Burwood Council v Cornish - [2025] NSWPICMP 825

DETERMINATION OF APPEAL PANEL
CITATION:	Burwood Council v Cornish [2025] NSWPICMP 825
APPELLANT:	Burwood Council
RESPONDENT:	Darrin John Cornish
APPEAL PANEL
MEMBER:	Cameron Burge
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	23 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal from decision of Medical Assessor (MA) by employer; whether assessment made on basis of incorrect criteria and/or contains a demonstrable error; worker suffered injury to his lumbar spine together with consequential scarring in the course of his employment with the respondent; MA assessed a total of 29% whole person impairment (WPI); MA made no deduction for any pre-existing condition to the lumbar spine despite the worker having complained of back issues in the past; employer submitted there ought to have been a deduction of a pre-existing condition pursuant to section 323; Held – the mere fact of a pre-existing condition in a body system the subject of assessment does not require a deduction to be made; the MA’s findings were open to him on the evidence and based on his own examination and were not made on the basis of incorrect criteria; nor did the MAC contain an obvious error as alleged; however the MA erred when using the relevant Tables of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 and American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed to combine the worker’s impairments; a correct application of the combined Tables leads to a total of 28% WPI; the MAC is revoked and a new MAC reflecting that impairment is issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 May 2025, Burwood Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor who issued a Medical Assessment Certificate (MAC) on 10 April 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):
· 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

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.

Continue reading Burwood Council v Cornish

Details

AGLC: Burwood Council v Cornish [2025] NSWPICMP 825
Case: [2025] NSWPICMP 825
Decision Date: 23 October 2025

CaseChat Overview and Summary

Burwood Council has appealed against the decision of a Medical Assessor (MA) concerning the assessment of a worker's whole person impairment (WPI) following an injury to his lumbar spine. The dispute has been brought before the relevant tribunal, which must determine the correctness of the MA's assessment and any potential errors in the application of relevant guidelines. The worker had suffered a workplace injury to his lumbar spine, leading to consequential scarring, and the MA assessed a total of 29% WPI. However, the employer argued that the MA made no deduction for any pre-existing condition to the lumbar spine, despite the worker's history of back issues. The employer submitted that a deduction should have been made pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998.

The court had to decide whether the MA's assessment was based on incorrect criteria or contained a demonstrable error. The tribunal found that the MA's findings were open to him on the evidence and were based on his own examination. The mere fact of a pre-existing condition did not necessitate a deduction, and the MA's findings were not made on the basis of incorrect criteria. The tribunal also found that the Medical Assessment Certificate (MAC) did not contain an obvious error as alleged. However, the tribunal identified an error in the MA's use of the relevant Tables of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 2021, and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed, to combine the worker's impairments. A correct application of the combined Tables led to a total of 28% WPI.

Accordingly, the tribunal revoked the MAC and ordered a new MAC reflecting the correct impairment assessment of 28% WPI. This decision ensures that the worker's entitlements are accurately calculated based on the correct application of relevant guidelines.

Orders