Liew v Amber Group Australia Pty Ltd - [2025] NSWPICMP 113

DETERMINATION OF APPEAL PANEL
CITATION:	Liew v Amber Group Australia Pty Ltd [2025] NSWPICMP 113
APPELLANT:	Shirley Liew
RESPONDENT:	Amber Group Australia Pty Limited
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	24 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; both parties agreed Medical Assessor (MA) erred by making a deduction under section 323(1) for a pre-existing condition; whether the MA also erred with respect to his ratings of appellant’s impairment in self-care and personal hygiene, social and recreational activities, and employability; Held – Appeal Panel held that the MA erred with his ratings for those categories; appellant re-examined; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 December 2024 Shirley Liew, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Anku Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 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 (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 (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).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment with Amber Group Australia Pty Ltd, the respondent, in 2016 as a local Australian director. In 2020 she was appointed as the Chief Executive Officer (CEO) of the respondent. Due to the stresses of her work as the CEO and the manner in which she was treated by the group managing director of the respondent, she suffered a psychological injury. She ceased her employment in June 2021.
On 18 January 2024 the appellant’s solicitors emailed a letter to the respondent’s insurer advising it that the appellant claimed compensation under s 66 of the Workers CompensationAct 1987 (the 1987 Act) for 26% whole person impairment (WPI) she said she had from her injury. The appellant’s solicitors further advised that the appellant relied on a report of psychiatrist Dr Mukesh Kumar dated 15 December 2023 in support of her claim. The appellant’s solicitors enclosed…

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 113
Decision Date: 24 February 2025

CaseChat Overview and Summary

The case of Liew v Amber Group Australia Pty Ltd involved a dispute regarding workers' compensation, specifically under the Workplace Injury Management and Workers Compensation Act 1998. The appellant, Liew, contested the decision of a Medical Assessor (MA) appointed to evaluate the extent of injuries sustained in a workplace accident. Both parties agreed that the MA erred in making a deduction for a pre-existing condition under section 323(1) of the Act. However, the primary dispute centred on whether the MA also erred in his ratings of Liew’s impairment in self-care and personal hygiene, social and recreational activities, and employability.

The legal issues before the court involved determining whether the MA’s ratings were incorrect and, if so, to what extent they should be revised. The court needed to assess the MA’s findings in light of the evidence presented and the applicable statutory provisions. The appellant argued that the MA had underestimated the impact of the injuries on various aspects of his life and work capacity. Conversely, the respondent maintained that the MA’s assessments were reasonable and aligned with the evidence.

The court found that the MA had indeed erred in his ratings for the specified categories. The Appeal Panel concluded that the MA’s assessments did not adequately reflect the appellant's level of impairment, leading to an understatement of the impact of the workplace injuries. Consequently, the appellant was re-examined by a new Medical Assessor, and the original Medical Assessment Certificate was revoked. This finding was pivotal as it directly affected the compensation amount payable to the appellant. The court's decision emphasised the importance of accurate and comprehensive assessments in workers' compensation cases to ensure fairness and proper adjudication of claims.

Orders