DETERMINATION OF APPEAL PANEL	
	
CITATION:	Tremelling v Secretary, Department of Education [2025] NSWPICMP 248	
		
APPELLANT:	Harold Jay Tremelling	
		
RESPONDENT:	Secretary, Department of Education	
		
Appeal Panel		
		
MEMBER:	Parnel McAdam	
		
MEDICAL ASSESSOR:	Graham Blom	
		
MEDICAL ASSESSOR:	Douglas Andrews	
		
DATE OF DECISION:	9 April 2025	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); consideration of five of the six psychiatric impairment rating scales; role of the Medical Assessor(MA); State of New South Wales (NSW Department of Education) v Kaur discussed; section 323; MA took into account subsequent issues in error; section 323 redetermined; section 323 allows a deduction for an asymptomatic pre-existing condition; Vitaz v Westform (NSW) Pty Ltd applied; Held – MAC revoked and new certificate issued.	

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 30 December 2024,	Harold Jay Tremelling, 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 4 December 2024.
2.	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.
3.	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. 
4.	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.
5.	The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 
1 March 2021 (the Guidelines). 
RELEVANT FACTUAL BACKGROUND
6.	Mr Tremelling was employed by the respondent as a school learning support officer at Willyama High School in Broken Hill. He was diagnosed with diabetes, and spoke to the Principal of the school seeking breaks in the day to manage this, including checking blood glucose levels. He followed this up with the Principal, but during a meeting, he was accused of misconduct and told that he would be reported to professional ethics. 
7.	After a period of time chasing the outcome from that report, Mr Tremelling discovered that the Principal had in fact received an outcome many months earlier, but had not communicated that to Mr Tremelling. He ceased working on 1 April 2021. 
8.	A dispute arose as to weekly payments. That dispute was referred to the Personal Injury Commission (Commission) and determined by consent on 29 July 2022. 
9.	Mr Tremelling subsequently brought a claim for lump sum compensation. The dispute was referred, by consent, to a Medical Assessor by Member Strachan on 31 October 2024. Medical Assessor Gupta issued a MAC on 4 December 2024, assessing Mr Tremelling as suffering from 1% whole person impairment as a result of his injury. Mr Tremelling appeals against that assessment. 
PRELIMINARY REVIEW
10.	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.
11.	As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient material contained in the MAC and supporting evidence to determine the appeal. It is noted that the appellant has requested that he be re-examined by a Medical Assessor member of the Appeal Panel, or, in the alternative, be remitted to an alternative Medical Assessor. 
12.	In respect of the first point, the Appeal Panel considers that it is unnecessary to conduct a re-examination, for the reasons given above. In respect of the second point, the Appeal Panel’s powers in respect of the certificate are set out in s 328(5) of the 1998 Act: 
“The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.”
13.	The remedy sought is not one available to the Appeal Panel. Even were that the case, the Appeal Panel would not be satisfied that that is the appropriate course. 
EVIDENCE
Documentary evidence
14.	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
15.	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 
16.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
17.	The appellant challenges five of the six assessments made by the Medical Assessor under the Psychiatric Impairment Rating Scales (PIRS), as well as the Medical Assessor’s application of s 323 of the 1998 Act. In summary, the appellant submits that on each occasion under the challenged PIRS, the Medical Assessor’s conclusion is inconsistent with the history recorded, and in respect of s 323, there is no pre-existing condition for which an attributable impairment could be identified. 
18.	The respondent provides submissions in respect of each category under the PIRS, submitting that the class assessed by the Medical Assessor is accurate and there is no error identified. The respondent submits that in respect of s 323, there is evidence of a pre-existing condition that has been referred to by the Medical Assessor, supporting that Mr Tremelling had a pre-existing condition at the time of the injury. The respondent accepts that the reference to subsequent issues or developments is in error. 
FINDINGS AND REASONS 
19.	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. The appeal concerns the application of the PIRS according to the Guidelines, as well as s 323 of the 1998 Act, and accordingly the Appeal Panel’s consideration of the matter is limited to those issues (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made.”
20.	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.
21.	The appeal in this case concerns a psychological injury. All assessments of permanent impairment are undertaken “in accordance with” the Guidelines (s 322(1) of the 1998 Act). 
22.	For the purposes of assessing psychological injuries, there are six scales, known as the PIRS, “each of which evaluates an area of functional impairment” (cl 11.11 of the Guidelines). The appellant has challenged the Medical Assessor’s assessment in five of the PIRS. The scales give examples of activities that are to be taken into account when assessing the class of functional impairment. The class descriptors range from no or minor deficit, through to totally impaired. This is explained by Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887: 
“Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired by his injury, and the classes between are in an ascending order of impairment.”
23.	Each area of functional impairment provides a series of examples, that are “examples only” (cl 11.12). In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, Garling J considered the construction of the PIRS in the context of the examples given. He provided some commentary on the construction of the Guidelines: 
“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.” (at [57])
24.	The Appeal Panel will now turn to each functional area challenged by the appellant in turn, and then consider s 323 of the 1998 Act. 
Self care and personal hygiene
25.	The appellant Medical Assessor assessed Mr Tremelling as suffering from class 1 impairment in this PIRS. He provides the following reasons for this assessment in the PIRS rating form on page 12 of the MAC: 
“As described in the main body of the report, there is no impairment. He keeps himself clean and tidy and cooks a barbecue meal most nights. He can forget to eat but does not need prompting, and his appetite is maintained.”
26.	The appellant refers to the history taken by the Medical Assessor in the body of the MAC on pages 2-3. The appellant submits that on the history recorded by the Medical Assessor the applicant would be assessed at class 3, and class 1 impairment is completely at odds with the history taken. 
27.	The respondent submits that based on the history recorded, consistent with the Guidelines, class 1 impairment is accurate and there is no error in the Medical Assessor’s assessment under this PIRS.
28.	There are two aspects of the appellant’s submissions that must be noted. The first is that the history referred to by the appellant in the body of the MAC extends to matters beyond this PIRS, or have no relevance to the criteria in the Guidelines for this PIRS. For example, it is not apparent how Mr Tremelling’s daytime sleepiness is relevant to self care and personal hygiene. The second is that the appellant submits that the assessment of impairment is inconsistent with the history recorded (and not, for example, that it is inconsistent with other evidence or assessments undertaken). 
29.	In respect of the latter point, the Appeal Panel agree with the appellant’s submissions. The Medical Assessor records in the body of the MAC, relevant to this PIRS: 
“He can go hungry as he forgets to eat. He says that he cooks on a barbeque, most nights. He says that he tries to keep himself clean and tidy. He says he is uncertain whether he cleans his teeth daily or not. He says that he tries to shower daily and has a daily routine written on the fridge, which he tries to follow. He says he has been to Coles to buy biscuits, chips, and meat. He sometimes goes with his daughters.” 
30.	The Medical Assessor concluded that there is no impairment. That would be consistent with class 1 under Table 11.1, which provides:
“No deficit, or minor deficit attributable to the normal variation in the general population.” 
31.	The Appeal Panel are of the view that the criteria in this class has not been met. Mr Tremelling cannot be described as having “no” or “minor” deficit under this PIRS. The history taken by the Medical Assessor is that he forgets to eat, can cook on the barbeque, is unsure whether he cleans his teeth daily and tries to shower daily. Forgetting to eat and being unsure if teeth have been cleaned are not “no” deficit. It is not within the realms of a “normal variation in the general population” to forget to eat. The Appeal Panel are satisfied that the Medical Assessor has applied incorrect criteria in assessing Mr Tremelling in class 1 impairment in this PIRS.
32.	The appellant submits that class 3 is the appropriate assessment: 
“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.”
33.	Although the Appeal Panel accept that the Medical Assessor has applied incorrect criteria, it is not accepted that class 3 is the appropriate assessment. There is no history taken of a need for prompting to shower or wear clean clothes (although it is acknowledged that Mr Tremelling uses a daily routine to assist with these things). He is able to prepare his own meals. There is no history taken of any requirement for someone to attend to ensure a minimum level of hygiene or nutrition. 
34.	The criteria for class 2 in this PIRS is: 
“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.”
35.	The history taken by the Medical Assessor is consistent with this criteria. Mr Tremelling is able to look after himself adequately as he can and does use the barbeque to cook food. He occasionally misses meals and may look unkempt occasionally (including not brushing teeth). 
36.	The Appeal Panel are satisfied that class 2 is the appropriate and correct assessment in this PIRS. 
Social and recreational activities
37.	The Medical Assessor assessed class 1 in this PIRS, providing the following reasons in the PIRS Table on page 12 of the MAC: 
“As described in the main body of the report, there is a minor deficit attributable to normal variation in the general population. He is appropriately engaged in social and recreational activities as much as his current physical state and psychosocial circumstances allow.”
38.	The appellant refers to the history recorded in the body of the MAC, and the Table 11.2 of the Guidelines, submitting that the Medical Assessor fell into error applying class 1 under this PIRS when the appropriate class was class 2. 
39.	The history taken relevant to this PIRS is scattered throughout the MAC. On page 2, the Medical Assessor records: 
“Mr Tremelling says his mood is “angry” as he suffers from the claim. He says that he cries when he is on his own. He says that he is “quiet” and stands in the background when he is with people. He used to be the “life of the party” but now wants to keep to himself. He says that he can get angry easily. He says he can even get angry with his grandchildren but removes himself before saying anything bad to them. He also has good days when he walks to the local fish shop, says hello to staff and buys his dinner. The lady there lost her husband to suicide just before his wife died and he likes to talk to her at the shop. He says that he does not even open his door on his bad days. He says that he feels anxious most of the time. He says that he shakes with anxiety on his good days and paces through his house on his bad days because of anxiety. He says that he does not have any control over his anxiety.”
40.	On page 3, the Medical Assessor takes a history of various issues under social activities/ADL.  This included: 
“He has two close friends with whom he catches up weekly. He watches the National Basketball League “over a couple of beers” with them on TV. They usually hang out together for two and a half hours. He says they meet at his or one of the other friend’s house… He plays Boce every week as a form of socialising. He says that he enjoys the game but not talking to people, which is not usual for him. He says that he can focus on gameplay.”
41.	The relevant criteria for this PIRS in the Guidelines are as follows: 
Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.	
Class 2	Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).	
42.	The history taken in the MAC is that Mr Tremelling sees his friends on a weekly basis, without needing a support person or prompting. He also attends Boce on a weekly basis, although he does not enjoy talking to people (which is not usual for him).  
43.	The history taken by the Medical Assessor is of a minor deficit. Mr Tremelling is engaging in two different forms of social and recreational activity on a weekly basis (with his friends, watching basketball and playing Boce). This level of activity can only be classified as “regular” (compared with the “occasional” attendance considered in class 2 impairment in this PIRS). Mr Tremelling is actively and regularly involved with Boce, which fits broadly within a “club or association”, although he talks to people less. Whilst he prefers not to talk to people, this is a “minor” restriction when considered as a whole.  
44.	The history recorded of anxiety, including not opening his door on “bad days”, is again a normal variation in the general population and does not reflect overall capacity to engage in social and recreational activities. 
45.	This ground of appeal is not made out. The correct assessment is class 1 impairment. 
Travel
46.	The Medical Assessor assessed class 1 in this PIRS, providing the following reasons in the PIRS table on page 12 of the MAC: 
“As described in the main body of the report, there is no impairment. He can travel without any psychological difficulties. He has made several interstate trips since the injury for his health condition.”
47.	The appellant refers to the body of the MAC, where the Medical Assessor records the following: 
“He says that he can “drive all right”. He drove to Mildura for a surgical procedure, which took three hours. He took his cousin with him because his psychologist did not want him to drive on his own owing to suicidal ideation. He says that he usually drives on his own.”
48.	The appellant submits that it is hard to accept that someone whose treating psychologist recommended not to travel due to suicidality would fit in class 1 in this PIRS, and the appropriate class was class 2. 
49.	The criteria for the relevant classes in this PIRS appear in Table 11.3 of the Guidelines: 
Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.	
Class 2	Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.	
50.	The Appeal Panel acknowledge the history recorded of travel to Mildura with a support person. This was, according to the history given, due to suicidal ideation and a recommendation on behalf of his psychologist. The remainder of the history taken shows a person with no restriction in travel. Mr Tremelling himself indicated he could “drive all right”. He usually drives on his own (other than the singular occasion where he took his cousin). 
51.	The apparent suicidal ideation involving driving is not recorded in any other history. The specific recommendation from his psychologist is not indicated in the medical evidence available to the Appeal Panel. There is no evidence that ongoing suicidality restricted the appellant’s driving generally. Further, when applying the criteria under the PIRS, the history must be considered wholistically. Mr Tremelling provides no other history of restriction in driving. 
52.	Considering the history recorded in the MAC and the material as a whole, the Appeal Panel are not satisfied that the Medical Assessor has erred in his assessment of impairment. 
Social functioning
53.	The Medical Assessor provided an assessment of class 1 impairment under this PIRS, providing the following reasons on page 12 of the MAC: 
“As described in the main body of the report, there is no impairment. His relationship with his wife had strained over 2022, but they became very close by the time she passed away at the end of December 23. He gets along very well with his daughters and is close to his grandchildren. He has not lost any friendships either.”
54.	The appellant submits that the Medical Assessor erred in assessing class 1, where on the history recorded the appropriate assessment was class 3. The appellant refers to the history recorded in the MAC. Some of that history is relevant to this assessment and some is not. The Appeal Panel observed that the PIRS of social functioning goes to the quality of relationships and how they are maintained, rather than the ability of a person to engage in social settings, which is covered under social and recreational activities. 
55.	The appellant submits that the inability to open the door, a reluctance to engage socially, and needing to control anger speaks to a moderate impairment. 
56.	The relevant criteria for classes 1-3 in Table 11.4 provide: 
Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).	
Class 2	Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.	
Class 3	Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.	
57.	As indicated above, the appellant’s submissions refer to parts of the history that are not relevant to the criteria in this PIRS. There is no evidence in the MAC of strained relationships, periods of separation, or arguments with family members. Mr Tremelling goes shopping with his daughters, who visit him regularly, has four grandchildren that he sees almost daily, and enjoys spending time with them. He sadly lost his mother and wife, who died in 2022 and 2023 respectively. There was no history of separation between Mr Tremelling and his wife prior to her death. 
58.	The criteria for assessment under this PIRS are set out above. Mr Tremelling’s history is one of strong social functioning within his relationship group (his children, grandchildren, and a number of friends). There is no evidence of any restriction that fit within a class higher than class 1 under this PIRS. The correct assessment is class 1, as found by the Medical Assessor.
Employability
59.	The Medical Assessor provided an assessment of class 3 impairment in this PIRS, providing the following reasons in the PIRS table on page 13 of the MAC: 
“As described in the main body of the report, there is moderate impairment. Although previous reports have noted his work capacity to be totally impaired, it is consistently documented that he has been considering returning to work and was encouraged by his treating psychiatrist. He had even considered starting his own daycare business just before his wife passed away. There is no reason for Mr Tremelling to become totally incapacitated for work on account of his reported symptoms. Based on his symptom burden and functional capacity, objectively, he can work in a less stressful environment for up to 20 hours per week but cannot return to his pre-injury role. He can work in a primary school environment as well.”
60.	The appellant submits that the assessment of class 3 is completely at odds with the facts a demonstrates a misunderstanding of his role in the assessment process. The appellant submits that at the time of assessment, Mr Tremelling had not worked or been able to work for three years, on the background of having a commendable work history with his employer since 2001. The appellant submits that a desire to return to work is not “evidence” of capacity, and the evidence is that he has been unable to work despite this desire. The Medical Assessor has elevated a wish to be productive to an ability to work, and his assessment is in demonstrable error and is in contrast with the assessments of Dr Khan and Dr Smith. 
61.	The Guidelines provide the following criteria for an assessment of impairment under this PIRS, in Table 11.6: 
Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker's education and training. The person is able to cope with the normal demands of the job.	
Class 2	Mild impairment: Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).	
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.	
62.	The Appeal Panel would firstly note the fact that Dr Smith and Dr Khan, the independent medical experts who assessed the worker, are not binding on the Medical Assessor, nor is his role to choose between competing medical opinions. This was explained in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, discussed in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346, where Campbell J described the role of the Medical Assessor as: 
“That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise.”
63.	The question then becomes, has the Medical Assessor applied the correct criteria in reaching his conclusion, and does that conclusion contain a demonstrable error? The appellant has made much of the reasons of the Medical Assessor, characterising them as a “desire” to return to work, rather than evidence of an ability to work. It is noted that the criteria in Table 11.6 necessarily and by their words go beyond consideration of a worker’s certified capacity over a period. On the other hand, a “desire” to work, on its own, is not evidence of a capability to work. 
64.	Mr Tremelling has not worked in three years. That is a relevant consideration. It is also relevant to consider other activities that the worker undertakes (and could undertake within functional limitations). The criteria in the Guidelines make that a relevant consideration, because the Medical Assessor is asked to consider whether a worker could work in a different position. Examples are: 
(a)	In class 2, a person who is “no longer happy to work with specific persons, or work in a specific location due to travel required”. This criterion speaks to a specific desire to not work in the same environment pre-injury;
(b)	In class 3, considerations of what a worker “can perform”, including in a “different position, which requires less skill or is qualitatively different (eg less stressful)”, and
(c)	In class 4, considerations of how long a worker can attend for, limited to no more than “one or two days at a time, less than 20 hours per fortnight”. It also looks to pace and attendance at work, “pace is reduced, attendance is erratic”.  
65.	The above criteria, in accordance with cl 11.11, assess “an area of functional impairment”. That area, per Table 11.6, is “employability”. Employability goes beyond the mere act of being employed; the criteria make relevant considerations the extent to which a person could be employed, in a similar role, in a functionally different role, or in no role at all (inter alia). 
66.	The evidence that the appellant refers to, of an incapacity for more than three years, forms one part of that consideration. Additional aspects for consideration, as required by the Guidelines, include whether the worker could work in a qualitatively different role, or one that requires less skill. 
67.	Contrary to the appellant’s submission, there is evidence of that, evidence that the Medical Assessor has referred to. The respondent’s submissions refer to some of that evidence, including certifications to return to work and an encouragement for a gradual return to work. The Medical Assessor also notes the recorded history that the worker was considering volunteering to work with youth in Cairns (on page 6 of the MAC). Furthermore, the appellant’s own reported history, as recorded in the MAC, includes coaching basketball, an activity consistent with his stated desire to work with youth. The Appeal Panel are satisfied that there was sufficient evidence available before the Medical Assessor to reach the conclusion he has reached. He has not applied incorrect criteria in considering what Mr Tremelling would be able to do as that is envisaged by the Guidelines. 
68.	In those circumstances, where the Medical Assessor has had the benefit of examining the worker and has reached a conclusion based on his clinical judgement, the Appeal Panel are satisfied that the assessment made by the Medical Assessor was the correct one.
Section 323
69.	The final ground of appeal concerns s 323 of the 1998 Act. The Medical Assessor made a deduction of one tenth from the assessed impairment, providing the following rationale on page 10 of the MAC: 
“Mr Tremelling was not only suffering from active symptoms of depression when he sustained the current injury, but his mental state has been aggravated by subsequent events such as his physical health conditions and psychosocial circumstances, including the loss of his job, the death of his wife and his daughter's physical ill-health. Therefore, it is reasonable to attribute one-tenth of his impairment to non-work-related factors.”
70.	The appellant submits that s 323 requires an analysis of what impairment existed prior to the injury being accepted. There needs to be a pre-existing, symptomatic condition not otherwise related to the injury before the section can be applied. There is no evidence of a pre-existing condition, and applying s 323 to a subsequent is a clear error. 
71.	The first thing to note about the appellant’s submissions is they are correct in part but also reference an incorrect interpretation of the law. The Appeal Panel accept that s 323 is only concerned with previous injury or pre-existing condition or abnormality. As much is clear from the plain words of s 323(1) which provide: 
“In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.”
72.	The Appeal Panel accept that the Medical Assessor has referred to subsequent or unrelated events including physical health conditions, the death of his wife, and his daughter’s ill health. This is clearly in error. The Appeal Panel note that at 11(a) on page 10 of the MAC, the Medical Assessor comments “Nil” when asked to identify a relevant previous injury or pre-existing condition or abnormality. This is consistent with the appellant’s submission that the Medical Assessor has failed to identify a previous injury or pre-existing condition. 
73.	However, the Appeal Panel do not accept that any pre-existing condition must have been symptomatic at the time of injury. This is inconsistent with Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [43]: 
“The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury.”
74.	The Appeal Panel are satisfied that the Medical Assessor has erred. It is thus appropriate that the Appeal Panel consider the appropriate application of s 323 of the 1998 Act. 
75.	Contrary to the appellant’s submissions, there is evidence of a pre-existing condition. The Medical Assessor identified this in his reasons where he states that Mr Tremelling was “suffering from active symptoms of depression when he sustained the current injury”. The Appeal Panel also notes that both independent medical experts identified the existence of a pre-existing condition. 
76.	Within the clinical records attached to the Application to Resolve a Dispute there are references to psychiatric issues in 2016, including multiple episodes of depression and anxiety. The Appeal Panel are of the opinion that Mr Tremelling had a pre-existing condition, namely anxiety and depression, that was asymptomatic at the time of injury. That pre-existing condition contributed to the occurrence of injury, by making it more likely to have occurred, and in respect of the specific consideration of s 323, has made that injury worse. 
77.	The Appeal Panel are cognisant of cl 11.10 of the Guidelines which purport to require the Medical Assessor to assess pre-existing impairment with reference to the PIRS. In Marks v Secretary Dept of Communities and Justice (No2) [2021] NSWSC 616, cl 11.10 was held to be inconsistent with the Act, to the extent that pre-existing impairment was asymptomatic prior to the injury. Basten AJ expressed disagreement with that conclusion in Matheson v Baptistcare NSW & ACT [2025] NSWSC 213. 
78.	Regardless of whether or not cl 11.10 is invalid, noting the inconsistent decisions on the issue, cl 11.10 provides a fallback mechanism: “If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI”. This is consistent with s 323(2) of the 1998 Act:
“If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
79.	It is the Appeal Panel’s view that the extent of the deduction would be difficult or costly to determine. Accordingly, the deduction will be one tenth. This deduction is not at odds with the available evidence. 
Conclusion
80.	The Appeal Panel are satisfied that the Medical Assessor applied incorrect criteria in his assessment of self-care and personal hygiene. This is the only ground made out by the appellant. Accordingly, the MAC will be revoked. 
81.	The scores in the PIRS, in ascending order, are 1, 1, 1, 2, 2, 3. This is a median class of 2 and an aggregate score of 10. This is 5% whole person impairment. To this assessed is added a 1% uplift for the impact of treatment in accordance with the Guidelines, which the Appeal Panel note was not the subject of appeal, but accept as correct. A deduction of one tenth will be made for the reasons given above. 
82.	For these reasons, the Appeal Panel has determined that the MAC issued on 21 November 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:	W26129/24	
Applicant:	Harold Jay Tremelling	
Respondent:	Secretary, Department of Education	

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
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)	
Psychological/psychiatric	1/4/21		Chapter 11	6%	1/10
	5%	

Total % WPI (the Combined Table values of all sub-totals)                          
	
5%