Coolway Trans Pty Ltd ATF the Coolway Trans Trust v Stoddart

DETERMINATION OF APPEAL PANEL
CITATION:	Coolway Trans Pty Ltd ATF The Coolway Trans Trust v Stoddart [2025] NSWPICMP 432
APPELLANT:	Coolway Trans Pty Ltd ATF The Coolway Trans Trust
RESPONDENT:	Stoddart
APPEAL PANEL
Elizabeth Beilby
MEMBER:
MEDICAL ASSESSOR:	Dr Gregory McGroder
MEDICAL ASSESSOR:	Dr Rob Kuru
DATE OF DECISION:	19 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor (MA) erred by not making a deduction under section 323(1); Held – respondent had pre-existing abnormality contributing to permanent impairment; consequently the MA erred by not making a deduction under section 323(1); MAC revoked; new certificate issued.

WORKERS COMPENSATION DIVISION

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

Matter number:	M1-W28852/24
Appellant:	Coolway Trans Pty Ltd ATF The Coolway Trans Trust
Respondent:	Gordon Stoddart
Date of decision:	19 June 2025
Appeal Panel:
Member:	Marshal Douglas
Medical Assessor:	Gregory McGroder
Medical Assessor:	Rob Kuru

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 March 2025 Coolway Trans Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 February 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, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant employed Gordon Stoddart, the respondent, as a truck driver commencing in October 2019.
On 26 March 2020, the respondent was moving a pallet in the rear of a freezer truck when the pallet slipped hitting both the respondent’s legs and causing him to fall. He felt immediate pain in his left hip and lower back and was unable to bear any weight on his left leg. He was taken by ambulance to the Liverpool Hospital where it was discovered the pain in his left hip was due to his suffering a peri-prosthetic fracture to his left hip. The respondent had previously suffered from Perthes disease for which he had a total left hip replacement on 14 June 2017 under the hand or orthopaedic surgeon Dr Richard Walker. The peri-prosthetic fracture he suffered in the incident on 26 March 2020 was a break around that artificial joint in the proximal femur.
On 27 March 2020 the respondent had an open reduction and internal fixation of the fracture. On 25 March 2021 he had further surgery to remove the internal fixation and also an iliotibial band release.
The respondent also suffered an injury to his lumbar spine in the incident on 26 March 2020. Ultimately, he received treatment for that particular injury in the form of insertion of a spinal cord stimulator in January 2023. That was removed in February 2023, and a further stimulator inserted on 4 May 2023. That was turned off in late 2024 as it was not providing relief.
The respondent claimed compensation from the appellant’s insurer under s 66 of the WorkersCompensation Act 1987 (the 1987 Act) for permanent impairment from his injury, which he claimed was of the order of 19% whole person impairment (WPI). He relied on a report of neurosurgeon Dr Micael Edger dated 22 February 2024. Dr Edger advised in that report that he assessed the respondent had 7% WPI relating to his lumbar spine, 4% WPI for surgical scars, and 10% WPI relating to his left lower extremity, which all combined to 19% WPI. With respect to the respondent’s impairment of his left lower extremity, Dr Edger advised that he assessed the respondent’s impairment by reference to the criteria of Table 17-33 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA-5) and specifically the criteria for a femoral shaft fracture listed in that table.
Prior to the respondent notifying the appellant’s insurer of his claim for compensation, the insurer had arranged for him to be examined by orthopaedic surgeon Dr Yuk Kai Lee on 21 May 2024. Dr Lee produced two reports relating to his examination, one addressed to the insurer dated 21 May 2024 and a subsequent report addressed to the insurer’s solicitors dated 23 October 2024. In those reports Dr Lee advised that he assessed the respondent had a permanent impairment from his injury of the order of 12% WPI. That was a combination of 5% WPI relating to the respondent’s left hip and 7% WPI relating to the respondent’s lumbar spine. With respect to the respondent’s left hip, Dr Lee advised that his assessment was based on his assuming the respondent achieved a good result from the hip replacement the respondent had in June 2017 and his finding the respondent now had a fair result from that surgery following his injury. According to Table 17-33 of AMA-5 a good result accords with a 15% WPI whereas a fair result accords with a 20% WPI. Dr Lee, based on that, reasoned that the respondent had a “pre-existing impairment” of 15% WPI, which he deducted from the 20% WPI he assumed the respondent had from his initial hip replacement.
Dr Lee also assessed the respondent had 0% WPI relating to scarring.
On 29 October 2024 the appellant’s solicitors wrote to the respondent’s solicitors advising them that the appellant offered to settle the respondent’s claim by paying him compensation for 12% WPI. It enclosed with its correspondence Dr Lee’s reports of 21 May 2024 and 23 October 2024, and advised that their client’s offer was in accordance with Dr Lee’s assessment.
Clearly that offer was not acceptable to the respondent since on 18 November 2024 he registered with the Personal Injury Commission (Commission), an Application to Resolve a Dispute seeking that the Commission determine his claim for compensation for permanent impairment.
The Commission referred the matter to the Medical Assessor on 11 December 2024. The Medical Assessor conducted his examination of the respondent on 3 February 2025 to conduct his assessment and issued the MAC, as said earlier, on 4 February 2025. In that he certified he had assessed the degree of the respondent’s permanent impairment from his injury is 24% WPI, being a combination of 7% WPI relating to the respondent’s lumbar spine, 16% WPI relating to the respondent’s left lower extremity and 2% WPI relating to scarring.
The appellant in its appeal against the medical assessment takes no issue with the Medical Assessor’s assessment of the respondent’s permanent impairment relating to his lumbar spine or scarring. Further, the appellant takes no issue with respect to the Medical Assessor’s assessment of the respondent’s overall permanent impairment relating to his left lower extremity or the method by which the Medical Assessor made that assessment, which was based on the restricted range of movement the respondent has of his left hip. What the appellant raises in its appeal is that the Medical Assessor assessed that no portion of the respondent’s permanent impairment relating to his left lower extremity is due to a pre-existing condition or abnormality.
With respect to that matter, the Medical Assessor noted within the history he set out in the MAC that the respondent had suffered from Perthes disease in his left hip as a child and had a total left hip replacement in 2017. The Medical Assessor also detailed in the history that the respondent did very well following that surgery and was unrestricted in his activities. Further, when summarising the respondent’s injuries the Medical Assessor noted that the respondent had “a very satisfactory result following his left hip replacement that was carried out in 2017”.
The Medical Assessor also made the following comments regarding Dr Lee’s assessments of the respondent’s permanent impairment of his left hip:
“I note the reports of Dr Y K Lee, orthopaedic surgeon of 23 October 2024 noting the significant restriction of left hip movement and suggesting 5% WPI, noting that prior to his injury in March 2020 he had a good result from his left total hip replacement, giving 12% WPI, and now has a fair result giving 16% WPI, leaving him with 4% WPI as a result of his injury on 26 March 2020. In my opinion this is an inappropriate way of assessing impairment and a more appropriate way would be on the basis of the restricted range of left hip movement as suggested above.”
It will be observed that those comments of the Medical Assessor related to the method by which Dr Lee assessed the degree of the respondent’s permanent impairment relating to his left hip. The Medical Assessor did not address the fact that Dr Lee had made a deduction for a “pre-existing impairment”. It is apparent, in the Appeal Panel’s view, that Dr Lee’s reference to the respondent having a “pre-existing impairment” was his expressing a view that the respondent had a pre-existing condition that contributed a proportion of his permanent impairment for which a deduction should be made under s 323(1) of the 1998 Act. More is said below about the correctness of the approach Dr Lee used to make that deduction, but at this juncture the Appeal Panel merely notes that the Medical Assessor did not make any remark regarding Dr Lee making a deduction under s 323(1) and did not when commenting on Dr Lee’s report express a view as to why he considered a deduction under s 323(1) should not be made. Indeed, nowhere within the MAC did the Medical Assessor expressly grapple with that issue. He indicated at the relevant parts within the standard form for a MAC that a deduction was “not applicable” and that no proportion of the respondent’s permanent impairment was due to a previous injury, pre-existing condition or abnormality, but he did not explicitly state his reasons why he thought that is the case. It would seem, based on the history the Medical Assessor obtained, that the Medical Assessor was of the view that because the respondent had a satisfactory result from his left hip replacement and was unrestricted in his activities that the pre-existing condition and abnormality the respondent had, which was Perthes disease that led to the respondent having an artificial left hip, did not contribute a proportion to the permanent impairment the respondent has relating to his left hip.

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 information before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal.

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 erred and applied incorrect criteria when making his assessment of the respondent’s permanent impairment by failing to make a deduction under s 323(1) of the 1998 Act. The appellant submitted that the respondent had a significant history of a left hip condition. The respondent referred to a report of Dr Walker dated 4 March 2014 in which Dr Walker described a history of the respondent’s left hip symptoms and wherein Dr Walker provides a diagnosis of the respondent having Perthes disease of his left hip.
The appellant also referred to other reports that Dr Walker issued, including a report of 19 June 2018, which was 12 months after the respondent’s total left hip replacement, and in which Dr Walker detailed that the respondent was experiencing symptoms in his groin and buttock, that he was unable to walk for more than 30 or 45 metres before experiencing pain in his left hip, that the respondent walked with a mild limp and that the respondent no internal rotation of his left hip and had flexion to 90º. Dr Walker had also noted in that report that the respondent “has done okay following surgery but I would agree he is slightly below the average result we would expect”.
The appellant submitted that the history the Medical Assessor obtained of the respondent doing well following his hip replacement surgery and being unrestricted in his activities is inconsistent with the evidence in the form of Dr Walker’s report of 19 June 2018.
The appellant further submitted that the Medical Assessor’s reasons for not making a deduction under s 323(1) are inadequate. The appellant submitted that the test regarding whether a deduction should be made under s 323(1) is not whether the worker returns to fulltime unrestricted duties but rather whether a proportion of impairment is due to a pre-existing condition.
In reply, the respondent submitted that the Medical Assessor took account of the evidence relating to his history of left hip issues. The respondent noted the history the Medical Assessor obtained was that he had a very good result following his left hip replacement. The respondent observed that Dr Walker’s most recent report is old, having been written 20 months before his injury on 26 March 2020.
The respondent submitted that the Medical Assessor explained in sufficient detail his path of reasoning for why he did not make a deduction and the respondent further submitted that the Medical Assessor’s reasons were based on his clinical judgment and experience and the findings of fact he 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.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
Section 323(1) of the 1998 Act requires a Medical Assessor when assessing the degree of permanent impairment that a worker has from an injury to make a deduction for any proportion of impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality. Hence, in this case, in order that s 323(1) can be engaged, the respondent must have had a condition or an abnormality before he suffered his injury on 26 March 2020, and that that condition or abnormality must “have caused or contributed to the assessed whole person impairment”.[1]
[1] Pereira v Siemans Ltd [2015] NSWSC 1133 at [87].
The Appeal Panel considers the respondent had a pre-existing abnormality, and that was his having artificial left hip. The respondent having an artificial left hip joint is an abnormality because it is not the respondent’s normal or natural joint, which was arthritic and was removed by the surgery he had on 14 June 2017. That left hip had become arthritic because the respondent had Perthes disease from the age 10.
For clarity, the Appeal Panel notes that at the time of his injury the respondent did not have a pre-existing condition of either Perthes disease or arthritis because the procedure by which he received his artificial left hip removed that condition. Consequently, and necessarily, those non-existent conditions cannot contribute to his current impairment.
The Appeal Panel agrees with the appellant that the Medical Assessor did not take into account when composing the relevant clinical history relating to the respondent, the history that Dr Walker set out in his report of 19 June 2018 to the respondent’s general practitioner, specifically that the respondent, 12 months after his hip replacement surgery, was walking with a mild limp, could only walk to 45 metres without pain, and had no internal rotation of his left hip and flexion to 90º. In other words, 12 months after the respondent had his arthritic left hip replaced with an artificial hip, he had restricted movement of his hip. That was relevant evidence that the Medical Assessor ought to have considered when composing a clinical history so as to enable him to assess the degree of the respondent’s permanent impairment from his injury. If the Medical Assessor considered that that evidence was not relevant to the clinical history he obtained then the Medical Assessor ought to have, in the Appeal Panel’s view, explained why he considered that.
The Appeal Panel is an expert panel that includes two medical specialists. The Parliament is taken to have expected that the medical specialists on the Appeal Panel will bring their medical expertise and training when considering any clinical issue arising in the appeal.[2] The view of the Appeal Panel is that a person who has received an artificial hip joint will never have a normal range of movement thereafter. An artificial hip joint will ordinarily improve the restricted movement the person had in the joint prior to receiving the artificial joint, but the replacement of the joint will never restore the movement the person has in the joint to the level that the person had preceding the onset of the disease in the joint from which symptoms manifested that necessitated the replacement of the joint.
[2] See for example Insurance Australia Ltd t/as NRMA Insurance v Le [2025] NSWCA 121 at [58].
The respondent said in his statement that following his hip replacement he could move more freely without pain or symptoms. That can be accepted to be the case. However, that is not his saying that he had complete range of movement of his left hip or that he had the exact range of movement in his left hip joint as he had in his right hip. Based on the expertise of the Appeal Panel, which is corroborated by Dr Walker’s report of 19 June 2018 that was issued one year after the respondent’s surgery and less than two years before he suffered his injury, the Appeal Panel is of the view that the respondent had some restriction of movement of his left hip at the time he suffered injury.
Bearing in mind that the Medical Assessor rated the respondent’s impairment relating to his left hip by reference to the restricted range of motion the respondent has in his left hip, about which neither party complained, and bearing in mind too the Appeal Panel’s finding that the respondent immediately before his injury had restriction in the movement of his left hip as a consequence of his having an artificial hip, necessarily then the respondent’s pre-existing abnormality of his having an artificial left hip joint contributes to his assessed permanent impairment of his left hip.
Consequently, the Medical Assessor erred by not engaging s 323(1) of the 1998 Act, that is he erred by making no deduction for the proportion of the respondent’s permanent impairment that is due to his pre-existing abnormality. That error is such that the MAC contains a demonstrable error.
The Appeal Panel must consequently correct that error. That is, it must assess what deduction is to be made under s 323(1) for the proportion of the respondent’s permanent impairment that is due to his pre-existing abnormality.

The Appeal Panel is of the view that it is difficult to determine the extent of the deduction to be made under s 323(1). This is because, notwithstanding that the respondent would have some restriction of movement of his left hip because of his having an artificial hip, it cannot be known exactly what restricted movement he had immediately preceding the injury he suffered. It is feasible that there may have been some improvement of his movement after Dr Walker examined him on 19 June 2018, although to repeat he would not have had normal movement in that hip. The respondent also indicated that he was able to move freely, and indeed had commenced employment with the appellant as a truck driver. That also indicates that his situation had improved from when Dr Walker last saw him, given that at that time the respondent was only able to walk for 30 to 45 metres before experiencing pain in his hip joint.
All that confirms that it is difficult to determine the exact restriction of movement he had in his left joint as a consequence of having an artificial left hip joint immediately before he suffered his injury. That in turn makes it difficult to determine the exact proportion that his artificial hip now makes to the impairment he has of his left hip due to the restricted range of movement he now has in his left hip, by which his permanent impairment from his injury is assessed.
Given that, in accordance with s 323(1), the Appeal Panel assumes the deduction to be made under s 323(1) is 10%. Making that assumption is not at odds with the available evidence, that evidence being the Appeal Panel has just detailed in the two preceding paragraphs.
The Appeal Panel observes that the method Dr Lee adopted to make a deduction for “pre-existing impairment” cannot be applied. This is because he assumed that immediately preceding the respondent suffering his injury the respondent had achieved a good result from his left hip replacement. A deduction to be made under s 323(1) cannot be made based on assumption, excepting in the circumstance described in s 323(2). Further, the content of Dr Walker’s report of 19 June 2018 questions the accuracy of the assumption Dr Lee made.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 February 2025 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:	W28852/24
Applicant:	Gordon Stoddart
Respondent:	Gordon Stoddart

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 Roger Pillemer 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)
Lumbar spine	26/3/2020	Chapter 4	Table 15-3	7%	-	7%
Left lower extremity		Chapter 3	Chapter 17 Pages 523 to 564	16%	1/10	14%
Scarring		Table 14.1	2%	-	2%
Total % WPI (the Combined Table values of all sub-totals)					22%

[2025] NSWPICMP 432

19 June 2025