Belgravia Health & Leisure Group Pty Ltd ATF Belgravia Leisure Unit Trust v De Silva

DETERMINATION OF APPEAL PANEL
CITATION:	Belgravia Health & Leisure Group Pty Ltd ATF Belgravia Leisure Unit Trust v De Silva [2025] NSWPICMP 395
APPELLANT:	Belgravia Health & Leisure Group Pty Ltd ATF Belgravia Leisure Unit Trust
RESPONDENT:	Matara Arachchige Saliya De Silva
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Tim Anderson
DATE OF DECISION:	5 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor (MA) correctly applied the guidelines to determine whether respondent had radiculopathy; whether MA erred by finding the respondent had radiculopathy; Held – Appeal Panel found the MA made no error in finding the respondent had radiculopathy; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 December 2024 Belgravia Health & Leisure Group Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 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

The appellant employed Matara Arachchige Saliya De Silva, the respondent, as a personal trainer from 2014. As a part of his duties for the appellant, the respondent was required to undertake cleaning duties. The performance of those duties by the respondent resulted in his suffering an injury to his left shoulder and neck.
The respondent’s solicitors organised for the respondent to be examined by orthopaedic surgeon Dr J Brian Stephenson on 20 April 2022 and again on 25 October 2023.
Dr Stephenson produced reports following those examinations dated respectively
22 April 2022 and 26 October 2023 relating to various matters about the respondent’s injury. His report of 26 October 2023 included his assessment of the degree of the respondent’s permanent impairment from his injury, which was 24% whole person impairment (WPI) being a combination of 9% WPI relating to the respondent’s left shoulder and 17% WPI relating to the respondent’s cervical spine. Relying on that report of Dr Stephenson, the respondent claimed compensation from the appellant’s insurer under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from his injury.
The insurer had previously arranged for the respondent to be examined by orthopaedic surgeon Dr Roger Rowe on 24 June 2021. Dr Rowe provided a report to the insurer dated
30 June 2021. In that report, and in response to a specific question the insurer had posed to Dr Rowe, Dr Rowe said:
“There is no history of any accident or injury involving his neck or arms. Whilst he may have been undertaking a lot of cleaning as described, this at most may have caused a strain of the neck and/or arms but there is no current evidence of ongoing strain. Thus, at this stage, his employment is not a substantial or main contributing factor in regard to any neck or arm pathology.”
On 13 February 2024 the insurer wrote to the respondent to notify him pursuant to s 78 of the 1988 Act that it disputed he was entitled to compensation for permanent impairment from his injury. It advised him that its reasons for denying liability was based on that opinion that
Dr Rowe had expressed in his report.
The respondent then instituted proceedings in the Personal Injury Commission (Commission) seeking the Commission determine his claim for compensation for permanent impairment. Following the appellant lodging a reply to that, the matter was referred to a Commission Member, namely Mr Adam Halstead, who with consent of the parties remitted the matter on
6 September 2024 to the President of the Commission so that it could be referred to a Medical Assessor to assess a medical dispute between the parties relating to the degree of the respondent’s permanent impairment resulting from his injury. Member Halstead also made several directions on 6 September 2024, again with the consent of the parties, that included a direction requiring the respondent to attend a further examination with Dr Rowe and for the respondent to seek leave to rely on any supplementary report Dr Rowe produced relating to that examination.
On 6 September 2024 a delegate of the President of the Commission issued a referral to the Medical Assessor. The documents that were listed in that referral that were to be provided to the Medical Assessor were:
“1. Application and attached documents
2. The reply and attached documents”
On 16 October 2024 the respondent lodged with the Commission an application to admit late documents, attaching several documents including a report of Dr Roger Rowe dated
27 September 2024, relating to an examination Dr Rowe had conducted of the respondent on 26 September 2024. In his report, Dr Rowe advised that he had assessed the degree of the respondent’s permanent impairment is 14% WPI being a combination of 6% WPI relating to the respondent’s cervical spine and 8% WPI relating to the respondent’s left shoulder.
Dr Rowe noted in his report that whilst the respondent had radicular symptoms in his left arm he did not find the respondent had localised evidence of radiculopathy and hence he did not make a finding that the respondent had radiculopathy. Dr Rowe also questioned
Dr Stephenson’s findings expressed in Dr Stephenson’s report of 26 October 2023 that the respondent then had signs of radiculopathy.
The Medical Assessor conducted his examination of the respondent on 6 November 2024. The Medical Assessor certified in the MAC that he assessed the degree of the respondent’s permanent impairment from his injury is 24% WPI, being a combination 17% WPI relating to the respondent’s cervical spine and 9% WPI relating to his left upper extremity. It is apparent that neither at the time the medical examiner examined the respondent nor at the time he issued the MAC, he had before him the report of Dr Rowe dated 27 September 2024.
On 6 December 2024 the appellant lodged with the Commission an application to appeal against the Medical Assessor’s assessment of the medical dispute. That appeal, in substance, brought into issue the Medical Assessor not having considered Dr Rowe’s report of 27 September 2024 wherein Dr Rowe advised that he assessed the degree of the respondent’s permanent impairment is 14% WPI being a combination of 6% WPI relating to the respondent’s cervical spine and 8% WPI relating to the respondent’s left shoulder.
Dr Rowe also noted in his report that whilst the respondent had radicular symptoms in his left arm he did not find that the respondent had localised evidence of radiculopathy and, because of that, did not make a finding that the respondent had radiculopathy. Dr Rowe also questioned Dr Stephenson’s findings expressed in Dr Stephenson’s report of
26 October 2023 that the respondent then had signs of radiculopathy.
Following the respondent lodging a notice of opposition to that appeal of the appellant, a delegate of the President, on 30 January 2025, referred the matter back to the Medical Assessor for reconsideration. This was done pursuant to s 329(1A) of 1998 Act. Section 329(1) of the 1998 allows the President as an alternative to an appeal against a medical assessment to refer the matter again to a Medical Assessor for assessment.
On 12 February 2025 the Medical Assessor issued a document titled:
“PERSONAL INJURY COMMISSION
MEDICAL ASSESSMENT CERTIFICATE
FURTHER ASSESSMENT FOR RECONSIDERATION”
In that document the Medical Assessor detailed that the matter which had been referred to him for further assessment or reconsideration was the “medical-legal report prepared by
Dr Roger Rowe, Orthopaedic Surgeon, dated 27 September 2024”. The Medical Assessor also noted that Dr Rowe’s assessment, as detailed in his report of 27 September 2024, differed from his assessment. The Medical Assessor said that his assessment remained the same. He noted that Dr Rowe had assessed the respondent’s permanent impairment relating to his cervical spine by correlating the respondent’s signs and symptoms with the criteria of DRE Cervical category II of AMA5 on the basis that the respondent exhibited asymmetrical range of movement of the cervical spine with radicular symptoms in his left arm, and no localised evidence of radiculopathy.
The Medical Assessor explained that he had found the respondent “had abnormal sensation in the left arm and asymmetry of reflexes and radiculopathy”. He explained that correlated with DRE category III.
The Medical Assessor also noted that Dr Rowe had added 1% WPI for restriction of the respondent’s activities of daily living whereas he had allowed 2% WPI because the respondent “had difficulty with physical work, mopping working in confined spaces, hanging out washing and doing activities above shoulder height”. The Medical Assessor noted
Dr Rowe had assessed the respondent has 8% WPI relating to his left upper extremity whereas he had assessed the respondent had 9% WPI. He said that his assessment differed from Dr Rowe’s assessment as he found the respondent’s shoulders to be slightly more restricted. The Medical Assessor noted that due to pain the range of movement can vary from day to day.
Section 329(2) of the 1998 Act provides that “a certificate as to a matter referred again for reconsideration prevails over any previous certificate as to the matter as to the extent of any inconsistency”. There is no inconsistency between the Medical Assessor’s assessment as certified in the MAC and what he expressed in the document he issued on 12 February 2025. Accordingly, the MAC, insofar as it records the Medical Assessor’s certification of his assessment of the medical dispute relating to the degree of the respondent’s permanent impairment from his injury, remains in force and in accordance with s 326(1) of 1998 Act is conclusively presumed to be correct with respect to that matter.
The appeal against the medical assessment the appellant lodged with the Commission on
6 December 2024, and for clarity that is the appeal the Appeal Panel is considering, does not raise any controversy regarding the Medical Assessor’s assessment of the degree of permanent impairment of the respondent’s left upper extremity, that is the respondent’s left shoulder, or the Medical Assessor’s assessment pursuant to paragraph 4.33 of the Guidelines that the respondent has 2% WPI due to the effect of his injury on his activities of daily living. The issue the appellant raises in its appeal relates to the Medical Assessor’s conclusion, based on his findings from his examination of the respondent, that the respondent met the criteria of paragraph 4.27 of the Guidelines, which allowed the Medical Assessor to conclude that the respondent had radiculopathy. A consequence of that was the Medical Assessor assessed that the respondent’s permanent impairment relating to cervical spine met the criteria of DRE cervical category III of AMA5.
Relevant to that issue, the Medical Assessor noted that the respondent reported symptoms of pain and pins and needles in his left arm that are intermittent and brought on by activity and arm position and driving for long periods. The Medical Assessor also recorded making the following findings from his examination of the respondent’s cervical spine:
“Examination of the neck reveals normal posture. There is no muscle guarding or muscle tenderness in the neck. The left trapezium was firm and tender. There is tenderness on the left side of the neck in the lower segments. Neck movements were normal in flexion and extension. Rotation and tilt were restricted bilaterally, left greater than right. He complains of increased stiffness and discomfort in the neck at the end of range of tilt and rotation.
Examination of the arms reveals normal sensation to light touch. Pinprick testing was
decreased on the radial aspect of the forearm, thumb and index finger. Biceps and triceps jerks were normal, right equals left. Right supinator jerk was normal whilst left supinator jerk was depressed. I could detect no muscle weakness localised to an appropriate spinal nerve distribution in either limb, and he had normal grip strength, normal adduction and abduction of the fingers, normal power in resisted wrist movements, elbow movements and shoulder movements.
There was 1cm loss of muscle bulk in the left upper arm with the forearm muscle bulk being similar in both arms.”
The Medical Assessor also briefly noted what neuroradiologist Dr Wenderoth reported on a MRI scan of the respondent’s cervical spine done on 19 March 2021. What he noted included part of the neuroradiologist’s comment on his findings from that scan, specifically, “Correlation between imaging and the patient’s pre-scanning pain diagram indicates slightly (sic: likely) left C7 and possible left C6/7 radiculopathy which would correspond to the finding of foraminal stenosis on the left at the C5/6”.

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, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established the grounds for appeal on which it relied, and consequently the Appeal Panel neither has power nor reason to examine the respondent.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130]; Saveski v Brunjev Pty Ltd [2025] NSWSC 157 at [66].

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor was wrong to conclude, based on the findings he recorded in the MAC, that the respondent met the requirements of paragraph 4.27 of the Guidelines to enable a conclusion being made that the respondent has radiculopathy. The appellant submitted that this error on the part of the Medical Assessor amounts to the application by the Medical Assessor of incorrect criteria in making his assessment of the respondent permanent impairment relating to his cervical spine and also is such that the MAC contains a demonstrable error.
The appellant submitted that the Medical Assessor failed to provide adequate reasoning for coming to a conclusion different from that expressed by Dr Rowe that the respondent does not have radiculopathy.
The appellant submitted that the Medical Assessor whilst identifying the respondent had abnormal sensation and decreased sensation “did not explicitly state that same is reproducible, or anatomical localised to an appropriate spinal nerve root distribution”. The appellant submitted that the Medical Assessor, whilst expressing the view that the MRI scan is consistent with clinical signs, “only stated that the MRI of the cervical spine dated
19 March 2021 indicates ‘possible’ left C6/7 radiculopathy”.
In reply, the respondent submitted that the Medical Assessor’s findings from his examination confirmed he has radiculopathy. The respondent noted that the Medical Assessor found that he had abnormal sensation in his left arm and asymmetry of reflexes. The respondent submitted that there is no error demonstrated in either the MAC or the reasons the Medical Assessor provided in his reconsideration decision. The respondent submitted that the Medical Assessor gave adequate reasons for the conclusions he made and the assessment he made.

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[2] the Court of Appeal held that the Appeal Panel is obliged to give reasons.
[2] [2006] NSWCA 284 (Vegan).
Paragraph 4.27 of the Guidelines reads as follows:
“4.27 Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
• Loss or asymmetry of reflexes
• Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
• Reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
• Positive nerve root tension (Box 15-1, p 382, AMA5)
• Muscle wasting – atrophy (Box 15-1, p 382, AMA5)
• Findings on an imaging study consistent with the clinical signs (p 382, AMA5)”
The Medical Assessor’s findings from his examination of the respondent included that the respondent had decreased pinprick testing on the radial aspect of his left forearm, thumb and index finger. The Appeal Panel notes that specific finding is a sign that the respondent has impaired sensation in the distribution of C6 nerve root. It is a sign of reproducible impairment of sensation because it was produced on pinprick testing.
The Medical Assessor’s findings from his examination also included that the respondent had a normal right supinator jerk but a depressed left supinator jerk. That is a reflex associated with the C5/C6 level of the spine. This specific finding by the Medical Assessor reflects that the respondent exhibited on examination loss of reflexes. This also was a sign of C6 nerve root pathology.
Consequently, the Medical Assessor’s findings from his examination of the respondent met the criteria of paragraph 4.27 of the Guidelines to enable the Medical Assessor to conclude, correctly, that the respondent has radiculopathy, that is an impairment of the spinal nerve root at the left C5/6 level. The respondent’s signs from his examination revealed he met two of the major criteria listed in paragraph 4.27 of the Guidelines.
Further the respondent also met one of the non-major criteria, specifically findings on an imaging study consistent with the clinical signs, in that the MRI that was done on
19 March 2021 revealed likely left C7 radiculopathy and possible C6 radiculopathy. That is to say, the possibility that the focal left paracentral disc protrusion that was causing a flattening of the left hemi cord and mild left foraminal stenosis at C6/7, in regard to which reporting neuroradiologist suggested revealed a possible left C6 radiculopathy, was consistent with the findings of the Medical Assessor from his examination of a depressed reflex at C6 and reproducible impairment of sensation at in the distribution of C6.

There is consequently no error on the part of the Medical Assessor concluding that the respondent has radiculopathy and concluding that the respondent met the criteria of DRE cervical category III. Further, in making those conclusions, the Medical Assessor has applied the correct criteria, that is he has abided the instruction of paragraph 4.27 of the Guidelines and Table 15.5 of AMA5.
The Appeal Panel does not accept the appellant’s submission to the effect that the Medical Assessor did not provide adequate reasons for his assessment. Contrary to what the appellant submitted the Medical Assessor’s obligation under s 325(2)(c) of the 1998 Act to explain his opinion for his assessment of the respondent’s permanent impairment resulting from the respondent’s injury did not require the Medical Assessor to explain why he did not assess the respondent’s impairment the same as Dr Rowe. It did not require him to explain why he did not form an opinion he did not hold.[3]
[3] Wingfoot Aust Partner Pty Ltd v Kocak [2013] HCA43 at [47] and [56]; State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC346 at [24] – [26].
The reasons the Medical Assessor provided did not need to be comprehensible to a person with no medical expertise, in the circumstance where there was no medical contest regarding the Medical Assessor’s conclusion and his conclusion would be self-evident to a medical practitioner.[4] In this case there is no medical contest evident from evidence before the Appeal Panel regarding the Medical Assessor’s conclusion, based on the Medical Assessor’s findings from his examination of respondent, that the respondent met the criteria paragraph 4.27 of Guidelines.
[4] Vegan at [122]; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA254 at [34].
Further, based on the findings the Medical Assessor made from his examination of the respondent, it would be evident to any medical practitioner that the respondent has radiculopathy.
It is important to bear in mind, that Dr Rowe’s assessment of the respondent’s permanent impairment was based on the findings that he made when he examined the respondent. His findings differed from the findings the Medical Assessor made when the Medical Assessor examined the respondent.
In short, the Appeal Panel finds that the MAC does not contain a demonstrable error and that the Medical Assessor applied the correct criteria to assess the degree of the respondent’s permanent impairment from his injury.
For these reasons, the Appeal Panel has determined that the MAC issued on
12 November 2024 should be confirmed.

[2025] NSWPICMP 395

5 June 2025