Yeboah v Australian Foundation for Disability - [2025] NSWPICMP 209

DETERMINATION OF APPEAL PANEL
CITATION:	Yeboah v Australian Foundation for Disability [2025] NSWPICMP 209
APPELLANT:	Esther Yeboah
RESPONDENT:	Australian Foundation for Disability
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Todd Gothelf
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	26 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether medical dispute between the parties included the degree of the appellant’s permanent impairment from scarring in the circumstance where scarring was not particularised in the application or in the referral to the Medical Assessor (MA); whether MA erred by not assessing the degree of appellant’s permanent impairment from scarring; Held – Appeal Panel held that the claim for compensation the appellant made had attached to it a report detailing she had impairment from scarring and given that the respondent disputed liability to meet that claim the medical dispute between the parties included whether the appellant had any permanent impairment from scarring; MA erred by not assessing scarring; appellant re-examined; MAC revoked and issued a new certificate.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 November 2024 Esther Yeboah, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
1 November 2024.
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 (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 appellant, whilst working for Australian Foundation for Disability, the respondent, fell down an escalator on 11 October 2019 twisting and injuring her left knee. Because of that left knee injury, she subsequently developed a condition in her right knee.
On 22 September 2023 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation from it under s 66 of the Workers’ Compensation Act 1987 (the 1987 Act)…

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 209
Decision Date: 26 March 2025

CaseChat Overview and Summary

In the case of Yeboah v Australian Foundation for Disability, the appellant sought to challenge a Medical Assessment Certificate (MAC) issued under the Workers Compensation scheme. The dispute centred around the degree of the appellant’s permanent impairment due to scarring, a matter that was not explicitly detailed in the application or the referral to the Medical Assessor (MA). The court was tasked with determining whether the medical dispute between the parties encompassed the degree of permanent impairment from scarring and whether the MA had erred by not assessing this aspect. The appeal was heard by the Workers Compensation Appeals Tribunal in Victoria.

The primary legal issue before the court was whether the medical dispute between the parties included the degree of the appellant’s permanent impairment from scarring, given that scarring was not particularised in the application or in the referral to the MA. Additionally, the court had to consider whether the MA had made an error by not assessing the degree of permanent impairment from scarring. The appellant argued that the MA failed to address the issue of scarring, which was a critical component of her claim for compensation. The respondent, on the other hand, contended that the MA had not erred and that the medical dispute did not include the degree of scarring.

The Appeals Tribunal concluded that the medical dispute did indeed include the degree of the appellant’s permanent impairment from scarring. This conclusion was based on the fact that the appellant’s claim for compensation included a report detailing her impairment from scarring, and the respondent disputed liability to meet that claim. Consequently, the Tribunal found that the MA had erred by not assessing the degree of the appellant’s permanent impairment from scarring. The Tribunal ordered that the appellant be re-examined, the MAC be revoked, and a new certificate issued. This decision underscored the importance of thorough medical assessments in workers compensation claims and the necessity for assessors to address all aspects of a claimant's injury as presented in their application.

Orders