BOC Ltd v Rees - [2025] NSWPICMP 220

DETERMINATION OF APPEAL PANEL
CITATION:	BOC Ltd v Rees [2025] NSWPICMP 220
APPELLANT:	BOC Limited
RESPONDENT:	Jason Rees
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	John Lam-Po-Tang
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	31 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; causation of impairment; section 323; clause 11.10 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); challenge to two of the psychiatric impairment rating scales (PIRS); PIRS re-examined; Coca-Cola Europacific Partners API Pty Ltd v Pombinho applied; Held – Medical Assessor erred in application of section 323; MAC revoked and issued a new certificate.

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 November 2024 BOC Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 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 Guidelines).

RELEVANT FACTUAL BACKGROUND

Mr Rees (the respondent) was employed by the appellant by BOC Limited at a gas and bottling factory. His duties involved the production and packaging of different gas products. It was physical and repetitive.
The present claim and dispute before the Personal Injury Commission (Commission) concerns a psychological injury Mr Rees suffered in the employ of the appellant. In addition to that psychological injury, and critical to the issues raised by the appellant in submissions, Mr Rees has also sustained physical injuries in the course of his employment with the appellant. Those injuries do not form part of the present claim or the dispute before the Commission.
The present claim is one for psychological injury deemed to have occurred on 20 March 2018. The claim for lump sum compensation was disputed on a liability basis; that is that the psychological…

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 220
Decision Date: 31 March 2025

CaseChat Overview and Summary

In the case of BOC Ltd v Rees, the dispute involved a claim for workers' compensation related to a psychological injury sustained by the plaintiff during their employment. The case was heard in the relevant court, which was tasked with reviewing the decision of a Medical Assessor regarding the plaintiff's impairment rating. The plaintiff contested the Medical Assessment Certificate (MAC), arguing that it incorrectly assessed the extent of their impairment and failed to properly apply certain statutory provisions and guidelines. Specifically, the plaintiff challenged two of the psychiatric impairment rating scales (PIRS) used by the Medical Assessor.

The court was required to determine whether the Medical Assessor had correctly applied the statutory provisions and the guidelines in assessing the plaintiff's psychological impairment. The key legal issue was whether the Medical Assessor had erred in applying section 323 of the Workplace Injury Management and Workers Compensation Act 1998, and whether the use of the psychiatric impairment rating scales was appropriate and correctly applied. The plaintiff argued that the Medical Assessor had not properly considered the interaction between the plaintiff's psychological condition and their employment, and that the use of certain scales was not justified.

The court found that the Medical Assessor had indeed erred in applying section 323 of the Act, as well as in the use of two of the psychiatric impairment rating scales. The court considered the case of Coca-Cola Europacific Partners API Pty Ltd v Pombinho and applied its reasoning to the present case. The court determined that the Medical Assessor had not properly considered the relevant statutory provisions and guidelines, leading to an incorrect assessment of the plaintiff's impairment. Consequently, the court revoked the MAC and directed that a new certificate be issued, reflecting a proper application of the relevant legal standards.

The court's final orders included the revocation of the existing MAC and the direction that a new certificate be issued, taking into account the correct application of the statutory provisions and the guidelines. The court did not provide further details on the specifics of the new impairment rating, leaving that to the Medical Assessor to determine in accordance with the court's directions.

Orders