Workers compensation case note
Cunningham: a section 323 psychiatric WPI deduction error
In Cunningham v Kurri Kurri Community Services Ltd [2026] NSWPICMP 224, a Medical Appeal Panel revoked a psychiatric whole person impairment certificate after identifying error in a section 323 deduction.
General information only. This case does not mean every pre-existing-condition deduction is wrong or that an appeal will produce a particular WPI result.
The published holding
The official PIC bulletin records that the worker appealed on the grounds of incorrect criteria and demonstrable error. The Appeal Panel was satisfied that the Medical Assessor erred by making a deduction under section 323 for a pre-existing condition “based on 3% for effects of treatment”. The Medical Assessment Certificate was revoked.
What section 323 is about
Section 323 of the Workplace Injury Management and Workers Compensation Act 1998 addresses the proportion of permanent impairment due to a previous injury or a pre-existing condition or abnormality. Where it applies, the assessor deducts the proportion that is due to that earlier condition rather than the injury being assessed.
Cunningham is important because the Panel found error in the particular way the 3% deduction was made. The official summary does not support a broader proposition that earlier treatment is irrelevant, that all psychiatric deductions are invalid or that a worker automatically receives the undeducted percentage.
What the case does and does not establish
What it establishes
- Incorrect criteria and demonstrable error were the appeal grounds.
- The 3% treatment-effects deduction was erroneous.
- The Medical Assessment Certificate was revoked.
What the official summary does not state
- It does not publish a substituted WPI figure.
- It does not say every psychiatric deduction is invalid.
- It does not make earlier symptoms or treatment legally irrelevant.
The WPI result and compensation entitlement are separate
A corrected WPI assessment can affect whether a section 66 statutory threshold is met, but revoking one certificate does not itself establish a lump sum entitlement or a replacement percentage. The legal effect depends on the valid assessment that follows, the type and date of injury, the current threshold rules and any earlier permanent impairment claim.
What to examine in a psychiatric WPI appeal
A medical appeal is not simply a request for a different percentage. The available grounds and evidence must be considered against the certificate and reasons. Documents that may matter include:
- the complete Medical Assessment Certificate and reasons;
- the diagnosis and impairment assessed;
- the assessor's explanation for any section 323 deduction;
- records about pre-injury symptoms, treatment and function;
- the work-injury chronology and evidence of functional change; and
- the date the certificate was issued and the applicable appeal procedure.
Why careful wording matters
The published decision summary is narrow. It identifies a specific error and the revocation of the certificate. It does not provide enough information to report a replacement percentage or to turn the result into a general rule about all prior psychiatric treatment. Any advice about another certificate requires the full reasons, the medical file and the applicable appeal provisions.
Frequently asked questions
What exactly was wrong with the deduction?
The PIC bulletin says the assessor erred by making a section 323 deduction for a pre-existing condition based on 3% for the effects of treatment.
Does that invalidate every section 323 deduction?
No. Cunningham concerned the particular assessment before the Panel. Other deductions depend on the evidence, reasons and statutory test.
What was the worker's final WPI?
The official bulletin reports that the certificate was revoked but does not state a substituted WPI. This case note does not infer one.
Decision and official summary
- PIC Legal Bulletin No. 255
- Cunningham v Kurri Kurri Community Services Ltd [2026] NSWPICMP 224
- Section 323 of the 1998 Act
Decision date: 30 March 2026. Panel: Member Carolyn Rimmer, Professor Nicholas Glozier and Dr Ash Takyar. Sources checked 21 July 2026.
Related pages
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