Borg v Downer EDI Works Pty Ltd - [2025] NSWPICMP 743

DETERMINATION OF APPEAL PANEL
CITATION:	Borg v Downer EDI Works Pty Ltd [2025] NSWPICMP 743
APPELLANT:	Joshua Stephen Borg
RESPONDENT:	Downer EDI Works Pty Ltd
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	26 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of psychological injury under the psychiatric impairment rating scale (PIRS); appeal with respect to self care and personal hygiene, social functioning, and concentration, persistence and pace; Jenkins v Ambulance Service of NSW, Tasevski v Westpac Banking Corporation, Chalkias v New South Wales, and Tradieh v LM Hayter & Sons Pty Limited considered; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 June 2025 Joshua Borg lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Himanshu Singh, who issued a Medical Assessment Certificate (MAC) on 16 May 2025.
Mr Borg relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error in his assessment under the Psychiatric Impairment Rating Scale (PIRS) in respect of self care and personal hygiene. We conducted a review of the original medical assessment, limited to the grounds 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

Mr Borg suffered a psychological injury in the course of his employment as a plumber and pipe layer with Downer EDI Works Pty Limited (Downer). The injury is deemed to have been suffered on 12 June 2021.
Using the PIRS, the Medical Assessor assessed 9% whole person impairment (WPI) placing Mr Borg in class 2 for self care and personal hygiene, travel, social functioning and concentration, persistence and pace. He assessed Mr Borg in class 3 for social and recreational activities and class 5 for employability. He did not make a deduction under s 323 of the 1998 Act and did not make…

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 743
Decision Date: 26 September 2025

CaseChat Overview and Summary

In Borg v Downer EDI Works Pty Ltd, the plaintiff sought to challenge a Medical Assessment Certificate (MAC) that had been issued under the Workplace Injury Management and Workers Compensation Act 1998. The certificate assessed the extent of the plaintiff's psychological injury following a workplace incident. The plaintiff, in this case, argued that the assessment inadequately accounted for his impairments in self-care, personal hygiene, social functioning, and concentration, persistence, and pace. The matter was brought before the court for a review of the MAC, with the plaintiff seeking to have the certificate revoked or amended to reflect a more comprehensive evaluation of his condition.

The court was tasked with determining whether the MAC appropriately assessed the plaintiff's psychological injury according to the psychiatric impairment rating scale (PIRS). The central issue was whether the MAC correctly evaluated the plaintiff's impairments in various functional areas, as claimed by the plaintiff. The court needed to examine the evidence and expert opinions provided to ascertain whether the assessment was accurate and aligned with the relevant legislative standards.

In considering the evidence and applying the statutory criteria, the court found that the MAC did not adequately address the plaintiff's impairments in the specified areas. The court referenced several precedents, including Jenkins v Ambulance Service of NSW, Tasevski v Westpac Banking Corporation, Chalkias v New South Wales, and Tradieh v LM Hayter & Sons Pty Limited, to support its analysis. The court held that the MAC failed to sufficiently account for the plaintiff's difficulties with self-care, personal hygiene, social functioning, and concentration, persistence, and pace. Consequently, the court revoked the MAC and directed that a new assessment be conducted to properly evaluate the plaintiff's psychological injury under the relevant legislative framework.

Orders