Barcala v Secretary, Department of Education
[2025] NSWPICMP 737
•17 September 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Barcala v Secretary, Department of Education [2025] NSWPICMP 737 |
| APPELLANT: | Kalithea Barcala |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | Mitchell Strachan |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 17 September 2025 |
| DATE OF AMENDMENT: | 23 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); failure to provide adequate reasons; Wingfoot Australia Partners Pty Limited v Kocak applied; demonstrable error; Held – Medical Assessor fell into error; re-examination; MAC revoked; new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 April 2025, the appellant Kalithea Barcala, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Philip Truskett, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 April 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, 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 sustained an injury to her right shoulder, cervical spine and thoracic spine when she was pushed to the ground and physically assaulted in the course of her employment as a teacher with the respondent on 8 May 2023.
Liability with respect to the appellant’s injuries was accepted by the respondent’s insurer on 19 May 2023.
Solicitors acting for the appellant made a claim for lump sum compensation in accordance with s 66 of the Workers Compensation Act 1987 (1987 Act) with respect to 14% WPI on
6 June 2024, relying on a report of Dr Bodel dated 8 January 2024.On 24 October 2024, having arranged for the appellant to be medically assessed by
Dr Diebold who provided a report dated 28 August 2024, the respondent’s insurer issued a dispute notice in accordance with s 78 of the 1998 Act disputing the appellant’s entitlement to lump sum compensation on the basis that the appellant’s degree of permanent impairment was below the threshold prescribed by s 66(1) of the 1987 Act.On 19 December 2024 the appellant filed an Application to Resolve a Dispute (ARD) seeking lump sum compensation with respect to 14% WPI to the thoracic spine, cervical spine and right upper extremity (shoulder).
On 17 January 2025 a Reply to ARD was filed on behalf of the respondent.
On 12 February 2025 an amended medical dispute was referred to Medical Assessor Truskett. The Medical Assessor examined the appellant on 24 February 2025 and issued a Medical Assessment Certificate (MAC) dated 2 April 2025 assessing the appellant’s WPI at 10%.
It is an appeal from this MAC which is now before the Appeal Panel.
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.
As a result of that preliminary review and having found error in the MAC as set out below, the Appeal Panel determined that the appellant should undergo a further medical examination because there was insufficient evidence on which to make a determination with respect to the appellant’s degree of permanent impairment.
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.
Further medical examination
Medical Assessor Oates of the Appeal Panel conducted an examination of the appellant on 13 August 2025 and reported to the Appeal Panel.
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.
In summary, the appellant submits that the Medical Assessor:
(a) applied the incorrect diagnosis and impairment calculation with respect to the right shoulder and did not explain the basis for the assessment;
(b) applied incorrect criteria by not attributing impairment to the impingement and crepitus separately and failed to expose the path of reasoning, and
(c) with respect to the thoracic spine, failed to record separate findings including diagnosis and a record of the examination and as not recorded the basis for an assessment of 0% WPI.
In reply, the respondent submits that:
(a) the Medical Assessor had the benefit of examining the appellant and reviewing the material relied upon by the parties;
(b) a review of the MAC does not disclose demonstrable error of that it was made on the basis of incorrect criteria;
(c) if leave is granted, as it has been, a re-examination by a Medical Assessor member of the Appeal Panel is not necessary, and
(d) while the Medical Assessor was required “to expose the process of reasoning and provide adequate reasons” however the reasons need not be extensive.
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 – Demonstrable error and incorrect criteria: Incorrect diagnosis and impairment calculation with regards the right shoulder
The appellant submitted that while the Medical Assessor agreed the appellant was suffering from impingement it is not clear from the MAC that the Medical Assessor took any impingement into account when formatting the impairment rating of the right shoulder. Further, the appellant submitted that the Medical Assessor has not articulated the basis for the assessment under Table 16-18.
The appellant submitted, quoting from Wingfoot Australia Partners Pty Limited v Kocak (2013) HCA 43, that the Medical Assessor was required to explain their actual path of reasoning and that a failure to do so amounted to demonstrable error.
The respondent submits that in accordance with the Guides it was not open to the Medical Assessor to assess additional conditions and impairments as asserted by the appellant and that the basis for the assessment is evident from the MAC and an analysis of the AMA5 and relevant tables relied on by the Medical Assessor. The respondent submits that the reasons provided by the appellant are sufficient.
The Appeal Panel has reviewed the reasons provided by the Medical Assessor in the MAC. The Medical Assessor noted that on examination the appellant had full range of shoulder movement, recording the results of his assessment. The Medical Assessor noted however that there was crepitus in the right shoulder with a loss of rhythm and some impingement with marked tenderness in the region of the acromioclavicular joint.
The Medical Assessor made reference Table 16-18 (page 499) and Table 16.19 (page 500) of the AMA5 and noted that while the appellant had:
“full range of shoulder movement there was evidence of significant acromioclavicular pain with crepitus and by acknowledging Table 16-18 would equate to 15% whole person impairment. It would however be considered moderate as in this case there is palpable crepitus. This would equate to 20% joint impairment. This would then be calculated as a 20% joint impairment of 15% whole person impairment which would equate to a 3% whole person impairment.”
As submitted by the appellant, a Medical Assessor is required to explain the actual path of reasoning for the conclusions reached. These reasons must allow the parties to understand the decision.
It may be possible for a sophisticated litigant such as the respondent and its insurer to deduce the reasoning by reference to the Guides and Guidelines, as the respondent does at [23.1] to [23.3] of its submissions. This does not demonstrate however that the reasons provided are sufficient to allow both parties, including a less sophisticated party, such as the appellant worker, to understand the reasons for the decision reached by the Medical Assessor.
The Appeal Panel is satisfied that the brief explanation by the Medical Assessor set out above does not expose the path of reasoning in sufficient detail to allow the parties to understand the reasons for the assessment reached and thus amounts to demonstrable error.
Ground 2 – Demonstrable error and incorrect criteria: Incorrect impairment calculation with regards the thoracic spine
The appellant submitted that the Medical Assessor recorded findings with respect to the back but did not separately set out findings with respect to the lumbar spine including diagnosis and examination findings. The appellant submits that the assessment ‘gives the immediate impression of error as it does not appear to be based on a physical examination of the lumbar spine’.
The respondent submits that when considered in its entirety, the assessment of the Medical Assessor with respect to the back should be read to include the lumbar spine.
The Medical Assessor recorded that there was full range of back movement and back flexion/extension was normal as was left and right lateral flexion and rotation. The Medical Assessor referenced Chapter 15.5 (page 388) and Table 15-4 (page 389) of the AMA5 and assessed the appellant with 0% WPI with respect to the thoracic spine.
As the Medical Assessor has recorded these findings as against the back generally as opposed to making findings specific to the lumbar spine or thoracic spine (which a distinct areas for assessment under the AMA5), it is not possible to ascertain whether the Medical Assessor conducted an assessment of the thoracic spine as opposed to the lumbar spine and the findings on examination as they related to the thoracic spine. Further, the MAC does not record the appellant’s present symptoms with respect to the thoracic spine at the time of the assessment by the Medical Assessor.
Without the clear history and findings on examination, again it is not possible to ascertain the Medical Assessor’s path of reasoning in reaching the assessment they have with respect to the thoracic spine. This again amounts to a demonstrable error.
Re-examination
The Appeal Panel appointed Medical Assessor Oates, Medical Assessor member of the Appeal Panel to conduct the re-examination. The Appeal Panel is satisfied that the re-examination was conducted thoroughly, a complete physical examination of the appellant occurred, and that Medical Assessor Oates considered all ‘relevant and significant material’ in the documents which were before the original Medical Assessor.
Medical Assessor Oates reported to the Appeal Panel in the following terms:
“Date of Birth: [REDACTED]
Date of Injury: 8/5/2023
Date of Examination: 13/8/2025 by Medical Assessor Oates for the Medical Appeals Panel at the PIC Medical Suites.
I began by explaining to the worker that I was assessing her in my role as an independent decision maker and could not answer any questions about her medical situation.
Ms Barcala is right hand dominant.
HISTORY RELATING TO THE INJURY
Brief history of the incident, onset of symptoms and of subsequent related events including treatment
The applicant worker confirmed that she was in a temporary teaching position at Matraville Sports High School, covering a Mathematics class, when on 8/5/2023 she was standing at the doorway outside the room with her right arm adducted and externally rotated, resting her hand on the doorframe, waiting for the class to enter.
A student behind her yelled at one of the students who was in the room. She turned around and recognised this student and asked him to stop, and then she looked back ahead of her. This student was standing behind her holding a football and he then held the football close to his chest with both his arms crossed, and ran into the back of her body unexpectedly. In this process, she hyper-abducted her right arm back behind the line of the body.
She was flung forward into the classroom, landing on her hands and knees on the floor. She was not knocked out but was shocked. The student then acted aggressively towards her, throwing the ball towards her face. He then left the scene and other students came to her aid. She felt a sense of tingling down the right arm from the shoulder, into the right ring and little fingers.
She contacted the Deputy Principal of the school and then she left work early to go home. As the adrenalin settled down, she became more aware of pain in the upper back, radiating to the lower back, and in the neck and right scapula on day four after the assault, similar to a whiplash condition, and also ongoing right shoulder joint pain. She developed presyncope with the neck pain and stiffness.
She saw a GP, Dr Ryan Horn, Canterbury on 9/5/2023 and was referred for MRI scan of the cervical spine and right shoulder performed on 25/5/2023. She had MRI scan of brachial plexus on 22/7/2023 which showed no radiological abnormality of the plexus.
She had a nerve conduction study on 30/8/2023 of the right upper limb which was normal. An MRI scan thoracic spine on 18/12/2023 showed a small central T6/7 protrusion without neural compression.
She had physiotherapy twice a week with treatment directed to the neck and thoracic and right shoulder for about two years, and this therapy is continuing. She recently had to undertake a re-assessment review.
She finds that physiotherapy has been very effective, both short-term in managing pain and also over the longer term in terms of improving muscle strength and reduction of muscle atrophy, which was visible early on after the incident. Nevertheless, she can still only work with 500gm weights when doing exercise with the right arm.
She was treated with Pregabalin (Lyrica) for about seven months, but this had side-effects. She was also taking Mobic, an anti-inflammatory.
She was referred to Dr A Weiss, pain physician, at North Shore Private Hospital. She had a right stellate ganglion block in December 2024, followed by one week off work, and then a further stellate ganglion block in March 2025.
The blocks reduced the cold and hot nerve pain radiating down the right arm and improved the sense of weakness in the right wrist and reduced pain in the right scapula and thoracic area which radiated to the posterior right upper arm and helped to a lesser extent with right-sided neck pain. She notices the effect of the second block has been wearing off over the last two months, but she is delaying having a further stellate block whilst she is trying to fall pregnant.
After the accident, she was off work for a couple of weeks and then tried to return to work full-time, but needed to have further time off because of the injury. She moved to a different school and attempted a further three weeks of work, but needed days off and was down-graded to three days a week at Hunters Hill High School in Term 4 of 2023.
In Term 1 of 2024, she again resumed full-time duties but still would have sick days with migraine headaches, neck pain and right shoulder joint pain radiating to the right scapula and upper thoracic, and also for undergoing procedures and attending appointments related to her injury.
She saw A/Professor Raymond Schwartz, neurologist, Kogarah regarding headaches. He recommended Botox injections and she has had had two treatments of Botox so far with good result.
She has had the third stellate ganglion block injection pre-approved and has done a multi-disciplinary pain program through her rehabilitation case manager over a 12-week period in 2024.
Her last Botox injection was two weeks ago for cervicogenic C1/C2 pain and migraines. These headaches used to last up to three days and severe for a week overall, and consisted of eye pain and also TMJ dysfunction. She has had Botox in both TMJs, along with the base of the skull, neck and trapezii.
Present treatment
She is due to have another stellate ganglion block, but this is postponed at the moment, and also further Botox injections.
She is still attending physiotherapy on a regular basis and her current GP is Dr Zan, whom she sees every couple of months.
Details of any previous or subsequent accidents, injuries or condition
She had a right knee arthroscopy in 2018 after her knee suffered a meniscal injury when she was running in a cross country race at aged 13.
She had a fractured right forearm treated with plaster immobilisation at eight years old.
She was diagnosed with an under-active thyroid when she was three and has taken Thyroxine since and thyroid function is well controlled.
She had a workers compensation claim for a psychological injury in 2022 and received psychological therapy for this, and this continued until June 2025.
She has had no previous problems relating to the neck, thoracic or right shoulder, and no subsequent accidents or injuries.
General health
This has been good.
Current symptoms
She has a debilitating migraine headache about once a week on a background of constant tension headache and intense bilateral jaw pain radiating to the soft palate, with stabbing pain in the right ear and tinnitus. She also gets visual auras in the right eye.
There was constant neck stiffness and bilateral upper cervical sharp pain radiating to the base of the skull, and she will wake up with a rigid neck spasm at times.
She gets a lot of pain in the upper half of the thoracic spine, radiating to under the right scapula and around into the right upper arm.
When the thoracic area is flared up, she also feels some discomfort in the lower back as well. Sometimes the thoracic pain is worse than the cervical pain.
She will get a hot throbbing sensation in the right shoulder joint which wakes her up from sleep and in conjunction with soreness in the neck.
She has a presyncope feeling which affects her ability to drive and she has to stay home until this feeling wears off.
The symptoms return quickly when the effect of the Botox has worn off.
She has a 50-minute drive to work and is sore when she arrives. She can’t drive long distances unless she takes frequent stops. This was required when she was visiting family members in Coffs Harbour.
Social activities/ADL
She lives in a house with her husband, who works full-time, and he does most of the shopping. She can only carry a small bag of a few groceries and unpacks the trolley at the car.
Her work consumes all her energy. She has nothing left at the end of the day.
She can only do light housework mid-week. She can do short stints on the weekend.
She did have a gardener and housekeeper after the accident, but before this she did the gardening and her husband did the mowing. Now she just does small jobs like watering the plants, but can’t do vacuuming or high reaching tasks such as hanging clothes on the line. She can vacuum now for about 10 minutes at a time. She was given a light steam mop and a stick vacuum after an occupational therapy assessment.
She is independent with personal care, although pain and exhaustion cause difficulty brushing teeth and washing her face some days, and she has to sit on the floor of the shower. She has difficulty tilting her head back to wash her hair and nearly faints.
She can no longer practise her yoga or teach yoga to adults. This was a second source of income for her. Now she just teaches chair yoga to school students.
She has difficulty with making artworks now because she has less physical endurance. She used to run four times a week, but now finds that running and jumping jolts her spine. She is limited in terms of physical activities.
She has a lifting restriction of 2kg in the right hand and 5kg for two-handed lifts, and this makes things difficult for her.
Current medication
She has Panadeine Forte as required for a flare-up of pain and last used this a week ago, but will take them about once a month. She has Thyroxine and a medication for ADHD which was diagnosed in 2021. She has ceased this medication whilst trying to conceive in early 2025.
She is worried about her future career in teaching and ability to continue in this. She is going to sell her property on the South Coast to have some financial certainty. She and her husband rent their current house at Kenthurst.
IMAGING
No imaging was brought to the examination.
PHYSICAL EXAMINATION
She was of average build with height 166cm and weight 70.2kg.
Cervical spine
Active range of movement was undertaken tentatively with flexion one-third, extension one-half, lateral flexion one-half bilaterally and rotation one-half bilaterally.
Upper limb reflexes were symmetrical. Power testing was affected by pain inhibition in the right arm at the shoulder and there was slight weakness of the right hand intrinsic muscles.
Sensation was decreased to light touch in the inner right upper arm and forearm to the ulnar half of the hand.
Upper arm girth; right equals left equals 30cm at 10cm above the elbow.
Forearm girth; right 24.5cm, left 24cm at 5cm below the elbow.
Thoracic spine
This was tested in the seated position. Rotation was two-thirds of normal bilaterally. Sensation over the trunk was normal. There was no spasm or guarding and no focal tenderness.
Lumbar spine
Lateral flexion two-thirds bilaterally. Flexion and extension both two-thirds of normal range. No spasm or guarding.
Reflexes in the lower limbs were symmetrical, with plantar responses both flexor. Power and sensation in the lower limbs were normal.
Straight leg raising was 80° bilaterally with negative stretch test.
Upper extremities
Right and left shoulders
Positive impingement on the right and negative on the left. There was no instability in the glenohumeral or acromioclavicular joints. There was no undue prominence of the acromioclavicular joints.
Measurement
RIGHT
Measurement
LEFT
Flexion
150° (2% UEI)
180°
Extension
40° (1% UEI)
50°
Adduction
30° (1% UEI)
40°
Abduction
150° (1% UEI)
180°
Internal Rotation
50° (2% UEI)
90°
External Rotation
90°
90°
There was some crepitus in the AC joint on the right.
I brought to the worker’s attention that she was able to move her right shoulder better previously according to the results recorded by Medical Assessor Truskett, and she stated that her stellate ganglion block was fresh at the time of that examination and was working well, hence the better range of movement at that stage.
DISCUSSION
Permanent Impairment
Cervical spine
There was asymmetry present placing her in DRE Category II giving 5% whole person impairment, with an addition of 2% whole person impairment for the effects on activities of daily living.
Thoracic spine
There was no dysmetria, no guarding, no spasm and no radiculopathy, placing her in DRE Category I giving 0% whole person impairment.
Right shoulder
Although there was positive impingement, there was also restricted range of movement which is considered to be a more specific method of assessing impairment when it is present.
The loss of range of movement in various planes produced a total of 7% upper extremity impairment, which converts to 4% whole person impairment.
===================================================================
The combined whole person impairment of 7 by 4 by 0 is 11% whole person impairment.”
The Appeal Panel, having reviewed the assessment and findings on examination of
Medical Assessor Oates is satisfied that it appropriately determines the medical dispute between the parties with respect to the degree of permanent impairment to the thoracic spine and right shoulder as a result of injury on 8 May 2023 being the extent of the dispute (subject to appeal). No complaint has been made by the parties on appeal nor any submissions provided raising issue with the assessment of the cervical spine by the Medical Assessor and this finding is not disturbed by the Appeal Panel.The Appeal Panel accepts that in reaching the assessment regarding the right shoulder and thoracic spine, Medical Assessor Oates has used his clinical judgment and explained the assessment with reference to the Guides and Guidelines.
In Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191, Ward P considered at [88]:
“The statutory provisions assume power on the part of a medical member of the Appeal Panel to carry out a re-examination and assessment of the worker. It may be inferred that the Appeal Panel, in adopting the report and findings, was endorsing the reasoning in that report since that is where the reasons are to be found. I do not accept that the Appeal Panel was required to deliver separate or distinct reasons as to why the Appeal Panel (or two of the three members of it, perhaps) accepted Medical Assessor Glozier’s assessment in preference to the assessment of, say, the Medical Assessor. In my opinion, it was sufficient for the Appeal Panel to adopt Medical Assessor Glozier’s assessment (for the reasons contained therein).”
The Appeal Panel considers the findings and assessments of Medical Assessor Oates to be reliable, and the Appeal Panel adopts those findings and assessments.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 April 2025 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: | W30192/24 |
Applicant: | Kalithea Barcala |
Respondent: | Secretary, Department of Education |
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 Truskett 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) |
| Cervical spine | 8 May 2023 | Ch 4, p 24, paragraph 4.34, p 28 | 15.6, p 392; Table 15-5 | 7% | 0 | 7% |
| Right upper extremity (shoulder) | 8 May 2023 | Ch 2, p 11-12 | Ch 16, p 433 to 521 | 4% | 0 | 4% |
| Thoracic spine | 8 May 2023 | Ch 4, p 24 | 15.5, p 388; Table 15-4 | 0% | 0 | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
0
2
0