Inghams Enterprises Pty Ltd v Kitchen

DETERMINATION OF APPEAL PANEL
CITATION:	Inghams Enterprises Pty Ltd v Kitchen [2025] NSWPICMP 187
APPELLANT:	Inghams Enterprises Pty Ltd
RESPONDENT:	Bradley Edward Kitchen
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	Doron Sher
MEDICAL ASSESSOR:	Tommasino Mastroianni
DATE OF DECISION:	20 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; application to appeal; request for oral hearing; no submissions provided as to why oral hearing appropriate; Galluzzo v Little applied; oral hearing not granted; submission that Medical Assessor had mischaracterised the injury rejected; no basis for submission that only one-third of the impairment should be attributed to aggravation of disease injury; section 323; no basis for submissions there should be deduction of two-third; Held – Medical Assessment Certificate Confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 July 2024 Inghams Enterprises Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Yui-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
20 June 2024.
The appellant relies on the following ground 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

Mr Kitchen commenced employment with the appellant in 1978. He spent a period of time working in various duties as a process worker in a poultry worker until 1987, when he began working on the turkey line. His duties required him to lift live turkeys from crates. The turkeys would weight from 4kg to around 20kg. He would lift them by their feet, whilst the birds were flapping and struggling, before placing them in shackles before the line moved along to the stunning and slaughtering phases. The shackle was approximately shoulder height.
The work was heavy and repetitive. He completed these duties until 2011 when he was put onto a different job involving high-pressure hosing. At times he would be put back on the shackling line and was threatened with dismissal if he refused to work in any particular area of the line. He eventually made complaints to his treating practitioner, was referred for investigations and had surgery.
Mr Kitchen made a claim for compensation on the appellant. That claim was disputed on the basis of injury, based on the report of Dr Edwards. Mr Kitchen subsequently commenced proceedings in the Personal Injury Commission (Commission), claiming weekly benefits, medical expenses and lump sum compensation. The liability dispute was resolved via consent, with a certificate of determination – consent orders being issued on 27 May 2024.
Those orders remitted the matter to the President for referral for an assessment of permanent impairment “as a result of an injury as defined in s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) being the aggravation, acceleration, exacerbation or deterioration of a disease”.
The medical dispute was assessed by Medical Assessor Yiu-Key Ho, who issued a MAC on 20 June 2024. The total whole person impairment assessed was 28%, including deduction made from both shoulders of 1/10 pursuant to s 323 of the 1998 Act.
The appellant appeals against that assessment.

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 the MAC, when read along with the supporting evidence made available to the Appeal Panel, contains sufficient information to determine the appeal. Further, neither party sought that the worker be re‑examined.
The appellant requested an opportunity to present oral submissions to the Appeal Panel. The appellant submits:
“In the view of the Appellant, the appeal should not be determined on the papers and rather should be the subject of a formal hearing to address the manner in which the assessment of impairment should be altered having regard to the demonstrable error relied on”.
No further submissions are provided. No explanation as to why a formal hearing is required or why the matter is not appropriate to be dealt with on the papers.
Section 328 of the 1998 Act provides for the procedure on appeal:
“(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows:
(a) 2 medical assessors,
(b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission.
(2) 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.
(2A) To avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members.
(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.
(4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.
(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.
(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.”
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules), made pursuant to s 20 of the Personal Injury Commission Act 2020 (the PIC Act), sets out the rules for the conduct of panel review proceedings:
“(1) A panel for panel review proceedings is to conduct and determine the proceedings in accordance with procedures determined by the panel.
(2) A panel may determine the proceedings solely on the basis of the written application.
(3) A panel may also arrange for the proceedings, including medical examinations for the proceedings, to be conducted—
(a)  in person, or
(b)  by telephone or audiovisual link, or
(c)  by other means determined by the President to be appropriate in the circumstances.
(4) A panel is not bound by the rules of evidence.
(5) A panel may inquire into matters that are relevant to the issues in dispute as the panel thinks fit.
(6) A determination of the majority of panel members is taken to be the determination of the panel.”
“Panel review proceedings” are defined in rule 5(7) of the PIC Rules:
“Panel review proceedings are proceedings before a panel under enabling legislation for an appeal against, or a review of, a decision made in medical assessment proceedings or merit review proceedings.”
Section 331 of the 1998 Act provides that the Part is subject to the Rules in relation to procedures:
“Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Commission rules relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments.”
In particular are rules 128(1) and (2) – an Appeal Panel determines the proceedings in accordance with the procedures determined by the Panel, and the Appeal Panel may determine the proceedings solely on the basis of the written application.
The procedures on appeal are similar, allowing for differences in terminology, to those adopted in the former Workers Compensation Commission. Relevant differences under that scheme include that appeals were subject to the Workers Compensation Guidelines (rather than any rules that were in force at that time).
The issue of the appropriate procedure to be adopted, including an oral hearing, were considered in Galluzzo v Little [2013] NSWCA 116 (Little). The appellant’s solicitors would no doubt be familiar with that case. In Little, submissions were made that were described by the Appeal Panel as “not of an acceptable standard” that contained “nothing but vague unspecified assertions without reference to the evidence”. The Appeal Panel denied a request for an oral hearing and also did not call for further submissions. Barrett JA described the task of the Appeal Panel in that case in the following circumstances:
“The fact that, under the applicable provisions, it is the task of the Medical Appeal Panel to decide which method of proceeding is apt, coupled with the fact that disposal on the papers is stated to be the preferred method unless the panel itself decides that it is unsuitable, means that an appellant must, in general, present its written appeal in a way that will allow that method to be adopted. I say ‘in general’ because there may be cases of particular difficulty or complexity which cannot be dealt with adequately in writing and where some oral elaboration or explanation is needed. In such an instance, however, it is for the applicant to point to factors making the matter unsuitable for determination on the papers and advance cogent reasons why an oral hearing should be convened.” (at [74]).
As occurred in Little, there has been no attempt to explain why an oral hearing is necessary. The broad submissions supporting the request for an oral hearing are set out at [14] above. Two things are noted about that submission – the first is that there is no “particular difficulty or complexity” identify that makes the matter raised unable to be dealt with adequately in writing. The second is that the request is for a formal hearing “to address the manner in which the assessment of impairment should be altered having regard to the demonstrable error relied upon”, which presupposes satisfaction on the part of the Appeal Panel that such demonstrable error exists. Whilst such satisfaction has been reached by the delegate of the President, to the standard of a gatekeeper, for the reasons given below the Appeal Panel are not satisfied that that is the case.
In Little, Barrett JA also considered whether it were necessary for the Appeal Panel to call for further submissions (at [84]):
“It is thus clear that the Medical Appeal Panel engaged directly with the employers' submissions and dealt with them on their merits, as it saw them. It is true that the Panel criticised the standard and quality of the employers' submissions. But the fact that it formed a poor opinion of them did not give rise to any duty to seek further and better submissions when the employers had consciously chosen to be brief as part of what can only be regarded as a ploy (ultimately unsuccessful) to obtain an oral hearing. Entirely apposite here are observations of Mason P in Fletcher International Exports Pty Ltd v Barrow (above) at [98] concerning an analogous type of appeal:
‘The submissions that the Presidential member was in some way obliged to “seek clarification of the way in which the Appellant contended its submissions were relevant” (Ground 6(c)) seeks to impose a duty on which the statute is silent. Procedural fairness does not require this of a decision-maker: a reasonable opportunity to advance arguments is all that is required in a context where the issues are known or (as here) formulated by the party in question.
The detailed reasons provided in the Determination show that the presidential member understood the employer's submissions, addressing them in turn.’ (Emphasis added)”
The Appeal Panel are satisfied that the reasoning in Little is apposite to the procedures now applicable to appeals in the Commission, and respectfully adopt the interpretation as outlined by Barrett JA.
The appellant’s submissions are provided sufficiently to allow the Appeal Panel to determine the issue it has raised on appeal. No oral hearing is necessary. The Appeal Panel does not intend to depart from the grounds of appeal notified by the appellant (see Little at [85]).
The application for an oral hearing is rejected.

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.
In summary, the appellant first notes the nature of the referral for assessment, as set out in the Certificate of Determination issued by Member McDonald. The appellant submits that the MAC contains a demonstrable error as it is apparent that the Medical Assessor dealt with the matter as an injury defined in s 4(b)(i) of the 1987 Act, which is inconsistent with the precise terms of the referral. As a consequence, the assessment of impairment is inconsistent with the terms of the referral. The appellant submits that the MAC should be revoked, and the correct approach is either to prescribe impairment only to the effect of the aggravation, which represents one-third or less of the impairment arrived at, or alternatively that the Medical Assessor should apply at least a two-thirds deduction to the overall assessment of impairment.
The respondent submits that the appellant’s submissions selectively quote from the MAC and that such a description is not inconsistent with the assessment having been conducted with reference to s 4(b)(ii). When the MAC is read in its entirety, the Medical Assessor has properly characterised the injury. Further, in respect of the two-thirds deduction, there are no submissions to support such a proposition. The Medical Assessor has clearly addressed the issue of s 323, and the appellant has not suggested how the assessment would be altered and what evidence is available to support such a proposition. It is incumbent on the appellant to articulate the basis on which any error would have resulted in a different outcome.

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. The ground of appeal in this case is limited, concerning the nature of the injury assessed and s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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 appellant’s submissions are broad and non-specific. There are two areas these submissions address that will be considered in turn by the Appeal Panel.

The injury issue

The appellant submits that the Medical Assessor erred in assessing the injury as an injury under s 4(b)(i) of the 1987 Act, being the contraction of a disease: “a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease”, as opposed to a s 4(b)(ii) injury, being the aggravation etc of a disease under s 4(b)(ii): “the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease”.
The Appeal Panel accept that the injury referred, as set out in the Certificate of Determination dated 27 May 2024, represents an aggravation, acceleration, exacerbation or deterioration of a disease type of injury under s 4(b)(ii).
That is as far as the acceptance of the appellant’s submissions goes.
The appellant refers to the MAC at page 3 where the Medical Assessor records the following, under the heading “summary of injuries and diagnoses”:
“The nature of condition of work with lifting heavy struggling turkeys from the desk level to above the shoulder level constantly for more than thirty years creating all the problems in both shoulders. He developed osteoarthritis of both shoulders requiring surgery with a reverse prosthesis with a reasonable outcome with less pain and better movement but he still has residual problems. He had problem on the left side as well, also suffering from the same problem with similar complaints.”
The appellant says the error they allege is “evident from this statement”. The Appeal Panel do not accept that submission. Firstly, when considering the reasons given by a Medical Assessor in determining whether an error has been made out, those reasons must be read as a whole. The phrasing of “creating all the problems in both shoulders” does not, of itself, mean that the Medical Assessor has assessed an injury being a contraction of a disease, rather than the aggravation (etc) of a disease.
Secondly, no submissions are provided as to how this constitutes a “demonstrable error” consistent with what is required in s 327(3)(d) of the 1998 Act. That term is undefined. Vannini at [76]-[92] provides a comprehensive analysis of the term. The term use of the word “demonstrable” is important:
“the use of the qualifying word “demonstrable” in a gateway provision such as s 327 may be taken as intended to convey the degree of strictness of scrutiny to which the decision of the approved medical specialist may be subjected. In this regard it has been said that error alone is not sufficient and that such an error must be ‘material’” (Vannini at [77], citations omitted)

Thirdly, the appellant has pointed to no precedent to establish how an assessment of impairment would differ, were the injury differently characterised under the disease provisions.
Fourthly, the Medical Assessor sets out the history relating to the injury on page 2. In that, he refers to the respondent first noticing shoulder problems in 2011, and the first X-ray being completed in 2017, which confirmed “significant osteoarthritis of the shoulder joint”. This is consistent with an injury in the nature of an aggravation of a disease, being the aggravation of osteoarthritis.
The appellant submits that as a consequence of the demonstrable error (which the Appeal Panel does not accept), the assessment does not reflect the impairment which was the result of the aggravation. Again, these submissions are made without reference to any precedent that would determine how the impairment should “reflect the impairment which was the result of aggravation”. There is no concept within the legislation that would support the appellant’s submissions.
The determination of the degree of permanent impairment is what results from an injury, per s 65 of the 1987 Act:
“(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
The injury here is an aggravation (etc) of a disease. The permanent impairment that results from that is as assessed provided by s 65 and Part 7 of the 1998 Act. Assessment of the degree of permanent impairment is in accordance with the Guidelines (s 322(1) of the 1998 Act).
Further, it is a submission made without an evidentiary basis. The appellant submits that the correct approach should be to prescribe impairment only to the effects of the aggravation, which would be one third or less of the impairment arrived at. This is not based on any medical opinion. Dr Edwards, who provides reports attached to the Reply for the appellant, completely disregards Mr Kitchen’s injuries on the basis that employment was not the main contributing factor to the cause or aggravation of any disease. This conclusion completely ignores the extensive history of heavy work undertaken by Mr Kitchen. Further Dr Edwards makes not commentary consistent with the path now advocated for by the appellant to some apportion the aggravation of the injury with some other contributing factor.

Section 323 of the 1998 Act

The only relevant basis for any exclusion of the degree of impairment, in accordance with the legislation and the Guidelines, is pursuant to s 323 of the 1998 Act. S 323 provides for deductions:
“(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 Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The appellant’s alternate submission is that a two-third deduction should be made.
Firstly, it is noted that once again this submission is made without evidentiary support. Dr Edwards did not assess impairment and accordingly made no deduction. Dr Courtenay, on who’s opinion the claim for impairment was based, made no deduction pursuant to s 323 of the 1998 Act. When considering those opinions, there is no medical opinion available to support the case now advocate for by the appellant.
The Medical Assessor made a deduction of 1/10^th pursuant to s 323, providing the following reasons:
“In my opinion a deduction of 1/10 is appropriate because there will contribution from preexisiting conditions although I believe the major problem is from the nature and condition of work.”
The Medical Assessor also comments on the opinion of Dr Courtenay, who did not make a deduction:
“I think my argument and conclusion all concur with Dr Courtenay. My clinical examination is marginally worse than his but I have deducted 1/10 for pre-existing condition and we come to more or less similar final figure of whole person impairment.”
The application of s 323 was considered in Cole v Wenaline [2010] NSWSC 70 and Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365. In those cases, Schmidt J established a three-step test for the appropriate consideration of s 323 of the 1998 Act. The first step is to determine the extent of impairment following the work injury. The second is to determine whether a proportion of that impairment is due to a previous injury, or pre-existing condition or abnormality. The final step is to determine the extent or proportion of that contribution.
Whilst the Medical Assessor’s reasons are brief, he has applied s 323 in accordance with the above authority. He identifies assesses the current degree of permanent impairment in each shoulder (21% and 9%). He determines that there is a pre-existing condition (based on the history taken on page 2, osteoarthritis), and then applies s 323(2) of the 1998 Act to determine that the extent of the deduction is difficult or costly to determine and a deduction of 1/10 is appropriate.
The Appeal Panel’s view is when read as a whole, the path adopted by the Medical Assessor was the correct one. There is no evidence to support a deduction of 2/3rds as suggested by the appellant. To do so would be inconsistent with s 323 of the 1998 Act and the appropriate consideration of the material available to the Medical Assessor.
If anything, based on Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 (Cullen), it may have been appropriate for the Medical Assessor to have made no deduction. That is not a submission put to the Appeal Panel and the Panel does not consider it appropriate to tread down that path.
It should also be observed that the argument put by the appellant, on both the “injury” issue (where there should be an allowance of only 1/3^rd of the assessed impairment as it is an aggravation of a disease type case, and the s 323 issue, are inconsistent with Cullen at [57]:
“Overall, the approach of the MAP was to treat a pre-existing condition as a condition that existed outside the course of employment whereas in this case it had to be a condition that existed prior to Mr Cullen’s employment. As noted, Mr Blount repeatedly asserted that there was evidence to support such a finding. However that contention travels nowhere as the MAP did not make such a finding. Instead the MAP concluded that once it was established that Mr Cullen had osteoarthritis that had a ‘constitutional pathology’ then it automatically followed that it was a pre-existing condition. In this case that approach was erroneous in law and constitutes an error of law on the face of the record (and that is the case irrespective of whether the condition had to pre-date the commencement of his employment or some later time).”
The Appeal Panel are not satisfied that the MAC contains a demonstrable error. The appellant’s submissions are unconvincing and inconsistent with the law.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 June 2024 should be confirmed.

[2025] NSWPICMP 187

20 March 2025