Hoger v LD Engineering Services Pty Ltd
[2025] NSWPICMP 840
•30 October 2025
| 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th 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 injury deemed to have occurred on 9 November 2022.
The Medical Assessor examined the appellant on 24 June 2025 and assessed 16% WPI of the cervical spine and 8% WPI of the left upper extremity (shoulder) and 1% for scarring (TEMSKI). The Medical Assessor deducted one tenth under s 323 from the assessment of the cervical spine which resulted in an assessment of 14% WPI of the cervical spine. The Medical Assessor deducted one third under s 323 from the assessment of the left shoulder which resulted in an assessment 5% WPI in respect of the left upper extremity (shoulder). The total WPI assessed was therefore 19% deemed to have occurred on 9 November 2022.
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 appellant to undergo a further medical examination because there was sufficient information upon which to make a determination.
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 - the Medical Assessor erred in applying a one tenth s 323 deduction of the 1998 Act when the medical evidence before him was that the appellant’s degenerative changes in the cervical spine were asymptomatic at the time of his injury;
(b) there were no complaints of neck or cervical spine pains or restriction of movement prior to the deemed date of injury, 9 November 2022. Moreover, there were no radiological investigations of the cervical spine prior to the deemed dated of injury;
(c) prior to the deemed date of injury, the appellant was working a heavy and repetitive manual job as a fitter and turner without neck or cervical spine complaints;
(d) the Medical Assessor made a 10% s 323 deduction purely as there was evidence of cervical spondylosis on the scans;
(e) evidence of mere degenerative changes is not enough to warrant a deduction under s 323. See Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole) and Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder);
(f) there was no medical or lay evidence before the Medical Assessor to warrant any deduction under s 323;
(g) the clinical records of Dr Wang (general practitioner (GP)) demonstrate that the appellant’s neck and cervical spine were asymptomatic for over 13 years from June 2009 to November 2022;
(h) ground 2 - the Medical Assessor erred in applying a one third s 323 deduction when the medical evidence before him was that the appellant’s degenerative changes in the left shoulder were asymptomatic at the time of his injury;
(i) there were no complaints of left shoulder pains or restriction of movement prior to the deemed date of injury, 9 November 2022. Moreover, there were no radiological investigations of the left shoulder prior to the deemed dated of injury;
(j) the Medical Assessor made a one third 323 deduction purely “as there was evidence of cervical spondylosis on the scans”;
(k) the Medical Assessor failed to consider the left shoulder was asymptomatic for at least 13 years prior to the deemed date of injury as demonstrated by Dr Wang’s clinical records;
(l) contrary to the referral, the Medical Assessor found there was no evidence of acute injury to the left shoulder;
(m) the one third deduction under s 323 where there is no evidence “that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury” therefore constitutes a demonstrable error;
(n) the MAC should be revoked for the reasons outlined above, and
(o) the MAC should be modified to make no s 323 deductions to the Medical Assessor’s WPI assessments of the cervical spine and left shoulder. Alternatively, the appellant seeks a re-examination by a member of the Medical Appeal Panel
The respondent’s submissions include the following:
(a) ground 1: one-tenth deduction to the WPI at the cervical spine. The appellant submits that there were no complaints of neck or cervical pain prior to the date of injury, and no radiological investigations of the cervical spine prior to the date. However, the Certificate of Capacity dated 12 December 2012 (page 33 of the Reply), which was prior to the subject injury, records that he “struck head on low beam” on this date and had “cervical facet joint impingement”;
(b) in his report dated 18 March 2025 (page 25 of the Reply) Dr Peter Moloney advised that he considered a one-tenth deduction was applicable to account for the prior injury on 12 December 2012;
(c) having regard to the above, the available evidence indicates that the appellant’s cervical spine was not asymptomatic prior to the subject injury as is alleged by the appellant;
(d) MRI scan taken of the appellant’s cervical spine on 27 February 2023 (page 42 of the ARD) demonstrated “Severely narrowed degenerative discs at C5/6 and C6/7”;
(e) the Medical Assessor correctly applied the rationale outlined in Ryder when applying a one-tenth deduction to his assessment of WPI to the cervical spine. In this regard, he explained that in the absence of the pre-existing cervical spondylosis, the appellant’s cervical foraminotomy would not have been indicated. He went on to state that the impairment at the cervical spine was assessable based on the surgery the appellant had undergone. Therefore, the pre-existing condition caused the impairment at the cervical spine to be greater than had the appellant not had a pre-existing degenerative condition;
(f) the Medical Assessor did not err in applying a one-tenth deduction to his assessment of WPI to the cervical spine. The Medical Assessor’s assessment of the deductible portion was based on correct criteria and was consistent with the evidence available to him;
(g) ground 2 - one-third deduction to the WPI at the left shoulder. Regarding the appellant’s submission that the left shoulder was asymptomatic prior to the subject injury, an MRI of the appellant’s left shoulder taken on 12 December 2022 (page 39 of the ARD) found “severe AC joint osteoarthritis”. A CT of the appellant’s left shoulder taken on 8 March 2024 (page 45 of the ARD) demonstrated “moderate degree OA at the glenohumeral joint, moderate to marked degree OA at the AC joint”;
(h) Dr Donald Osborne, treating orthopaedic surgeon, reported on 18 January 2024 (page 33 of the ARD) that the appellant had “significant pathology in the form of osteoarthritis causing symptoms in his shoulder”;
(i) in his report dated 4 September 2024 (page 20 of the ARD), Dr Michael J Edger accepted that a deduction was applicable to the assessment of WPI at the left shoulder “due to likely preexisting shoulder osteoarthritis”. He applied a one-tenth deduction but did not comment on whether this was at odds with the available evidence;
(j) the Medical Assessor correctly applied the rationale outlined in Ryder when applying a one-third deduction to his assessment of WPI to the left shoulder. He considered the appellant’s pain ongoing pain and restriction of movement was due to these pre-existing conditions, as opposed to the injury on
9 November 2022. Accordingly, he considered a one-tenth deduction was at odds with the available evidence, and(k) having regard to the above, the Medical Assessor did not err in applying a one-third deduction to his assessment of WPI at the left shoulder. The Medical Assessor’s assessment of the deductible portion was based on correct criteria and was consistent with the evidence available to him.
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 reviewed the MAC and the evidence in this matter.
Section 323 deductions
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%).
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.
The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
Clause 1.27 of the Guidelines provides:
“In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment unless that is at odds with the available evidence.”
In Cole Justice Schmidt held at [29-30]:
“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 thededuction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.”
Her Honour continued at [31]:
“The reason for this statutory approach can readily be seen…an earlier injury which was asymptomatic, may or may not contribute to the impairment which results from a second injury. That is a matter of fact to be assessed on the evidence led in each case.”
Her Honour held at [34]:
“Section 323 requires that a conclusion be reached as to whether or not any proportion of permanent impairment assessed resulted from an earlier injury, pre-existing condition or abnormality. In a case such as this, that conclusion must be reached on the evidence led as to the actual consequences of the earlier and later injuries, unless the assumption provided in s 323(2) applies.”
The above was further affirmed in Ryder, whereby at [32], Campbell J stated:
“But it is necessary that the pre-existing condition was a contributing factor causing the loss. And, of course, it is necessary that there was a pre-existing condition.”
Further, at [40], Campbell J stated:
“In Smart (at [33]) Giles JA emphasised that the questions of whether there is a pre-existing condition, and whether it is a contributing factor to the post-injury permanent impairment, are questions of fact. In Cole Schmidt J emphasised that it is inappropriate to assume that if a pre-existing condition, or injury, is made out on the evidence then it must contribute to the impairment ([28-30]).”
At [45] Campbell J set out what was necessary to determine whether there was to be a deduction. He said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the preexisting abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of
impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
Basten JA in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 referred to the approach adopted by the Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]- [32] and, more recently, by Schmidt J in Cole. His Honour said:
“The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury.”
The Appeal Panel accepts that s 323 of the 1998 Act requires that a deduction be made “for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality” even though the pre-existing condition had been asymptomatic prior to the injury.
Ground 1: One-tenth deduction to the WPI at the cervical spine
The appellant submits that the Medical Assessor erred in applying a 10% s 323 deduction when the medical evidence before him was that the appellant’s degenerative changes in the cervical spine were asymptomatic at the time of his injury.
As noted above it does not necessarily follow that if the degenerative changes in the cervical spine were asymptomatic at the time of his injury, there would be no deduction made “for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality”. A deduction is to be made for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality.
At page 7 of the MAC, the Medical Assessor reports that he considers the appellant suffers from pre-existing cervical spondylosis. He wrote:
“Injury to the cervical spine represents an aggravation of pre-existing constitutional cervical spondylosis. In the absence of this pre-existing condition, cervical foraminotomy would not have been indicated. Impairment in the cervical spine is now assessable on the basis of Mr Hoger having had surgery rather than on the basis of him having sustained an acute injury.”
The Medical Assessor concluded that the extent of the deduction was difficult or costly to determine so in applying s 323(2) of the 1998 Act, assessed the deductible proportion as one-tenth.
The report of the MRI scan taken of the appellant’s cervical spine on 27 February 2023 by
Dr Amanda Woodward, radiologist, (page 42 of the ARD) demonstrated:“Severely narrowed degenerative discs at C5/6 and C6/7”. Uncovertebral joint osteophytes project into the neural foramina at these levels. There is significant foraminal stenosis and nerve root compression on the right at the C5/6 level with compression of exiting right C6 nerve root. Minor mass effect on the exiting left nerve root.”
In a report dated 4 September 2024, Dr Micheal Edgar, consultant neurosurgeon, wrote:
“There is no history of any pre-existing cervical spine or left upper limb pain, weakness, or injury, prior to November 2022, although bilateral hand and feet pins and needles was noted earlier in the year.
…
Therefore, for the cervical spine, the whole person impairment is reached by combining (using AMA5 combined values chart, page 604) 18% with 3% to reach 20%. Accepting that there were no symptoms of cervical spine pain or left upper limb C6 radiculopathy prior to the injury, I do not consider that any deduction is required for pre-existing conditions.”
Dr Peter Moloney, consultant neurosurgeon in a report dated 20 January 2025, wrote:
“On the basis of the history available to me, there were no prior or subsequent injuries.”
Dr Moloney was of the view that the applicant had reached maximum medical improvement (MMI) in respect of the cervical spine and assessed the applicant as DRE cervical category III with a baseline of 15%, added 2% WPI for ADL and a further 3% WPI for ongoing radiculopathy. Dr Moloney wrote: “He has no past history of spinal complaint and therefore I do not believe that there is a deductible proportion to be applied.”
In a supplementary report dated 18 March 2025, Dr Moloney noted that the applicant has sustained an injury to his head and neck at work on 12 December 2012. Dr Moloney noted that the applicant had investigations following the injury and was referred to doctors.
Dr Moloney considered that a deduction of one tenth for the pre-existing injury was appropriate.The Appeal Panel accepts that there was evidence of an earlier injury on 12 December 2012 to the appellant’s neck and head. In a WorkCover NSW Medical Certificate dated
12 December 2012, Dr Matthew McDonald noted that the appellant had struck his head on low beams and made a diagnosis of cervical facet joint impingement. The Management Plan was “x -ray, analgesia” and he noted that the appellant was fit for suitable duties, normal hours.The Appeal Panel notes that it appears that there were no other complaints made by the appellant to his GPs after that incident on 12 December 2012 until the subject work injury.
The Appeal Panel accepts as did the Medical Assessor that the appellant was asymptomatic in terms of his cervical spine at the time of the subject work injury. The Medical Assessor made the one tenth deduction pursuant to s 323 on the basis that the appellant had pre-existing constitutional cervical spondylosis. The MRI scan on 27 February 2023, some two and a half months after the injury on 9 November 2022, showed severely narrowed degenerative discs at C5/6 and C6/7 and significant foraminal stenosis and nerve root compression on the right at the C5/6 level. The degree of degeneration was clearly longstanding.
The Appeal Panel rejects the appellant’s submission that the Medical Assessor erred in applying a one tenth s 323 deduction when the medical evidence before him was that the appellant’s degenerative changes in the cervical spine were asymptomatic at the time of his injury. The radiological investigations before the Medical Assessor demonstrated long term degenerative change and the Appeal Panel agrees with the Medical Assessor that a proportion of the impairment assessed was due to the pre-existing degenerative changes.
The Medical Assessor made a deduction of one tenth as he concluded that the extent of the deduction was difficult or costly to determine applying s 323(2) of the 1998 Act. The Appeal Panel finds no error in this approach.
This ground of appeal is not made out.
Ground 2: One-third deduction to the WPI at the left upper extremity (shoulder)
The appellant submits that the Medical Assessor erred in applying a one third s 323 deduction when the medical evidence before him was that the appellant’s degenerative changes in the left shoulder were asymptomatic at the time of his injury.
At page 7 of the MAC, the Medical Assessor reports that he considers the appellant suffers from pre-existing osteoarthritis at the left shoulder. He wrote:
“Imaging on the left shoulder demonstrates significant pre-existing acromioclavicular and glenohumeral joint osteoarthritis. Ongoing pain and impairment in the shoulder is on the basis of pre-existing osteoarthritis rather than acute structural injury to the shoulder.”
The Medical Assessor explained his reasoning for applying a one-third deduction as follows:
“Left upper extremity (shoulder): Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is one third for the following reasons:
(i) As noted above, imaging has demonstrated a pre-existing constitutional osteoarthritis of the glenohumeral and acromioclavicular joints. Imaging has not demonstrated acute injury to the shoulder on the date of injury. Ongoing pain and restriction of movement in the shoulder and ultimately the recommendation for any surgical treatment is on the basis of addressing pre-existing glenohumeral osteoarthritis and not the effects of acute injury.”
In his statement dated 30 April 2025 the applicant stated that prior to his employment with the respondent he did not suffer from any pain or restrictions in his neck or left shoulder.
Dr Donald Osbourne, treating orthopaedic surgeon, in a report dated 14 March 2023 noted:
“His MRI scan shows severe glenohumeral osteoarthritis primarily manifested in the glenoid. There is cystic changes and bone marrow oedematous changes with grade 4 chondral loss. I note the report suggests partial tear of the supraspinatus but to my eye the supraspinatus tendon is unremarkable. There is also degenerative AC joint arthritis.
The MRI scan of his contralateral right shoulder shows bone marrow changes in his posterior glenoid.”
Dr Osbourne in a report dated 18 January 2024 wrote:
“He has had surgery with Dr Spitaller in August. Unfortunately this has not helped his shoulder symptoms in any way. I think this does confirm that he has significant pathology in the form of osteoarthritis causing symptoms in his shoulder.”
In a report dated 4 September 2024, Dr Micheal Edgar, consultant neurosurgeon, wrote:
:There is no history of any pre-existing cervical spine or left upper limb pain, weakness, or injury, prior to November 2022, although bilateral hand and feet pins and needles was noted earlier in the year.
…
Left shoulder - These impairments are added to result in 15% upper extremity impairment, and this is converted to 9% whole person impairment using table 16.3, page 439. Due to the likely pre-existing shoulder osteoarthritis, I have deduced 10% for pre-existing conditions, resulting in an impairment of the left upper extremity (shoulder) of 8%.”
Dr Peter Moloney, consultant neurosurgeon in a report dated 20 January 2025, wrote:
“On the basis of the history available to me, there were no prior or subsequent injuries.
Prior to the injury, he had severe arthritis changes in the shoulder as detailed by Dr Osman and these changes have been aggravated and possibly accelerated as a result of the nature of the work that he was carrying out on 09 November 2022.”
Dr Moloney believed that further, more aggressive treatment to the shoulder “may well improve the situation to the point of making a significant difference to his whole person impairment.” He noted that there had been a change in the left shoulder condition since he saw Dr Edgar and a deterioration in his ability to move the shoulder. Dr Moloney considered that with further treatment there could be an improvement in shoulder movements.
The appellant submits that the Medical Assessor erred in applying a one third s 323 deduction when the medical evidence before him was that the appellant’s degenerative changes in the left shoulder were asymptomatic at the time of his injury. The Appeal Panel accepts that there were no complaints of left shoulder pains, restriction of movement or radiological investigations prior to the deemed date of injury, that is, 9 November 2022.
However, as noted above, it does not necessarily follow that if the degenerative changes were asymptomatic at the time of his injury, there would be no deduction made for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition. A deduction is to be made for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality.
The appellant submits (B 3, page 4 of the appellant’s submissions) that the Medical Assessor made a one third 323 deduction purely “as there was evidence of cervical spondylosis on the scans”. The Appeal Panel rejects that submission as the one third deduction in respect of the left shoulder was clearly made on the basis that imaging demonstrated a pre-existing constitutional osteoarthritis of the glenohumeral and acromioclavicular joints. In the view of the Appeal Panel, the Medical Assessor considered that ongoing pain and restriction of movement in the shoulder was caused in part by pre-existing glenohumeral osteoarthritis.
The appellant submits that contrary to the referral, the Medical Assessor found there was no evidence of acute injury to the left shoulder. The Appeal Panel rejects this submission as what the Medical Assessor in fact stated was: “Ongoing pain and impairment in the shoulder is on the basis of pre-existing osteoarthritis rather than acute structural injury to the shoulder”. The Medical Assessor did not find that there was “no evidence of an acute injury to the left shoulder”.
The appellant submits that the one third deduction under s 323 was made where there is no evidence “that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury” and therefore constitutes a demonstrable error.
The Appeal Panel notes that Dr Edgar deducted one tenth from his assessment of the left upper extremity (shoulder) due to “the likely pre-existing shoulder osteoarthritis”. The radiological investigations demonstrate that the appellant had severe glenohumeral osteoarthritis primarily manifested in the glenoid. There was cystic changes and bone marrow oedematous changes with grade 4 chondral loss and degenerative AC joint arthritis. The Appeal Panel rejects the submission that there is no evidence “that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury”.
The Appeal Panel considers that the deduction of one third of the impairment assessed in respect of the left shoulder was reasonable because of the significant amount of osteoarthritis found in the radiological investigations, especially in the MRI scan undertaken on 12 December 2022. The radiological investigation of 12 December 2022 only post-dates the subject injury by about a month, and the arthritis and other degenerative changes demonstrated on that scan would have been longstanding. The Medical Assessor considered that while the deduction was difficult or costly to determine, the available evidence was that the deductible proportion was large and a deduction of one tenth was at odds with the available evidence. The Appeal Panel agrees that deduction of one tenth is at odds with the radiological evidence and a deduction of one third was appropriate in this case.
This ground of appeal is not made out.
In conclusion the Appeal Panel is satisfied that the Medical Assessor did not err in applying a one-tenth deduction to his assessment of WPI to the cervical spine and a one third deduction to his assessment of the left shoulder. The Appeal Panel is satisfied that the assessment was made on the basis of the correct criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 July 2025 should be confirmed.
0
5
0