Windhill Transport Pty Ltd v Spencer - [2025] NSWPICMP 497

DETERMINATION OF APPEAL PANEL
CITATION:	Windhill Transport Pty Ltd v Spencer [2025] NSWPICMP 497
APPELLANT:	Windhill Transport Pty Ltd
RESPONDENT:	Dayle Spencer
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	10 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; appellant employer alleged error in the Medical Assessor’s (MA) failure to make a reduction from the assessment of whole person impairment (WPI) for a secondary psychological injury and asked on appeal that the assessment be reduced by 50%; the Appeal Panel did not find error and considered that the MA’s reasons were adequately explained as to why the assessed impairment resulted from the primary psychological injury; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 March 2025 the employer (the appellant), lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 February 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 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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant did not request that the worker undergo a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not find error, and absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has…

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 497
Decision Date: 10 July 2025

CaseChat Overview and Summary

Windhill Transport Pty Ltd, the appellant employer, appealed against a Medical Assessment Certificate (MAC) issued under the Workplace Injury Management and Workers Compensation Act 1998, which assessed the whole person impairment (WPI) of a former employee, the respondent. The employer contended that the Medical Assessor (MA) erred by not reducing the WPI for a secondary psychological injury and sought a reduction by 50%. The Appeal Panel upheld the MAC, finding no error in the MA's assessment that the impairment resulted from the primary psychological injury.

The primary legal issue before the court was whether the Appeal Panel correctly upheld the MAC, particularly regarding the MA's failure to reduce the WPI for a secondary psychological injury. The court needed to determine if the MA's assessment was reasonable and adequately supported by evidence. The employer argued that the MA should have made a reduction for the secondary psychological injury, which the MA did not do, resulting in an incorrect WPI assessment.

The court reviewed the MA's assessment and the reasons provided, finding that the MA had adequately explained why the WPI resulted from the primary psychological injury. The MA considered the claimant's medical history, including past psychiatric admissions, current psychiatric treatment, and other stressors, and concluded that these factors contributed to the primary psychological injury rather than a secondary one. The court found that the MA's reasons were well-founded and the assessment was supported by the evidence. Therefore, the court upheld the MAC, confirming the WPI assessment.

The court's decision resulted in the dismissal of the employer's appeal. The final order confirmed the MAC, maintaining the WPI assessment as determined by the MA. The employer's request for a reduction in the WPI for the secondary psychological injury was denied.

Orders

Orders of the court

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Background

Background to the litigation

He explained the facts on which his assessment was based and the reasons for the assessment as follows:“9. THE FACTS ON WHICH THE ASSESSMENT IS BASEDThe facts on which I have based my assessment of whole person impairment are:The information he provided in the interview, my observations of hin during the course of the interview, and the medical records provided to me.10.REASONS FOR ASSESSMENTa. My opinion and assessment of whole person impairment23%In making that assessment I have taken account of the following matters:-The information from the assessment and my observations of her, which can be found above, as well as information from the relevant documents, which have been summarised below:The letter written by Dr Prudence Greenwell, general practitioner, dated 28 June 2017.The claimant was involved in a truck accident where he was pulled from a burning truck and nearly died. He had a right shoulder and knee injury. He has been very anxious, not sleeping, avoiding driving and feels he cannot get into a truck again. He was on Cipramil 20mg a day and Coversyl. Discharge summary from St John of God Hospital Richmond, dated 30 August 2018.He was diagnosed with Posttraumatic Stress Disorder with secondary Alcohol and Marijuana Use Disorder. He was pulled from a burning truck. He had physical abuse as a child. His fiancé died in a motor vehicle accident. He progressed well in the admission and his wife was due to give birth in October.Assessment summary from St John of God Hospital, dated 5 February 2019.The claimant was an ex-truck driver. He had two children and lives in Cowra. He was pulled from a truck fire 20 months prior and has not worked since. Other stressors include having a new baby and reduced libido, increased alcohol use for the past two weeks drinking six drinks a day, his best friend’s dad is sick, various financial stressors, his wife was threatening to leave him and his wife’s mother had passed away. He had ongoing intermittent panic attacks. His past psychiatric history included having a three month rehab admission after his fiancé’s death in 1990 and he had been seeing a psychologist and psychiatrist. Addendum to the discharge summary, dated 30 August 2018.His medication included Diazepam 5mg, Escitalopram 20mg and Thiamine 300mg. He was following up with a psychologist and psychiatrist on discharge. Discharge summary from St John of God Hospital, dated 21 March 2019. He was diagnosed with Posttraumatic Stress Disorder with Alcohol Use Disorder following the subject accident. He was on Escitalopram 20mg, Diazepam 5mg and Clonazepam as needed. He was followed up with his general practitioner, psychologist, drugs and alcohol support and psychiatrist.Discharge summary from St John of God Hospital, dated 3 September 2019.He was admitted with a diagnosis of Posttraumatic Stress Disorder with suicidal ideation and Alcohol Use Disorder. He remained on Escitalopram increased to 30mg, Lithium 125mg and Clonazepam as needed. The letter written by Dr Prudence Greenwell, general practitioner, dated 9 September 2019.The claimant has been suffering from Posttraumatic Stress Disorder since the subject accident. He has been seeing his psychologist, Jenny Duggan and a psychiatrist, Dr Jacobsen and has had three admissions to St John of God Hospital. He also has an alcohol problem. He has two children and a supportive wife. He has ongoing anxiety and blackouts. He was on Clonazepam 0.5mg as needed, Lexam 20mg, Lithium 250mg ½ a tablet per day. The letter written by Dr Paul Stevenson, psychiatrist, dated 6 December 2019.The claimant was diagnosed with cognitive impairment. He presented quite distressed. It was hard to get a good history from him. He had been abstinent from alcohol for three weeks. He was on Clonazepam 0.5mg in the morning and 1mg nightly, Panadeine Forte, Metoprolol, Mirtazapine 22.5mg nightly and Lithium 125mg in the morning.The report written by Corrine Roberts, neuropsychologist, dated 4 September 2020.His pre-morbid intellectual ability was in the average range. He had fluctuating attention and working memory with reduced speed of information processing. His short term memory fluctuated and was easily overwhelmed. He had good planning in a structured situation but was slow to complete tasks. He struggled to sustain his mental effort. The report written by Dr Yajuvendra Bisht, psychiatrist, dated 11 July 2022.He was unable to provide malingering or exaggerated symptoms. The claimant had reached maximum medical improvement, however, he was not able to provide a whole person impairment.The report written by Dr Yajuvendra Bisht, psychiatrist, dated 27 October 2022.He was diagnosed with Posttraumatic Stress Disorder, Major Depressive Disorder and alcohol dependence. The report written by Dr Yajuvendra Bisht, psychiatrist, dated 10 January 2023.Self-care and personal hygiene were mildly impaired. He was able to shop for himself but not particular with grooming. Social and recreational activities was moderately impaired. He does not attend social gatherings. Travel was mildly impaired as he cannot travel without support to unfamiliar places but able to travel to familiar places on his own such as the local shops. Social functioning was mildly impaired as his relationship with his family was affected. His concentration was moderately impaired as he was not able to read more than a few lines before losing concentration. Employability was severely impaired. His whole person impairment was 17% with a deduction for pre-morbid condition of 1.7% with a final whole person impairment of 15% with a deduction of 50% for a physical injury, with a whole person impairment 8%. The report written by Dr Joanne Holdaway, psychiatrist, dated 30 October 2023.He was diagnosed with Posttraumatic Stress Disorder , Persistent Depressive Disorder (Dysthymia), Alcohol Use Disorder and a provisional diagnosis of Somatic Symptom Disorder. There was a possible mild to moderate neurocognitive impairment with a mini mental state exam of 27/30 with subject difficulty with cognitive functioning. Self-care was moderately impaired, social and recreational activities was moderately impaired, travel was moderately impaired, social functioning was mildly impaired, concentration was severely impaired and employability was totally impaired with a whole person impairment of 26% with a deduction for pre-existing impairment with a final whole person impairment of 18%. The report written by Dr Yajuvendra Bisht, psychiatrist, dated 5 June 2024.His whole person final impairment was still 8%.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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