Blacktown City Council v D'Angelo

DETERMINATION OF APPEAL PANEL
CITATION:	Blacktown City Council v D'Angelo [2024] NSWPICMP 683
APPELLANT:	Blacktown City Council
RESPONDENT:	Sam D'Angelo
APPEAL PANEL
MEMBER:	Gaius Whiffin
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	27 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against Medical Assessor’s (MA) assessment of impairment in relation to the left lower extremity (knee) on the basis that the MA erred in failing to have regard to the respondent’s left knee symptoms in 2007 and 2010 therefore in not making a deduction from the impairment in accordance with section 323; error found for failure to consider relevant and significant material being the clinical notes of the respondent’s treating general practitioners in 2007 and 2010; following consideration of the clinical notes as well as a further medical examination conducted on behalf of the Medical Appeal Panel (Panel) it is found that the respondent’s left knee symptoms in 2007 and 2010 do not constitute a previous injury, pre-existing condition or abnormality sufficient to warrant a deduction from the impairment assessed by the MA in accordance with section 323; the Panel is not satisfied that the respondent’s degree of impairment would not have been as great but for any previous injury, pre-existing condition or abnormality; Ryder v Sundance Bakehouse, Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor, New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Queanbeyan Racing Club Ltd v Burton, Campbelltown City Council v Vegan, Prasad v Workers Compensation Commission, Wentworth Community Housing Limited v Brennan and Cole v Wenaline Pty Ltd considered; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 May 2024, Blacktown City Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The medical dispute the subject of the Appeal was assessed by Medical Assessor Berry (the Medical Assessor) who issued a Medical Assessment Certificate (MAC) on 4 April 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 President’s delegate is satisfied that, on the face of the Appeal, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and it has conducted a review of the original medical assessment, but limited to the grounds of appeal in relation to which the Appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 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 has employed Sam D’Angelo (the respondent) from around 2006, and he continues in its employ. He is 61-years-old and employed by the appellant as a park maintenance worker.
He sustained an injury to his left knee during the course of his employment with the appellant. In relation to that injury, he claims lump sum compensation for his relevant whole person impairment, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). He has filed an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) with respect to that claim. The ARD pleads the injury as a disease injury with a deemed date of 1 September 2023, and further pleads the cause of the injury as follows:
“On 29 July 2013 the Applicant was attempting to alight from the rear of a truck when he slipped and struck his left knee heavily on the horizontal edge of the tray of the truck. Subsequently the Applicant engaged in his usual duties as a park maintenance worker the nature and conditions of which aggravated, exacerbated or accelerated osteoarthritic changes to the left knee in particular associated with duties that included repeated twisting and turning actions often whilst load bearing, climbing into and out of vehicles and otherwise the requirement for the Applicant to be on his feet throughout the day.”
In his statement dated 12 February 2024 (found at page 1 of the ARD), the respondent says that he did not have problems with his left knee prior to 29 July 2013. He eventually had arthroscopic surgery to the knee following the incident that occurred on that day, and returned to work for the appellant eight or nine weeks after that procedure. He continued however to experience ongoing pain, swelling, and restriction of movement in the knee, and eventually underwent a left total knee replacement on 12 February 2021. He returned to work for the appellant in April or May 2021, and since then, he has been working “in light duties doing clean-up work around the Council yard including some light mowing work around the yard”.
The statement also outlines the respondent’s duties as a park maintenance worker:
“My duties as a park maintenance worker required me to be on my feet all of the day or alternatively within vehicles going from one municipal park location to another. Accordingly I am also climbing into and out of the vehicles as we move from one location to another. My duties include a significant amount of whipper snippering, edging and blowing and I am therefore carrying these machines and the operation of the machines necessarily requires me to constantly twist and turn. I also do tree maintenance work and it is necessary to lift and manoeuvre or throw branches of various sizes and weights into the back of the truck. Additionally I do shovelling work associated with mulching and I am constantly twisting and turning whilst doing this work with my shovel. Additionally, a significant part of my work also involves removal of various types of rubbish from parkland and Council structures. There are, in fact, a number of canals within the municipality and often some of the more difficult and heavy work involves removing bricks and quite heavy items from the canals.”
By letter dated 1 September 2023 (found at page 3 of the ARD), the respondent formally claimed lump sum compensation from the appellant, pursuant to s 66 of the 1987 Act. He enclosed with this letter a claim form (found at page 4 of the ARD) and a report from Associate Professor Courteney dated 13 June 2023 (found at page 10 of the ARD). In accordance with the report from Associate Professor Courtenay, the respondent alleged that he suffered from 22% whole person impairment. In his claim form, he also clarified his alleged date of injury as follows:
“Frank injury together with the nature and conditions of employment by way of aggravation, exacerbation or acceleration of a disease. The date of the injury is the date of the making of the claim.”
The appellant arranged for the respondent to be assessed by Dr Wallace, who provided a report dated 17 November 2023 (found at page 1 of the respondent’s Reply (Reply)). In accordance with that report, the appellant’s solicitors then wrote to the respondent’s solicitors on 8 December 2023 (found at page 10 of the Reply) conveying an offer to settle his claim pursuant to s 66 of the 1987 Act on the basis of a 19% whole person impairment finding.
The respondent did not accept that offer and the ARD was filed.
The appellant did not in its Reply dispute liability for the respondent’s injury, as pleaded in his ARD. As a result, on 12 March 2024, the Commission referred a dispute regarding the degree of the respondent’s permanent impairment as a result of the pleaded disease injury to the Medical Assessor. The referral noted the date of injury as “1 September 2023 – deemed”, and it requested assessments in relation to the left lower extremity and scarring – TEMSKI. Neither party objected to the terms of the referral.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the respondent should undergo a further medical examination because the Medical Assessor had not obtained a history of his documented complaints of left knee symptoms between 7 February 2007 and 19 March 2007, on 20 January 2010, and on 12 and 19 July 2010. The Medical Assessor had therefore fallen into error in not considering “relevant and significant material” (being those documented complaints) when determining how to apply s 323 of the 1998 Act in the assessment of the respondent’s whole person impairment. The Appeal Panel was itself unable to determine, without a further examination of the applicant, how to apply s 323 in this regard because of the inadequate history obtained by the Medical Assessor. A preliminary review certificate was therefore issued by the Appeal Panel and provided to the parties, requiring the respondent to attend an examination with Mark Burns on 31 July 2024.
The respondent attended the examination with Mark Burns but was then unable to provide sufficient information to the Appeal Panel regarding the documented complaints of his left knee symptoms in 2007 and 2010. As a result, and in accordance with s 324 of the 1998 Act, the Appeal Panel considered it necessary to issue a direction to both parties (on 22 August 2024) requiring them both to produce the following records:
“All WorkCover certificates or other medical certificates or other letters issued in relation to the applicant by:
(a)Dr Yang Wang on or around 7 February 2007, 11 February 2007, 18 February 2007, 19 February 2007, 23 February 2007, 4 March 2007, 11 March 2007, and 19 March 2007;
(b)Dr Himali Meegoda on or around 20 January 2010, and
(c)Dr Tan Nguyen on or around 19 July 2010.”
The respondent then advised the Appeal Panel by letter dated 23 August 2024 that he did not possess any of the requested records. However, the appellant was able to produce 10 pages of records in this regard on 16 September 2024.

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:
(a) the ARD and its attachments, and
(b) the Reply and its attachments.
The Appeal Panel however will not refer to the documentary evidence in detail, considering the limited nature of the Appeal.
The Appeal Panel does however note the following entries in the respondent’s clinical notes from Rooty Hill Medical & Dental Centre (found from page 16 of the Reply):
(a)    7 February 2007 – respondent reported a left lower leg laceration;
(b)    11 February 2007 – respondent’s left lower leg laceration was healing well;
(c)    15 February 2007 – respondent “had sore left knee after a twist on knee 1 week ago” – his left knee was swollen and tender and the doctor questioned degeneration – a left knee x-ray referral was arranged;
(d)    16 February 2007 – respondent’s left knee pain and swelling was noted – his left leg wound was healing well;
(e)    18 February 2007 – respondent still had left knee pain, although it was less now;
(f)    19 February 2007 – noted that the respondent’s left knee was “healing well now” and that his left lower leg lesion was also healing well;
(g)    23 February 2007 – respondent’s pain in his left knee was noted;
(h)    1 March 2007 – respondent had “sore L knee after twited [sic]”;
(i)    4 March 2007 – noted that the respondent “has L knee pain…fell last week while working, due to pain last Thursday”;
(j)    11 March 2007 – respondent still having left knee pain;
(k)    19 March 2007 – respondent having “no more pain in the knee now”;
(l)    20 January 2010 – respondent reported “left knee pain for 1yr on and off…knee locking, hear a click when knee is slowly extended…no H/X of injury” – the doctor questioned “recurrent patella dislocation” – the doctor recorded a normal knee examination but referred the respondent for an x-ray;
(m)     12 July 2010 – respondent reported left knee pain, locking and swelling – on examination, slight swelling was found but no tenderness or loss of range of movement – a left knee x-ray was requested, and
(n)    19 July 2010 – dislocation of the respondent’s left patella was recorded – a WorkCover certificate was issued together with a referral to Dr Brighton – it was noted that the respondent had been “doing a lot of heavy lifting lately”.

Medical Assessment Certificate

The parts of the MAC that are relevant to the Appeal are set out, where relevant, in the body of this decision. It is unnecessary to refer to the MAC in detail given the limited nature of the Appeal.
The Medical Assessor took a history of the respondent’s employment with the appellant from 2006, and of the respondent’s 29 July 2013 accident. He took a history of the arthroscopic surgery that the respondent subsequently underwent, and of the respondent’s eventual resumption of full duties employment with the appellant. He took a history of the respondent’s pain persisting, the respondent being referred for a Durolane injection in 2019, and the respondent undergoing a left total knee replacement on 12 February 2021.
The Medical Assessor did not take any history of any left knee symptoms of the respondent’s prior to 29 July 2013. Indeed, the MAC records:
“Mr D’Angelo notes no previous history of injury to his left knee.”
The Medical Assessor then obtained details of the respondent’s present symptoms and present treatment, performed a physical examination, and reviewed radiology. He assessed the respondent’s whole person impairment at 21% (20% in relation to left lower extremity (knee) impairment and 1% in relation to scarring – TEMSKI).
The Medical Assessor specifically opined that the respondent did not suffer from any relevant previous injury, pre-existing condition, or abnormality. No proportion of the whole person impairment assessed by him was therefore due to any previous injury, pre-existing condition, or abnormality. In relation to Dr Wallace’s opinion that there needed to be a deduction from the respondent’s whole person impairment in order to take into account a previous injury, pre-existing condition or abnormality, the Medical Assessor opines in the MAC:
“He then deducts 10% for his pre-existing arthritis, however, given the injury was 2013 I do not believe that any deduction is warranted.”

Further medical examination

As noted at paragraph 15 above, Mark Burns of the Appeal Panel conducted an examination of the respondent on 31 July 2024 and has reported to the Appeal Panel:
“The workers medical history, where it differs from previous records
Mr D’Angelo attended with his wife, Lisa D’Angelo.
Mr D’Angelo confirmed the history recorded by Assessor Berry in his MAC dated 4 April 2024. He did clarify that his date of birth is 25 July 1963, not 27 July.
Additional history since the original Medical Assessment Certificate was performed
He reported no additional history concerning his injuries and stated that his present symptoms and present treatment were also unchanged.
When questioned about any previous or subsequent accidents, injuries or conditions involving his left knee he was adamant that there was [sic] no accidents, injuries or conditions.
He was subsequently questioned about the previous clinical notes of Rooty Hill Medical and Dental Centre from 7 February 2007 to 19 March 2007 and from 20 January 2010 to 19 July 2010.
In the first period it was reported that he had a laceration of his left lower leg on 7 February 2007 which required suturing. A Workcover certificate was given. He had a follow up visit on 11 February 2007 for a dressing change and a further visit on 15 February 2007, when Dr Morian wrote ‘had sore left knee after a twist on knee 1 week ago’. Under management, the doctor recorded ‘Diagnostic Imaging requested: X-ray – Knee (L) - had swollen tender left knee ? degenration [sic]’ and ‘send for xray NAD’. (NAD is no abnormality detected)
Further consultations for the left knee were carried out on February 16, 18, 19 and 23, and March 1, 4 and 11, 2007. At the final consultation it was stated ‘no more pain in the knee now and finalise W/C’.
In the second period it was recorded on 20 January 2010 ‘left knee pain for 1yr on and off…knee locking, hear a click when knee is slowly extended…no H/X of injury’. The diagnosis recorded was ‘? recurrent patella dislocation’.
Further consultations occurred on 12 and 19 July 2010. The diagnosis was unchanged but there was a mention of a referral letter to Dr Roger Brighton. Also a NSW Workcover certificate was given.
Mr D’Angelo denied any memory of the left knee appointments in 2007 or 2010. He noted that the appointments were all within the period that he had been employed by Blacktown Council.
Findings on clinical examination
No clinical re-examination was carried out as the clinical findings of Assessor Berry had not been appealed.
Results of any additional investigations since the original Medical Assessment Certificate
No further investigations have been carried out since the MAC on 4 April 2024.”

Further records produced by the appellant pursuant to direction

These records encompassed eight WorkCover NSW medical certificates, as well as one other medical certificate in which Dr Meegoda briefly certified on 20 January 2010 that the respondent needed carer’s leave “to look after his wife and 15 months old son”.
In relation to the WorkCover NSW medical certificates, the Appeal Panel notes:
(a)    a certificate dated 7 February 2007 refers to the respondent lacerating his left lower leg in a work injury on that date – he required suturing and immunisation, and was unfit for work until 11 February 2007;
(b)    a certificate dated 11 February 2007 is virtually identical to the 7 February 2007 certificate, but now certifies the respondent as unfit for work until 16 February 2007;
(c)    a certificate dated 18 February 2007 diagnoses a left knee sprain (as well as the laceration of the respondent’s left lower leg) in the 7 February 2007 incident – the certificate does not indicate any necessary treatment for the left knee sprain, but certifies the respondent as unfit for work until 20 February 2007;
(d)    a certificate dated 19 February 2007 is virtually identical to the 18 February 2007 certificate, but now certifies the respondent as unfit for work until 23 February 2007;
(e)    a certificate dated 23 February 2007 is virtually identical to the 19 February 2007 certificate, but now certifies the respondent as fit for suitable duties employment with a restricted lifting capacity;
(f)    a certificate dated 11 March 2007 is virtually identical to the 23 February 2007 certificate, but extends the respondent’s fitness for only suitable duties employment with a restricted lifting capacity, until 11 March 2007;
(g)    a certificate dated 19 March 2007 is said to be a “final” certificate – it certifies that the applicant is fit for only suitable duties employment with a restricted lifting capacity until 11 March 2007 and does not extend the certification in this regard, and
(h)    a certificate dated 19 July 2010 refers to the respondent sustaining muscular pain following “heavy lifting at work” – rest and medication is recommended for him, and he is certified as unfit for work until 23 July 2010.

SUBMISSIONS

Both parties have made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions only deal with one aspect of the MAC, where it is alleged that the Medical Assessor fell into error. The appellant submits that there was evidence before the Medical Assessor which demonstrated that the respondent had a “pre-existing degenerative condition”, but the Medical Assessor failed to have regard to this “critical” evidence, and therefore failed to make a deduction from the impairment assessed by him in accordance with s 323 of the 1998 Act.
The appellant then refers to the entries in the respondent’s clinical notes from Rooty Hill Medical & Dental Centre detailed at paragraph 19 above.

The appellant submits that the Medical Assessor did not consider any of these entries in the respondent’s clinical notes. The entries are “relevant and significant material” which “clearly denote pre-existing pathology in the respondent worker’s left knee”. The Medical Assessor was therefore obliged in accordance with Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder) and Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor [2017] NSWSC 453 (Tattersall), to consider the extent of this pre-existing pathology in order to determine whether a proportion of the respondent’s impairment, as assessed by him, was due to a previous injury, pre-existing condition or abnormality. As he did not engage in this consideration, the Medical Assessor did not make a deduction from the impairment assessed by him in accordance with s 323 of the 1998 Act.
The appellant therefore asks the Appeal Panel to determine that a deduction from the impairment assessed by the Medical Assessor is required in accordance with s 323 of the 1998 Act, and to then determine that the relevant deduction should be a proportion of one tenth.
In reply, the respondent confirms the nature of the pleaded injury as an occupational disease, and that as a result, the referral to the Medical Assessor made “reference to the deemed date of injury of 1 September 2023 thereby encompassing the allegation of injury in the nature of the disease based upon both the effects of the incident on 29 July 2013 and the Respondent Worker’s employment duties.”
The respondent concedes that “the Medical Assessor does not appear to have provided reasons in relation to his decision not to apply a Section 323 deduction”, but submits that his assessment is “entirely consistent with the injury being in the nature of a disease encompassing not only the effects of the incident on 29 July 2013 but also taking into account the nature and condition of employment”.
The entries in the respondent’s clinical notes detailed at paragraph 19 above, relied upon by the appellant as demonstrating pre-existing pathology, are “entirely consistent with the stresses and strains associated with the heavy and repetitive work in which the Respondent worker had been engaged for many years.” There is no evidence to the contrary. In addition, the clinical notes do not contain any contemporaneous radiological evidence and “do not demonstrate anything other than that the Respondent Worker may have been experiencing pain and discomfort”.
The respondent concludes:
“Accordingly it is submitted that the appeal must fail on the basis that there is no obvious error or application of incorrect criteria in circumstances where there is no evidence to support the conclusion that the medical pathology was attributed to anything other than the disease injury ss [sic] pleaded. To conclude otherwise would require a decision maker to engage in assumption or hypotheses.”

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, that is, those errors identified by a party in its submissions – see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
The Appeal Panel in this regard has to ensure that it does not disturb any unchallenged findings in the MAC. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated [at 35]:
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor’s reasoning with respect to that finding; neither course was part of its statutory function.”
In this case, the sole error identified by the appellant in its submissions is referred to at paragraph 29 above.
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.
As noted at paragraph 15 above, the Appeal Panel has come to the conclusion that the Medical Assessor fell into error in not considering “relevant and significant material”, being the entries in the respondent’s clinical notes referred to at paragraph 19 above.
Although a Medical Assessor does not have to refer in a MAC to “every matter or thing that is germane or critical to an administrative decision” (per Harrison SCJ in Prasad v Workers Compensation Commission [2010] NSWSC 418), it is an error for a Medical Assessor not to consider “relevant and significant material”. As Adams SCJ found in Tattersall (at [14]):
“Given the significance of the Medical Assessment Certificate by the Appointed Medical Specialist in the scheme of the Act, which is designed amongst other things to avoid hearings and to dispose of applications by non-participatory decision making, a failure to consider relevant and significant material provided by one of the parties must be regarded as a significant error. Indeed, it seems to me that it amounts to a denial of natural justice.”
In Wentworth Community Housing Limited v Brennan [2019] NSWSC 152 (Brennan), Harrison ASCJ referred to Tattersall with approval and found that a Medical Assessor had fallen into error in that case, as follows (at [74]):
“In this current judicial review, it is fair to say that aside from the general statements in [2] and [9] of his decision, the AMS did not specifically refer to either the surveillance reports dated 27 August 2015 and 11 October 2016, or the social media reports dated 13 July 2015 and 12 September 2016. Nor has the AMS addressed Wentworth’s submissions on the inconsistent matters raised in the reports under the ‘History Relating to the Injury’ heading of the MAC. Wentworth had submitted that the material shown in these reports was inconsistent with what the first defendant stated in her initial statement. In her supplementary statement, the first defendant provided her response as to what was contained in media posts and surveillance. The AMS also did not refer to either the first defendant’s supplementary or latter statement in his reasoning. It appears that the AMS overlooked these reports, or failed to consider the relevant and significant material provided by the plaintiff.”
In the opinion of the Appeal Panel, it is clear from the MAC that the Medical Assessor did not consider the respondent’s clinical notes referred to at paragraph 19 above. They are not specifically mentioned in the MAC, and in context, the extracts from the MAC referred to at paragraphs 22 and 24 above suggest that the Medical Assessor did not appreciate that the respondent had made complaints of left knee symptoms prior to 29 July 2013.
The Appeal Panel also finds the clinical notes to be “relevant and significant material” of the type discussed in Tattersall and Brennan. They refer to complaints of left knee symptoms made by the respondent prior to 29 July 2013, and they required consideration by the Medical Assessor in determining whether they related to the pleaded disease injury with a deemed date of 1 September 2023 or whether they related to a previous injury, pre-existing condition or abnormality. If the Medical Assessor then determined the latter, a further determination would need to be made by him regarding whether to apply a deduction from the impairment assessed by him in accordance with s 323 of the 1998 Act.
A consideration of the information recorded in the clinical notes is therefore, in the opinion of the Appeal Panel, critical to the correct assessment of the respondent’s whole person impairment as a result of his pleaded disease injury.
It is not however for the Appeal Panel to speculate (as effectively requested by the appellant at paragraph 32 above) regarding what the Medical Assessor would have done if he had considered the clinical notes.
As Schmidt SCJ observed in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole) (at [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.”
And (at [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.”
Further, in Ryder, Campbell SCJ observed (at [45]):
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree [emphasis in original] of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree [emphasis in original] of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree [emphasis in original] of impairment resulting from the work injury would not have been as great.”
It is clear that in accordance with Cole and Ryder, for any previous injury, pre-existing condition or abnormality of the respondent’s to lead to an impairment deduction in accordance with s 323 of the 1998 Act, the Appeal Panel has to be satisfied after a consideration of all the evidence before it that the respondent’s degree of impairment would not have been as great as 21% but for the previous injury, pre-existing condition or abnormality. A proportion of the impairment has to be due to the previous injury, pre-existing condition or abnormality, in this regard.
In order to comply with the necessary degree of enquiry as outlined in Cole and Ryder, the Appeal Panel first determined that the respondent needed to undergo a further medical examination by Mark Burns (especially having regard to the inadequacy of the information and explanation present in the respondent’s clinical notes referred to at paragraph 19 above, as well as their lack of consideration in the MAC). The Appeal Panel then determined that further records were necessary, and in this regard, certificates were produced by the appellant on 16 September 2024.
The Appeal Panel has considered the report provided to it by Mark Burns and adopts the findings in the report.
Aside from those findings, the only evidence before the Appeal Panel of the respondent’s left knee symptoms in 2007 and 2010 comes from the contemporaneous clinical notes referred to at paragraph 19 above and the contemporaneous certificates referred to at paragraph 27 above.
In relation to the respondent’s left knee symptoms in early 2007, the evidence establishes that those symptoms only arose after a lower left leg laceration work injury on 7 February 2007. It is apparent however that the left knee symptoms were not reported to the respondent’s treating general practitioner until later, on 15 February 2007, when the clinical notes refer to the left knee as swollen and tender. The clinical notes then refer to the left knee pain as less on 18 February 2007 and as “healing well” on 19 February 2007. The first certificate to mention left knee symptoms was dated 18 February 2007 and refers to a sprained left knee.
Although the clinical notes continue to mention left knee pain until 11 March 2007 and the certificates also continue to mention a left knee sprain until that date, the respondent was certified as fit for suitable duties employment from 23 February 2007. The clinical notes also record there being no more left knee pain on 19 March 2007.
The clinical notes also refer to the respondent being referred for a left knee x-ray on 15 February 2007, but there is no evidence before the Appeal Panel of the findings from that
x-ray.
The injury on 7 February 2007 cannot be considered to be a manifestation of the respondent’s pleaded disease injury (as submitted by the respondent at paragraph 35 above). The injury is recorded as a frank injury occurring on a particular date when the applicant lacerated his lower left leg. This recording is not consistent with the injury being due to stresses and strains associated with heavy and repetitive work, as submitted by the respondent.
The Appeal Panel considers as a result that the respondent did have a previous injury to his left knee on 7 February 2007, but that it was particularly minor in terms of symptoms and disability. It was not initially considered significant enough to be reported to his general practitioner, and the evidence supports a full recovery from the injury within a short period of time. The evidence does not support any finding by the Appeal Panel that the respondent’s current degree of impairment would not have been as great but for the 7 February 2007 injury. According to Cole and Ryder, there can therefore be no deduction pursuant to s 323 of the 1998 Act from the impairment assessed by the Medical Assessor to take into account the previous injury on 7 February 2007.
In relation to the respondent’s left knee symptoms in January 2010, there is only one clinical note that refers to those symptoms on 20 January 2010. Although the clinical note refers to intermittent pain for one year as well as clicking and locking, curiously the medical certificate issued by the general practitioner on that date (not a WorkCover NSW one – see paragraph 26 above) does not refer to knee pain, but requests carer’s leave for the respondent to care for his wife and young son. The clinical note also refers to the respondent being referred for a left knee x-ray, but again there is no evidence before the Appeal Panel of the findings from that x-ray. The clinical note further refers to a normal knee examination.
On the basis of the limited information in the clinical note and the lack of any follow-up by either the respondent or his relevant general practitioner regarding the left knee symptoms recorded in it, the Appeal Panel does not find that it has any evidence to determine that the respondent’s current degree of impairment would not have been as great but for any pre-existing condition revealed in the clinical note. In the opinion of the Appeal Panel, it is clear from the evidence that the respondent’s left knee symptoms on 20 January 2010 were not concerning, disabling, or incapacitating. According to Cole and Ryder, there can therefore be no deduction pursuant to s 323 of the 1998 Act from the impairment assessed by the Medical Assessor to take into account any pre-existing condition revealed in the clinical note.
In relation to the respondent’s left knee symptoms in July 2010, the Appeal Panel notes that a WorkCover NSW medical certificate was issued on 19 July 2010 (which is consistent which the clinical note on that date), referring to the respondent as being incapacitated due to “heavy lifting at work”, without any further description as to what happened at work and the nature of the relevant lifting. A specific frank injury is not otherwise recorded.
On the limited information available in this regard, the Appeal Panel is willing to accept the respondent’s submission (at paragraph 35 above) that the symptoms experienced by him on 12 and 19 July 2010 were a manifestation of the disease injury pleaded by him in the ARD. In this regard, general heavy lifting is mentioned by him in his statement (see paragraph 9 above) as part of his usual duties as a park maintenance worker, duties which are pleaded in the ARD as being causative of the impairment alleged by him.
As a result, the symptoms recorded in the clinical notes on 12 and 19 July 2010 were not symptoms of a previous injury, pre-existing condition, or abnormality, in order for them to be considered pursuant to s 323 of the 1998 Act.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 April 2024 should be confirmed.

[2024] NSWPICMP 683

27 September 2024