Kari v David Jones Ltd - [2025] NSWPICMP 494

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Before that could occur, it was necessary that the COD be rescinded.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.
[1] Kari v David Jones Ltd [2025] NSWPIC 26.
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…

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.

Continue reading Kari v David Jones Ltd

Details

AGLC: Kari v David Jones Ltd [2025] NSWPICMP 494
Case: [2025] NSWPICMP 494
Decision Date: 9 July 2025

CaseChat Overview and Summary

The appellant, Kari, appealed against a decision of the respondent, David Jones Limited, in relation to her workers' compensation claim. The dispute centered around the assessment and subsequent revocation of a Medical Assessment Certificate (MAC) issued under the Workplace Injury Management and Workers Compensation Act 1998. The appeal was heard by the relevant tribunal, which was tasked with determining whether the Appeal Panel's decision to reconsider and revoke the MAC was legally sound.

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