Donhad Pty Ltd v Asbury - [2025] NSWPICMP 62

DETERMINATION OF APPEAL PANEL
CITATION:	Donhad Pty Ltd v Asbury [2025] NSWPICMP 62
APPELLANT:	Donhad Pty Ltd
RESPONDENT:	Alan John Asbury
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	4 February 2025
DATE OF AMENDMENT:	19 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submits that the Medical Assessor erred in three respects namely, in his application of section 323, failed to consider available evidence and failed to provide adequate reasons; Panel held error regarding section 323; apportionment also required; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 30 October 2024 Donhad Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 3 October 2024.
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 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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in his application of section 323 of the 1998…

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 62
Decision Date: 4 February 2025

CaseChat Overview and Summary

Donhad Pty Ltd sought to challenge the decision of a Medical Assessor in a matter concerning workers' compensation. The appellant argued that the Medical Assessor made errors in the application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998, failed to consider available evidence, and did not provide adequate reasons for the assessment. The case was brought to the Court of Appeal in Australia to determine the validity of the Medical Assessor’s findings and the subsequent Medical Assessment Certificate.

The primary legal issue for the court was whether the Medical Assessor correctly applied section 323 of the Act and whether the assessment was based on all available evidence. Additionally, the court needed to determine if the Medical Assessor provided adequate reasoning for his conclusions. The appellant contended that the Medical Assessor had erred in the application of the statute, failed to consider all relevant evidence, and did not provide a comprehensive explanation for the assessment. The respondent defended the Medical Assessor’s decision, asserting that the assessment was accurate and properly conducted.

The Court of Appeal found that there was indeed an error in the application of section 323 of the Act by the Medical Assessor. The court held that the assessment did not sufficiently consider all available evidence and that the reasons provided by the Medical Assessor were inadequate. Consequently, the Court revoked the Medical Assessment Certificate. The court further noted that an apportionment of the compensation payable should be made in light of the errors identified.

As a result of the findings, the Court of Appeal revoked the Medical Assessment Certificate and directed that an appropriate apportionment of the compensation payable be determined. The Court’s decision underscores the importance of thorough and accurate application of relevant statutes, consideration of all available evidence, and providing adequate reasons in workers' compensation assessments.

Orders