Donhad Pty Ltd v Asbury - [2025] NSWPICMP 4

DETERMINATION OF APPEAL PANEL
CITATION:	Donhad Pty Ltd v Asbury [2025] NSWPICMP 4
APPELLANT:	Donhad Pty Ltd
RESPONDENT:	Alan John Asbury
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	6 January 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; Held – Panel held error regarding section 323; apportionment also required; 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, 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 Medical Assessor 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 Medical Assessor erred in his application of s 323 of the 1998 Act, failed to consider available…

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 4
Decision Date: 6 January 2025

CaseChat Overview and Summary

Donhad Pty Ltd appealed against a decision made by a Medical Assessor regarding workers' compensation. The appellant argued that the Medical Assessor had made several errors in his assessment of a worker's injury and entitlement to compensation. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT). The appellant contended that the Medical Assessor had erred in his 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 his conclusions. The appellant sought a review of the Medical Assessment Certificate (MAC) issued by the Medical Assessor.

The AAT was required to determine whether the Medical Assessor had indeed erred in his assessment, and if so, whether this error was significant enough to warrant a revocation of the MAC. The AAT examined the evidence presented by both parties and the relevant statutory provisions. The AAT found that the Medical Assessor had indeed erred in his application of section 323 of the Act. The AAT also found that the Medical Assessor had failed to consider some available evidence and did not provide adequate reasons for his conclusions. Consequently, the AAT concluded that the errors made by the Medical Assessor were significant enough to warrant a revocation of the MAC.

The AAT revoked the MAC and ordered that a new Medical Assessment be undertaken. The AAT also directed that the new assessment should include a consideration of the contribution of pre-existing conditions to the worker's injury and an appropriate apportionment of compensation entitlements. This decision highlights the importance of accurate and thorough assessments in workers' compensation cases, as well as the need for Medical Assessors to consider all available evidence and provide adequate reasons for their conclusions.

Orders