“No improvement” doesn’t amount to deterioration for WPI.

Roberto Sangiuliano v Shellharbour Private Hospital

Personal Injury Commission, Medical Appeal Panel
Matter No M1-W1346/24, 28 August 2026

The Medical Appeal Panel has confirmed an assessment of 8% whole person impairment arising from a psychological injury, finding that evidence of continuing or increased psychiatric symptoms did not establish a deterioration resulting in increased permanent impairment.

The decision highlights the importance of distinguishing psychiatric symptoms from the functional impairment assessed under the Psychiatric Impairment Rating Scale (PIRS).

Background

The worker was employed as a clinical nurse specialist and suffered an accepted psychological injury arising from workplace bullying and harassment.

The medical dispute was referred to Medical Assessor Dr Michael Hong, who issued a Medical Assessment Certificate (MAC) on 8 April 2024 assessing the worker at 8% whole person impairment, after a one-tenth deduction.

Neither party appealed the MAC at that time. A Certificate of Determination was issued on 10 May 2024 confirming that the worker had no entitlement to lump sum compensation.

Almost two years later, the worker successfully applied for reconsideration and rescission of the Certificate of Determination. This was necessary because section 327(7) of the Workplace Injury Management and Workers Compensation Act 1998 prevents an appeal against a MAC where the medical dispute has already been the subject of a determination by the Commission.

Following rescission, the worker appealed the MAC under section 327(3), relying upon:

deterioration of his condition resulting in an increased degree of permanent impairment; and
additional relevant information that was not available and could not reasonably have been obtained before the original assessment.

The worker relied upon two statements, updated general practitioner records and reports from his treating general practitioner, psychologist, occupational physician and a psychiatrist retained by the insurer.

The worker’s case

The worker submitted that his condition had deteriorated across five of the six PIRS categories. Employability was not challenged because he had already been assessed at the maximum Class 5.

It was argued that there had been deterioration in the worker’s:

self-care and personal hygiene;
social and recreational activities;
travel;
social functioning; and
concentration, persistence and pace.

The worker submitted that, if his proposed classifications were accepted, his impairment would increase to 28% WPI.

However, none of the medical evidence contained a current assessment of WPI or a comparative assessment of the worker’s functioning under each PIRS category.

Determination and reasons

Fresh evidence was admitted

The Appeal Panel admitted the worker’s additional evidence. It found that the material had substantial prima facie probative value because it addressed the central allegation that the worker’s condition had deteriorated.

However, admission of the evidence did not determine the weight to be given to it or establish that the statutory ground of appeal had been made out.

Deterioration is a comparative concept

The Appeal Panel applied Riverina Wines v Workers Compensation Commission of New South Wales [2007] NSWCA 149.

Deterioration under section 327(3)(a) is an “inherently relational concept”. It requires a comparison between:

the degree of impairment certified in the original MAC; and
the worker’s condition and degree of permanent impairment at the later relevant date.

The statutory test requires deterioration that results in an increase in the degree of permanent impairment.

Evidence that a worker’s symptoms have continued, fluctuated or become more prominent is not necessarily sufficient.

The Panel found a fundamental difficulty with the appeal: there was no current assessment of WPI and no medical opinion undertaking the comparison required by section 327(3)(a).

Symptoms are distinct from functional impairment

The Panel emphasised that the PIRS assess functional impairment arising from a psychological injury. They do not assess psychiatric symptoms in isolation.

Although the worker reported increased anxiety, flashbacks, nightmares and loss of motivation, the question was whether those symptoms produced greater functional impairment within the PIRS categories.

The Panel accepted that the worker’s experiences were genuine. Nevertheless, increased symptoms did not, without more, establish increased functional impairment.

The later evidence was largely consistent with the MAC

The Appeal Panel compared the fresh evidence with the history recorded by the original Medical Assessor.

Examples included:

The worker continued to shower approximately once every three days without prompting, consistent with the original MAC.
He continued to attend occasional social activities, including family gatherings and his grandson’s sporting events.
He could travel independently to familiar places, although he required assistance with unfamiliar destinations.
He maintained a stable relationship with his partner and continued to receive strong family support.
He continued to play puzzle games for approximately 15 minutes before losing concentration, precisely as recorded in the original MAC.
He had travelled interstate with his partner.

The psychiatrist retained by the respondent reported that there had been “no meaningful improvement” in the worker’s mental health. The Panel observed that a lack of improvement is not evidence of deterioration.

Similarly, opinions that the worker’s symptoms had deteriorated did not establish that his functional impairment had increased under the PIRS.

The reconsideration decision was not determinative

The worker relied heavily upon the Member’s earlier decision rescinding the Certificate of Determination.

The Appeal Panel found that the reconsideration decision was not binding and addressed a different question. The question on reconsideration was whether the new evidence might have produced a different result if it had been before the original Medical Assessor.

The issue on appeal was narrower: whether deterioration had actually resulted in an increased degree of permanent impairment.

Further, the application of the PIRS involves clinical judgment and must be undertaken by appropriately qualified medical experts.

Outcome

The Appeal Panel found that the worker had not provided prima facie evidence of deterioration resulting in increased permanent impairment.

In any event, its detailed comparison of the fresh evidence with the original MAC did not demonstrate increased functional impairment in any PIRS category.

The original MAC assessing 8% WPI was confirmed.

Implications for insurers

This decision provides several useful lessons for insurers responding to deterioration appeals:

Focus upon the precise statutory test. The relevant question is not simply whether the worker’s condition or symptoms have become worse. The deterioration must have resulted in an increased degree of permanent impairment.
Require a meaningful comparison. The evidence should compare the worker’s current functional impairment with the impairment recorded in the original MAC. A general statement that the worker has “deteriorated” may carry little weight if it does not address the earlier assessment.
Distinguish symptoms from function. Increased anxiety, depression, nightmares, irritability or other symptoms do not automatically translate into a higher PIRS classification. The evidence must demonstrate an increased effect upon functioning.
Review the original MAC carefully. A category-by-category comparison may reveal that activities described as evidence of deterioration are substantially the same as those recorded during the original assessment.
“No improvement” is not deterioration. Evidence that a condition remains chronic, persistent or unchanged does not establish the statutory ground of appeal.
Examine the expert’s qualifications and purpose. Treating practitioners and non-psychiatric specialists may provide relevant evidence about symptoms and functioning, but they may not be qualified to assess psychiatric impairment under the Guidelines.
A current impairment assessment will be highly significant. While the Panel went on to consider all of the evidence, the absence of a current WPI assessment addressing the PIRS and comparing the worker’s functioning with the original MAC was a fundamental weakness in the appeal.
Admission is distinct from weight. Insurers should address both issues. Even where fresh evidence is admitted, submissions may establish that it does not prove increased functional impairment.
Re-examination is not automatic. Where the documentary evidence does not disclose deterioration resulting in increased impairment, an Appeal Panel may determine the appeal without arranging a further medical examination.
A reconsideration decision does not establish deterioration. Rescission of a Certificate of Determination merely permits the appeal to proceed. It does not determine the medical question to be decided by the Appeal Panel.

The decision reinforces that insurers should approach psychological deterioration appeals by undertaking a disciplined, contemporaneous comparison of the worker’s functioning under each PIRS category, rather than concentrating solely upon changes in diagnosis or reported symptom severity.

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