Parmenter v Ians Transport Pty Ltd t/as Grundys Waste

DETERMINATION OF APPEAL PANEL
CITATION:	Parmenter v Ians Transport Pty Ltd t/as Grundys Waste [2025] NSWPICMP 514
APPELLANT:	Victor Parmenter
RESPONDENT:	Ians Transport Pty Ltd t/as Grundys Waste
APPEAL PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Geoffrey Curtin
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	15 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (WIM Act); Workers Compensation Act 1987 (WC Act); review of Medical Assessment Certificate (MAC); worker suffered skin cancer from sun exposure with impairment of the face and body assessed at 11%; accepted deemed date of injury of 18 September 2020 due to sun exposure by last employer; Medical Assessor (MA) assessed a one-tenth deduction resulting in 10% WPI; MAC contained demonstrable error by including previous relevant employment as basis for section 323 deduction contrary to section 68B of the WC Act; medical evidence and opinion of Appeal Panel that worker’s employment for last forty years was previous relevant employment as defined in section 68B; Vannini v Worldwide Demolitions Pty Ltd applied; re-assessment on papers; no basis to make a deduction; onus of proof of deduction on employer; Matthew Hall Pty Ltd v Smart and Asbestos Remover & Demolition Contractors Pty Ltd v Kruse applied; skin cancers and impairment caused by sun exposure over working life; period of self-employment did not establish sun exposure contributory to impairment; Held – assessment revoked; appellant assessed at 11% WPI.

BACKGROUND

Mr Parmenter (the appellant) was employed with the respondent and sustained skin cancers deemed to have occurred in the employ of Ians Transport Pty Ltd t/as Grundys Waste (the respondent) on 18 September 2020 (the work injury).
Mr Parmenter filed an Application to Resolve a Dispute (Application) seeking compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in relation to facial and body scarring. The application pleaded employment against:
(a)    Ians Transport Pty Ltd;
(b)    Melrose Cranes & Rigging Pty Ltd;
(c)    Dave Fenech Electrical Services, and
(d)    Roadworx Surfacing Pty Ltd.
The Application did not plead the periods of employment for the respondents. However, the allegation of injury within the Application was pleaded as:
“The applicant has been in the employ of the respondents over his career of more than forty years, During his employment, the applicant has experienced frequent exposure in the sun for extended periods of time. The applicant has since developed skin cancer and facial disfiguration as a result. Please refer to the applicant’s statements for further information.”
As there were liability issues, the matter was listed as a preliminary conference before Senior Member Haddock. At the preliminary conference the Senior Member made orders by consent in favour of the second to fourth respondents. The s 66 claim against the first respondent was remitted to the President for referral to a Medical Assessor with an agreed date of injury of 18 September 2020 (deemed).
The relevance of these orders and the effect of ss 15/16 and s 68B of the 1987 Act is explained later in these Reasons.

MEDICAL ASSESSMENT CERTIFICATE

The medical dispute was assessed by Medical Assessor Giles who issued a Medical Assessment Certificate dated 8 April 2025 (MAC).
The assessment of whole person impairment (WPI) is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[1] The fourth edition guidelines adopt the 5^th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[2]
[1] The fourth edition guidelines are issued pursuant to s 376 of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act).
[2] Clause 1.1 of the fourth edition guidelines.
The Medical Assessor noted that on the 27 July 2021 the appellant had a basal cell carcinoma excised from the left side of the forehead and at the same time a poorly differentiated squamous cell carcinoma was excised from the left temple with the defect being closed with a full thickness skin graft taken from the left side of the anterior chest wall. On 17 February 2022 another basal cell carcinoma was excised from the left side of the forehead and a lesion on the left side of the nose was biopsied. This nasal lesion proved to be another basal cell carcinoma which was excised on 9 March 2022 with the defect then filled with a small full thickness skin graft
Under the heading “Work history including previous work history” the Medical Assessor recorded the following:
“Mr Parmenter left school after completing year 9 and he initially worked as a labourer and rigger. After obtaining a truck driver’s licence, he worked as a truck driver for the 37 years and for three years he worked on the roads operating Stop/Go signs. While working as a truck driver he would be exposed to the sun for several hours each day and sometimes he applied sunscreen cream and sometimes he wore a hat; however, he is no longer working because of his shoulder injuries.”
The Medical Assessor diagnosed sun induced facial skin malignancy. The clinical appearance of the skin condition was consistent with the history obtained and the treatment received.
The Medical Assessor assessed the facial condition based on the skin damage at 10% impairment and the scarring on the chest wall where the full thickness skin graft was harvested, at 1%.
The Medical Assessor made the following observations concerning “relevant previous injuries, pre-existing conditions or abnormalities”.
“Pre-existing skin sun damage. It was noted that Mr Parmenter had a skin cancer removed from his right temple about 10 years before this assessment, he had also noted a suspicious lesion on his nose in November 2019, but it had apparently resolved spontaneously. In addition to this, he has had a working life in which he had repeated sun exposure.”
The Medical Assessor applied a one-tenth deduction to the assessment of the face pursuant to the provisions of s 323(2) of the 1998 Act. This resulted in an overall assessment of permanent impairment of 10%

APPLICATION TO APPEAL MEDICAL ASSESSMENT

On 5 May 2025 the appellant lodged an Application to Appeal Against the Decision of the Medical Assessor. The grounds of appeal were that the MAC contained a demonstrable error and the Medical Assessor incorrectly applied s 323 of the 1998 Act.
The appellant did not request a re-examination. This is consistent with the confined grounds of appeal.
The respondent filed a Notice of Opposition to Appeal Against a Decision of the Medical Assessor denying that there was relevant error. It also accepted that the appeal could be decided based on the documents before the Appeal Panel.
The delegate of the President was satisfied that a ground of appeal has been made out and referred the application to appeal to a Medical Appeal Panel.
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and the parties’ submissions on the appeal.
We are required to only address the subject matter of the ground of appeal. In Queanbeyan Racing Club Ltd v Burton[3] Basten JA stated:[4]
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessors’ reasoning with respect to that finding; neither course was part of its statutory function.”

SUBMISSIONS

[3] [2021] NSWCA 304 (Burton).

[4] At [35], Leeming and McCallum JJA agreeing.

Appellant’s submissions dated 5 May 2025

The appellant submitted that the Medical Assessor incorrectly applied s 323 of the 1998 Act by failing to consider s 68B of the 1987 Act.
The appellant also alleged that the MAC contains a demonstrable error.
The appellant referred to his statement evidence of 3 April 2024 that he had a lengthy working life involving extensive sun exposure. This was acknowledged by the Medical Assessor at paragraph 10A of the MAC.
The appellant noted that the only significant sun exposure came from employment over the years with different employers and there was no evidence to suggest that the injuries were contributed to by anything other than employment.
The appellant noted that he had not received any lump sum compensation for the injuries due to the skin and that s 68B(2) applied. The appellant submitted:[5]
“Further, the permanent impairment that the assessor has deemed as pre-existing is due to the appellant's employment in previous relevant employment. The relevant employment being employment that required the claimant to experience continued sun exposure over prolonged periods of time. Again, there is no evidence to suggest that anything else but the appellant's employment with the respondent and his previous employers has contributed to the contracting of this disease injury. Again, s 68B(2) of the WCA Act therefore applies, negating the need for the Assessor to make any deduction pursuant to s 323 of the WIM Act.”
[5] Appellant’s submissions, par 12.
The appellant submitted that there should be no deduction pursuant to s 323 of the 1998 Act and that his WPI is 11%.

Respondent’s submissions dated 27 May 2025

The respondent submitted that the assessment was “open to him” and does not contain a demonstrable error. The respondent submitted:[6]
“For the purposes of this matter, there is no previous relevant employment. The only employer on risk for this injury is the first respondent. Therefore the compensation which would be payable is not subject to apportionment, and there is no previous relevant employment within the meaning of section 68B(2).”
[6] Respondent’s submissions, par 2.8.
The respondent referred to the appellant’s statement that he was operating his own lawn mowing business from 2015 to 2020 working approximately 10 hours per week in winter and 25 hours per week in summer. It submitted that it was “factually inaccurate for the appellant to assert that his sun exposure related only to his employment with the respondent and previous employers – when he spent over five years lawn mowing for substantial periods of time outside.”
The respondent referred to the decision of Fire and Rescue NSW v Clinen[7] observing that Campbell J held that the “evidence must actually support the connection between a previous injury and the overall degree of impairment”. This decision was discussed in Riley v Boral Constructions Materials Group Ltd[8] although there was no evidence of skin damage from sun exposure before the claimant then commenced employment with the employer.
[7] [2013] NSWSC 629 (Clinen).
[8] [2021] NSWPICMP 36 (Riley).
The respondent referred to the decision of Cole v Wenaline Pty Ltd[9] as to the need for evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality contributing to the impairment.
[9] [2010] NSWSC 78 (Cole).
The respondent submitted that there was clear evidence of a causal connection between the appellant’s previous sun damage over 41 years, evidence of previous skin cancer prior to the appellant commencing employment with the respondent along with the secondary self-employment whilst lawn mowing.
The respondent submitted that it was appropriate for the Medical Assessor to make a one-tenth deduction pursuant to s 323 of the 1998 Act. It submitted that a deduction for a pre-existing impairment is not limited to conditions that was symptomatic prior to the subject incident referring to Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation).[10]
[10] [2013] NSWCA 365.
The respondent noted other authorities which emphasise the focus of the calculation should be on the pre-existing condition itself and its actual consequences. It submitted:[11]
“The respondent submits that the MAP would be satisfied that on the evidence before them the appellant suffered from pre-existing skin cancer conditions prior to the commencement of his employment in 2020. The appellant has admitted that he had a skin cancer removed in 2015, a suspicious lesion in 2019, and he consulted a dermatologist 20 years prior due to lesions on his forearms.”
[11] Respondent’s submissions, par 2.23.
The respondent submitted that the Medical Assessor was required to make a deduction from pre-existing conditions consistent with s 323 of the 1998 Act, and s 68B of the 1987 Act does not apply.

DEMONSTRABLE ERROR BY MEDICAL ASSESSOR

We agree with the appellant’s submission that the MAC contains a demonstrable error in the failure to apply s 68B of the 1987 Act.
Section 68B(2) of the 1987 Act relevantly provides:
“(2) When determining the compensation payable by an employer in a case in which section 15 applies (disease of such a nature as to be contracted by a gradual process), section 323 of the 1998 Act applies to that compensation subject to the following—
(a)there is to be no deduction under section 323 of the 1998 Act for any proportion of the permanent impairment that is due to the worker's employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,
(b)for the purposes of paragraph (a)
‘previous relevant employment’ is employment to the nature of which the disease was due by a previous employer who is liable under section 15 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period).”
Section 68B(3) of the 1987 Act is in similar form except it applies to s 16 of the 1987 Act.
Injury is defined in s 4 of the 1987 Act and means a personal injury and includes a disease injury. The section relevantly provides:
"‘injury’ --
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’ which means--
(i) 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, and
(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”.
Injuries that fall within s 4(b)(i) may be deemed to have occurred pursuant to s 15 of the 1987 Act which provides:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process-
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
Section 15 is substantially consistent with s 16 of the 1987 Act.
Sections 15 and 16 do not create an independent source of entitlement and assumes that that injury determined under s 4(b) has occurred.[12]
[12] Crisp v Chapman (1994) 10 NSWCCR 492 at [495].
The consent orders issued by the Senior Member are consistent with the application of s 4(b) and either s 15 or s 16 of the 1987 Act in that liability disputes are determined by a Member,[13] whereas a Medical Assessor determines the degree of permanent impairment that results from injury.[14]
[13] Jaffarie v Quality Castings Pty Ltd (No 2) [2018] NSWCA 88 at [80]-[81].
[14] Haroun v Rail Corporation New South Wales [2008] NSWCA 192 and Bindah v Carter Holt Harvey Woodproducts Pty Ltd [2014] NSWCA 264 at [119].
The Appeal Panel can analyse the evidence when determining whether the certificate contains a demonstrable error: Vannini v Worldwide Demolitions Pty Ltd.[15] In Vannini Gleeson JA observed that, consistent with the observations of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales, a “demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist”.[16]
[15] [2018] NSWCA 324 (Vannini) at [90].
[16] Vannini at [86].
In an unsigned statement provided to an investigator on 29 November 2021, the appellant stated he commenced employment as a truck driver with the respondent in February 2020 working 60 hours per week. The appellant wore one long sleeve shirt, proper waste gloves from time to time and one pair of goggles as well as a cap.[17]
[17] MAP bundle, p 47.
The appellant worked outside “all of my adult life” and had a skin cancer cut out of the right temple some years ago whilst working for NSW Precast between 2003 and 2010.
The appellant made a further statement dated 3 April 2024 which provided details of prior employment.[18] The appellant’s prior work history was:
[18] MAP bundle, p 60.
-      Dave’s Crane and Rigging from 1979 to 1986 as a labourer, rigger and crane driver;
-      Glen Rail from 1986 to 1987 as a Crene driver and Dogman;
-      Wilson Cranes from 1987 to 2000 as a crane driver, truck driver and Dogman;
-      Wyco from 2000 to 2003 as a crane driver, truck driver and Dogman;
-      NSW Precast from 2003 to December 2010 as a crane driver, truck driver and Dogman;
-      Melrose Cranes from December 2010 to 2015 as a crane driver, truck driver and Dogman;
-      Roadworx from 2015 to 2018 as a Truck Driver and Traffic controller;
-      David Fenech Electrical Services from 2018 to 2020 as a Truck driver, labourer and spotter, and
-      the respondent until 18 September 2020.
The appellant was also self-employed at GBY Lawn Care and Maintenance from 2015 to 18 September 2020. This work was part-time working approximately 10 hours per week in winter months and 25 hours per week in summer months. The appellant stated:[19]
“Whilst self-employed at GBY Lawn Care and Maintenance, I would operate both ride on lawn mowers and push lawnmowers. I confirm that whilst operating the mowers, I would always wear full protective gear including a full brim hat, cap with earmuffs, safety sunglasses, gloves, a long sleeve shirt, short sleeve shirt, long pants, boots and sunscreen.”
[19] MAP bundle, p 61.
Professor David, craniomaxillofacial surgeon was qualified by a respondent and provided a report dated 21 November 2024.[20] The doctor noted a history that the appellant commenced work at age 15 and had always worked outside and was essentially illiterate.
[20] MAP bundle, p 135.
Professor David diagnosed facial scarring resulting from excisions of multiple skin cancers and solar keratosis of the face to the long-standing exposure to actinic radiation from the sun. Professor David stated:[21]
“Mr Parmenter suffers from facial disfigurement and scarring from the excisions of multiple skin cancers. The skin cancers are secondary to the cumulative effects of actinic radiation from the sun.
His relatively short period of employment with Roadworx Surfacing Pty Limited would most likely have added to the accumulating effects but, considering his history of sun exposure in other places of employment and most probably other areas of his life, it was not the sole cause of his sun damaged skin and development of skin cancers.”
[21] MAP bundle, p 139.

Later in his report Professor David stated that he agreed with Dr Lai’s initial assessment of an 80% deduction for pre-existing sun exposure.
Dr Min Fee Lai, surgeon, plastic and reconstructive surgeon was qualified by the appellant and provided a report dated 22 March 2022.[22] The doctor noted a history that the appellant started work as a labourer and rigger after finishing year nine of high school and had been truck driving for the last 37 years.
[22] MAP bundle, p 158.
Dr Lai noted a history that the appellant was a truck driver for 37 years, would be regularly exposed to the sun, particularly in the face and arms. The work was approximately 10 hours per day for five to six days a week. The doctor noted that the appellant underwent a pre-employment assessment on 20 February 2020, and the skin was reported as normal. Not long after the commencement of employment with the respondent, the appellant noticed a lesion over the left temple region. Dr Lai opined:[23]
“It is my opinion that on the balance of probabilities, it is unlikely that there is a connection between your client employment and the pathology that I have diagnosed. This is given the history of his previous exposure to the sun for well over 30 years in his line of work prior to his employment with Grundys Waste. There is also a previous history that 10 years ago he had a skin cancer removed from his right temple, as well as cryotherapy for skin lesions to his arms.”
[23] MAP bundle, p 163.
Dr Lai provided a further report dated 4 July 2023[24] which noted further operations for the skin cancer following the previous report. In respect of a diagnosis for the cause of the skin cancers, Dr Lai stated:
“It is my opinion that on the balance of probabilities it is unlikely that there is total connection between your client’s employment and the pathology that I have identified. This is given the history of his previous exposure to sun for well over 30 years in his line of work as a truck driver prior to Grundy’s Waste. He started work with Grundy’s Waste in 2020.
His development of the recent skin cancers is only partially caused by his employment with Grundy's Waste.”
[24] MAP bundle, p 167.
Dr Lai provided a further report dated 4 July 2023 which commented on the assessment of permanent impairment and in the extent of any reduction for any pre-existing condition, injury or abnormality.[25] Dr Lai stated:
“Your client has had previous skin cancers prior to him starting employment with Grundy’s Waste. He was a truck driver for well over 30 years prior to starting with Grundy’s Waste. He has also had a previous skin cancer excision from his arm 10 years before he started with Grundy’s Waste. Therefore it is my opinion that the majority of his disease injury to his face is attributable to his pre-existing work as a truck driver. It would be appropriate to attribute 80% deduction from the impairment that I have attributed due to his facial disfigurement.
The total impairment of your client from facial disfigurement due to his employment with Grundy’s Waste is therefore 12% minus 9.6%% (80% deduction) = 2% WPI (rounded off).
The total impairment of your client from his facial disfigurement due to employment with Grundy’s Waste is therefore 2% WPI.”
[25] MAP bundle, p 175.
Dr Lai provided a further report dated 18 September 2023.[26] The doctor than opined that the appellant’s employment with the respondent aggravated the disease process and appeared to revise his opinion on the extent of any deduction.
[26] MAP bundle, p 178.
Dr Yasantha Rajapakse, plastic surgeon, provided a report dated 18 December 2023.[27] The doctor’s opinion on causation of the employment causing the skin condition is set out in full. Dr Rajapakse stated:[28]
“Mr Parmenter has had multiple exposures to sun throughout his career working as a crane operator, truck driver and dogman. As stated in ‘Educational / Occupational History’, he had significant periods of sun exposure especially in the 1980s and 1990s and early 2000s which did not involve any regular sun cream according to Mr Parmenter. He worked for 13 years in Wilson Cranes from 1987 to 2000. Following this he worked for Whyco Cranes from 2000 to 2003 and then another seven years with NSW Precast Cranes from 2003 to 2010 prior to working for Melrose Cranes and Rigging from 2010 to 2014 when he stopped his role as a crane driver.
It is highly likely that all of these jobs contributed to his sun exposure and the development of skin cancer. Similarly, working as a traffic controller from 2014 to 2018 as well as a labourer with Fennec Electrical from 2018 to 2020 and working in Grundy’s Waste.”
[27] MAP bundle, p 265.
[28] MAP bundle, p 270.
Dr Rajapakse concluded that the employment working as a crane operator over a variety of jobs had contributed and aggravated the development of skin cancers.
Dr Rajapakse provided a further report dated 2 July 2024.[29] The doctor agreed with Dr Lai’s diagnosis that the multiple roles as a crane driver and truck driver initially not wearing so much sun protection had been a causative factor in the development of skin cancers on the face. He opined that the work with David Fenech Electrical Services partially aggravated the development of the skin cancers although it was unlikely that this would have been a significant contribution to the development of skin cancers. The doctor stated that the “overall employment with the various employers listed over the last forty years would have been a much more significant impact for developing skin cancer”.
[29] MAP bundle, p 305.
Dr Rajapakse stated that he did not believe that there were any pre-existing factors that would have caused the appellant skin cancer and that the most likely accumulative exposure to sun over the various roles as a crane truck driver over the last 40 years definitely contributed to the development of skin cancer.
The appellant has a lengthy period of sun exposure in work over 40 years. The medical evidence before the Appeal Panel shows that the prior employment since the age of 15 years was “previous relevant employment” within the meaning of s 68B of the 1987 Act because it was employment to the nature of which the skin cancers were due involving continually unprotected exposure to sunlight. This is particularly so during the earlier periods of employment where the histories record that there was less regard for protective sun protection.
The appellant clearly suffers from a disease as defined in s 4(b). It is sufficient to refer to the meaning ascribed to a disease in authorities such as Favelle Mort Ltd v Murray[30] as a “morbid condition of the body”. The diagnosis provided by the Medical Assessor, which is not the subject of a ground of appeal, shows that the appellant suffers from “sun induced facial skin malignancy”.
[30] (1976) 133 CLR 580 at [587].
The parties did not consider and address whether the injury falls within s 4(b)(i) or (ii) of the 1987 Act. If there is an examination of only the period of employment with the respondent, then clearly the disease was aggravated, accelerated etc during that period as opposed to being contracted. This is because the substantial earlier employment had already caused the disease which was further aggravated in the course of employment with the respondent. This conclusion is again consistent with the medical evidence referred to herein.
This conclusion also means that s 16 applies to the deeming of the injury and s 68B(3) rather than s 68B(2) applies. Nothing turns upon that for the purposes of discussing the application of s 68B as both sub-sections (2) and (3) disregard previous relevant employment for the purposes of making any deduction pursuant to s 323 of the 1998 Act.
It is unclear on what basis the respondent asserted that there is no previous relevant employment.[31] The medical opinion cited above and the medical expertise on the Appeal Panel support the conclusion that the appellant’s employment since the age of 15 years was employment to the nature of which the disease was due. This is clear from the applicant’s detailed account of sun exposure over many years, some of which was minimal or absent in terms of proper protection.
[31] See at [26] herein.
We find that the extensive working life involving repeated sun exposure which contributed to the skin condition and the resultant impairment is not considered when assessing the s 323 issue by reason of s 68B of the 1987 Act. Similarly, the reference to the removal of the skin cancer some 10 years previously is again due to the previous relevant employment which must be expressly disregarded for the purposes of s 323.
The demonstrable error by in the MAC under the heading “pre-existing conditions or abnormalities” is that the Medical Assessor has considered the skin cancer removed some ten years previously and the “working life in which he had repeated sun exposure” as a basis for the deduction. It is a demonstrable error to consider the previous employment as a factor under s 323 as pursuant to s 68B, the previous employment and the skin condition it caused ten years previously was “previous relevant employment”. The respondent’s submission set out at paragraph 32 herein is a repeat of the same error.
The error is “demonstrable” because it is based on a misapplication of the legislation, directly affected the s 66 assessment and prevented the appellant from obtaining compensation.
Consideration of these matters in the MAC on the issue of the deduction under s 323 show the misapplication of s 68B of the 1987 Act. This is a demonstrable error and is otherwise a misapplication of s 323 of the 1998 Act.

RE-EXAMINATION

In Vannini v Worldwide Demolitions Pty Ltd[32] Gleeson JA stated that an Appeal Panel, when considering the reasoning of an Approved Medical Specialist on the question of causation under s 323, was required to determine “whether any proportion of the impairment was due to any previous injury, or pre-existing condition or abnormality” and if so, “what was that proportion”.[33]
[32] [2018] NSWCA 324 (Vannini) at [90].
[33] Vannini at [90].
A deduction pursuant to s 323 of the 1998 Act is required if a proportion of the permanent impairment is due to previous injury or due to pre-existing condition or abnormality: Vitaz v Westform (NSW) Pty Ltd;[34] Ryder v Sundance Bakehouse (Ryder)[35] and Cole.
[34] [2011] NSWCA 254.
[35] [2015] NSWSC 526 (Ryder) at [54].
The onus of proof in establishing the s 323 defence lies on the respondent. In Asbestos Remover & Demolition Contractors Pty Ltd v Kruse,[36] a Medical Panel concluded that the onus of proof was on the employer to establish a non-compensable cause in industrial deafness cases.[37] Reference was made by that Panel to the observations of Barwick CJ in Sadler v Commissioner for Railways[38] and Garling J in Pereira v Siemens Ltd.[39] These decisions are consistent with the Matthew Hall Pty Ltd v Smart[40] where Giles JA accepted the employer’s concession that it bore the onus in establishing a deduction under s 68A (the statutory predecessor to s 323).[41]
[36] [2017] NSWWCCMA 51 (Kruse).
[37] Kruse at [52]-[54].
[38] (1969) 123 CLR 216.
[39] [2015] NSWSC 1133.
[40] [2000] NSWCA 284 (Smart) at [32] and [37], Mason P and Powell JA agreeing.
[41] Smart at [37].
In Cullen v Woodbrae Holdings Pty Ltd[42] Beech-Jones J noted:
“Thus to establish a pre-existing condition for the purposes of s 323(1) there must, at the relevant date, be an actual condition although it may be asymptomatic. A mere predisposition or even a susceptibility is not sufficient to constitute a condition.”
[42] [2015] NSWSC 1416 (Cullen) at [57].
The relevant date in Cullen for the purpose of a disease condition was accepted to be the period predating the period of employment.
In this case the pre-existing condition may be a reference to the period prior to the “previous relevant employment” which meant when the period prior to the appellant commencing work at the age of 15 years must be considered.
We agree with the detailed opinion expressed by Dr Rajapakse[43] of the causative role of the development of the skin cancers and the facial impairment caused by the forty years of employment and the absence of any pre-existing factors.
[43] See at [55]-[58] herein.
The medical opinion summarised earlier refers to a deduction based on sun exposure during the appellant’s working life reflective of the relevant apportionment due to exposure by previous employers.[44] This is an incorrect assessment of the s 323 deduction as the opinions do not consider the application of s 68B and are legally incorrect.
[44] See at [48] – [49], and [53].
There is no evidence that the appellant had a previous injury, pre-existing condition or abnormality prior to commencing work as a 15-year-old. The respondent bears the onus of proof and has not discharged that onus with evidence addressed to the correct question.
The respondent otherwise relied on the period of self-employment from 2015 to 2020 submitting that the appellant’s submissions were factually inaccurate as to other sun-exposure. However, the respondent failed to refer to the appellant’s evidence of this work which we have set out earlier.[45]
[45] See at [46] herein.
The respondent did not criticise the appellant’s evidence ignoring in its submissions this paragraph. The appellant was otherwise described by the various doctors qualified in this matter as reliable and consistent.
Further, the parties accepted that the matter could be determined on the papers.
Consistent with these matters, we accept the appellant’s account of the lack of sun exposure during the period of self-employment. In these circumstances, the respondent has not established through any medical opinion that the period of self-employment was contributory to any impairment.
Furthermore, it is questionable that the period of self-employment could constitute a previous condition or abnormality given the application of s 68B to this case. The principle articulated in Cullen is otherwise consistent with the Court of Appeal decision in Secretary, Department of Education v Johnson[46] that s 323 of the 1998 Act provides for deduction or apportionment relating to a previous, but not a subsequent, injury.
[46] [2019] NSWCA 321 at [109].
Leaving aside the issue of whether that exposure preceded the period of employment and the period that cannot be considered pursuant to s 68B, we do not accept, on the history provided and the medical expertise of the Appeal Panel that the exposure during the period of self-employment, contributed to any impairment.

CONCLUSION AND ORDERS

For these reasons, we have determined that the MAC is revoked, and a new Medical Assessment Certificate is issued. Mr Parameter’s permanent impairment caused by the accepted work injury is 11%.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W421/25
Applicant:	Victor Parmeter
Respondent:	Ians Transport Pty Ltd t/as Grundys Waste

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 Giles 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 Guidelines	AMA 5	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Face	18/09/2020 (deemed)	Chapter 6 Page 34 Table 6.1	Not Applicable	10%	0	10%
Skin	18/09/2020 (deemed)	Chapter 14 Pages 73-76 Table 14.1	Chapter 8.7	1%	0	1%
Total % WPI (the Combined Table values of all sub-totals)					11%

[2025] NSWPICMP 514

15 July 2025