Hoger v LD Engineering Services Pty Ltd - [2025] NSWPICMP 840

DETERMINATION OF APPEAL PANEL
CITATION:	Hoger v LD Engineering Services Pty Ltd [2025] NSWPICMP 840
APPELLANT:	Clayton Hoger
RESPONDENT:	LD Engineering Services Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	30 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of the cervical spine, and left upper extremity; Medical Assessor deducted one-tenth pursuant to section 323 from the impairment assessed in respect of the cervical spine and one-third pursuant to section 323 from the impairment assessed in respect of the left upper extremity; radiological investigations demonstrated significant degenerative change in the cervical spine and in the left shoulder; Appeal Panel found no error in the deductions made pursuant to section 323 despite the appellant being asymptomatic in those body parts before the work injury; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 30 July 2025 Clayton Hoger lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 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 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

The appellant sustained an injury deemed to have occurred on 9 November 2022 in his employment as a fitter and turner with L D Engineering Services Pty Ltd (the respondent).
The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 16 May 2025 in which he claimed lump sum compensation in respect the injury to his cervical spine and left upper extremity.
The matter was referred to Dr Robert Kuru, Medical Assessor, for assessment of whole person impairment (WPI) of the cervical spine and left upper extremity as a result of the…

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.

Continue reading Hoger v LD Engineering Services Pty Ltd

Details

AGLC: Hoger v LD Engineering Services Pty Ltd [2025] NSWPICMP 840
Case: [2025] NSWPICMP 840
Decision Date: 30 October 2025

CaseChat Overview and Summary

The appellant, Hoger, lodged an appeal against the respondent, LD Engineering Services Pty Ltd, regarding the assessment of his injuries under the Workplace Injury Management and Workers Compensation Act 1998. The dispute centred on the validity of a Medical Assessment Certificate (MAC) issued by the respondent's insurer, which assessed the appellant's impairment in his cervical spine and left upper extremity following a workplace injury. The appellant contested the deductions made by the Medical Assessor, arguing they were erroneous as he was asymptomatic in those body parts before the incident.

The court was tasked with determining whether the deductions made by the Medical Assessor from the impairment assessed in respect of the cervical spine and left upper extremity were justified. Specifically, the court had to consider if the Medical Assessor correctly applied section 323 of the Act in reducing the impairment assessment due to the presence of pre-existing degenerative changes. Additionally, the court needed to evaluate whether the absence of symptoms in the affected areas prior to the injury should have precluded the deductions under section 323.

The court held that the Appeal Panel's decision to confirm the MAC was correct. The court found that the Medical Assessor had appropriately considered the pre-existing degenerative changes in the radiological investigations and had reasonably deducted a portion of the impairment assessment. The appellant's asymptomatic status before the work injury did not negate the existence of degenerative changes, which could reasonably impact the assessment of the impairment post-injury. The court concluded that the deductions made were within the bounds of the Act, and thus, the MAC was confirmed.

No further orders were made beyond the confirmation of the MAC.

Orders