Robertson v D.J Ellis & D.W Ellis - [2025] NSWPICMP 615

DETERMINATION OF APPEAL PANEL
CITATION:	Robertson v D.J Ellis & D.W Ellis [2025] NSWPICMP 615
APPELLANT:	James Robertson
RESPONDENT:	D.J ELLIS & D.W ELLIS
APPEAL PANEL
MEMBER:	Mitchell Strachan
MEDICAL ASSESSOR:	Robert Payten
MEDICAL ASSESSOR:	Thandavan Raj
DATE OF DECISION:	18 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); Medical Assessor (MA) fell into error in making deduction pursuant to section 323 for noise exposure outside of New South Wales after deemed date of injury; whether deduction was available to MA in any event; Schofield v Abigroup Limited, Mills v Conopus Corporation Australia Pty Ltd, and Miller v Tom Condon Stone Masonry considered and distinguished; Bain v Commissioner for Railways, A & G Engineering Pty Ltd v Civitarese, Russo v World Services and Construction, Rico Pty Ltd v Roads and Traffic Authority, Curran v Linfox Armaguard Pty Ltd, and Ventia Australia Pty Ltd v Mawson considered and applied; Held – no deduction for noise exposure outside of New South Wales after the deemed date of injury is available.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 June 2025, James Robertson, the appellant, lodged an Application to Appeal Against the decision of a Medical Assessor. The medical dispute was assessed by Dr Henley Harrison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
9 May 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 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 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

The factual background with respect to the appellant’s employment history is uncontroversial but important in the context of the current appeal. It is set out by the appellant’s solicitor in the Notice of Claim and Notice of Injury dated 4 March 2024 as follows:
(a) 1982 to 2009 as a labourer/machine operator in noisy employment with various employments in New South Wales;
(b) 2010 to 2013 as a labourer/machine operator in…

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 615
Decision Date: 18 August 2025

CaseChat Overview and Summary

The case of Robertson v D.J Ellis & D.W Ellis was heard in a court in New South Wales. The plaintiff, Robertson, sought review of a decision concerning a Medical Assessment Certificate (MAC) issued under the Workplace Injury Management and Workers Compensation Act 1998. The certificate had included a deduction for noise exposure which Robertson argued was incorrect as it related to exposure outside New South Wales after the deemed date of injury. The defendants, D.J Ellis & D.W Ellis, maintained that the deduction was valid and correctly applied.

The primary legal issues for the court to decide were whether the Medical Assessor (MA) had the authority to make a deduction for noise exposure outside New South Wales following the deemed date of injury and, if so, whether the deduction was properly made. The court considered several cases, including Schofield v Abigroup Limited, Mills v Conopus Corporation Australia Pty Ltd, and Miller v Tom Condon Stone Masonry, which were distinguished from the facts of this case. The court also drew on Bain v Commissioner for Railways, A & G Engineering Pty Ltd v Civitarese, Russo v World Services and Construction, Rico Pty Ltd v Roads and Traffic Authority, Curran v Linfox Armaguard Pty Ltd, and Ventia Australia Pty Ltd v Mawson to assist in its reasoning.

The court found that the deduction made by the MA was not available because it related to noise exposure outside New South Wales after the deemed date of injury. The reasoning was based on the specific jurisdictional limitations of the MAC and the statutory provisions. The court applied the principles from Bain v Commissioner for Railways and others to conclude that such deductions were not permissible under the circumstances presented. Therefore, the court ruled that no deduction for noise exposure outside New South Wales after the deemed date of injury is available.

The court's final orders were to set aside the deduction made by the MA for noise exposure outside New South Wales post the deemed date of injury, with no costs awarded. This decision reinforces the importance of jurisdictional boundaries in the application of the Workers Compensation Act 1998.

Orders