Psychiatric Injury WPI Assessment: Is the Medical Assessor’s PIRS evaluation and s323 deduction for pre-existing condition legally sound on appeal?

Based on the authentic Australian judicial case Broomhall v State of New South Wales (Fire & Rescue NSW) [2025] NSWPICMP 172, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information:

Court of Hearing: New South Wales Personal Injury Commission Medical Appeal Panel (NSWPICMP)
Presiding Judge: Member Carolyn Rimmer (for the Appeal Panel)
Cause of Action: Psychiatric injury arising from employment
Judgment Date: 17 March 2025

Core Keywords:

Keyword 1: Authentic Judgment Case
Keyword 2: Psychiatric injury
Keyword 3: Whole Person Impairment (WPI)
Keyword 4: Medical Assessor’s Certificate (MAC)
Keyword 5: PIRS (Psychiatric Impairment Rating Scale)
Keyword 6: Section 323 deduction

Background:

The Appellant, Susan Broomhall, a performance reporting analyst, sustained a psychological injury during the course of her employment with the Respondent, State of New South Wales (Fire & Rescue NSW), with a deemed date of injury of 20 August 2021. She initiated proceedings in the Personal Injury Commission, seeking 19% Whole Person Impairment (WPI) compensation under section 66 of the Workers Compensation Act 1987. This claim was referred to a Medical Assessor for evaluation.

Core Disputes and Claims:

The central legal dispute revolved around the Medical Assessor’s determination, issued on 5 December 2024, which assessed the Appellant’s WPI at 8%, with a subsequent one-tenth deduction for a pre-existing condition, resulting in a final 7% WPI. The Appellant appealed this decision, arguing that the Medical Assessor’s assessment contained demonstrable errors and/or applied incorrect criteria in several key areas. The Appellant sought to have the MAC revoked and substituted with a new certificate reflecting a higher impairment and no deduction.

Chapter 2: Origin of the Case

The genesis of this litigation lies in the Appellant’s psychological injury, deemed to have occurred on 20 August 2021, while working as a performance reporting analyst for Fire & Rescue NSW. Following this injury, the Appellant sought permanent impairment compensation. The matter proceeded to the Personal Injury Commission, where a Certificate of Determination – Consent Order was issued on 24 September 2024 by Member Jacqueline Snell. This order remitted the Appellant’s claim for permanent impairment to the President for referral to a Medical Assessor. The assessment was to focus on a psychological/psychiatric disorder, with a whole person impairment method, for an injury deemed on 20 August 2021. This procedural step set the stage for the Medical Assessor’s evaluation, which subsequently became the subject of the present appeal.

Chapter 3: Key Evidence and Core Disputes

Appellant’s Main Evidence and Arguments:

The Appellant’s arguments hinged on challenging the Medical Assessor’s application of the Psychiatric Impairment Rating Scale (PIRS) across several categories, the failure to diagnose an Alcohol Use Disorder, and the application of a section 323 deduction.
* PIRS – Social and Recreational Activities: The Appellant contended the Medical Assessor erroneously assessed Class 2 (mild impairment), asserting that her circumstances warranted Class 3 (moderate impairment). She argued that activities like yoga and boxing were not inherently “social” and that her participation in family outings like the Canberra trip and Royal Easter Show (where she experienced a panic attack) was not indicative of social engagement without the need for support, which is characteristic of Class 3.
* PIRS – Concentration, Persistence and Pace: The Appellant argued that her struggles with attention and memory, inability to read beyond newspaper articles, and difficulty with complex instructions (as evidenced by forgetting to turn off a stove) pointed to Class 3 impairment, not the assessed Class 2. She challenged the Medical Assessor’s reliance on her writing and podcasting activities, stating her children often wrote the books and these were voluntary, self-paced activities, unlike structured employment.
* PIRS – Employability: The Appellant submitted that Class 5 (totally impaired) should apply, rather than the assessed Class 4 (severe impairment). She argued the Medical Assessor’s view of her work capacity was misconceived, inconsistent with the consensus of other medical opinions, and based on an erroneous conflation of voluntary activities with paid employment. She also highlighted the Medical Assessor’s own concession that it was “untested whether she would cope in a structured work environment.”
* Failure to Diagnose Alcohol Use Disorder: The Appellant argued that the Medical Assessor’s failure to diagnose an Alcohol Use Disorder (despite acknowledging her drinking “to excess”) was a material omission that rendered the impairment assessment unreliable, particularly concerning its impact on concentration and employability.
* Section 323 Deduction: The Appellant contended that the one-tenth deduction for a pre-existing condition was erroneous. She argued there was no evidence of a psychological illness prior to her employment-related stressors. She cited treating doctors who reported “no previous psychiatric history” and argued that the Medical Assessor’s deduction was unsupported by evidence and contrary to s 323 and Guideline 11.10.

Respondent’s Main Evidence and Arguments:

The Respondent argued that the Medical Assessor’s assessment was sound, based on clinical experience, and adequately reasoned.
* PIRS – Social and Recreational Activities: The Respondent submitted that the Medical Assessor took a thorough history, noted inconsistencies in the Appellant’s self-report, and correctly cross-referenced it with documentary evidence. Activities like yoga and boxing were considered social and recreational. The Appellant’s participation in family holidays (Canberra, National Gallery) and events (Royal Easter Show) post-injury supported a Class 2 assessment, accounting for occasional participation. The Appellant’s history was deemed unreliable, justifying the Medical Assessor’s informed clinical opinion.
* PIRS – Concentration, Persistence and Pace: The Respondent argued that the Medical Assessor appropriately considered all evidence, noting that deviation from specific examples in the Guidelines does not constitute error. They highlighted the Appellant’s ability to give a coherent 100+ minute history, write books/articles, and participate in podcasts as evidence of concentration, persistence, and pace, which contradicted her subjective complaints.
* PIRS – Employability: The Respondent asserted that the Medical Assessor was not bound by other medical opinions and appropriately used his clinical judgment. They contended that the Appellant’s writing and podcasting, though voluntary, were “work-like tasks” consistent with her previous employment, indicating some work capacity. The Class 4 assessment (severe impairment) was justified, accounting for her inability to sustain full-time work and potential erratic attendance.
* Failure to Diagnose Alcohol Use Disorder: The Respondent argued that the Medical Assessor was at liberty to determine psychiatric diagnoses based on presentation and evidence. They highlighted that while the Medical Assessor acknowledged other doctors’ diagnoses, he was not obligated to follow them. They also noted the Appellant’s own report that her alcohol intake was “under control” and that she did not report substantial impacts on daily living, justifying the decision not to formally diagnose AUD.
* Section 323 Deduction: The Respondent maintained that the deduction was justified based on documentary evidence. They pointed to Dr Subbamma’s notes from 2003-2008 showing a “significant history of anxiety and depression” requiring medication, contradicting the Appellant’s denial of prior conditions. They argued that these pre-existing conditions contributed to the current impairment, aligning with Holmes v Secretary, Department of Education. They contended that the Medical Assessor adequately explained the basis for the deduction, which was reasonable even if the Appellant was asymptomatic.

Core Dispute Points:

1. Interpretation of PIRS Scales: Whether the Medical Assessor correctly applied the criteria for “Social and Recreational Activities,” “Concentration, Persistence and Pace,” and “Employability,” particularly regarding the definition of “social” activities, the nature of voluntary versus paid work, and the weight given to the Appellant’s self-report versus objective evidence.
2. Diagnosis of Alcohol Use Disorder: Whether the Medical Assessor erred by not formally diagnosing an Alcohol Use Disorder, and whether such a diagnosis would materially impact the overall WPI assessment.
3. Application of Section 323 Deduction: Whether the Medical Assessor correctly identified and proportioned a deduction for a pre-existing condition, given conflicting medical histories and the legal requirements for such deductions.

Chapter 4: Statements in Affidavits

In the litigation process, affidavits serve as crucial legal instruments where parties present their version of facts and evidence under oath. In this case, the detailed contents of the Appellant’s statement dated 23 January 2023 were a central focus. The Appellant’s self-report within this affidavit initially painted a picture of severe social isolation and cognitive difficulties, such as struggling to read, memory impairment, and being easily agitated.

However, the analysis of the affidavits also revealed a discrepancy. When confronted with other documentary evidence, the Appellant’s initial narrative evolved. For instance, her initial denial of social media use or participation in activities like yoga and boxing was later challenged by records, leading her to acknowledge these activities. This discrepancy highlights the critical function of affidavits not merely as statements of fact, but as carefully constructed legal narratives. The strategic intent behind the Judge’s procedural directions regarding affidavits is to ensure a thorough examination of all asserted facts, often by cross-referencing them with other evidence. This process is designed to test the veracity of claims, identify inconsistencies, and ultimately delineate the boundary between subjective experience and objectively verifiable facts, which is paramount in determining a reliable assessment of impairment.

Chapter 5: Court Orders

Prior to the final hearing of the appeal, the Commission issued a Certificate of Determination – Consent Order on 24 September 2024. This order notably remitted the Appellant’s claim for permanent impairment compensation to the President for referral to a Medical Assessor under section 321 of the Workplace Injury Management and Workers Compensation Act 1998. The assessment was specifically directed to consider a “psychological/psychiatric disorder” as the body system, with “whole person impairment” as the method of assessment, and the date of injury deemed as 20 August 2021. The order also stipulated the documents to be reviewed by the Medical Assessor, including the Application to Resolve a Dispute, the Reply (with specific exclusions of certain medical reports), and any late documents admitted by the Respondent. Furthermore, it directed that the Appellant’s claims for weekly compensation and medical expenses be stood over until the Medical Assessment Certificate was issued and the appeal period for it had passed.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The Appeal Panel’s review served as the ultimate showdown of evidence and logic, meticulously dissecting the Medical Assessor’s findings against the backdrop of the Appellant’s challenges. The process involved a rigorous examination of the Medical Assessor’s report, other medical opinions, and the Appellant’s own varying accounts.

The core confrontation revolved around the credibility of the Appellant’s self-reported history versus objective documentary evidence. The Medical Assessor explicitly found “significant inconsistencies” in the Appellant’s presentation, noting her initial denials of pre-existing mental health issues and various activities which were later contradicted by records. This led the Medical Assessor to conclude:

“This narrative is not credible. Given the difficulty in getting a reliable history, I have relied on documentary evidence where it is available and accepted the history provided by Ms Broomhall, where there is nothing to challenge it directly. This is a conservative approach aimed at giving Ms Broomhall the benefit of the doubt, where possible.”

This statement was determinative in shaping the Medical Assessor’s ratings across multiple PIRS categories. The Appeal Panel, having reviewed all the evidence, largely upheld the Medical Assessor’s methodology, acknowledging the inherent difficulty in assessing an unreliable historian. The Panel underscored that the Medical Assessor was entitled to form his own clinical judgment, weighing the totality of the evidence.

For instance, regarding “Social and Recreational Activities,” the Appellant’s claims of isolation were juxtaposed against evidence of regular yoga and boxing classes, and family outings. The Appeal Panel held that:

“The Appeal Panel considers that the Medical Assessor has not erred in his characterisation of the yoga and boxing activities undertaken by the appellant as fitting within ‘social and recreational activities’. The evidence considered by the Medical Assessor is that the appellant would attend the yoga classes twice a week and she sat separately from the class and her teacher understood her situation. The Medical Assessor also considered the evidence that the appellant attends boxing class perhaps every three weeks with her husband. The attendance by the appellant at these yoga and boxing classes shows an established, frequent and regular pattern of attendance although she remains withdrawn in her yoga classes. Further, the Appeal Panel does not consider that the appellant would be totally isolated in her boxing and yoga classes as the nature of such an activity, particularly the former, involves some degree of interaction.”

This highlights the Court’s focus on the objective patterns of activity rather than solely the Appellant’s subjective experience of isolation.

Chapter 7: Final Judgment of the Court

The Medical Appeal Panel ultimately confirmed the Medical Assessment Certificate (MAC) issued on 5 December 2024.

The Appeal Panel found:
* Social and Recreational Activities: No demonstrable error or incorrect criteria in the Medical Assessor’s assessment of Class 2 impairment.
* Concentration, Persistence and Pace: No demonstrable error or incorrect criteria in the Medical Assessor’s assessment of Class 2 impairment.
* Employability: No demonstrable error or incorrect criteria in the Medical Assessor’s assessment of Class 4 impairment.
* Failure to Diagnose Alcohol Use Disorder: No demonstrable error or incorrect criteria in the Medical Assessor’s decision not to formally diagnose Alcohol Use Disorder.
* Section 323 Deduction: No demonstrable error or incorrect criteria in the Medical Assessor’s application of a one-tenth deduction for a pre-existing condition.

The Medical Assessment Certificate was thereby confirmed in its entirety.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis:

This case offers significant jurisprudential value by reiterating the principles governing the review of Medical Assessor Certificates, particularly regarding the challenges posed by unreliable historical accounts from an appellant. It underscores that Medical Assessors are not mere conduits for self-reported histories but independent experts required to weigh all available evidence, including objective records, against subjective complaints. The Panel’s detailed scrutiny of how “social and recreational activities” and “employability” are defined and assessed within the PIRS Guidelines provides clarity for future psychiatric impairment evaluations. The decision to uphold the s323 deduction, even for an asymptomatic pre-existing condition, highlights the broad interpretative power of Medical Assessors in identifying contributing factors to overall impairment, aligning with recent appellate authority.

Judgment Points:

• Credibility of Self-Report: The Panel consistently highlighted the Appellant’s “unreliable historian” status, demonstrating how inconsistencies in an appellant’s narrative significantly impact the weight given to their subjective complaints.
• Definition of Social/Recreational Activities: The Panel affirmed that activities like yoga and boxing, even if performed with a degree of withdrawal or with a family member present, can still be characterised as “social and recreational” for impairment assessment purposes, particularly when demonstrating a regular pattern of engagement.
• Voluntary vs. Paid Employment: The Panel rejected a strict conflation of voluntary work-like activities with paid employment, but acknowledged that such activities (e.g., writing books, podcasting) nonetheless demonstrate residual work capacity relevant to employability.
• Diagnosis of Alcohol Use Disorder: The Panel clarified that merely exceeding recommended alcohol intake or a diagnosis by another doctor does not automatically mandate a formal diagnosis of Alcohol Use Disorder by the Medical Assessor for WPI purposes, especially if DSM-5 criteria are not explicitly met.
• S323 Deduction for Asymptomatic Conditions: The Panel reiterated that a deduction for a pre-existing condition, even if asymptomatic at the time of injury, is permissible under section 323, provided there is evidence of a prior condition contributing to the overall impairment.

Legal Basis:

The Court’s decision was fundamentally rooted in its interpretation and application of:
* Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act): Specifically sections 327(3)(b)(c) and (d) (grounds of appeal for incorrect criteria and demonstrable error) and s 323 (deductions for pre-existing conditions).
* SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines): Particularly Table 11.2 (Social and Recreational Activities), Table 11.5 (Concentration, Persistence and Pace), and Table 11.6 (Employability), as well as Clause 11.10 (deductions for pre-existing conditions).
* American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5): As the overarching framework for impairment evaluation.

Evidence Chain (Successful Party):

The Respondent’s success was built upon a robust chain of objective evidence and a critical examination of the Appellant’s self-report:
* Medical Assessor’s MAC: The detailed MAC dated 5 December 2024, outlining findings on examination and a reasoned analysis of the PIRS scales and s323 deduction.
* Procare Desktop Investigation report (29 January 2024): This report was crucial, detailing the Appellant’s role as a director/shareholder, author of two books, participation in YouTube videos/podcasts, active online presence across social media (including posts about her books and views), and articles she published. This directly contradicted her initial claims of isolation and inability to concentrate.
* Appellant’s own statements (under cross-examination): When confronted with documentary evidence, the Appellant admitted to attending yoga and boxing classes, and participating in family holidays (Canberra, National Gallery, Royal Easter Show). She stated writing was “easy” for her and she was a “prolific writer.”
* Dr Subbamma’s clinical notes (2003-2008): These records provided clear evidence of a pre-existing history of depression and anxiety, including prescriptions for multiple antidepressant medications, which directly contradicted the Appellant’s initial denial of any prior mental health issues.
* Medical Assessor’s clinical observations: The Medical Assessor’s own observation that the Appellant provided a “coherent history” in an assessment lasting over 100 minutes, demonstrating concentration.

Judicial Original Quotation:

On the central issue of the Appellant’s credibility and the impact on the assessment, the Medical Assessor noted:

“There are significant inconsistencies in Ms Broomhall’s presentation. She denied any pre-existing mental health problems and failed to mention activities such as yoga, boxing classes, her book writing, her Internet presence and other activities until specifically challenged with the records. She then described the activities as insignificant, said she couldn’t remember or indicated they had stopped. This narrative is not credible. Given the difficulty in getting a reliable history, I have relied on documentary evidence where it is available and accepted the history provided by Ms Broomhall, where there is nothing to challenge it directly. This is a conservative approach aimed at giving Ms Broomhall the benefit of the doubt, where possible.”

This statement was pivotal, establishing the foundation for the Medical Assessor’s departure from the Appellant’s subjective narrative. The Appeal Panel endorsed this approach, finding it a reasonable exercise of clinical judgment in light of the Appellant’s unreliable history. It permitted the Medical Assessor to give greater weight to objective evidence over inconsistent self-reports.

Analysis of the Losing Party’s Failure:

The Appellant’s appeal ultimately failed due to a combination of factors:
1. Inconsistent and Unreliable History: The most critical failing was the Appellant’s inconsistent self-report, which the Medical Assessor repeatedly highlighted and which the Appeal Panel upheld as justifiable grounds for discounting her narrative. This undermined the credibility of her claims across all PIRS categories.
2. Misinterpretation of PIRS Criteria: The Appellant’s arguments regarding what constitutes “social and recreational activities” (e.g., yoga/boxing not social, family outings not relevant) and “work-like tasks” (e.g., writing/podcasting not employment-compatible) were rejected. The Appeal Panel affirmed the Medical Assessor’s broader interpretation of these terms within the Guidelines.
3. Lack of Definitive Alcohol Use Disorder Diagnosis: The Appellant’s submission that the Medical Assessor failed to diagnose an Alcohol Use Disorder was unsuccessful. The Appeal Panel found no error, noting that the reported history did not meet formal diagnostic criteria (DSM-5/ICD-11), and that the Medical Assessor had adequately considered the impact of alcohol use within the “Self-care” scale.
4. Strong Evidence of Pre-existing Condition: The Appellant’s denial of any pre-existing psychiatric history was directly contradicted by detailed clinical notes from her GP dating back to 2003-2008, which clearly documented depression and anxiety requiring antidepressant medication. This objective evidence provided a robust foundation for the s323 deduction.
5. Failure to Establish Material Error: Despite identifying a minor potential mischaracterisation by the Medical Assessor (re: visiting her brother as social/recreational vs. social functioning), the Appeal Panel determined this was not a “material error” sufficient to alter the overall Class rating.

Key to Victory:

The Respondent’s victory was anchored in the Medical Assessor’s thorough and critical approach to evidence. By meticulously cross-referencing the Appellant’s inconsistent subjective history with objective documentary evidence (Procare report, GP notes, online presence), the Medical Assessor was able to justify his clinical judgment. The consistent documentation of the Appellant’s pre-existing mental health issues from early 2000s directly contradicted her later denials, providing a solid basis for the s323 deduction. Furthermore, the objective evidence of her engagement in complex intellectual and publicly visible activities (writing, podcasting, online activism) served as powerful counter-evidence to her claims of severe cognitive and social impairment.

Reference to Comparable Authorities:

• Campbelltown City Council v Vegan [2006] NSWCA 284 – The Appeal Panel is obliged to give reasons.
• Ballas v Department of Education (State of NSW) [2020] NSWCA 86 – The characterisation of conduct into PIRS scales is not a matter of discretion; incorrect assignment results in taking into account an irrelevant consideration. (Distinguished by the Appeal Panel).
• Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 – Discussed the proper construction of “social and recreational” scale.
• Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 – Examples in Guidelines are not the sole or minimum basis for assessment; they explore how psychiatric conditions impact daily living.
• John Fairfax Publication Pty Ltd v Ankica Gadzuric NSWWC MA 197 (16 June 2009) – Medical Assessor not required to follow opinions of parties’ doctors, nor refer to every piece of evidence.
• Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 – MAC is to be read as a whole, not “with an eye keenly attuned to the perception of error.”
• Holmes v Secretary, Department of Education [2024] NSWPICMP 17 – Upheld s323 deduction where pre-existing conditions contributed significantly to current impairment, even if asymptomatic.
• Marks v Secretary, Department of Communities and Justice (No.2) [2021] NSWSC 615 – Section 323(1) requires a deduction for a pre-existing condition. Guideline 11.10 (asymptomatic conditions) was found inconsistent with s 323(1) in this case.

Implications

1. Truthfulness is Paramount: This case powerfully illustrates that an inconsistent or unreliable account of your medical history and current functioning can severely undermine your legal claim. Be prepared for your narrative to be rigorously cross-referenced with all available evidence, and deviations can be highly detrimental.
2. Objective Evidence Trumps Subjective Claims: While your personal experience is vital, objective evidence (like medical records, online activity, or documented participation in activities) will carry significant weight in legal assessments. Documenting activities, even if performed with difficulty, can be critical.
3. Defining “Social” and “Work-like” Matters: The legal definitions of terms like “social and recreational activities” and “employability” within impairment guidelines are broader than everyday understanding. Activities like online engagement, writing, or attending classes, even if modified due to your condition, can be viewed as indicators of functional capacity.
4. Pre-existing Conditions are Key: Even if a prior medical condition was asymptomatic or in remission, if there’s a documented history, it can be considered a contributing factor to current impairment. Be transparent about your full medical history, as objective records can be highly persuasive.
5. Legal Experts for Complex Assessments: Navigating impairment guidelines and legal deductions can be incredibly complex. This case highlights the critical need for expert legal and medical advice to ensure your case is presented robustly and effectively, anticipating potential challenges to your narrative and evidence.

Q&A Session

Q1: The Appellant claimed her children wrote her books, but the Medical Assessor said she wrote them. Which version did the Appeal Panel accept?
A1: The Appeal Panel accepted the Medical Assessor’s finding that the Appellant had written and promoted the books herself. Despite the Appellant’s later assertion to Dr Hong that her children wrote the books, the Medical Assessor was satisfied that writing was easy for her and that she had been a prolific writer, which was supported by objective evidence of her self-published books and online promotional activities. This finding was crucial in assessing her cognitive and employability scales.

Q2: The Appellant argued that her alcohol consumption should have led to a diagnosis of Alcohol Use Disorder by the Medical Assessor. Why did the Appeal Panel reject this?
A2: The Appeal Panel rejected this because, based on the history provided, the Appellant’s drinking patterns did not meet the specific diagnostic criteria for Alcohol Use Disorder under DSM-5 or ICD-11. Simply drinking more than recommended limits or another doctor making such a diagnosis was not sufficient. There was no evidence presented of cravings, withdrawal symptoms, or an inability to cut down, which are key diagnostic features. The Medical Assessor was aware of her alcohol consumption but, using clinical judgment, correctly determined that the criteria for a formal diagnosis were not met for the purpose of the impairment assessment.

Q3: The Appeal Panel upheld a deduction for a pre-existing condition, even though the Appellant claimed she had no prior psychiatric history. How was this justified?
A3: The Appeal Panel justified this deduction based on extensive clinical entries from the Appellant’s general practitioner dating back to 2003-2008. These records, which documented depression and anxiety treated with multiple antidepressant medications, directly contradicted the Appellant’s denial of any pre-existing mental health problems. The Panel confirmed that even if the Appellant was asymptomatic or in remission at the time of the work injury, this chronic relapsing condition contributed to the overall impairment. This aligns with legal precedent that deductions under section 323 are required for prior conditions, even if latent.

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Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case
   Case Subtype: Personal Injury and Compensation – Workers Compensation – Psychiatric Injury Permanent Impairment Dispute
   Judgment Nature Definition: Final Judgment

2. Self-examination of Core Statutory Elements

   Core Test (Permanent Impairment under Workers Compensation Act 1987 (NSW) & Workplace Injury Management and Workers Compensation Act 1998 (NSW))

   • Section 66 (1987 Act) – Permanent impairment compensation: This section establishes the entitlement for permanent impairment compensation. The assessment relies on the degree of permanent impairment, typically calculated as a percentage of Whole Person Impairment (WPI).
   • Section 321 (1998 Act) – Referral to Medical Assessor: Provides for the referral of medical disputes (including permanent impairment) to a Medical Assessor for assessment.
   • Section 323 (1998 Act) – Deductions for pre-existing conditions: Requires the Medical Assessor to determine the proportion of impairment due to a previous injury or pre-existing condition. This deduction must be applied even if the pre-existing condition was asymptomatic at the time of the injury, if it is found to contribute to the current impairment.
   • Sections 327(3) & 328 (1998 Act) – Grounds of Appeal and Review: These sections outline the limited grounds upon which a Medical Assessment Certificate (MAC) can be appealed (e.g., demonstrable error, incorrect criteria applied) and the scope of the Appeal Panel’s review.
   • SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines):
     • PIRS Scales: The Psychiatric Impairment Rating Scale is used to assess functional impairment across six domains:
       • Self-care and Personal Hygiene: Ability to maintain personal hygiene and carry out basic self-care.
       • Social and Recreational Activities (Table 11.2): Ability to engage in social interaction and recreational pursuits. The examples are indicative, not exhaustive.
       • Travel: Ability to use public or private transport independently.
       • Social Functioning (Relationships): Ability to establish and maintain relationships.
       • Concentration, Persistence and Pace (Table 11.5): Ability to focus, maintain effort, and work at an acceptable speed. The examples are indicative, not exhaustive.
       • Employability (Table 11.6): Ability to secure and maintain employment.
     • Guideline 11.10 – Deductions: This guideline, though previously challenged regarding asymptomatic conditions, typically requires a Medical Assessor to quantify the contribution of pre-existing conditions.
   • American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5): The foundational document for impairment evaluation, providing methodology and criteria for WPI assessment.
   • Diagnostic and Statistical Manual of Mental Disorders, 5th ed (DSM-5) / International Classification of Diseases, 11th ed (ICD-11): Diagnostic criteria for mental health conditions, including Alcohol Use Disorder, which Medical Assessors may refer to for diagnosis.

Core Test (Damages – General):

• Whole Person Impairment (WPI) Threshold: For non-economic loss in psychiatric injury claims, a statutory threshold (e.g., >10% WPI for psychiatric injury in NSW) must be met for an entitlement to compensation under s 66 of the Workers Compensation Act 1987.
• Contributory Negligence: While typically seen in common law negligence claims, aspects of a worker’s pre-existing conditions or conduct may influence the final WPI assessment or deductions.

1. Equitable Remedies and Alternative Claims
   For Workers Compensation matters, statutory provisions are generally paramount. However, when statutory avenues are exhausted or result in an unfavourable outcome, certain principles can offer alternative considerations, though not typically as “counter-attacks” within a Medical Assessment Certificate appeal:
   • Procedural Fairness (Judicial Review): If there are strong grounds to argue that the Medical Assessor or Appeal Panel breached the rules of natural justice (e.g., failure to consider relevant evidence, bias, lack of opportunity to respond), a judicial review application to a higher court may be feasible. This is an appeal on a point of law, not the factual assessment itself.
   • Challenging the Basis of Guidelines (Validity Challenge): As demonstrated in Marks v Secretary, Department of Communities and Justice (No.2) [2021] NSWSC 615, the validity of a Guideline itself can be challenged if found inconsistent with the enabling Act. While the Appeal Panel in this case relied on Marks to interpret s323, this highlights that statutory avenues, even at the highest level, can be rigorously contested.

   Suggestion: In workers compensation, the most effective strategy is typically to meticulously present medical evidence and adhere strictly to the Guidelines and statutory requirements from the outset. Alternative common law doctrines are generally not available as direct remedies for challenging MACs.

2. Access Thresholds and Exceptional Circumstances

   Regular Thresholds:

   • WPI Threshold for Non-Economic Loss (Psychiatric Injury): For a psychiatric injury, permanent impairment compensation for non-economic loss (lump sum) typically requires the WPI to exceed a specific statutory threshold (e.g., 10% in NSW). The Medical Assessor’s role is to determine this percentage.
   • Time Limits for Claims: Strict time limits apply for lodging workers compensation claims and applications to resolve disputes (e.g., 6 months from the date of injury/cessation of payments for a dispute or within 3 years from injury if explanation for delay provided).
   • Appeal Period: A short statutory period (e.g., 28 days) usually applies for lodging an application to appeal a MAC.

   Exceptional Channels (Crucial):

   • Late Claims/Appeals: While strict, extensions may be granted for delays in lodging claims or appeals in certain circumstances, such as reasonable cause for delay or where it is just and equitable to do so.
   • New Evidence on Appeal: Although Medical Appeal Panel reviews are generally limited to the evidence before the Medical Assessor, new evidence may be admitted in exceptional circumstances, if it could not reasonably have been obtained before, and is likely to have a material impact on the outcome.

   Suggestion: Do not abandon a potential claim simply because you do not meet the standard time or conditions. Carefully compare your circumstances against the exceptions above, as they are often the key to successfully filing a case or appeal.

3. Guidelines for Judicial and Legal Citation

   Citation Angle:

   It is recommended to cite this case in legal submissions or debates involving challenges to Medical Assessment Certificates for psychiatric injuries, particularly concerning the interpretation and application of PIRS scales (Social and Recreational Activities, Concentration Persistence and Pace, Employability), the approach to diagnosing (or not diagnosing) co-morbid conditions like Alcohol Use Disorder in impairment assessments, and the validity and application of section 323 deductions for pre-existing conditions, especially where there are inconsistencies in an appellant’s reported history.

   Citation Method:

   • As Positive Support: When your matter involves an appellant with an inconsistent or unreliable history, or where objective evidence (e.g., online activity, past medical records) contradicts subjective claims of severe functional impairment, citing Broomhall v State of New South Wales (Fire & Rescue NSW) [2025] NSWPICMP 172 can strengthen your argument that the Medical Assessor is justified in relying on objective evidence and exercising their clinical judgment to rate impairment lower than subjectively claimed. This case also provides support for applying s323 deductions where a clear history of a pre-existing condition, even if asymptomatic at the time of injury, is present in medical records.
   • As a Distinguishing Reference: If the opposing party cites this case, you should emphasize the unique aspects of the current matter. For instance, if your client’s history is consistently reliable, if objective evidence supports a higher impairment rating, or if a co-morbid condition like Alcohol Use Disorder is clearly diagnostically established and demonstrably impacts impairment levels, you can argue that these distinct factors make the precedent in Broomhall not applicable.
   • Anonymisation Rule: Do not use the real names of the parties; strictly use professional procedural titles such as Appellant / Respondent.

Conclusion

The Broomhall v State of New South Wales (Fire & Rescue NSW) judgment serves as a profound reminder of the intricate balance between subjective experience and objective evidence in legal assessments of psychiatric impairment. It reinforces that a Medical Assessor’s role extends beyond merely recording an appellant’s narrative, demanding rigorous scrutiny and the application of expert clinical judgment to all available facts. The Panel’s decision underscores the critical importance of a consistent and credible history, the broad interpretation of impairment criteria within the Guidelines, and the necessity of robust objective evidence to support claims. True self-protection stems from the early understanding and mastery of legal rules, particularly in diligently documenting one’s condition and ensuring transparency in all aspects of a claim.

Disclaimer

This article is based on the study and analysis of the public judgment of the Personal Injury Commission Medical Appeal Panel in Broomhall v State of New South Wales (Fire & Rescue NSW) [2025] NSWPICMP 172, aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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