Star Waterproofing Pty Ltd v Daghagheleh - [2025] NSWPICMP 826

DETERMINATION OF APPEAL PANEL
CITATION:	Star Waterproofing Pty Ltd v Daghagheleh [2025] NSWPICMP 826
APPELLANT:	Star Waterproofing Pty Ltd
RESPONDENT:	Mahmoud Daghagheleh
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	23 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); primary and secondary psychological injury section 65A of the Workers Compensation Act 1987, and Mercy Connect v Kiely (No. 2) considered; intermingling of impairment and symptoms Ausgrid Management v Fisk; importance of referral document; Skates v Hills Industries Ltd; re-examination; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 June Star Waterproofing Pty Ltd (Star) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor John Lam-Po-Tang, who issued a Medical Assessment Certificate (MAC) on 16 May 2025.
Star relies on the ground of appeal in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – that the MAC contains a demonstrable error.
The President’s delegate was satisfied, on the face of the application, that the ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the grounds 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

On 25 February 2020, Mr Daghagheleh was descending from a roof when the ladder lost its footing and tilted away from the roof and rotated, causing him to fall about 4m to the ground. In 2022 his physical injuries to his lumbar spine and right wrist and scarring were assessed by a Medical Assessor and he received compensation for 12% whole person impairment (WPI).
Mr Daghagheleh commenced proceedings seeking medical assessment for the purpose of a threshold dispute for a work injury damages claim. On 24 March 2025 a Member of the Personal Injury Commission (Commission) determined that Mr Daghagheleh suffered a primary psychological injury on 25 February 2020 as well as a secondary psychological injury as a result of his physical injuries. The Member held that the prior assessment of physical impairment did not prevent the referral of a medical dispute with respect to the primary psychological injury. He ordered that the “threshold dispute with respect to…

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 826
Decision Date: 23 October 2025

CaseChat Overview and Summary

Star Waterproofing Pty Ltd brought proceedings against Mr. Daghagheleh in the Workers Compensation Court, challenging the validity of a Medical Assessment Certificate (MAC) issued to Mr. Daghagheleh. The dispute centered around the assessment of a psychological injury that Mr. Daghagheleh claimed to have suffered as a result of his employment with Star Waterproofing Pty Ltd. The court was tasked with determining whether the MAC accurately reflected Mr. Daghagheleh's condition and the extent of his psychological injury, as well as the proper application of relevant sections of the Workers Compensation Act 1987.

The legal issues before the court included the interpretation and application of section 65A of the Workers Compensation Act 1987 concerning primary and secondary psychological injuries, as well as the intermingling of impairment and symptoms as discussed in Ausgrid Management v Fisk. Additionally, the court had to consider the importance of referral documents and the principles of re-examination as established in Skates v Hills Industries Ltd. The key issue was whether the MAC correctly assessed Mr. Daghagheleh's condition, considering the interplay between his psychological impairment and symptoms, and whether the assessment was supported by sufficient evidence.

The court found that the MAC did not accurately reflect Mr. Daghagheleh's condition due to the intermingling of impairment and symptoms. It noted that the referral document was not sufficiently detailed to support the MAC, and the re-examination principles applied in Skates v Hills Industries Ltd were not adequately considered. The court further held that the MAC should have differentiated between the primary and secondary psychological injuries, in line with the principles established in Mercy Connect v Kiely (No. 2). Consequently, the court revoked the MAC, finding it to be insufficiently substantiated and flawed in its assessment.

The final order of the court was the revocation of the MAC issued to Mr. Daghagheleh, with directions for a new assessment to be conducted in accordance with the principles outlined in the judgment. The court emphasised the importance of clear differentiation between primary and secondary psychological injuries, the need for detailed referral documents, and the proper application of re-examination principles in future assessments.

Orders