Trethewey v State of New South Wales (NSW Police Force)

DETERMINATION OF APPEAL PANEL
CITATION:	Trethewey v State of New South Wales (NSW Police Force) [2025] NSWPICMP 63
APPELLANT:	Darryn Leigh Trethewey
RESPONDENT:	State of New South Wales (NSW Police Force)
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	4 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Psychiatric injury; appeal in respect of two of the permanent impairment rating scale categories (self-care and personal hygiene and employability); Appeal Panel formed the view that the Medical Assessor (MA) took into account an irrelevant consideration in assessment of self-care and personal hygiene but Appeal Panel made same assessment in that category as made by the MA; Appeal Panel satisfied that MA failed to provide adequate reasons to support a Class 4 rating for employability; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 October 2024 Darryn Leigh Trethewey (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
23 September 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).

RELEVANT FACTUAL BACKGROUND

The appellant suffered a psychological injury in the course of his employment with NSW Police Force (NSWPF) (the respondent) deemed to have occurred on 26 December 2017.
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 22% 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 26 December 2017.
The matter was referred to the Medical Assessor for assessment of WPI of a psychiatric/ psychological injury deemed to have occurred on 26 December 2017.
The Medical Assessor examined the appellant on 10 September 2024. The Medical Assessor assessed 8% WPI as a result of the injury deemed to have occurred on
26 December 2017.

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 he be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because there was sufficient 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.

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 - application of incorrect criteria and demonstrable error in self care and personal hygiene. On the history and findings of the Medical Assessor, the appellant ought to have been assessed as class 3 and not class 2.
(b)    The history taken by the Medical Assessor, consistent with the appellant's statement, and the other medical evidence, is that the appellant only showers and brushes his teeth regularly as he is prompted by his wife to do so.
(c)    The statement in the Psychiatric Impairment Rating Scales (PIRS) table that the appellant “manages his hygiene well but needs to prompted by his wife” is not accurate. The appellant does not manage his hygiene well by himself as he needs to be prompted by his wife to do so. The Medical Assessor erred in by finding prompting by the appellant’s wife to shower and brush his teeth constituted managing his hygiene well.
(d)    Moreover, the Medical Assessor erred in considering the appellant’s interaction with his father-in-law as “self care and personal hygiene” (Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 (Ballas)). A friendship is a relationship adopting the ordinary meaning.
(e)    Therefore, social functioning should be a class 3 based on the Medical Assessor’s own reporting.
(f)    Ground 2 - application of incorrect criteria and demonstrable error in employability. The Medical Assessor accurately recorded the history of: “He went to the police station to hand his uniform and other items, around September 23. He says that he managed that with difficulty owing to anxiety. He does not think that he can do it again. He even finds it difficult to drive past a police station. He attended a work Christmas party and had to leave because of a panic attack. He tries to avoid anyone and places he has ‘dealt with’ as a police officer.”
(g)    However, the appellant denies later telling the Medical Assessor: “He says he could work for the police in a non-public-facing role. He says that that is not an option in his local area but feels that that is a possibility for him if available”. The correct history recorded by the Medical Assessor at page 2 of the MAC is entirely inconsistent stand with the latter history of being able to work for the police in a non-public-facing role.
(h)    There is no other evidence of any capacity to work whatsoever. Neither of the medico-legal experts in these proceedings found the appellant had any capacity to work.
(i)    The Medical Assessor erred by wrongly assuming the appellant could return to work with the respondent “one or two days” per week and employability should be assessed as class 5.
The respondent’s submissions include the following:
(a)    Pursuant to cl 11.12 of the Guidelines, the examples provided in each class descriptor of the PIRS are precisely that, examples. They provide guidance and, in some instances, form a kind of threshold wherein the absence of certain indicators precludes an assessment at a higher class. This does not mean that the presence of one factor given as an example of a higher class, demands that higher class applies irrespective of other relevant factors.
(b)    The respondent disagrees with the appellant’s submission that including in the PIRS form the example of the appellant looking after his father-in-law is inappropriately categorised. However, if not appropriately categorised, removing this from the description would not alter the overall rating of class 2 for self- care and personal hygiene.
(c)    The Medical Assessor has provided a detailed description of his rating for class 2, which was consistent with the history he obtained and the material before him. That rating was also consistent with the Guidelines and should be confirmed.
(d)    Employability - the Medical Assessor’s extended reasoning is as follows: “As described in the main body of the report, there is severe impairment. He can work in a non-policing, home-based role, less stressful for up to 15 hours per week.”
(e)    The Medical Assessor explained his view on why his assessment differed to the other medical opinions which was “likely due to the gap between the assessments”. Further the Medical Assessor confirmed that his opinion was based on “clinical documentation and assessment findings”.
(f)    Increasing the class rating to class 5 for employability will raise the aggregate score to 16, which will only increase the overall assessment to 9% WPI.
(g)    The Medical Assessor provided a description of his rating for class 4, which is consistent with the Guidelines, and therefore should be confirmed.
(h)    The MAC dated 23 September 2024 does not contain any demonstrable error and is based on the correct criteria and, therefore, the assessment of 8% WPI should 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.
With regard to both categories appealed the Appeal Panel notes that part of the dispute relates to the appellant’s opinion of his impairment as recorded by the Medical Assessor. The rating of impairment by a Medical Assessor is informed by much more than the worker’s subjective opinion, including the other evidence and a clinical assessment including knowledge and experience of function and impairment in a range of psychiatric conditions, illness severity and contexts.

Grounds 1 - self care and personal hygiene

The appellant submits that there was an application of incorrect criteria and demonstrable error in the assessment of self care and personal hygiene based on the history and findings of the Medical Assessor.
The examples under Table 11.1 for “Self care and personal hygiene” in the Guidelines are:
“Class 2 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.
Class 3 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.”
Under “Social Activities/ADL” the Medical Assessor noted:
“He gets his groceries delivered and only goes to the shops if he has to for a quick buy... He estimates that he goes to the shops once a month on average. He says he goes out for a meal with his father-in-law once a week. He looks after his father-in-law by mowing their grass and doing “little things” that need to be done. He says that his appetite is okay. And his body weight is stable. He says he showers and brushes his teeth regularly because his wife prompts him. He goes without a shower once a month…
He spends his time watching TV and cleaning around the house.”
The Medical Assessor assessed class 2 for self care and personal hygiene and provided the following reasons:
“As described in the main body of the report, there is mild impairment. He manages his hygiene well but needs to be prompted by his wife. He can omit taking a shower sometimes. He eats well and his body weight is stable. He looks after his father-in-law as well”.
In a statement dated 21 February 2024, the appellant wrote:
“46. Prior to my psychological injuries I took pride in my appearance and would make sure I looked presentable for work. I considered myself to be a clean person with good personal hygiene, as I showered and brushed my teeth regularly.
47. Since my psychological injuries, my ability to engage in self-care and personal hygiene activities has reduced as I do not have the energy or motivation to care. My wife always has to remind me to shower or change my clothes as I am not bothered enough to notice. I rarely cook meals anymore and rely heavily on my wife to cook and clean the household. My wife suggested we get a cleaner, however I refused and became triggered as I did not want a stranger in my house. I do not know how I would function without my wife as I rely on her heavily.”
Dr Glen Smith, consultant psychiatrist, in his report dated 6 September 2023, assessed a class 3 providing the following reasons:
“Mr Tretheway said that he showers daily but generally only after prompting from his wife. He prepares meals because his wife has recently broken her arm but usually his wife prepares meals. He does not want to have a cleaner, “I don’t trust anyone here, there have been instances where criminal have come in” (to clean properties). He presented as incapable of independent living due to his anxiety and depressive symptoms.”
Dr Glen Smith, in his supplementary report dated 27 May 2024, considered an assessment by Dr Young dated 1 February 2024 but maintained his assessment of class 3 for self care and personal hygiene
Dr Peter Young, consultant psychiatrist, in a report dated 14 December 2023 assessed a class 2 providing the following reasons:
“He reports that he is able to perform general household chores and domestic duties such as washing, cleaning and lawnmowing. He said that since his wife has fractured her arm, he has taken on more domestic duties including cooking at home.
He pays less attention to his appearance than usual. He often wears the same clothes on successive days. He generally showers regularly but at times says that his wife prompts him.”
In an Allied Health Recovery Request Form dated 15 August 2023, Mr Rod Amour, treating psychologist wrote in Section 3 under “Current Capacity - Home”: “Able to attend to self-care needs. Is able to do most domestic duties”.
The appellant submits that he ought to have been assessed as class 3 and not class 2 in the category of self care and personal hygiene. The appellant referred to the history taken by the Medical Assessor, consistent with the appellant's statement, and the other medical evidence, that the appellant only showers and brushes his teeth regularly as he is prompted by his wife to do so.
The appellant argues that the statement in the PIRS table that the appellant “manages his hygiene well but needs to prompted by his wife” is not accurate. The appellant submits that he does not manage his hygiene well by himself as he needs to be prompted by his wife to do so and the Medical Assessor erred in by finding this constituted managing his hygiene well.
The Appeal Panel accepts that the Medical Assessor erred in by finding that prompting by the appellant’s wife to shower and brush his teeth constituted managing his hygiene well. The Appeal Panel notes that requiring prompting to shower daily is a class 3 descriptor.
The appellant submits that the Medical Assessor erred in considering the appellant’s interaction with his father-in-law as “self care and personal hygiene” (Ballas), a friendship is a relationship adopting the ordinary meaning.
The respondent disagrees that including in the PIRS form the example of the appellant looking after his father-in-law is inappropriately categorised and submits that if not appropriately categorised, removing this from the description would not alter the overall rating of class 2 for self-care and personal hygiene.
In Ballas Bell P and Payne JA said (Emmett JA concurring):
“93. Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
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.
95. In the present case, it was plainly ‘arguable’, to use the language of Vannini, that the AMS took into account an irrelevant consideration in relation to the scale ‘social and recreational activities’ when he made reference in his reasons to ‘[s]ees one friend regularly’ (see [9] of the submissions to the Delegate, extracted at [81] above). This is because there is a separate scale entitled ‘Social functioning (relationships)’ to which that conduct is more directly relevant.
96. Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘Social functioning (relationships)’ scale.
97.The aim of the Guidelines (which have been held to have the force or effect of delegated legislation: see Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 at [25]-[28]; Jenkins at [29]) would be subverted if the decision as to which scale to place certain conduct in for the purposes of assessing seriousness of impairment were left to the discretion of an AMS, as the Delegate indicated it could be. This would also have ramifications for the reviewability of decisions by an AMS. There is an important difference between a characterisation exercise and an exercise of discretion.”
The Medical Assessor included in the PIRS form the example of the appellant looking after his father-in-law. In the body of the MAC, the Medical Assessor noted that the appellant “looks after his father-in-law by mowing their grass and doing ‘little things’ that need to be done”.
The Appeal Panel considers that the activity of looking after his father-in-law, as described above, did not require actual personal care of his father-in-law, such as assistance with meals, dressing and other basic functions, that would inform an assessment of functioning in that conduct in relation to oneself. The appellant merely performed small odd jobs and lawn mowing. As such, this activity does not, in the Appeal Panel’s view, fall into the category of self care and personal hygiene, and the activity is more directly relevant to either employability or social functioning. The Appeal Panel is satisfied that the Medical Assessor took into account an irrelevant consideration in his assessment of class 2 for self care and personal hygiene and that this is a misunderstanding which amounts to demonstrable error and the application of incorrect criteria.

Having found error, the Appeal Panel reviewed the evidence.
A key difference between a class 2 and a class 3 impairment is the ability to live independently without support. The Appeal Panel accepts that the appellant only showers and brushes his teeth regularly when he is prompted by his wife to do so. However, the appellant eats well and his body weight is stable. Although the appellant said that he rarely cooks meals anymore and relies heavily on his wife to cook and clean the household, the appellant can prepare his own meals.
Dr Glen Smith, in his report dated 6 September 2023, noted that the appellant “prepares meals because his wife has recently broken her arm but usually his wife prepares meals.”
Dr Peter Young, in a report dated 14 December 2023, noted that the appellant reported that he is able to perform general household chores and domestic duties such as washing, cleaning and lawnmowing. Dr Young noted that since the appellant’s wife fractured her arm, he had taken on more domestic duties including cooking at home. In the Allied Health Recovery Request Form dated 15 August 2023, Mr Amour, noted that the appellant was “able to attend to self-care needs. Is able to do most domestic duties”.
The Appeal Panel considered the totality of the evidence concerning the appellant’s ability to perform activities in the category of self care and personal hygiene. On balance, the Appeal Panel is satisfied that the appellant is able to live independently without regular support and is able to attend to self care needs and most domestic duties, including cooking more as he did when his wife had a broken arm.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel assesses class 2 for self care and personal hygiene.

Ground 2 – employability

The appellant submits that the Medical Assessor erred by wrongly assuming the appellant could return to work with the respondent “one or two days” per week and employability should be assessed as class 5.
The examples under Table 11.6 for “Employability” in the Guidelines are:
“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 class 4 in relation to employability noting:
" As described in the main body of the report, there is severe impairment. He can work in a non-public-facing role one or two days per week.”
The Medical Assessor under “Present symptoms” noted:
“Mr Trethewey says that he is always on edge wherever he goes. He is always looking at what others are doing. He says that he remains jumpy. He says that sudden loud noises and people coming behind him make him jump. He says that his mood is low, and he can cry sometimes. He can get very angry ‘very quickly’. He says he gets angry if things do not work as he expects them to.
He says that he feels anxious whenever he is out. He is generally okay when he is at home. He avoids walking near anyone when he goes to the shopping centre.
He went to the police station to hand his uniform and other items, around September 23. He says that he managed that with difficulty owing to anxiety. He does not think that he can do it again. He even finds it difficult to drive past a police station. He attended a work Christmas party and had to leave because of a panic attack. He tries to avoid anyone and places he has ‘dealt with’ as a police officer. He says that he can find it challenging to get to sleep but then gets woken up with nightmares. He finds it difficult to get back to sleep after waking up. He says that he generally
tries to avoid the triggers for flashbacks, but he still experiences them regularly. He says that his appetite is okay. And his body weight is stable. He says his concentration is ‘terrible’. His wife manages their finances as he has stopped caring about money. He says that he can experience panic attacks once a month on average. He says that he is uncertain about his future. He applied for total and permanent disability ‘by accident’ six months after he went off. That got ‘disapproved’ as it was deemed that he could work as a labourer. He has thoughts of suicide occasionally but denies any planning or attempts.”
The Medical Assessor under “Social activities/ADL” noted:
“… he says he can drive but gets ‘cranky’ with people on the road. He has been in road rage as well…
He does not think that he can get on public transport. He struggles to read emails and
forgets things easily. He spends his time watching TV and cleaning around the house.
He says he has had to rewatch programs due to a lack of focus. He gets a ‘brain fog’ if things are too hard and he takes longer to do tasks.
He says he could work for the police in a non-public-facing role. He says that that is not an option in his local area but feels that that is a possibility for him if available.”
The Medical Assessor, in his reasons for assessment, noted:
“Treating psychiatrist, Dr Sriram Thazhathaveetil, provided a letter dated 27 February 24. He advised that Mr Trethewey was attending an outpatient trauma skills program and that his mood was better and his anxiety reduced. He advised that the diagnosis was posttraumatic stress disorder. Dr Shriram had earlier provided a report dated 22 August 23 stating that Mr Trethewey had lost his capacity to undertake any policing duties permanently.
Treating psychologist Mr Rod Armour provided a report dated 11 October 23. He advised that Mr Trethewey was continuing to suffer from symptoms of post-traumatic stress disorder and that he was avoidant of several people and places which could trigger his symptoms. He advised that Mr Trethewey has commenced EMDR therapy. He further advised that Mr Trethewey had lost his capacity to return to work for the New South Wales Police Force. He advised that Mr Trethewey could not take up an alternative role either because of ongoing symptoms of post-traumatic stress disorder and that he was likely to suffer an adjustment disorder after leaving the police force, which was an obstacle in returning to work.
Forensic psychiatrist Dr Glen Smith provided an independent medical examination report dated 06 September 23. He advised that Mr Trethewey was suffering from post-traumatic stress disorder. He stated that there was an additional diagnosis of major depressive disorder with anxious distress. He advised ongoing treatment under the care of a psychologist and a psychiatrist. He opined that Mr Trethewey had suffered 22% impairment of the whole person because of his injury.
Dr Smith provided a supplementary report dated 27 May 24. He advised that there was no change in his assessment findings and that an impairment rating of 22% was reasonable and consistent with his findings.
…
The only difference between the options appears to be the whole person impairment
rating, likely due to the time gap between the assessments. Otherwise, there is no
uncertainty about the diagnosis or the cause of the injury.”
The appellant in his statement dated 21 February 2024 wrote:
“57. Prior to my psychological injuries, I was a confident and competent employee. I found working rewarding and enjoyed the sense of purpose it gave me. I loved my job and helping my community, I took pride in working for the NSW Police Force as it was a large part of my identity.
58. Since my psychological injuries, I know that I am completely debilitated from returning to work. This is because I cannot even complete my usual activities, such as showering or watching television. The idea of being responsible for duties at work makes me feel very nervous. My symptoms are crippling, and my lack of self-esteem and motivation would make it impossible for me to cope in a professional environment. Additionally, my poor concentration skills since the injury would make it extremely difficult for me to keep focused on the job. I have not been able to work in any capacity since March 2023. I am so far from the person I used to be and did not realise how damaged I was until I stopped working. I know I could not cope with working in any capacity in my current psychological state”.
Dr Glen Smith, consultant psychiatrist, in his report dated 6 September 2023, assessed a class 5 providing the following reasons:
“Mr Tretheway has not worked in any capacity since March 2023 and he has not engaged in voluntary work, study or retraining. He presented as unfit for any employment due to his anxiety and depressive symptoms with anxiety, avoidance, irritability, fear and cognitive impairments.”
Dr Smith expressed the opinion that the appellant’s anxiety and depressive symptoms “are impairing to the extent that it is unlikely he will ever again engage in gainful employment on a sustainable basis in any occupation” for which he was reasonably qualified.
Dr Young, in a report dated 14 December 2023 assessed a class 5 providing the following reasons:
“Mr Trethewey has not been engaged in any employment or employment like activity. He is not able to consider possibilities regarding return to work in the police or other roles at present.”
Dr Young, in his report dated 1 February 2024, assessed a class 5 providing the following reasons:
“Mr Trethewey has not been engaged in any employment or employment-like activity. He is not able to consider possibilities regarding return to work in the police or other roles at present.”
In a questionnaire from the respondent dated 22 August 2023, Dr Sriram Thazhathaveetil, treating psychiatrist was asked if the appellant had capacity to undertake work external to NSWPF. He responded: “Not at this stage.”
In a report dated 22 August 2023, Dr Thazhathaveetil expressed the opinion that the appellant had lost permanent capacity to undertake any form of policing duties. He wrote: “Darren lacks permanent capacity to perform both operational and non-operational duties with the NSWPF.” Dr Thazhathaveetil expressed the view that “at this stage, he has no capacity to work in any capacity including work that is external to NSWPF. It is likely to take a few years of rehabilitation prior to reconsidering capacity for external work.”
In a report dated 17 December 2023, Dr Thazhathaveetil wrote: “At this stage, he is not capable of working in any role. I would re-assess his capacity for work outside NSWPF after 2 years”.
In a report dated 27 February 2024, Dr Thazhathaveetil expressed the opinion that considering the intensity of his post-traumatic stress disorder symptoms, the appellant was permanently disabled to perform operational and non-operational duties as a member of NSWPF.
In a report dated 22 December 2023, Mr Rod Amour, treating psychologist wrote: “At this stage, Darren does not have the capacity to work in either policing or in any other occupation due to the severity of his current symptoms and highly avoidant coping behaviour.”
Mr Armour considered that the appellant may have capacity, in the future, to return to work in a different role with a different employer. He noted that further improvement in his symptoms of post-traumatic stress disorder and the ability to leave home and engage with people would be necessary before employment opportunities could be investigated.
In a report dated 13 February 2024, Mr Amour expressed the view that the appellant was not fit to explore work opportunities external to NSWPF, commence any work rehabilitation programs and was not fit to commence any form of work at the time of his last therapy session on 12 December 2023.
The certificate of capacity of Dr Declan Mulvaney dated 8 May 2024 certified the appellant as having no current work capacity for any work from 13 May 2024 to 13 August 2024. This was related to post-traumatic stress disorder.
The Appeal Panel accepts that both Dr Smith and Dr Young assessed class 5 for employability. The treating psychiatrist, psychologist and the general practitioner all consider that the appellant has no capacity for work. It is significant that the treating psychiatrist,
Dr Thazhathaveetil expressed the view that the appellant has no capacity to work in any capacity including work that is external to NSWPF.
The Appeal Panel noted that the appellant denied telling the Medical Assessor that he could work for the police in a non-public-facing role. The Appeal Panel accepts that the history recorded by the Medical Assessor at page 2 of the MAC under present symptoms is inconsistent stand with the latter history of being able to work for the police albeit in a non-public-facing role. In any event, the Appeal Panel does not regard the appellant’s own opinion about his ability to work for the police in a non-public-facing role as having any real weight. The opinions expressed by the treating doctors and psychologist clearly considered that there was a risk of exacerbation if the appellant returned to work with NSWPF even in non-operational duties because of the intensity of his post-traumatic stress disorder symptoms.
The Appeal Panel is satisfied that the appellant is not able to work for NSWPF even in a non-operational role because he would still be exposed to triggering components.
The only activity that the appellant has engaged in since his injury has been the lawn mowing and odd jobs for his father-in-law. However, these are tasks performed for a family member and do not involve the applicant dealing with the public. Mr Armour considered that the appellant may have capacity, in the future, to return to work in a different role with a different employer but this required further improvement in his symptoms of post-traumatic stress disorder and the ability to leave home and engage with people.
Although the Medical Assessor stated that the difference in his rating in the PIRS categories was “likely due to the time gap between the assessments”, he did not address the significant problems described by the applicant doing such things as driving past a police station. The Appeal Panel is satisfied based on the Medical Assessor’s report of present symptoms in the MAC that the appellant has not progressed to the stage where he is able to leave home and engage with people.
The Appeal Panel is satisfied, taking into account all of the evidence, that the Medical Assessor failed to provide adequate reasons to support a rating of class 4 for employability. The failure to provide adequate reasons is a demonstrable error.
After considering the evidence set out above, the Appeal Panel was satisfied that the evidence supports a rating of class 5 for employability.
As noted above, the Appeal Panel was satisfied that there was demonstrable error in the MAC in relation to the ratings in the PIRS categories of self care and personal hygiene and employability. The Appeal Panel assesses class 2 in the category of self care and personal hygiene and class 5 in the category of employability.
The Appeal Panel finds that the PIRS scales score 2, 2, 2, 2, 3, 5, median 2 which is, aggregate 16 so that the final WPI = 9%.
For these reasons, the Appeal Panel has determined that the MAC issued on
23 September 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:	W23570/24
Applicant:	Darryn Leigh Trethewey
Respondent:	State of New South Wales (NSW Police Force)

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Ankur Gupta 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.Psychiatric injury	26 December 2017(deemed)	Chapter 11	9%	0	9%
Total % WPI (the Combined Table values of all sub-totals)					9%

[2025] NSWPICMP 63

4 February 2025