Country Rugby League of NSW v Boland
[2025] NSWPICMP 823
•23 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Country Rugby League of NSW v Boland [2025] NSWPICMP 823 |
| APPELLANT: | Country Rugby League of NSW |
| RESPONDENT: | Graham Boland |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Andrew Porteous |
| DATE OF DECISION: | 23 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); the appellant submits that the Medical Assessor erred in two respects; firstly by making an assessment of the worker’s right hip when the terms of the referral noted the assessment was only in regard to the right knee; secondly by failing to make a deduction pursuant to section 323; Held – Appeal Panel agreed right hip not part of the referral; clear evidence supporting a section 323 deduction; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 July 2025 Country Rugby League of NSW (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 July 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 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 the worker should not undergo a further medical examination because although one was requested, the Panel considers that we have sufficient evidence before us to determine this appeal for reasons we will set out below.
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.
SUBMISSIONS
Both parties 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 erred in two respects, firstly, by making an assessment of the worker’s right hip when the terms of the referral noted the assessment was only in regard to the right knee, and secondly, by failing to make a deduction pursuant to s 323 of the 1998 Act.
In reply, the respondent makes no submissions regarding the right hip assessment but submits that no errors were made in respect of the assessment of the right knee.
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 respondent was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the right lower extremity, resulting from a date of injury of
29 March 2006.The Medical Assessor obtained the following history:
“He gives a history that in 2000 he was at work loading equipment in the back of a car when he twisted his right knee. This became swollen and painful, and he was advised to undertake conservative management. His knee settled.
In 2006 he undertook a period of refereeing in one day, which he estimates about five hours of running. After this, he developed a swollen, sore right knee. Again, he was persuaded to treat conservatively, although one option was an osteotomy.
He felt that the gait from this right knee contributed to him developing bilateral hip problems, such that he had his left hip replaced in 2009 and right hip in 2015. He stopped work in 2020. Work had been modified as he got older and to accommodate his ongoing musculoskeletal problems. The right knee was replaced in 2021.”
The Medical Assessor continued:
“Today, he takes occasional Panadol Osteo. He continues to exercise.
He feels that his hips give him more problems than his knee.
At home, he feels that he can mow the lawn. He does have problems with discomfort kneeling. He assists in the housework, particularly vacuuming.”
Findings on physical examination were reported as follows:
“He is 174cm tall and 80kg in weight. He looks in good physical shape from continuing his exercise habits.
He has mild occasional pain. He uses stair rails, particularly going down, as he feels some instability. He walks on the flat four kilometres. He has flexion to 110°. The knee joints are stable to AP and lateral stressing.
The hips are in good range. He fully straightens and has good angles on his knee.
He has a barely noticeable anterior scar on his right knee. There is minor contour and minor colour differentiation.
He has scars from both hip operations. On the right, the scar is anterior, on the left, lateral.
I measured the circumference of the calves on both sides, and they were equal at 30cm.”
The Medical Assessor added:
“There are extensive medical records. Dr Pinczewski (2006) notes cruciate ligament injury problems. Drs Shatwell (2008) and Dr Hasn (2015) note Left then Right developing hip arthritis.
10/12/20 Dr C Harrington IME (pre op) “the employment has substantially contributed to the acceleration and deterioration of arthritis in his knee”. He does not support the hip osteoarthritis as work related
Dr Powell (14/11/08) IME notes left hip issues and feels the right knee problems work related. 5/7/21 & 20/8/24. Dr Powell has rated the right TKR outcomes as “excellent”. He has deducted 50% for osteoarthritis. He does not support the hip osteoarthritis as work related.
Dr Stephenson IME rates TKR as fair with no deductions. He does not support the hip osteoarthritis as work related.”
In summarising the injuries and diagnoses, the Medical Assessor said:
“His initial injury, and work exposures have predisposed him to right total knee replacement.
He [has] advanced osteoarthritis noted in 2008 in reports on the left hip while the knee gait by history was not significant. Subsequently he has developed symptoms in the right and both were replaced in 2009 and 2015.
The right hip osteoarthritis has been aggravated by gait, given the time between injury 2006, developing knee restrictions with gait implications and the replacements of right hip in 2015, though the main pathology is bilateral hip osteoarthritis.”
The Medical Assessor assessed 17% WPI in respect of the right lower extremity, with no deduction for any pre-existing condition.
The Medical Assessor explained his calculations as follows:
“Total knee replacements are rated with reference to T17-33 p 547. He has a good outcome, as per 17.37 p 549 as set out below. This is 37% LEI. The Right hip is also rated with reference to T17-33 p 547. Outcome is good, rating 37% LEI.”
He then said:
“The measured outcomes have improved between IME’s and this accounts in differences of opinion. I largely agree with them. A further difference is deduction for the osteoarthritis. The two IME’s support the notion that both the total hip replacements are not consequential. I disagree re right hip.”
He then said:
“In my opinion the worker suffers from the following relevant previous injuries, preexisting conditions or abnormalities:
He has evidence of osteoarthritis of both hips. This would have been present from before the beginning of the knee problems and is an independent constitutional issue. The left hip problem was reported close to the beginning of 2006 injury and replaced in 2009, suggesting all OA pathology related.
The right hip had a 9 year gap in which gait would have added to the OA constitutional deterioration.
He has evidence of OA in the knees. However, no evidence that in the left knee it produced any loss of function.
In my opinion the deductible proportion for the right hip is 3/4th for the following reasons.
The osteoarthritis was the substantial cause of the hip replacement, this is a progressive condition, and the left hip replacement has also contributed to changes to gait adding to the natural course of deterioration.
There is no deductible proportion for the right knee.
3/4th deduction of the right hip reduces the impairment to 9% LEI. This is combined with the 37% LEI of the right knee to give total 43% LEI, converting to 17% WPI.”
The appellant’s submissions:
(a) the Medical Assessor acted outside of his jurisdiction in assessing permanent impairment arising out of the worker's right hip. The worker has only brought a claim in respect of his right knee, and liability has only been accepted in relation to the worker's right knee;
(b) the Medical Assessor took an incorrect history of injury with respect to the worker's claimed right knee injury. Specifically, he failed to record that the worker previously suffered an injury to his right knee in 1984 at which time he underwent a meniscectomy, and
(c) the Medical Assessor failed to have regard to the above history when providing his assessment of permanent impairment in respect of the worker's right knee, and when considering whether a deduction was applicable in respect of his assessment of permanent impairment.
As stated earlier, the respondent contends that no errors were made.
Discussion
The Panel agreed with the appellant’s submissions regarding the right hip.
In the absence of any submissions to the contrary by the respondent, we agree that the Medical Assessor erred in making an assessment with respect to the right hip.
In addition, we must also point out an error in the Medical Assessor’s calculations.
The Medical Assessor said: “Total knee replacements are rated with reference to T17-33 p 547. He has a good outcome, as per 17.37 p 549. This is 37% LEI converting to 17% WPI.”
This is not quite correct, as the Medical Assessor reached 17% WPI by combining the impairment for the right hip (9% lower extremity impairment (LEI)) with the impairment for the right knee (37% LEI) giving a total of 43% LEI which equates with 17% WPI. Leaving out the impairment for the hip (which must be done) we are left with 37% LEI which equates with 15% WPI.
As regards the right knee, we again agree with the thrust of the appellant’s submissions for reasons that follow.
By way of explanation for his absence of any s 323 deduction for the right knee, the Medical Assessor notes that with regard to “Details of any previous or subsequent accidents, injuries or condition”, he has noted “none significant.”
He also notes the history of Mr Boland having twisted his right knee in 2000 and that he was advised conservative treatment and that his knee settled.
In 2006 he refereed for one day, running for some five hours and after this he developed a swollen right knee. Again he was advised to be treated conservatively although surgery was offered to him. The Medical Assessor notes that a right knee replacement was carried out in 2021.
We also agree that the Medical Assessor took an incorrect history with regard to the previous problems with the right knee, noting that he failed to record the injury in 1984 at which time he underwent a meniscectomy.
The records of Dr Pinczewski (orthopaedic surgeon) are of particular significance. He examined Mr Boland on 21 April 2006.
He notes the following:
· he last saw Mr Boland in March 2000;
· at that time he noted a posterior cruciate deficient right knee that had previously undergone a meniscectomy in 1984;
· he noted that Mr Boland’s symptoms in his knee ‘…had progressed to the point now where it swells intermittently and without provocation’, and
· he noted the varus deformity on examination as well as the posterior cruciate ligament deficient right knee.
Dr Pinczewski makes no mention of any injury to the right knee on 29 March 2006, three weeks prior to his consultation and as noted he states that symptoms came on “without provocation.”
Most importantly he noted both on examination and on X-ray that there was “bone-on-bone osteoarthritis in the medial compartment…”
That is, end stage Grade IV osteoarthritis of the right knee.
As the Medical Assessor noted, Mr Boland was offered surgery by Dr Pinczewski who felt that “…Graham…has gone as far as he is going to go in this knee without an osteotomy.”
In short, there is a long history of problems with the right knee which in April 2006 showed end stage osteoarthritis which Dr Pinczewski indicated required surgery. There is no history in Dr Pinczewski’s report of any injury or incident that aggravated the problem, but we would certainly accept that running for five hours on an end stage osteoarthritic knee would bring on symptoms.
The fact that surgery was only carried out some 15 years later would indicate that any activity, injury or incident that occurred on 29 March 2006 would simply have been an aggravation of an underlying condition and that obviously, noting the time until the knee replacement was carried out, that particular aggravation would long since have settled down.
His need for the total knee replacement was, in the main, on the basis of his original injury in 1984 which in addition to requiring a partial meniscectomy, also tore his posterior cruciate ligament.
When we look at the reports of the other specialists who examined Mr Boland, Dr Powell (orthopaedic surgeon) who originally examined him on 14 October 2008 obtained a history that “Mr Boland indicated that the problems with his right knee commenced back in 2000.”
Dr Powell was clearly not aware of Dr Pinczewski’s opinion noting that “no correspondence was available from Dr Pinczewski.”
Dr B J Hasn (orthopaedic surgeon) in his report of 22 April 2015 notes the problems with the right knee which “…has been troubling him for many years” and notes the surf ski injury in 1984 with the arthroscopy carried out by Dr Michael Johnson. He notes that the knee ‘fully recovered from this until 2000 when he had a twisting injury to his knee.”
This is again an incorrect history as indicated by the report of Dr Pinczewski.
Dr Christopher Harrington’s report of 7 February 2017 notes that Mr Boland had an injury to his right knee in 2000 whilst loading a vehicle and his knee twisted. He notes a gradual deterioration of the right knee with a flare-up in 2006. He does note the original injury in 1984 and indicates that he has read the report of Dr Pinczewski of 21 April 2006 noting bone-on-bone on X-ray. In his opinion the surgery was indicated and the question is “…whether the deterioration is attributed to the work injury of 2000 and employment.”
He said there was “a small contributing factor from the original injury in 1984,” noting that the x-ray in 2000 showed “early joint narrowing…” and added that “his employment was a substantial contributing factor for accelerated joint narrowing and associated changes necessitating a right total knee replacement.”
In Dr Harrington’s report of 10 December 2020, he noted the conditions of Mr Boland’s employment as well as the incidents in 2000 and 2006 were a substantial contributing factor “to the current presentation of accelerated osteoarthritis in the right knee.”
He then goes on to note “the physicality of his employment, up until 2011, has pushed his knee to the stage where he now presents with end stage arthritis.”
Given Dr Harrington’s opinion, we simply note in passing that it is curious that the respondent elected to proceed with a claim for WPI based on the 2006 injury only.
This is particularly so given that Dr Pinczewski in 2006 indicated that Mr Boland presented with end stage arthritis, that is bone-on-bone, in the medial compartment.
Mr Boland was also seen by Dr Brian Stephenson (orthopaedic surgeon) on 15 December 2022 after he had had his total knee replacement carried out on 27 January 2021.
Dr Stephenson points out that even though he had had injuries in 2000 and 2006, “he continued to undertake physically arduous duties after 2006 which he believes contributed to his right knee problems.”
Dr Stephenson suggested Mr Boland had a fair result following his knee replacement with 20% WPI, and added “there is no deductible proportion in the absence of previous injury, condition or abnormality.”
Once again then, the previous history has not been recognised and recorded.
We accept the Medical Assessor’s opinion that Mr Boland had had a good result following his total knee replacement which equated with 37% lower extremity impairment and 15% WPI.
Mr Boland’s problem arose from his original injury in 1984 when in addition to requiring a meniscectomy, he also tore his posterior cruciate ligament.
When seen by Dr Pinczewski in April 2006 he already had advanced medial compartment osteoarthritis, Grade IV, with bone-on-bone contact.
Undoubtedly the nature and conditions of Mr Boland’s employment would have aggravated this underlying condition, but the Medical Assessor was simply asked to make an assessment in respect of the injury in May 2006.
Having carefully considered the totality of the evidence, we have concluded that a substantial deduction is warranted, which we consider ought be ½.
This then means that deducting ½ from 15% WPI is 7.5%, rounded to 8% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 July 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: | W2434/25 |
Applicant: | Graham Boland |
Respondent: | Country Rugby League of NSW |
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 Peter Honeyman and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body part | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Right lower extremity (knee) | 29 March 2006 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 15% | ½ | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
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