Cerebral Palsy Alliance v Thorburn - [2025] NSWPICMP 472

DETERMINATION OF APPEAL PANEL
CITATION:	*Cerebral Palsy Alliance v Thorburn* [2025] NSWPICMP 472
APPELLANT:	Cerebral Palsy Alliance
RESPONDENT:	Thorburn
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Christopher Oates
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	1 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal against Medical Assessor (MA) decision regarding the provisions of Chapter 2.20 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment Guides relating to contralateral joints; whether MA erred by accepting a new history during the assessment that the applicant had suffered an injury to her contralateral left shoulder; present dispute concerning the right shoulder, when such a history not otherwise apparent in the material before MA; whether MA had gone outside the terms of the referral; Held – function of MA to form and give opinion on own expertise and experience; Wingfoot applied and significance or otherwise of issues raised in face-to- face consultation a matter for judgement by MA; Ferguson applied; MA judgement in accepting new history reasonable; worker consistent and no fresh evidence advanced seeking to dispute left shoulder injury; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 March 2025 the appellant employer, Cerebral Palsy Alliance, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Crocker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 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):
· 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 Guides) 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 or modification pursuant to the relevant legislative authority

RELEVANT FACTUAL BACKGROUND

On 14 January 2025 this matter was referred to the Medical Assessor for an assessment of WPI caused by injury to the right upper extremity and scarring (TEMSKI) which occurred on 16 August 2020.
Ms…

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 472
Decision Date: 1 July 2025

CaseChat Overview and Summary

The Cerebral Palsy Alliance brought an appeal against a decision made by a Medical Assessor (MA) under the Workers Compensation Act 1998, specifically challenging the validity of a Medical Assessment Certificate (MAC). The applicant sought compensation for a workplace injury to her right shoulder, which had resulted in permanent impairment. The MA had issued a MAC that included a finding based on a new history provided during the assessment, suggesting that the applicant had also suffered an injury to her contralateral left shoulder, which was not apparent in the material before the MA.

The central legal issue in this appeal was whether the MA erred in accepting the new history regarding the left shoulder injury, which was not supported by the material previously available. The applicant argued that the MA had gone outside the terms of the referral by considering this new information. The Cerebral Palsy Alliance contended that the MA should have limited the assessment to the right shoulder injury, as this was the issue at hand.

The court determined that the MA's function was to form and give an opinion based on their expertise and experience. The court held that the MA had the discretion to consider the significance of issues raised in the face-to-face consultation. Applying the principles from Wingfoot and Ferguson, the court found that the MA's judgment in accepting the new history was reasonable. The applicant had been consistent in her account, and no fresh evidence was presented to dispute the left shoulder injury. Consequently, the court revoked the MAC and allowed the appeal, determining that the MA's decision was not in error.

Orders