Kiama Municipal Council v Garcia
[2025] NSWPICMP 567
•1 August 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kiama Municipal Council v Garcia [2025] NSWPICMP 567 |
| APPELLANT: | Kiama Municipal Council |
| RESPONDENT: | Kim Frances Garcia |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 1 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by employer against failure by Medical Assessor (MA) to make a deduction pursuant to section 323; whether MA had applied the correct test; whether a finding that pathology in cervical spine mild and asymptomatic sufficient to satisfy section 323; Held – MA required to consider whether pre-existing condition contributed to baseline impairment; reference to facts required to comply with test; Cole v Wenaline Pty Ltd, and Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) applied; expert evidence unhelpful; nature of injury relevant; unclear whether pathology was pre-existing but if it was it was asymptomatic and no evidence justified finding that it contributed to baseline impairment; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 March 2025 Kiama Municipal Council, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gregory McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment. “Baseline WPI” is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.
RELEVANT FACTUAL BACKGROUND
On 4 December 2024 this matter was referred to the Medical Assessor for an assessment of injury to the cervical spine and the left upper extremity (shoulder) which occurred on
29 March 2022.On that date during the course of her work Ms Garcia hyperextended her left shoulder when she slipped whilst descending a ramp in wet conditions and grabbed hold of a rail.
She had an MRI of the cervical spine on 27 June 2022. She came to surgery on
27 September 2022 for her shoulder in the form of an arthroscopic subacromial decompression and rotator cuff debridement.She was diagnosed with CRPS and a possible brachial plexus lesion and underwent a repeat MRI of the shoulder and of the cervical spine.
She had nerve conduction studies performed on two occasions in 2023 which were normal and she was referred to pain management.
The Medical Assessor assessed 7% WPI in relation to the cervical spine and 10% WPI in relation to the left shoulder from which one-tenth was deducted pursuant to s 323 of the 1998 Act giving a combined table value of 15%.
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.
The appellant employer did not seek to have Ms Garcia re-examined by a member of the Appeal Panel and in view of the nature of the appeal, which concerned s 323 of the 1998 Act, a re-examination would not have assisted as the relevant evidence was already before the Medical Assessor.
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 which have been considered below by the Appeal Panel.
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 issue is in short compass and relates to the application of s 323 of the 1998 Act with regard to the assessment of the cervical spine.
THE MAC
The Medical Assessor noted that Ms Garcia was complaining of “a tearing burning sensation in her shoulder immediately” following her action of grabbing hold of a rail in wet conditions whilst descending a ramp. She also experienced “some tingling going down her arm to her fourth and fifth fingers”. These symptoms provoked an investigation of her cervical spine by way of an MRI scan on 27 June 2022. The Medical Assessor said:[1]
“…This demonstrated minor spondylitic changes with some discosteophyte complexes with exist foraminal narrowing but no evidence of nerve root impingement. ….”
[1] Appeal papers page 20
In his summary the Medical Assessor said, relevantly:[2]
“Mrs Garcia’s cervical problem is I expect multifactorial. There would be a mechanical element, a musculoligamentous element and a possible discogenic element but there is no evidence of radiculopathy.”
[2] Appeal papers page 22.
At [10b] the Medical Assessor explained the basis of his assessments. He said:[3]
“With regard to the cervical spine, I feel that Mrs Garcia qualifies in DRE Cervical Category 2 at 5 to 8% WPI. There is a history of injury with dysmetria and non-verifiable radicular complaints. There is no evidence of radiculopathy to suggest a higher category. I have added 2% for the effects of ADLs because of the difficulty with housework and this results in 7% WPI. I have not made a deduction for a pre-existing condition.”
[3] Appeal papers page 23.
The Medical Assessor also noted the opinion of Dr Richard Powell, the expert retained by the respondent, with whom the Medical Assessor agreed that a one-tenth deduction for a
pre-existing condition in the shoulder was appropriate. However, the Medical Assessor said:“….I cannot see the justification for deducting one-tenth for a preexisting condition as the spondylitic changes in the spine are mild and she was asymptomatic prior to the injury.”
SUBMISSIONS
As noted above the issue before the Panel related to an alleged failure by the Medical Assessor to make a deduction in relation to the injury to the cervical spine.
The appellant employer referred to the description of the cervical problem by the Medical Assessor in his summary which we have reproduced above.
The appellant employer submitted that in doing so the Medical Assessor had not provided a clear diagnosis for the cervical spine condition. Whilst the Medical Assessor had noted that the spondylitic changes in Ms Garcia's cervical spine were mild and that she was asymptomatic such “was contraindicated by case law”.
We were referred to ElCheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation)[4], Cole v Wenaline Pty Ltd[5], Camden Council v Harle[6], Secretary Department of Communities and Justice against Lewandowski[7] and Ryder v Sundance Bakehouse[8] in furtherance of a submission that the Medical Assessor had failed to give any or sufficient regard to available relevant information before him that supported a conclusion that Ms Garcia had pre-existing degenerative changes.
[4] [2013] NSWSC 365.
[5] [2010] NSWSC 78.
[6] [2022] NSW PIC MP ?
[7] [2023] NSW PIC MP ?
[8] [2015] NSWSC 526.
We were also referred to the Medical Assessor's comments distinguishing the one-tenth deduction made by Dr Powell on the basis that Ms Garcia’s degenerative changes were mild and had been asymptomatic. The reasoning by the Medical Assessor was at odds with case law, it was submitted, because the relevant consideration was not whether Ms Garcia was symptomatic but, amongst other things, whether the pre-existing abnormality had contributed to the degree of impairment resulting from the work injury.
The appellant employer argued that if one accepted that the cervical spine condition had multifactorial causation, then the contribution of her pre-existing abnormality could not be ignored on the basis that she was asymptomatic.
Respondent submissions
Respondent referred to Cullen v Woodbrae Holdings Pty Ltd,[9] the principle from which was that a Medical Assessor must be satisfied that any pre-existing condition did in fact pre-exist the injury.
[9] [2015] NSWSC 1416.
No such conclusion could be drawn in the present case, it was submitted, because the MRI scan that the appellant employer relied on was taken some three months subsequent to the injury. It was thus conceivable that the disc pathology demonstrated in the MRI might be entirely attributable to the injury itself. This was particularly relevant, it was argued, where there was no evidence of any prior symptomatic condition.
Alternatively, it was argued that if the pathology shown on the MRI scan of 27 June 2022 did show a pre-existing condition, there was insufficient evidence to demonstrate that such pathology has produced any impairment that would have contributed to the impairment caused by the subject injury, as was required by Ryder.
In the present case there was no evidence that any pre-existing condition would have made any difference, it was argued. It was evident that Ms Garcia was entirely asymptomatic prior to the injury, but developed significant symptoms thereafter.
It was highly significant that the relatively benign pathology identified in the MRI scan did not produce any symptoms prior to the injury Ms Garcia said.
It was necessary to examine the evidence on a case-by-case basis in applying the principles referred to, and to attach appropriate weight where necessary to evidence that may be relevant to the application of s 323.
The Medical Assessor accordingly was justified in distinguishing his opinion from that of Dr Powell regarding the deduction. The approach by the Medical Assessor was submitted was consistent with that required by authority and particularly Ryder.
DISCUSSION
Section 323 of the 1998 Act provides relevantly:
“(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.
(1) 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.”
It is well accepted that there are three steps to be considered in the application of this section. In Cole v Wenaline Pty Ltd[10] Schmidt J held that firstly the level of impairment caused by the subject injury, the baseline impairment, should be assessed. In the present case it was 7% for the cervical spine, and that assessment has not been challenged. Her Honour said:
“What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
[10] [2010] NSWSC 78 at [38].
The Medical Assessor has found that no proportion of the baseline assessment was due to, relevantly, any pre-existing condition, which is the point at issue.
Essentially, the appellant employer has submitted that the Medical Assessor has applied the wrong test in so finding. As noted above, the Medical Assessor stated that there was no justification for any deduction because the spondylitic changes in the spine were mild, and Ms Garcia had been asymptomatic prior to her injury.
We note the reference to authority by the appellant employer and its submission that the correct test was as to whether the pre-existing abnormality had contributed to the degree of impairment resulting from the work injury. We would observe that in order to apply that test, reference to the relevant facts would need to be made. Indeed, as submitted by the appellant employer in its reference to Elcheikh, the fact that a pre-existing condition had been asymptomatic was essentially neutral. That fact did not preclude a finding that the relevant condition had contributed to the baseline impairment, but equally it could not be assumed that it had. The issue had to be determined on the evidence, which included the competing opinions. Associate Professor Courtenay, the expert qualified by Ms Garcia found on
8 February 2024 that no deduction was warranted.[11] He gave no reasons in that regard, but it may be assumed that he did not consider that there was any evidence that would justify a finding that there had been a contribution. Dr Powell, as noted, made a deduction of 1/10th, saying:[12]“WorkCover Guides allow for 1/10th deduction for the presence of pre-existing pathology which I believe is relevant in this case…”
[11] Appeal papers page 83.
[12] Appeal papers page 310.
It can thus be seen that Dr Powell did not apply the applicable test of whether the
pre-existing condition/abnormality had contributed to the baseline impairment.It is thus necessary to consider other evidence in the case, and we find that the nature of the injury tends to support the finding by the Medical Assessor. There was no direct injury to the cervical spine, but rather it was investigated because Ms Garcia’s symptoms suggested that she may have suffered radiculopathy in the wrenching type injury she suffered. As was noted in Ms Garcia’s submissions, it is not clear that the pathology demonstrated when the cervical spine was eventually the subject of an MRI scan actually pre-existed the injury in any event. The Medical Assessor did not make any finding one way or the other, but simply disagrees with Dr Powell that a deduction for a pre-existing condition was justified. The injury occurred on 29 March 2022, and the first MRI scan was not taken until 27 June 2022, the conclusion being “Minor posterior disc bulges at C5-C7 levels. No nerve root infringement or canal stenosis at any level.”[13]
[13] Appeal papers page 84.
Ms Garcia was 51 years old at the time of the injury and had been employed since 2018 when she was 45 years old.
It is accordingly feasible that, as in the general population, Ms Garcia may have had some degree of degeneration, but the pathology revealed in the investigation does not engender confidence that it had anything to do with the baseline impairment assessed by the Medical Assessor, given the nature of the injury itself. We agree that the pathology revealed was mild and in all the circumstances we are not satisfied that Ms Garcia’s asymptomatic condition made any contribution to the baseline impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 February 2025 should be confirmed.
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