Starling v Tweed Coast Properties Pty Ltd t/as LJ Hooker Kingscliff
[2025] NSWPICMP 777
•8 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Starling v Tweed Coast Properties Pty Ltd t/as LJ Hooker Kingscliff [2025] NSWPICMP 777 |
| APPELLANT: | Cedar Starling |
| RESPONDENT: | Tweed Coast Properties Pty Ltd t/as LJ Hooker Kingscliff |
| APPEAL PANEL | |
| MEMBER: | Cameron Burge |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 8 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal from decision of Medical Assessor (MA); whether the MAC contains an obvious error and/or relies on incorrect criteria; appellant suffered a psychological injury in the course of her employment; referred to a MA to determine whole person impairment (WPI); a MAC was issued and assessed the appellant as suffering 9% WPI reflecting a median class 2 impairment; appellant challenged three of the classes under the psychiatric impairment rating scale (PIRS) scales (namely self-care and personal hygiene, social and recreational activities and travel); alleging the Medical Assessor used incorrect criteria and that the MAC contained obvious errors; Held – the MAC contains no obvious error; the findings of the MA were open to him on the evidence available and none of them are glaringly improbable; the criteria used by the MA were not incorrect and were appropriate based on the totality of the evidence; MAC confirmed; appeal dismissed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 June 2025, Cedar Starling (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 May 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).
RELEVANT FACTUAL BACKGROUND
The appellant suffered an agreed psychological/psychiatric disorder in the course of her employment with the respondent, with a deemed date of injury of 29 November 2022. On 24 February 2025, the appellant lodged an Application to Resolve a Dispute claiming permanent impairment compensation in relation to her psychological injury, which she alleged was caused by bullying and harassment in the workplace.
Liability for the applicant’s injury was accepted; however, the respondent disputed the applicant was entitled to permanent impairment compensation because the accepted injury had not resulted in at least 15% permanent impairment as required by s 65A(3) of the Workers Compensation Act1987 (the 1987 Act).
Given the only dispute between the parties related to the degree of the applicant’s permanent impairment, the matter was referred by consent to a Medical Assessor to determine the permanent impairment arising from the applicant’s injury.
The applicant was examined by the Medical Assessor on 17 April 2025. After taking a relevant history and conducting a video examination, the Medical Assessor conducted an assessment of the applicant pursuant to the psychiatric impairment rating scale (PIRS) scales. Dealing with each category each category, in turn, the Medical Assessor found:
· self-care and personal hygiene - Class 2;
· social and recreational activities - Class 2;
· travel - Class 2;
· social relationships - Class 2;
· concentration, persistence and pace - Class 3;
· employability - Class 5, and
· median class - Class 2.
The Medical Assessor’s aggregate score impairment totalled 16 on the PIRS scales, which equated to a 9% whole person impairment together with a 1% treatment effect, for a total of 10% WPI. The appellant appeals the Medical Assessor’s findings in relation to three of the PIRS categories, namely self-care and personal hygiene; travel; and social-recreational activities.
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 the errors on which the appeal relies are matters relating to the PIRS categories, are based on the evidence which was before the Medical Assessor and which remains before the Medical Appeal Panel. Nothing in the material before the Medical Appeal Panel is suggestive of a requirement to reassess the applicant.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit a further statement of the appellant dated 3 June 2025.
The appellant submits that the evidence is relevant to the manner in which the Medical Assessor’s examination of the applicant was undertaken and the history provided to him.
The respondent noted the appellant has made no submissions regarding the requirements of s 328(3) of the 1998 Act and whether the evidence which is sought to be led satisfies them. The respondent also submitted the appellant’s statement on which she seeks to rely which contains commentary relating to the PIRS categories she seeks to appeal from. The respondent relies on the Court of Appeal decision in Pitsonis v Registrar of WCC & Anor [2008] NSWCA 88, which notes an appeal under s 327 of the 1998 Act is not an opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than an appeal panel being invited to decide an application fresh.
In Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112, (Lukacevic), the Court of Appeal examined the question of fresh evidence in the form of a statement by the appellant calling into question the conduct and enquiry of the Medical Assessor. The majority upheld the Appeal Panel’s decision to reject the statement upon the consideration of the policy of the legislation, and its relation to the particular matters raised in a fresh statement. Hodgson JA at [78] said:
“The dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion, it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be accord with the policy of the WIM Act.”
On balance, the Appeal Panel declines to enter into evidence, the fresh statement of the applicant. The statement does no more than cavil with the assessment, specifically in relation to the very PIRS categories about which the appellant is dissatisfied and from which she seeks to appeal. As the respondent noted in its submission, the examination conducted by the Medical Assessor is an important aspect of the assessment process, along with the documentary evidence referred to them. It is not for an appellant to dictate that which is relevant, and what is not as the categories set out under the PIRS system are not just a question of ticking boxes, but rather are a broad clinical evaluation of each area of impairment.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor applied incorrect criteria and/or made demonstrable errors with respect to their assessment of the categories of self-care and personal hygiene, travel and social recreational activities. The applicant generally submitted the Medical Assessor relied too heavily on the factual reports which were placed before him, noting the Medical Assessor referred to the reports 14 times throughout the Medical Assessment Certificate.
The appellant submitted such reliance was inconsistent with the relevant guidelines which required the assessor to assess the claimant “as they present on the day of assessment, taking account the claimant’s relevant medical history and all available relevant medical information.” The appellant also submitted the factual reports dated July 2023 and April 2024 were not an accurate reflection of the appellant’s condition as at April 2025.
The appellant’s submissions relating to the specific categories under the PIRS system are referred to later in these reasons when addressing each of the categories in turn.
In reply, the respondent submits the Medical Assessor did not apply incorrect criteria nor was a demonstrable error made, and accordingly the appeal must fail. The respondent submitted the evidence demonstrated the Medical Assessor performed an examination and assessment of the appellant using their clinical skills and judgement, recorded their findings on examination and correctly applied the relevant guidelines to assess permanent impairment. The respondent further submitted the Medical Assessor provided adequate reasons for their decision in support of the assessment of permanent impairment across the challenged categories, noting that none of the class ratings arrived at by the Medical Assessor in the challenged categories could be said to have been glaringly improbable or provided in circumstances where the Medical Assessor was unaware of significant factual matters or guilty of any clear misunderstanding.
As with the appellant’s submissions relating to the specific contested categories, the respondent’s submissions will be dealt with when each of those categories are considered in these reasons.
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.
As noted, the appellant contests three of the PIRS categories. It is appropriate to deal with each in turn.
Self-care and personal hygiene
The Medical Assessor assessed the appellant with a Class 2 impairment with respect to self-care and personal hygiene. The appellant submitted this was inaccurate, noting her IME
Dr Smith assessed a Class 3 impairment.The appellant submits it was not open to the Medical Assessor to assess a Class 2, noting the Medical Assessor’s comments at page 3 and 4 of the MAC as follows:
“Ms Starling told me that she is receiving extensive support from my partner, ‘My partner does take care of the majority of household chores. I would help and I am feeling well “‘Ms Starling told me she would occasionally help fill up the dishwasher or cook if she felt better…
Ms Starling told me she takes a shower once a week. She told me that she prefers to stay at home and is not interested in dressing or taking care of herself.”
The appellant submitted that history was supported by her statement at [101] - [103] where she described relying on her partner for being reminded to shower and brush her teeth and on her partner to cook, clean and perform the shopping. Additionally, the applicant noted the consistency with the report of IME Dr Smith, where it is stated:
“Ms Starling stated that she does not shower daily due to reduced motivation, and she noted, ‘I even struggled to brush my teeth’. She has food delivered due to anxiety about going out in public. Her partner performs the domestic duties, and she has not received paid assistance.”
The appellant drew attention to the description of the PIRS Class 2 descriptor under this category as being able to live independently, looking after self adequately, although may look unkempt occasionally, sometimes misses a meal or relies on takeaway food. However, that is no more than an example, and is not determinative of a categorisation for this head of impairment. The appellant stated there was no basis for the Medical Assessor to find a Class 2 impairment or why it is the Medical Assessor found the appellant can live independently, absent evidence of her doing so.
For its part, the respondent noted the Medical Assessor is not bound by the examples used in the PIRS ratings tables: see Jenkins v Ambulance Service NSW [2015] NSWSC 633 at [57] - [65].
The respondent relied on the appellant’s history to the Medical Assessor, noting she had more good days at the time of assessment than she had previously.
The respondent noted that although Dr Smith, IME for the appellant had assessed a Class 3 impairment for this category, Dr Sherman, IME had noted the appellant to be “very well groomed with a fairly cheerful effect. There was no evidence of psychomotor retardation or agitation. I had some impression that she was endeavouring to create a picture of greater disability than she is suffering.” Additionally, Dr Sherman noted the appellant told him that on the days she gets up, she loads the dishwasher or makes something for dinner, and that she loves cooking, having described complex meals for herself and her boyfriend, noting that “half her days are good and half are bad.”
The Medical Assessor had before him Dr Sherman’s report dated 28 November 2024, in which he noted the appellant had not just been adequately groomed but very well groomed with attention to her hair, clothing, jewellery and makeup. Dr Sherman opined the appellant is perfectly capable of normal self-care and personal hygiene.
In the MAC, the Medical Assessor made it clear he had considered all of the available evidence and reached the conclusion that Class 2 is an appropriate rating for this subclass of impairment. He specifically noted he considered information provided by the appellant, details available from the factual reports and information available from the appellant’s general practitioner health records.
It is noteworthy the Medical Assessor discussed the factual investigation report findings with the appellant, particularly in relation to a concert which she attended in February 2023.
In the opinion of the Appeal Panel, the Medical Assessor has, as asserted in the MAC, taken into consideration all of the available evidence. The Medical Assessor considered the findings of both IMEs, the appellant’s statements, the treating material from her general practitioner and also the factual material and investigation reports. It is not, in the Appeal Panel’s view, correct as the appellant asserts to say that the Medical Assessor only considered the factual reports, as alleged. A Medical Assessor is not required to refer to each and every piece of evidence in detail. The obligation is to take irrelevant consideration into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40.
While it is apparent the history provided to the Medical Assessor and to each of the IMEs are relatively consistent, that history is plainly inconsistent with the factual material in the matter which was before the Medical Assessor and entitled to be taken into consideration by him. The material disclosed that, notwithstanding the appellant’s history of only attending two concerts over the years of 2023-2024, she in fact attended many more social gatherings, and does so while very well dressed and having taken good care of herself.
It is trite to say that the pre-eminence of the clinical observations of the Medical Assessor themselves cannot be understated. As was noted in NSW Police Force v Daniel Wark [2012] NSWWCCMA 36:
“The judgement 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…
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…”
In the view of the Appeal Panel, there is no glaringly improbable categorisation by the Medical Assessor in assessing a Class 2 for this subcategory of impairment.
Travel
The Medical Assessor determined a Class 2 impairment for this subcategory. He noted the appellant’s history of feeling anxious whilst driving, and that she would only drive short distances every couple of weeks.
Defining of a Class 2 impairment in relation to travel by the Medical Assessor is consistent with that of the appellant’s own IME, who described limitations broadly consistent with those found by the Medical Assessor, namely that the appellant drove only very rarely and usually travels with her partner and he drives, and that she had not travelled away for holidays recently. By contrast, the respondent’s IME, Dr Sherman, indicated there was no impairment in relation to travel, as the appellant had been able to travel to Queensland to visit her parents and went out with her boyfriend.
The preponderance of the medical evidence makes it clear that the Medical Assessor’s finding in relation to this subcategory of impairment cannot be said to be glaringly improbable, and was open to him on the documentary evidence, the lay and factual evidence and based upon his own clinical examination. It fits broadly within the claim for impairment made by the appellant herself, relying as she did on the report of Dr Smith.
In the opinion of the Appeal Panel, there is no demonstrable error or use of incorrect categories in relation to this subcategory of impairment.
Social and recreational activities
The appellant submits the Medical Assessor’s erred in assessing Class 2 impairment under this category, and that Class 3 was the appropriate rating.
Contrary to the appellant’s assertion the Medical Assessor only relied on the factual investigation reports, it is apparent on the face of the MAC that the contents of those reports were discussed with the applicant, and additionally that the Medical Assessor took a history from the appellant of her social and recreational activities. The Medical Assessor recorded:
“Ms Starling told me that she was able to spend around seven days with her family over the 2024 Christmas, which she enjoyed. She has been to her sister’s baby shower in early April 2025. Ms Starling denied attending any concerts in 2024. Lee Kelly’s report indicates she had attended two concerts in 2023. She told me that she has not been able to return to swimming or other fitness activities due to her physical health limitations. She also feels she is not motivated to even go to the gym, ‘I attended the gym only one to two times over the last few months’.”
The appellant relied on the views of Dr Smith who recorded marked restrictions in social and recreational activities and feeling anxious and nauseated with the thought of leaving her apartment, with avoidance of seeing friends, socialising, surfing and playing soccer. Additionally, the appellant relied on her statement which noted she carried out a number of the activities observed up to and including February 2025 because she was encouraged by her doctors to try to live normally.
The appellant made reference to the PIRS descriptors, and submitted she fell more closely within Class 3 than Class 2, as she was attending events when prompted by family and friends. The appellant also indicated the Medical Assessor failed to consider the claimant’s age and cultural norms, and then as a 25-year-old Australian woman, her level of social functionality could not be described as a mild impairment. Accordingly, the appellant submitted that Class 3 impairment was “a more appropriate” assessment of the applicant’s social functioning. Class 2 is not an appropriate or acceptable assessment, even on the Medical Assessor’s own findings.
The difficulty with the appellant’s submissions is that on the face of the MAC the Medical Assessor took into account all of the relevant evidence, including statements, qualified medical opinion, treating records and the factual material provided by the investigators. Contrary to the appellant’s submissions, there is no suggestion he relied only on the investigation reports, but rather considered the totality of the evidence, conducted an examination and formed his own clinical opinion.
In these circumstances, the Appeal Panel is of the view the Medical Assessor’s categorisation of a Class 2 impairment for this subcategory is neither glaringly improbable, nor does it contain an obvious error. As such, the findings of the Medical Assessor in relation to this subcategory are confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 May 2025 should be confirmed.
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