Bourke Shire Council v Holt - [2025] NSWPICMP 544

DETERMINATION OF APPEAL PANEL
CITATION:	Bourke Shire Council v Holt [2025] NSWPICMP 544
APPELLANT:	Bourke Shire Council
RESPONDENT:	Daniel Holt
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	John Lam-Po-Tang
DATE OF DECISION:	25 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by Council against 16% whole person impairment (WPI) assessment for psychological injury; whether additional evidence admissible; whether travel category of psychiatric impairment rating scale (PIRS) incorrect; whether relationship breakup a behavioural consequence of the injury; whether 1% WPI for treatment effect incorrect; Held – additional information application dismissed as employer had the evidence (bank statements) prior to the assessment; respondent worker’s additional statement rejected as no application or submissions made as to admissibility and content did not satisfy section 328(3); travel category confirmed at Class 2; social functioning argument that relationship breakup occurred before onset of psychological condition rejected; Chapter 1.6a of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 considered and applied; PIRS authorities considered and applied; treatment effect modifier rejected; MAC revoked; 15% WPI certified.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 April 2025 the appellant employer, Bourke Shire Council, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 March 2025.
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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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 for…

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 544
Decision Date: 25 July 2025

CaseChat Overview and Summary

The case of Bourke Shire Council versus Holt involves an appeal by the Council against a 16% whole person impairment (WPI) assessment for psychological injury sustained by the respondent. The dispute was heard in the Workers Compensation Court. The Council contested the Medical Assessment Certificate (MAC) issued for the respondent's psychological injury, arguing against the 16% WPI assessment. They claimed that additional evidence, such as bank statements, should not have been considered by the original assessing medical practitioner, and that the travel category of the psychiatric impairment rating scale (PIRS) was incorrectly assessed at Class 1 instead of Class 2. Additionally, they argued that the relationship breakup experienced by the respondent should be considered a behavioural consequence of the injury. The Council further contended that the 1% WPI for treatment effect was incorrect.

The legal issues before the court included whether the application for additional information should be allowed, given that the employer already had the bank statements at the time of the assessment. Another issue was whether the respondent's additional statement should be admitted, despite no application or submissions being made regarding its admissibility. The court also had to determine the correct travel category for the psychiatric impairment rating scale, whether the relationship breakup should be considered a consequence of the injury, and whether the treatment effect modifier was correctly applied.

The court dismissed the application for additional information, finding that the employer had the bank statements prior to the assessment. The court rejected the respondent's additional statement, noting that no application or submissions had been made regarding its admissibility, and that it did not satisfy the requirements of section 328(3). The travel category was confirmed at Class 2, and the argument that the relationship breakup occurred before the onset of the psychological condition was rejected. The court applied Chapter 1.6a of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition, and the authorities on the psychiatric impairment rating scale. The treatment effect modifier was rejected. Consequently, the MAC was revoked and a 15% WPI was certified.

Orders