been found to be in error in recent times (see Matheson v Baptistcare NSW & ACT [2025] NSWSC 213) the principles in general regarding the task of an appeal panel are as set out above.
Having said that, in this category the Medical Assessor’s classification of a Class 1 rating is the “best fit” for the following reasons.
On the history obtained by the Medical Assessor, Mr Podesta goes out much more than “occasionally.”
As the Medical Assessor noted, and corroborated by the evidence: “he regularly goes out and visits pubs and hotels.” The Medical Assessor also noted that as “some friends are angry with him” and he “does not have many now but that some live overseas”. However he “said that when he has friends visiting from overseas, he likes to go on outings and small trips, and they visited the beach”.
In addition: “He also socializes with his family and eats out with them regularly.” It is
Mr Podesta who has to support his 93-year-old mother and he often takes her to different places, for example, to the pub to eat.
Also, “he initiates and actively engages in regular recreational activities” and he does not need prompting or a support person.”
In short, he becomes actively involved in a variety of social and recreational activities on a fairly frequent basis. He enjoys regular and sometimes daily activities, on his own and with people.
In referring to the evidence before him at the conclusion of the MAC, the Medical Assessor said:
“He goes to his property in Lake Macquarie and has been there a dozen times in 2024, either by himself or taking his mother or other family with him. He also said the entry in Umina Beach was to catch up with a school friend and they ate out together. He enjoys regular and sometimes daily activities, on his own and with people. Taken all together, my view is a rating of 1 is more accurate.”
The appellant makes many references to Mr Podesta’s statements and the other IME reports in support of his submissions.
But as the Medical Assessor noted:
“Mr Podesta is less impaired than described in previous reports, which I concluded was due to further treatment, and he has gained further improvement in his psychological injury.”
For these reasons, we are of the view that the Medical Assessor’s assessment was consistent with the evidence and the appellant’s presentation on the day of the assessment.

Travel

The Medical Assessor assessed a Class 1 rating and said:
“Mr Podesta has anxiety and can go overseas on his own, and drive long distances in his car. He said his sister would drive if he has to go far away, but then said he could drive long distances too. There is no deficit or minor deficit, attributable to the normal variation in the general population.”
The descriptor for a Class 1 reads:
“No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.”
For a Class 2 it reads:
“Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
In this category, we agree with the thrust of the appellant’s submissions for reasons that follow.
When discussing ADL’s the Medical Assessor said:
“He said that he often stays with his sister, maybe two or three times a week, because she is closer to his mother, and he doesn't have to drive 35 to 40 minutes from home to go and see his mother. He said his sister often drives him as he cannot manage long distances driving, although later, he said he can drive to Lake Macquarie from the Ponds, around 100km, on his own.”
The Medical Assessor also recorded that “he loves driving and seeing different scenarios, but finds it hard to drive long distances, as he gets tired. He can drive 45 minutes then pull over to smoke. If he has go further, he asks his sister to drive.”
There are some inconsistencies in the Medical Assessor’s reasons.
The Medical Assessor appears to have focussed primarily on the appellant’s ability to drive.
It is true that the appellant seems able to drive for fairly long distances, but these trips are in familiar areas such as to his property, (although this is over 100km away) or to visit family and friends.
Although he travelled overseas to Vietnam, he was taken to the airport and then met at the end.
For these reasons, we are of the view that a Class 2 rating is the best fit.

Concentration, persistence and pace

The Medical Assessor assessed a Class 2 and said:
“Mr Podesta reported having reduced concentration. He can focus on driving to Lake Macquarie, building a pond at home, tinkering in his shed and watching YouTube videos for hours. His mental state examination during the 1 hour assessment is consistent with 1 or 2.”
The descriptor for a Class 2 reads: “Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
For a Class 3 it reads: “Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The activities reported by the Medical Assessor reflect a mild impairment since there is no suggestion that Mr Podesta finds it difficult to follow complex instructions which may include building a pond or whatever he actually does when “tinkering” in his shed. The Medical Assessor also noted that: “He put insulation in his colorbond shed 6 months ago.”
This suggests that he was able to follow instructions as to how to do this correctly.
Mr Podesta was also undertaking car restoration and ceased this as “the car came under investigation (the Panel assume this refers to the surveillance). They had alleged that he was doing it in the workshop or he purchased parts for it. So he stopped restoring it and paid somebody to finish building the car.” There is no evidence that there was an impairment arising from his condition affecting this activity.
Having said that, once again, it is not uncommon for people to fall on the cusp of some ratings in the PIRS.
In this case, there is some argument that a Class 2 rating could be achieved, however, our task is to identify any error by the Medical Assessor in his assessments.
There was little evidence regarding the appellant’s reading ability or any interest in this activity. The Panel note that although Mr Podesta reported to the Medical Assessor that he has ceased playing music, conversely “He's been teaching his niece and nephew how to play guitar.”
Overall, the Medical Assessor’s assessment was consistent with the evidence before him.
This then means that the ratings are:
(a)    Self-care and personal hygiene – Class 2;
(b)    Social and recreational activities – Class 1;
(c)    Travel – Class 2;
(d)    Social functioning – Class 3;
(e)    Concentration, persistence and pace – Class 2, and
(f)    Employability - Class 5.
The aggregate of class ratings is 15, median class 2 for an 8% WPI.
The Medical Assessor added 1% for treatment effects.
This has not been the subject of appeal, so that assessment will stand.
For these reasons, the Appeal Panel has determined that the MAC issued on
10 December 2024 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:	W27794/24
Applicant:	Michael Anthony Podesta
Respondent:	The Hills Shire Council

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 Yu Tang Shen 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 WorkCover Guides	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	17 OCTOBER 2023 - DEEMED	Chapter 11	Chapter 14	9%	9%
Total % WPI (the Combined Table values of all sub-totals)					9%

[2025] NSWPICMP 319

7 May 2025