Larken v Perry - [2025] NSWPICMP 849

DETERMINATION OF APPEAL PANEL
CITATION:	Larken v Perry [2025] NSWPICMP 849
APPELLANT:	Stephen Larken
RESPONDENT:	Paul Perry
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	4 November 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by claimant as Medical Assessor (MA) did not assess the left upper extremity; whether MA under an obligation to assess a part of the anatomy that was not named in the referral; whether procedural fairness required him to do so; whether spinal radiological investigations showing relevant pathology accompanied by complaints of pain should have resulted in a whole person impairment (WPI) assessment; whether lumbar spine examined by the MA; whether adequate reasons given; Held – employer conceded left upper extremity should have been in the referral and consented to a re-examination; Skates v Hills Industries Ltd referred to; lumbar spine properly examined and findings given; MA admitted to not reading relevant material before assessment interview; presumption of regularity considered; Jones v The Registrar WCC, and Stolzenberg v Workers Compensation Nominal Insurer considered and applied; claimant re-examined; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 April 2025 Stephen Larken lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 March 2025.
On 15 April 2025 Stephen Larken lodged a Reconsideration Application as a body part “the left upper extremity had been omitted inadvertently from the referral.”
On 23 April 2025 the respondent conceded that the terms of the referral had omitted the left upper extremity.
On 14 May 2025 the respondent lodged its Notice of Opposition to the Appeal.
The delegate of the President Ms Candy Yang determined that the matter should proceed to the Appeal Panel notwithstanding the agreement regarding the left upper extremity, as the appellant relied on incorrect criteria and demonstrable error as grounds of the appeal.
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…

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 Larken v Perry

Details

AGLC: Larken v Perry [2025] NSWPICMP 849
Case: [2025] NSWPICMP 849
Decision Date: 4 November 2025

CaseChat Overview and Summary

The case of Larken v Perry involved a dispute concerning the review of a Medical Assessment Certificate (MAC) under the Workplace Injury Management and Workers Compensation Act 1998. The claimant, Larken, appealed the MAC, asserting that the Medical Assessor (MA) failed to assess his left upper extremity, a part of his anatomy that was not specified in the referral. The contention was whether the MA was obligated to assess a part of the anatomy not mentioned in the referral and if procedural fairness required such an assessment. Additionally, Larken argued that the spinal radiological investigations showing relevant pathology, accompanied by complaints of pain, should have resulted in a whole person impairment (WPI) assessment. He also questioned whether the lumbar spine was adequately examined by the MA and if sufficient reasons were provided for the assessment.

The court addressed whether the MA was under an obligation to assess the left upper extremity, which was not named in the referral, and whether procedural fairness mandated such an assessment. The employer conceded that the left upper extremity should have been included in the referral and agreed to a re-examination. This concession was based on the principle from Skates v Hills Industries Ltd. The court also considered whether the lumbar spine was properly examined and whether adequate reasons were given for the assessment. The MA admitted to not reading relevant material before the assessment interview. The presumption of regularity was taken into account, along with the cases of Jones v The Registrar WCC and Stolzenberg v Workers Compensation Nominal Insurer, which were applied to the context of the case.

Ultimately, the court found that the lumbar spine was properly examined and that the MA's findings were adequately supported. The MA's admission of not reading relevant material was noted, but the presumption of regularity was upheld. The claimant was re-examined, and the MAC was revoked as a result of the findings. This decision underscores the importance of procedural fairness and the thoroughness of medical assessments in workers' compensation cases.

Orders