Shipley v TJX Australia Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Shipley v TJX Australia Pty Ltd [2025] NSWPICMP 579
APPELLANT:	Kylie Shipley
RESPONDENT:	TJX Australia Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	John Lam-Po Tang
DATE OF DECISION:	7 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of primary psychiatric injury; appeal against assessment of the psychiatric impairment rating scale (PIRS) class in respect of employability and deduction made pursuant to section 323 in respect of pre-existing condition; Appeal Panel found error in assessment of employability and error in failure to adopt the approach set out in clause 11.10 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021; Matheson v Baptistcare NSW & ACT considered and applied; worker re-examined; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 March 2025 Kylie Shipley (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Suneel Chamoli (Medical Assessor), who issued Medical Assessment Certificate (MAC) on
27 February 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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant suffered a psychological injury in the course of her employment as a store bench manager with the TJX Australia Pty Ltd (the respondent) deemed to have occurred on 20 August 2021.
The appellant commenced proceedings in the Personal Injury Commission (Commission) on 21 October 2024 claiming 20% whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a psychiatric and psychological disorder injury deemed to have occurred on 19 January 2023.
The Medical Assessor examined the appellant on 5 February 2025. The Medical Assessor assessed 8% WPI and deducted one tenth for pre-existing injury, condition or abnormality which resulted in a total of 7% WPI as a result of the injury deemed to have occurred on
19 January 2023.

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.
The appellant requested that she be re-examined by a Medical Assessor who is a member of the Appeal Panel in view of the injuries sustained and errors identified.
As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and the appellant should undergo a further medical examination because there was an error in the MAC and insufficient evidence on which to make a determination.

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

Professor Nicholas Glozier of the Appeal Panel conducted an examination of the appellant on 28 May 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. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    Ground 1 – employability - the Medical Assessor allocated an incorrect Psychiatric Impairment Rating Scale (PIRS) class with respect to the assessment of employability.
(b)    The appellant had previously been employed on a full-time basis as a store manager by the respondent and was responsible for the day to day running of the store and management of staff. She did not return to her pre-injury role following the workplace injury and has been unable to engage in any similar role.
(c)    As a result of the nature of her ongoing psychological sequalae as a result of the injury, the appellant and her husband sold their home and moved to a remote location with a resultant reduction in external stimuli and social interaction. The appellant managed to obtain alternative employment in a less senior and less intensive part-time low level floor assistant position with a local IGA supermarket. The Medical Assessor noted that the appellant worked three to five hour shifts, doing 15 to 20 hours per week helping with stocking shelves, marking and checking dates on products and occasionally worked at the register.
(d)    The history thus obtained by the Medical Assessor was of the appellant ceasing work in March 2023 with a slow reintroduction to the workforce resulting in her now working part-time (15-20 hours per week) at IGA in a different role to that previously engaged. The appellant now worked in a modified role, focusing on stock management to avoid stressful customer interactions, especially during busy periods.
(e)    The Medical Assessor’s assignment of a Class 2 rating to employability is misplaced, according to the PIRS guidelines (Table 11.6, Guidelines) and represents a misapplication of the Guidelines. Class 2 applies to individuals who can either work full time in a different environment with comparable skill and intellect or work part-time in their same position. The appellant’s current employment at IGA is part-time, at most up to 20 hours per week, and in a modified role that is less skilled and less demanding than her pre-injury position as an assistant store manager.
(f)    The appellant cannot return to her previous role due to her post-traumatic stress disorder, which causes her to avoid customer interactions and is unable to deal with the complexity of having to deal with the management aspects of that position. The circumstances of the appellant’s current position are such that she is employed in an entry level store assistant role on a part time and restricted basis. Her situation more accurately fits Class 3, which describes individuals who cannot work in their same position and can only perform less than 20 hours per week in a different, less skilled position.
(g)    the appellant’s pre-injury role involved managing staff and customer interactions, which she cannot perform due to her post-traumatic stress disorder. Her current role at IGA is stock management with reduced responsibilities and part-time hours (15-20 hours per week), a far less skilled position. She avoids customer-facing tasks, confirming that her current role is qualitatively different from her pre-injury position. In De Angelis v Solaris Paper Pty Ltd [2023] NSWPICMP 124, the Appeal Panel corrected PIRS ratings to reflect actual work capacity, emphasizing the importance of evidence-based assessments. Similarly, Eddy v State of New South Wales (NSW Police Force) [2025] NSWPICMP 37 held that misclassification of PIRS categories can constitute a demonstrable error warranting review. Marinos v Macquarie University [2024] NSWPICMP 222 also corrected employability ratings based on evidence of the worker’s actual work capacity.
(h)    Ground 2 – incorrectly approach to the pre-existing deduction made under s 323 and the Guidelines.
(i)    The application of a 1/10 deduction under s 323(2) of the Act for the appellant’s pre-existing depressive disorder is flawed. The Guidelines at cl 11.10 mandate that any pre-existing condition’s impairment must be assessed using the PIRS. However, the Medical Assessor did not conduct such an assessment; instead, he applied a default deduction, stating it was “difficult or costly to determine” the precise contribution. This approach is inconsistent with recent case law, particularly Matheson v Baptistcare NSW & ACT [2025] NSWSC 213 where the court set aside a deduction for a pre-existing condition because no proper PIRS assessment was conducted.
(j)    The appellant’s pre-existing condition was mild depression managed with medication, and she maintained high functioning both socially and professionally prior to her injury. There is no evidence that this condition caused any permanent impairment at the time of her injury, aligning with Cole v Wenaline Pty Ltd [2010] NSWCA 221 requiring actual contribution.
(k)    The Medical Assessor’s reasoning was brief, which does not meet the standard in Campbelltown City Council v Vegan [2006] NSWCA 284 for clear reasoning. Ryder v Sundance Bakehouse [2015] NSWWCCPD 38 further supports that deductions must reflect actual contribution, not vulnerability, reinforcing that no deduction should apply here.
(l)    In Matheson v Baptistcare NSW & ACT [2025] NSWSC 213 (Matheson) the Supreme Court dealt with the applicability of the Guidelines to psychological injury, the Court held that the Guidelines, as mandated by s 322(1) and s 323(4) of the 1998 Act, provide the exclusive framework for assessing permanent impairment, including for psychological injuries. Clause 11.10 of the Guidelines requires pre-existing psychological impairment to be calculated using the PIRS and subtracted from the current WPI to determine the work-related impairment. The Court rejected the view from Marks v Secretary, Department of Communities and Justice (No 2) that cl 11.10 was invalid for precluding deductions for asymptomatic preexisting conditions, finding instead that it validly qualifies s 323(1) by requiring behavioural evidence of impairment. In Matheson the Panel’s failure to apply the PIRS to assess either the pre-existing or secondary conditions invalidated its determination.

The respondent’s submissions include the following:
(a)    Ground 1 - this relates to the PIRS assessment for employability. The appellant was engaged on a full-time basis as a clothing store assistant manager, however, the history obtained by the medical assessor admits that much of the appellant’s duties with her present employer are of a similar qualitative nature to the duties performed in the employ of the respondent, viz, performing work at the back of the store managing stock as well as undertaking of all other cognate tasks necessary to operate the store.
(b)    Similarly, the respondent notes the history recorded by the Medical Assessor, which is not contested, is that she has the ability to perform forward customer based duties as necessary and has been getting more assertive and able to say no to people when she is uncomfortable, and in that respect, the duties presently performed by the appellant require no less skill or intellect than that obliged of her whilst working as an assistant manager in a retail clothing environment.
(c)    The Medical Assessor was correct to assign a class 2 impairment for the PIRS category of employability and that no application of incorrect criteria nor demonstrable error arises.
(d)    Ground 2 – s 323 deduction - reliance is placed upon the recent decision of Basten AJ in Matheson which is at odds with the earlier decision of yet a further single judge of the court (in that case Simpson AJ) in Marks v Secretary, Department of Communities and Justice (2) [2021] NSWSC 616 (Marks No 2).
(e)    The appellant can point to no reason why the decision of the single judge in Matheson ought be preferred to the decision of the single judge in Marks No 2 and otherwise observes that even if the Appeal Panel were inclined to follow Matheson and so consider the issue of the s 323 deduction within the prism set by paragraph 11.10 of the Guides, the probable result would be a one-tenth deduction in any event having regard to the final sentence of that portion of the Guidelines which records: “If the percentage of pre-existing impairment cannot be assessed, the deduction is one-tenth of the assessed WPI”.
(f)    The Medical Assessor was correct to apply the default deduction which in any event conforms with paragraph 11.10 of the Guidelines and s 323(2) of the 1998 Act and so no demonstrable error and/or application of incorrect criteria arises. The appeal on this point is therefore submitted to be futile.
(g)     For those reasons, the medical assessment certificate ought be confirmed.

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 Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Ground 1 – Employability

The appellant submits that the evidence supports an assessment of class 5 for employability.
The examples under Table 11.6 for “Employability” in the Guidelines are:
“Class 2: Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3: Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5: Totally impaired: Cannot work at all.”
The Medical Assessor assessed the appellant as Class 2 for employability. In the PIRS Rating Form, the Medical Assessor wrote:
“Employability - Class 2.
She is able to work up to 20 hours a week in modified duties.”
Under Findings on Physical Examination, the Medical Assessor wrote:
“She gave a clear history of events and described symptoms consistent with the
diagnosis of Post Traumatic Stress Disorder. She is future oriented and willing to expand her social life. She has come to accept living in a regional coastal town as she is unable to take the stress of living in a city, impaired by the symptoms of PTSD.”
At part 9 of the MAC, the Medical Assessor wrote:
“Ms Shipley reports she is still working at the local IGA. She loves her job within limits, especially when tourists are not in abundance. She works 3-5 hour shifts, doing 15 to 20 hours per week. She prefers to work at the back of the store, managing stock. She also helps with stocking shelves, marking and checking dates on products.
Occasional (sic) she works at the register as well, as the local population is mostly elderly customers. She finds it difficult to work at the counter over the Christmas period when tourists visit the local area. People that resemble the customers who abused Ms Shipley, trigger strong emotional reactions. She is however getting more assertive and able to say no to people when she is uncomfortable, and does not take on excessive work.
Ms Shipley reported her concentration was poor. She is unable to focus on intellectually demanding tasks beyond 20 mins. She gets tired, anxious and moody. She makes errors in labelling food items.”
In his comments on Dr Malik’s report dated 15 July 2024, the Medical Assessor wrote:
“Dr Malik kept a rating of 3 on employability. However, I have kept a rating on 2 as Ms Shipley has been frequently working 15-20 hours a week.”
In his comments on Dr Nagesh’s report dated 7 December 2023, the Medical Assessor wrote:
“Dr Nagesh reported Ms Shipley was totally incapacitated for both her preinjury employment and alternate suitable duties and kept a rating of 5 on Employability. However, I have kept a rating on 2 as Ms Shipley has been frequently working 15-20 hours a week.”
In her statement dated 12 January 2024 at paragraph 24 the appellant described working 38 hours a week with the respondent on a rotating roster where she worked 6-10 hour shifts each day. She stated at paragraph 25 that as a store bench manager she was responsible for the whole store, daily cash ups and chasing up discrepancies, rostering the staff and delegating the workload for the day, checking up on the wellbeing of staff, communications with Head Office and District Manager, ensuring policies and procedures were being followed, customer service, security and any dealings with Centre Management.
Dr Malik, in his report dated 15 July 2024, noted that the appellant stopped work in January 2023 due to her psychological injury. He wrote: “Recently, about three weeks ago, she started a new job at IGA, where she is working part-time, stocking shelves for up to 10 hours a week”.
Dr Malik wrote:
“In terms of work, Ms Shipley has started doing short shifts at IGA, working about three hours per shift, for a total of approximately ten hours a week. She finds the environment at IGA to be more manageable, and her colleagues are supportive. Although she experienced some anxiety and physical symptoms like diarrhoea during her initial shifts, she has begun to settle into the routine. She plans to continue with these short shifts but does not see herself increasing her hours significantly in the near future. She admits that she lacks motivation and cannot envision returning to the high-pressure roles she held in the past.
Looking ahead, Ms Shipley is uncertain about her future plans. She feels that working more hours or taking on more responsibility would be overwhelming. She hopes to continue building up her capacity slowly but is not pressuring herself to achieve this quickly. Her biggest challenge is getting herself to work and staying settled once there.”
Dr Malik commented:
“Ms Shipley has taken up a new, less demanding job at IGA, working around 10 hours a week, which seems to be a better fit for her current state. This role involves stocking shelves, a task that she can manage more comfortably than her previous managerial duties. Moving forward, it is advisable for her to continue in a similar low stress, part-time role to maintain her mental health and gradually build her confidence and capacity for work.”

Dr Malik assessed a Class 3 for employability providing the following reasons:
“Ms Shipley tells me that her current employability is limited to low-stress, part-time roles, working up to 10 hours a week, as she continues to struggle with multitasking and social interactions.”
Dr Nagesh, in a report dated 7 December 2023 wrote:
“Ms Shipley has made attempts to return to work as she has enjoyed working all her life, however, every time she has made an attempt to return to work, there has been an increase in severity of her PTSD symptoms to the point where she became nauseous and started to have diarrhoea and panic attacks, and she could not return to her work anymore. He expressed the view that she was totally incapacitated for both pre-injury employment and suitable work.”
Dr Nagesh assessed a Class 5 for employability providing the following reasons: “My rationale is Ms Shipley cannot work at all.”
The Appeal Panel noted that the appellant commenced work at an IGA store after the assessment by Dr Nagesh.
The Appeal Panel noted that the Medical Assessor rated Class 2 for employability on the basis that the appellant was working 20 hours a week. The Medical Assessor did not address whether she could work in her pre-injury position and, if so, for how many hours a week, whether her work duties at the local IGA required comparable skill and intellect as those of the pre-injury job, or whether she was performing less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful). All these matters should be addressed by the Medical Assessor in order to make a proper assessment in the scale of employability. The Appeal Panel notes that the work the appellant performs at IGA is clearly not comparable in terms of skill and intellect as her pre-injury work as a store bench manager. The Appeal Panel finds that the Medical Assessor failed to provide adequate reasons in the assessment of the scale for employability and the assessment was made on the basis of incorrect criteria. The assessment of Class 2 for employability is inconsistent with the descriptors in Table 11- 6 as she is not able to work full time but in a different environment from that of the pre-injury job performing duties requiring comparable skill and intellect as those of the pre-injury job nor is she able to work in the same position, but no more than 20 hours per week.
This ground of appeal is made out.

Ground 2 – Section 323 deduction

The appellant submits that the Medical Assessor took an incorrect approach to the pre-existing deduction made under s 323 and the Guidelines. The appellant argued that the Guidelines at cl 11.10 provide that any pre-existing condition’s impairment must be assessed using the PIRS but the Medical Assessor did not conduct such an assessment and applied a default deduction, stating it was “difficult or costly to determine” the precise contribution. The appellant submits that this approach is inconsistent with recent case law, particularly Matheson where a deduction for a pre-existing condition was set aside because no proper PIRS assessment was conducted.
The Medical Assessor noted under “Details of any previous or subsequent accidents, injuries or condition”:
“Ms Shipley reported she used to get premenstrual worsening of mood previously. This started in her late 40s. She was treated for this by her GP with Sertraline. She reports her mood was a bit flat prior to the workplace incident, however she always managed very well, she was kicking goals in her life. Ms Shipley was prescribed 50 mg of Sertraline many years ago, which was increased to 100 mg roughly 7 years prior to the workplace incident. When asked about the pre-existing psychological symptoms, she described not feeling happy but feeling flat in mood and feeling heavy, however this occurred in brief episodes and she could cope with it. The symptoms were worse before menstrual periods. She reports she was functioning normal, she could give a talk to a crowd of 200 people. She was very social, she
was going out a lot for dinners, dancing, camping and to clubs. They loved to have people over to their house or go over to their place. There is no past history of consulting a psychiatrist or any hospitalisation for mental health.”
Under “DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY” the Medical Assessor wrote:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Ms Shipley suffered from a pre-existing depressive disorder for which she was
receiving treatment with antidepressant Sertraline for around a decade.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person
impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) Ms Shipley reported she used to get premenstrual worsening of mood prior to the
workplace injury. She reports her mood was a bit flat prior to the workplace incident.
Ms Shipley was prescribed 50 mg of Sertraline many years ago, which was increased to 100 mg roughly 7 years prior to the workplace incident. When asked about the preexisting psychological symptoms, she described not feeling happy, but feeling flat in mood and feeling heavy.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth.”
Dr Malik under “Past Psychiatric History including Past Treatment” wrote:
“Ms Shipley explains that she has experienced intermittent episodes of depression over the years. She was prescribed a low dose of Zoloft, 50mg, by her general practitioner, which she attributes more to hormonal changes than to a chronic psychological condition. During her teenage years, twenties, and thirties, she reports no history of psychological symptoms or conditions. It was only in her forties that she began to notice these symptoms, around the age of 45, which she believes were primarily due to hormonal fluctuations.
Ms Shipley did not consult with a psychologist or psychiatrist during this time, relying solely on the medication prescribed by her GP. She describes her depressive episodes as intermittent and short-lived, typically lasting for a day or two. She explains that these episodes were not prolonged periods of depression but rather brief occurrences. During these times, she felt very flat, unmotivated, and fatigued, with a general lack of interest in activities. However, these symptoms would dissipate relatively quickly.
She clarifies that she has never experienced suicidal ideations, thoughts, or attempts and has never been admitted for mental health issues. Ms Shipley emphasizes that her depressive episodes were generally mild and brief, and she attributes them largely to hormonal changes rather than a chronic psychological condition.”
Dr Malik applied a 2% deduction for her pre-existing psychological symptoms.
Dr Nagesh noted “Ms Shipley states that she was diagnosed with mild depression 15 years ago where she has been treated with sertraline 50 mg, which she was on for many years”.
Dr Nagesh wrote: “Your client has a pre-existing condition of major depressive disorder. Your client's diagnosed major depressive disorder is an exacerbation of a pre-existing condition, but her diagnosed post-traumatic stress disorder is a new condition due to her work-related injury”.
Dr Nagesh deducted 10% of the WPI depressive disorder for pre-existing major depressive disorder.
Section 323 of the 1998 Act provides:
“(1)    In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2)     If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3)     The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4)     The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said:
“29    ...The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30     Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31     ...That is a matter of fact to be assessed on the evidence led in each case”.
At [38] of Cole, Schmidt said:
“38. What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
Part 11.10 of the Guidelines states:
“Pre-existing impairment: To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
The Appeal Panel agrees that the Medical Assessor did not make the s 323 deduction using the approach set out in cl 11.10 of the Guidelines and applied a one tenth deduction on the basis that the extent of the deduction was difficult or costly to determine. The Medical Assessor did not refer to cl 11.10 of the Guidelines.
The Appeal Panel accepts that there is difference in the line of legal authority as to whether the process of the Guidelines 11.10 is inconsistent with s 323 of the 1998 Act. In Marks No 2, Simpson AJ held that to the extent that there is inconsistency between Guideline 11.10 and s 323 of the 1998 Act, s 323 prevails. She found that Guideline 11.10 was inconsistent with s 323 and invalid to the extent that it excludes, in the application of s 323(1) of the 1998 Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment of a pre-existing but asymptomatic condition.
However, Basten AJ in Matheson held that contrary to the decision in Marks No 2 Cl 11.10 of the Guideline was not invalid in cases where the worker had a previous injury which was asymptomatic. Basten JA found that there was no finding by the first Panel of any level of pre-existing impairment in accordance with the Guidelines and the making of a deduction pursuant to s 323(1) in respect of a pre-existing condition, the existence of which was merely assumed, was an error of law.
The Appeal Panel prefers the reasoning set out in Ballas in which Basten AJ addressed the distinctions drawn within the Workers Compensation Acts as to the treatment of psychological and other injuries and included inferences to be drawn from the legislative scheme. Further, the approach in Marks No 2 failed to give proper effect to the statutory provisions relating to the Guidelines.
The Appeal Panel therefore considers that the Medical Assessor was bound to apply cl 11.10 of the Guidelines but failed to do so. Indeed, the Appeal Panel accepts that the Medical Assessor did not refer to cl 11.10 and therefore failed to properly engage with the Guidelines at cl 11.10. This ground of appeal is made out.
The Appeal Panel, having found error, concludes that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination in respect of any deduction to be made pursuant to s 323. The Appeal Panel noted that in order to determine the impact of any pre-existing condition on current WPI, a comparative exercise is necessary and it would be logically incoherent to simply begin the exercise from a fixed starting point, ie, the 17% WPI assessment made by the Medical Assessor (Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 (Pombinho).
As noted above Medical Assessor Nicholas Glozier of the Appeal Panel examined the appellant on 28 May 2025. Medical Assessor Glozier provided the following report:
1.   The worker’s medical history, where it differs from previous records
Ms Shipley confirmed she is taking the same antidepressant, Zoloft (Sertraline) that she had been taking for well over a decade and at the same dose as prior to the 2023 incidents: 100mg. She continues to see her GP regularly and consult with her psychologist, Jean Griffin, on a fortnightly basis. She described a somewhat dependent relationship, viewing her as having ‘saved her life’ and that she has been ‘so important to me’, although acknowledged that she needs to disengage over time. She sees Ms Griffin mostly by telehealth. Every couple of months she drives down to Sydney, stays with a friend, sees her GP and then drives on down to Bowral to see her psychologist. She was able to describe the challenging thoughts, exposure, and other aspects of CBT that she does. I elicited no new psychiatric, physical or substance issues.
Ms Shipley reported that she had been on Sertraline for many years, which she said was for a mild depression related to her hormones. On exploration it would appear that the depressive symptoms were not entirely cyclical and, although there was a peri-menopausal exacerbation, the mood symptoms occurred throughout each month pre-treatment. The Sertraline dose had been increased to 100mg at the time of her mother’s death some 7 or 8 years ago. She reported that this kept her well and she had been fully functional in all aspects of her life. She had grown within the TK Maxx chain to someone running a large store with over 100 staff and a multimillion-dollar turnover. She reported that she was able to deal with stressors, e.g. giving talks at company functions to hundreds of people. She reported she was able to function socially, e.g. having a group of friends that she and her husband went out with at the weekends, playing cards, being able to go on holidays and enjoyed fishing. She had a good relationship with her children and was obviously presentable at work and managed the cognitive tasks of running a store. She and her husband had had a non-intimate relationship for many years although they were ‘good friends.’ She reported that this was primarily due to his sexuality and lack of interest in their intimacy. She suggested that this was also a major component to their break-up approximately a year ago after moving to South West Rocks, although said that her symptoms and reduction in interest in going out meant that part of what had kept them together was no longer there. They realised they had grown apart and separated.
2.   Additional history since the original Medical Assessment Certificate was performed
Ms Shipley reports that she now lives on her own in a unit, responsible for all of her home and self-care. She works 20 hours a week at the local IGA. She has no managerial responsibilities and is a casual part-time employee. She also does little customer-facing work, working ‘out the back’ doing logistics and unloading pallets. She says she has no problems doing this and is ‘methodical and organised’. She reported no workplace problems cognitively or concerns about her performance. She is also very well supported. For instance recently when there had been two hold-ups at local service stations (one of the stations was outside their IGA), she found herself very apprehensive and nervous on going into work that day. As she got into work, she experienced an anxiety attack with high levels of arousal and physical features. Her manager was very supportive and suggested she go and do her work out the back. She said she worked slowly, knew she was safe, although was jumpy all day and appreciated the concern. The IGA is in what she describes as a retirement location, such that many of the customers are old and unthreatening. She does not feel she could take on any more stressful roles or ones with a greater likelihood of being assaulted or experiencing aggression.
Some other aspects of her impairment appear quite different than that recorded by the MA, in part due to an improvement in her function and impairment since seen.
Although she has been separated from her husband for a year now, she has been in a new relationship for several months. This is someone she has known for a long time who is the father of one of her daughter’s friends. He is a bit older than her and ‘a lovely, polite man’ with whom she feels safe. He started making approaches in December and as of January they have been in a partnership. She enjoys his company. He runs a fishing and boat company and they like going up the river for fishing, barbeques, taking the dog. She said she has always been a competitive fisher and despite him being ‘professional,’ she often catches more and bigger fish than him, e.g. last week catching more than he did.
She will go to small social events locally but can be withdrawn and does not like going to pubs, or places where there is loud music and people with unpredictable behaviour. She continues to have one close friend in Sydney. She sees her daughter who lives in South West Rocks on a weekly basis and has a very good relationship with all of her children and enjoys seeing her grandchildren.
She also told me that she specifically enjoys knitting: currently knitting a scarf and is an ‘avid reader.’ She is reading something ‘a bit saucy at the moment.’ She reads a novel a week if she finds it interesting or even when she doesn’t, only takes two weeks to read a full novel. She used to read much more because she was ‘escaping the marriage’, spending her evenings alone reading whilst her husband watched sport on TV. She actually described no cognitive difficulties at all today except when flustered and anxious and is able to read for hours at a time if she ‘loses herself in a book’ as she does frequently. She also does occasional dune care volunteering work and walks down the beach frequently as she enjoys being in nature.
3.   Findings on clinical examination
Ms Shipley was prompt. She was well-kempt but casually-dressed. She was friendly, engaged. She was alert, well-focused and showed no problems with concentrating and persisting throughout the assessment, being able to undertake this cognitively-demanding and stressful task for well over 30 minutes without displaying any sense of fatigue, even at the end. She does not describe a pervasive dysphoria but intermittent short periods of ‘feeling flat.’ She will push and prompt herself to get going as she knows she does not want to go into the ‘black hole’ she was previously. She reported no anhedonia, has motivation to continue to improve and move on with her life, have new relationships and maintain her work. She has enough energy to do what she needs to do day-to-day. She still is triggered with oversensitivity and sees threats in many places. She can challenge this cognitively but will experience heightened levels of arousal, anticipatory anxiety and at times panic attacks when in confronting situations, reporting a reduced stress tolerance. This is highly situational, e.g. when travelling she feels safe in the car and can travel as and where she needs. However she noted that in certain shopping centres she can feel quite anxious, pressed-in, particularly if she does not know where the escape routes are.
4.   Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
Ms Shipley currently meets the criteria for a Posttraumatic Stress Disorder in near-remission and only of borderline clinical significance. She does not have a Major Depressive Disorder currently, reporting neither of the two cardinal features required. This probably reflects the treatment which has kept her long-term mood disorder in a sub-clinical relatively asymptomatic state.
I was unable to ascertain any dysfunction or impairment in any area prior to the injury and she appears to have been asymptomatic. The only area of dysfunction in her life was related to her relationship where there was some strain, tension and lack of intimacy but this was due primarily to her husband rather than to her symptoms.
For completeness I have included a pre-injury PIRS table rating her (lack of) impairment in each class

PIRS Category	Class	Reason for decision
Self-Care and Personal Hygiene	1	No difficulties
Social and Recreational Activities	1	Active social life
Travel	1	Travelled as and where she wanted
Social Functioning	1	Secure close relationships with the only possible exception being her marriage but any issues in that were not attributable to her mental health
Concentration, Persistence and Pace	1	No impairment
Employability	1	She worked full time running a busy store

Further, I could not identify that any of her current impairment is due to the pre-existing mood disorder, her pre-existing condition. Rather, all the impairment is attributable to the work-related Posttraumatic Stress Disorder in partial remission.
Given she no longer meets the criteria for a depressive disorder of any type, the asymptomatic pre-existing condition is not contributing at all to her current impairment and I suggest s 323 cannot be applied.
2.   Employability
Ms Shipley undertakes a part-time role of about 20 hours a week, but is clearly unable to work in a large store in a major shopping centre or undertake managerial activities due to her injury and subsequent PTSD. The work she does is far less stressful, with reduced customer engagement and I would suggest to the Panel meets the criteria for a moderate impairment.
3.   Overall impairment
The reassessment of the errors identified by the Panel in the impairment rating for employability and that of the S323 deduction necessarily requires assessment of all aspects of the current whole person impairment for context and to determine per Pombinho what contribution a pre-existing condition makes to the current WPI.
The history elicited today of impairment was quite different to that gained by the Medical Assessor in February 2025. This in part reflects a clinical improvement since seen by the Medical Assessor, although her social functioning as it was at the end of February and as of the date of this reassessment appears incompatible with the Class 4 severe rating.
She has been engaged in a new romantic relationship for many months, reports a very good relationship with her children, has maintained a close friendship in Campbelltown, and made some local acquaintances. She still has a cordial relationship with her ex-husband (the sole close family relationship that has ‘ended’) and reported that a significant cause of their break-up was in fact his sexuality impinging upon their relationship, although the aspects that held them together then became impaired by her symptoms when she was much worse over a year or two. As such I would suggest her social function is not severely impaired and at most moderately impaired:
-     Maintains close and supportive family relationships
-     Has established new intimate relationship
-     Cordial with ex-husband
-     Making friends locally
Finally she reported no cognitive difficulties today except when overly anxious at work, any persistent cognitive impairment in other aspects of her life, showed no problems focusing on, or persisting with, the pace of what is an intellectually-demanding task in a stressful context; the assessment itself, and is able to read for hours at a time, completing a novel within one-two weeks depending on her interest. I cannot see how this meets the criteria for a moderate impairment and her impairment in this category matches
-      Can read for hours at a time and completes a novel in 1-2 weeks
-      When anxious and flustered at work may loses focus and concentration
-      No other difficulties in focusing and persisting with cognitive tasks day to day
-      No objective difficulties in focussing on the intellectually demanding, and stressful reassessment or persisting with this for c.45 minutes. No evidence of fatiguing at the end.

The Appeal Panel adopts the report and findings of Medical Assessor Glozier.
The Appeal Panel therefore finds that the appellant’s current impairment is as follows:

PIRS Category	Class	Reason for decision
Self-Care and Personal Hygiene	2	Mild impairment: She showers regularly but she does not wear makeup and does not colour her hair.
Social and Recreational Activities	2	Mild impairment: She goes out to small social events locally but can be withdrawn and does not like going to pubs, or places where there is loud music and people with unpredictable behaviour.
Travel	2	Mild impairment: she feels safe in the car and can travel as and where she needs. Uncomfortable in taking public transport.
Social Functioning	3	Moderate impairment: Maintains close and supportive family relationships. Has established new intimate relationship. Cordial with ex-husband. Making friends locally
Concentration, Persistence and Pace	2	Mild impairment: Can read for hours at a time and completes a novel in 1-2 weeks. When anxious and flustered at work may loses focus and concentration. No other difficulties in focusing and persisting with cognitive tasks day to day. No objective difficulties in focussing on the intellectually demanding, and stressful reassessment or persisting with this for c.45 minutes. No evidence of fatiguing at the end.
Employability	3	Moderate impairment: undertakes a part-time role of about 20 hours a week, but is clearly unable to work in a large store in a major shopping centre or undertake managerial activities due to her injury and subsequent PTSD. The work she does is far less stressful, with reduced customer engagement

The Appeal Panel accepts that the appellant has a pre-existing psychological condition, namely, depressive disorder. However, The Appeal Panel cannot identify that any of her current impairment is due to the pre-existing mood disorder, her pre-existing condition. Rather, all the impairment is attributable to the work-related post-traumatic stress disorder in partial remission.
In considering the question of a deduction under s 323 of the 1998 Act, the Appeal Panel has reassessed impairment in all of the PIRS scales as set out in the Tabel above at [58].
The Appeal Panel assesses a score of 2 2 2 3 2 3 , median class 2 and aggregate score 14. Therefore, the total impairment assessed is 7% WPI. No deduction is made pursuant to s 323 of the 1998 Act.
For these reasons, the Appeal Panel determines that the MAC issued on 27 February 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W27616/24
Applicant:	Kylie Shipley
Respondent:	TJX Australia Pty Ltd

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 Suneel Chamoli 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)
Psychiatric	19/1/23	Ch 11	N/A	7	Nil	7
Total % WPI (the Combined Table values of all sub-totals)					7%

[2025] NSWPICMP 579

7 August 2025