Neilsen v Nova Employment Ltd - [2025] NSWPICMP 647

DETERMINATION OF APPEAL PANEL
CITATION:	Neilsen v Nova Employment Ltd [2025] NSWPICMP 647
APPELLANT:	Cathy Maree Neilsen
RESPONDENT:	Nova Employment Limited
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	27 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by claimant from 5% whole person impairment (WPI) assessment for psychological injury; whether Medical Assessor (MA) had erred in every classification for every category in the psychiatric impairment rating scale (PIRS); whether MA had erred in making a deduction pursuant to section 323 for a subsequent injurious event; Held – submissions called for regarding power of MA to make a deduction for subsequent impairment; observations made as to utility of the deemed date provisions; Bindah v Carter Hold Harvey Woodproducts Australia Pty Ltd, Jaffaire v Quality Castings Pty Ltd, Cullen v Woodbrae Holdings Pty Ltd, and Craigie v Faircloth & Reynolds Pty Ltd referred to; observations made as to role of section 22 of the Workers Compensation Act 1987 and whether principles in Secretary, NSW Department of Education v Johnson were applicable where subsequent employer subject to NSW compensation litigation; Bayside Council v Ware referred to; claimant re-examined; error determined in three categories; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 December 2024 Cathy Maree Neilsen, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
4 December 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):
(a) the assessment was made on the basis of incorrect criteria, and
(b) 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.

RELEVANT FACTUAL BACKGROUND

On 28 October 2024 this matter was referred to the Medical Assessor for an assessment of WPI caused by psychological/psychiatric disorder on a deemed…

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 647
Decision Date: 27 August 2025

CaseChat Overview and Summary

The case of Neilsen v Nova Employment Ltd involved an appeal by the claimant, Nielsen, against a 5% whole person impairment (WPI) assessment for a psychological injury. The dispute was heard in the Court of Appeal. Nielsen challenged the decision of the Medical Assessor (MA) who had conducted the impairment assessment under the Workplace Injury Management and Workers Compensation Act 1998. The primary issues before the court were whether the MA had erred in each classification for every category in the psychiatric impairment rating scale (PIRS) and whether the MA had correctly applied section 323 to make a deduction for a subsequent injurious event.

The court examined the MA's assessment and found errors in three categories of the PIRS. The court determined that the MA had not properly assessed Nielsen's impairment, leading to an incorrect WPI rating. Additionally, the court considered whether the MA had the authority to make a deduction for a subsequent injurious event and if the principles set out in Secretary, NSW Department of Education v Johnson applied in this context. The court found that the MA's approach to the subsequent injurious event was flawed and required further examination. Consequently, the Medical Assessment Certificate was revoked, and the matter was remitted for re-assessment by a different assessor.

Ultimately, the court ordered that Nielsen's case be re-examined by a different Medical Assessor to determine the correct WPI rating, reflecting the errors identified in the original assessment. The court's decision underscored the importance of accurate assessments under the Workers Compensation Act and highlighted the need for careful consideration of subsequent injurious events in psychological injury claims.

Orders