Burwood Council v Cornish
[2025] NSWPICMP 825
•23 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Burwood Council v Cornish [2025] NSWPICMP 825 |
| APPELLANT: | Burwood Council |
| RESPONDENT: | Darrin John Cornish |
| APPEAL PANEL | |
| MEMBER: | Cameron Burge |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 23 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal from decision of Medical Assessor (MA) by employer; whether assessment made on basis of incorrect criteria and/or contains a demonstrable error; worker suffered injury to his lumbar spine together with consequential scarring in the course of his employment with the respondent; MA assessed a total of 29% whole person impairment (WPI); MA made no deduction for any pre-existing condition to the lumbar spine despite the worker having complained of back issues in the past; employer submitted there ought to have been a deduction of a pre-existing condition pursuant to section 323; Held – the mere fact of a pre-existing condition in a body system the subject of assessment does not require a deduction to be made; the MA’s findings were open to him on the evidence and based on his own examination and were not made on the basis of incorrect criteria; nor did the MAC contain an obvious error as alleged; however the MA erred when using the relevant Tables of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 and American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed to combine the worker’s impairments; a correct application of the combined Tables leads to a total of 28% WPI; the MAC is revoked and a new MAC reflecting that impairment is issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 May 2025, Burwood Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor who issued a Medical Assessment Certificate (MAC) on 10 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 applicant suffered two accepted injuries to his lumbar spine, the first a frank injury on 3 December 2020, and the second in the nature of a disease process.
The deemed date of the second injury was amended at a preliminary conference to 13 December 2022, with the cause of the injury said to be due to the nature and conditions of the respondent’s employment with the appellant from April 2012 to that date.
The respondent was employed by the appellant in the parks and gardens section and his duties involved a significant amount of mowing. His uncontested evidence was he normally operated smaller mowers, including ride-ons, to carry out maintenance of nature strips. From time to time, the respondent would also operate large mowers in areas such as reserves and parks, carry out whipper snipping duties, mulching and provide occasional assistance to the tree cutting crews.
A preliminary conference in the proceedings at first instance was held on 5 February 2025, at which time the matter was referred for medical assessment, with both dates of injury being the subject of referral. The affected body systems which were to be assessed were identical for each date of injury, namely the lumbar spine and scarring (TEMSKI).
On 12 March 2025, the respondent was examined by Medical Assessor Peter Honeyman (the Medical Assessor) who issued a MAC on 10 April 2025. The Medical Assessor attributed all of the respondent’s impairment to the frank injury on 3 December 2020. The Medical Assessor stated “from history and review of file, the first event was very significant and the first surgery following this event did not resolve the problems from the first injury. In my opinion, it is reasonable to attribute the impairment in its entirety to the first event”.
On 8 May 2025, the appellant lodged the Application to Appeal Against the Decision of a Medical Assessor. It relied on the criteria set out in s 327(3)(c) and s 327(3)(d) of the 1998 Act, namely that the assessment was made on the basis of incorrect criteria and the MAC contains a demonstrable error.
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 it was not necessary for the worker to undergo a further medical examination because the Medical Assessor had at their disposal all of the relevant material. Moreover, a further medical examination was not required to determine whether the grounds of appeal were made out, and if so, to properly assess the respondent’s degree of impairment.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
Neither party sought to lead new evidence.
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.
The Medical Assessor took a history of the respondent stepping backwards over a high gutter and landing, flat footed with a serious jarring and a feeling of immediate pain in his lower back, following which he was put onto light duties to wait for improvement. Those light duties consisted of use of a ride on mower full time, and they “produced too much jarring, and while he was going to physiotherapy twice a week, he only got worse”.
The Medical Assessor noted the respondent continues to suffer lower back pain with aching into both legs, occasional pain on his right side which goes into the groin, cramps and twitches in the leg, together with pins and needles and numbness in the sole of his right foot.
In relation to pre-existing issues, the Medical Assessor said “prior to the accident, he had the occasional episodes of back pain and used to go to a chiropractor who fixed the problem. He also had quite severe right shoulder problems”. In terms of the respondent’s work history, the Medical Assessor noted “he had worked for Burwood Council for 12 years and loved the job out in the garden. Before that, he was a storeman/driver for seven and a half years and before that he had various similar jobs”.
The Medical Assessor set out the radiological investigations of the respondent’s lumbar spine.
The Medical Assessor referred to the report of the respondent’s IME, Prof Courtenay and the report of the appellant’s IME, Dr Powell. He noted Dr Powell made a deduction of 10% for pre-existing condition, whereas Prof Courtenay made no deduction as he was of the view there was little pre-existing degeneration.
The Medical Assessor confirmed the respondent’s diagnosis of S1 disc rupture with secondary progression and aggravation of underlying lumbar spondylosis requiring a two-level spinal fusion, plus ongoing radiculopathy.
The Medical Assessor based his opinion on the history taken from the respondent, his physical examination, a review of the documentation made available by the Personal Injury Commission (Commission) and by reference to the SIRA guidelines and AMA-5.
The Medical Assessor assessed the respondent as suffering from DRE Category IV with a 20% whole person impairment (WPI), and a further 3% WPI as a result of spinal surgery with residual symptoms and radiculopathy, plus a second level operation and further surgery which cumulatively added 3%. The Medical Assessor also awarded 2% WPI for interruptions to activities of daily living and 2% scarring, calculating the respondent as having suffered a total of 29% WPI.
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 the respondent’s clinical history of lower back pain means the Medical Assessor should have made a deduction for pre-existing condition. The appellant submitted the pre-existing condition had necessitated a number of visits to his treating general practitioner (GP) and a CT-guided injection to the lumbar spine in October 2020. The respondent deposed to his history of pre-existing lumbar problems in his statement lodged and served in the proceedings.
The appellant noted an MRI of the lumbar spine taken on 15 December 2020 which showed disc degeneration at L4/5 and L5/S1 with endplate sclerosis and small anterior osteophytic living. The appellant submits the evidence indicated the respondent had a history of lower back pain dating back to 2013 and was reporting an increase in back pain which was radiating to his buttocks in the eight months before the subject injury. Accordingly, the appellant submits a deduction for previous injury/pre-existing condition pursuant to s 323 of the 1998 Act ought to have been made.
The appellant further submitted the Medical Assessor found there was no pre-existing condition and this finding was inconsistent with the medical evidence, with the Medical Assessor failing to provide any reasons for their conclusions. As such, the appellant submitted the Medical Assessor made a decision on the basis of incorrect criteria and that the MAC contains a demonstrable error.
The respondent acknowledged the prior history of back complaints as recorded by the appellant in its submissions; however, the respondent also noted the Medical Assessor had taken into account the prior history.
In particular, the respondent noted the Medical Assessor referred to the opinion of Prof Courtenay who indicated that although there was a pre-existing problem with the respondent’s spine, it would not have made it more likely for the injury to occur and therefore a deduction was not appropriate. The respondent submitted the question of a s 323 deduction was plainly the subject of consideration by Prof Courtenay and was also acknowledged as an issue by the Medical Assessor, who thought there was no evidence of pathology sufficiently identifiable as relevant to the injury sustained to justify the application of any deduction, a finding the respondent submitted was open to the Medical Assessor.
In the alternative, the respondent submitted that should a deduction be applied, it ought to have been in accordance with the statutory mechanism in s 323(2) of the 1998 Act, namely 10% as the extent of the deduction would be difficult or costly to determine.
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. Neither party to the proceedings has suggested any error on the part of the Medical Assessor in attributing the totality of the assessed impairment as having arisen from the frank injury on 3 December 2020 as opposed to having arisen as a result of a disease process suffered by the respondent in the course of his employment.
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.
In its submissions, the appellant made reference to s 323 of the 1998 Act and noted the decision of the Court of Appeal in SAS Trustee Corporation v Pearce [2009] NSWCA 302, in which Giles JA (in dissent) held the application of s 323 demands an enquiry as to whether the available evidence is at odds with the 10% deduction to be assumed in the circumstances of s 323(2).
In Cole v Wenaline Pty Ltd [2010] NSWSC 78, Schmidt J noted s 323 does not permit an assessment of previous injury or condition on the basis of assumption or hypothesis, rather any assessment must have regard to the evidence.
The appellant also relied on the Court of Appeal decision in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz), in which it was held that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction under s 323 of the 1998 Act is required even if the pre-existing condition had been asymptomatic prior to the injury.
The decision in Vitaz remains good law, however, the Appeal Panel is of the view it does not apply to the facts of this case because the Medical Assessor, having taken into account the opinions of both IMEs, the treating material and the statement evidence, formed a view that the entirety of the respondents’ impairment was attributable to the frank incident on
3 December 2020. Vitaz only applies in circumstances where the pre-existing condition is a contributing factor causing the permanent impairment being assessed. That is, the mere presence of a pre-existing condition in a relevant body system does not of itself lead to the application of s 323 of the 1998 Act. The section only applies in circumstances where the pre-existing condition is found to have been causative, at least in part, of the permanent impairment to the affected body system.The appellant submitted the conclusion there was no pre-existing condition is inconsistent with the medical evidence. With respect, no such conclusion was reached by the Medical Assessor. In fact, the Medical Assessor specifically noted pre-existing problems in the respondent’s lumbar spine, however, he said at [10](c) of the MAC:
“Prof Courtenay suggests the degree of degeneration present at first MRI was minimal and makes no deduction, Dr Powell assumes it was present and has deducted 10%. There is a difference in their rating of scars.
I am in agreement with Prof Courtenay on both matters, and particularly the scarring where the scarring does embarrass and irritate. Overall, the rating reflects that his future employability will be low.”
At [11], the Medical Assessor stated “there is no deductible proportion. I assess the degree of demonstrable degenerative changes… caused no issue and therefore do not warrant a deduction.
What is apparent from the Medical Assessor’s statement is his view that although there was a pre-existing condition, it did not contribute to the WPI from which the respondent suffers. That finding is consistent with the views of Prof Courtenay and was open to the Medical Assessor on the evidence before them.
The finding of the Medical Assessor is also supported by the conclusions in the MRI of the respondent’s lumbar spine taken on 30 December 2020, which demonstrated a right-sided disc protrusion and compression of the right S1 nerve. Although the appellant correctly points out that scan also demonstrated a number of degenerative changes in the respondent’s lumbar spine, the presence of those changes does not of itself mean they contribute to any impairment arising from the injury which took place on 3 December 2020, which ProffessorCourtenay and the Medical Assessor agree was the sole cause of the disc protrusion which in turn gave rise to the permanent impairment suffered by the respondent.
For these reasons, the Appeal Panel has determined that the Medical Assessor’s findings in relation to the degree of impairment suffered by the respondent were available to him and were appropriate in the circumstances. That is, there is no demonstrable error or use of incorrect criteria established by the appellant.
The Appeal Panel also notes the respondent relied on an injury in the nature of a disease process, with a deemed date of 13 December 2022. Neither party cavilled with the Medical Assessor’s finding attributing the entire impairment to the frank injury on 3 December 2020.
Had the injury in the nature of a disease process been the subject of consideration on appeal, it follows the Appeal Panel would have needed to consider whether any pre-existing condition was relevantly caused by the nature and conditions of the respondent’s employment with the appellant over 12 years against a background of there being no evidence of any complaint by the respondent of any lumbar symptoms prior to the commencement of his employment. However, in reaching its conclusions, the Appeal Panel has had regard only to the question of whether there was a pre-existing condition which warranted a deduction pursuant to s 323 of the 1998 Act from the impairment assessed with respect to the frank injury.
The Appeal Panel notes, however, the Medical Assessor made an error in the manner in which they aggregated the various impairments which he assessed. The Medical Assessor correctly noted there has been a spinal fusion which is DRE Lumbar category 4, with a baseline WPI of 20%. A further 2% was added for the impact on the respondent’s activities of daily living (ADLs), leaving an impairment of 22%.
According to the Table 4.2 modifiers, there is a 3% impairment for radiculopathy, 1% for the second level fusion and a further 2% as a result of the further surgery which the respondent underwent. This totals 6% in relation to the Table 4.2 modifiers. According to the Combined Tables, when this impairment is combined with the 22% assessed by the Medical Assessor, the total WPI for the lumbar spine should be 27%, not the 28% recorded by the Medical Assessor. When the correct 27% impairment is then added pursuant to the Combined Tables to the 2% impairment for scarring, the total WPI suffered by the respondent should in fact be 28%.
This error is capable of being corrected as a slip, arising as it does from a mathematical error in the application of the combined tables rather than any error in the Medical Assessor’s reasoning process leading to either error or the use of incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 April 2025 should be revoked, and a new MAC should be issued reflecting the correct mathematical calculations under the relevant tables. 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: | M1-W29626/24 |
Applicant: | Burwood Council |
Respondent: | Darrin John Cornish |
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 Dr Peter Honeyman 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 WorkCover Guides | 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. Lumbar Spine | 03/12/2020 | T4.2 p 29 4.34 p28 | 15.3 p384 | 27 | 0 | 27 |
| 2.Scarring/ TEMSKI | 03/12/2020 | 14.1 p74 | 2 | 0 | 2 | |
| 3. Lumbar Spine | 13/12/2022 (deemed) | 0 | 0 | 0 | ||
| 4. Scarring/ TEMSKI | 13/12/2022 | 0 | 0 | 0 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 28% | |||||
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.
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