AKD NSW Pty Ltd v Friend - [2025] NSWPICMP 212

DETERMINATION OF APPEAL PANEL
CITATION:	AKD NSW Pty Ltd v Friend [2025] NSWPICMP 212
APPELLANT:	AKD NSW Pty Ltd
RESPONDENT:	Ronald Keith Friend
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	Doug Andrews
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	27 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); medical appeal; challenge to two of the psychiatric impairment rating scales (PIRS); social and recreational activities, and concentration, persistence and pace; worker attending Men’s Shed on a regular basis; specifics of attendance involve multiple areas of functioning; Ballas v Department of Education (State of NSW), Lancaster v Foxtel Management Pty Ltd, and Botha v Secretary, NSW Department of Customer Service considered; Held – MAC revoked; new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 December 2024 AKD NSW Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Aman Suman a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 November 2024.
The appellant relies on the following ground 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 Guidelines).

RELEVANT FACTUAL BACKGROUND

Mr Friend worked in the timber industry for over 40 years, including with AKD NSW Pty Ltd (the appellant) as a labourer. In February 2022 another employee (the lead hand) abused Mr Friend in front of others. This triggered the onset of his psychological injury which was deemed to have occurred on 7 February 2022.
Mr Friend made a claim for compensation. In previous proceedings in the Personal Injury Commission (Commission), an agreement was reached concerning the payment of weekly benefits and medical expenses.
Mr Friend made a claim for lump sum compensation which involved some controversy as to whether an offer was made and accepted. Ultimate proceedings were commenced in the Commission with the matter being referred to a Medical Assessor for assessment of Mr Friend’s permanent impairment.
On 26 November…

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 212
Decision Date: 27 March 2025

CaseChat Overview and Summary

AKD NSW Pty Ltd sought review of a Medical Assessment Certificate (MAC) issued under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The worker, Friend, challenged two of the psychiatric impairment rating scales (PIRS) within the MAC. The primary concern was regarding the assessment of social and recreational activities, and concentration, persistence and pace. Friend argued that his regular attendance at a Men’s Shed was inadequately considered, impacting his rating. This case before the NSW Civil and Administrative Tribunal sought to determine whether the MAC accurately reflected Friend’s functional impairment and whether the assessment of his participation in social and recreational activities was appropriate.

The legal issues revolved around the correctness of the medical assessment and whether the Tribunal should uphold or revoke the MAC. Friend contended that the MAC did not properly account for his ability to engage in social and recreational activities, particularly his regular involvement with a Men’s Shed. The Tribunal had to assess the relevance and weight of this participation in determining his psychiatric impairment, considering the statutory framework and relevant case law, including Ballas v Department of Education (State of NSW), Lancaster v Foxtel Management Pty Ltd, and Botha v Secretary, NSW Department of Customer Service. The key question was whether the Tribunal should accept Friend’s evidence regarding his Men’s Shed attendance and its impact on his assessment.

The Tribunal found that the MAC did not adequately reflect Friend’s functional abilities, particularly in relation to social and recreational activities. The Tribunal accepted that Friend’s regular attendance at the Men’s Shed was a significant factor that was not sufficiently considered in the original assessment. The Tribunal concluded that the MAC should be revoked and a new certificate issued, reflecting an accurate assessment of Friend’s psychiatric impairment. This decision was grounded in the need for a fair and comprehensive evaluation of the worker’s condition, ensuring that all relevant aspects of his functioning were appropriately considered.

Orders