M R Waterproofing Technicians Pty Ltd v Kanozi - [2025] NSWPICMP 362

DETERMINATION OF APPEAL PANEL
CITATION:	M R Waterproofing Technicians Pty Ltd v Kanozi [2025] NSWPICMP 362
APPELLANT:	M R Waterproofing Technicians Pty Ltd
RESPONDENT:	Laith Kanozi
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	John Lam-Po-Tang
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	23 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by employer from MAC finding of 19% for psychiatric injury; whether Medical Assessor (MA) erred by not considering whether any secondary psychiatric injury should be deducted; whether MA erred in assessment of self-care and hygiene class 2 rating and employability class 5 rating; Held – the referral was deficient and did not in turn instruct the MA to make a deduction for any secondary psychiatric injury; Skates v Hills Industries Ltd referred to and applied; worker re-examined by Appeal Panel; found that the secondary psychological injury of persistent depressive disorder was so intermingled with the primary post-traumatic stress disorder (PTSD) injury that it could not be isolated; ETM Projects Pty Ltd v Gregorgiou considered; Ausgrid Management Pty Ltd v Fisk considered and applied; self-care and hygiene category rating reduced to class 1; employability rating confirmed; MAC revoked and 17% substituted.

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 December 2024 M R Waterproofing Technicians Pty Ltd, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment. “Baseline WPI” is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.

RELEVANT FACTUAL BACKGROUND

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 362
Decision Date: 23 May 2025

CaseChat Overview and Summary

In the matter of M R Waterproofing Technicians Pty Ltd versus Kanozi, the primary issue was a dispute over the assessment of a worker's compensation claim for psychiatric injury sustained in the course of employment. The case was heard and determined by the Workers Compensation Appeals Commission. The employer, M R Waterproofing Technicians Pty Ltd, appealed the decision of a Medical Assessor who had awarded a 19% permanent impairment rating for a psychiatric injury sustained by the worker, Kanozi. The employer argued that the Medical Assessor had erred in several respects, including not considering whether any secondary psychiatric injury should be deducted from the primary injury.

The legal issues before the court centred on whether the Medical Assessor had correctly applied the relevant legislative provisions in assessing the worker's psychiatric injury. Specifically, the employer contended that the Medical Assessor had failed to consider whether there was any secondary psychiatric injury that should have been deducted from the primary injury, and whether the ratings assigned for self-care and hygiene and employability were appropriate. The court needed to determine if the Medical Assessor's findings were supported by the evidence and if the statutory guidelines were correctly applied.

In its decision, the Workers Compensation Appeals Commission found that the referral for the medical assessment did not adequately instruct the Medical Assessor to consider secondary psychiatric injuries, and thus the finding of 19% was upheld. The court also examined the relationship between the primary and secondary psychiatric conditions and concluded that they were too intermingled to allow for separate assessment. Furthermore, the court found that the self-care and hygiene category rating should be reduced to class 1, but the employability rating was confirmed as class 5. Consequently, the Medical Assessment Certificate was revoked, and a 17% permanent impairment rating was substituted.

Orders