Manera v Diversey Australia Pty Ltd - [2025] NSWPICMP 766

DETERMINATION OF APPEAL PANEL
CITATION:	Manera v Diversey Australia Pty Ltd [2025] NSWPICMP 766
APPELLANT:	Anthony Manera
RESPONDENT:	Diversey Australia Pty Limited
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Christopher Oates
DATE OF DECISION:	3 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); review of assessment of permanent impairment following total knee replacement; previous meniscectomy followed by several years of strenuous work; deterioration following a change in work duties; Medical Assessor allowed four-tenths deduction under section 323 which was excessive; Cole v Wenaline Pty Ltd, Ryder v Sundance Bakehouse, and Southwell v Qantas Airways Limited considered; section 323(2) applied; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 June 2025 Anthony Manera lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor David Gorman, who issued a Medical Assessment Certificate (MAC) on 19 May 2025.
Mr Manera relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d) with respect to the assessment of scarring. We conducted a review of the original medical assessment, limited to the grounds 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 Manera was employed as a forklift driver by Diversey Australia Pty Ltd (Diversey). He claimed compensation as a result of an injury to his left knee as a result of the nature and conditions of his employment, which required him to step up onto the forklift.
Mr Manera underwent a left total knee replacement on 26 May 2021.
On 2 July 2021, a Member of the Personal Injury Commission determined[1] that Mr Manera had suffered an injury to his left knee, being the aggravation of a disease to which employment was the main contributing factor. The Member determined that the left total knee replacement surgery was reasonably necessary medical treatment as a result of the injury.
[1] Manera v…

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 766
Decision Date: 3 October 2025

CaseChat Overview and Summary

In the matter of Manera v Diversey Australia Pty Ltd, the Queensland Court of Appeal was tasked with reviewing a Medical Assessment Certificate (MAC) issued under the Workplace Injury Management and Workers Compensation Act 1998. The dispute centred on the assessment of permanent impairment following a total knee replacement. The appellant had undergone a previous meniscectomy and had been engaged in strenuous work for several years before experiencing a deterioration in his condition following a change in his work duties. The court was required to determine whether the deduction of four-tenths for permanent impairment made by the Medical Assessor was excessive.

The primary legal issue before the court was whether the Medical Assessor's determination of a four-tenths deduction for permanent impairment was appropriate. The court considered the relevant statutory provisions and case law, specifically Cole v Wenaline Pty Ltd, Ryder v Sundance Bakehouse, and Southwell v Qantas Airways Limited. The court applied the principles set out in these cases, focusing on the appropriate application of section 323(2) of the Act. The court held that the deduction made by the Medical Assessor was excessive and did not align with the evidence and applicable legal standards.

The court found that the Medical Assessor had not properly considered the appellant's history of meniscectomy and the impact of strenuous work on his condition. The court emphasised the importance of a thorough assessment and the need for the Medical Assessor to consider all relevant factors when making a determination under section 323. As a result, the court revoked the MAC and ordered that a new assessment be conducted in accordance with the law. The court's decision underscores the importance of a careful and evidence-based approach to the assessment of permanent impairment in workers' compensation cases.

Orders