Workers compensation case note
Ypermachou v PMK Pty Ltd [2026] NSWSC 149: judicial review of a WPI appeal
On 4 March 2026, Griffiths AJ dismissed a judicial-review challenge to a Personal Injury Commission medical Appeal Panel decision. The case shows why an alleged medical error must be clearly put in the appeal and why Supreme Court review is not a fresh assessment of the medical merits.
This case note explains one decision. It is general information only and is not legal advice about an appeal, judicial review or any filing period.
What the Court decided
The plaintiff argued that the Appeal Panel had failed to address important material and had not adequately explained why it accepted the Medical Assessors' reasoning. The Court found no reviewable error. The further amended summons was dismissed with costs.
The Court did not decide the worker's WPI afresh, choose between competing medical opinions or award compensation. Its task was to determine whether the Appeal Panel decision was legally affected by a reviewable error.
The claim and assessment history
The worker was injured on 8 August 1995. In August 2024, a PIC Member determined that he had consequential injuries or conditions involving the back, neck, left leg, left arm at or above the elbow, right leg at or above the knee and obstructive sleep apnoea. The disputes were then referred for medical assessment.
The judgment dealt with two different assessment settings. One was permanent impairment under the former Table of Disabilities for the applicable legacy Section 66 claim. The other was WPI for a section 39 threshold dispute concerning continuation of weekly payments beyond the statutory period. The judgment described that threshold as more than 20% WPI.
That distinction is important. A Table of Disabilities assessment and a current WPI assessment use different methods. The unusual transitional history in this case should not be copied into a post-2002 claim without checking the applicable legislation.
The recorded medical assessments
| Assessment | Recorded findings |
|---|---|
| Legacy Table of Disabilities | Neck 10%; back 20%; left arm at or above elbow 5%; left leg at or above knee 20%; right leg below knee 5%. |
| WPI by body system | Cervical spine 5%; lumbar spine 12%; left elbow 0%; right ankle 0%; respiratory system 3%. |
| Consolidated MAC | 19% WPI, with no section 323 deduction recorded in the table reproduced by the Court. |
Griffiths AJ observed that the three non-zero WPI subtotals added arithmetically to 20%, while the consolidated certificate recorded 19% using combined values. The plaintiff did not challenge that point in the Court proceeding, so the judgment did not determine it as an error. WPI values are ordinarily combined under the applicable NSW method rather than simply added.
What happened in the medical appeal
The worker appealed both medical assessment certificates, relying on grounds including incorrect criteria and demonstrable error under section 327 of the 1998 Act. On 25 March 2025, the Appeal Panel dismissed the appeal and confirmed both certificates and the consolidated certificate.
The Panel considered several complaints, including a left/right ankle reference, the assessment of gait and right-ankle pathology, and the respiratory assessor's explanation that the obstructive sleep apnoea was controlled with CPAP while daytime somnolence was attributed to other causes.
Why the judicial-review grounds failed
The gait point was not squarely put
The judicial-review argument relied on reports said to support right-sided gait derangement. The Court found that the particular significance of those reports had not been clearly drawn to the Appeal Panel's attention. The Panel was not required to extract an unarticulated argument from a large medical file.
The ankle-side error was not material
A reference to the left ankle was accepted as a typographical error. The Appeal Panel had explained that the assessor's injury description and conclusion were consistent with the correct right-ankle MRI and pathology. A typo can matter, but this one was not shown to have affected the assessment outcome.
The sleep-apnoea reasons were addressed
The respiratory Medical Assessor recorded 3% WPI for the effects of ongoing CPAP treatment under paragraph 1.32 of the NSW Guidelines. The assessor did not attribute daytime somnolence to the accepted obstructive sleep apnoea. The Court found that the Appeal Panel had directly addressed the complaint about those reasons and had disclosed why the ground failed.
What this case does not establish
- It does not mean every factual error or typo is harmless; materiality depends on what the error affected.
- It does not create a general 3% rating for sleep apnoea or CPAP. That assessment depended on the accepted condition, treatment and medical findings in this case.
- It does not permit a decision-maker to ignore a substantial, clearly articulated and material submission.
- It does not convert judicial review into another medical appeal or let the Court choose its preferred WPI result.
- It does not set the correct assessment method for every Section 66 or section 39 claim, particularly where the injury date and transitional provisions differ.
Records to review after a PIC medical appeal
- the original medical assessment certificate and every body system referred;
- the medical appeal application, grounds and written submissions;
- the Appeal Panel certificate and reasons;
- the exact report, scan or clinical finding said to have been overlooked;
- where and how that material issue was put to the Appeal Panel;
- why the alleged error could have affected the legal result; and
- all receipt dates and any advice about the applicable review period.
A different medical opinion is not, by itself, a judicial-review ground. The documents must be analysed against the statutory medical-appeal pathway and the legal limits on Supreme Court review.
Sources
- Read the decision on NSW Caselaw: [2026] NSWSC 149
- Workplace Injury Management and Workers Compensation Act 1998 (NSW)
- NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment
Decision and sources reviewed 21 July 2026.
Frequently asked questions
What did the Supreme Court decide in Ypermachou?
The Court found no reviewable error in the PIC Appeal Panel decision. It dismissed the further amended summons with costs. The Court did not conduct a new medical assessment or substitute a different WPI percentage.
Did the case involve only a Section 66 lump sum claim?
No. The judgment concerned two distinct assessment settings: permanent impairment under the legacy Table of Disabilities and WPI for a section 39 weekly-payment threshold dispute. Those methods and purposes should not be treated as interchangeable.
Why did the right-ankle and gait argument not succeed?
The Court found that the specific gait argument relied on in the judicial review was not squarely put to the Appeal Panel. It also accepted that the left-ankle reference was a typographical error that did not affect the assessment because the correct right-ankle pathology was considered.
Why did the sleep-apnoea challenge not succeed?
The Court found that the Appeal Panel had addressed the complaint about the respiratory Medical Assessor's reasons. The Panel explained the assessor's view that CPAP controlled the sleep apnoea and that the daytime somnolence was attributed to other causes. The Court found no reviewable error in that reasoning.
Can judicial review re-run a PIC medical assessment?
No. Judicial review is concerned with the legal validity of the Appeal Panel decision, not whether another assessor could have preferred different medical evidence. A challenge must identify a reviewable legal error and explain why it was material.
Related pages
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