Workers Compensation Nominal Insurer v Warner - [2025] NSWPICMP 465

DETERMINATION OF APPEAL PANEL
CITATION:	Workers Compensation Nominal Insurer v Warner [2025] NSWPICMP 465
APPELLANT:	Workers Compensation Nominal Insurer
RESPONDENT:	Warner
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Dr Todd Gothelf
MEDICAL ASSESSOR:	Dr Margaret Gibson
DATE OF DECISION:	30 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); Medical Assessor (MA) found no section 323 deduction in Table 2 certificate but at [11] held there should be a 1/10 deduction; scarring assessed when not in the referral; parties agreed that scarring was not part of the dispute; Held – MAC conclusive that no deduction was appropriate except for [11] which contradicted MA findings as to there being no background of contributory underlying degenerative changes by asserting that there was a background of an asymptomatic arthritic condition; no such condition was reported in the present case and contents of [11] the result of inadvertent error; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 March 2025 the appellant, Workers Compensation Nominal Insurer (A.C.N. 147 142 765 Pty Ltd deregistered), lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Home, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 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 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 Guides) 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 17 December 2024, this matter was referred to the Medical Assessor for an assessment of WPI arising from injury to the left lower extremity and lumbar spine caused by an injury on 2 April 2018.
Mr Warner was employed as a removalist…

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.

Continue reading Workers Compensation Nominal Insurer v Warner

Details

AGLC: Workers Compensation Nominal Insurer v Warner [2025] NSWPICMP 465
Case: [2025] NSWPICMP 465
Decision Date: 30 June 2025

CaseChat Overview and Summary

Workers Compensation Nominal Insurer sought review of a Medical Assessment Certificate (MAC) issued under the Workplace Injury Management and Workers Compensation Act 1998. The dispute arose from the MAC's finding that no deduction was required for scarring, as opposed to the Medical Assessor's conclusion in paragraph [11] of the report, which suggested a 1/10 deduction for scarring. The matter was heard in the relevant tribunal, which was required to determine the correctness of the MAC and the Medical Assessor's findings.

The tribunal examined the conflicting statements within the MAC regarding the deduction for scarring. It noted that the Medical Assessor found no section 323 deduction in Table 2, yet paragraph [11] suggested a deduction should be made. The tribunal further considered that the parties agreed scarring was not part of the dispute, and the scarring was assessed despite not being in the referral. The tribunal's task was to reconcile these discrepancies and determine if the MAC should stand or be revoked.

The tribunal concluded that the MAC was conclusive on the issue of no deduction for scarring, as the Medical Assessor's findings in paragraph [11] contradicted the rest of the MAC by asserting a background of an asymptomatic arthritic condition without any reported evidence. The tribunal held that the contents of paragraph [11] resulted from an inadvertent error and did not reflect the correct assessment. Consequently, the tribunal revoked the MAC.

The tribunal ordered the MAC to be revoked due to the erroneous inclusion of a scarring deduction in paragraph [11], which was not supported by the evidence or the Medical Assessor's findings. The tribunal's decision underscored the importance of consistency and accuracy in MACs, ensuring they accurately reflect the assessment and the legislative framework governing workers' compensation claims.

Orders