Action James NSW Pty Ltd v Al Khulaif - [2025] NSWPICMP 478

DETERMINATION OF APPEAL PANEL
CITATION:	Action James NSW Pty Ltd v Al Khulaif [2025] NSWPICMP 478
APPELLANT:	Action James NSW Pty Limited
RESPONDENT:	Fahad Al Khulaif
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Dr Douglas Andrews
MEDICAL ASSESSOR:	Dr Michael Hong
DATE OF DECISION:	2 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal of Medical Assessment Certificate (MAC); appeal by employer against 22% whole person impairment (WPI) assessment for psychological injury; whether Medical Assessor (MA) failed to distinguish between primary and secondary psychiatric injury; whether error made in assessing psychiatric impairment rating scale (PIRS) for all categories; MA failed to adopt the two-step approach mandated in Mercy Connect Limited v Kiely; re-examination requested; Appeal Panel found primary and secondary injuries so intermingled that separation not possible except for employability category where adjustment disorder arising from increased pain accounted for increase in employability; class 3 for travel category unexplained where worker travelled alone overseas for 40 days; ; Held – MAC revoked; Appeal Panel assessed 17% WPI.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 November 2024 Action James NSW Pty Limited, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 October 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 16 September 2024 an amended referral was made to the Medical Assessor seeking an assessment of WPI caused by a primary psychological injury that occurred on 6 April 2022.
Mr Al Khulaif (the respondent) was employed as a warehouse worker when on the date of injury 6 April 2022, he was standing on a lifter and the operator lifted him…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPICMP 478
Decision Date: 2 July 2025

CaseChat Overview and Summary

Action James NSW Pty Ltd appealed against a Medical Assessment Certificate issued in favour of Al Khulaif, a worker who had sustained a psychological injury. The dispute centred on the assessment of the worker's whole person impairment (WPI) and whether the Medical Assessor had correctly applied the relevant legislative provisions and case law. The matter was heard in the NSW Civil and Administrative Tribunal.

The court was required to determine whether the Medical Assessor had appropriately distinguished between primary and secondary psychiatric injury and whether any errors in the assessment of the psychiatric impairment rating scale (PIRS) had occurred. The tribunal also considered whether the Medical Assessor had adhered to the two-step approach mandated in Mercy Connect Limited v Kiely. These legal questions were pivotal in deciding the correct WPI rating for the worker.

The tribunal found that the Medical Assessor had not properly distinguished between primary and secondary psychiatric injury and had failed to adopt the two-step approach required by the law. The Appeal Panel noted that while the primary and secondary injuries were intermingled, the worker's employability had increased due to an adjustment disorder resulting from increased pain. The tribunal reduced the WPI assessment from 22% to 17%, finding the class 3 assessment for the travel category unexplained as the worker had travelled alone overseas for 40 days. The tribunal revoked the original Medical Assessment Certificate and issued a new one with the revised WPI rating.

The final orders included the revocation of the original Medical Assessment Certificate and the issuance of a new one with a 17% WPI rating. This decision was based on the tribunal's findings regarding the Medical Assessor's errors and the need to accurately reflect the worker's impairment.

Orders