Corrective Services NSW v Singh

DETERMINATION OF APPEAL PANEL
CITATION:	Corrective Services NSW v Singh [2025] NSWPICMP 660
APPELLANT:	Corrective Services NSW
RESPONDENT:	Malwinder Singh
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Greg McGroder
DATE OF DECISION:	1 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of lumbar spine and lower extremities; application by appellant to rely on fresh evidence as a ground of appeal; some evidence received on appeal and the Appeal Panel called for the complete copy of the clinical notes and records of the GP including records prior to the subject injury; Appeal Panel satisfied that the respondent worker had reached maximum medical improvement; Appeal Panel satisfied that there was an error in application of section 323 deduction and a deduction of one-tenth should be applied to the assessment of the left lower extremity (that is 0.4%); the assessment was 3.6% which was rounded up to 4% whole person impairment (WPI); the assessment of total WPI by the Appeal Panel was the same as that made by the Medical Assessor; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 June 2025 Corrective Service NSW (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Crocker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
9 May 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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Malwinder Singh (Mr Singh) suffered an injury to the right ankle on 16 December 2019 in his employment as a trainee custody officer with the appellant and as a result of that injury developed consequential conditions affecting the left foot/ankle and lumbar spine.
Mr Singh lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 20 February 2025 in which he claimed lump sum compensation in respect to the injury to his lumbar spine, right lower extremity, left lower extremity and scarring (TEMSKI).
The matter was referred to Dr David Crocker, Medical Assessor, for assessment of whole person impairment (WPI) of the lumbar spine, right lower extremity, left lower extremity and scarring (TEMSKI) as a result of the injury on 16 December 2019.
The Medical Assessor examined the appellant on 28 April 2025 and assessed 7% WPI in respect of the injury to the lumbar spine, 6% WPI of the right lower extremity, 4% WPI of the left lower extremity and 2% WPI for scarring (TEMSKI). These assessments combined to total 18% WPI as a result of the injury on 16 December 2019.

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 there was sufficient information on which to make a decision.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant relied on the availability of additional information as a ground of appeal in this matter. However, the appellant seeks to admit the following evidence listed in the supporting Documents Index attached to the appellant’s submissions:
(i)    letter to Pacific Medical & Dental Centre Blacktown requesting records from Moray & Agnew dated 30 January 2023;
(ii)    clinical records produced by Pacific Medical & Dental Centre Blacktown as at
14 June 2023;
(iii)   approval letter to Associate Professor Roderick Kuo from QBE dated
26 February 2025;
(iv)   email to Melanie and Donna of QBE from Eva Lee of Corrective Services NSW dated 9 May 2025;
(v)    email to Donna Marnell of QBE from Penelope Liaros dated 23 May 2025;
(vi)   Section 282 Notice Law from Partners Personal Injury Lawyers dated
28 May 2025;
(vii)     complete copy of clinical records of Pacific Medical & Dental Centre Blacktown as at 5 November 2024;
(viii)    letter to Law Partners Personal Injury Lawyers from Moray & Agnew dated
2 June 2025;
(ix)   letter to Moray & Agnew from Law Partners Personal Injury Lawyers dated
2 June 2025, and
(x)    Report Dr Farhan Shahzad dated 3 June 2025.
These supporting documents include documents already filed in this matter, that is, the clinical records produced by Pacific Medical & Dental Centre Blacktown as at
14 June 2023. It is not necessary to consider whether those documents which are already in evidence, need to be admitted as fresh evidence.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel.
In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“…in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
The appellant noted that when investigating the claim made, the appellant in a letter of
27 September 2024 (Reply p. 4) sought further particulars of Mr Singh’s claim, including the following particulars: “Has the claimant been involved in any other accidents, motor vehicle, and industrial or otherwise, as a result of which the claimant suffered some injury?” The appellant noted that on 11 October 2024, Mr Singh’s solicitors provided a response to this letter (Reply p. 6) which did not identify any prior or subsequent injury.
The appellant noted that Mr Singh attached a copy of Clinical Records from Pacific Medical and Dental Centre Blacktown of “various’ dates” to the ARD filed on 20 February 2025. The first page of those records (total 332 pages) confirms the records were produced on
5 November 2024 and contains notes taken between 17 October 2019 and 11 April 2024. The appellant maintains that service of the ARD was the first occasion on which copies of these clinical records were served on the appellant.
On 28 May 2025, after the examination by the Medical Assessor, the solicitors for Mr Singh served notice of a claim for work injury damages pursuant to s 282 of the 1998 Act (Appeal Encl. p 114). That letter served copy of Clinical Records of Pacific Medical & Dental Centre Blacktown, as produced on 5 November 2024 (Appeal Encl. p 119-1,524). The copy of the records produced on this occasion totalled approximately 1,405 pages. These records contained copies of notes taken between 18 September 2011 and 11 April 2024. The appellant maintains that this was the first occasion on which a full copy of these records had been served on the appellant.
The appellant submits that parts of the medical practitioners’ notes taken between
18 September 2011 and 11 April 2024 had been excluded from the ARD filed and therefore were not available to the Medical Assessor at the time of the examination on 28 April 2025.
The appellant notes that it had requested a complete copy of records when responding to the original lump sum claim in 2023 (Appeal Encl. p 1) but the records that were provided on
14 June 2023 only dated back to the date of injury and did not include these pre-injury records (Appeal Encl. p 3). The appellant’s solicitors wrote to Mr Singh’s solicitors on
2 June 2025 seeking an explanation (Appeal Encl. p 1,526).
Mr Singh’s solicitors replied on 2 June 2025 (Appeal Encl. p 1,525). The appellant submits that apart from a reference to the 500 page limit in terms of the documents to be annexed to the ARD, no explanation was given as to why a complete copy of the records were not served on the appellant, on or prior to that date, in circumstances where they revealed evidence of pre-existing complaints relevant to the issues of injury, assessment of WPI and s 323 deduction.
The appellant submits that the additional records which were omitted from the ARD and not served on the appellant until 28 May 2025 contradicted the assertions made by Mr Singh in his statement about his pre-existing medical history, and in documentation otherwise served by Mr Singh’s solicitors.
The Appeal Panel notes that Mr Singh’s solicitors in the letter dated 2 June 2025 also responded as follows:
“3. Our client had forgotten about his previous complaints of back pain as it was insignificant at the time. He could not recall every single mention of bodily pain made to his doctors as it was made years ago. We confirm his instructions remain that just prior to his workplace injury, the condition of his lower back and lower extremities were overall healthy and fine.”
Mr Singh submits that the only manner by which the appeal can succeed is if the appellant proves that there is availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
Mr Singh referred to the decision in MSS Security Pty Ltd v Elsaidy [2024] NSWPICMP 152 and to New South Wales v Ali [2018] NSWSC 1783 (Ali), in which Harrison J considered that s 327(3)(b) limited that right of appeal to circumstances where additional relevant information was available, but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment. His Honour relevantly stated:
“…section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed.”
It is clear that the prior clinical notes were not before the Medical Assessor.
Mr Singh argues that what is not clear, and not supported by any evidence, is that those notes could not reasonably have been obtained by the appellant prior to the medical assessment. There was a dispute between the parties and the appellant was entitled to, and ought to have properly investigated the claim. First, Mr Singh provided the appellant with all required authorities to access his records, an authority given directly to Moray & Agnew Lawyers to obtain all information held by any hospital, physician, medical practitioner or specialist or any other person who has treated Mr Singh dated 31 October 2024. Second, as is routine in the Commission, the appellant was entitled to make an application for a Direction for Production for all of Mr Singh’s medical records. This was not done and no explanation was provided as to why. Mr Singh submits that the appeal must fail. In any event, Mr Singh submits that the documents are not relevant information.
Mr Singh seeks to file supplementary statements date 20 June 2025 and 27 June 2025 and an Application for workers compensation claims, policy and settlement records dated
31 October 2024.
The appellant has not, in our view, adequately explained why the complete copy of clinical records of Pacific Medical & Dental Centre Blacktown was not obtained before the examination by the Medical Assessor. In our view, such documents could have been discovered before the examination by the Medical Assessor with reasonable diligence.
The letter to Pacific Medical & Dental Centre Blacktown requesting records from Moray & Agnew dated 30 January 2023 was also a document which was available to the appellant and could have been filed before the medical assessment.
In respect of the Approval letter to Associate Professor Roderick Kuo from QBE
26 February 2025, the email to Melanie and Donna of QBE from Eva Lee of Corrective Services NSW dated 9 May 2025, the email to Donna Marnell of QBE from Penelope Liaros dated 23 May 2025, the s 282 Notice Law from Partners Personal Injury Lawyers dated
28 May 2025, the letter to Law Partners Personal Injury Lawyers from Moray & Agnew dated 2 June 2025, the letter to Moray & Agnew from Law Partners Personal Injury Lawyers dated 2 June 2025, and the report Dr Farhan Shahzad dated 3 June 2025, these were documents not available before the examination by the Medical Assessor.
These documents relate to Mr Singh’s pre-existing injuries or condition prior to the work injury and the possibility of surgery, and the Appeal Panel considers these documents are of prima facie probative value.
Mr Singh filed fresh evidence with his submissions, namely, two supplementary statements dated 20 June 2025 and 27 June 2025 and an Application for workers compensation insurance claims, policy and settlement records dated 31 October 2024.
The supplementary statements of Mr Singh were not available before the examination by the Medical Assessor. In so far as these documents relate to Mr Singh’s pre-existing injuries or condition prior to the work injury and the possibility of surgery, these documents are of prima facie probative value. The Application for workers compensation insurance claims, policy and settlement records dated 31 October 2024 was available to Mr Singh and could have been filed before the medical assessment.
The Appeal Panel determines for the reasons given above that the following evidence should be received on the appeal:
(a)    approval letter to Associate Professor Roderick Kuo from QBE dated
26 February 2025;
(b)    email to Melanie and Donna of QBE from Eva Lee of Corrective Services NSW dated 9 May 2025;
(c)    email to Donna Marnell of QBE from Penelope Liaros dated 23 May 2025;
(d)    section 282 Notice Law from Partners Personal Injury Lawyers dated
28 May 2025;
(e)    letter to Law Partners Personal Injury Lawyers from Moray & Agnew
2 June 2025;
(f)    letter to Moray & Agnew from Law Partners Personal Injury Lawyers dated
2 June 2025;
(g)    report Dr Farhan Shahzad dated 3 June 2025, and
(h)    supplementary statements of Mr Singh dated 20 June 2025 and 27 June 2025.
The Appeal Panel determines for the reasons given above that the following evidence should not be received on the appeal:
(a)    letter to Pacific Medical & Dental Centre Blacktown requesting records from Moray & Agnew dated 30 January 2023;
(b)    clinical records of Pacific Medical & Dental Centre Blacktown as at
5 November 2024, and
(c)    Application for workers compensation insurance claims, policy and settlement records dated 31 October 2024.
The Appeal Panel notes that the clinical notes and records of Mr Singh’s general practitioner in evidence commence at the time of the subject injury. The Appeal Panel under s 324(3) of the 1998 Act determined to call for all clinical notes and records from Pacific Medical & Dental Centre Blacktown including the records prior to the injury on 16 December 2019 as these are records that are relevant to matters that require determination in this matter.

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’s submissions include the following:
(a)    Ground 1: Due to the failure of Mr Singh to disclose information, and the lack of available information at the time of examination, the Medical Assessor erred in determining Mr Singh’s injuries to have reached maximum medical improvement (MMI).
(b)    The MAC records a view that Mr Singh’s injuries referred had stabilised/reached MMI, such that he was capable of assessment. This conclusion was based upon an assertion of Mr Singh, which was incorrect. Had the Medical Assessor been provided with an accurate representation of the situation and/or all necessary documentation, he would have reached an alternative conclusion; namely, that Mr Singh’s injuries had not reached MMI because of the contemplated surgery.
(c)    During the examination with the Medical Assessor in question, Mr Singh was recorded to have stated that “he is not presently keen to proceed” with the proposed surgery to his right ankle, yet on the same date the appellant was informed that the surgery had been scheduled for 27 May 2025 and an activities of daily living assessment was required because Mr Singh would need a carer after the surgery (Appeal Encl. p 109).
(d)    The failure of Mr Singh to provide an accurate account of the possibility of further surgery, at the time of his examination, has given rise to an error on the face of the MAC. If the Medical Assessor had been aware that Mr Singh had recently received formal approval for this surgery and that a date had been scheduled, the Medical Assessor would not have considered Mr Singh to have reached MMI.
(e)    An operation report has not been received and the appellant was unable to directly confirm with Associate Professor’s Kuo’s offices whether the surgery did go ahead on 27 May 2025. If the surgery has gone ahead, Mr Singh’s condition has likely changed substantially and that the Medical Assessor’s conclusion that he had reached MMI cannot be correct.
(f)    The Medical Assessor erred in considering Mr Singh to have reached MMI and thereafter in undertaking an assessment of WPI.
(g)    Ground 2: Due to the failure of Mr Singh to disclose information, and the lack of available information at the time of examination, the Medical Assessor erred in determining there was no applicable deductible proportion pursuant to s 323 of the 1998 Act. Further, and in the alternative to the submissions raised above, the Medical Assessor has erred in his use of s 323 of the 1998 Act when calculating Mr Singh’s level of WPI arising from his bilateral lower extremity injuries.
(h)    The Medical Assessor ought to have concluded that a substantial s 323 deduction ought to have been applied to account for the contribution of previous or pre-existing injuries. If the Medical Assessor had been provided with the further evidence, he may have determined that a s 323 deduction be applicable in the present case. The evidence served by Mr Singh after the assessment of
28 April 2025 demonstrated the existence of prior injuries, symptoms, and/or conditions affecting the bilateral lower extremities and lumbar spine prior to the injury of 16 December 2019. The records contradict Mr Singh’s statement, which recorded: “Prior to my subject employment, I did not suffer from any pain or restrictions in my right ankle, left ankle, and back.”
(i)    The failure of Mr Singh to provide an accurate account of his past medical history, past injuries, complaints, abnormalities, or conditions, has given rise to an error on the face of the MAC.
(j)    If the Medical Assessor had been aware of Mr Singh’s full and relevant medical history and had been provided with the complete copy of the clinical records from Pacific Medical & Dental Centre Blacktown he would have reached a different conclusion with respect to the deductible proportion.
(k)    The Medical Assessor’s reliance on the evidence filed by Mr Singh, in the absence of records not made readily available by him, amounts to the Medical Assessor having conducted the subject assessment on the basis of incorrect criteria, and that the resulting assessment absent any s 323 deduction represents a demonstrable error in the MAC.
(l)    A significant deduction ought to have been applied, given the extent and longevity of Mr Singh’s complaints, investigations and identified pathology affecting the lower extremities and lumbar spine. The further report of
Dr Shahzad supports the view that a 50% deduction ought to have been applied to the assessment of the lower extremities, bilaterally.
(m)     The Appeal Panel should deem Mr Singh not to have reached MMI; or where
Mr Singh’s condition is deemed to have stabilised, apply a substantial deduction to assessment of the bilateral lower extremities pursuant to s 323 of the 1998 Act.

The respondent’s submissions include the following:
(a)    The subject injuries occurred on 16 December 2019 as a result of a frank trip and fall causing injury to the right ankle. The left foot pain and lower back pain were consequential to the right ankle injury. Importantly, the left foot pain, as described by the Medical Assessor, was ankle region and posterior part of the left ankle, with pain extending to the calf. The Medical Assessor considered the Mr Singh developed calcific Achilles tendinitis at the left ankle.
(b)    The documents relied upon by the appellant show, at most:
(i)nil history of right foot concerns;
(ii)intermittent episodes of lower back pain, none more recent than
5 May 2017 – more than two years pre-injury, and
(iii)intermittent episodes of left heel and Achilles pain, none more recent than
5 July 2017 - more than two years pre-injury.
(c)    The occurrence of intermittent pain and none for over two years prior to the subject incident, is immaterial to the Medical Assessor’s assessment. Moreover, Dr Shahzad, confirmed that his opinion on deductions for pre-existing conditions has not changed notwithstanding that information. Crucially, the Medical Assessor had already taken into account Dr Shahzad’s opinion, which is unchanged, on a deduction for pre-existing conditions.
(d)    Regarding the surgery issue, the only new (and therefore additional information) is an email from Eva Lee of DCJ to QBE. This is hearsay evidence, effectively from the employer, to say that surgery was scheduled. The evidence is not relevant and of no probative value. This is especially so in circumstances where Mr Singh clearly says in his statement dated 27 June 2025 that no surgery occurred and he has no intention to have the surgery in the foreseeable future.
(e)    This ground of appeal must fail as the information could not, on any view, be construed as additional relevant information. Moreover, regarding the general practitioner’s records, the appellant has failed to prove that the information could not reasonably been obtained prior to the medical assessment.
(f)    If the appeal succeeds, the materials annexed to these submissions should be presented to the Appeal Panel and re-examination must occur in the circumstances.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The Appeal Panel have reviewed the MAC and evidence in this matter.

Ground 1 – Was Mr Singh at maximin medical improvement?

The appellant submits that due to the failure of Mr Singh to disclose information, and the lack of available information at the time of examination, the Medical Assessor erred in determining the respondent worker’s injuries to have reached MMI.
Paragraphs 1.15 and 1.16 of the Guidelines read as follows:
“1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment. 1.16 If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation – subject to paragraph 1.34 in the Guidelines.”
In the MAC, the Medical Assessor noted under “Present treatment”:
“He reported that he had been reviewed by Associate Professor Kuo earlier this year. Mr Singh indicated that further surgery had been raised as an option pertaining to the right ankle, however, he is not presently keen to proceed in this manner.”
At Part 8. b of the MAC, the Medical Assessor wrote: “Have all body parts/systems stabilised/reached maximum medical improvement? Yes”.
Ms Eva Lee of DCJ in an email to QBE wrote:
“Morning team, Lesley has made follow ups via email and phone with Mr Singh’s NTD and psychologist hoping for a response with our questionnaire – please see attached, can you please confirm if this is sufficient grounds to request for IMC/IME (Ortho and Psych) to confirm prognosis, work capacity, RTW goal, timeframes, and/or recommendations? Please further note that Mr Singh’s foot surgery has been rescheduled to 27/05/2025 with an estimated recovery timeframe of 2 months – can we please ensure IMC/IME’s and/or surveillance (if approved) are arranged after his post-op recovery. Mr Singh has requested for a carer following his foot surgery, we have advised that RP would need to be engaged to conduct an ADL assessment prior to his scheduled surgery (27/05/2025) to assess the appropriate support/equipment. Can you please kindly approve and refer RP services for an ADL assessment?”
Mr Singh in a supplementary statement dated 27 June 2025 wrote:
“3.     This statement aims to address the recommended surgery to my Right Ankle.
4.     I confirm that Associate Professor Roderick Kuo recommended surgery for my      right ankle.
5.     I have undergone surgery on this ankle previously, but it provided little benefit. Consequently, I do not wish to have further surgery.
6.     The surgery was initially scheduled for 27 April 2025, but it did not proceed on that date and was rescheduled for May 2025.
7.      I subsequently cancelled this rescheduled surgery.
8.      I have no intention of undergoing this surgery now or in the foreseeable future.”
The Appeal Panel accepts that Mr Singh has decided not to go ahead with the surgery with Associate Professor Roderick Kuo. The Appeal Panel is satisfied that Mr Singh is at MMI.
This ground of appeal is not made out.

Section 323 deduction

The appellant submits that due to the failure by Mr Singh to disclose information, and the lack of available information at the time of examination, the Medical Assessor erred in determining there to have been no applicable deductible proportion pursuant to s 323 of the 1998 Act. Further, and in the alternative to the submissions raised above, appellant submits that the Medical Assessor erred in his application of s 323 of the 1998 Act when calculating Mr Singh’s level of WPI arising from his bilateral lower extremity injuries.
In the MAC, the Medical Assessor noted under “Details of any previous or subsequent accidents, injuries or condition, nil reported”.
Under “Summary”, the Medical Assessor wrote:
“I have had the opportunity of reviewing copies of MRI examination reports pertaining to the region of the lumbar spine dated 3.2.22 and 24.1.23. Changes consistent with multilevel degenerative changes/spondylosis have been reported. It is considered that Mr Singh has suffered an aggravation of these previously asymptomatic conditions.
Based upon a review of the radiological investigations and specialist reports, it would be apparent that Mr Singh had developed a condition at the right ankle/hindfoot consistent with a peroneal tendinitis. Surgery has been required.
It would also be apparent that he subsequently developed a calcific Achilles’ tendinitis at the left ankle that had also required surgical intervention.
He subsequently has acquired a chronic pain presentation referable to these regions.”
At Part 8 of the MAC, the Medical Assessor wrote: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No”.
In commenting on the other medical opinions and findings, the Medical Assessor wrote:
“I have had the opportunity of reviewing copies of multiple medical reports prepared by Dr Farhad Shahzad, Consultant Occupational Physician of Sydney. It is evident that variable opinions had been expressed based upon the clinical findings at the time of the respective examinations. Dr Shahzad also appeared to alter his opinion in relation to any degree of deductions that may have been applicable. In his report of 13.11.24, he had deduced that there was a combined whole person impairment of 9% taking into account assessment relating to the lumbar spine, right and left lower extremities and scarring. Respectfully, I consider that the degree of deductions contained in that assessment were excessive and not warranted.”
At Part 11 of the MAC, the Medical Assessor wrote: “It is my opinion that there is nil history of a pre-existing injury or condition that need to be taken into account by way of contributory impairment that would necessitate any deductions”.
Dr Frahan Shahzad, consultant occupational physician, in a report dated 23 February 2023 made no deduction in respect of the lumbar spine and deducted 50% of his assessment of the right ankle for “pre-existing matters”. However, Dr Shahzad did not identify what these pre-existing matters were. In a supplementary report dated 8 May 2023, Dr Shahzad noted that further explanation was required regarding the fact that 50% had been applied for “pre-existing matters” and confirmation was required as to whether s 323 deduction to account for the contribution of underlying degeneration in the lumbar spine is appropriate.
Dr Shahzad wrote:
“Deductable [sic] Portion Right Ankle
With refence to paragraph 1.27 and 1.28 on page 6 of the NSW Guides, the
degree of permanent impairment resulting from pre-existing impairments should
not be included in the final calculation of permanent impairment if those
impairments are not related to the compensable injury. For the injury being
assessed, the deduction is 1/10th of the assessed impairment.
Therefore, Mr Singh has a 7% whole person impairment related to the subject
injury with regard to the right ankle.
….
As noted in previous reports of 1 March 2022, 23 May 2022 and 30 August 2022,
I opined that the worker’s lumbar spine condition represented an aggravation of
constitutional, underlying degeneration.
Deductable [sic] Portion Lumbar Spine
With refence to paragraph 1.27 and 1.28 on page 6 of the NSW Guides, it is my
opinion that there is a 10% deduction in keeping with the contribution of the preexisting injuries on Mr Singh’s whole person impairment resulting in a 4% WPI.”
In a report dated 13 November 2024 Dr Shahzad assessed 5% WPI for the lumbar spine and made no deduction for a pre-existing condition. He assessed 4% WPI of the right ankle and 4% WPI of the left ankle and made a 50% deduction for each ankle. Dr Shahzad did not provide a diagnosis in respect of the pre-existing conditions in the ankles, nor did he identify any prior injury in either ankle.
The various entries in the clinical notes and records of Pacific Medical & Dental Centre Blacktown as at 5 November 2024 referred to by the appellant are as follows:
(a)     on 3 December 2013, Mr Singh was noted to have attended for back pain from the top to lower back, after working privately. Dr Qureshi noted: “muscular” (Appeal Encl. p 233);
(b)     on 28 October 2015, Mr Singh was noted to have attended with multiple issues, including lower back pain after lifting (Appeal Encl. p 229);
(c)     on 24 August 2016, Mr Singh was noted to have attended with pain in the left ankle, tender Achilles, which started after cricket (Appeal Encl. p 228);
(d)     on 16 September 2016, Mr Singh was noted to have presented with a history of pain in the left Achilles tendon for 6 months, citing a possible cricket injury (Appeal Encl. p 227);
(e)     on 10 October 2016, Mr Singh attended Dr Qureshi for review of his left heel pain, noting he had tendonitis (Appeal Encl. p 226);
(f)      on 3 January 2017, Mr Singh was noted to have attended for review of plantar fasciitis of left heel, continuing medication (Appeal Encl. p 225);
(g)     on 5 May 2017, Mr Singh attended for review of back pain, citing stiff muscles. He noted issues after lifting heavy pallets at work (Appeal Encl. p 222);
(h)     on 12 June 2017, Mr Singh attended with a left leg injury. He had swelling. He had hit it with a tow bar (Appeal Encl. p 221);
(i)      on 20 June 2017, Mr Singh attended with pain in the left heel. It was recorded he could not walk some days. He was tender in the Achilles tendon insertion (Appeal Encl. p 220);
(j)      on 22 June 2017, Mr Singh attended for review of Achilles tendonitis. Dr De Silva advised cam boot. Pia Alvarez noted Mr Singh was tender over the AT insertion and unable to do heel raises (Appeal Encl. p 220);
(k)     on 27 June 2017, Mr Singh attended for review. Dr De Silva wrote: ‘now pain is settling’;
(l)      on 29 June 2017, Mr Singh attended for review of his left heel pain. This was still going on and he was stated to have been unable to work. Pia Alvarez noted “reports nil pain when wearing cam boot” (Appeal Encl. p 219);
(m)    on 5 July 2017, Mr Singh was recorded to have been ‘50% better’, tender over the Achilles insertion. He was able to do ‘1 single raise free of pain’, last weeks he had been unable to due to pain. He was advised to only use can boot on busy days (Appeal Encl. p 218), and
(n)     on 30 September 2016, Dr Vikay Vrat Panjrratan reported Mr Singh had presented regarding left ankle pain for six months. Ultrasound was noted to have revealed calcification at the insertion of the Achilles tendon. The Achilles tendon was stated to have been thickened and heterogeneous suggestive of calcific tendinosis. There is also mild retrocalcaneal bursitis. He also complained of pain in the right knee which was the opposite side (Appeal Encl. p 362).
Mr Singh, in his statement dated 20 June 2025, said that he first complained about back pain to Dr Qureshi on 3 December 2013. He said he explained that the pain extended from his lower back to the top of his back and was also accompanied by muscle stiffness. He stated that his medical records indicated that he recovered with rest and pain medication, and it did not impact his ability to work. Mr Singh stated that he consulted Dr Qureshi on
28 October 2015 with complaints about lower back pain and explained to him that this was following lifting heavy at the gym. Mr Singh stated that once again, this pain subsided by itself, and he did not require any form of treatment other than oral analgesia.
Mr Singh stated that on 5 May 2017, Dr Qureshi suggested that physiotherapy for his back pain following lifting heavy pellets at work. Mr Singh stated that he saw Dr Qureshi again on 22 May 2017, as his back pain has persisted and he was referred for an X- ray. Mr Singh stated that the scans did not reveal much about the pain he was experiencing and there were no concerns noted in the report. Mr Singh stated that following 2017, he had no pain in his back.
Mr Singh wrote:
“11. On 12 September 2019, I underwent a full medical assessment prior to starting my role as I referred by my employer. I passed this assessment with no identified medical issues or concerns, as I had no limitations in my range. This clearly demonstrates that I was medically fit at the time of employment and supports the fact that all my complications only began after the injury I sustained.
12.    I was completely fit and healthy prior to my employment with Corrective Services NSW. I did not have any issues with my left ankle, right ankle and back.
13.    Following the assessment, I completed the extensive SOG 10-week training course. During this, I underwent rigorous physical tests which included running, sit-ups and push-ups. It was similar to army training as it also involved gun drills and carrying weapons. I completed all these demanding activities without any injuries, pain or difficulties.
14.    The current lower back pain is distinct from the muscle stiffness I had previously experienced. The current issue is centred around my lumbar spine and is a direct consequence of my right foot injury and subsequent inactivity.”
Section 323 of the 1998 Act provides:
“(1)    In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2)     If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3)     The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4)     The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said:
“29 ...The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 ...That is a matter of fact to be assessed on the evidence led in each case.”
At [38] of Cole, Schmidt said:
“38. What s323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”

In Ryder v Sundance Bakehouse [2015] NSWSC 526Campbell J considered the legislative and authoritative history of s 323. He said at [42]:
“In the present context the critical question is the causation question which, expressed by adapting the terms of the statute is whether a portion of the 15 per cent whole person impairment Ms Ryder suffered as a result of her work injury was due to a pre-existing condition or abnormality i.e. degenerative disc disease. The argument advanced on behalf of Ms Ryder is effectively that the proportion must be capable of assessment in accordance with the WorkCover Guides for s 323(1) to be satisfied. With respect this overlooks the requirement that the section must be read as a whole and in its legislative context. ...
43. I acknowledge that the express words of s 323(1) require that some definite part, even if it is difficult or costly to assess in precise terms, of the impairment has been caused by, in this case, a pre-existing condition. But the interpretation adopted by the Court of Appeal is that the section is engaged if the pre-existing condition, or previous injury where applicable, is a concurrent necessary condition, with the work injury, of the degreeof permanent impairment.”
The Appeal Panel accepts that a s 323 deduction can be made for an asymptomatic condition. The question is whether on the evidence, the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment assessed.
The Appeal Panel also notes that s 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury.
The assessment of a deduction under s 323 must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality.
The Appeal Panel notes that the Medical Assessor considered that the MRI examination reports of the lumbar spine dated 3 February 2022 and 24 January 2023 showed changes consistent with multilevel degenerative changes/spondylosis. The Medical Assessor considered that Mr Singh had suffered an aggravation of these previously asymptomatic conditions.
The clinical notes and records of Pacific Medical & Dental Centre Blacktown contain three entries relating to the lumbar spine. These entries are as follows:
(a)     on 3 December 2013, Mr Singh was noted to have attended for back pain from the top to lower back, after working privately. Dr Qureshi noted: “muscular” (Appeal Encl. p 233);
(b)     on 28 October 2015, Mr Singh was noted to have attended with multiple issues, including lower back pain after lifting (Appeal Encl. p 229), and
(c)     on 5 May 2017, Mr Singh attended for review of back pain, citing stiff muscles. He noted issues after lifting heavy pallets at work (Appeal Encl. p 222).
There appear to be no further entries relating to the lumbar spine in the clinical notes and records before the injury on 16 December 2019.
The Appeal Panel notes that Mr Singh prior to the injury on 16 December 2019 had a pre-employment medical examination which revealed no issues. The Appeal Panel notes that
Mr Singh was also completing a physically demanding training course at the time of his injury.
The Appeal Panel is satisfied that these instances of back pain were simply soft tissue injuries which resolved and did not contribute to the impairment assessed. The Appeal Panel accepts Mr Singh’s evidence that these three complaints were minor, had resolved entirely prior to the 2019 injury, and do not support the making of a deduction.
The Appeal Panel is satisfied that there was no real contribution to the current level of impairment from the pre-existing degenerative change in the lumbar spine.
The appellant submits that a deduction should be made under s 323 of the 1998 Act for pre-existing conditions in the bilateral lower extremities.
The Appeal Panel notes that no prior injury or pre-existing condition was identified as affecting the right lower extremity apart from a reference to the right knee on
30 September 2016. Since the right knee was not assessed, the Appeal Panel do not consider that this reference is relevant to the question of a s 323 deduction.
In term of the left lower extremity, the Appeal Panel accepts that there were a number of references to the left lower extremity in the clinical notes and records of Pacific Medical & Dental Centre Blacktown. The Medical Assessor did not take these records into account in making his assessment. The Appeal Panel considers that the Medical Assessor erred in determining there was no applicable deductible proportion pursuant to s 323 of the 1998 Act in respect of the left lower extremity.
The clinical notes and records of Pacific Medical & Dental Centre Blacktown contain the following entries which refer to the left lower extremity:
(a)    on 24 August 2016, Mr Singh was noted to have attended with pain in the left ankle, tender Achilles, which started after cricket (Appeal Encl. p 228);
(b)    on 16 September 2016, Mr Singh was noted to have presented with a history of pain in the left Achilles tendon for 6 months, citing a possible cricket injury (Appeal Encl. p 227);
(c)    on 10 October 2016, Mr Singh attended Dr Qureshi for review of his left heel pain, noting he had tendonitis (Appeal Encl. p 226);
(d)    on 3 January 2017, Mr Singh was noted to have attended for review of plantar fasciitis of left heel, continuing medication (Appeal Encl. p 225);
(e)    on 12 June 2017, Mr Singh attended with a left leg injury. He had swelling. He had hit it with a tow bar (Appeal Encl. p 221);
(f)    on 20 June 2017, Mr Singh attended with pain in the left heel. It was recorded he could not walk some days. He was tender in the Achilles tendon insertion (Appeal Encl. p 220);
(g)    on 22 June 2017, Mr Singh attended for review of Achilles tendonitis. Dr De Silva advised cam boot. Pia Alvarez noted Mr Singh was tender over the AT insertion and unable to do heel raises (Appeal Encl. p 220);
(h)    on 27 June 2017, Mr Singh attended for review. Dr De Silva wrote: “now pain is settling”;
(i)    on 29 June 2017, Mr Singh attended for review of his left heel pain. This was still going on and he was stated to have been unable to work. Pia Alvarez noted “reports nil pain when wearing cam boot” (Appeal Encl. p 219);
(j)    on 5 July 2017, Mr Singh was recorded to have been ‘50% better’, tender over the Achilles insertion. He was able to do “1 single raise free of pain”, last weeks he had been unable to due to pain. He was advised to only use can boot on busy day. (Appeal Encl. p 218), and
(k)    on 30 September 2016, Dr Vikay Vrat Panjrratan reported Mr Singh had presented regarding left ankle pain for six months. Ultrasound was noted to have revealed calcification at the insertion of the Achilles tendon. The Achilles tendon was stated to have been thickened and heterogeneous suggestive of calcific tendinosis. There is also mild retrocalcaneal bursitis. He also complained of pain in the right knee which was the opposite side. (Appeal Encl. p 362)
The Appeal Panel accepts that Mr Singh made a number of visits to his general practitioner in 2016 and 2017 and an MRI scan of the left ankle was carried out.
Dr Brian Lam, radiologist, in a report of left ankle MRI scan dated 21 June 2017 noted that Mr Singh’s primary symptoms were located at the Achilles insertion. He concluded:
“There is moderate insertional tendinosis of the Achilles tendon without tear. Moderate bony stress response and paratenonitis is present. No evidence of retrocalcaneal bursitis. Proximal Achilles tendon unremarkable.
There is no calcaneal stress fracture. Plantar fascia origin unremarkable. No other bony pathology within the hindfoot is demonstrated.”
The Appeal Panel, however, notes that there were no consultations in relation to the left ankle since 5 July 2017. The Appeal Panel accepts that Mr Singh had Achilles tendonitis in 2016 – 2017 for which he received treatment. The Appeal Panel accept that Mr Singh had a pre-existing condition in his left ankle.
On balance, the Appeal Panel is satisfied that Mr Singh was asymptomatic at time of injury on 16 December 2019. In reaching this view, the Appeal Panel accepts Mt Singh’s evidence that he “completely fit and healthy” prior to his employment with Corrective Services NSW and did not have any issues with his left ankle, right ankle and back.
The Appeal Panel also notes that on 12 September 2019, Mr Singh had a full medical assessment before he commenced his employment with the appellant. Further, Mr Singh then completed the extensive SOG 10-week training course which involved rigorous physical activity.
The Appeal Panel is of the view that this pre-existing condition in the left ankle contributed to the impairment flowing from the subsequent work injury. However, the Appeal Panel considers that the deduction “will be difficult or costly to determine” because of the absence of further medical evidence and a deduction should be made under s 323(2) of the 1998 Act of one tenth. The Appeal Panel is satisfied that a one tenth deduction is not at odds with the evidence. The Appeal Panel makes no deduction under s 323 of the 1998 Act in regard to the lumbar spine or right ankle.
The Medical Assessor assessed 4% WPI for the left lower extremity. Therefore, a one tenth deduction is 0.4% and the assessment is 3.6% which is rounded up to 4%. It follows that there is no actual change to the assessment of impairment made by the Medical Assessor.
In summary, the assessment of total WPI by the Appeal Panel was the same as that made by the Medical Assessor. In those circumstances the Appeal Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
For these reasons, the Appeal Panel has determined that the MAC issued on 9 May 2025 should be confirmed.

[2025] NSWPICMP 660

1 September 2025