| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kari v David Jones Ltd [2025] NSWPICMP 494 |
| APPELLANT: | Mary Rose Kari |
| RESPONDENT: | David Jones Limited |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Ross Mellick |
| MEDICAL ASSESSOR: | Tim Anderson |
| DATE OF DECISION: | 9 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); application under section 378 (as preserved) for reconsideration; appellant re-examined; evidence established the appellant’s condition had deteriorated and that her permanent impairment had worsened; Appeal Panel exercised its discretion to reconsider; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION FOR RECONSIDERATION
On 14 January 2016, an Appeal Panel constituted by Approved Medical Specialists Phillipa Harvey and John Ashwell and Arbitrator Ross Bell confirmed a medical assessment certificate Approved Medical Specialist Paul Myers (the AMS) issued on 21 August 2015 (the MAC). The MAC the AMS issued contained his certification of medical disputes the Workers Compensation Commission (the WCC) had referred to him relating to two injuries, Mary Rose Kari, the appellant, had suffered whilst employed with David Jones Limited, the respondent, the first of those injuries occurring on 26 August 2008 and the second on 11 June 2010.
The AMS assessed the appellant had 7% whole person impairment (WPI) from her earliest injury, which involved the appellant’s left shoulder and cervical spine, and assessed she had 2% WPI from her later injury, which involved her lumbar spine, scarring and her digestive system (pelvis).
Following the decision of that Appeal Panel, the WCC issued a certificate of determination on 16 February 2016 (the COD) recording determinations that Deputy Registrar and Arbitrator Ms Annette Farrell made that reflected the assessments of the AMS.
On 6 February 2020 the appellant had spinal surgery when a L3-L5 decompression and fusion was done. On 5 August 2024 the appellant applied to the Personal Injury Commission (Commission) seeking the Commission reconsider the MAC. Subsequently, she amended her application to seek reconsideration of the decision of the Appeal Panel dated 14 January 2016.
Before that could occur, it was necessary that the COD be rescinded. The matter was referred to Member John Wynyard and, as Member Wynyard explained in a statement of reasons he published on 29 January 2025[1], for the COD to be rescinded it was necessary, firstly, that immediately before 21 March 2021 the appellant had an unexercised right to seek reconsideration under s 378 (as preserved) of the Workplace Injury Management and Workers Compensation Act 1988 (the 1998 Act) of the decision of the Appeal Panel dated 14 January 2016 and secondly, that he exercise his discretion to reconsider and rescind the COD.
Member Wynyard made the following findings and orders:
“[Findings]
1. The applicant has an unexercised right to re-assessment by a Medical Panel due to the deterioration in her condition since the Medical Appeal Panel determination of 14 January 2016, as evidenced by the fusion surgery she underwent on 6 November 2020.
2. The…
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- AGLC
- Kari v David Jones Ltd [2025] NSWPICMP 494
- Case
- [2025] NSWPICMP 494
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the tribunal had the authority to revoke a MAC upon evidence that the appellant's condition had deteriorated and her permanent impairment had worsened. The appellant argued that the tribunal had not exercised its discretion correctly under section 378 of the Act, as preserved. The respondent contended that the tribunal's decision was justified based on the evidence presented, which showed a significant change in the appellant's medical condition since the issuance of the MAC.
The tribunal considered the legislative framework and the appellant's medical evidence, including the results of a recent re-examination. It found that the appellant's condition had indeed deteriorated, and her permanent impairment had worsened since the original MAC was issued. The tribunal concluded that the Appeal Panel had exercised its discretion appropriately by revoking the MAC in light of the new evidence. The tribunal held that the appellant's appeal was without merit, and the decision to revoke the MAC was upheld.
In light of the tribunal's decision, it dismissed the appeal and confirmed the revocation of the MAC. The tribunal's ruling stood, and the respondent's decision to revoke the MAC was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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