Classic Carpentry Services Pty Ltd v Tideswell

DETERMINATION OF APPEAL PANEL
CITATION:	Classic Carpentry Services Pty Ltd v Tideswell [2025] NSWPICMP 185
APPELLANT:	Classic Carpentry Services Pty Ltd
RESPONDENT:	Peter Tideswell
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	20 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; calculation errors; accepted by the respondent; section 323; evidence of complaints and investigations shortly before work injury; consideration of pathology of those complaints in context of significant and traumatic injury; Medical Assessor failed to consider relevant evidence and failed to provide adequate reasons; Held – Medical Assessment Certificate revoked; deductions of one-tenth made for left shoulder and left knee.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 December 2024, Classic Carpentry Services Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 November 2024.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 (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 edition
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Tideswell was employed by the appellant as a carpenter. On 2 April 2019, he had installed a staircase as part of his duties. As he worked on installing the landing of the staircase, it collapsed, causing his arms to bend backwards. His colleagues had to extract him from under the landing.
In the immediate aftermath of the injury, Mr Tideswell underwent surgical repair of the triceps. This was complicated by infection. He also had problems with his left knee, both shoulders and cervical spine.
What followed was the expected course in an injury of this nature. Mr Tideswell had a complex course of treatment as set out in his statement. He made a claim for lump sum compensation, which was disputed by the appellant on the basis of liability for the cervical spine. That dispute was brought to the Personal Injury Commission (Commission), resulting in a determination of Member Jacqueline Snell on 21 September 2023, finding in favour of the respondent to this appeal. The cervical spine was found to have been injured in the incident on 2 April 2019 (and an award was made for the appellant in respect of an alternative allegation of a consequential condition).
The appellant appealed against that determination. The appeal was dismissed and the certificate of determination was confirmed in Classic Carpentry Services Pty Ltd v Tideswell [2024] NSWPICPD 43. This explains the delay in the referral for assessment the issue of the MAC.
The matter was eventually referred for assessment, with a MAC issued on 5 November 2024. Dr Kuru assessed 41% whole person impairment. The appellant appeals against that assessment.

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 worker to undergo a further medical examination because the issues raised on appeal did not require a re-examination, the material available contained sufficient information to determine the dispute, and neither party sought that the worker be re-examined

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.
The appellant sets out seven grounds for appeal. Grounds 1-4 involve calculation or conversion errors. The respondent concedes these grounds. Grounds 5-7 concern the application of s 323 of the 1998 Act. Ground 5 alleges that the Medical Assessor failed to consider relevant evidence. Ground 6 is that the Medical Assessor failed to provide sufficient reasons. Ground 7 is that the Medical Assessor failed to apply a deduction, of 100% for the left shoulder and left knee, and one tenth for the right elbow.
As indicated, the respondent accepts that there have been calculation errors in the MAC. The respondent submits, in respect of ground 5, that there is no evidence that the Medical Assessor has not considered the documents with which he was provided, and that he has provided sufficient reasons for his conclusions.
In respect of s 323 generally, the respondent submits that in the right elbow and left knee, there was fresh pathology identified after the subject injury, and the worker underwent surgery in respect of that pathology. In respect of those body parts, the Medical Assessor was justified in not making a deduction.
In respect of the left shoulder, it was conceded that Mr Tideswell had an ultrasound of the left shoulder on 3 March 2019, which showed a tear of the supraspinatus, but that he continued working as a carpenter up until the subject accident, and investigations showed that the pathology was worse than pre-accident. It was submitted that the opinion of Dr Bentivoglio should not be accepted, but a deduction on one tenth should be 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. Given the concession made by the respondent in respect of the calculation errors, the substance of the appeal for consideration of the Appeal Panel concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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.
In respect of the calculation errors in grounds 1-4, these have been conceded. The Appeal Panel have independently reviewed the figures asserted by the appellant and agree with those submissions. Accordingly, the MAC will be revoked and the figures (before any deductions are considered) provided will be replaced.
The remainder of the appeal concerns the application of s 323 of the 1998 Act. Submissions have been addressed to that issue in three separate ways:
(a)    a failure to consider relevant evidence;
(b)    a failure to provide adequate reasons, and
(c)    a failure to apply a deduction (probably best characterised as an error of law in failing to apply s 323 correctly).
The grounds are closely related and ultimately concern the conclusion the Medical Assessor reached in respect of s 323 of the 1998 Act. The Medical Assessor made no deduction in respect of any of the body parts assessed. The appellant submits that a deduction of 100% should be applied to the left shoulder and left knee, and one tenth to the right elbow. The basis for this submission, at least medically, appears to be the opinion of Dr Bentivoglio in his report dated 16 August 2023, in which he opines there should be a 100% deduction for previous knee and shoulder complaints.
Before turning to the specific issues raised in each of the grounds, it is appropriate to discuss s 323 of the 1998 Act and how it is to be applied. The most commonly cited authority is Cole v Wenaline [2010] NSWSC 70 (Cole) in which Schmidt J established a three-step test for consideration when applying s 323 of the 1998 Act. Cole was followed by Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365 (Elcheikh), in which the three-step test was affirmed and elaborated upon:
“As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
·Firstly, what the extent of the resulting impairment is.
·Secondly, whether the pre-existing condition contributed to the impairment.
·Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.”
In Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder), Campbell J explained what is required for the purposes of s 323:
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”
The Appeal Panel would observe that the appellant’s submissions and the reasoning of Dr Bentivoglio, on which the medical opinion of the appellant is based, appear to align with the caution in Ryder. Those submissions will be discussed below.

Ground 5 – failure to consider relevant evidence

The appellant refers to the Medical Assessor’s conclusion that s 323 was “not applicable” (in answering relevant questions about the application of that section). The appellant refers to the clinical records of St Mary’s Doctors, which detail right elbow pain commencing from December 2015. The appellant also refers to records from February 2019, shortly prior to the work injury, which included complaints of pain in the left shoulder, left knee and right elbow. Imaging was undertaken which showed a partial thickness tear of the supraspinatus tendon in the left shoulder. The right elbow showed calcification. In March 2019, the respondent complained of pain in the left knee resulting in a referral for an MRI, which did not take place due to the injury suffered on 2 April 2019.
The appellant submits that these records demonstrate complaints and pathology in the left shoulder, left knee and right knee almost immediately before the injury. Dr Bentivoglio’s report is evidence as to how those complaints and pathology contribute to the respondent’s impairment resulting from injury. The respondent submits that the Medical Assessor has failed to consider those records and all of Dr Bentivoglio’s reports, as the only reference made was to the report of 29 August 2022 and Dr Habib’s report of 12 November 2021.
The respondent submits that there is no evidence that the Medical Assessor has not considered the documents with which he was provided, and it is not incumbent to recite all materials put before him.
In respect of the respondent’s second point, that should now be considered “trite law”. See for example Centrelink v Dykstra [2002] FCA 1442 at [20]. A Medical Assessor is an administrative decision maker. When expressing reasons (relevant to determining whether a relevant consideration has, in fact, been considered), those reasons must be considered in that context (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [31]):
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
Given the adequacy of the Medical Assessor’s reasons have been raised as a separate ground, that will be discussed below.
In respect of the respondent’s first point, it is difficult to contemplate what “evidence” could be obtained, other than perhaps through cross examination of the Medical Assessor, to determine whether or not the Medical Assessor considered the documents which the appellant complained of. In those circumstances an appellant could never satisfy this ground of appeal. Absent such an opportunity, inferences can be drawn and the answer to whether a Medical Assessor appropriately considered relevant evidence is not determined on the basis of evidence.
When considering whether such an inference can be drawn the appropriate starting point is the MAC. The Medical Assessor provides the following simple answer to two relevant questions about s 323: “not applicable”. When discussing the documentary evidence referred by the Commission, he comments “As listed in the referral”. Those documents included all of the material the appellant claims the Medical Assessor has not appropriately considered.
With particular respect to the competing opinion of Dr Bentivoglio, the medical opinion on which the appellant’s submissions are based, the Medical Assessor said this:
“With respect to the report by Dr Bentivoglio dated 29/08/2022, I note he has detected greater range of motion in both shoulders and also documents some inconsistency in ranges of shoulder motion. He has therefore not assessed the right shoulder on the basis of restricted range of motion. I did not observe inconsistency of movement and have assessed according to range of motion.
I agree with the assessment of the neck as DRE Cervical Category I.
I found similar ranges of motion in the elbow but did not observe inconsistency in ranges of motion of the elbow.
With respect to the left knee, I did observe a 10° fixed flexion contracture.”
The report of Dr Bentivoglio is one of three reports attached to the Reply. That report assessed whole person impairment of 16%. In his report dated 5 October 2022, Dr Bentivoglio explains how he reached his figure in respect of the left shoulder.
The critical report in respect of the deduction issue is attached to an Application to Admit Late Documents dated 21 August 2023. That document was admitted into the proceedings and sent to the Medical Assessor. Attached to that application is a supplementary report of Dr Bentivoglio dated 16 August 2023 which discusses a number of issues, some going to the liability question raised in this matter. Of relevance to s 323 were the complete clinical records of St Mary’s Doctors. Dr Bentivoglio says this:
“Definitely Mr Tideswell’s local doctor’s notes a short term prior to the specific injury indicates that he was having significant problems present in his left knee. An ultrasound done of his left shoulder prior to the specific incident also showed he had a tera of his rotator cuff tendons in his left shoulder. There should be a 100% deduction for previous (and recently symptomatic) knee and shoulder complaints”
The appellant also refers to the content of the clinical notes, which Dr Bentivoglio discusses above. Those notes demonstrate complaints in the left shoulder, left knee and right elbow prior to the date of injury. All three were the subject of referrals for imaging that took place on 4 March 2019, one month prior to the injury.
It is the Appeal Panel’s view that it is a reasonable inference to draw that the Medical Assessor has failed to consider relevant material in this case. A large component of the medical dispute between the parties concerned s 323 of the 1998 Act. Section 319 of the 1998 Act defines medical dispute and includes, at (d) “whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion”. The failure of the Medical Assessor to refer to the opinion of Dr Bentivoglio relevant to that aspect of the medical dispute, as well as the clinical and radiological evidence underpinning that assessment, is a demonstrable error.

The Medical Assessor’s reasons

The appellant submits that the Medical Assessor has failed to provide adequate reasons for his conclusion regarding the existence of a previous injury or pre-existing condition or abnormality. He provides no explanation as to the meaning of the words “not applicable”, and it is unclear whether that meant that there was no prior injury or that any pre-existing injury or condition did not contribute to the impairment.
The respondent submits that the Medical Assessor has given sufficient reasons but does not expand on that submission with reference to any relevant case law or in fact the reasons provided by the Medical Assessor.
The Appeal Panel has referred to some relevant authority on the requirement to give reasons above. The appellant referred to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Wingfoot). Wingfoot was applied in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346
In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
“The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
“The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law."”

The Appeal Panel note that it is not the role of the Medical Assessor to choose between competing medical opinions put forward by the parties. However, it is the Medical Assessor’s role to determine the “medical question referred” (that is, the medical dispute). The Appeal Panel are satisfied that the Medical Assessor has not adequately explained his conclusion, particularly in the face of a genuine dispute about s 323. The comment “not applicable” has no discernible meaning and is insufficient to allow the Appeal Panel to determine whether the opinion contains an error of law (or more correctly, for the Appeal Panel’s powers, a demonstrable error).
The Appeal Panel are accordingly satisfied that this ground of appeal is made out and the MAC contains a demonstrable error.

Ground 7 – the failure to apply a deduction

This ground follows from the above. The appellant asserts that the Medical Assessor failed to assess whether a deduction for “pre-existing impairment” was warranted. The Appeal Panel notes that that is not the correct test in s 323 but is of no great accord and does not detract from the substance of the appellant’s submission. The appellant submits that a deduction of 100% should be made for the left shoulder and left knee, consistent with Dr Bentivoglio, and a deduction of one tenth for the right elbow.
The respondent submits that there is fresh pathology in the right elbow and left knee, and the worker underwent surgery in respect of such pathology. This justifies the making of no deduction. In relation to the left shoulder, the appellant submits that although there is evidence of a tear in the supraspinatus, the claimant was working as a carpenter up until the accident and the investigations indicate that the pathology was worse after the injury. On this basis, a deduction on one tenth should be made.
In circumstances where the MAC contains a demonstrable error as described above, the Appeal Panel are required to determine the appropriate application of s 323 of the 1998 Act.
The construction of s 323 of the 1998 Act has been discussed above. Per Elcheikh and Cole there are three steps to determine.
The first step is to assess the current degree of impairment. There are calculation errors in the MAC in that regard, which will be amended on appeal. Impairment for the left shoulder is 16% upper extremity impairment. Impairment for the right elbow is 25% upper extremity impairment. Impairment for the left knee is 8% whole person impairment. Those are the figures (as corrected) assessed by the Medical Assessor based on range of motion. No issue has been taken with those figures and given they are based on range of motion measurements taken by the Medical Assessor on the day of examination, the Appeal Panel are of the view that it is appropriate to adopt them as the starting point for the purposes of step one of the consideration of s 323.
The second step is to determine whether the respondent suffered from any previous injury or pre-existing condition that contributed to impairment.
In respect of this step, the Appeal Panel will deal with each body part in turn, as the appropriate determination requires different considerations.

Section 323 – left shoulder

If respect of the left shoulder, there is evidence of a pre-existing condition that existed shortly prior to the work injury. Mr Tideswell made complaints of pain in the left shoulder to his general practitioner on 15 February 2019, which he put down to gout. Blood tests were ordered on that occasion. On the next attendance, for a follow up concerning the blood test results, an ultrasound was requested.
On 5 March 2019, an ultrasound of the left shoulder was undertaken. The report of that scan was of a 6 x 4mm partial thickness articular surface tear of the mid fibres of the supraspinatus tendon, with the remainder of the tendon demonstrating moderate tendinosis.
On 6 March 2019, Mr Tideswell returned to his general practitioner. At that time he was still having pain. A recommendation was made for some physiotherapy and an ultrasound guided steroid injection. It appears that in fact Mr Tideswell had the injection the morning of his work injury. A report dated 3 April 2019 records the injection occurring on 2 April 2019 at 8:30am.
The Appeal Panel are accordingly satisfied that Mr Tideswell had a pre-existing condition in his left shoulder that contributed to the current degree of permanent impairment. That condition was a partial thickness tear of the supraspinatus tendon.
In terms of the contribution of that condition, the Appeal Panel do not agree with the appellant’s submissions or the opinion of Dr Bentivoglio (which was provided without any real explanation or analysis of the radiology). Whilst theoretically a deduction of 100% is available (see Zeineddine v Matar [2009] NSWSC 646) such a deduction must be consistent with the medical evidence.
In the present case, the abnormality identified on ultrasound is relatively minor. It should also be noted that an ultrasound is not a particularly useful judge of pathology. What was a 6 x 4mm partial thickness tear prior to the work injury advanced to a complete rupture after the incident. The effect of the accident suffered by Mr Tideswell and the injury resulting from it advanced minor pathology into a complete rupture. As the respondent submits, Mr Tideswell was working full time as a carpenter in spite of this issue, albeit with some complaints of pain. The pathology following the work incident is far advanced of what occurred prior.
It is difficult or costly to determine the precise contribution from the pre-existing condition. In those circumstances, a deduction of one tenth is applicable and that assumption is not at odds with the available evidence (see s 323(2) of the 1998 Act), which has been considered and discussed by the Appeal Panel above.

Section 323 – left knee

The evidence in respect of the left knee is similar to that of the shoulder. Mr Tideswell complained of left knee pain at the same time as the left shoulder pain, set out above, first occurring on 15 February 2019. He was referred for an ultrasound which occurred on the same date as the left shoulder ultrasound (4 March 2019).
That ultrasound found some mild calcific tendinosis at the distal insertion of the quadriceps tendon over the superior pole of the patella but no evidence of a tear. An X-ray was also completed on the same date which showed “early degenerative changes within the medial tibiofemoral compartment” with no other degenerative change demonstrated. The Appeal Panel’s view is that the imaging is not all that different to what one would expect in an individual of Mr Tideswell’s age who has completed physical work for many years. That is, it is not a largely concerning or abnormal result and certainly not a basis to make a deduction of 100%. Again, the Appeal Panel would acknowledge that an ultrasound does not represent a particularly useful basis for determining pathology, and the X-ray is targeted at a different type of pathology. There is evidence of a pre-existing symptomatic knee that was being investigated by the respondent’s general practitioner, but had not been fully explored.
The ultrasound report also notes that “If a meniscal, cruciate ligament or cartilaginous injury is clinically suspected then these structures could be further assessed with an MRI”. On 6 March 2019, an MRI was requested by Mr Tideswell’s treating general practitioner, with the following note: “he got recent injury to the left knee, twisting injury of left knee, he is having painful and swollen left knee, having giving way sensation, suspicious of ACL injury”. Although the general practitioner mentions a possible cruciate ligament tear, twisting on a partially flexed knee is the mechanism to produce a meniscal tear. The work injury overtook the pathology identified and the MRI did not go ahead.
There is some pre-existing pathology present and it is the Appeal Panel’s view that that pathology has contributed to the injury. On the balance of probabilities Mr Tideswell suffered a pre-existing condition affecting his meniscus.
The post-injury pathology is significant on a clinical basis and consistent with the radiological evidence. The MRI dated 14 June 2019 shows a complex tear in the body and posterior horn of the medial meniscus. In circumstances where there is a background of a symptomatic knee, as recorded in the clinical notes and not fully investigated (i.e. with an MRI), the Appeal Panel are satisfied that it is difficult or costly to determine the extent of the deduction. In those circumstances, s 323(2) applies and a deduction of one tenth is appropriate. Because we have no evidence of the extent of any meniscal damage prior to the work injury, but there is sufficient evidence to determine, on the balance of probabilities, that a pre-existing condition contributed to impairment, no other deduction is available on the evidence.

Section 323 – right elbow

Consistent with the above two body parts, Mr Tideswell complained of some pain in the right elbow on 15 February 2019. Again, investigations were arranged with an ultrasound on 4 March 2019. That ultrasound recorded “tiny areas” of calcification consistent with mild calcific tendinosis but no evidence of a tear. The tendons were intact.
The injury to Mr Tideswell’s elbow was significant. The impairment assessed is arising from the triceps rupture which was surgically repair at Nepean Hospital, and later debrided due to infection on a number of occasions. Mr Tideswell has been left with a grossly restricted range of motion in his right elbow. The pathology seen in the elbow now, caused by the injury suffered in the incident on 2 April 2019, is different to that seen pre-injury on the radiology, and the complaints made to his general practitioner have no relation to the injury suffered.
In those circumstances, there is no relevant pre-existing condition that contributes to the current degree of impairment. To the extent that there is a pre-existing condition, being a mild case of calcification, it is entirely different pathology and has been completely overborne by the significant injury suffered. It does not contribute to the current degree of permanent impairment and accordingly no deduction is appropriate.
It is also noted that Dr Bentivoglio made no deduction for the right elbow, concluding that “these however have not caused or contributed to his workplace injury”.

Conclusion

The appellant’s appeal has succeeded on a number of bases. For the reasons, the Appeal Panel has determined that the MAC issued on 5 November 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W4027/23
Applicant:	Peter Tideswell
Respondent:	Classic Carpentry Services Pty Ltd

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 Rob Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Right upper extremity (right shoulder and right elbow)	2/4/19	Ch 2	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 472 T 16-34 P 474 T 16-37 P 479 T 16-03	26%	Nil	26%
Left upper extremity (left shoulder)	2/4/19	Ch 2	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46	10%	1/10	9%
Left lower extremity (left knee)	2/4/19	Ch 3	P 436 T 17-10	8%	1/10	7%
Cervical spine	2/4/19	Ch 4	P 392 T 15-05	0%	n/a	0%
Scarring	2/4/19	Ch 14	0%	n/a	0%
Total % WPI (the Combined Table values of all sub-totals)					38%

[2025] NSWPICMP 185

20 March 2025