| 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th 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…
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- Case
- [2025] NSWPICMP 615
- Decision Date
CaseChat Overview and Summary
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.
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