AMA Group Solutions Pty Ltd v Ibrahim

DETERMINATION OF APPEAL PANEL
CITATION:	AMA Group Solutions Pty Ltd v Ibrahim [2025] NSWPICMP 161
APPELLANT:	AMA Group Solutions Pty Ltd
RESPONDENT:	Ahmed Ibrahim
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Gregory McGroder
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	13 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant employer alleged assessment made on the basis of incorrect criteria and demonstrable error in relation to failure to consider the documentation; in respect of previous injuries to the cervical spine, lumbar spine and left shoulder, failure to make any deduction pursuant to section 323; miscalculation of the assessment of impairment of the right shoulder; Held – Appeal Panel satisfied that there was a failure to consider the evidence relating to prior injury in a motor vehicle accident; Appeal Panel proceeded to make deductions pursuant to section 323 in respect of the cervical spine and lumbar spine; Appeal Panel corrected the miscalculation made in assessment of right shoulder; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 November 2024 AMA Group Solutions Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor John Brian Stephenson , who issued Medical Assessment Certificate 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 (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).

RELEVANT FACTUAL BACKGROUND

Mr Ibrahim suffered an injury to his cervical spine, lumbar spine, right upper extremity, left upper extremity, right lower extremity and left lower extremity during his employment as a spray painter with the appellant on 16 February 2022.
Mr Ibrahim lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 15 August 2024 in which he claimed an amount of $79,890 in respect of 28% whole person impairment (WPI) with a date of injury of 16 February 2022.
Mr Ibrahim’s claim for WPI resulting from injury on 16 February 2022 was referred to the Medical Assessor. The body parts referred were recorded as: “cervical spine, lumbar spine, right upper extremity, left upper extremity, right lower extremity and left lower extremity”.
The Medical Assessor examined Mr Ibrahim on 21 October 2024 and assessed 17% WPI of the cervical spine, 5% WPI of the lumbar spine, 7% WPI of the right upper extremity (shoulder), 10% WPI of the left upper extremity (shoulder), 0% of the right lower extremity (knee) and 0% WPI of the left lower extremity (knee). These assessments combined to total 34% WPI as a result of the injury on 16 February 2022.

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 requested that Mr Ibrahim be re-examined by a Medical Assessor, who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Mr Ibrahim to undergo a further medical examination because there was sufficient information upon which to make a determination.

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 taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    Ground 1 - lack of consideration of evidence. The Medical Assessor breached his obligations as set out in cl 1.6a and cl 1.47 of the Guidelines;
(b)    the Medical Assessor was provided with a multitude of clinical records and documents, which provided information about Mr Ibrahim’s numerous pre-existing conditions, yet he failed to reference them at all in his report. The Medical Assessor failed to turn his mind to these records and engage appropriately with the totality of the evidence before him;
(c)    if the Medical Assessor had properly considered the available evidence, he would have provided factual information, as required under the Guidelines, as to the existence of pre-existing conditions to the cervical spine, lumbar spine and left shoulder, including references to Dr Maniam’s report of the past medical history concerning the cervical spine and lumbar spine, CT scans and investigations demonstrating chronic and degenerative changes which would have been present pre-injury (CT scan of the brain, cervical and thoracolumbar spine from 14 April 2010 and X-ray of the spine, left shoulder and right knee, dated
27 February 2010) and the general practitioner (GP) management plan for depression/back prepared by Dr Alsayed on 8 December 2020, reporting ongoing symptoms in respect of the lumbar and cervical spine discopathy as well as degenerative disease, depression and anxiety;
(d)    the Medical Assessor’s failure to consider the substantial body of evidence before him of pre-existing conditions affecting in particular the lumbar spine, cervical spine and left shoulder led to a determination and assessment being made on the basis of demonstrable error pursuant to s 323(c) and (d) of the 1998 Act;
(e)    Ground 2 – s 323 deduction. Following on from the Medical Assessor’s failure to properly engage with and consider the treating medical records, the Medical Assessor erred in his failure to apply an appropriate deduction pursuant to s 323 of the 1998 Act. The Medical Assessor has not provided reasons why he did not comply with cls 1.27 and 1.28 of the Guidelines. The Medical Assessor did not address why any deduction was not applied, but stated, ‘there is no deductible proportion in the absence of previous injury, condition or abnormality’;
(f)    whilst the Medical Assessor is not bound by the findings of any other medical practitioner and therefore the Medical Assessor did not have to apply a s 323 deduction just because other assessors did, the Medical Assessor failure to consider the treating records before him and failure to explain why he did not agree with the deductions is inconsistent with his obligations as set out at cls 1.6a and 1.27 of the Guidelines;
(g)    the Guidelines require the Medical Assessor to take into account the relevant medical history and all available relevant medical information to determine proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality;
(h)    there was no absence of medical evidence for the purposes of s 323 of the 1998 Act. Failing to make any deduction is clearly at odds with the objective evidence available in the form of contemporaneous clinical records and the medical evidence;
(i)    apart from the evidence in (c) above, reference is made to Dr Moloney, who considered that Mr Ibrahim had sustained an aggravation of his problems in his lumbar and cervical spine and felt that he may well have accelerated the changes giving rise to neck, arm, back and leg pain. Dr Moloney felt that Mr Ibrahim may well have some discogenic change in his neck and back given that he did have some radicular symptoms, and these do not usually come solely from soft tissue injury. Reference is made to Dr Burrow who accepted that there were pre-existing degenerative changes affecting the cervical and lumbar spine which were evident on the MRI scans performed within a month of the accident. Dr Burrow expressed the view that there was no specific structural injury, but there was probable aggravation of preexisting degenerative change and allowed a four-fifths (80%) deduction due to significant pre-existing disease;
(j)    the Medical Assessor appeared to agree with the diagnoses of Dr Maniam, treating orthopaedic surgeon, which included aggravation injuries to the cervical spine, yet still did not apply any deduction or justify his reason for not doing so. The Medical Assessor did not address the fact that Dr Maniam had previously issued an assessment of impairment relating to Mr Ibrahim’s cervical spine of
5% WPI and 10% for the lumbar spine as a result of the motor vehicle accident. Such assessment was made in February 2011 and the GP records continued to document ongoing symptoms in both areas from 2010 up to the date of injury;
(k)    the Medical Assessor failed to have proper regard to the objective evidence before him including Mr Ibrahim’s prior clinical history of his preexisting conditions. Further, the Medical Assessor appears to have accepted Mr Ibrahim’s advice that there were no prior injuries or conditions, without consideration of the substantial body of evidence relied on by both parties and provided to the Medical Assessor for consideration;
(l)    the role of the Medical Assessor in preparing the MAC is to explain the actual path of reasoning in sufficient detail to enable a court or an appeal panel to determine whether there is error in its finding: Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; El Masri v Woolworths Ltd [2014] NSWSC 1344. A failure to do so has been held as an error of law on the face of the record;
(m)     the Medical Assessor has failed to provide any reasons as to why it was appropriate to make no deduction pursuant to s 323 of the 1998 Act. He has merely concluded this without explanation;
(n)    for these reasons, the MAC contains a demonstrable error as the Medical Assessor erroneously omitted to apply any s 323 deduction. He also failed to provide reasons to support his failure to make any deduction which, it is submitted, is clearly at odds with the available evidence;
(o)    further, any deduction should exceed the 10% deduction as detailed under
s 323(2) of the 1998 Act. The medical evidence provided to the Medical Assessor continuously records evidence of preexisting conditions, for a period of well over 10 years. It is therefore submitted, that there cannot be said to be an ‘absence of medical evidence’. Significant deductions were applied by both
Dr Maloney and Dr Burrow, qualified by the appellant, after review of such evidence referred to at [29] above as well as their own examination of Mr Ibrahim;
(p)    relying on the evidence, it would be inappropriate and ‘at odds with the available evidence’ to solely rely on s 323(2) of the 1998 Act and only apply a 10% deduction to avoid disputation. Given the status of the evidence, it is neither difficult nor costly to determine to determine the extent of deduction;
(q)    a deduction of greater than one tenth is appropriate in this case and a deduction of between one fifth and four fifths would be appropriate in line with the opinions of Dr Moloney and Dr Burrow;
(r)    Ground 3 – Miscalculation - The Medical Assessor miscalculated the impairment of the right shoulder, as he notes that the 9% upper extremity impairment equates to 7% WPI, which is incorrect. Table 16-3 of the AMA-5 details that 9% upper extremity impairment equals 5% WPI for the right shoulder;
(s)    the MAC contains a demonstrable error in that the Medical Assessor has incorrectly converted 9% upper extremity impairment of the right shoulder to 7% WPI, when in fact it should be 5% WPI. The MAC should be amended to reflect 5% WPI for the right shoulder, before the various assessments are combined to provide the total WPI assessment, and
(t)    the MAC should be amended, in any event, to reflect the correct WPI assessment.
Mr Ibrahim’s submissions include the following:
(a)    Ground 1 - The Medical Assessor is required to assess the claimant in accordance with the Guidelines. The Medical Assessor is then required to prepare a certificate which complies with s 325(2) of the 1998 Act;
(b)    as noted in the case of Radakovic v Sydney Trains [2023] NSWPICMP 598 at paragraph 24 “the form approved by the President does alert the Medical Assessor to comment briefly on other reports, though that is not one of the essential elements of s 352(2) [presumably 325(2)]”. Further, at paragraph 25 it is stated “The Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. The presumption of regularity applies to presume that the Medical Assessor has appropriately considered the material necessary to issue a MAC.” Further, at Paragraph 26, “it was not necessary for the Medical Assessor to summarise each piece of evidence or comment on every report in the file and he was not required to choose between the assessments made by other medical examiners;”
(c)    the Medical Assessor notes the opinion of Dr Maniam from report dated
18 October 2022. Reference can be seen on page 7 of the Medical Assessor’s report where the Medical Assessor states: “Dr Maniam, orthopaedic,
18 October 2022, noted that there was physiotherapy as treatment provided with a variety of analgesics. He diagnosed matters including right shoulder impingement with bursitis and I would agree with that. Aggravation of degenerative disease at C4/5 and right paracentral protrusion involving the right central aspects of the cord and intervertebral disc bulge at L5/S1, lumbar. I would generally agree with those diagnoses.” It is submitted that there was adequate reference to the evidence, particularly noting the finding of an aggravation of degenerative disease would be consistent with that pre-existing pathology;
(d)    the Medical Assessor has taken into account the CT scan of 14 April 2010 on page 5 of the MAC as the first three investigations he refers to. Although undated in the MAC, if one refers to the scan referenced by the appellant at page 5 of the reply, it appears to reference the same radiologist. It would appear that although the Medical Assessor has not placed the date in relation to the relevant CT scans he appears, prima facie to have taken them into consideration;
(e)    in relation to the failure to take into account an X-ray of the spine, left shoulder and right knee, dated 27 February 2010, the investigation does not appear to have been expressly referred to by the Medical Assessor. This report is from 2010 predating the injury by some considerable time. Although the X-ray does arguably reveal disc pathology, the conclusion reached by the radiologist is
“No visible acute injury. The L5/S1 disc height in the lower lumbar spine appears small which might indicate disc pathology at this level although this level is normally quite variable in height;”
(f)    despite not making specific reference to the X-ray, there has been adequate reference to the evidence as whole, particularly noting the finding of an aggravation of degenerative disease as cited above;
(g)    in respect of the GP management plan for depression/back and osteoarthritis was prepared by Dr Alsayed on 8 December 2020, as indicated above in relation to the Medical Assessor’s references to Dr Maniam, the Medical Assessor has indicated that he generally agrees with the diagnosis, in relation to Mr Ibrahim’s injury, that is, “Aggravation of degenerative disease at C4/5 and right paracentral protrusion involving the right central aspects of the cord and intervertebral disc bulge at L5/S1, lumbar”. That is to say, the Medical Assessor has impliedly recognised that there was a pre-existing disease;
(h)    the Medical Assessor has had adequate regard to the evidence as a whole and as per the comments outlined in Radakovic v Sydney Trains, it was not necessary for the Medical Assessor to summarise each piece of evidence or comment on every report in the file. This would be an unduly onerous task if such were required of the Medical Assessor. Further, it is inconsistent with the presumption of Regularity. It is submitted that this ground should be dismissed;
(i)    Ground 2 - s 323 deduction. The MAC is conclusively presumed to be correct regarding the degree of WPI and whether any proportion of it is due to a previous injury or pre-existing condition. Adequate consideration was given to the pre-existing pathology noting the Medical Assessor appears to have considered various or some of the investigations from 2010 that predate the incident. Furthermore, the Medical Assessor has in fact turned his mind to the varying medical opinions including Dr Maniam, Dr Manohar, Dr Moloney, Dr Richard Sekel and Dr Greggory Burrow some of whom, to varying degrees, discuss the pre-injury history;
(j)    on page 6 of the MAC, the Medical Assessor has indicated that there is no deductible proportion in relation to prior injury, and this is despite specifically noting, as cited above, that the injury in relation to the neck and lower back involve the aggravation of degenerative disease. It should be presumed that the Medical Assessor properly carried out his duties, having made adequate reference to the prior investigations and provided a medical opinion that a deduction is not necessary. This ground should be dismissed;
(k)    Ground 3 - alleged miscalculation - At the top of page 5 of the MAC, the Medical Assessor states “There is a 9% upper extremity impairment right shoulder which gains 5% WPI.” However, thereafter, on the same page, the Medical Assessor does appear to say that “I have found 9% upper extremity which converts to 7% WPI” which would appear to be a potential error. It is conceded that this is unclear and would appear to be incorrect. Thereafter, throughout the report the Medical Assessor does appear to indicate 7% WPI in respect to the right shoulder (see page 7 of the MAC under heading “a” and table at page 9);
(l)    if there is a mistake, it would appear to be a ‘carried error’ given the Medical Assessor appears to have had the correct calculation in his initial assessment and thereafter changed the number on page 5 of the MAC (see the first line on page 4 contrasted with the fourth line under the table on the same page);
(m)     this appears to be a simple error and should not otherwise undermine the reliability of the rest of the assessment, and
(n)    Conclusion - Grounds 1 and 2 should be dismissed. Other than the potential error of 2%, the MAC should stand.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

Ground 1 – Lack of consideration of evidence

The appellant submits that the Medical Assessor failed to consider evidence as required by 1.6a and 1.47 of the Guidelines.
The Medical Assessor noted under “History relating to the injury”: “Details of any previous or subsequent accidents, injuries or condition: There were no such events, not applicable.”
Under “Summary of injuries and diagnoses”, the Medical Assessor wrote:
“There has been injury to cervical and lumbar spine and both shoulders, but not knees based on the clinical findings confirmed by radiology.”
Under “Evaluation of Permanent Impairment”, the Medical Assessor wrote:
“Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No, there is no deductible proportion in that regard.”
In commenting on the other medical opinions and findings, the Medical Assessor wrote:
“Dr Maniam, Orthopaedic, 18 October 2022, noted that there was physiotherapy as treatment provided with a variety of analgesics. He diagnosed matters including right shoulder impingement with bursitis and I would agree with that. Aggravation of degenerative disease at C4/5 and right paracentral protrusion involving the right central aspects of the cord and intervertebral disc bulge L5/S1, lumbar. I would generally agree with those diagnoses.
Dr David Manohar, Pain Management, 9 November 2022, noted approval for cervical
diagnostic and lumbar diagnostics to localise the pain generator and applied for pain
management program. Pain management is beyond my expertise, but that management appeared consistent with its requirements.
Dr Peter Moloney, Neurosurgeon, noted symptoms from neck and back pain and shoulder pain on the left side but also right shoulder pain. He noted physiotherapy was being continued with and I agree with that. He noted the radiology and examination findings. He found the claimant not fit for pre-injury duties.
Injury Management Consultant, Dr Richard Sekel, noted the history and the radiology. He noted some MRI findings of the right knee which I have noted, but I have found a full range of motion in both knees with no cruciate or collateral ligament laxity and hence no impairment at either knee.
Dr Greggory Burrow, 25 January 2024, Orthopaedic. He diagnosed status post previous ACL reconstruction right knee and acute retropatellar bursitis and partial pre-existing injury to ACL. I found a full range of motion in both knee as I have noted and no abnormality in terms of cruciate or collateral ligament laxity.”
Under “DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY” the Medical Assessor wrote: “There is no deductible proportion.”
The Appeal Panel reviewed the evidence in the matter.
In the report of CT scan of the brain, cervical and thoracolumbar spine dated 14 April 2010, Dr Kevin Tay, radiologist, noted a clinical history of “continued headache, neck pain, upper and lower back pain after MVA.” He wrote:
“CT Cervical Spine
Findings: Alignment is within normal limits. No paravertebral soft tissue swelling.
There is a bone fragment adjacent to the anterosuperior endplate of C5 but this is well-corticated probably represents a limbus vertebra (development variant). No loss of vertebral body height to suggest a compression fracture. No canal or neural exit foraminal stenosis.
…
CT Lumbar Spine
Findings: Alignment is normal. No loss of vertebral body height to suggest a
compression fracture. There is disc bulge at L4/5 and mild narrowing of the
canal and mild narrowing of both L4 neural exit foramina. Mild facet joint
degenerative changes are also noted. At L5/S1, there is a right foraminal
disc protrusion causing moderate stenosis of the right L5 neural exit
foramen. Mild degenerative changes noted at this level.
CONCLUSION: Alignment is within normal limits. No intracranial lesion
demonstrated. Right foraminal disc protrusion causing moderate stenosis of the right L5 neural exit foramen.”
Dr Kenneth Cooke, radiologist, in a report of X-ray of the spine, left shoulder and right knee, dated 27 February 2010, noted that in the lumbar spine the “L5/S1 disc height appears small which may indicate disc pathology at this level although this space is normally quite variable in height”. He also noted that in the cervical spine there was a small ossicle at the anterior superior corner of C5 representing an old unfused portion of the ring epiphysis.
In a report dated 22 July 2010, Dr Maniam, treating orthopaedic surgeon, noted that
Mr Ibrahim had sustained an injury to his back, neck, right knee, left shoulder and head when he was involved in a motor vehicle accident on 26 October 2010 [sic].
In a report dated 15 February 2011 Dr Maniam noted that Mr Ibrahim was injured in a motor vehicle accident on 25 October 2009 and sustained injuries to his cervical spine, lumbar spine, left shoulder and right knee. Dr Maniam made a diagnosis of musculo ligamentous strain of the cervical spine, intervertebral disc protrusion at L5/S1 causing moderate stenosis of the right L5 neural exit foramen, anterior cruciate tear in right knee medial meniscal tear in the right knee.
In a report dated 25 July 2022, Dr Maniam, treating orthopaedic surgeon, noted: “His past medical history contains the following: i. Chronic strain of the cervical spine; ii. Intervertebral disc protrusion at L5/S1 with right L5 neural exit foraminal encroachment…”
In a report dated 18 October 2022, Dr Maniam noted that following the incident on
15 February 2022, Mr Ibrahim sustained injuries including traumatic right shoulder impingement with bursitis, non specific stiffness left shoulder, aggravation of degenerative disease at C4/5 with left sided C4 nerve root impingement, aggravation of pre-existing degenerative disease at C4/5 with left sided C5 nerve root irritation, and intervertebral disc bulge and annular tear at L5/S1 with extruded disc material in the lateral recess resulting in impingement of the right L5 nerve root. (see item 79).
In a referral dated 8 December 2020, Dr Aiman Alsayed, the treating GP, referred the applicant to Dr Nazneen Akhter for opinion and management of chronic severe back pain as part of a team care management plan. In the Team Care Arrangements Form, Dr Alsayed noted that Mr Ibrahim had back pain radiating to the lower limbs and neck pain. Goals included giving the patient a clear understanding of osteoarthritis.
A GP management plan for depression/back and osteoarthritis was prepared by Dr Alsayed on 8 December 2020, reporting ongoing symptoms in respect of the lumbar and cervical spine discopathy as well as degenerative disease, depression and anxiety.
In his clinical notes and records, Dr Alsayed made frequent references to complaints of back pain including the entries dated 31 March 2010, 13 April 2010, 17 May 2010, 1 June 2010,
8 June 2010, 17 June 2010 , 14 July 2010, 16 July 2010, 14 August 2010, 23 August 2010,
9 September 2010, 30 September 2010, 25 October 2010, 19 November 2010,
14 December 2010, 11 January 2011, 19 January 2011, 25 January 2011,
17 February 2011, 7 March 2011, 9 March 2011, 19 March 2011, 31 March 2011,
21 April 2011, 3 May 2011, 23 May 2011, 3 June 2011, 13 June 2011, 2 August 2011,
15 August 2011, 7 September 2011, 5 October 2011, 7 October 2011, 28 October 2011,
23 November 2011, 6 December 2011, 2 February 2012, 22 February 2012, 12 March 2012, 5 April 2012, 11 April 2012, 4 May 2012, 24 May 2012, 7 June 2012, 25 June 2012,
19 October 2012, and 6 December 2012. Further references to back pain were noted by
Dr Alsayed on 31 October 2015 when he noted “sciatica back pain” and on
8 December 2020 when he noted back pain with stiffness and limited lumbar spine movements. Dr Alsayed also made some references to neck pain during 2010 and 2011 and a couple of references to left shoulder pain.
Clause 1.6a of the Guidelines provides:
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine …[permanent impairment].”
Clause 1.47 of the Guidelines provides:
“The report should contain factual information based on all available medical information and results of investigations, the assessor’s own history-taking and clinical examination. The other reports or investigations that are relied upon in arriving at an opinion should be appropriately referenced in the assessor’s report.”
The Appeal Panel agrees with the appellant that the Medical Assessor did not adequately refer to reports, clinical records and documents, which provided information about
Mr Ibrahim’s pre-existing conditions and particularly in relation to the injuries he sustained in the motor vehicle accident in October 2009. The Medical Assessor’s failure to adequately consider the evidence before him of pre-existing conditions affecting the lumbar spine, cervical spine and left shoulder was a demonstrable error.
The Appeal Panel considers that the failure by the Medical Assessor to take a proper and adequate history results in a failure to properly consider the question of what deduction should be made pursuant to s 323 because he did not take into account all of the history relating to the injury and evaluate the contribution to the current impairment assessed made by the pre-existing condition.

Ground 2 – s 323 Deduction

The appellant submitted that the Medical Assessor erred in his failure to apply an appropriate deduction pursuant to s 323 of the 1998 Act. Further, the appellant argued that the Medical Assessor did not address why any deduction was not applied, but stated ‘there is no deductible proportion in the absence of previous injury, condition or abnormality.’
Clauses 1.27 and 1.28 of the Guidelines provide:
“1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury. (emphasis added)
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality.
This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence”.
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said:
“29    ...The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30     Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31     ...That is a matter of fact to be assessed on the evidence led in each case.”
At [38] of Cole, Schmidt said:
“38. What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
In Elcheikh v Diamond Formwork (NSW) Pty Ltd [2013] NSWSC 365Schmidt J referred to her decision in Cole, stating:
“88. Section 323 requires that once the level of impairment which results from a work injury has been established, that a medical specialist must make 'a deduction for any proportion of the impairment that is due to any previous injury'. As discussed in Cole v Wenaline Pty Limited at [29] that requires a conclusion: ‘on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment'.”
The process for determining impairment and any appropriate s 323 deduction was set out by Garling J in Pereira v Siemens Ltd [2015] NSWSC 1133 at [83]-[90] in a three-stage process being:
“The first step requires a finding of fact that the worker has suffered an injury at work which has resulted in a degree of permanent impairment which has been assessed pursuant to s 322 of the 1998 Act: see Elcheikh at [125].
The second step which needs to be addressed is, assuming such an injury has been sustained and impairment has resulted, what is the extent of that impairment expressed as a percentage of the whole person: see Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [38]; Elcheikh at [126].
The third matter to be addressed is whether the worker had any previous injury, or any pre-existing condition or abnormality. The previous injury does not have to be one in respect of which compensation is payable under the 1998 Act. If the phrase ‘pre-existing condition or abnormality’ is to be relied upon, then such condition or abnormality must be a diagnosable or established clinical entity: Fire & Rescue NSW v Clinen [2013] NSWSC 629.
A finding of the existence of a previous injury can be made without the presence of symptoms, but there must be evidence which demonstrates the existence of that pre-existing condition: Mathew Hall at [31]-[32].
The pre-existing injury or condition must, on the available evidence, have caused or contributed to the assessed whole person impairment: see Matthew Hall at [32]; Cole at [29]-[31]; Elcheikh at [88] and Ryder at [42].
It cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment: Clinen at [32]; Cole at [30]; Elcheikh at [91]. What must occur is that there must be an enquiry into whether there are other causes of the whole person impairment which reflect a difference in the degree of impairment: Ryder at [45].”
In a report dated 7 December 2023, Dr Peter Moloney noted that based on the history given, he could not identify any non-work related factors which may have caused or contributed to the current condition. He was of the view that Mr Ibrahim had aggravated problems in his cervical spine and lumbar spine and may well have accelerated the changes, giving rise to neck pain and arm pain, back pain and leg pain. Dr Moloney assessed 7% WPI of the cervical spine and 5% WPI of the lumbar spine. He noted that Mr Ibrahim denied problems with his neck and back prior to the injury and found no deductible proportion.
In a report dated 14 May 2024, Dr Moloney expressed the opinion that the deduction made by Dr Burrow was at the “excessive end of the scale” and made a deduction of two-tenths for the cervical spine and lumbar spine.
Dr Greggory Burrow, in a report dated 22 December 2023, considered that Mr Ibrahim had aggravated pre-existent degenerative changes of the cervical and lumbar spine and any temporary aggravation had resolved.
In a report dated 25 January 2024, Dr Burrow assessed Mr Ibrahim in DRE Category II of the cervical and lumbar spine, and made four-fifths deduction for each area, leaving Mr Ibrahim with 1% WPI for each. He found 2% for each upper extremity on the basis of bilateral impingement, and 2% for the left knee, giving a final total of 9% WPI.
In a report dated 22 August 2023, Dr James Bodel, consultant orthopaedic surgeon, noted that Mr Ibrahim had been previously quite well apart from a motor vehicle accident that occurred in 2001 where he injured the right knee. He states that there was a legal settlement for that and his knee settled down reasonably well but is not normal. Dr Bodel noted that there were assessments relating to the earlier injury back in 2011. Dr Bodel considered that there was some evidence of pre-existing pathology particularly in the knees.
Dr Bodel assessed Mr Ibrahim in DRE Category II of the cervical and lumbar spines, with 7% WPI of the cervical spine and 5% WPI of the lumbar spine, 6% WPI of the right upper extremity and 6% WPI in the left upper extremity, 4% WPI of the right lower extremity and 4% WPI of the left lower extremity. These assessments combined to give a total of 28% WPI. Dr Bodel stated that there is no indication clinically of any pre-existing abnormality or condition and there is no basis for a deduction for pre-existing impairment.
As noted above, the Medical Assessor made no reference to having considered the reports from 2010 and 2011 concerning the injuries to Mr Ibrahim in the motor vehicle accident in 2009. The Medical Assessor was incorrect to say in the history he recorded in the MAC that there were no previous accidents, injuries or conditions because Mr Ibrahim obviously had sustained injuries to the neck, back, right knee and left shoulder in the motor vehicle accident in 2009. There was also some degree of inconsistency in the MAC in so far as the Medical Assessor agreed with Dr Maniam’s opinion in the report dated 18 October 2022 that there was aggravation of degenerative disease at C4/5. From this, the Appeal Panel infers that the Medical Assessor found a pre-existing condition in the cervical spine yet did not identify it or proceed to consider whether such condition contributed to the impairment assessed.
The Appeal Panel accept that the Medical Assessor failed to give adequate reasons in circumstances, where there was evidence of injuries to the neck, back and left shoulder in the motor vehicle accident in 2009, for concluding that there is “no deductible proportion in the absence of previous injury, condition or abnormality”.
The Appeal Panel accepts that s 323 of the 1998 Act requires that a deduction be made
“for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality”.
As noted above the appellant submits that a deduction in excess of 10% should be applied to the assessments of impairment in respect of the cervical spine, lumbar spine and left shoulder to account for the significant evidence indicative of numerous pre-existing conditions affecting these areas.
The Appeal Panel considers that it is necessary to consider whether the pre-existing injury, on the available evidence, has caused or contributed to the assessed WPI.

Cervical spine

Having found error that the Medical Assessor erred in the making of a deduction pursuant to s 323 of the 1998 Act in relation to the cervical spine, the Appeal Panel must consider what deduction should be made for the pre-existing condition in the cervical spine.

There is no issue that Mr Ibrahim had a pre-existing condition in his cervical spine. The Appeal Panel must determine the extent that the subject injury to the cervical spine was due to the earlier pre-existing injury and/or condition.
In relation to the cervical spine the Medical Assessor agreed with Dr Maniam’s opinion (in the report dated 18 October 2022) that there was aggravation of degenerative disease at C4/5. Dr Maniam and Dr Alsayed both refer to the injury to the cervical spine in the motor vehicle accident in October 2009. Dr Maniam, in his report of 15 February 2011, made a diagnosis of musculo ligamentous strain of the cervical spine. Dr Alsayed noted complaints relating to the cervical spine in 2010 and 2011. However, it appears from the clinical notes that there were no further complaints about neck pain after 2011 until 2020.
A GP management plan for depression/back and osteoarthritis was prepared by Dr Alsayed on 8 December 2020, reporting back pain radiating to the lower limbs and neck pain.
Dr Alsayed, in his clinical notes dated 8 December 2020, noted a complaint of back pain with stiffness and limited “L spine movements” as well as referred pain to the lower limbs with numbness. Reasons for contact were stated as back pain, right knee pain, neuropathic pain and cigarette dependence. Examination appeared to be limited to the lumbar spine and there was no reference to complaints concerning the neck or cervical spine in the clinical notes of 8 December 2020.
The next reference in the clinical notes was on 16 February 2022, when Dr Alsayed reported the work injury to the back, right knee, head, neck and shoulders.
The referral by Dr Alsayed on 8 December 2020 to Dr Akhter was for an opinion and management of chronic severe back pain.
The Appeal Panel considered that the GP management plan for depression/back and osteoarthritis prepared by Dr Alsayed on 8 December 2020 was made primarily for treatment of chronic severe back pain and not for neck pain.
In the report of the CT scan of the cervical spine dated 14 April 2010 Dr Tay wrote:
“Findings: Alignment is within normal limits. No paravertebral soft tissue swelling. There is a bone fragment adjacent to the anterosuperior endplate of C5 but this is well-corticated probably represents a limbus vertebra (development variant). No loss of vertebral body height to suggest a compression fracture. No canal or neural exit foraminal stenosis.”
There is no issue that the appellant had a pre-existing condition in his cervical spine. The Appeal Panel must determine the extent that the subject injuries were due to the earlier pre-existing condition.
The Appeal Panel is satisfied that although the appellant had a pre-existing degenerative condition in the cervical spine, he was largely asymptomatic until 16 February 2022.
Mr Ibrahim immediately prior to the injury on 16 February 2022 was able to engage with fully in the activities of daily living and performed some physical work in his employment.
The Appeal Panel considered that in circumstances where the appellant was asymptomatic before the injury on 16 February 2022, there was limited evidence as the actual consequences of the pre-existing condition or abnormality on the assessed impairment, and how it contributes to that assessment.
In terms of a deduction pursuant to s 323 of the 1998 Act, the Appeal Panel agrees that the appellant has a pre-existing condition, namely, degenerative disease at C4/5. The Appeal Panel is satisfied that this pre-existing condition contributes to the impairment assessed. However, the Appeal Panel concludes that the extent of the required deduction is difficult to assess because of the lack of medical information concerning the appellant’s pre-existing condition before his injury on 16 February 2022. The Appeal Panel considers that a one tenth deduction is appropriate in respect of the cervical spine and that this deduction is not at odds.
The Appeal Panel therefore assesses 17% WPI of the cervical spine and applies a one-tenth deduction, which results in an assessment of 15.3% which rounds down to 15% WPI.

Lumbar spine

The Appeal Panel must consider what deduction should be made for the pre-existing condition in the lumbar spine.
The Appeal Panel is satisfied that that Mr Ibrahim had a pre-existing condition in his lumbar spine. The Appeal Panel must determine the extent that the subject injury to the lumbar spine was due to the earlier pre-existing injury and/or condition.
Dr Maniam and Dr Alsayed both refer to injury to the lumbar spine in the motor vehicle accident in October 2009. Dr Maniam, in his report of 15 February 2011, noted that
Mr Ibrahim was injured in a motor vehicle accident on 25 October 2009 and sustained injuries to his spine and made a diagnosis of intervertebral disc protrusion at L5/S1 causing moderate stenosis of the right L5 neural exit foramen. Dr Alsayed noted numerous complaints relating to the lumbar spine in 2010, 2011 and 2012 as well as on
31 October 2015, and on 8 December 2020. Dr Alsayed, on 8 December 2020, referred the applicant to Dr Akhter for opinion and management of chronic severe back pain as part of a team care management plan.
In the report of the CT scan of the lumbar spine dated 14 April 2010 Dr Tay wrote:
“CT LUMBAR SPINE
Findings: Alignment is normal. No loss of vertebral body height to suggest a compression fracture. There is disc bulge at L4/5 and mild narrowing of the canal and mild narrowing of both L4 neural exit foramina. Mild facet joint degenerative changes are also noted. At L5/S1, there is a right foraminal disc protrusion causing moderate stenosis of the right L5 neural exit foramen. Mild degenerative changes noted at this level.
CONCLUSION: Alignment is within normal limits. No intracranial lesion demonstrated. Right foraminal disc protrusion causing moderate stenosis of the right L5 neural exit foramen.”
In the report of MRI Lumbar spine dated 10 March 2022, Dr So Ve Kirsti Lee, radiologist, noted:
“Findings
There is normal alignment of the lumbar spine.
There is mild intervertebral disc desiccation at L4/5 and L5/S1.
There is a prominent disc bulge and annular fissure at L5/S1 with extruded disc material in the right lateral recess and neural foramen measuring approximately 5.5 x 23mm in transaxial dimensions. This results in impingement of the exiting right L5 nerve root as well as possible irritation of the descending right SI nerve root.
Elsewhere, there is a minor disc bulge at L4/5 which results in minimal central canal narrowing.
There is mild bilateral facet joint arthropathy at L4/5 and L5/S1.
Conclusion
… At the level of L5/S1, there is impingement of the exiting right L5 nerve root secondary to extruded disc material into the right lateral recess and neural foramen as well as potential irritation of the descending right SI nerve root at this level.”
The Appeal Panel accepts that Mr Ibrahim had a pre-existing injury and condition in his lumbar spine. The Appeal Panel must determine the extent that the subject injuries were due to the earlier pre-existing condition.
Dr Burrows made a deduction of four fifths in respect of the pre-existing disease in the lumbar spine. Dr Moloney made a deduction of two tenths for the pre-existing condition in the lumbar spine noting that Mr Ibrahim was capable of work before the work injury on
16 February 2022. Dr Bodel made no deduction for a pre-existing injury or condition. The Appeal Panel is satisfied that although the appellant was capable of performing his pre-injury duties before the injury on 16 February 2022, he was symptomatic and had required treatment in 2020.
In terms of a deduction pursuant to s 323 of the 1998 Act, the Appeal Panel agrees that the appellant has a pre-existing condition, namely, disc prolapse at L5/S1 and degenerative disease at L4/5 and L5/S1. The Appeal Panel is satisfied that this pre-existing condition contributes to the impairment assessed. The Appeal Panel determines that a deduction of three fifths should be made in respect of the lumbar spine because of the long history of lumbar spine complaint and low back pain, including radiation of pain into the buttocks and lower limbs, and because of the extent of the degenerative changes seen on the scans. In addition, in 2010 he was diagnosed with having radiculopathy in relation to the lumbar spine with L5 radiculopathy. Dr Maniam placed the appellant in DRE category lll (AMA 4) with 10% WPI in keeping with the radiculopathy.
The Appeal Panel therefore assesses 5% WPI of the lumbar spine and applies a three fifths deduction, which results in an assessment of 2% WPI.

Left shoulder

The Appeal Panel must consider what deduction should be made for the pre-existing condition in the left shoulder.
The Appeal Panel is satisfied that that Mr Ibrahim had an injury to his left shoulder in the motor vehicle accident in 2009. The Appeal Panel must determine the extent, if any, that the subject injury to the left shoulder were due to the earlier pre-existing injury and/or condition.
Dr Maniam, in his report of 15 February 2011, noted that Mr Ibrahim was injured in a motor vehicle accident on 25 October 2009 and sustained injuries to his left shoulder and noted that Mr Ibrahim complained of left shoulder pain. However, Dr Maniam made no diagnosis in that report in respect of the left shoulder injury.
On examination, Dr Maniam noted:
“The contour was normal and there was no areas of tenderness. Abduction was managed to 120 degrees, adduction was painful and 35 degrees, external rotation was limited, internal rotation was normal. Forward flexion and extension was satisfactory. There was no instability and the impingement sign was negative.”
In his Impairment Assessment dated 15 February 2011 Dr Maniam made no assessment of the left shoulder.
Dr Alsayed in his clinical notes in 2010 and 2011 referred to left shoulder pain or shoulder pain but there appears to have made no reference to left shoulder pain after 2011.
In the report of MRI scan of the left shoulder dated 12 August 2023, Dr Kian Lim reported:
“Findings:
The rotator cuff tendons are generally intact with no tendinopathy or high-grade tear. The rotator cuff muscles are preserved in bulk with no atrophy. The biceps long head tendon and the biceps anchor appear intact. The posterior labrum appears slightly hypoplastic, but overall there is no significant labral tear. The glenohumeral ligaments are of normal thickness. The acromioclavicular and glenohumeral joints appear generally intact with no significant degenerative changes.
Comment
No significant pathology detected.”
The Appeal Panel did not regard that there was real evidence of a pre-existing injury or condition on the MRI scan.
The Appeal Panel accepts that Mr Ibrahim had an injury to his left shoulder in the motor vehicle accident in 2009. However, the Appeal Panel is satisfied that the injury to the left shoulder in 2009 resolved and has not caused or contributed to the assessed WPI of the left shoulder.
The Appeal Panel therefore assesses 10% WPI of the left upper extremity.

Ground 3 – Miscalculation

The appellant submits that the Medical Assessor miscalculated the impairment of the right shoulder, as he noted that the 9% upper extremity impairment equates to 7% WPI, which is incorrect. Table 16-3 of the AMA-5 details that 9% upper extremity impairment equals 5% WPI for the right shoulder.
Mr Ibrahim noted that the Medical Assessor did appear to say that “I have found 9% upper extremity which converts to 7% WPI” which would appear to be a potential error. Mr Ibrahim concedes that this is unclear and would appear to be incorrect.
The Appeal Panel therefore assessed 5% WPI of the right upper extremity.
In summary, the Appeal Panel therefore assesses 17% WPI of the cervical spine and deducts one tenth which results in 15.3%, which is rounded up to 15% WPI. The Appeal Panel assesses 5% WPI of the lumbar spine and deducts three fifth which results in 2%WPI. The Appeal Panel therefore assessed 5% WPI of the right upper extremity and 10% WPI of the left upper extremity. These figures combine to total 29% WPI as a result of the injury on 16 February 2022.
For these reasons, the Appeal Panel has determined that the MAC issued on
1 November 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W25030/24
Applicant:	Ahmed Ibrahim
Respondent:	AMA Group Solutions Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor John Brian Stephenson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1.Cervical Spine	16 February 2022	Chapter 4, Page 27, Parag 4.27	Chapter 15, Page 392, Table 15-5	17%	1/10th	15%
2.Lumbar spine	16 February 2022	Chapter 4, Page 27, Parag 4.27	Chapter 15, Page 384, Table 15-3	5%	3/5ths	2%
3. Right upper extremity (shoulder)	16 February 2022	Chapter 2, Page 10-12	Chapter 16, Page 476 to 479, Figure 16-41 to Figure 16-46	5%	0	5%
4.Left upper extremity (shoulder)	16 February 2022	Chapter 2, Page 10-12	Chapter 16, Page 476 to 479, Figure 16-41 to Figure 16-46	10%	0	10%
5.Right lower extremity (knee)	16 February 2022	Chapter 3 Pages 13-15	Chapter 17, Page 537, Table 17-10.	0%	0	0%
6.Left lower extremity (knee)	16 February 2022	Chapter 3 Pages 13-15	Chapter 17, Page 537, Table 17-10.	0%	0	0%
Total % WPI (the Combined Table values of all sub-totals)					29%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2025] NSWPICMP 161

13 March 2025