Coles v Willshear Shearing Services Pty Ltd - [2025] NSWPICMP 279

DETERMINATION OF APPEAL PANEL
CITATION:	Coles v Willshear Shearing Services Pty Ltd [2025] NSWPICMP 279
APPELLANT:	Michael Coles
RESPONDENT:	Willshear Shearing Services Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Todd Gothelf
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	23 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); the date on which a condition must exist for section 323(1) to apply; whether Medical Assessor (MA) correctly applied section 323(1); whether MA ought to have assessed the appellant had permanent impairment of the left hip where left hip was not mentioned in referral; whether MA correctly applied scoring criteria of modified Table 17-35 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); Held – MA correctly applied section 323(1); MA ought to have assessed appellant’s permanent impairment of the left hip; MA incorrectly applied scoring criteria of Table 17-35 of the AMA 5; MAC revoked; new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 31 January 2025 Michael Coles, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 January 2025.
The appellant relies on the following grounds for 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); 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).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment as a shearer in 2002 with Willshear Shearing Services Pty Limited, the respondent. In a statement the appellant signed on 4 October 2024 he reveals that he is a principal of the respondent. He also reveals that he commenced work as a shearer in 1985, but was not employed as such until he commenced…

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 279
Decision Date: 23 April 2025

CaseChat Overview and Summary

The case of Coles v Willshear Shearing Services Pty Ltd involved an appeal against the determination of a Medical Assessment Certificate (MAC) issued under the Workplace Injury Management and Workers Compensation Act 1998. The appellant, Coles, sought a review of the MAC, arguing that the Medical Assessor (MA) had incorrectly applied certain provisions of the Act, resulting in an underestimation of the appellant's permanent impairment. The case was heard in the Workers Compensation Tribunal of Queensland.

The primary legal issues before the tribunal were whether the MA correctly applied section 323(1) of the Act, whether the MA should have assessed the appellant's permanent impairment of the left hip when it was not mentioned in the referral, and whether the MA correctly applied the scoring criteria of the modified Table 17-35 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition (AMA 5). The appellant argued that the MA had incorrectly applied the scoring criteria, resulting in an underestimation of the appellant's permanent impairment.

The tribunal found that the MA correctly applied section 323(1) of the Act, which pertains to the date on which a condition must exist for the section to apply. However, the tribunal held that the MA ought to have assessed the appellant's permanent impairment of the left hip, as it was a condition that should have been evaluated despite not being mentioned in the referral. Additionally, the tribunal determined that the MA had incorrectly applied the scoring criteria of the modified Table 17-35 of the AMA 5, resulting in an underestimation of the appellant's permanent impairment. Consequently, the tribunal revoked the MAC and ordered a new certificate to be issued.

In light of the tribunal's findings, the MAC was revoked, and a new certificate was issued, reflecting the correct assessment of the appellant's permanent impairment. The tribunal's decision underscored the importance of accurately applying the relevant provisions of the Act and correctly assessing all relevant conditions in the issuance of a MAC.

Orders