BMY v Mullungeen Pty Ltd - [2025] NSWPICMP 736

DETERMINATION OF APPEAL PANEL
CITATION:	BMY v Mullungeen Pty Ltd [2025] NSWPICMP 736
APPELLANT:	BMY
RESPONDENT:	Mullungeen Pty Ltd
APPEAL PANEL
MEMBER:	Jacqueline Snell
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	John Lam-Po-Tang
DATE OF DECISION:	23 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant appealed from the Medical Assessment Certificate (MAC) which determined the MAC should be confirmed; the first Appeal Panel’s determination was the subject of judicial review proceedings in the Supreme Court; by consent the first Appeal Panel’s determination was set aside and the matter was remitted to the Commission for referral to a differently constituted Appeal Panel; with acceptance at preliminary review by the Appeal Panel that the Medical Assessor had not taken the proper approach required to be taken to a secondary psychological injury, the Appeal Panel determined the appellant should undergo re-examination; the Appeal Panel accepted assessment of the appellant at 8% whole person impairment (WPI); Held – MAC revoked; although the Appeal Panel’s resultant WPI is the same as in the MAC this is purely coincidental and has arisen through very different approaches.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 May 2024, the appellant BMY lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 April 2024.
BMY 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).

RELEVANT FACTUAL BACKGROUND

BMY relevantly made a claim for permanent impairment compensation resulting from alleged primary psychological injury sustained in the course of his employment with the respondent, Mullungeen Pty Ltd (Mullungeen), with date of injury of 4 April 2019, which was disputed. An Application to Resolve a Dispute was lodged with the Commission, and a Reply was lodged with the Commission in response.
With…

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 736
Decision Date: 23 September 2025

CaseChat Overview and Summary

In the matter of BMY v Mullungeen Pty Ltd, the appellant sought to appeal a Medical Assessment Certificate (MAC) which had been issued under the Workplace Injury Management and Workers Compensation Act 1998. The appellant contested the validity of the MAC, arguing it should be revoked on the grounds that the Medical Assessor had not adhered to the required protocols in assessing a secondary psychological injury. This appeal was subsequently subject to judicial review in the Supreme Court, where by mutual agreement the determination of the original Appeal Panel was set aside, and the case was remitted to the Commission for reassessment by a differently constituted Appeal Panel.

The primary legal issue before the court was whether the original Appeal Panel correctly identified that the Medical Assessor had deviated from the necessary assessment protocol in determining the secondary psychological injury, and whether the re-examination of the appellant by the new Appeal Panel was justified. The appellant contended that the original Assessment Certificate was invalid due to procedural errors, and the re-examination was necessary to ensure a fair and accurate assessment of the appellant's whole person impairment (WPI). The respondent, on the other hand, argued that the re-examination was unnecessary as the final WPI rating remained unchanged.

The court examined the process followed by the Medical Assessor and the subsequent Appeal Panel. It determined that the original Appeal Panel had indeed recognised that the Medical Assessor had not employed the correct approach in assessing the secondary psychological injury. Consequently, the Appeal Panel ordered a re-examination of the appellant. Despite the final WPI rating being the same as the original MAC, the court concluded that this was coincidental and resulted from different assessment methodologies. The court found that the re-examination was necessary to ensure the integrity of the assessment process and upheld the Appeal Panel's decision to revoke the original MAC.

The final orders of the court were that the original Medical Assessment Certificate was revoked and that the re-examination conducted by the Appeal Panel was affirmed. The court's decision underscored the importance of adhering to correct procedural protocols in the assessment of workplace injuries to ensure fairness and accuracy in the determination of whole person impairment ratings.

Orders