State of New South Wales (NSW Police Force) v Vella
[2025] NSWPICMP 476
•2 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (NSW Police Force) v Vella [2025] NSWPICMP 476 |
| APPELLANT: | State of New South Wales (NSW Police Force) |
| RESPONDENT: | Jacob Vella |
| APPEAL PANEL | |
| MEMBER: | Elizabeth Beilby |
| MEDICAL ASSESSOR: | Dr Douglas Andrews |
| MEDICAL ASSESSOR: | Prof Nicholas Glozier |
| DATE OF DECISION: | 2 July 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal based on incorrect assessment of two psychiatric impairment rating scale (PIRS) categories; Appeal Panel found assessment was glaringly improbable regarding social and recreational activities; error established; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 March 2025 the State of New South Wales (NSW Police Force) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 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, 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
Jacob Vella (the respondent) was employed with the New South Wales Police Force and sustained a psychological injury. The matter proceeded to conciliation/arbitration and a determination was made in favour of the respondent so far as primary liability was concerned.
The matter was then remitted to the President to be referred to a Medical Assessor, and an examination with Medical Assessor Singh took place on 5 February 2025. Following that assessment, a Medical Assessment Certificate was issued on 7 February 2025.
The appellant raises two grounds alleging the incorrect application of assessment criteria in two of the Psychiatric Impairment Rating Scale (PIRS) categories which were Personal care and hygiene and Social and 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 there had been an adequate examination of the respondent with the reasons and findings recorded appropriately. The Appeal Panel determined that it did not need a further examination to determine this matter.
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 below:
· his sleep and appetite continue to be disturbed. He neglects his personal care and is prompted by his parents to shower. He may still attend the gym three days a week. However, the sessions are short, and he needs to return home quickly afterwards. He said that he does not go out and has cut ties with his friends. He may occasionally meet one friend for coffee and then return home. He is unable to relax. (page 4)
· He moved out of his home but has started to live with his parents again. His care has been neglected; he hasn’t had a hair cut in almost a year. He depends on them for cooking, washing and laundry, and they often wake him up. He might brush his teeth once a day and showers occasionally. He needs reminders to take a shower from time to time. He is not doing any household chores, and things have fallen apart. (page 5)
· He continues to present with symptoms that are ongoing or with symptoms meeting the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5-TR) diagnosed as a post-traumatic stress disorder and a major depressive disorder. (page 5)
· Self-care and personal hygiene – class 3. Mr Vella stated that he had been relying on his parents. He moved out of his home but has started to live with his parents again. His care has been neglected, he hasn’t had a haircut in almost a year. He depends on them for cooking, washing and laundry and they often wake him up. He might brush his teeth once a day and showers occasionally. He needs reminders to take a shower from time to time. He is not doing any household chores, and things have fallen apart.
· Social and recreational activities – class 3. Mr Vella said that he does not go out and stays home most of the time. He feels uncomfortable in social situations and has withdrawn socially. He hasn’t been to any parties, birthdays or wedding functions. He does not go out by himself and may go for a coffee with a friend. He used to go to the gym six days a week, running and swimming. He has reduced the number of days he attends the gym. Occasionally he may go to the gym, but often he changes his mind whilst sitting in the car and comes back instead. There are days when he may not leave his car at all. He has switched gyms since he was feeling anxious about going to the previous one. He may go to the gym three days a week now, and the time he spends there has also decreased. Initially he would spend close to two hours, but now he may spend only 45 minutes before leaving. (page 11)
The appellant submits that the Medical Assessor was in error when he assessed the respondent as a class 3 in respect of personal care and hygiene and a class 3 in respect of social and recreational activities.
Self-care and personal hygiene
The impairment descriptor examples for this category are provided in table 11.1 of the Guidelines as:
Class 2 – mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food.
Class 3 – cannot 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) two to three times per week to ensure minimum level of hygiene and nutrition.
Social and recreational activities
In respect of social and recreational activities, the criteria are contained in table 11.2 of the Guidelines as follows:
Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. dancing, sharing favourite team); and
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend; will not go out without a support person; not actively involved; remains quiet and withdrawn.
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 in respect of self-care and personal hygiene the Medical Assessor observed that the respondent was casually dressed with his hair done, he appeared clean, which is indicative if class 2 assessment. Further, the Medical Assessor has disregarded a material fact in relation to self-care which includes attending the gymnasium to exercise some three times per week, which in effect is an activity that is entirely directed to self-care. It is on this basis that the appellant submits that there should have been a class 2 assessment.
In response, the respondent submits that there is no error in the classification of class 3 in respect of self-care and personal hygiene. The respondent submits that gym attendance may have an additional benefit of physical fitness however the activity remained primarily social and/or recreational.
The respondent also points out that there is reliance on his parents for cooking, washing and laundry as the respondent is apparently unable to manage these tasks alone. The respondent showers irregularly and skips meals or resorts to take away
The respondent’s appearance at the assessment should be taken in a contextual basis, that is on a one-day examination of what appears to be an important event. It is on this basis that the respondent submits that the rating is not “glaringly improbable”.
Social and recreational activities
The respondent repeats its complaints primarily on the basis of the respondent attending the gymnasium up to three times a week whilst also continuing to meet a friend for coffee occasionally. It is also observed that the respondent is able to attend the gym without a support person. The appellant submits that the doctor’s own findings on examination, and history recorded, squarely fall within a class 2 assessment and a class 3 assessment is “glaringly improbable”.
The respondent points out that the report relied on, namely Dr Christie MacDonald, psychiatrist, dated 7 March 2024, contained a class 3 assessment in respect of social and recreational activities in circumstances where Dr MacDonald understood that the respondent attended the gymnasium and would see a friend when attending appointments and go for a walk.
The respondent points out that the gym attendance has reduced post-injury from some six times per week to three times per week. Any attendance at coffee with a friend is rare and not occasional.
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 has considered the submissions made by both parties in this Appeal.
Paragraph 1.6(a) of the NSW workers compensation guidelines for the evaluation of permanent impairment (the Guidelines) provides that: “Assessing permanent impairment involves clinical assessment of the respondent worker as they present on the day of the assessment taking into account the respondent worker’s relevant medical history and all available relevant medical information …”
In order to have the MAC revoked, the appellant must demonstrate that the Medical Assessor applied incorrect criteria or that the MAC contains a demonstrable error (1998 Act, ss 327(3)(c)-(d)).
Campbell J in Ferguson v State of NSW & Ors [2017] NSWSC 857 (Ferguson) set out the relevant principles as:
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be made out.
In Parker v Select Civil Pty Ltd [2018] NSWSC 140, Harrison AJ said, “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.”
The Appeal Panel has considered the submissions made by both parties and will deal with each of the complaints made by the appellant in turn.
In respect of social and recreational activities, it is clear to the Appeal Panel that the attendance by the respondent at the gymnasium has reduced from what it used to be. This however does not displace the uncontradicted evidence that the respondent is indeed able to attend the gymnasium, though it may be less than he used to. It is still a recreational activity which is conducted on a frequent basis. The panel note from the evidence and appellants statement that body building has been one of his main, if not his primary, recreational activities for many years. Further, the respondent is able to go out with a friend occasionally, this whilst by itself is not indicative of necessarily a class 3 determination, it does not support a class 3 or class 2 determination.
It cannot be said that the respondent goes out rarely, indeed he goes out regularly and he attends the gym without prompting. It is on this basis that the Appeal Panel has determined that there has been an error made out in respect of the classification of class 3 in respect of social and recreational activities, that is the assessment is “glaringly improbable”.
In respect of self-care and personal hygiene, the Appeal Panel notes that the appellant’s submissions in respect of attending the gymnasium are factors that have been considered and taken into account in respect of social and recreational activities. Apart from the recreational aspect of gym attendance, particularly by someone who has been a competitive body builder and, as described in the appellant’s statement, “passionate” about this recreational activity, the Appeal Panel agrees that regular exercise is for many properly considered as an element of self-care. However the Appeal Panel is aware of the potential for “double counting” or misattributing conduct. Further, the Appeal Panel has considered the descriptors for self-care in the Guidelines do not specifically include descriptors of exercise and sport (though the descriptors are not determinative by themselves, and many are now somewhat outdated).
Despite this, in respect of self-care and personal hygiene, the Appeal Panel has formed a view that the Medical Assessor has recorded the respondent’s self-care and personal hygiene, and his finding of a class 3 does not fall into error. The totality of the evidence obtained by the Medical Assessor supports the finding and leads to a class 3 assessment. The respondent is not living independently and relies on his parents significantly. There is a history of irregular showering with reminders needed, reduced dental care and lack of hair maintenance. The respondent also requires parental assistance in relation to cooking and meal preparation.
It is observed by the Medical Assessor that the respondent on the day of the assessment appeared clean and casually dressed, this is just one matter that the Medical Assessor takes into account in his classification of a class 3 assessment and his focus on the ongoing reliance on his parents forms part of the clinical judgement of the Medical Assessor on the day of the assessment in forming his overall clinical picture.
CONCLUSION
The PIRS classification for social and recreational activities has been found to be in error. The Appeal Panel determines that the classification should be class 2 not class 3. Accordingly, the assessment of whole person impairment is 9% WPI based on an aggregate of 16 (sequentially PIRS classes 3, 2, 2, 2, 2, and 5) and a median of 2.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 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: | W25063/24 |
Applicant: | State of New South Wales (NSW Police Force) |
Respondent: | Jacob Vella |
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 Himanshu Singh dated 7 February 2025, 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) |
| 1. | 7/11/2022 (deemed) | 9% | nil | 9% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
0
3
0