Cooper v Young Mining Company NSW Pty t/as Causmag International

DETERMINATION OF APPEAL PANEL
CITATION:	Cooper v Young Mining Company NSW Pty t/as Causmag International [2025] NSWPICMP 13
APPELLANT:	Wanda Marie Cooper
RESPONDENT:	Young Mining Company Pty Ltd t/as Causmag International
APPEAL PANEL
MEMBER:	Gaius Whiffin
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	7 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Appeal against Medical Assessor’s assessment of permanent impairment on the basis that the Medical Assessor (MA) erred in failing to provide adequate reasoning and failing to have regard to imaging evidence; error found in that the Medical Assessor’s recorded examination findings were not sufficient to confirm the assessments made by him, and therefore the Appeal Panel could not be satisfied that his examination of the appellant was sufficiently thorough in order to enable him to provide a proper assessment of the appellant’s permanent impairment; his reasoning did not allow the appellant to comprehend why her permanent impairment was assessed at a certain level; error also found in that the Medical Assessor did not consider relevant and significant material, being imaging evidence; further medical examination conducted on behalf of the Appeal Panel by MA Roger Pillemer, and findings of MA Roger Pillemer adopted by the Appeal Panel and different to those of the original MA; Campbelltown City Council v Vegan, New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Queanbeyan Racing Club Ltd v Burton, Vitaz v Westform, Bojko v ICM Property Service Pty Ltd & Ors, Prasad v Workers Compensation Commission, Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor, Wentworth Community Housing Limited v Brennan, and Coca-Cola Europacific Partners API Pty Ltd v Pombinho considered; Medical Assessment Certificate revoked and new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 September 2024, Wanda Marie Cooper (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The relevant medical dispute was assessed by Medical Assessor Robert Kuru (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 22 August 2024.
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 President’s delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and it has conducted a review of the original medical assessment, but limited to the grounds of appeal on which the Appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 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

The appellant was employed by Young Mining Company Pty Ltd t/as Causmag International (the respondent) when she sustained injury on an agreed deemed date of 21 August 2018. She was injured whilst performing her normal employment duties for the respondent (between 2011 and 2021), which involved the repetitive lifting and throwing of rocks, while sorting rocks for quality on a conveyor belt. She injured her shoulders, neck, thoracic spine, and lumbar spine, and she also developed a secondary psychological condition.
The appellant claimed compensation from the respondent in relation to her injury, and the respondent accepted that it was liable to pay compensation in this regard, in accordance with the provisions in the Workers Compensation Act 1987 (the 1987 Act). It has therefore variously paid her weekly benefits compensation, as well as her expenses in accordance with s 60 of the 1987 Act.
The appellant then claimed lump sum compensation from the respondent pursuant to s 66 of the 1987 Act. She relied upon opinions from Dr Dixon, who assessed her with 23% permanent impairment, when assessing her cervical spine, thoracic spine, lumbar spine, right upper extremity (shoulder), and left upper extremity (shoulder). The respondent arranged for Dr Haig to also assess the appellant, and based upon that doctor’s assessment, the respondent offered to compensate her in relation to 13% permanent impairment, by a letter from its solicitors to her solicitors dated 9 November 2023. The offer was not accepted.
By an Application to Resolve a Dispute (the ARD) dated 14 November 2023 and lodged with the Personal Injury Commission (the Commission), the appellant claimed inter alia compensation pursuant to s 66 of the 1987 Act.
Consent Orders were eventually agreed between the parties, and the Commission determined the ARD in accordance with those Consent Orders on 21 March 2024. In relation to the appellant’s claim pursuant to s 66 of the 1987 Act, the Consent Orders included a referral to the Medical Assessor pursuant to s 321 of the 1998 Act for him to assess the appellant’s permanent impairment in her cervical spine, thoracic spine, lumbar spine, right upper extremity (shoulder) and left upper extremity (shoulder).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel formed the view that the Medical Assessor had fallen into error in a number of respects when assessing the degree of the appellant’s permanent impairment.
The Appeal Panel also formed the view that it was not itself able to determine the degree of the appellant’s permanent impairment without a further medical examination of her. It therefore exercised its power in accordance with s 324 of the 1998 Act to require the appellant to attend an examination with Dr Roger Pillemer from the Appeal Panel on 25 November 2024.
A preliminary review certificate was issued by the Appeal Panel and provided to the parties. It informed the parties of the medical examination on 25 November 2024, and it also directed the appellant to produce at the medical examination “all films/images/electronic records regarding radiological investigations relating to her right shoulder, left shoulder, cervical spine, thoracic spine, and lumbar spine”.
The appellant attended the 25 November 2024 medical examination ordered.

EVIDENCE

Documentary evidence

The Appeal Panel has before it the following documents (which were also provided to the Medical Assessor) and has taken them into account in making this determination:
(a)    the ARD and its attachments;
(b)    the respondent’s reply (the Reply) and its attachments;
(c)    the appellant’s Application to Admit Late Documents dated 22 February 2024 (the appellant’s AALD) and its attachments, and
(d)    the respondent’s Application to Admit Late Documents dated 11 December 2023 (the respondent’s AALD) and its attachments.

Medical Assessment Certificate

The parts of the MAC that are relevant to the Appeal are set out in the body of this decision. It is unnecessary however to refer to the MAC in detail given the nature of the Appeal.
The Medical Assessor takes a brief but uncontroversial history of the onset of the appellant’s symptoms. He records that her present symptoms involve persistent pain over both shoulders; pain and numbness over her lower back; pain at the base of her neck radiating into her other thoracic spine, and headaches. On physical examination, apart from recording the range of motion in her shoulders, his sole findings are:
“Romberg’s test was negative. Trendelenburg’s test was normal. Heel-toe stance was normal. Upper limb reflexes were symmetrical with a negative Hoffman test. Peripheral power was intact.
Similarly, lower limb reflexes were symmetrical with down going Babinskis. Straight leg raise was to 90° in the sitting position without tension signs. Peripheral power was intact.
She exhibited a normal range of symmetrical flexion, extension and rotation of the neck.
For the lumbar spine, flexion was to the proximal third of the tibia. Lateral flexion was to the knees. There was no asymmetry or dysmetria.”
The Medical Assessor then advises that he “was able to review no imaging associated with the injuries today”.
The Medical Assessor’s summary of injuries and diagnoses is solely:
“Ms Cooper developed pain in both shoulders, the neck and lower back which she attributes to the nature and conditions of her employment.”
The Medical Assessor then assesses the appellant’s permanent impairment, as follows:
“Range of motion of the shoulders was assessed according to AMA-5, page 476 Figure 16-40, page 477 Figure 16-43 and page 479 Figure 16-46. On the basis of restricted range of motion, 9% upper extremity impairment was assessed for both shoulders. According to AMA-5, page 439, Table 16.3 this converts to 5% whole person impairment for each shoulder.
With respect to the cervical spine, thoracic spine and lumbar spine, each was assessed as DRE Category I. Whilst Ms Cooper reports pain in her neck, upper thoracic spine and lower back, there were no significant clinical findings, no muscular guarding, no documented neurological impairment, no loss of motion segment integrity and no other indication of impairment or injury.
I did not find dysmetria in cervical movements, nor did I find evidence of radiculopathy and hence have assessed the neck as DRE Category I rather than Category II.
I agree with the assessment of the thoracic spine as DRE Category I.
Again for the lumbar spine, I did not find dysmetria or evidence of radiculopathy and have assessed it as Category I rather than Category II.”
The Medical Assessor says that he has based his assessment on “a thorough history, a comprehensive physical examination, a review of the documentation made available” by the Commission.

Further medical examination

As noted at paragraph 13 above, Dr Roger Pillemer of the Appeal Panel conducted an examination of the appellant on 25 November 2024 and has now reported to the Appeal Panel:
“1.     The appellant’s complete medical history, where it differs from previous records
I read Ms Cooper the history that she gave to Dr Kuru at the time of his examination on 1 August 2024 and she agreed with this.
2.      Additional history since the original Medical Assessment Certificate was performed
Lumbar spine
Ms Cooper was questioned specifically today about her ongoing problems, and she complains of significant discomfort in her low back region being her main problem with radiation down her right lower limb as far as her right ankle. She also feels discomfort in both anterolateral thigh regions. She describes her back and leg symptoms as being constant, ranging between 7-10/10 and aggravated by sitting or standing for long, or walking, and she does get some relief by flexing forward and taking her tablets. She feels that her back and leg symptoms are becoming worse with time.
Shoulders
Ms Cooper is complaining of problems with both shoulder regions, the left side more than the right, but the symptoms are similar with discomfort being felt mainly in both trapezius areas and in the posterior shoulder regions. She can be comfortable at rest and symptoms can go as high as 8/10 and are felt on a daily basis.
Her symptoms are aggravated by movements of her shoulders, particularly elevation or putting on her bra, and she does get relief by resting.
Cervical spine
Ms Cooper feels her neck is a big problem for her with symptoms ranging between
4-8/10, and on specific questioning she can be comfortable when she is at rest. Symptoms are aggravated by movements of her head and neck and movements of her arms.
General Health
She has a triple bypass and has had a partial nephrectomy, and I note that she was under the care of a psychiatrist for post-traumatic stress disorder (PTSD), but she does not see the psychiatrist anymore since the insurance ceased liability.
As far as limitations are concerned, her maximum walking time would be 5 minutes and she says ‘I will have to push myself’ as she does not drive at this stage.
Activities of Daily Living
She lives at home with her husband and grandson, and does a minimal amount of housework, and can vacuum for 5 minutes and has to stop and start. She does not leave the house (because of her PTSD), and manages with her self-care, but has to have a seat in the shower.
3.      Detailed findings of clinical examination
Ms Cooper is an adult female in no obvious discomfort who undresses and dresses slowly and carefully, and walks with a slightly unsteady gait and shows marked restriction of back movement, only getting her fingertips as far as her knees in flexion, and lateral flexion to the right is more restricted than to the left. She has difficulty walking on heels and toes.
Straight leg raising becomes uncomfortable at 60° bilaterally and she actually has restriction of hip movements bilaterally, suggestive of some early osteoarthritic change.
Importantly, her right ankle reflex is depressed compared to the left side, and there is sensory hypoaesthesia to pinprick over the lateral border and sole of her right foot. She also has weakness of eversion on the right side. These are all features in keeping with an S1 nerve root lesion.
Ms Cooper also has hypoaesthesia to pinprick over the anterolateral aspect of both thighs where she feels her discomfort, in the distribution of the lateral cutaneous nerve of the thigh (meralgia paraesthetica).
She complains of marked discomfort to palpation in the lower lumbar region.
Ms Cooper has moderate restriction of lateral rotation of her head and neck to the left. Other movements were hesitant but satisfactory.
She has a reasonable range of shoulder movements as found by the Medical Assessor, and reflexes are present and equal and good grip strength was present bilaterally.
Importantly, Ms Cooper has hypoaesthesia to pinprick over the shoulder cowl bilaterally in the distribution of the supraclavicular nerves and also has localised tenderness to palpation in the posterior shoulder region, and percussion over the posterior triangle where the supraclavicular nerve enters the posterior triangle causes her significant discomfort.
4.      Results of any additional investigations since the original Medical Assessment Certificate
Ms Cooper has not had any further investigations carried out.
5.      Impairment assessments regarding the appellant’s accepted injuries
Lumbar Spine:
Ms Cooper falls into DRE lll, noting the findings of S1 nerve root involvement (i.e. radiculopathy), with 10% whole person impairment and an additional 2% for ADLs, giving a total of 12% whole person impairment.
Cervical Spine:
Ms Cooper falls into DRE ll in relation to her cervical spine with 5% whole person impairment.
Upper Extremity Impairments:
The upper extremity impairments found by the Medical Assessor (actually 12% upper extremity impairment each, rather than 9% each as calculated by the Medical Assessor) need to be combined with the involvement of the supraclavicular nerves. Please note that AMA 5 and the Guidelines do not suggest impairment for the supraclavicular nerve and therefore an equivalent or analogous condition needs to be used (Page 7 of the Guidelines - 1.36 - ‘Inconsistent presentation’ - If in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the physician may modify the impairment rating accordingly), which in this case would be the axillary nerve (sensory only), which gives a maximum of 5% upper extremity impairment (Page 492 of AMA 5, Table 16-15).
In my opinion, Ms Cooper falls into Grade 3 with 50% sensory involvement (Page 482 of AMA 5, Table 16-10), giving 2.5%, which rounds to 3% upper extremity impairment.
Combining these figures (12:3) gives a total of 15% upper extremity impairment on each side, which in turn equates to 9% whole person impairment.
This then gives a combined total (12:9:9:5) of 31% whole person impairment.
There is no deduction for any pre-existing condition.”

SUBMISSIONS

Both parties have made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor:
(a) failed to identify in the MAC a diagnosis in relation to the appellant’s condition, in breach of paragraphs 1.6, 1.45, and 4.1 of the Guidelines – his summary of injuries and diagnoses (see paragraph 20 above) is “wholly deficient in failing to reach a diagnosis”, and
(b) failed to comply in the MAC with paragraph 1.47 of the Guidelines by not referring to the results of investigations undergone by the appellant (see paragraph 19 above), thereby not realising the appellant’s pathology of severe left shoulder arthritis; moderate scoliosis and degenerative disc disease in the thoracic spine; disc space narrowing at C5/6 with diffuse annular bulge with disc extrusion compromising the C6 nerve roots; right shoulder degeneration, bursitis, and tears, and disc narrowing of L4/5 disc space with generalised bulging of the disc into the right and left lateral recesses and moderate canal narrowing at L4/5.
In reply, the respondent concedes that the Medical Assessor did not provide a summary of the appellant’s available radiological investigations, and it also concedes that he arguably did not record a diagnosis in the MAC. However, even if he had summarised the radiological investigations and recorded a diagnosis, the permanent impairments findings in the MAC would not have changed, as:
“The nature of the Appellant’s injuries (particularly noting the absence of any surgical treatment) are not those to which a diagnosis based estimate of impairment applies. Dr Kuru has appropriately assessed the Appellant based on ROM findings (for the shoulders) and the DRE method for the spine…The Appellant’s submissions do not seek to challenge Dr Kuru’s examination findings, nor do they point out any error in his method of assessment or calculations.”
Finally, the respondent concedes (as noted in the report of Dr Roger Pillemer – see paragraph 23 above) that the Medical Assessor made a mathematical error in his assessment of the applicant’s permanent impairments arising out of her shoulder injuries. His findings give rise to upper extremity impairments of 12% (rather than 9% as recorded in the MAC) on each side, which convert to 7% whole person impairment each, and a total permanent impairment level of 14%.

FINDINGS AND REASONS

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 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, that is, those errors identified by a party in its submissions – see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.

The Appeal Panel in this regard has to ensure that it does not disturb any unchallenged findings in the MAC. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated (at [35]):
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and [emphasis in original] the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor’s reasoning with respect to that finding; neither course was part of its statutory function.”
The appellant submits that the Medical Assessor failed to identify a diagnosis and failed to consider investigations, in breach of the Guidelines. The Appeal Panel accepts these submissions, having regard to what is recorded in the MAC (see paragraphs 19 and 20 above).
In Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz), Basten JA at [34] stated:
“Questions as to the adequacy of the reasons given by an approved medical specialist are different in kind. Although reasons are required so that the unsuccessful party may know why he or she has failed, it does not follow that a medical specialist has to give reasons which are immediately comprehensible to a person with no medical expertise. For example, a medical expert speaking to other practitioners might say that some degree of impairment was self-evidently caused by a pre-existing condition, despite the fact that the person was asymptomatic prior to the injury. On the other hand, such a conclusion may be medically contestable. In order for the applicant to succeed in this Court in asserting inadequacy of reasons, there must at least be material properly before the Court which demonstrates that the opinion falls into the latter category.”
A Medical Assessor’s reasons for an assessment need to be such, so that an appellant and a respondent, as well as the Appeal Panel, can comprehend why an appellant’s permanent impairment is assessed at a certain level.
In relation to the appellant, the Appeal Panel finds that the Medical Assessor’s recorded examination findings are not sufficient to confirm the assessments made by him. In such circumstances, the Appeal Panel cannot be satisfied that the Medical Assessor’s examination of the appellant was sufficiently thorough in order to enable him to provide a proper assessment of the appellant’s permanent impairment.
In this regard:
(a)    the Medical Assessor’s description of the appellant’s symptoms (see paragraph 18 above) is insufficient, in that there are extremely scant details recorded regarding the severity, frequency, extent, aggravating factors, or relieving factors, of the symptoms;
(b)    the Medical Assessor did not review or refer to imaging (see paragraph 19 above) – in circumstances where numerous imaging reports were provided to him (found mainly between pages 221 and 236 of the ARD) – these reports inter alia refer to significant clinical findings regarding the appellant’s cervical spine, thoracic spine, and lumbar spine, whereas the Medical Assessor (see paragraph 21 above) does not consider that there were any significant clinical findings;
(c)    the Medical Assessor’s examination findings are extremely brief, especially in relation to the appellant’s lumbar spine and cervical spine (see paragraph 18 above) – he finds a normal range of symmetrical movements in both regions, and while he tests reflexes and motor power as well as straight leg raising, there is no mention of him testing for sensation;
(d)    the appellant in her 26 October 2022 statement (found at page 33 of the ARD) advises as to referred pain into her lower limbs, and Dr Dixon in his 9 June 2022 report (found at page 65 of the ARD) also notes this “radicular complaint with sciatic pain extending down her legs to both little toes” – however, consideration of radicular pain is missing from the Medical Assessor’s recording of the appellant’s symptoms, with pain and numbness only been recorded (see paragraph 18 above) over her lower back – the Medical Assessor finds no evidence of radiculopathy (see paragraph 21 above) but it is uncertain as to how he reached this conclusion having regard to the scant details of the appellant’s symptoms recorded by him, as well as the extremely brief examination findings recorded by him;
(e)    there is no indication that the Medical Assessor examined the appellant’s thoracic spine;
(f)    the Medical Assessor did not assess permanent impairment with regard to the appellant’s shoulders by considering the involvement of her supraclavicular nerves, and
(g)    the Medical Assessor’s diagnoses regarding the appellant (see paragraph 20 above) are non-existent.
As a result, the Appeal Panel finds the examination conducted by the Medical Assessor to be inadequate, and not to the standard required by Vitaz in terms of reasoning in the MAC regarding medically contestable conclusions. The Appeal Panel cannot accept that the Medical Assessor obtained a thorough history, that he conducted a comprehensive physical examination, and that he adequately reviewed the documentation provided to him, despite his assurances in this regard (see paragraph 22 above). The Appeal Panel finds a demonstrable error by the Medical Assessor in this regard.
The Appeal Panel is aware that the assessment a Medical Assessor undertakes of a worker’s permanent impairment is an administrative task, and consequently there is a presumption of regularity that a Medical Assessor has attended to all matters necessary to undertake the task of assessing a workers’ permanent impairment. In Bojko v ICM Property Service Pty Ltd & Ors [2009] NSWCA 175 (Bojko), Handley AJA stated at [36] why the appellant failed in that case:
“The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘... a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. ... the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
In this Appeal however, because the findings from the Medical Assessor’s examination are so scant, the Appeal Panel considers it cannot rely upon the presumption of regularity described in Bojko. It is not in the opinion of the Appeal Panel ‘construing minutely’ to point out that the Medical Assessor’s description of the applicant’s symptoms, his examination findings, and particularly his review (or rather his lack of review) of imaging were wholly inadequate, so that the appellant was not in position to understand how the permanent impairment assessments in the MAC were determined.
The Appeal Panel has also come to the conclusion (in accordance with the appellant’s submissions) that in failing to consider the imaging reports attached to the ARD, the Medical Assessor fell into error in not considering ‘relevant and significant material’.
Although a Medical Assessor does not have to refer in a MAC to “every matter or thing that is germane or critical to an administrative decision” (per Harrison SCJ in Prasad v Workers Compensation Commission [2010] NSWSC 418), it is an error for a Medical Assessor not to consider ‘relevant and significant material’. As Adams SCJ found in Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor [2017] NSWSC 453 (Tattersall) (at [14]):
“Given the significance of the Medical Assessment Certificate by the Appointed Medical Specialist in the scheme of the Act, which is designed amongst other things to avoid hearings and to dispose of applications by non-participatory decision making, a failure to consider relevant and significant material provided by one of the parties must be regarded as a significant error. Indeed, it seems to me that it amounts to a denial of natural justice.”
In Wentworth Community Housing Limited v Brennan [2019] NSWSC 152 (Brennan), Harrison ASCJ referred to Tattersall with approval and found that a Medical Assessor had fallen into error in that case, as follows (at [74]):
“In this current judicial review, it is fair to say that aside from the general statements in [2] and [9] of his decision, the AMS did not specifically refer to either the surveillance reports dated 27 August 2015 and 11 October 2016, or the social media reports dated 13 July 2015 and 12 September 2016. Nor has the AMS addressed Wentworth’s submissions on the inconsistent matters raised in the reports under the ‘History Relating to the Injury’ heading of the MAC. Wentworth had submitted that the material shown in these reports was inconsistent with what the first defendant stated in her initial statement. In her supplementary statement, the first defendant provided her response as to what was contained in media posts and surveillance. The AMS also did not refer to either the first defendant’s supplementary or latter statement in his reasoning. It appears that the AMS overlooked these reports, or failed to consider the relevant and significant material provided by the plaintiff.”
The Appeal Panel finds the appellant’s imaging evidence to be ‘relevant and significant material’ of the type discussed in Tattersall and Brennan. It provides important clinical findings regarding the appellant’s pathology, and it required consideration by the Medical Assessor. Such consideration, in the opinion of the Appeal Panel, is critical to the correct assessment of the appellant’s permanent impairment as a result of her injury.
Having determined that the Medical Assessor has fallen into error, it is not however for the Appeal Panel to speculate regarding what he would have found if he had recorded the applicant’s symptoms correctly, conducted a thorough physical examination of her, and appropriately considered her imaging. As a result, the appellant needed to be re-examined in order to correct the Medical Assessor’s errors.
The Appeal Panel appointed Dr Roger Pillemer from it to conduct this re-examination, and it is satisfied that the re-examination was conducted thoroughly, and that Dr Roger Pillemer performed a complete physical examination and also appropriately considered the appellant’s symptoms and her imaging - see paragraph 23 above.
The Appeal Panel considers the findings and assessments of Dr Roger Pillemer to be reliable, and the Appeal Panel adopts those findings and assessments (as was held to be sufficient in Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191). The permanent impairment assessments of Dr Roger Pillemer are significantly different to the permanent impairment assessments of the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 August 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:	W8647/23
Applicant:	Wanda Marie Cooper
Respondent:	Young Mining Company Pty Ltd t/a Causmag International

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 Robert Kuru dated 22 August 2024 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)
1.Cervical spine	21/08/2018	Chapter 4, pages 24-29	Chapter 15, page 392, Table 15-5	5%	Nil	5%
2.Right upper extremity	21/08/2018	Chapter 2, pages 10-12	Chapter 16, pages 433-521	9%	Nil	9%
3.Left upper extremity	21/08/2018	Chapter 2, pages 10-12	Chapter 16, pages 433-521	9%	Nil	9%
4.Lumbar spine	21/08/2018	Chapter 4, pages 24-29	Chapter 15, page 384, Table 15-3	12%	Nil	12%
Total % WPI (the Combined Table values of all sub-totals)					31%

[2025] NSWPICMP 13

7 January 2025