Camilleri v All Castle Homes Pty Ltd
[2025] NSWPICMP 695
•10 September 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Camilleri v All Castle Homes Pty Ltd [2025] NSWPICMP 695 |
| APPELLANT: | John Camilleri |
| RESPONDENT: | All Castle Homes Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 10 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); injury to right and left extremities; claim for permanent impairment; Medical Assessor (MA) assessed fair result for knee replacements at 20% whole person impairment (WPI) for each lower extremity about which there was no complaint on appeal; MA deducted two-thirds under section 323 which was the subject of the appeal by the worker; MA exercised his clinical judgment in making a deduction of two-thirds to account for the contribution of the pre-existing conditions, injury, or abnormality of the knees to the overall level of permanent impairment assessed (based on a fair result for the knee replacements); path of reasoning can clearly be followed and is consistent with the available evidence; Held – Appeal Panel could discern no error; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 June 2025 the worker Mr John Camilleri (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gregory McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 June 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).PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant requested that the worker be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
As a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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.
The matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 26 October 2021
· Body parts/systems referred: Left Lower Extremity (knee)
Right Lower Extremity (knee)
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC as follows:
| 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 AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Left Lower Extremity (knee) | 26/10/21 | Page 21 Table 17.35 | Page 547 Table 17.33 | 20% | ⅔ | 7% |
| 2. Right Lower Extremity (knee) | 26/10/21 | Page 21 Table 17.35 | Page 547 Table 17.33 | 20% | ⅔ | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
The worker appealed.
The complaint on appeal does not concern the assessments of overall impairment for the lower extremities but rather the extent of the s 323 deduction at two-thirds.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable errors in assessing the extent of the deduction under s 323 at two thirds for both lower extremities.
In summary, the respondent employer All Castle Homes Pty Limited submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a physical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applies.
The Medical Assessor recorded the following history:
“• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Camilleri first injured his left knee in December 2000 when he hyperextended his knee when he slipped. No surgery was carried out. He then injured his right knee when he twisted it on 1 March 2003. He sustained an ACL rupture and he had a reconstruction procedure performed by Dr Craig Waller, Orthopaedic Surgeon, in 2003. He obtained a reasonable result.
In 2004 he sustained a further injury to his left knee when it was hyperextended and he also ruptured the ACL on the left. He underwent a reconstruction performed by Dr Waller in 2004.
He said that he obtained a reasonable result from his knee reconstructions and was able to perform significant physical work in the construction industry.
He did this until 26 October 2021 when he slipped on some loose gravel and hyperflexed both his knees. He saw his GP and had x-rays and MRI scans. The x-rays demonstrated bilateral osteoarthritis involving both knees, along with a meniscal tear and a MCL tear on the left. He was referred to Dr Gursel, Orthopaedic Surgeon. He noted the results of his scans and recommended a brace on his right knee. He did have an arthroscopy on his left knee on 12 May 2022. Symptoms were unchanged following this but Dr Gursel then recommended total knee replacements. The first was carried out on the right on 15 August 2022 and on the left on 13 March 2023.
Follow-up x-rays were satisfactory. He had physiotherapy and exercise physiology. He said that whilst there has been some improvement as to how the knees were pre-operatively he still has significant functional difficulties.
There is no suggestion that he have further surgery.
· Present treatment: He is not having any specific treatment for his knees, although he is having some physiotherapy for his back.
· Present symptoms: With regard to his knees he said that there is more pain on the right but less movement on the left. He said that his legs cramp and if he puts his knees into flexed positions he has problems straightening his knees. He said that his knees feel unstable and they have given way. He said he has to use a rail when on stairs and he has more difficulty going down than up. He has difficulty with uneven ground and slopes. Weight-bearing causes pain in his knees and he said he knees click when he moves them. He cannot squat or kneel. The pain is worse at night. He has some difficulty getting clothing on and off with regard to his lower extremities.
· Details of any previous or subsequent accidents, injuries or condition: He had reconstruction surgery because of ACL tears in 2003 on the right and 2004 on the left.
He has injured both shoulders due to the nature and conditions of his work and has had rotator cuff repair surgery. He has had back pain since 1988 and there have been multiple aggravations of his condition due to the nature and conditions of his work. Scans demonstrated disc pathology and he has been treated conservatively.
He had a right ankle reconstruction in 2006. He has had inguinal and bilateral hernia repairs performed.
· General health: He is on medication for hypertension, hypercholesterolemia and depression.
· Work history including previous work history if relevant: He has been in the construction industry since 1980, initially with his father. He opened his own company in 1988 and started work in 2015 with All Castle Homes. He said that he took on work as a supervisor because of his back problem but he said that there was a considerable amount of hands-on work at this job. The injury that is the subject of this report occurred on 26 October 2021. He hasn’t worked since that time.
· Social activities/ADL: He currently lives in a house in Berkshire Park with his wife. He has adult children who are supportive. They do the harder aspects of work around the yard and he does what he can helping his wife because she works and he doesn’t. He said that he does a good deal of the cooking.”
The Medical Assessor made the following observations in relation to special investigations:
“16 November 2021 – X-Ray Bilateral Knees
Changes of bilateral ACL repair. Moderate right medial and mild left medial joint space loss. A tiny ossicle seen along the left medial joint line. Mild medial compartment periarticular osteophytosis. Mild right lateral compartment joint space loss with marginal osteophytosis. Minimal lateral tilting of the patella. Right medial patellofemoral joint line periarticular osteophytosis.
16 November 2021 – MRI Left Knee
Intact ACL graft repair with mature ligament agitation and mild perigraft fibrosis. Small focus 7 x 7mm ganglionic change seen anterior to the tibial aperture adjacent to the lateral meniscal anterior root. No recent acute meniscal tear seen. Medial meniscal posterior horn intrasubstance myxoid degenerative changes with meniscal capsular insertional fibrosis/ scarring. Small amount of synovitis in the posterior medial joint space. Mild to moderate medial compartment osteoarthritis.”
His examination findings were as follows:
“He was of average build. Two uncomplicated surgical scars were noted over the left and right knees. He had even though guarded gait. He could walk on heels and toes but was uncomfortable when performing a squat. On the right, range of movement was from 0 to 100 degrees. There was minimal AP and ML instability. There was no extension lag. The knee was normal in alignment. On the left, range of movement was from 0 to 90 degrees. There was minimal AP instability but some moderate ML instability. There was no extension lag and the knee had normal alignment. There was some tenderness in the patellofemoral areas bilaterally.”
The Medical Assessor summarised the injury and diagnosis as follows:
· “summary of injuries and diagnoses:
Mr Camilleri originally injured his knees when he sustained ruptures of the ACL and underwent reconstructive surgery on the right in 2003 and the left in 2004. This initiated the arthritic process and after a further injury to the knees on 26 October 2021 he underwent knee replacements on the right on 15 August 2022 and on the left on
13 March 2023. He has obtained a fair result from both knee replacements.· consistency of presentation
He reacted in a reasonable and consistent manner at examination.”
The overall impairment rating of 20% whole person impairment (WPI) by the Medical Assessor is based on a fair result from the knee replacements of both knees. There is no complaint on appeal about this aspect of the assessment.
The Medical Assessor went on to deduct two-thirds from the 20% WPI assessed for both knees giving 7% WPI for each lower extremity. It is this aspect that is the subject of complaint on appeal.
The Medical Assessor set out his reasoning for the deduction of two-thirds as follows:
“While the injury to the knees on 26 October 2021 accelerated the requriement for the bilateral knee replacements, I feel that there is in this situation a requirement for apportioning his impairment between the injury to the knees in 2003 and 2004 requiring reconstruction procedures which initialled the arthritic process that eventually lead to the requirement for surgery. There was also a contribution from the nature and conditions of his work over the almost 20 years leading up to the injury in 2021. I have apportioned equally between the original injury, the nature and conditions of employment and the recent injury and this is one-third of 20% which after rounding is 7% WPI.”
The Medical Assessor made brief comments on the other medical opinions as follows:
“Dr R Deveridge, Orthopaedic Surgeon, supplied a medico-legal report dated
14 March 2005. At that stage he was asked to assess the impairment for the right lower extremity which he assessed at 5%.Dr N Thomson, Orthopaedic Surgeon, supplied a medico-legal report dated 19 May 2005. Dr Thomson, with regard to the left knee injury on 5 December 2000, estimated 20% loss of efficient use and on the right regarding the injury on 1 March 2003 he estimated 4% WPI under AMA5.
Dr W Chung, Orthopaedic Surgeon, supplied treating doctor reports from 27 April 2001. He outlines performing an arthroscopy on the left knee on 6 July 2001 and he noted chondral damage and performed a chondroplasty.
Dr C Waller, Orthopaedic Surgeon, supplied treating doctor reports from 5 March 2003. He documents on the right arthritis with ACL tears and MCL injuries. On the left he documents meniscal tears. He outlines performing ACL reconstructions on both knees, in 2003 on the right and 2004 on the left.
Dr A Gursel, Orthopaedic Surgeon, supplied treating doctor reports from
15 November 2021. He outlines performing bilateral knee replacements for varus arthritic knees.Dr J Ireland, Orthopaedic Surgeon, supplied medico-legal reports from 4 April 2024 with supplementary reports and he outlines a fair result at 20% WPI for both knee replacements which is the same result as my own. Dr Ireland apportioned between the injuries and nature and conditions of employment prior to 26 October 2021 and on the right he apportioned 50%, resulting in 10% WPI and on the left 25%, resulting in 15% WPI. My method of apportionment is different to that of Dr Ireland.
Dr G Burrow, Orthopaedic Surgeon, supplied medico-legal reports dated
22 October 2024 and 4 April 2022. Dr Burrow also estimated a fair result at 20% WPI for each knee. He felt that the need for the knee replacements was because of pre-existing arthritic change following the injury in the early 2000’s requiring reconstructive surgery, along with the nature and conditions of his work prior to the injury in 2021. He made a two-thirds deduction for the pre-existing condition to arrive at 7% WPI for each knee. I agree with Dr Burrow’s apportionment for one-third each for the various injuries, along with the nature and conditions of his work and Dr Burrow’s final figure of 7% WPI for each knee results in 14% WPI and this figure is the same as my own.”
The Medical Assessor went onto give further explanation in respect of the s 323 deduction as follows:
“
11.DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a.In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Significant osteoarthritis involving both knees initiated by the injuries in 2003 and 2004 and aggravated by the nature and conditions of his work from that time onwards.
b.The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)The conditions were clearly present prior to the referred date of injury, being
26 October 2021, and would subsequently be contributing to his current level of impairment.c.In my opinion the deductible proportion is two-thirds for the following reasons:
(i)I have apportioned between the original injuries in 2003 and 2004, the nature and conditions of his work in the construction industry and the referred injury, being
26 October 2021, at one-third each.”The appellant complains about the extent of the s 323 deduction at two-thirds.
A deduction under s 323 can only be made if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. In this case there is no cavilling on appeal with a s 323 deduction having been made but rather the extent of same. Both IMEs qualified to provide opinions on behalf of the respective parties had made deductions and made deductions that exceeded one-tenth. The Medical Assessor was clearly cognisant of those opinions noting as follows:
“Dr J Ireland, Orthopaedic Surgeon, supplied medico-legal reports from 4 April 2024 with supplementary reports and he outlines a fair result at 20% WPI for both knee replacements which is the same result as my own. Dr Ireland apportioned between the injuries and nature and conditions of employment prior to 26 October 2021 and on the right he apportioned 50%, resulting in 10% WPI and on the left 25%, resulting in 15% WPI. My method of apportionment is different to that of Dr Ireland.
Dr G Burrow, Orthopaedic Surgeon, supplied medico-legal reports dated
22 October 2024 and 4 April 2022. Dr Burrow also estimated a fair result at 20% WPI for each knee. He felt that the need for the knee replacements was because of pre-existing arthritic change following the injury in the early 2000’s requiring reconstructive surgery, along with the nature and conditions of his work prior to the injury in 2021. He made a two-thirds deduction for the pre-existing condition to arrive at 7% WPI for each knee. I agree with Dr Burrow’s apportionment for one-third each for the various injuries, along with the nature and conditions of his work and Dr Burrow’s final figure of 7% WPI for each knee results in 14% WPI and this figure is the same as my own.”
That is, both IMEs had made deductions for pre-existing condition or abnormality of the knees that pre-existed the referred injury that exceeded one-tenth.
The appellant does not make submissions to the Appeal Panel specifying the extent of the deduction that they say should have been made by the Medical Assessor. The appellant says he has erred in the making of a two-thirds deduction and the Appeal Panel should re-examine the appellant. However, a re-examination would serve no purpose because there is no complaint about the examination findings, there is no complaint about the assessment of a fair result from the knee replacement and on which the overall level of WPI is based and there is no complaint about the history taken by the Medical Assessor. Moreover there is and can be no suggestion that the deduction should have been limited to one-tenth because there is no expert medical opinion that supports this, given the Dr Ireland the IME qualified to provide an opinion on behalf of the appellant, deducted one-half in respect of the right knee and one-quarter in respect of the left knee.
A deduction cannot be at odds with the available evidence.
The Medical Assessor has adequately explained how the pre-existing condition, injury or abnormalities of both knees have contributed to the overall level of permanent impairment assessed. The overall level of permanent impairment is based on obtaining a fair result from the knee replacements. The appellant has come to the knee replacement after the subject injury the need for which, as all expert evidence in this case accepts, was contributed to by the prior injuries to the knees. The Medical Assessor has explained why he has made the deductions in the proportions that he has namely “significant osteoarthritis involving both knees initiated by the injuries in 2003 and 2004 and aggravated by the nature and conditions of his work from that time onwards”. This is consistent with the available evidence including the history taken which accords with the other evidence and the radiological investigation in 2021 shortly after the subject injury (which was a hyperflexion injury when he slipped on gravel) which showed significant osteoarthritic conditions in both knees, a condition which clearly pre-existed the subject injury and contributed to the need for knee replacement and all the experts whose opinions are in evidence share this view of the evidence. The Medical Assessor has exercised his clinical judgment in making a deduction of two-thirds to account for the contribution of the pre-existing conditions, injury or abnormality of the knees to the overall level of permanent impairment assessed (based on a fair result for the knee replacements) and his path of reasoning can clearly be followed and is consistent with the available evidence. The Appeal Panel can discern no error.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 June 2025 should be confirmed.
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