Coles Supermarkets Australia Pty Ltd v Leary

DETERMINATION OF APPEAL PANEL
CITATION:	Coles Supermarkets Australia Pty Ltd v Leary [2025] NSWPICMP 680
APPELLANT:	Coles Supermarkets Australia Pty Limited
RESPONDENT:	Tanya Leary
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Tim Anderson
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	8 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether the examination the Medical Assessor (MA) conducted was sufficient to make a finding the respondent met the criteria for DRE II; whether the MA’s conclusion that the respondent met the requirements of DRE II accorded with the MA’s findings from his examination of the respondent; whether the MA was correct not to engage section 323(1); Held – it is apparent that the MA’s examination of the respondent was sufficient to determine by reference to which DRE category the respondent’s spinal impairment was to be assessed; MA correctly correlated his findings from examination with the criteria for DRE II; MA was correct not to engage section 323(1) because any pre-existing condition the respondent had does not contribute to her current impairment; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 July 2025 Coles Supermarkets Australia Pty Limited, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 June 2025.
The appellant relies on the ground for appeal listed at s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), being that the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the Application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Tanya Leary, the respondent, suffered an injury to her lumbar spine and left hip on
9 April 2018 while working for the appellant. On 6 January 2023 orthopaedic surgeon
Dr Vaibhiv Punjabi conducted surgery on the respondent, as treatment of her injury, during which he performed a total left hip replacement.
The respondent claimed compensation from the appellant’s insurer pursuant to various provision under the Workers Compensation Act 1987. One of her claims was for compensation for permanent impairment she said resulted from her injury. With respect to that claim she relied on a report of Associate Professor Brett Courtenay dated 31 July 2024 who assessed she had 22% whole person impairment (WPI) resulting from her injury. That comprised 20% WPI relating to the respondent’s lower extremity and 2% WPI relating to scarring the respondent had due to her surgery. Associate Professor Courtenay’s assessment of the respondent’s permanent impairment relating to her left lower extremity was on the basis that she had a fair result from the replacement of her left hip.
Associate Professor Courtenay’s diagnosis of the respondent’s injury insofar as it related to her left hip was that it was a muscle tear and damage to her left hip. Associate Professor Courtenay expressed his opinion that the incident in which the respondent suffered injury on 9 April 2018 was “a substantial contributing factor” to the damage in her left hip and that this then led to an acceleration and development of osteoarthritis in her hip. Associate Professor Courtenay said that it was impossible for him to comment on whether the respondent had any pre-existing disease in her left hip as no imaging had been done at the time she suffered injury. Associate Professor Courtenay said that he suspected there may have been some but also noted that there was no evidence of osteoarthritis in her right hip and that her left knee only had mild arthritis that was consistent with her age. Associate Professor Courtenay expressed his view that the osteoarthritis in the respondent’s left hip occurred because of the specific incident on 9 April 2018 and once the damage had occurred in the joint, the normal use by the respondent of the joint led to osteoarthritic changes developing rapidly. Associate Professor Courtenay said:
“it has certainly been in my experience over a long period of doing hip and knee arthroplasties, that knees are much slower whereas hips once the sphericity of the hip joint is in any way damaged, whether it be by labral tear or chondral damage, then the osteoarthritic changes tend to progress quite rapidly, and it is my opinion that is what has occurred with this lady.”
The appellant’s insurer resisted the respondent’s claims for compensation for various reasons. With respect to the respondent’s claim for compensation for permanent impairment from her injury those reasons included that the degree of her permanent impairment was less than that which Associate Professor Courtenay had assessed. With respect to that issue, the insurer relied on a report of orthopaedic surgeon Dr Sham Deshpande dated
25 November 2024.
Dr Deshpande assessed the degree of the respondent’s permanent impairment from her injury is 18% WPI. Dr Deshpande was also of the view that the respondent had achieved a fair result from her left hip replacement, and hence he assessed the degree of her permanent impairment relating to that is 20% WPI, but from that he made a 10% deduction “for clearly pre-existing osteoarthritis of her left hip.” Dr Deshpande considered that the respondent had osteoarthritis in her left hip on the basis that “x-rays soon after the work injury showed evidence of advanced severe osteoarthritis.” Dr Deshpande said that the injury the respondent suffered “caused aggravation of pre-existing osteoarthritis.”
Dr Deshpande also assessed the respondent had no permanent impairment due to the scarring from her surgery.
With a view to resolving her disputed claims for compensation, the respondent initiated proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute dated 28 January 2025. The matter was referred to a Member of the Commission, namely Mr Michael Wright, who conducted a conciliation with the parties and who, with the consent of the parties, made various determinations that are recorded in a Certificate of Determination dated 16 May 2025, which included, relevantly to this appeal, the following:
“I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1988 for assessment as follows:
a.Date of injury: 9 April 2018: Personal Injury.
b.Body systems/parts:
i.Left lower extremity (hip)
ii.Lumbar spine
iii.TEMSKI/scarring
c.Method: Whole person impairment.”
A delegate of the President of the Commission duly issued that referral on 21 May 2025.
The Medical Assessor examined the respondent on 11 June 2025 to conduct that assessment. As said, he issued the MAC on 17 June 2025, in which he certified he assessed the degree of the respondent’s permanent impairment is 24% WPI. His assessment comprised 20% WPI relating to the respondent’s left lower extremity and 5% WPI relating to the respondent’s lumbar spine. He assessed the respondent had 0% WPI due to the scarring from her surgery. The 20% WPI he assessed relating to the respondent’s left lower extremity and the 5% WPI relating to the respondent’s lumbar spine combined to 24% WPI, in accordance with the Combined Value Chart in AMA 5.
No issue has been raised in this appeal against the Medical Assessor’s assessment that the respondent has 20% WPI of her left lower extremity. The Medical Assessor’s assessment of that matter was on the basis that he found the respondent had a fair result from her total hip replacement. The issues that the appellant has raised in its appeal relate firstly, to the Medical Assessor not making a deduction under s 323(1) of the 1998 Act for any proportion of the respondent’s impairment due to a pre-existing condition, and secondly, the Medical Assessor’s examination of the respondent’s lumbar spine, specifically whether his examination, or alternatively his findings from his examination, were sufficient for the assessment he made.
Regarding the engagement of s 323, the Medical Assessor described in the MAC, at part 7 under the heading. Summary, that the respondent’s injury to her left hip involved aggravation of pre-existing osteoarthritis in the hip. He noted that the appellant had an X-ray of her pelvis, left hip and knee on 1 April 2021. The Medical Assessor recorded the following summary in part 6 of the MAC relating to the radiologist’s report on that investigation:
“The radiologist reports there is severe degenerative osteoarthritis of the left knee (sic) which should read hip.
There is no evidence of acute fracture or dislocation of the left hip. The pelvic bones are normal.
There is mild degenerative osteoarthritis of the left knee joint.”
The Medical Assessor also noted that he viewed the films of this X-ray and he commented that they revealed evidence of degenerative osteoarthritis of the left hip.
The Medical Assessor’s explanation as to why he did not make a deduction under s 323(1) of the 1998 Act is contained within part 10a of the MAC and it is as follows:
“X-rays on 1 April 2021, 3 years after the accident, showed severe degenerative osteoarthritis of the left hip. Being guided by the history of her having no previous problems with her left hip, the history of injury and no radiological evidence of arthritis in the left hip prior to the date of injury, and noting the x-rays of the pelvis of the same date in April 2021 where there is mild degenerative change in the right hip, and examination of the non-injured right hip today revealing normal range of movement and no rateable impairment, I conclude that there is no deduction applicable for pre-exiting condition or impairment of the contra lateral joint.”
The Medical Assessor also noted that Dr Deshpande had made a 10% deduction when assessing the respondent’s permanent impairment relating to her left hip for pre-existing osteoarthritis in the hip. With respect to that the Medical Assessor commented that he had not seen any radiological evidence for pre-existing arthritis in the documents with which he was briefed and that the first X-ray of the hip following her injury was in April 2021 which was three years after the surgery. The Medical Assessor said that for the reasons that he provided within part 10a, which is what the Appeal Panel has extracted immediately above, he was of the view that no deduction is applicable.
With respect to the matter that the appellant has raised relating to the Medical Assessor’s examination of the respondent’s lumbar spine and his findings from those examinations, the Medical Assessor recorded the following within part 5 of the MAC under the heading:
“Findings on physical examination:
Sensation in the lower limbs was normal to light touch and sharp stimuli. Reflexes are normal and symmetrical (knee, ankle and hamstring jerks). She had normal power and no wasting.
Straight leg raise supine was 80° on the right and 30° on the left due to pain.
Straight leg raise sitting was normal.”
The Medical Assessor within part 10a of the MAC also said the following when explaining why he assessed the respondent’s permanent impairment relating to her lumbar spine is 5% WPI:
“The claimant falls into DRE Lumbar Category II (5% to 8% WPI)⁽¹⁾ (see 10b). The claimant has normal neurology of the lower limbs with localised tenderness in the lumbar spine and asymmetric loss of range of movement.
ADLs are not affected. I assess 5% WPI.
There is no deduction for pre-existing condition applicable as the claimant has no history of any previous injury problems with her back.”
The Appeal Panel observes that within part 10b of the MAC, against a superscripted 1, the Medical Assessor detailed the relevant table within AMA 5 by which he determined the respondent’s permanent impairment relating to her lumbar spine.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established the grounds for appeal on which it relied, and consequently the Appeal Panel neither has power nor reason to examine the respondent.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130]; Saveski v Brunjev Pty Ltd [2025] NSWSC 157 at [66].

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor did not within part 5 of the MAC, under the heading “Findings on physical examination”, provide any details relating to his examination of the respondent’s lumbar spine. The appellant submitted further that the Medical Assessor did not explain why the respondent “falls into DRE Lumbar Category II.” The appellant submitted that in the absence of examination findings being recorded the clinical features required to allow an assessment of impairment within the range permitted by DRE Lumbar Category II are not identified in the MAC and are unknown.
The appellant submitted that it did not matter if a pre-existing condition in the respondent’s left hip was asymptomatic at the time she suffered her injury and what is relevant is whether any impairment she has from the injury is to some extent due to a pre-existing condition.
The appellant submitted that the history the Medical Assessor obtained of the respondent having no pre-existing problems is incorrect. The appellant referred to various pieces of the evidence relating to the existence of an osteoarthritic condition in the respondent’s left hip. That evidence included the diagnosis Dr Punjabi made of the respondent having osteoarthritis in her left hip and Dr Punjabi noting that the respondent had mentioned to him that when she suffered injury, she had aggravated left hip pain.
The evidence to which the appellant referred also included two reports the respondent’s general practitioner (GP) provided the respondent’s solicitors on 29 December 2021 and
3 December 2024. In the earliest report the GP advised she had seen the respondent on multiple occasions since 2 April 2020. She also expressed her opinion that the respondent’s injury on 9 April 2018 as well as he subsequent repetitive and at times heavy actions the respondent performed after her injury had aggravated and accelerated osteoarthritis in her left hip. In the later report the GP expressed her view that the respondent’s injury might have exacerbated an already existing condition.
The evidence also included a report of Dr Oates, an occupational physician, who diagnosed the respondent had aggravated pre-existing degenerative osteoarthritis in her left hip and that the incident on 9 April 2018 was the main contributing factor to that aggravation.
The evidence to which the appellant referred also included the report of Associate Professor Courtenay in which he said that the respondent had been getting some soreness due to the nature of her work leading up to 9 April 2018.
The evidence included the report of Dr Deshpande wherein he expressed the view that the investigation demonstrated the respondent had advanced end stage osteoarthritis of her left hip and that her injury caused an aggravation of pre-existing osteoarthritis.
The appellant submitted that the medical evidence demonstrated the respondent had a
pre-existing condition that contributed to her permanent impairment and that a deduction ought to have been made by the Medical Assessor under s 323(1) on account of that.
In reply, the respondent submitted that the Medical Assessor did conduct an examination of her lumbar spine and this was evident from what the Medical Assessor recorded in the MAC within part 5 and part 10.
The respondent submitted that the appellant’s submissions regarding the Medical Assessor’s failure to engage s 323 are unsupported by any evidence. The respondent submitted that there was no evidence to substantiate she had a condition that pre-existed her injury. The respondent submitted that the earliest evidence of her having an osteoarthritic condition was dated April 2021, three years after her injury. The respondent referred to her evidence in a statement she signed that she had no symptoms in her hip prior to the date of injury.

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.

Lumbar spine

The MAC must be read as a whole to discern the reasons the Medical Assessor provided for his assessment of the respondent’s permanent impairment. In other words, the Appeal Panel, in the process of discerning what reasons the Medical Assessor provided for his assessment, should not read one passage of the MAC in isolation from others to which the first mentioned passage may be related.[2] Further, the reasons the Medical Assessor has provided in the MAC to explain his assessment should not be read overzealously.[3]
[2] Neader v The Trustee for Vestito Unit Trust t/as TS 14 Plus Australia Pty Ltd [2025] NSWSC 866 (Neader) at [45]; NSW Land & Housing Corporation v Orr [2019] NSWCA 231 at [77].
[3] Allianz Australia Insurance Ltd v Bell [2025] NSWCA 187 at [118]; Neader at [45] NSW Land & Housing Corporation at [77].
When the MAC is read as a whole it is apparent that the Medical Assessor did conduct a comprehensive examination of the respondent’s lumbar spine and made findings from his examination sufficient to establish by reference to which DRE category the respondent’s impairment of her lumbar spine was to be assessed. The MAC, when read as a whole, reveals that the Medical Assessor examined the respondent for signs of radiculopathy and examined the movement she had of her lumbar spine. His findings relating to the signs for radiculopathy are detailed within part 5 of the MAC under the heading “Findings on physical examination.” His findings regarding the range of motion that the appellant has of her lumbar spine are set out within part 10a of the MAC, wherein the Medical Assessor said that the respondent has “asymmetric loss of movement.” He also noted therein that the respondent had localised tenderness in her lumbar spine. Those statements of the Medical Assessor within part 10a could only be made based on his observations of the respondent in a clinical setting. In other words, it is apparent from the findings Medical Assessor has recorded relating to the respondent’s lumbar spine both within part 5 and part 10 of the MAC that he conducted a comprehensive examination of the respondent's lumbar spine.

The findings the Medical Assessor recorded both within part 5 and part 10a of the MAC were sufficient for him to establish whether the respondent’s symptoms and signs correlated with the criteria specified in Table 15-3 of AMA5 for either DRE Lumbar Category I, DRE Lumbar Category II or DRE Lumbar Category III. Based on the Medical Assessor’s finding the respondent had local tenderness in her lumbar spine and asymmetric loss of movement, but had normal neurology of her lower limb and normal straight leg raise while sitting, and normal and symmetrical reflexes and normal power and no wasting of muscle, the Medical Assessor was correct to assess the respondent’s impairment relating to her lumbar spine by reference to the criteria of DRE Lumbar Category II.

Section 323

The Appeal Panel considers that the Medical Assessor made no error by not engaging s 323(1) of the 1998 Act when assessing the degree of permanent impairment the respondent has relating to her left hip. When the MAC is read as a whole it is apparent that the Medical Assessor found that the respondent had existing osteoarthritis in her left hip. That is apparent from what he has said at part 7 of the MAC when summarising his diagnosis for the respondent’s injury to her left hip.
The Medical Assessor also noted within part 7 that the respondent had a hip replacement. He explained within part 10 that he assessed the respondent’s impairment rating to her left hip on the basis that she had a hip replacement. That is, he assessed the impairment the appellant of her left hip was due to her having an artificial hip and not a normal hip. The replacement of her hip was a consequence of her having arthritis in her hip. The purpose of that treatment was to rid the disease in the respondent’s left hip and provide her with increased function in her left hip and an abatement of symptoms.
The Medical Assessor’s explanation of why he did not engage s 323 included his having obtained a history of the respondent having no previous problems with her left hip prior to her injury. The Appeal Panel sees no error in the MAC by virtue of the Medical Assessor obtaining that history and for weighing that as a relevant factor when considering whether s 323(1) was to be engaged. The respondent in her statement of 21 March 2022 said that she had no injury or prior issues with her left hip before her injury on 9 April 2018. The evidence to which the appellant refers to cast doubt on that evidence of the respondent included the reports of Dr Punjabi and the respondent’s GP. That evidence however is based on the history the respondent provided to these doctors between two and three years after the event. It is no more reliable than what the respondent said in her statement four years after the event. In other words, due to the time between the injurious event and that evidence being provided, there is inherent unreliability regarding the respondent’s memory of what symptoms she may have had before the event.
There is however, no contemporaneous evidence of her complaining of symptoms before the event. Further, and as the Medical Assessor explained, the investigation that was done in April 2021 three years after the event revealed extensive osteoarthritis in the respondent’s left hip, but only mild arthritis in her left knee and mild arthritis in her right hip. Further again, as the Medical Assessor also explained, his examination of the respondent’s right hip revealed she had a normal range of movement. What that evidence reveals, which is implicit in the explanation the Medical Assessor provided in part 10a, is that the disease in the respondent’s left hip immediately preceding her suffering her injury would have been minimal. Indeed, the Medical Assessors on this Appeal Panel consider that what Associate Professor Courtenay advised in his report is correct, that is what is likely to have occurred is that the incident on 9 April 2018 initiated the disease in the respondent’s left hip or accelerated the development of minimal disease in her left hip at the time of her injury.
As the Medical Assessor explained he assessed the impairment the respondent has of her left hip on the basis that she has an artificial joint, specifically her current function and presentation based she has with that artificial joint. As the Appeal Panel has explained, her having that joint is a consequence of her having osteoarthritis in her left hip. The extent of any arthritis that was in her left hip as at the time of her injury was minimal if any. As is the case with her right hip, had the incident not occurred on 9 April 2018 it is unlikely that any arthritis she had at the time in her left hip would have resulted in her having a hip replacement at any foreseeable time. Consequently, whatever disease was in her left hip at the time of her injury, which was minimal if any, did not contribute to her permanent impairment.
Whilst the Medical Assessor’s explanation could have been more fulsome, it is nevertheless adequate to expose his reasoning regarding why he did not engage s 323(1), and his reasoning is sound. He has not made an error by not engaging s 323(1) of the 1998 Act.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 June 2025 should be confirmed.

[2025] NSWPICMP 680

8 September 2025