Philip Leong Stores Pty Ltd v Ngo - [2025] NSWPICMP 692

DETERMINATION OF APPEAL PANEL
CITATION:	Philip Leong Stores Pty Ltd v Ngo [2025] NSWPICMP 692
APPELLANT:	Philip Leong Stores Pty Ltd
RESPONDENT:	Phi Ngo
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	9 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); claim by employer that Medical Assessor (MA) erred by applying the contralateral provisions of American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) (Chapter 16.4) and the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (Chapter 2.20) as his finding was based on a consequential condition that had not been alleged; Held – MA doing no more than he was required to by the terms of both guidelines; causation a legitimate finding in these circumstances; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd applied; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 May 2025 Philip Leong Stores Pty Ltd, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Donald Cawthorne, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 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). “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

On 6 February 2025, this matter was referred for a WPI assessment of injury to the right upper extremity (shoulder), right lower extremity (knee), lumbar spine and cervical spine, which occurred on a deemed date of 7 July 2021.
Mr Ngo had…

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 692
Decision Date: 9 September 2025

CaseChat Overview and Summary

The case of Philip Leong Stores Pty Ltd v Ngo involved a dispute regarding a workers' compensation claim. The employer, Philip Leong Stores, sought to challenge a Medical Assessment Certificate (MAC) issued by a Medical Assessor (MA) on the grounds that the MA had incorrectly applied the contralateral provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition (AMA 5), and the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition, dated 1 March 2021. The employer argued that the MA's finding was based on a consequential condition that had not been alleged. The case was heard in the relevant Australian court, which was tasked with determining the validity of the employer's challenge to the MAC.

The court was required to decide whether the MA had exceeded their authority by applying the contralateral provisions of the AMA 5 and the SIRA NSW Guidelines. Specifically, the court needed to determine if the MA's application of these provisions was justified in the circumstances and whether the causation finding was legitimate. The court also needed to consider the relevance of the case of Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd in the context of the dispute. These legal issues were central to the resolution of the case and required careful consideration of the statutory provisions and the guidelines in question.

The court found that the MA had not exceeded their authority by applying the contralateral provisions of the AMA 5 and the SIRA NSW Guidelines. The court held that the MA was doing no more than was required by the terms of both guidelines, and that causation was a legitimate finding in these circumstances. The court found that the case of Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd was applicable and supported the MA's approach. As a result, the court confirmed the MAC, upholding the MA's assessment. The court's reasoning was grounded in the statutory provisions and the guidelines, and the decision was consistent with established legal principles.

In light of the court's decision, the MAC was confirmed, and the employer's challenge to the assessment was dismissed. The court's ruling provided clarity on the application of the contralateral provisions of the AMA 5 and the SIRA NSW Guidelines in the context of workers' compensation claims, and reinforced the importance of adhering to the statutory framework and established guidelines when making such assessments.

Orders