Lovelee v Sydney International Container Terminals Pty Ltd
[2025] NSWPICMP 657
•1 September 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lovelee v Sydney International Container Terminals Pty Ltd [2025] NSWPICMP 657 |
| APPELLANT: | Christopher Lovelee |
| RESPONDENT: | Sydney International Container Terminals Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jacqueline Snell |
| MEDICAL ASSESSOR: | Robert Kuru |
| MEDICAL ASSESSOR: | Tim Anderson |
| DATE OF DECISION: | 1 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant appealed from the Medical Assessment Certificate (MAC) but elected to discontinue his proceedings subsequent to the first Appeal Panel decision but prior to the issuing of the certificate of determination by the Commission; appellant recommenced his appeal against the MAC following surgical treatment to his lumbar spine; the second Appeal Panel decided it did not have jurisdiction to consider the appeal and confirmed the MAC; the appellant sought judicial review of the second Appeal Panel’s decision and the Supreme Court of NSW set the decision aside and remitted the matter to the President to be determined according to law; this Appeal Panel received the appellant’s fresh evidence on the appeal and determined the appellant should undergo further medical examination; following which the Appeal Panel was satisfied the injury the appellant sustained to his lumbar spine had deteriorated and there is an increase in the degree of permanent impairment; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 July 2021 Christopher Lovelee lodged an Application to Appeal Against the Decision of a Medical Assessor (the 2021 Appeal). The medical dispute was assessed by Dr Kumar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 July 2021.
On 8 September 2021 the delegate of the President of the Personal Injury Commission (Commission) referred the matter to an Appeal Panel (the 2021 Appeal Panel) for determination. On 24 September 2021, the 2021 Appeal Panel determined there was no error in the MAC and the 2021 Appeal Panel confirmed the MAC. Mr Lovelee subsequently elected to discontinue the 2021 Appeal proceedings on 27 September 2021 and as a consequence a Certificate of Determination under s 294 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) was not issued by the Commission.
On 7 February 2024 Mr Lovelee re-commenced his appeal against the MAC (the 2024 Appeal) and on this occasion relied on the following grounds of appeal under s 327(3) of the 1998 Act:
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment, and
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
While the Sydney International Container Terminals Pty Ltd (SICT) submitted that the matter should be referred back to the Medical Assessor for “reconsideration”, Mr Lovelee objected to this course and requested a re-examination by a Medical Assessor who was a member of the Appeal Panel (the 2024 Appeal Panel).
On 20 March 2024 the delegate of the President of the Commission, referred the matter to the 2024 Appeal Panel. In her decision the delegate concluded:
“Upon examination of the MAC and on the face of the application and submissions made, I am satisfied that a ground of appeal as specified in section 327(3)(a) is capable of being made out. Having regard to the recent opinion of Dr Bodel, I am satisfied that the appellant’s argument his degree of permanent impairment deteriorated since the last medical assessment is capable of being made out.
The most appropriate course of action is to refer the matter to a Medical Appeal Panel as opposed to referring the matter back to the Medical Assessor for reconsideration given that a previous complaint was made against the Medical Assessor. In my view finality of the dispute is more likely to be achieved by referral of the matter to a Medical Appeal Panel due to the appellant’s apparent dissatisfaction with the prior assessment process by the Medical Assessor. Accordingly, the appeal is referred to a Medical Appeal Panel.”
On 30 July 2024 the 2024 Appeal Panel determined it did not have jurisdiction to consider the 2024 Appeal, and the 2024 Appeal Panel confirmed the MAC.
On 30 September 2024 Mr Lovelee filed a summons in the Supreme Court of NSW seeking judicial review of the 2024 Appeal Panel’s decision. On 24 April 2025 Payne JA decided that the 2024 Appeal Panel’s decision and Statement of Reasons for the decision is void and of no effect, set aside the 2024 Appeal Pane’s decision and Statement of Reasons and ordered that the matter be remitted to the President of the Commission to be determined according to law (see Lovelee v Sydney International Container Terminals Pty Ltd ).[1] At [51] Payne JA said:
“… I propose to remit the matter to the President of the PIC to permit consideration by Mr Lovelee of whether he should take the opportunity to have a reconsideration conducted, rather than seek to prosecute an appeal before an Appeal Panel.”
[1] [2025] NSWSC 377 (Lovelee No 2).
On 17 June 2025 the delegate of the President referred the matter to a differently constituted Appeal Panel for determination, being a course of action that was not objected to by either Mr Lovelee or SICT. In her decision the delegate noted:
(a) the conclusion of the delegate in referring the 2024 Appeal to the 2024 Appeal Panel;
(b) statement by Payne JA in Lovelee no 2 at [51] referred;
(c) the fact that as the Medical Assessor was no longer appointed as a Medical Assessor in the Commission he would be unable to conduct a reconsideration, and
(d) following email notification to the parties on 6 June 2025 that it was the Commission’s preliminary view that the matter should be referred to a differently constituted Medical Appeal Panel in accordance with s 328(1) of the 1998 Act, on 16 June 2025 both parties advised they had no objection to the proposed course of action.
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
On 1 October 2016 Mr Lovelee sustained injuries while working as a stevedore with SICT.
Mr Lovelee made a claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (the 1987 Act) resulting from injuries sustained to his left lower extremity, lumbar spine, digestive system and TEMSKI/scarring, which was referred to the Commission for determination. On 5 July 2021 the Medical Assessor issued the MAC in which he determined Mr Lovelee had sustained 14% whole person impairment (WPI) resulting from his injuries. While the 2021 Appeal Panel confirmed the MAC on 30 July 2021, Mr Lovelee discontinued his appeal proceedings prior to the Certificate of Determination relevant to the 2021 Appeal Panel’s determination being issued by the Commission.
On 13 June 2023 Mr Lovelee underwent surgical treatment of his lumbar spine and on
7 February 2024 Mr Lovelee brought his 2024 Appeal against the MAC. It is Mr Lovelee’s 2024 Appeal that the Medical Appeal Panel is required to consider.Mr Lovelee relies on the following grounds of appeal:
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment, and
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
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 Mr Lovelee should undergo a further medical examination. Since Mr Lovelee was assessed by the Medical Assessor and the MAC was issued on 5 July 2021 there has been a deterioration in the injury he sustained to his lumbar spine in that Mr Lovelee came to surgical treatment on
13 June 2023 in the nature of a 3-level decompression at the lateral recess at L3/4, L4/5 and L5/S1, which necessarily results in an increase of percentage permanent impairment of his lumbar spine.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
Mr Lovelee seeks to admit the following evidence:
(a) statement of Mr Lovelee dated 7 February 2024;
(b) report of Dr Bodel dated 8 December 2023 prepared in his capacity as independent medical examiner;
(c) report of Dr Spittaler dated 28 April 2023 prepared in his capacity as independent medical examiner;
(d) Medical records of Dr Coughlan as at 19 November 2023;
(e) Medical reports of Dr Papantoniou dated June 2021 to date;
(f) consultation records of Workers Doctors dated June 2021 to date, and
(g) email from the Commission noting discontinuance of Matter W1397/21.
Mr Lovelee submits the evidence is relevant to his appeal from the MAC as the evidence details a deterioration in the injury he sustained to his lumbar spine which necessarily results in an increase of percentage permanent impairment of his lumbar spine. Mr Lovelee submits the evidence was not available and could not reasonably have been obtained because it was generated after the MAC.
SICT makes no submission relevant to Mr Lovelee’s application to admit fresh evidence.
The Appeal Panel accepts the evidence is relevant to Mr Lovelee’s appeal from the MAC as it details a deterioration in the injury he sustained to his lumbar spine which necessarily results in an increase of percentage impairment of his lumbar spine. The Appeal Panel determines the following evidence should be received on the appeal:
(a) statement of Mr Lovelee dated 7 February 2024;
(b) report of Dr Bodel dated 8 December 2023 prepared in his capacity as independent medical examiner;
(c) report of Dr Spittaler dated 28 April 2023 prepared in his capacity as independent medical examiner;
(d) medical records of Dr Coughlan as at 19 November 2023;
(e) medical reports of Dr Papantoniou dated June 2021 to date;
(f) consultation records of Workers Doctors dated June 2021 to date, and
(g) email from the Commission noting discontinuance of Matter 1397/21.
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.
Further medical examination
Medical Assessor Kuru of the Appeal Panel conducted an examination of Mr Lovelee on
16 July 2025 and reported to the Appeal Panel:“The workers medical history, where it differs from previous records:
The history as given to me by Mr Lovelee at the time of my review is consistent with the history recorded in the Medical Assessment Certificate by Assessor Kumar of 5 July 2021 and the subsequent Appeal Panel by Member Daly, Assessors Dixon and Harvey-Sutton of 24 September 2021.
With respect to the history subsequent to the above, Mr Lovelee indicated that subsequent to having his left sided total hip replacement, whilst it eased his left groin pain, he had worsening pain in his back and buttock. He had undergone a number of steroid injections and radiofrequency ablations of his spine under Dr Papantoniou. When these were unsuccessful, Dr Papantoniou recommended ongoing nonoperative management.
Additional history since the original Medical Assessment Certificate was performed:
Ultimately, Mr Lovelee sought an opinion from another surgeon, Dr Coughlan. In a clinical letter dated 22 February 2023, Dr Coughlan briefly documents the mechanism of injury and states ‘This caused him to have significant jarring through his lumbar spine and he developed quite marked back and leg pain. He did have a left total hip replacement but he has ongoing neuropathic pain down the left leg’. Dr Coughlan does not describe the distribution of symptoms in the leg.
He goes on further to say, ‘His imaging confirms significant stenosis, worse at L3, L4 and L5/S1’. He goes on to recommend a lateral recess decompression L3/4, L4/5, L5/S1.
I note an independent assessment undertaken by Dr Spittaler, Neurosurgeon dated 28 April 2023. Dr Spittaler records Mr Lovelee complaining of ‘bilateral hamstring pain as well as pain in the left calf which comes on when standing or walking over about 100m’.
Dr Spittaler goes on to agree that the surgery was reasonable and necessary. The surgery was undertaken on 13 June 2023.
In asking Mr Lovelee, his principal symptoms prior to the surgery were pain in his back and pain in the lateral aspect of his left thigh. This thigh numbness came on after his hip replacement was attributed to injury to the lateral femoral cutaneous nerve of the thigh. He had, prior to the surgery, developed some numbness in his first and second toe on the left foot.
With respect to any benefit from the surgery, Mr Lovelee said his back “felt looser for a couple of months” after the surgery. After this, he did not notice any sustained benefit.
With respect to his current symptoms, he continues to have pain in his lower back and pain in his buttock. If he walks for anything in excess of half an hour, or if he negotiates steps, he has increased stiffness in his back.
He continues doing some simple stretches after a walk and every night. He is not engaged in a gym-based rehabilitation program.
He had been using Celebrex for his pain. He had reflux, for which he also took Nexium. He developed urge incontinence and PR bleeding and went on to have a colonoscopy. Subsequently he stopped his anti-inflammatories. He intermittently uses paracetamol and creams.
Findings on clinical examination:
On examination he was a well looking man in no obvious distress. Trendelenburg’s test was normal. Heel-toe stance was normal. Neurological examination of the lower limbs demonstrated symmetrical knee and ankle reflexes with downgoing Babinskis. Straight leg raise was to 90° in the sitting position without tension signs. Peripheral power was intact. Quadriceps circumference was 59cm and symmetrical. Gastrocnemius circumference was 41cm and symmetrical.
There was a well healed 5cm incision in the midline of the lumbar spine. There were surgical scars consistent with an approach for a one or two level decompression.
Results of any additional investigations since the original Medical Assessment Certificate:
I was able to review the following imaging undertaken subsequent to the Medical Assessment Certificate of 5 July 2021:
DATE
INVESTIGATION
COMMENTS
03/11/2022
CT lumbar spine
MRI lumbar spine
Multilevel degenerative disc disease, particularly L3/4, L4/5, L5/S1, no significant central lateral recess or foraminal stenosis.
Assessment of whole person impairment resulting from injury to the applicant sustained on the lumbar spine on 1 October 2016 in the course of his employment:
SIRA page 29 4.37 directs that surgical procedures undertaken for decompression be assessed as DRE Category III. According to AMA 5 page 384 15.3, I assess 10% whole person impairment for Lumbar DRE Category III.
Per SIRA page 28 4.34, I assess a further 1% for restrictions of activities of daily living. This is on the basis of restriction of recreational activities. An additional 2% whole person impairment is assessed for further surgical levels per SIRA page 29 4.2.
Further impairment is not assessed for persistent symptoms and radiculopathy per SIRA page 29 4.2. With suspected diagnostic criteria for radiculopathy as per SIRA page 27 4.27, Mr Lovelee did not have loss or asymmetry of reflexes, muscle weakness anatomically localised to an appropriate spinal nerve root, reproducible impairment of sensation anatomically localised to an appropriate spinal nerve root, positive tension signs, muscle wasting or atrophy or findings on any imaging study consistent with clinical signs.
11% whole person impairment combined with 2% whole person impairment totals 13% whole person impairment.
I note a 50% deduction was applied for a pre-existing condition in the MAC on 5 July 2021 and this was affirmed by a subsequent Appeal Panel dated 24 September 2021. For the reasons given in the original MAC and Appeal Panel, I believe 50% deduction remains appropriate.
13% WPI less 50% rounded leaves 7% whole person impairment for the lumbar spine. Scarring / TEMSKI: The surgical wound is well healed without complications. There is no significant colour, contour or trophic change. 0% whole person impairment is assessed for scarring / TEMSKI per SIRA page 74 14.1.
With respect to the report by Dr Bodel dated 8 December 2023, I did not find asymmetrical reflexes, sensory loss in the L5 nerve root distribution or weakness of great toe extension.
With respect to the assessment of impairment, I agree with the assessment of 10% whole person impairment for DRE Lumbar Category III. I have assessed 1% rather than 2% for restrictions of activities of daily living. I agree with the assessment of 2% for additional surgical levels. For the reasons given above, I have not assessed further impairment for radiculopathy.
I have assessed 0% for scarring / TEMSKI for the lumbar spine. I note Dr Bodel has assessed 1% scarring for ‘two major scars’.
Dr Bodel does not assess a deduction for pre-existing abnormality. This is on the basis of he is of the belief that ‘This gentleman has suffered a disc rupture at the lumbosacral junction involving L3/4 and L4/5’. Imaging does not demonstrate evidence of disc rupture but rather, pre-existing constitutional degenerative disc disease. As above, a significant deduction here is appropriate.”
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 provided written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the Mr Lovelee says he is seeking further assessment by a member of the Medical Appeal Panel. Mr Lovelee essentially submits:
(a) the injury he sustained to his lumbar spine has deteriorated due to him undergoing surgical treatment on 13 June 2023 in the nature of a 3-level decompression at the lateral recess at L3/4, L4/5 and L5/S1, which has resulted in an increase in the degree of WPI resulting from injury to his lumbar spine.
In reply, SICT essentially submits:
(a) the only medical evidence of a deterioration in the extent of permanent impairment of the body parts originally assessed in the MAC is the increased assessment of the lumbar spine by Dr Bodel in his report dated
8 December 2023;(b) Mr Lovelee’s matter should be referred back to the Medical Assessor pursuant to s 329 of the 1998 for reconsideration of his assessment of the lumbar spine (only) in the MAC, as that MAC still stands as confirmed by the 2021 Medical Appeal Panel, and
(c) in light of the subsequent surgery on 13 June 2023 it is appropriate for the Medical Assessor to re-examine Mr Lovelee’s lumbar spine and re-assess permanent of the lumbar spine, with the re-assessment of the lumbar spine being combined with the previous assessments of the left lower extremity and scarring as per the original MAC.
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 Appeal Panel is aware that while in Campbelltown City Council v Vegan[2] the Court of Appeal held the Appeal Panel is obliged to give reasons, the Appeal Panel notes the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[2] [2006] NSWCA 284.
Review of the MAC
The Medical Assessor noted Mr Lovelee sustained injury on 1 October 2018 while he was working as stevedore with SICT. Mr Lovelee said while he initially carried on working, he did not complete his shift and reported his injury. However, Mr Lovelee returned to work over the next couple of days as his duties did not require him to undertake manual work.
Mr Lovelee then consulted with his general practitioner at Workers Doctors and was certified totally incapacitated for work. Mr Lovelee has not returned to work since 5 October 2018.Mr Lovelee came under the orthopaedic care of Professor Papantoniou and pain specialist care of Dr Nazha. After a period of conservative treatment, both specialists suggested
Mr Lovelee may require spinal fusion and left hip replacement.Mr Lovelee came to left anterior total hip replacement on 3 June 2019, after which he engaged in a rehabilitation program. Mr Lovelee said at this point in time his back pain had deteriorated “as it had been exacerbated by his constant limp and his physiotherapy.”
Mr Lovelee was prescribed analgesic and anti-inflammatory medication. Mr Lovelee developed gastrointestinal problems and came under the care of Dr Fulham. Mr Lovelee came to colonoscopy on 3 March 2020. Mr Lovelee developed psychological fragility and came under psychological care.The Medical Assessor noted Mr Lovelee remained under the care of his treating orthopaedic surgeon and his general practitioner. The Medical Assessor noted Mr Lovelee had recently ceased physiotherapy treatment but remained on medication. The Medical Assessor noted that while Professor Papantoniou had recommended spinal fusion, “he is not keen on this operation at this stage.” The Medical Assessor said of Mr Lovelee:
“His major problem now is back pain which he describes as constant but does vary in intensity.”
The Medical Assessor described Mr Lovelee as once being able to assist his wife both inside and outside the house, but now unable to do so because of low back pain and his left hip pain.
The Medical Assessor noted Mr Lovelee sustained injury to his low back on 17 August 2016 in the course of his employment with Westpac when he fell off a beam while installing a loading platform, and again on 24 January 2017 in the course of his employment with SICT while travelling in a shuttle that collided with a stand. Consequent on this latter incident,
Mr Lovelee ceased working for approximately two months, before returning on light duties and “eventually” resuming his pre-injury duties.The Medical Assessor recorded his findings on physical examination, which included reference to Mr Lovelee walking with a slight limp. The Medical Assessor said of his examination of Mr Lovelee:
“He was not completely consistent. His straight leg raising tests in the seated and lying positions were grossly different. Waddell’s test was positive. I felt he displayed voluntary control of movements in examining the lumbar spine.”
The Medical Assessor noted the diagnostic imaging relevant to Mr Lovelee’s lumbar spine, which included an MRI dated 17 October 2018 and an MRI dated 26 October 2020.
The Medical Assessor concluded Mr Lovelee suffered an exacerbation of his pre-existing low back injury in the incident occurring on 1 October 2018 and described him as continuing with “back pain” that had not been relieved with pain specialist management, including steroid injections and radiofrequency neurectomy. The Medical Assessor relevantly provided diagnosis in terms of “soft tissue injury of lower back”.
The Medical Assessor assessed the permanent impairment Mr Lovelee sustained to his low back in the incident occurring on 1 October 2018:
“The lumbar spine is considered under Table 15-3, page 384, Chapter 15, AMA5. He has signs of dysmetria. Clinical examination has confirmed muscle guarding and spasm in the left lower back. Using this table, he will carry a 5-8% whole person impairment. Consulting WorkCover Guidelines and using limitation in activities of daily living he will get a further 2% giving a total of 7% whole person impairment for his lower back. As explained earlier there is well documented medical evidence that he had impairments of the back prior to this accident. I will consider a 50% deduction for pre-existing causes. When rounded this will give rise to a further 4% whole person impairment.”
In providing comment on Dr Bodel’s reporting, the Medical Assessor wrote:
“I agree with his methodology. However, I feel in the presence of well-documented medical evidence and imaging studies, as well as lawyer’s reports of previous injuries, I consider there to be enough evidence to consider a deduction of 50% to be more appropriate than giving a deduction of 10% for pre-existing causes.”
Review of fresh evidence
Mr Lovelee’s statement
Mr Lovelee provided a statement dated 7 February 2024. Mr Lovelee explained that after the 2021 Medical Appeal Panel confirmed the MAC, he experienced a deterioration in his mental health against a backdrop of not having returned to work since 2018 and an inability to pursue a claim for work injury damages. Mr Lovelee explained he did not wish to finalise his claim for permanent impairment compensation payable under s 66 of the 1987 Act for 14% WPI and instructed his solicitors to discontinue his claim which was before the Commission.
Mr Lovelee said he had remained under the orthopaedic care of Professor Papantoniou relevant to his bilateral hip and low back symptoms, with Professor Papantoniou continuing to recommend conservative treatment.
Mr Lovelee said that towards the end of 2022 his low back pain had increased to such a level that he was “feeling desperate” but Professor Papantoniou continued to recommend conservative treatment. Mr Lovelee said he sought a second opinion from Dr Coughlan, neurosurgeon, who considered that Mr Lovelee may benefit from surgical treatment in the nature of a decompression. Mr Lovelee said he came to the surgery under the care of
Dr Coughlan on 13 June 2023, with the surgery being approved by the relevant workers compensation insurer. Mr Lovelee said the surgery provided him some relief.Mr Lovelee said he continues to suffer bilateral hip pain and has come under the orthopaedic care of Dr Solomon in respect of his right hip pain.
Mr Lovelee said with his disabilities continuing, he still relies on his wife “for almost all domestic duties”.
Review of the independent medical evidence
Dr Spittaler
Mr Lovelee was assessed by Dr Spittaler on 28 April 2023. Dr Spittaler provided a report dated the same day. Dr Spittaler is a neurosurgeon. Dr Spittaler recorded the circumstances of injury occurring in October 2018. Following review of the diagnostic imaging, which included MRI of the lumbar spine dated 3 November 2022 and his clinical examination,
Dr Spittaler accepted Mr Lovelee suffered injury in the nature of “an exacerbation of lumbar and intervertebral disc disease and lumbar spondylosis”. Dr Spittaler noted Mr Lovelee had come to left hip replacement in 2019, with ongoing problems with his left leg, including numbness.Dr Spittaler described Mr Lovelee’s current treatment to include anti-inflammatory, Paracetamol, topical cream, hydrotherapy and self-directed exercise. In response to specific questioning, Dr Spittaler relevantly said of the surgical treatment proposed by Dr Coughlin:
“I think the surgery is reasonable. I think it is likely to help the patient’s lower limb symptoms and thus his mobility. On questioning Mr Lovelee, he told me that
Dr Coughlin indicated that the surgery would help his legs and not his lower back pain, and I would agree with this.”
Dr Bodel
Mr Lovelee was re-assessed by Dr Bodel on 8 December 2023. Dr Bodel provided a report dated the same day. Dr Bodel is an orthopaedic surgeon. Dr Bodel recorded the circumstances of injury occurring on 1 October 2018 and Mr Lovelee’s subsequent medical care under Workers Doctors, Professor Papantoniou, Dr Nazha, and Dr Coughlan. Dr Bodel noted Mr Lovelee had come to a three-level posterior lumbar decompression under the care of Dr Coughlan on 13 June 2023. Three months post-surgery, Dr Bodel described
Mr Lovelee as being pleased with the outcome. Mr Lovelee reported his leg pain had improved, with a decrease in his symptoms, including the numbness and tingling he suffered into the toes in his left foot. Mr Lovelee reported he is sleeping better. Dr Bodel noted
Mr Lovelee had come to left hip replacement and may come to right hip replacement in the future.Dr Bodel relevantly listed Mr Lovelee’s current complaints to include “pain in the lower part of the back” which can be aggravated by “prolonged sitting or bending, twisting and lifting.”
Dr Bodel noted Mr Lovelee continued with physiotherapy treatment and took Panadol.
Dr Bodel described Mr Lovelee as managing to drive an automatic car for about half an hour before having to stretch and struggling with housework or any activity that required him to bend, twist or lift.Following clinical examination and review of radiological investigations that pre-dated
Mr Lovelee’s surgical treatment, Dr Bodel provided comment relevant to the Medical Assessor’s assessment of Mr Lovelee on 11 June 2018 and acknowledged Mr Lovelee’s assessed level of permanent impairment “changes dramatically as a consequence of that surgical undertaking.”In response to specific questioning, Dr Bodel relevantly said of Mr Lovelee:
(a) he had “some mild signs of persisting radiculopathy in the left leg although there has been a significant improvement in the left leg pain following surgery on the back …”;
(b) diagnostic imaging of the back demonstrates some degenerative change which probably was present at the time he commenced work on the waterfront but there is no medical evidence to indicate that he was impaired in any way by that degenerative change and therefore there is no basis for a deduction for pre-existing impairment in this circumstance;
(c) clinical assessment of the permanent impairment suffered by Mr Lovelee resulting from the injury he sustained to his back on 1 October 2018 is significantly greater than the 8% WPI assessed by Dr Kumar and recorded in the MAC, particularly when one considers Dr Kumar than reduced his assessment of 8% WPI by one half for pre-existing condition. Dr Bodel explained:
(i)the base category for the “surgery for radiculopathy” that Mr Lovelee came to is 10% WPI and with Mr Lovelee’s ADLs being moderately compromised giving 2% WPI, Dr Bodel assesses 12% WPI; Mr Lovelee’s persisting signs of radiculopathy involving the L5 nerve root on the left hand side attracts 3% WPI and with the three level decompression with the two extra levels attracting 2% WPI, Dr Bodel assesses further 5% WPI. The resulting 12% WPI combined with the 5% WPI totals 16% WPI, and
(ii)with no indication of clinically of any pre-existing abnormality or condition which is contributing to the overall level of impairment prior to Mr Lovelee commencing work with SICT, Dr Bodel is of the view there is no basis for deduction to be made under s 323 of the 1998 Act.
Review of the treating medical evidence
Workers Doctors
The recent clinical records of Workers Doctors relevantly document Mr Lovelee’s deteriorating low back pain, left leg numbness and also his mental fragility.
The clinical records describe Mr Lovelee’s difficulties with the Medical Assessor and record his subsequent formal complaint, with Mr Lovelee reporting “I feel traumatised”. Mr Lovelee’s appeal against the MAC is also noted.
On 24 November 2022 Dr Mo noted Mr Lovelee’s request for a second opinion regarding his low back injury and on 30 November 2022, Mr Lovelee’s treating psychologist noted that while Mr Lovelee had consulted with Professor Papantoniou the day before with Professor Papantoniou expressing opinion “fusion not necessary”, Mr Lovelee was to obtain a second opinion from Dr Coughlan.
On 23 February 2023, Mr Lovelee’s treating psychologist noted Mr Lovelee had consulted with Dr Coughlan the day before, with Dr Coughlan recommending surgical treatment in the nature of “lumbar decompression surgery to free up nerves”.
On 2 March 2023 Dr Mo similarly recorded Mr Lovelee had been reviewed by
Dr Coughlan who recommended decompression at L3/4, L4/5 and L5/S1.On 15 June 2023, Mr Lovelee’s treating psychologist noted Mr Lovelee had come to “back surgery on Tuesday” and the same day Dr Mo similarly noted Mr Lovelee had come to L3/4, L4/5, L5/S1 lumbar decompression under the care of Dr Coughlan on 13 June 2023.
The clinical records demonstrate that while Mr Lovelee clearly experienced some relief from the surgery, he continued to suffer low back pain, restriction on his activities of daily living and mental fragility. When last reviewed by his treating psychologist on
22 November 2023, Mr Lovelee had been unable to return to work and with his compensation payments having ceased after five years he reported “I have to adjust myself to home life and taking care for my children since my wife will be out working”.
Professor Papantoniou
The recent clinical records of Professor Papantoniou include his report dated
10 June 2021 in which he said of Mr Lovelee that while “his biggest problem at present is his lower back pain and a left L5 numbness” he should continue with conservative treatment.Mr Lovelee continued to regularly consult with Professor Papantoniou, and when last reviewed on 29 November 2022, while Professor Papantoniou described Mr Lovelee as continuing to suffer lower back pain and coming to MRI and CT of the lumbar spine on
3 November 2022, he remained of the view Mr Lovelee should continue with conservative treatment and essentially discharged Mr Lovelee back into the care of his general practitioner.
Dr Coughlan
The clinical records of Dr Coughlan as at 19 November 2023 include the MRI and CT scan of the lumbar spine dated 3 November 2022 and the letter of referral dated
24 November 2022 from Workers Doctors.In his report dated 22 February 2023, Dr Coughlan noted Mr Lovelee had developed “quite marked back pain and leg pain” while forklift driving and made reference to
Mr Lovelee having “had a significant accident when he hit a large pothole in the road”.
Dr Coughlan noted while Mr Lovelee had come to a total left hip replacement “he has had ongoing neuropathic pain down the left leg”. Dr Coughlan recommended surgical treatment in the nature of “a simple decompression at the lateral recess at L3/4, L4/5 and L5/S1” as opposed to a fusion, which was approved by the relevant workers compensation insurer.Dr Coughlan’s operation notes confirm Mr Lovelee came to the recommended decompression surgery on 13 June 2023, with subsequent referral for post-surgical physiotherapy and hydrotherapy treatment.
In his report dated 8 November 2023, Dr Coughlan described Mr Lovelee as “doing very well after his multilevel decompression” with his leg pain “almost completely abated”. While
Dr Coughlan noted Mr Lovelee had bilateral hip problems, he said of Mr Lovelee:“In terms of his lumbar spine, he needs to continue walking and I suspect he will continue to get significantly better.”
Legal considerations
Mr Lovelee’s 2024 Appeal is not without complexity, and particularly in light of Lovelee No 2 the Appeal Panel considered it necessary for the Appeal Panel to carefully review a number of legislative provisions and authorities relevant to Mr Lovelee’s 2024 Appeal.
Legislation
The legislative provisions reviewed by the Appeal Panel are canvassed below for the sake of completeness.
Section 6 of the Personal Injury Commission Act 2020 (PIC Act) relevantly provides for the establishment of the Commission.
Section 8 of the PIC Act relevantly provides the Commission consists of the following members:
(a) the President;
(b) Deputy Presidents;
(c) Principal Members;
(d) Senior Members, and
(e) General Members.
Section 12 of the PIC Act relevantly provides a Division of the Commission to be the Workers Compensation Division.
Section 31 of the PIC Act relevantly provides the Commission is to be constituted by one or more of the Commission Division to which the function of dealing with the proceedings is allocated.
Section 33 of the PIC Act relevantly provides for the appointment by the President of Medical Assessors for the purposes of the 1998 Act.
Section 58 of the PIC Act relevantly provides:
“Publication of decisions:
(1) The Commission must cause details of the following to be published in accordance with the Commission rules –
(a)decisions of the Commission
…
(b)decisions of Appeal Panels for medical assessments under Part 7 of Chapter 7 of the 1998 Act.”
Section 294 of the 1998 Act provides:
“Certificate of Commission’s determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Section 322A of the 1998 Act provides:
“One assessment only of degree of permanent impairment
(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of any injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of –
(a)Assessment and a medical assessment certificate under this Part, or
(b)A determination by the Commission under Part 4.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).”
Section 326 of the 1998 Act provides:
“Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court of the Commission with which the certificate is concerned –
(a)The degree of permanent impairment of the worker as a result of an injury,
(b)Whether any proportion of permanent impairment is due to any previous injury or re-existing condition or abnormality;
(c)The nature and extent of loss of hearing suffered by a worker;
(d)Whether impairment is permanent;
(e)Whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
Section 327 of the 1998 Act relevantly provides:
“Appeal against medical assessment
(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court of the Commission.
(3) The grounds for appeal under this section are any of the following grounds:
(a)deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b)availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c)The assessment was made on the basis of incorrect criteria,
(d)The medical assessment certificate contains a demonstrable error.
(4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the fact of the application any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5) If the appeal is on a ground referred to in subsection (3)(c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.
(6) The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
Note -
Section 329 also allows the President to refer a medical assessment back to the medical assessor for reconsideration (whether or not the medical assessment could be appealed under this section).
(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.
…”
Section 328 of the 1998 Act provides:
“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 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 substation 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 appeal 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.”
Section 329 of the 1998 Act provides:
“Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by –
(a)The President as an alternative to an appeal against the assessment as provided by section 327, or
(b)A court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
Authorities
It is essential to note authority the Appeal Panel considers to be central to Mr Lovelee’s 2024 Appeal, and of particular importance in the circumstances of Mr Lovelee’s 2024 Appeal are the matters of Sleiman v Gadalla Pty Ltd [3] and Lovelee No 2. Of relevance too is the recent decision of Pollard v Toll Holdings Pty Ltd.[4]
[3] [2021] NSWCA 236 (Sleiman).
[4] [2025] NSWPICPD 58 (Pollard).
In Sleiman, Mr Sleiman’s claim for permanent impairment compensation payable under s 66 of the 1987 Act was referred by consent for assessment of WPI by an Approved Medical Specialist (AMS) in the former Workers Compensation Commission (WCC). The AMS assessed Mr Sleiman with 2% WPI and a MAC was issued. Mr Sleiman subsequently appealed the MAC on the grounds the assessment was made on the basis of incorrect criteria, and the MAC contained a demonstrable error. Mr Sleiman was re-examined by a member of the Medical Appeal Panel who assessed Mr Sleiman with 14% WPI. The Medical Appeal Panel revoked the MAC issued and a new MAC (new MAC) was issued. The WCC subsequently issued a Certificate of Determination which reflected the increase in
Mr Sleiman’s WPI in accordance with the new MAC. Sometime later Mr Sleiman appealed the new MAC on the grounds there had been a deterioration of condition that results in an increase in the degree of permanent impairment. Mr Sleiman’s appeal failed essentially on the basis that an appeal from the new MAC was not available to him because the new MAC resulted from the decision of a Medical Appeal Panel. Mr Sleiman’s subsequent application to the NSW Supreme Court for judicial review of the delegate’s decision that his appeal could not proceed for jurisdictional reasons also failed. In essence, Harrison AJ said that a MAC issued by a Medical Appeal Panel is not the same as a MAC issued by a Medical Assessor in that a MAC issued by a Medical Appeal Panel it is not an “original” medical assessment as referred in s 328(2) of the 1998 Act, being the section which outlines procedure on appeal. Mr Sleiman subsequently appealed to the Court of Appeal, which in essence determined that in circumstances where there was a deterioration of his condition that resulted in an increase in the degree of permanent impairment it was available to Mr Sleiman to seek a reconsideration of the MAC issued by the Medical Appeal Panel. Of significance is that in Sleiman the Court of Appeal accepted Mr Sleiman’s appeal from the new MAC was precluded because of s 327(2) and s 327(7) of the 1998 Act, the former being that “a matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court of the Commission” and the latter being “there is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act”.In Lovelee No 2 Payne JA acknowledged Sleiman is authority for two propositions:
(a) section 327(2) does not permit an appeal form a MAC issued by an Appeal Panel under s 328(5) because it is not a certificate issued by a Medical Assessor, and
(b) section 327(7) does not permit an appeal after the dispute concerned has been the subject of determination by a court of the Commission or agreement registered under s 66A of the 1987 Act.
As to s 327(2), Payne JA said s 327(2) of the 1998 Act did not preclude Mr Lovelee’s 2024 Appeal. Payne JA explained that unlike in Sleiman, in Mr Lovelee’s matter, the 2021 Appeal Panel did not revoke the MAC and issue a new MAC. Accordingly, Mr Lovelee’s 2024 Appeal is an appeal from a MAC of a Medical Assessor and not an appeal from a MAC of an Appeal Panel.
As to s 327(7), Payne JA said s 327(7) did not preclude Mr Lovelee’s 2024 Appeal. Payne JA explained that unlike in Sleiman, Mr Lovelee elected to discontinue his proceedings following the 2021 Appeal Panel’s decision and as a consequence a Certificate of Determination under s 294 of the 1998 Act was not issued by the Commission. Payne JA said the 2021 Appeal Panel’s decision is not a determination by the Commission, with explanation at [47]-[48]:
“The PIC, in the ordinary course, would make a decision following an Appeal Panel Determination and issue a Certificate of Determination under s 294 of the WIM Act. This determines the amount of permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (NSW). The decision of an Appeal Panel performing its function under Chapter 7 Part 7 of the WIM Act is not a decision of the Commission.
There was no determination made by the Commission within the meaning of s 327(7) of the WIM Act following the 2021 Appeal decision, as the proceedings were discontinued without any determination being made. Section 327(7) did not preclude Mr Lovelee’s 2024 appeal.”
While it is evident from comment made by Payne JA at [51] in Lovelee No 2 that the intention behind the remittal to the President was “to permit consideration by Mr Lovelee of whether he should take the opportunity to have a reconsideration conducted rather than seek to prosecute an appeal before an Appeal Panel”, in circumstances where a delegate of President advised the parties that it was the Commission’s preliminary view that the matter should be referred to differently constituted Medical Appeal Panel under s 328(1) of the 1998 Act, a proposed course of action to which there was no objection by SICT, Mr Lovelee sought to “prosecute an appeal before an Appeal Panel”.
With reference to the clear reasoning discussed of Payne JA discussed above, in circumstances where the 2021 Medical Appeal Panel did not revoke the MAC and the Commission did not issue a Certificate of Determination following the decision of the 2021 Medical Appeal Panel, it is evident Mr Lovelee is not precluded from bringing his 2024 Appeal.
In Pollard Snell DP considered Lovelee No 2 and found that consistent with the reasoning of Payne JA, Mr Pollard was not precluded from brining an Appeal against a MAC in circumstances where there was a (combined) MAC from a Medical Assessor and there was no Certificate of Determination issued by the Commission under s 294 of the 1998 Act relevant to the MAC.
Discussion
On remittal from the Supreme Court, both Mr Lovelee and SICT were content for Mr Lovelee’s claim to be referred to the Appeal Panel, being a course of action available to Mr Lovelee.
Mr Lovelee sought to admit fresh evidence, which the Appeal Panel accepted is relevant to
Mr Lovelee’s 2024 Appeal and determined should be received on the appeal.In submission, both Mr Lovelee and SICT considered it appropriate that Mr Lovelee undergo a further medical examination as since Mr Lovelee was assessed by the Medical Assessor and the MAC was issued, there had been a deterioration in the injury he sustained to his lumbar spine in that Mr Lovelee came to surgical treatment on 13 June 2013 which necessarily results in an increase of percentage impairment of his lumbar spine.
Dr Kuru conducted an examination of Mr Lovelee on 16 July 2025 and reported to the Appeal Panel. It is evident from Medical Assessor Kuru’s examination report that Medical Assessor Kuru conducted his re-examination of Mr Lovelee in a thorough manner.
Medical Assessor Kuru was provided a history of injury occurring on 1 October 2016 which he reported was consistent to that recorded in the MAC and 2021 Appeal Panel. Medical Assessor Kuru recorded a history of subsequent treatment undertaken by Mr Lovelee in the nature of total left hip replacement, injection therapy, radiofrequency ablations and surgical treatment in the nature of a three-level decompression on 13 June 2023 under the care of
Dr Coughlan. Medical Assessor reported Mr Lovelee did not consider he had received “any sustained benefit” from the surgery and continues to pain in his lower back and buttock. Following clinical examination and review of the CT lumbar spine and MRI lumbar spine dated 3 November 2022, which postdate the MAC, Medical Assessor Kuru assessed
Mr Lovelee with 7% WPI resulting from injury he sustained to his lumbar spine on
1 October 2016:· Surgical procedure undertaken form decompression: 10% WPI
· Plus, restrictions of daily living (recreational activities): 1%WPI
11% WPI
· Plus, further surgical levels: 2% WPI
13% WPI
Less 50% deduction for pre-existing condition
· Total 7%WPI
The Appeal Panel accepts the level of impairment assessed by Medical Assessor Kuru, which were clearly derived from a thorough and detailed examination of Mr Lovelee.
CONCLUSION
For the reasons outlined above, the Appeal Panel has determined that the MAC issued on
5 July 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1397/21 |
Applicant: | Christopher Lovelee |
Respondent: | Sydney international Container Terminals Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Kumar and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Left lower extremity | 1/10/18 | Chapter 3 Page 13-22 | Chapter 17 Table 17-34 Page 548 Table 17-33 Page 546 Table 16-10 Page 482 Table 17-37 Page 522 Table 17-3 Page 527 | 15 | ½ | 8 |
| 2. Lumbar spine | 1/10/18 | 13 | ½ | 7 | ||
| 3. Digestive system | 1/10/18 | Chapter 16 Item 16.9 Page 78 | Chapter 6 Table 6-3 Page 121 Table 6-4 Page 128 Table 6.5 Page 131 | 0 | ||
| 4. Scarring 1/10/18 | 1/10/18 | Chapter 14 Table 14 Page 74 | Table 82 Page 178 | 2 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
0
4
0