Inghams Enterprises Pty Ltd v Kitchen - [2025] NSWPICMP 187

DETERMINATION OF APPEAL PANEL
CITATION:	Inghams Enterprises Pty Ltd v Kitchen [2025] NSWPICMP 187
APPELLANT:	Inghams Enterprises Pty Ltd
RESPONDENT:	Bradley Edward Kitchen
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	Doron Sher
MEDICAL ASSESSOR:	Tommasino Mastroianni
DATE OF DECISION:	20 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; application to appeal; request for oral hearing; no submissions provided as to why oral hearing appropriate; Galluzzo v Little applied; oral hearing not granted; submission that Medical Assessor had mischaracterised the injury rejected; no basis for submission that only one-third of the impairment should be attributed to aggravation of disease injury; section 323; no basis for submissions there should be deduction of two-third; Held – Medical Assessment Certificate Confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 July 2024 Inghams Enterprises Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Yui-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
20 June 2024.
The appellant relies on the following ground 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Kitchen commenced employment with the appellant in 1978. He spent a period of time working in various duties as a process worker in a poultry worker until 1987, when he began working on the turkey line. His duties required him to lift live turkeys from crates. The turkeys would weight from 4kg to around 20kg. He would lift them by their feet, whilst the birds were flapping and struggling, before placing them in shackles before the line moved along to the stunning and slaughtering phases. The shackle was approximately shoulder height.
The work was heavy and repetitive. He completed these duties until 2011 when he was put onto a different job involving high-pressure hosing. At times he would be put back on the shackling line and was threatened with dismissal if he refused…

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

AGLC: Inghams Enterprises Pty Ltd v Kitchen [2025] NSWPICMP 187
Case: [2025] NSWPICMP 187
Decision Date: 20 March 2025

CaseChat Overview and Summary

Inghams Enterprises Pty Ltd brought an application to appeal a decision made under the Workplace Injury Management and Workers Compensation Act 1998, which pertained to the assessment of an employee’s injury and the resulting compensation. The court was asked to determine whether the Medical Assessor's evaluation was accurate and if an oral hearing was warranted. The primary dispute centred on the characterisation of the injury and the appropriate level of impairment attributable to the workplace incident.

The legal issues before the court included whether the Medical Assessor's characterisation of the injury was correct, and if the percentage of impairment attributed to the aggravation of the pre-existing disease was justified. Additionally, the court needed to decide if an oral hearing was necessary to resolve the dispute. The court had to consider whether there were any grounds for the submission that only one-third of the impairment should be attributed to the aggravation of the disease, and if there was a basis for deducing two-thirds of the impairment.

In considering the application, the court noted that there were no submissions provided as to why an oral hearing would be appropriate. Applying the principles from Galluzzo v Little, the court found that no compelling reasons were presented to warrant an oral hearing. Furthermore, the submission that the Medical Assessor had mischaracterised the injury was rejected as there was no basis to support it. The court also dismissed the argument that only one-third of the impairment should be attributed to the aggravation of the disease, finding no basis for the submission that two-thirds should be deducted. Consequently, the court confirmed the Medical Assessment Certificate as it stood.

The court ultimately decided not to grant an oral hearing and confirmed the Medical Assessment Certificate. This decision was based on the absence of any valid submissions to support the need for an oral hearing and the lack of merit in the arguments challenging the Medical Assessor’s findings.

Orders