Li v Villawood Relaxation Centre - [2025] NSWPICMP 131

DETERMINATION OF APPEAL PANEL
CITATION:	Li v Villawood Relaxation Centre [2025] NSWPICMP 131
APPELLANT:	Jason Li
RESPONDENT:	Villawood Relaxation Centre
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	Doron Sher
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	28 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; worker assaulted in employment suffering injury to lumbar spine; evidence of age related degenerative change and previous injury to lumbar spine; extent of previous injury unclear; inconsistent histories given of extent of injury; insufficient evidence to form a conclusion for the proportion of impairment due to previous injury; section 323(2) operates in those circumstances; deduction of one tenth made; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 November 2024 Jason Li, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by David Gorman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 November 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).

RELEVANT FACTUAL BACKGROUND

Mr Li was assaulted by a co-worker on 11 May 2019 in the course of his employment. A minor argument over the allocation of a shift resulted in Mr Li being subject of a significant assault, resulting in injuries to his face, a fractured rib, and for the purposes of this dispute, a significant lumbar spine injury.
In May 2022, Mr Li underwent surgery in the form of L5/S1 decompression and fusion, and required a further operation shortly after.
Mr Li made a claim for lump sum compensation. A dispute ensued about the degree of permanent impairment and he brought proceedings in the Commission. The matter was referred for assessment of permanent impairment, undertaken by Dr Gorman, who issued a MAC on 3 November 2024. That assessment was 25% whole person…

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 131
Decision Date: 28 February 2025

CaseChat Overview and Summary

The case of Li v Villawood Relaxation Centre involved a dispute over workers' compensation for an injury sustained by the plaintiff during the course of her employment. The plaintiff, a massage therapist, alleged that she suffered a lumbar spine injury after being assaulted by a client at work. The defendant, Villawood Relaxation Centre, initially accepted liability for the injury but later disputed the extent of the impairment and the proportion attributable to the workplace incident.

The primary legal issue before the court was to determine the extent of the impairment to the plaintiff's lumbar spine and the proportion of that impairment that was caused by the workplace incident. The court had to consider evidence regarding the plaintiff's age-related degenerative changes, previous injuries to her lumbar spine, and inconsistent accounts of the extent of the injury. The court was required to decide whether the evidence was sufficient to form a reliable conclusion regarding the proportion of impairment due to the workplace incident.

The court found that the evidence was insufficient to conclusively determine the proportion of impairment attributable to the workplace incident. Given the unclear extent of the previous injury and the inconsistent histories provided, the court applied section 323(2) of the Workplace Injury Management and Workers Compensation Act 1998. This provision mandates a one-tenth deduction when there is insufficient evidence to apportion the impairment accurately. Consequently, the court revoked the Medical Assessment Certificate and ruled in favour of the plaintiff with the adjusted impairment rating.

Orders