Zurich Financial Services Australia Ltd v Keogh; Keogh v Zurich Financial Services Australia Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Zurich Financial Services Australia Ltd v Keogh; Keogh v Zurich Financial Services Australia Ltd [2025] NSWPICMP 629
APPELLANT:	Zurich Financial Services Australia Limited
RESPONDENT:	Chad Keogh
APPELLANT:	Chad Keogh
RESPONDENT:	Zurich Financial Services Australia Limited
APPEAL PANEL
MEMBER:	Gaius Whiffin
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	21 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeals by both worker and employer against Medical Assessor’s (MA) assessment of impairment in relation to psychiatric and psychological disorders; the MA erred in his assessment of the worker with regard to the psychiatric impairment rating scale (PIRS) categories of ‘self-care and personal hygiene’ and ‘social and recreational activities’; fresh evidence not admitted and worker’s appeal ground based on the availability of additional relevant information failed; Petrovic v BC Serv No 14 Pty Limited & Ors considered; otherwise MA’s assessment found to contain no error as his actual path of reasoning was revealed and his assessment was based on his clinical judgement; Pitsonis v Registrar of the Workers Compensation Commission & Anor, Ferguson v State of New South Wales, Parker v Select Civil Pty Limited, Jenkins v Ambulance Service of New South Wales, Bojko v ICM Property Service Pty Ltd & Ors, Vitaz v Westform (NSW) Pty Ltd, Western Sydney Local Health District v Chan, and Wingfoot Australia Partners Pty Ltd v Kocak; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPEAL

On 30 April 2024, Zurich Financial Services Australia Limited (the employer) lodged an Application to Appeal Against the Decision of a Medical Assessor (the first Appeal). The relevant medical dispute was assessed by Medical Assessor Douglas Andrews, who issued a Medical Assessment Certificate (MAC) on 2 April 2024.
On 27 May 2024, Chad Keogh (the worker) lodged his Notice of Opposition to the first Appeal. In that document, the worker himself raised a ground of appeal. The Personal Injury Commission (Commission) then directed the worker (on 4 June 2024) to lodge a separate Application to Appeal Against the Decision of a Medical Assessor, if he wished to pursue that ground of appeal.
On 6 June 2024, the worker therefore lodged an Application to Appeal Against the Decision of a Medical Assessor (the second Appeal), and the employer lodged its Notice of Opposition to the second Appeal on 25 June 2024.
In the first Appeal, the employer 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.

In the second Appeal, the worker relies on the following grounds of appeal under s 327(3) of the 1998 Act:
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The Commission’s President’s delegate is satisfied that, on the face of both the first Appeal and the second Appeal, at least one ground of appeal has been made out in each appeal. A direction was issued on 4 July 2024 in this regard, which also extended time for lodgement in relation to the second Appeal pursuant to s 327(5) of the 1998 Act.
The 4 July 2024 direction further convened an appeal panel (the initial Appeal Panel), which eventually issued a decision revoking the MAC, dated 11 September 2024.
The worker subsequently brought judicial review Summons proceedings before the Supreme Court, challenging the decision of the initial Appeal Panel. Those Summons proceedings however were not heard by the Supreme Court as Consent Orders were lodged and made in them on 16 May 2025, which provided inter alia:
(a)    the decision of the initial Appeal Panel was quashed;
(b)    a writ was issued in the nature of mandamus requiring the Commission’s President “to appoint a medical appeal panel differently constituted to determine the matters the subject to the Summons”, and
(c)    a finding (without any additional explanation) that the initial Appeal Panel had “failed to determine the medical appeals before it according to law”.
The current Appeal Panel (the Appeal Panel) was therefore convened by the Commission’s President’s delegate’s direction dated 3 June 2025, and it has conducted a review of the original medical assessment, limited to the grounds of appeal on which both appeals are made.
The worker lodged further submissions with the Commission dated 4 June 2025. The employer objected to the Appeal Panel considering those submissions. There were no orders made by either the Supreme Court or the Commission permitting those submissions to be lodged, and the Appeal Panel has determined not to consider them. In this regard, the Appeal Panel notes that both parties have already lodged two sets of submissions (one each in relation to each appeal) and the Appeal Panel considers it to be appropriate to determine the appeals according to solely the evidence and submissions that were before the initial Appeal Panel.
Clause 128 of the Personal Injury Commission Rules 2021 (the Rules) and Procedural Direction PIC7 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 cl 128(1) of the Rules.
The assessment of permanent impairment of the worker that is the subject of both appeals is to be 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). The psychiatric impairment rating scale categories (the PIRS categories) to be utilised in the necessary assessment are outlined at cls 11.11-11.12 and at Tables 11.1-11.6 of the Guidelines.

RELEVANT FACTUAL BACKGROUND

The worker was employed by the employer between April 2006 and 31 August 2022, when his employment was terminated by it. At the date of his termination however, he had not worked for the employer since 23 February 2021.
From 2013, his role with the employer was as a claims assessor, and he says in his
19 February 2024 statement (found at page 1 of the Application to Resolve a Dispute (ARD)):
“In or about 2016, I began to experience stress and anxiety as a result of the demanding nature of my role. I specifically experienced issues when communicating with the life insured clients and was eventually no longer able to cope with corresponding with the claimants.”
He also says:
(a)    he was required to communicate with emotional and aggressive claimants on a daily basis;
(b)    he was provided with no emotional support by the employer;
(c)    he was exposed to traumatic events and “heartbreaking” situations when assessing claims;
(d)    from 2019, he was required to review and respond to incoming correspondence within two days, rather than five days as previously;
(e)    it was often “soul crushing” when he denied claims;
(f)    despite his declining mental health, he was exposed to further work pressure;
(g)    he was laughed at by a manager when he mentioned that he was in tears during a call with a claimant, and
(h)    when he discussed with his manager his declining mental health as a result of his role, his manager – “explained that the company could not alter my role on this basis or move me to a different position. It was apparent that if I continued to underperform in the client facing aspect of the role, I would effectively be managed out.”
As a result, the worker developed a psychological injury. The deemed date for the injury has been agreed between the parties as being 22 February 2021.
The worker claimed compensation from the employer in relation to the injury, and the employer accepted that it was liable to pay compensation in this regard, in accordance with the provisions in the Workers Compensation Act 1987 (the 1987 Act). It has therefore variously paid him weekly benefits compensation, as well as expenses in accordance with s 60 of the 1987 Act.
The worker then claimed lump sum compensation from the employer pursuant to s 66 of the 1987 Act. He made his formal claim by a letter (found at page 30 of the ARD) from his solicitors to the employer’s insurer dated 25 July 2023. He relied upon a report from Associate Professor Robertson dated 20 June 2023 (found at page 48 of the ARD) in this regard, who assessed him with 22% permanent impairment from the injury.
The employer’s insurer responded to the lump sum compensation claim by issuing a notice dated 8 November 2023 (found at page 31 of the ARD) alleging that, on the basis of a report which it had obtained from Dr Chew dated 20 October 2023 (found at page 15 of the employer’s Reply (Reply)), the worker’s injury was not capable of assessment as maximum medical improvement had yet to be reached.
As a result, the worker’s solicitors lodged the ARD with the Commission.
As the employer had accepted liability for the worker’s injury, the Commission referred the medical dispute regarding whether the worker’s permanent impairment was capable of assessment, and if so, what its extent was, directly to the Medical Assessor.
Following an assessment on 27 March 2024, the Medical Assessor issued the MAC on
2 April 2024.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it possessed enough information in the documentation before it to determine both appeals, and that it was therefore not necessary for the worker to undergo a further medical examination.

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 worker seeks to admit a further statement from him dated 20 May 2024. The acknowledged purpose of the statement is to “address matters arising in the Medical Assessment Certificate of Dr Andrews issued 2 April 2024”. The worker submits that the statement “could not possibly have been available at the time of the medical examination of [sic] issuance of the MAC, as by its very nature it exists in order to address those matters raised”. The worker also submits that the information in the statement is relevant to the assessment of his permanent impairment, as it deals with matters that the Medical Assessor either failed to conduct sufficient enquiries about, or did not take an adequate record of, during the medical assessment.
The further statement is relied upon by the worker in order to make out his first ground of appeal (see paragraph 5 above), which is pursuant to s 327(3)(b) of the 1998 Act – this sub-section reads as follows:
“The grounds for appeal under this section are any of the following grounds--
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against).”
The Appeal Panel does not admit into evidence the further statement from the worker dated 20 May 2024. In the opinion of the Appeal Panel, the statement deals with “matters going to the process whereby the AMS makes his or her assessment”. It deals with information which should have been provided to the Medical Assessor either directly by the worker at the medical assessment, or in statement evidence given by him and attached to the ARD. The statement does not raise events which have occurred since the medical assessment, as it deals with information which existed at the time of the medical assessment regarding the worker’s symptoms and activities.
In rejecting the evidence in the worker’s further statement, the Appeal Panel relies on the decision of Hoeben J in Petrovic v BC Serv No 14 Pty Limited & Ors [2007] NSWSC 1156 (at [31-32]):
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs 327(3)(b).
It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
In the circumstances, the worker is unable to rely upon his further statement to make out a ground of appeal pursuant to s 327(3)(b) of the 1998 Act, and so that ground of appeal must fail.
The further statement is also inadmissible pursuant to s 328(3) of the 1998 Act as it contains information which was available to the worker before or at the medical assessment. No reasonable reason has been submitted by the worker for it not being so available.

EVIDENCE

Documentary evidence

The Appeal Panel therefore only 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:
(a) the ARD and its attachments, and
(b) the Reply and its attachments.

Medical Assessment Certificate

The parts of the MAC that are relevant to the first Appeal and the second Appeal are set out below. It is unnecessary however to refer to the MAC in more detail, given the specific grounds of appeal relied on by both parties, in accordance with their submissions.
Relevant aspects of the history obtained by the Medical Assessor include:
(a)    the worker advising that he “has a reduced capacity to experience positive emotions but said he likes attending the children’s sporting activities and going to the beach” - he interacts with other parents at the children’s sporting activities;
(b)    the worker advising that he has significant anxiety when interacting with other people;
(c)    the worker advising that he has low quality sleep with distressing dreams and sleep paralysis;
(d)    the worker advising that his appetite is reduced, and he often fails to eat breakfast and lunch – he “eats a reduced but reasonable-quality diet”, and his weight fluctuates by 14 kg;
(e)    the worker advising as to an absent libido;
(f)    the worker advising that he begins drinking alcohol in the mornings and consumes about eight cans of full-strength beer per day - the Medical Assessor opines that the worker is drinking alcohol “in a pattern likely to cause significant physical and social harm over time”;
(g)    the worker advising that he generally rose at 8.00am in the mornings and assisted his children get ready for school - he also picked up the children after school;
(h)    the worker advising that after his wife and children leave home in the mornings, “he sometimes returns to bed but usually does housework, including cleaning the kitchen, vacuuming and laundry”;
(i)    the worker advising that he brushes his teeth once per day and “usually showers at the end of the day without prompting, but he occasionally misses a day”;
(j)    the worker advising that he reads news articles on his telephone and spends time watching television, especially sporting events and movies;
(k)    the worker advising that he sometimes goes shopping;
(l)    “Before becoming unwell, he enjoyed outings with workmates and went to the pub on the weekends to see friends. He was socially active with neighbours at barbecues. He rarely attended cafés or restaurants but often had family meals at the local RSL club. The family travelled to Batemans Bay for a holiday twice yearly and visited his parents in Port Macquarie…He has kept only one friend whom he sees regularly. The family still attends the RSL for dinner once every six weeks. They flew to Cairns early in 2023 and spent eight days holidaying there. He has also attended his wife’s family gathering at Gosford before Christmas 2023. This is a three-hour drive, and he spent three nights there. Mr Keogh said he is comfortable travelling. Mr Keogh is independent with local travel.”;
(m)     the worker advising that he has not visited his parents in Port Macquarie for 18 months, but they travel to visit him regularly;
(n)    the worker advising that his relationship with his wife is strained, but that he considers her to be caring and supportive – they have never separated;
(o)    the worker advising that he has no hobbies or projects at home;
(p)    the worker advising that he “remains close to his children, parents, sister and one friend”, and
(q)    the worker presenting to his appointment with the Medical Assessor unshaven and “casually attired in a dark T-shirt”.
The Medical Assessor diagnoses the worker with a major depressive disorder (chronic and treatment-resistant with melancholic features and anxious distress), an alcohol use disorder, and a generalised anxiety disorder which pre-dated his psychological injury in the employ of the employer.
The Medical Assessor reviews the medical evidence in the ARD and the Reply, specifically the reports of Associate Professor Robertson and Dr Chew. He assesses the worker with 17% permanent impairment and explains why his assessment is different to Associate Professor Robertson’s, due to the specific history which he obtained from the worker. He then deducts 10% from his permanent impairment assessment in accordance with s 323 of the 1998 Act in order to take into account the worker’s previous psychological condition, being his generalised anxiety disorder. The final permanent impairment assessment in the MAC is 15%.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been fully considered by the Appeal Panel.
In summary, in relation to the first Appeal, the employer submits that “the MA erred in his assessment of Class 3 for self-care and personal hygiene”. It specifically refers to the history recorded by the Medical Assessor as outlined at paragraphs 34(d), (g), (h), and (i) above, and submits that a Class 3 finding in relation to the PIRS category of ‘self-care and personal hygiene’ is inconsistent with that history.
The employer submits that there is no indication that the worker requires significant support from his wife, and that the worker “ought to have been no higher than Class 2” in relation to the PIRS category of ‘self-care and personal hygiene’. It concludes:
“The appellant submits that looking after his three young children, waking up early, contributing to cleaning of the house and chores, generally showering and cleaning his teeth daily without prompting are inconsistent with a Class 3 rating. The PIRS example for Class 3 indicates someone who, without someone else caring for them, could not manage even a minimum level of hygiene. That is not the case here. Whilst the PIRS examples in the Guidelines remain examples, they nevertheless form the basis for the criteria that an MA must adhere to.”

In reply, in relation to the first Appeal, the worker submits that the Medical Assessor correctly took significant notice of his alcohol use disorder and his weight fluctuations when assessing his ‘self-care and personal hygiene’, both of which factors are ignored in the respondent’s submissions.
The worker submits that the employer has failed to demonstrate inconsistency between the history obtained by the Medical Assessor and his finding of the worker in relation to the PIRS category of ‘self-care and personal hygiene’. He submits:
“As a general proposition, the reasons of a Medical Assessor should not be scrutinised overzealously (see Allianz Australia Insurance Ltd v. Moo Ok Park [2015] NSWSC 122 at [28]). In addition, in order for it to be found that a Medical Assessor’s reasons are deficient, they must be ‘plainly inadequate’ (see Rahme v. Bevan [2009] NSWSC 528 at [31]). The appellant employer has failed to demonstrate any deficiency in the Medical Assessor’s reasoning.”
In summary, in relation to the second Appeal, the worker submits that in relation to the PIRS category of ‘social and recreational activities’, the Medical Assessor should have made a Class 3 finding, rather than a Class 2 finding.
The worker submits:
“Given those matters raised by the Worker in his Statement of 20 May 2024, it is apparent that the MA failed to conduct a complete clinical assessment of the Worker as he presented on the day. A complete clinical assessment would have identified that the Worker is indeed restricted in his social and recreational activities to a greater extent than was recorded; for example, the Worker confirms only meeting with his friend ‘a couple of times each year’, as well as staying home whilst his family go on holidays, as has been outlined by the Statement dated 20 May 2024.”
He alleges factual errors made by the Medical Assessor, which if they had not been made, would have resulted in a higher finding. The factual errors are outlined in the further statement from the worker dated 20 May 2024. However, this statement is fresh evidence which the Appeal Panel has not admitted – see paragraphs 25-31 above.
In reply, in relation to the second Appeal, the employer submits that the MAC is “detailed and comprehensive”, and specifically states:
“When asked at the end of the interview if he had anything else to add, he said he had nothing further.”
The employer submits:
“With respect to the appellant’s assertion that the information obtained by the MA were misunderstood or ignored, the respondent submits those comments by the appellant cannot form the basis of an appeal under section 327(c) or (d) of the 1998 Act”,
and the employer then quotes from Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 (Pitsonis) (at [59]):
“Those dependent on the applicant showing that the doctor failed to record or to record correctly things she had told him face a double difficulty. They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.”
The employer also quotes from Ferguson v State of New South Wales [2017] NSWSC 887 (Ferguson) and Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) in order to conclude:
“In the present matter, the MA has carefully considered all of the appellant's evidence, and his reported symptoms, before allocating the class criteria…The MA is entitled to form his own view of the level of the appellant’s impairment, based on the material afforded to him. Indeed, the SIRA Guidelines at 1.6 specifically require a doctor to use their clinical judgement…Based on the detailed and precise history taken, such as specifically recording how often the appellant attends the RSL Club (i.e. every 6 weeks) and how many family holidays he went on in 2023 (i.e. 2), the appellant has not made out any error on the face of the MAC regarding the assessment for social and recreational activities…The respondent submits there was no error in the MA allocating Class 2 for social and recreational activities.”

FINDINGS AND REASONS

In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), the Court of Appeal held that an 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 procedures on appeal are contained in s 328 of the 1998 Act. An 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 – that is those errors identified by a party in its submissions – see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
The Appeal Panel in this regard has to ensure that it does not disturb any unchallenged findings in the MAC. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated (at [35]):
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and [emphasis in original] the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor’s reasoning with respect to that finding; neither course was part of its statutory function.”
The only challenged findings in the MAC relate to the Medical Assessor’s findings in relation to the class into which the worker should be placed regarding the PIRS categories of ‘self-care and personal hygiene’ (the first Appeal instituted by the employer) and ‘social and recreational activities’ (the second Appeal instituted by the worker). The Appeal Panel will therefore only be determining whether the Medical Assessor erred regarding these findings. The remaining findings in the MAC are therefore not considered by the Appeal Panel, and will remain in the MAC.
In Ferguson, Campbell J stated (at [23-24]):
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face.
The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
In Parker, an appeal panel had determined that a Medical Assessor “had erred in assessing Class 3 [relevant to the PIRS category of ‘self care and personal hygiene’] because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence”. However, Harrison AJ found (at [71]):
“The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error.”
Paragraph 11.12 of the Guidelines makes it clear that the descriptors in Tables 11.1-11.6 are examples only. This position is also made clear in the decision of Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (Jenkins), in which Garling J helpfully summarised (at [52]-[57]):
“Chapter 1 of the WorkCover Guides is a general description to those in the position of an AMS as to how to apply the Guides. Of particular importance in clause 1.5(a) is the statement which notes that assessing permanent impairment involves clinical assessment on the day of assessment.
A clinical assessment of a claimant is one, but not the only, method of accumulating information about a claimant. Clearly, other medical reports about the claimant’s condition, histories obtained from independent observers such as members of the claimant’s family, and histories obtained from the claimant themselves, either in the past, as contained in medical reports, or in the process of a consultation, are all matters which are legitimately able to be taken into account.
Clause 1.13 of the WorkCover Guides cannot reasonably be read in the way contended for by the plaintiff. A reasonable reading of that clause underlines the usual process engaged in by a medical expert when assessing the presenting condition, the diagnosis, and the severity of the condition which is being presented. Clause 1.13 requires medical specialists to exercise their clinical judgment. Whilst it is correct to say that the words in the following sentence in clause 1.13 require the medical expert to determine a degree of permanent impairment ‘... using the tables, graphs and methodology given ...’ [emphasis in original], that does not mean that clinical judgment or assessment has no role to play in that process of determination of the degree of permanent impairment.
Particularly with the assessment of psychiatric or psychological impairment, so much, in my view, is self-evident. There is no objective method by which the extent of a psychiatric impairment can be measured, unlike the objective measurement of a restriction on a degree of movement in an upper limb, by way of example, or an objective, and measurable, assessment of the extent of loss of hearing or eyesight.
In assessing the extent of a psychiatric impairment, the WorkCover Guides require the AMS to determine from all of the material at their disposal, whether, in respect of each functional area, the degree of impairment fits into one of the classes which range from no impairment to total impairment.
The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted.”
In Jenkins, Garling J emphasises the importance of the clinical judgement of a Medical Assessor in applying the PIRS categories, and concludes (at [73]):
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
In accordance with Jenkins, as well as Parker, Ferguson and Pitsonis, for either party to succeed in showing that the Medical Assessor erred in his findings as to the worker in relation to any of the PIRS categories, they need to show that a relevant finding did not involve merely a disagreement or a difference in opinion. They otherwise would be cavilling with the clinical judgement of the Medical Assessor. Alternatively, they need to show that the Medical Assessor did not explain his path of reasoning in sufficient detail, such that speculation is involved in determining whether a finding does indeed involve merely a disagreement or a difference of opinion, or whether it involves error.
The assessment that a Medical Assessor undertakes of a worker’s permanent impairment is an administrative task, and consequently there is a presumption of regularity that a medical assessor has attended to all matters necessary to undertake the task of assessing a worker’s permanent impairment. In Bojko v ICM Property Service Pty Ltd & Ors [2009] NSWCA 175, Handley AJA stated (at [36]) why the appellant failed in that case:
“The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘... a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. ... the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
In Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz), Basten JA (at [34]) stated:
“Questions as to the adequacy of the reasons given by an approved medical specialist are different in kind. Although reasons are required so that the unsuccessful party may know why he or she has failed, it does not follow that a medical specialist has to give reasons which are immediately comprehensible to a person with no medical expertise. For example, a medical expert speaking to other practitioners might say that some degree of impairment was self-evidently caused by a pre-existing condition, despite the fact that the person was asymptomatic prior to the injury. On the other hand, such a conclusion may be medically contestable. In order for the applicant to succeed in this Court in asserting inadequacy of reasons, there must at least be material properly before the Court which demonstrates that the opinion falls into the latter category.”
A Medical Assessor’s reasons for his/her findings need to be such, so that an appellant and a respondent, as well as an appeal panel, can comprehend why a worker’s permanent impairment is found at a certain level. The reasons need to explain the actual path of reasoning followed by a medical assessor. In Western Sydney Local Health District v Chan [2015] NSWSC 1968, Adams J (at [13]) saw the role of a Medical Assessor as analogous to the role of the Victorian Medical Panel discussed by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Wingfoot). At [55] in Wingfoot, the plurality of the High Court stated as follows:
“The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”

Self-care and personal hygiene

In relation to this PIRS category, the Guidelines describe the following in Table 11.1:
“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.”
The Medical Assessor placed the worker in Class 3 and gave reasons:
“Mr Keogh has significant support from his wife. He attends to hygiene without prompting but often skips meals. He contributes to housework, including cleaning, meal preparation and shopping. He takes no exercise. However, he is drinking in a hazardous manner, starting in the morning and consuming excessive alcohol during the day, a pattern which poses a significant risk to his psychological, social and physical well-being.”
In the opinion of the Appeal Panel, the Medical Assessor has revealed his actual path of reasoning in this regard, in accordance with Vitaz and Wingfoot. It is clear what matters he has taken into account in making the Class 3 finding.
The Medical Assessor has largely concentrated upon the worker’s alcohol abuse in making the Class 3 finding, which he describes as hazardous. As pointed out by the worker (see paragraph 40 above) the respondent ignores this alcohol abuse when making its submissions.
While alcohol abuse is not specifically mentioned in the relevant descriptors for a Class 3 finding, those descriptors are examples only (in accordance with paragraph 11.12 of the Guidelines and as explained in Jenkins) and not exhaustive. The Appeal Panel has no difficulty in accepting that alcohol abuse (especially alcohol abuse as significant as the worker’s) is highly relevant when assessing ‘self-care and personal hygiene’.
The Medical Assessor however also concentrates upon the support that the worker needs and receives from his wife, his lack of exercise, and his irregular eating as factors to justify the Class 3 finding.
While the worker showers and cleans his teeth almost on a daily basis, that is only one factor to be taken into account when assessing ‘self-care and personal hygiene’. The worker’s ability to care for his children and perform domestic tasks is arguably another factor, although it is also arguably a factor involving caring for others rather than self-care.
In any case, as also explained in Jenkins, it is for the Medical Assessor to exercise his clinical judgement in weighing up all relevant factors and all evidence at his disposal in order to determine into which class the worker fits. There is no objective measure in this regard.
It is only if the finding of the Medical Assessor is such that the finding involves more than a mere difference of opinion on a subject about which reasonable minds may differ, that the Medical Assessor will have erred. The Appeal Panel does not consider there to be such a difference of opinion in this regard. Indeed, the Appeal Panel agrees with the relevant Class 3 finding, and notes that Associate Professor Robertson does also.
In arriving at this conclusion, the Appeal Panel notes that the history obtained by the Medical Assessor is broadly consistent with both the worker’s 19 February 2024 statement, as well as the histories obtained by Associate Professor Robertson and Dr Chew.

In his statement, the worker:
(a)    describes drinking approximately six to eight beers per day - he takes medication to curb his craving for alcohol but “it has not been overly effective in relation to my drinking beer”;
(b)    describes his wife as “incredibly supportive”;
(c)    says that he struggles with maintaining self-care and at times may not shower for two days, and
(d)    says that he has a poor appetite and regularly misses meals.
Associate Professor Robertson also notes the worker’s struggles with alcohol and eating more than one meal per day. The doctor does however obtain a more significant history than the Medical Assessor in relation to the worker’s reluctance to brush his teeth, wash or change his clothes.
Dr Chew’s recording of the worker’s alcohol consumption is even more concerning:
“He said that he lies about his drinking and covers it up. He worries that his wife would be shocked. He said he told Dr Stevenson he drinks about six a day and his GP about eight today [sic] but in reality he drinks about 12 a day. He said that he had seven beers prior to my assessment. He told me that he realised that this was hazardous drinking and was open to trying to change this and receive some treatment to help this. He said he was not ready for abstinence but wanted to cut down.”
Dr Chew describes the worker as “mildly dishevelled”, but otherwise does not take a significant history regarding his hygiene habits. The doctor does note the worker’s ability to prepare his children for school and pick them up after school.
In all the circumstances, the Appeal Panel does not find error in the Medical Assessor’s Class 3 finding for the worker, in relation to ‘self-care and personal hygiene’.

Social and recreational activities

In relation to this PIRS category, the Guidelines describe the following in Table 11.2:
“Class 2 - Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 - 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.”
The Medical Assessor placed the appellant in Class 2 and gave reasons:
“He has reduced social interaction but attends an RSL club every six weeks. He goes to his children’s sporting activities, training and games, where he interacts with other parents if he is familiar with them. He has gone on two family holidays in 2023, one with his wife’s extended family. He sees one friend regularly. He is uncomfortable with unfamiliar people or crowds.”
Again, in the opinion of the Appeal Panel, the Medical Assessor has revealed his actual path of reasoning in this regard, in accordance with Vitaz and Wingfoot. It is clear what matters he has taken into account in making the Class 2 finding. He bases his reasoning on the detailed history that he obtained from the worker (see paragraph 34 above).
That history is to a degree inconsistent with the worker’s 19 February 2024 statement, which:
(a)    advises that he tries to avoid contact with people whom he does not know;
(b)    advises that he is “quiet and withdrawn around others” and prefers to stay at home;
(c)    advises that he no longer goes to his local hotel;
(d)    advises that he only occasionally takes his dog for a walk;
(e)    advises that his family rarely entertain visitors or “go out as a family”;
(f)    advises that he has stopped reading,
(g)    advises – “I have improved on travelling independently, taking walks alone to the beach, and occasionally picking up my children when my mood allows. However, I tend to avoid travelling when I anticipate being in the company of others, even friends and family”.
The Medical Assessor’s Class 2 finding also differs to Associate Professor Robertson’s Class 3 finding, Associate Professor Robertson advising:
“He isolates. If he is forced to take his children to their sporting games, he will not interact with other parents and “cuts a solitary figure”. He will not eat his meal with his family. Any forced attendance at family occasions will see him abandoned after around 30 minutes.”
As noted at paragraph 36 above, the Medical Assessor explains that the differences between his assessment of the worker’s permanent impairment and Associate Professor Robertson’s assessment, are due to the specific history which he obtained from the worker. In relation to ‘social and recreational activities’, the Medical Assessor emphasises:
“Mr Keogh told me that he likes to take his children to sporting games and interacts with other parents if he has known them for a while. He goes out with his family to an RSL every six weeks and has gone on holidays to Cairns and Gosford within the last year or 18 months. He has one friend with whom he continues to catch up regularly. He said that they “muck around” without elaborating more precisely.”
The worker submits (see paragraphs 43-44 above) that the history obtained by the Medical Assessor in this regard contains factual errors, but the Appeal Panel accepts the respondent’s submission (see paragraph 46 above) that the worker is cavilling with the clinical judgement of the Medical Assessor in this regard. In accordance with Pitsonis, the alleged factual errors are not demonstrable on the face of the MAC.
The Appeal Panel also notes:
(a)    the detailed history obtained by the Medical Assessor (see paragraph 34 above) regarding the worker’s psychological symptoms, and how they impact upon his social and recreational activities – this is a more detailed history, in the opinion of the Appeal Panel, than the histories provided either in the worker’s 19 February 2024 statement, or in Associate Professor Robertson’s report;
(b)    the history taken by the Medical Assessor is considered to be more independent and reliable than the history in the worker’s 19 February 2024 statement, as it was taken during a clinical examination with the opportunity for questioning and clarification;
(c)    the history taken by the Medical Assessor (on 27 March 2024) is more recent than the history in the worker’s 19 February 2024 statement or the history taken by Associate Professor Robertson in his 20 June 2023 report, and
(d)    the Medical Assessor specifically noted in the MAC the opportunity which he had provided to the worker (see paragraph 45 above) at the end of the worker’s clinical examination by him, to add to the history which the worker had provided.
The importance of the clinical judgement of a medical assessor is emphasised by the authorities. In those circumstances, having explained his reasoning as to his Class 2 finding, and having also explained why his reasoning differs to Associate Professor Robertson’s, the Appeal Panel can find no error with the Medical Assessor’s finding.
On the evidence before the Medical Assessor, the Appeal Panel agrees with the Class 2 finding. It certainly cannot be said that the finding involves more than a mere difference of opinion on a subject about which reasonable minds may differ, in order to establish error with the finding.
In all the circumstances, the Appeal Panel does not find error in the Medical Assessor’s Class 2 finding for the worker, in relation to ‘social and recreational activities’.

Summary

For the reasons above, both the first Appeal and the second Appeal fail.
The Appeal Panel has determined that the MAC issued on 2 April 2024 should be confirmed.

[2025] NSWPICMP 629

21 August 2025