Bulghadaryan v State of New South Wales (South Eastern Sydney Local Health District) - [2025] NSWPICPD 59

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Bulghadaryan v State of New South Wales (South Eastern Sydney Local Health District) [2025] NSWPICPD 59
APPELLANT:	Anna Bulghadaryan
RESPONDENT:	State of New South Wales (South Eastern Sydney Local Health District)
INSURER:	Employers Mutual Limited – TMF
FILE NUMBER:	A1-W26938/24
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	11 August 2025
ORDERS MADE ON APPEAL:	1. The Application to receive additional evidence is refused. 2. The appeal is dismissed. 3. The Member’s Certificate of Determination dated 10 December 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – assessment of the evidence – claimed injury to the shoulders not found by the Member at first instance – finding by Member of injury to lumbar and cervical spines – section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 – fresh or additional evidence – claimant undergoes MRI after Member decides case at first instance – additional evidence in the form of a statement, MRI and report sought to be relied on in the appeal in relation to the shoulders – CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M Greene, solicitor
Carroll & O’Dea Lawyers
Respondent:
Ms K Balendra, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Bulghadaryan v State of New South Wales (South Eastern Sydney Local Health District) [2024] NSWPIC 685
MEMBER:	Mr P McAdam
DATE OF MEMBER’S DECISION:	10 December 2024

INTRODUCTION

The appeal is from a decision of a Member of the Personal Injury Commission dated 10 December 2024.
The appellant, Ms Anna Bulghadaryan, was employed at the Sydney Eye Hospital as a medical records officer. The Sydney Eye Hospital had physical files and records that the appellant was required to move. She claimed lump sum compensation for a 22% whole person impairment.
The issue in dispute between the parties was whether the appellant had suffered an injury to her lumbar spine and both shoulders arising out of or in the course of her employment with the respondent.
On 10 December 2024, the Commission determined that issue as follows:
“1.     I am satisfied that Ms Bulghadaryan suffered an injury to the lumbar spine arising out of or in the course of her employment with the respondent, to which employment was the main contributing factor.
2.      Award for the respondent for injury to both shoulders.
3. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a) Date of injury: 7 February 2024 (deemed).
(b) Body systems/parts:
(i) cervical spine, and
(ii) lumbar spine.
(c) Method of assessment: whole person impairment.
4.      The documents to be referred to the Medical Assessor are:
(a) the Application and attached documents;
(b) the Reply and attached documents, and
(c) an Application to Admit Late Documents dated 22 November 2024 and attached…

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

AGLC: Bulghadaryan v State of New South Wales (South Eastern Sydney Local Health District) [2025] NSWPICPD 59
Case: [2025] NSWPICPD 59
Decision Date: 11 August 2025

CaseChat Overview and Summary

The appeal before the court involved a claim for workers' compensation by Bulghadaryan against the State of New South Wales, represented by the South Eastern Sydney Local Health District. Bulghadaryan sought compensation for injuries to his shoulders, lumbar and cervical spines sustained during his employment. The Member of the tribunal dismissed Bulghadaryan's claim for shoulder injuries but found that he had suffered injuries to his lumbar and cervical spines.

The legal issues that the court had to address centred on the admissibility of fresh evidence, specifically an MRI scan and a report, submitted by Bulghadaryan after the initial decision by the Member. The court needed to determine whether the new evidence could be considered under section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998, which allows for fresh or additional evidence to be taken into account if it was not reasonably available at the time of the original hearing.

The court found that the MRI and the report were indeed fresh evidence as they were not reasonably available at the time of the initial decision. The court considered the case of CHEP Australia Limited v Strickland, which established that fresh evidence could be admitted if it was relevant and had the potential to affect the outcome of the case. However, in this instance, the court held that the evidence did not alter the conclusion reached by the Member regarding the shoulder injuries. The court confirmed the Member's findings that there was no injury to the shoulders, and therefore, the fresh evidence did not result in a different outcome for Bulghadaryan's claim.

The court ultimately dismissed the appeal, upholding the Member's decision that Bulghadaryan was not entitled to compensation for injuries to his shoulders. The court did not alter the finding regarding the lumbar and cervical spines, leaving that aspect of the Member's decision intact.

Orders