Pg Motors Pty Ltd t/as Lismore Nissan Kia v Easton
[2025] NSWPICMP 813
•21 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | PG Motors Pty Ltd t/as Lismore Nissan Kia v Easton [2025] NSWPICMP 813 |
| APPELLANT: | PG Motors Pty Ltd T/AS Lismore Nissan Kia |
| RESPONDENT: | Roger Easton |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 21 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by respondent employer in respect of a calculation error in assessment of whole person impairment (WPI) of right shoulder and in respect of a failure by Medical Assessor (MA) to make a section 323 deduction in respect to the cervical spine; appeal by applicant worker in respect of a failure to provide any and/or an adequate reasons to assert there was no evidence of radiculopathy of the cervical spine; applicant worker conceded that there was a calculation error in relation to assessment of the right shoulder; Appeal Panel satisfied that MA erred in his assessment in relation to a deduction under section 323 and failed to provide sufficient reasons for his conclusion that the applicant worker had no radiculopathy; applicant worker re-examined; Held –MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 June 2025 PG Motors Pty Ltd T/AS Lismore Nissan Kia (PG Motors) lodged an Application to Appeal Against the Decision of a Medical Assessor (Matter No
M1-W29271/24). The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 May 2025.On 19 June 2025 Roger Easton (Mr Easton) lodged an Application to Appeal Against the Decision of a Medical Assessor (Matter No M2-W 29271/24).
Both PG Motors and Mr Easton rely on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out.
The delegate ordered that the matters proceed to a Medical Appeal Panel to be dealt with concurrently.
The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Easton sustained an injury to his cervical spine and right upper extremity in the course of his employment with PG Motors on 9 November 2020.
Mr Easton filed an Application to Resolve a Dispute dated 27 November 2024.
The matter was referred to Dr Peter Honeyman, Medical Assessor, for assessment of whole person impairment (WPI) the cervical spine and right upper extremity (shoulder).
The Medical Assessor examined Mr Easton on 24 March 2025.
The Medical Assessor assessed 7% WPI of the cervical spine and 13% WPI of the right upper extremity (shoulder) which combined to total 19% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for Mr Easton to undergo a further medical examination because there was insufficient information upon which to make a decision.
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 Margaret Gibson of the Appeal Panel conducted an examination of
Mr Easton on 26 September 2025 and reported to the Appeal Panel.
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
Matter Number M1-W29271/24
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
PG Motors’s submissions include the following:
(a) Ground 1 - calculation error in respect of the right shoulder assessment - there appears to be an obvious typographical error in the calculations on page 6 of the MAC which appeared to have been reversed from the recorded findings on page 3. This obvious error should be corrected;
(b) the recorded range of motion findings for the uninjured left shoulder confirm an upper extremity impairment of 5% upper extremity impairment (UEI). This 5% UEI of the left shoulder serves as a “baseline” and in accordance with Clause 2.20 of the Guidelines, should have been deducted from the UEI calculation of the right shoulder;
(c) the correct calculation for the right shoulder is 17% UEI (22% less 5%) which, in accordance with Table 16-3 of the AMA-5, converts to a 10% WPI and not 13% WPI as calculated in the MAC;
(d) therefore, the Medical Assessor has erred in his calculations and has failed to adequately apply Clause 2.20 of the Guidelines. The assessment for the right shoulder should be 10% WPI;
(e) Ground 2 - the Medical Assessor has not made any s 323 deduction from his assessment of WPI in relation to the cervical spine;
(f) the Medical Assessor, at page 4 of the MAC indicates that the diagnosis of the work-related injury to the cervical spine was “aggravated degenerative changes in the neck.” The nature of the diagnosis of the Medical Assessor acknowledges the presence of underlying/pre-existing pathology in the cervical spine;
(g) the Medical Assessor on page 6 incorrectly states that Dr Miller, the respondent’s qualified independent medical examiner (IME) made no such deduction. Dr Miller had in fact applied a one-tenth s 323 deduction to his assessment of the cervical spine (ARD – 36). Dr Robinson, the appellant’s qualified IME, had applied a one-half s 323 deduction from his assessment of the cervical spine (Reply – 8);
(h) the Medical Assessor has erred in not applying a s 323 deduction from his assessment of the cervical spine. At least a minimum of a “one-tenth” deduction that should have been applied, resulting in an assessment of 6% WPI for the cervical spine;
(i) failure to provide adequate reasons - the Medical Assessor has failed to disclose an adequate reasoning for his failure to apply a s 323 deduction from his assessment of the cervical spine, despite diagnosing the nature of the work injury as an “aggravation” of degenerative changes in the cervical spine. In Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22, the Court said: “A demonstrable error would essentially be an error for which there is no information or material to support the finding made – rather than a difference of opinion.”;
(j) the Medical Assessor is not required to give expansive reasons for the ultimate conclusion but is required to disclose the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law;
(k) the Medical Assessor has failed to adequately disclose his path of reasoning in terms of the failure to apply s 323 of the 1998 Act 1998. At page 6 of the MAC the Medical Assessor states: “Dr Miller makes no deduction for degenerative changes. I agree with this.”;
(l) this comment by the Medical Assessor is incorrect as Dr Miller had applied a one-tenth deduction to his assessment. The Medical Assessor did not provide any reasoning as to why he was “in agreement” that no deduction should be made;
(m) the Medical Assessor had failed to provide reasons as why he considered a s 323 deduction was not required despite acknowledging the presence of underlying degenerative changes, and
(n) the MAC dated 22 May 2025 should be set aside and a further MAC issued assessing the right shoulder as a 10% WPI and the cervical spine as a 6% WPI, resulting in a final assessment of 15% WPI.
Mr Easton’s submissions include the following:
(a) Ground 1- Mr Easton concedes that the Medical Assessor has made an error and the correct assessment of WPI based on the Medical Assessor’s examination of the shoulders should have been 10% WPI;
(b) Ground 2 - The second ground relates to the Medical Assessor making no deduction pursuant to s 323 of the 1998 Act;
(c) PG Motors correctly identifies that the Medical Assessor has misquoted Dr Miller. Dr Miller did in fact apply a 10% deduction;
(d) however, the Medical Assessor does provide some brief further reasons as to why he assessed there to be no deduction pursuant to s 323 with respect to the assessment of the cervical spine;
(e) at paragraph 11 the Medical Assessor notes that Mr Easton had no prior problems or symptoms in his cervical spine and it is for this reason that he applies no deduction pursuant to s 323, and
(f) such a finding was available on the evidence before him.
Matter Number M2-W29271/24
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
Mr Easton’s submissions include the following:
(a) Ground 1 - the Medical Assessor made appealable errors in respect of a failure to provide any and/or an adequate rationale to assert there was no evidence of radiculopathy of the cervical spine;
(b) the Medical Assessor assessed the appellant’s cervical spine as contributing 7% WPI;
(c) the Medical Assessor failed to properly engage with paragraph 4.27 of the Guidelines. He failed to provide any, or any sufficient, rationale for his findings in order to adequately demonstrate the methods used in his assessment of radiculopathy;
(d) the Medical Assessor failed to properly engage with evidence available concerning Mr Easton’s pain, injury, and symptomology of his cervical spine.
(e) the omission to apply the requirements of the Guidelines paragraph 4.27, and to give reasons for doing so, demonstrates error on the face of the MAC, requiring that it be revoked. His omission to take into account Mr Easton’s cervical spine symptomology demonstrates error on the face of the MAC, requiring that it be revoked and reissued;
(f) the failure to provide any, or any sufficient, explanation as to how conclusions were made regarding his findings that the examination did not support a finding of radiculopathy, constitutes both a demonstrable error and a failure to apply the correct criteria, and
(g) the correct DRE category for the cervical spine injury is DRE III.
PG Motor’s submissions include the following:
(a) in accordance with cl 1.6 of the Guidelines an assessment of permanent impairment is to be based on clinical assessment of the claimant as they present on the day of assessment, taking into account relevant medical history and available medical information;
(b) the Medical Assessor had recorded an appropriate history in relation to the appellant’s cervical spine problems and mechanism of injury in relation to the appellant’s neck and right shoulder. Under the heading “Findings on Physical Examination”, the Medical Assessor noted that examination of the neck showed a markedly restricted movement in every direction with asymmetrical loss of range of movement. The Medical Assessor confirmed he did not elicit neurological problems to suggest the presence of radiculopathy;
(c) the Medical Assessor had appropriately considered the available evidence before him and referred to a report from Dr Adams, treating neurologist, which did not support a C6 radiculopathy. The MAC also discloses on page 4 that the Medical Assessor had reviewed and considered the available radiological evidence;
(d) the Medical Assessor has appropriately applied the criteria in accordance with the Guidelines together with the AMA 5. The appellant has not demonstrated what is the demonstrable error;
(e) the MAC does disclose a sufficient path of reasoning for the Medical Assessor’s ultimate allocations noting the findings made on physical examination and his commentary provided at page 6 of the MAC. The findings and assessment of the Medical Assessor are consistent with the findings of Dr Adams, and
(f) the MAC of 22 May 2025 should be confirmed.
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.
M1-W29271/24
Ground 1 - Calculation error in respect of the right shoulder assessment
PG Motors submits that there is obvious typographical error in the calculations on page 6 of the MAC which appeared to have been reversed from the recorded findings on page 3. PG Motors submits that the assessment for the right shoulder should be 10% WPI.
Mr Easton concedes that Medical Assessor Honeyman has made an error and the correct assessment of whole person impairment based on Medical Assessor Honeyman’s examination of the shoulders should have been 10% WPI.
This ground of appeal is made out.
The Appeal Panel finds that the correct assessment of WPI of the right shoulder is 10% WPI.
Ground 2 - failed to apply a s 323 deduction for the assessment of the cervical spine
PG Motors submits that the Medical Assessor failed to apply a s 323 deduction for the assessment of the cervical spine and failed to provide any adequate reasoning for not doing so.
The Medical Assessor, at page 4 of the MAC indicated that the diagnosis of the work-related injury to the cervical spine was “aggravated degenerative changes in the neck.” The Appeal Panel accepts that the nature of the diagnosis of the Medical Assessor acknowledges the presence of underlying/pre-existing pathology in the cervical spine.
At [8e]. of the MAC the Medical Assessor wrote: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No”.
The Medical Assessor on page 6 of the MAC stated that Dr Miller, Mr Easton’s qualified Independent Medical Examiner (IME) made no deduction for degenerative changes and wrote; “I agree with this.”
At Part 11 of the MAC the Medical Assessor wrote:
“a) In my opinion the worker suffers from the following relevant previous injuries, preexisting conditions or abnormalities:
(i) He had age related degenerative changes of his cervical spine, but without prior
problems and symptoms”.
In my opinion there is no deductible proportion.
Mr Easton concedes that Dr Miller had in fact applied a one-tenth s 323 deduction to his assessment of the cervical spine.
Dr Robinson, consultant orthopaedic surgeon, applied a one-half s 323 deduction from his assessment of the cervical spine.
Dr Robinson wrote:
“He thus has cervical pain which relates to underlying pre-existing arthritis as seen on a MRI and particularly in a CT scan performed on 14.12.2020 – the latter revealing osteophytes at C5/6 and narrowing of the facets. There are also osteophytes present at C6/7 which could not have developed during the period of time since the accident the previous month. He has no symptoms prior to this incident and thus one would believe that the incident produced some stress producing the symptoms in the cervical region but the underlying cause for such was the arthritic change which was pre-existing”.
The Appeal Panel accepts that the Medical Assessor erred in stating that Dr Miller made no deduction for degenerative changes. This ground of appeal is made out.
Mr Easton submits that the Medical Assessor provided further reasons for his decision not to apply a deduction on the basis that Mr Easton had age-related degenerative changes of his cervical spine, but without prior problems and symptoms. The Appeal Panel accepts that the absence of prior problems and symptoms is a matter to be taken into account in considering whether a deduction should be made under s 323 and the extent of any deduction made.
The Appeal Panel accepts that the Medical Assessor failed to adequately disclose his path of reasoning in terms of his decision not to apply s 323 deduction. The Medical Assessor, having stated that Dr Miller made no deduction for degenerative changes and then stating that he agreed with this, has obviously failed to adequately disclose his path of reasoning for not making a deduction under s 323. This ground of appeal is made out.
M2-W29271/24
Mr Easton submits that the Medical Assessor made appealable errors with respect to the a failure to provide any and/or an adequate rationale to assert there was no evidence of radiculopathy of the cervical spine.
In the MAC under “Findings on Physical Examination”, the Medical Assessor wrote:
“I could find no neurological problems, suggesting an existing radiculopathy. He complains of swelling in the hand and indeed it was markedly swollen. He complains that the hand goes purple and it was a different colour. He complains that the hand feels cold but to my examination, the temperature was equal. He complains abnormal sensation of the skin of the hand and was irritated by touch”.
The Medical Assessor noted that examination of the neck showed markedly restricted movement in every direction with side bending and rotation less to the right than the left.
Under “Details and Dates of Special Investigations” the Medical Assessor wrote:
“10/5/21 Dr R Adams, treating neurologist, does not support C6 radiculopathy, suggests early progress towards CRPS.
23/11/23 Dr L Ring pain specialist likely “CPRS”, also quotes Dr Scholz (pain clinic as CPRS). These notes are not provided.
4/2/23 Dr G Miller IME: Noted an absent right biceps jerk. And decreased sensation to pinprick and light touch in his C5 dermatome. Diagnosed neck and shoulder injuries, chronic pain syndrome short of CRPS. Impairment based on DRE (class3) of cervical spine and loss of ROM shoulder.
21/7/23 Dr P Robinson IME: could find no evidence to support radiculopathy so DRE 2 (reduced 50% based on existing degenerative changes) plus loss of ROM at shoulder secondary to supraspinatus tear.”
The Medical Assessor noted that the MRI scan dated 27 April 2021 concluded:
“At C5-6, there are posterior vertebral endplate osteophytes present larger on the right which contact and indent the right hand side of the cord. There is bilateral bony neural foraminal narrowing from uncovertebral spurring mild on the left and moderate on the right. Compression to the exiting right C6 nerve root is likely.”
The Medical Assessor under “Summary of injuries and diagnoses” concluded that there has been a traction injury that has damaged the right shoulder (tear in subscapularis) and aggravated degenerative changes in the neck. He noted that there has been the development of a pain syndrome, out of proportion to the original injuries.
Under “Reasons for Assessment”, the Medical Assessor wrote:
“The cervical spine is assessed by the DRE method, as set out in T15-5 p 392”.
He has persisting pain and findings of dysmetria. There are radicular symptoms that are not supported by findings of myself and treating orthopaedic surgeons. This is assessed as DRE 2 with 5% WPI
A further rating is added from interruptions to ADLs as per 4.34 P 28 NSW guides. He has loss of recreational and household activities, 2% WPI.”
At Part [10c]. of the MAC the Medical Assessor wrote:
“Dr Miller has found neurological findings to support the presence of radiculopathy, so classifies DRE 3. The medical records and my examination do not support these findings. I concur with Dr Robinson, who did not find objective evidence”.
At Table 2 on page 7, Medical Assessor Honeyman details chapter 4.35, page 28 of the Guidelines.
The Guidelines at page 27, paragraph 4.27 details that:
“Radiculopathy is the impairment cause by malfunction of a spinal nerve root
or nerve roots. In general, in order to conclude that radiculopathy is present,
two or more of the following criteria should be found, one of which must be
major (major criteria in bold).▪ loss or asymmetry of reflexes
▪ muscle weakness that is anatomically localised to an appropriate
spinal nerve root distribution
▪ reproducible impairment of sensation that is anatomically localised to
an appropriate spinal nerve root distribution
▪ positive nerve root tension (AMA5 Box 15-1, p 382)
▪ muscle wasting – atrophy (AMA5 Box 15-1, p 382)
▪ findings on an imaging study consistent with the clinical signs (AMA5, p 382).”
Mr Easton submits that the Medical Assessor failed to properly engage with evidence available concerning the appellant’s pain, injury, and symptomology of his cervical spine, by failing to:
(a) undertake any, or any adequate, history in relation to the cervical spine;
(b) provide any, or any adequate, rationale for his findings relating to an absence of radiculopathy;
(c) specify the tests undertaken by him during the examination to support his findings relating to the absence of radiculopathy, and
(d) refer to the report by Dr Geoffrey Miller, consultant specialist surgeon, dated 4 February 2023 which details the following observations at page 14.
Dr Miller in his report dated 4 February 2023 wrote:
“This gentleman has a DRE Cervical Category 3 equating to a 15% whole person impairment - significant signs of radiculopathy 4.27 Page 27 NSW Compensation Guidelines for the Evaluation of Permanent Impairment:
loss of right biceps reflex;
muscle weakness anatomically located to C5 nerve root (right shoulder abduction and right elbow flexion);
muscle weakness anatomically localised to C5 nerve root;
reproducible impairment of sensation anatomically located to the C5 nerve root;
muscle wasting atrophy right biceps
He receives further whole person impairment for loss of activities of daily living - 4.35 page 28 NSW WorkCover Guidelines for the Evaluation of Permanent Impairment. 3% whole person impairment - workers capacity to undertake personal care activities such as dressing, washing and toileting have been affected.
Total whole person impairment for cervical spine is obtained by combining DRE with loss of activities of daily living - 15 combined with 3 equates to an 18% whole person impairment (Combined Values Table on Page 604 AMA 5)
I believe one tenth of this impairment is due to pre-existing underlying constitutional change. He therefore has a 16.2% whole person impairment rounded to 16% for his cervical spine.”Dr Paul Robinson in a report dated 21 July 2023 noted that examination of the cervical region revealed normal posture. He wrote:
“He has no evidence of any muscle spasm. Tenderness is present in the cervical region -C5 to C7 and would appear to be quite marked. However downward pressure on his skull with one finger resulted in similar symptoms which is an abnormal reaction to such pressure.
I could detect no neurological impairment in his upper limbs. Reflexes, power and sensation were normal. I note in Dr Miller’s report that there was an absent right biceps jerk but I definitely was able to elicit such.
The movement in his cervical region was not consistent. There was an asymmetrical loss of movement mainly looking to the left and lateral flexion. Extension was decreased. Rotation was decreased but variable in that there was increased movement when he was not being clinically examined”.Dr Robinson expressed the following opinion:
“He thus has cervical pain which relates to underlying pre-existing arthritis as seen on a MRI and particularly in a CT scan performed on 14.12.2020 – the latter revealing osteophytes at C5/6 and narrowing of the facets. There are also osteophytes present at C6/7 which could not have developed during the period of time since the accident the previous month. He has no symptoms prior to this incident and thus one would believe that the incident produced some stress producing the symptoms in the cervical region but the underlying cause for such was the arthritic change which was pre-existing”.
Dr Robinson, in commenting on the opinion of Dr Miller, wrote: “My physical findings did not find radiculopathy. He does have some swelling of the hands but at the time I examined him they were not blotchy as mentioned by Dr Miller and I could find no evidence of changes in the biceps tendon reflex which he established was present at the time of his examination. Also sensation was subjectively normal and thus no sign of such radiculopathy”.
The Appeal Panel considers that the Medical Assessor did not clearly identify his findings on which supported his conclusion that Mr Easton had no radiculopathy. In particular, the Medical Assessor did not refer to set out criteria in the Guidelines at 4.27. It follows that without specific reference to the criteria in the Guidelines at 4.27, the path of reasoning is not clear. The Medical Assessor did not properly set out his findings in terms of any neurological abnormalities and merely concluded that there was no radiculopathy. This approach does not explain properly the basis for his conclusions including the particular findings made on examination which resulted in those conclusions. The Appeal Panel noted that the MAC provided no details in relation to wasting, reflexes or sensory changes. The Medical Assessor gave no reasons for rejecting or accepting other medical opinions. opinions. The Appeal Panel is satisfied that the Medical Assessor made a demonstrable error in failing to provide sufficient reasons. This ground of appeal is made out.
The Appeal Panel, having found error, concludes that it was necessary for Mr Easton to undergo a further medical examination because there was insufficient evidence on which to make a determination in respect of an assessment of the cervical spine, and in particular whether the criteria in 4.27 were met .
As noted above Medical Assessor Gibson of the Appeal Panel examined the appellant on
26 September 2025. Medical Assessor Gibson provided the following report:“Mr Easton was accompanied to the assessment by his wife Kathryn.
1. The workers medical history, where it differs from previous records
Mr Easton was diagnosed with epilepsy in 1979 but ceased all medication by 2003 after having no further seizures for many years.
He fractured his ankle over 20 years ago.
He was diagnosed with left carpal tunnel syndrome in 2007 and underwent injections. Nevertheless, he said that he had persisting symptoms of tingling in his left hand, and then after the subject work accident also in his right hand. He was diagnosed with hypertension in 2000.There was no other relevant history, and in particular no prior symptoms in neck or either shoulder.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Easton had chiefly worked as a cleaner and detailer. From 1988 he had worked as a cleaner with ALS Cleaning for about 11 years. He had then worked as a detailer with Tom Kerr, West Ryde for about 18 months. And then, from January 2000 as a used car detailer with SMC Auto for about 5 years. Next with Mays Motors for two years. And at the same time he was cleaning supermarkets with Kelly’s Cleaning. By 2007, he was a subcontract cleaner for Just One Call, cleaning Coles in Alstonville for the next 11 years.
By the time of the subject accident, he was working on a full-time basis as a used car detailer for Lismore Nissan and Kia and he had been in the job for about 5 years.
HISTORY OF THE WORK ACCIDENT
Mr Easton had been tasked with hosing down the cars on the lot. He said that this job was done every Monday and Friday and the process was that one employee would hose down the cars on the display ramp, including the roof, and the other worker would follow using a shammy to wipe and dry the vehicles. He said the ramp was over a metre high. He said he had to stand on the display ramp to do the job, and in the process he had steadied himself using his right hand to hold onto the pillar of the car whilst he operated the hose using his left hand. Unfortunately his right leg slipped and he was then left basically hanging on with his right arm. He hadn’t fallen to the ground and managed to right himself.
He remained at work for the remainder of that Monday, and returned to work on the next two days, although he said he was only performing light duties involving use of only the one arm and he wasn’t washing any cars.
On Thursday he visited a general practitioner, Dr Tahmina Khatoon. Mr Easton said that by that stage he couldn’t lift his right arm at all and couldn’t turn his head to the right. He said he couldn’t even drive his car, he added that he still can’t.
The general practitioner referred him for x-ray of his right shoulder. He said at the time the radiographer performing this investigation had commented on there being swelling over the right side of his neck. He was advised that he had a tear of his right shoulder tendon and bursitis.
He said that about a month later he noticed pins and needles and swelling in his right hand and arm and also around his right shoulder and the right side of his face. He said he was waking with pain and tingling in his right hand. When asked today, he described tingling and numbness over the entire right hand (glove like) distribution.
He was referred for physiotherapy treatment and he was attending twice a week, on Wednesday and Saturday.He said the physiotherapist had suggested he have some imaging of his neck. So he returned to the general practitioner and was then sent for an MRI scan of his neck which he understood had demonstrated some disc problems.
He was next referred to a specialist in Brisbane regarding his neck. He said his wife had driven him there. He said the specialist hadn’t provided any worthwhile advice.
He was then referred to a second specialist at Gold Coast Spine, Dr Rackham. The doctor had organised for a steroid injection to his neck which he said hadn’t helped at all. Surgery was apparently discussed and he was advised his symptoms would just get worse.
He was next referred to the Gold Coast Upper Limb Clinic where he saw Dr Angelo Rando. There was a second injection on 10 August 2022 which was also unhelpful. He said the upper limb surgeon had told him if he moves his right arm it will just make it worse.
He was seen at a pain clinic in Lismore and they recommended an exercise program but he maintained this had just increased the swelling of his right upper limb.
In late 2022, he visited a vascular surgeon Dr Anthony Leslie and in early 2023 Dr Liam Ring, a pain physician.
Mr Easton said that by September 2023, he was diagnosed with chronic regional pain syndrome.
CURRENT TREATMENT
Mr Easton attends weekly physiotherapy treatment. He said he was attending twice-weekly but this was reduced by the insurer. He has acupuncture as part of his treatment.
He was to have hydrotherapy, but this never eventuated.
He takes six Panadol Osteo tablets a day. He was previously on medication for depression, but this has now ceased.
There was no other current treatment.CURRENT COMPLAINTS
Mr Easton described constant posterior neck pain which radiates into the back of his head, producing occipital headaches. The severity of the neck pain was rated as being between 4/10 and 7/10 and he finds it increase with any activity and also travelling in cars or trains. He finds his symptoms are worse as the day goes on.
There is pain over the front of the shoulder and over the front of the chest wall. He said his whole right hand becomes swollen when he is on his feet and then pins and needles when he is lying down. There is a lump over the right trapezius.He added that he now has low back and leg problems and he thinks these came on about two months after the accident.
ACTIVITIES AND RESTRICTIONS
Mr Easton lives with his wife and three daughters (aged 18, 23 and 24) in a house on a 1-acre block. The house is on level ground. There are no steps which he said he would struggle with due to his back and leg pains. The property is serviced with tank water.
He said he no longer drives a car. He can’t ride his bike. He said he used to ride the bike around the property so he could check on the water tank, but he can’t manage this now.
He has difficulty cutting up food using his right hand. He says he dresses himself but only wears baggy clothes. He showers. He washes his hair, but with only one hand. He says he has difficulty wiping himself on the toilet with his right hand.He has a lumbar support for his chair and he has an adjustable chair. He said he sleeps better on his chair than he does on the bed. He only sleeps a short period at night.
He doesn’t do any shopping. He rarely does any walking.He said he can no longer go fishing, which used to be one of his main hobbies. He said he couldn’t tolerate sitting on the boat and he can no longer manage a fishing rod and line.
He says he has a mate of his do their lawnmowing. His wife and kids do a bit of the whipper-snippering.
3. Findings on clinical examination
Mr Easton had a stocky build, and weighed 115kg.
On examination of the neck, there was tenderness especially over the upper cervical vertebrae in the midline. Flexion was two-thirds normal. Extension one-third normal. There was virtually no neck rotation to the right. There was a third neck rotation to the left. Lateral flexion was a fifth normal bilaterally. There was muscle guarding with neck movements and he complained of a clunking noise.
On examination of the upper limbs, circumferential measurements of the right arm was 36cm, left arm 38cm, right forearm measured 34cm and left forearm measured 34cm. Upper limb reflexes were low amplitude and symmetrical. There was globally reduced sensory appreciation over the entire right upper limb in a non-dermatomal distribution. There was globally reduced power in a non-dermatomal distribution.
There were no features of carpal tunnel syndrome, no median nerve sensory or motor abnormality and negative provocation tests.
There was mild swelling of the right hand, but not of the rest of the right arm. There were no colour changes. There were no temperature changes. There were no hair or nail changes. There was reduced rather than increased sensation to light touch.
4. Results of any additional investigations since the original Medical Assessment Certificate
There were no investigations brought in for the assessment.
SUMMARY AND CONCLUSIONS
Mr Easton is a left hand dominant worker who had injured his neck and right upper limb when he lost his footing whilst hosing down cars on the lot of his employer at the time, P G Motors in Lismore. He was found to have tendinosis, bursitis and a partial-thickness supraspinatus tendon tear of the right shoulder and degenerative changes in his cervical spine with potential C6 nerve impingement, although his treating neurologist felt the latter unlikely.
At assessment today there was no radiculopathy. There was significant restriction of neck and right shoulder, and to an extent left shoulder movements.”
The Appeal Panel adopts the report and findings of Medical Assessor Gibson. The Appeal Panel finds that Mr Easton has a significant restriction of movement in his cervical spine but no radiculopathy. Medical Assessor Gibson found on examination of the neck that Mr Easton had tenderness especially over the upper cervical vertebrae in the midline, flexion was two-thirds normal and extension one-third normal. Medical Assessor Gibson noted that there was virtually no neck rotation to the right, a third neck rotation to the left and lateral flexion was a fifth normal bilaterally. Medical Assessor Gibson noted that there was muscle guarding with neck movements and Mr Easton had complained of a clunking noise.
Medical Assessor Gibson found that on examination of the upper limbs, circumferential measurement of the right arm was 36cm, left arm 38cm, right forearm measured 34cm and left forearm measured 34cm. She found that upper limb reflexes were low amplitude and symmetrical and there was globally reduced sensory appreciation over the entire right upper limb in a non-dermatomal distribution. Medical Assessor Gibson noted that there was globally reduced power in a non-dermatomal distribution.
Therefore, the Appeal Panel is satisfied that Mr Easton does not meet the criteria for radiculopathy set out in paragraph 4.27 of the Guidelines and assesses 7% WPI of the cervical spine.
Section 323 of the 1998 Act provides as follows:
(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… or that is due to any pre-existing
condition or abnormality.
(2) If the extent of a deduction under this section… will be difficult or costly
to determine…, it is to be assumed (the purpose of avoiding a disputation) that the deduction… is 10% of the impairment, unless this assumption is at odds with the available evidence.The approach to be taken in assessing the s 323 deduction was recently considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre- existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 …That is a matter of fact to be assessed on the evidence led in each case”.
In terms of any deduction pursuant to s 323, the Appeal Panel notes that the Medical Assessor found that Mr Easton had age related degenerative changes of his cervical spine, but without prior problems and symptoms. The Medical Assessor was of the view that there was no deductible proportion. Dr Miller had in fact applied a one tenth s 323 deduction to his assessment of the cervical spine. Dr Robinson applied a one half s 323 deduction from his assessment of the cervical spine. Medical Assessor Gibson noted that there were no prior symptoms in neck.
Dr Robinson wrote:
“He thus has cervical pain which relates to underlying pre-existing arthritis as seen on a MRI and particularly in a CT scan performed on 14.12.2020 – the latter revealing osteophytes at C5/6 and narrowing of the facets. There are also osteophytes present at C6/7 which could not have developed during the period of time since the accident the previous month. He has no symptoms prior to this incident and thus one would believe that the incident produced some stress producing the symptoms in the cervical region but the underlying cause for such was the arthritic change which was pre-existing”.
Dr Miller made a deduction of one tenth for pre-existing underlying constitutional change. He noted that he had reviewed the report of a CT cervical spine performed on 4 December 2020 and the findings included mild degenerative changes with disc space narrowing at C5-6 and C6-7 and at C5-6 osteophytes contacting the cord and at C6-7 osteophytes.
The Appeal Panel accepts that s 323 of the 1998 Act requires that a deduction be made “for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality.”
The Appeal Panel is satisfied that a proportion of the impairment assessed is due to the pre-existing degenerative condition in the cervical spine. However, although degenerative changes were shown in the cervical spine CT scan on 4 December 2020, Mr Easton was asymptomatic before the injury at work on 9 November 2020. The Appeal Panel considers that is such circumstances, it is difficult to determine the required deduction and a deduction of 10% is not at odds with the evidence.
The Appeal Panel therefore assesses 7% WPI of the cervical spine and makes a deduction of one tenth, which results in an assessment of 6.3% which is rounded down to 6% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 May 2025 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: | W29271/24 |
Applicant: | Roger Easton |
Respondent: | PG Motors Pty Ltd t/as Lismore Nissan 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 Honeyman 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.Cervical spine | 09/11/20 | Chapter 4, p26-31 | Ch 15, pg 392, Table 15-5 | 7 | 1/10th | 6% |
| 2 Right upper extremity (shoulder) | 09/01/20 | 16-40 p476 16-43 p477 16-46 p479 | 10% | nil | 10% | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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