Mulga Hill Pty Ltd v Nestor - [2025] NSWPICMP 571

DETERMINATION OF APPEAL PANEL
CITATION:	Mulga Hill Pty Ltd v Nestor [2025] NSWPICMP 571
APPELLANT:	Mulga Hill Pty Ltd
RESPONDENT:	Royce Nestor
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	5 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of psychiatric injury; appeal in respect of assessment of psychiatric impairment rating scale (PIRS) of employability and concentration, persistence and pace on the basis of failure to provide adequate reasoning and to adequately weigh evidence; Appeal Panel found no error in assessment of employability; Appeal Panel considered that the failure to take into account the completion of units of competency at a college in February 2025 was a demonstrable error in assessment of concentration, persistence and pace; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 May 2025 Mulga Hill Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 April 2025.
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

Royce Nestor (Mr Nestor) suffered a psychological injury in the course of his employment as chef with the appellant deemed to have occurred on 13 August 2020.
The appellant commenced proceedings in the Personal Injury Commission (Commission) on 11 December 2024 claiming 19% whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a psychiatric and psychological disorder deemed to have occurred on 13 August 2020.
In a Certificate of Determination – Consent Orders dated 7 February 2025 Member Michael Moore remitted the matter to the President for referral to a Medical…

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 571
Decision Date: 5 August 2025

CaseChat Overview and Summary

In Mulga Hill Pty Ltd v Nestor, the primary dispute centred around the review of a Medical Assessment Certificate (MAC) issued under the Workplace Injury Management and Workers Compensation Act 1998. The certificate pertained to the assessment of a psychiatric injury sustained by Nestor, an employee of Mulga Hill Pty Ltd, following an incident at work. The crux of the matter involved the evaluation of Nestor's psychiatric impairment rating scale (PIRS) in respect of employability and concentration, persistence, and pace. Mulga Hill challenged the assessment, arguing that the panel had failed to provide adequate reasoning and did not appropriately weigh the evidence. Nestor, on the other hand, sought to uphold the assessment.

The central legal issues revolved around whether the assessment of the PIRS components was conducted with due regard for the evidence presented, and whether the panel's determination was legally sound. Specifically, the court needed to determine if the panel's decision to assess Nestor's employability was correct and whether there was a demonstrable error in the assessment of concentration, persistence, and pace due to the omission of relevant evidence regarding Nestor's completion of units of competency at a college. The appeal also sought clarification on whether the panel's failure to consider this evidence constituted a material error in the assessment.

The Appeal Panel meticulously reviewed the evidence and the MAC, finding that the assessment of employability was conducted correctly and no error was apparent in that regard. However, the Panel identified a clear omission in the evidence considered by the original assessment panel. The Panel held that the failure to take into account Nestor's completion of units of competency at a college in February 2025 was a significant error in the assessment of concentration, persistence, and pace. Consequently, the Appeal Panel revoked the MAC and ordered a reassessment, recognising the importance of considering all relevant evidence in the evaluation process.

In light of the findings, the court revoked the MAC and directed that a new assessment be conducted with full consideration of all pertinent evidence, including the completion of units of competency at the college. This decision underscored the necessity for thorough and comprehensive assessments in cases involving psychiatric injury, ensuring that all relevant factors are appropriately weighed and reasoned.

Orders