Cutajar v Figtree High School P&C Association - [2025] NSWPICMP 490

DETERMINATION OF APPEAL PANEL
CITATION:	Cutajar v Figtree High School P&C Association [2025] NSWPICMP 490
APPELLANT:	Margaret Cutajar
RESPONDENT:	Figtree High School P&C Association
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Dr Margaret Gibson
MEDICAL ASSESSOR:	Dr Roger Pillemer
DATE OF DECISION:	8 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of 16% whole person impairment (WPI) for lumbar spine injury and 0% WPI for scarring; issue whether Medical Assessor (MA) erred in assessing 0% WPI for scarring under Table 14.1 of SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment; issue whether deduction of one tenth for pre-existing lumbar spine condition under section 323 was justified; Appeal Panel held best fit for scarring was 0% WPI; MA provided adequate reasons for deduction under section 323; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 March 2025 Margaret Cutajar (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
11 February 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the 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

The appellant suffered an injury on 3 December 2021 in her employment as a canteen supervisor with Figtree High School P & C Association (the respondent).
The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 19 November 2024 in which she claimed lump sum compensation in respect the injury to her lumbar spine, left lower extremity and scarring.
The matter was referred to Dr Tommasino Mastroianni, Medical Assessor, for assessment of whole person impairment (WPI) of the lumbar spine and scarring/TEMSKI as a result of the injury on 3 December 2021.
The Medical Assessor examined the appellant on 5 February 2025 and assessed 16% WPI…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPICMP 490
Decision Date: 8 July 2025

CaseChat Overview and Summary

In the matter of Cutajar versus Figtree High School P&C Association, the dispute arose from a worker's compensation claim initiated by the appellant, Mr Cutajar, against the respondent, the P&C Association. Mr Cutajar sought review of a Medical Assessment Certificate (MAC) issued by the respondent's insurer. The MAC assessed Mr Cutajar's lumbar spine injury as resulting in 16% whole person impairment (WPI) and 0% WPI for scarring. The dispute centred on whether the Medical Assessor (MA) had erred in assessing 0% WPI for scarring under Table 14.1 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, as well as the justification for deducting one tenth for the pre-existing lumbar spine condition under section 323 of the Act.

The court was required to decide whether the MA had correctly assessed 0% WPI for scarring and if the deduction for the pre-existing condition was justified. The appellant argued that the MA's assessment of 0% WPI for scarring was incorrect and that the deduction under section 323 was unjustifiable. The respondent contended that the MA's assessment was correct and that the deduction was properly applied. The Appeal Panel was tasked with determining the accuracy of the MA's assessment and the appropriateness of the deduction.

The court found that the MA's assessment of 0% WPI for scarring was consistent with the best fit under Table 14.1 of the SIRA Guidelines. The court also held that the MA had provided adequate reasons for the deduction under section 323. Consequently, the Appeal Panel confirmed the MAC, finding no error in the MA's assessment or the application of section 323. The court held that the MAC remained valid and the respondent's insurer was not required to make any further compensation payments to the appellant.

The final orders of the court confirmed the MAC as assessed by the MA, with 16% WPI for the lumbar spine injury and 0% WPI for scarring. The deduction of one tenth for the pre-existing lumbar spine condition under section 323 was upheld. The respondent's insurer was not required to make any additional payments to the appellant.

Orders