Bielderman v Visy Glass Operations (Australia) Pty Ltd - [2025] NSWPICMP 603

DETERMINATION OF APPEAL PANEL
CITATION:	Bielderman v Visy Glass Operations (Australia) Pty Ltd [2025] NSWPICMP 603
APPELLANT:	Hendrikus (Henry) Johannus Bielderman
RESPONDENT:	Visy Glass Operations (Australia) Pty Ltd
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	12 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by claimant from deduction of one-third pursuant to section 323; whether correct test applied by Medical Assessor (MA); whether all the evidence considered; whether scarring should have been assessed; Held – MA applied the wrong test being whether the knee replacement surgery had been to address a pre-existing constitutional pathology; Cole v Wenaline Pty Ltd considered and applied; observations made as to failure to plead case as a deemed injury and effect on the relevant date for assessing the degree of the pre-existing condition; Craigie v Faircloth & Reynolds Pty Ltd considered; MAC revoked and one-tenth deduction substituted; submissions sought as to absence of claim for scarring in the referral; employer agreed to amendment; claimant re-examined as to scarring; 0% scarring found; right lower extremity 14% found; WPI assessed at 14%.

BACKGROUND TO THE APPLICATION TO APPEAL

On 17 December 2024 the appellant, Hendrikus (Henry) Johannus Bielderman lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 November 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5), “WPI” is reference to whole person impairment. “Baseline WPI" is a reference to the total WPI assessed before deduction or modification pursuant to the relevant legislative authority

RELEVANT FACTUAL BACKGROUND

On 2 September 2024, this matter was referred to the Medical Assessor for an assessment of whole person impairment (WPI)…

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 603
Decision Date: 12 August 2025

CaseChat Overview and Summary

In the case of Bielderman v Visy Glass Operations (Australia) Pty Ltd, the dispute involved a claim for workers' compensation following an injury to the claimant's knee. The claimant appealed a decision by the Medical Assessor (MA) who had reduced the compensation by one-third under section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The claimant argued that the MA had misapplied the relevant legal test and failed to consider all evidence, including the degree of scarring. The matter was before the court to review the Medical Assessment Certificate (MAC) and the MA's decision.

The legal issues before the court were whether the MA had applied the correct legal test in determining the compensation and whether all relevant evidence had been considered. Specifically, the court needed to determine whether the MA had correctly assessed the claimant's condition in light of the pre-existing pathology and whether the scarring should have been considered. The court also had to consider the implications of the claimant not pleading the case as a deemed injury and its effect on the relevant date for assessing the degree of the pre-existing condition.

In reviewing the MA's decision, the court found that the MA had applied the wrong test by considering whether the knee replacement surgery addressed a pre-existing constitutional pathology. The court found that the correct test was whether the injury materially contributed to the need for the surgery, as per Cole v Wenaline Pty Ltd. The court also noted that the claimant's failure to plead the case as a deemed injury affected the date for assessing the degree of the pre-existing condition. Additionally, the MA had failed to assess the scarring, which was later determined to be 0%. The court revoked the original MAC and substituted a one-tenth deduction. The claimant was re-examined as to scarring, and a 14% impairment to the right lower extremity was found, leading to a WPI assessment of 14%.

The court ordered that the MAC be revoked and a new one issued reflecting the adjusted WPI of 14%, along with the one-tenth deduction in compensation. The employer agreed to the amendment regarding scarring, and the claimant was re-examined accordingly. The final orders of the court were that the MAC be amended to reflect the 14% WPI and the one-tenth deduction in compensation.

Orders