Ramsey v Trustees of the Roman Catholic Church for the Diocese of Parramatta

DETERMINATION OF APPEAL PANEL
CITATION:	Ramsey v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2025] NSWPICMP 86
APPELLANT:	Michael Ramsey
RESPONDENT:	Trustees of the Roman Catholic Church for the Diocese of Parramatta
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Chris Oates
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	12 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Matter referred to different Medical Assessor (MA) for reconsideration and further assessment of whole person impairment (WPI) after Certificate of Determination rescinded; MA assessed 32% WPI of the cervical spine, 23% WPI of the lumbar spine, and deducted one half from each assessment for a pre-existing condition; MA failed to take a proper history to adequately consider the actual consequences of the pre-existing conditions in the cervical spine and lumbar spine; Appeal Panel found this failure was a demonstrable error; Appeal Panel determined that a deduction of one tenth should be made for a pre-existing condition in the cervical spine and a deduction of one fifth should be made for a pre-existing condition in the lumbar spine; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 November 2024 Michael Ramsay (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru (Medical Assessor), who issued Medical Assessment Certificate (MAC) on
11 October 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the 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 Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant suffered an injury to his neck and low back during his employment as an IT manager with the Trustees of the Roman Catholic Church for the Diocese of Parramatta on 16 November 2013 and on the deemed date of 18 April 2016.
The appellant lodged an Application to Resolve a Dispute (ARD) in the former Workers Compensation Commission (WCC) on 5 March 2018 in which he claimed an amount of $69,300.84 in respect of 33% whole person impairment (WPI) of the cervical spine and lumbar spine as a result of the injury on 16 November 2013 and 18 April 2016 (deemed).
The medical dispute was referred to an Approved Medical Specialist (AMS) and the appellant was examined by Dr Kalev Wilding on 14 August 2018.
On 29 August 2018, the Medical Assessment Certificate (MAC) of Dr Wilding was issued by the WCC in which Dr Wilding assessed due to injury on 16 November 2013 and
18 April 2016 (deemed) 27% whole person impairment (WPI) as a result of injury to the cervical spine. Dr Wilding assessed 0% WPI in respect to the lumbar spine and for scarring.
The appellant lodged an appeal against the MAC dated 29 August 2018 which was considered by a Medical Appeal Panel (MAP). On 22 January 2019, the MAP confirmed the MAC of Dr Wilding.
On 27 February 2019, the WCC issued a Certificate of Determination Consent Orders (COD) which included an order that the respondent pay the applicant s 66 compensation for 27% WPI in accordance with the MAC of Dr Wilding in the sum of $59,510.
On 9 February 2024, the appellant sought to have the COD dated 27 February 2019 set aside pursuant to s 57 of the Personal Injury Commission Act 2020 (PIC Act) and that he be referred back to Dr Wilding for reconsideration pursuant to s 329 of the 1998 Act as to the extent of WPI. The appellant submitted that there has been a deterioration in his condition since the COD was issued.
On 28 May 2024 Member John Turner made the following determination:
“1. The Certificate of Determination dated 27 February 2019 is rescinded pursuant to s 57(1) of the Personal Injury Commission Act 2020.
2. The matter is remitted to the President for a determination as to whether the applicant may be referred for a further assessment of permanent impairment (by
Dr Kalev Wilding if available), as an alternative, to an appeal, pursuant to s 329(1) of the Workplace Injury Management and Workers Compensation Act 1998.”
On 8 July 2024, the delegate considered the referral application and ordered that the matter be referred to a Medical Assessor for reconsideration pursuant to s 329(1A) of the 1998 Act.
The matter was then referred to Medical Assessor Kuru on 18 September 2024.
The Medical Assessor examined the appellant on 23 August 2024 and assessed 32% WPI of the cervical spine and 23% WPI of the lumbar spine. The Medical Assessor deducted one half for a pre-existing condition from his assessment of both the lumbar spine and the cervical spine resulting in an assessment of 16% WPI for the lumbar spine and 12% WPI of the cervical spine. This combined to result in a total of 26% WPI as a result of the injury on 16 November 2013 and 18 April 2016 (deemed).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel. The respondent opposed any re-examination.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because there was sufficient information upon which to make a determination.

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.
The Appeal Panel noted that in Form 10 the appellant marked the form to indicate that he sought to rely on the availability of additional relevant information that was not before the Medical Assessor or that could not reasonably have been obtained before the medical assessment. However, no additional information was attached to Form 10 and the Appeal Panel assumes that the appellant’s solicitor made an error when completing Form 10. In any event, there is no fresh evidence filed by the appellant that requires consideration by 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

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    The appellant does not dispute the 32% for the cervical spine but does dispute the deduction of 1/2 made by the Medical Assessor. The deduction of 1/2 is excessive in these proceedings. The Medical Assessor fails to explain his path of reasoning in relation to the cervical spine at 11b) (i) that: “In the absence of [pre-existing degenerative pathology], it is unlikely that either injury or the nature and conditions of employment would have led to any impairment in the cervical spine.”
(b)    The appellant does not dispute the 23% for the lumbar spine but does dispute the deduction of ½. The deduction of 1/2 is excessive in these proceedings. The Medical Assessor fails to explain his path of reasoning in relation to the lumbar spine at 11b) (ii) that: “In the absence of [pre-existing developmental and degenerative pathologies], it is unlikely that specific injury or the nature and conditions of employment would have resulted in any assessable impairment in the lumbar spine.”
(c)    The Medical Assessor offers no explanation as to why the deduction should be 1/2 despite acknowledging at 11c that “the extent of the deduction is difficult or costly to determine”.
(d)    The Medical Assessor is silent and proffers no explanation of why he applies a s 323 deduction of one half. Pursuant to Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43 at [55]: “The statement of reasons must explain that 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.” The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation. (El Masri v Woolworths Ltd [2014] NSWSC 1344). This constitutes a demonstrable error by the Medical Assessor.
(e)    Prior to the workplace injury, the appellant was working full time and had no difficulty performing the requirements of his job, which often necessitated the heavy and repetitive lifting of computer servers and various computer parts. The appellant was able to engage in all domestic duties prior to the workplace injury and would often engage in recreational activities, such as fishing and playing sport with his children, without any difficulties.
(f)    There is no medical evidence before the Medical Assessor which suggested the appellant suffered from symptomatic neck pain and/or symptomatic back pain.
(g)    The MRI cervical spine conducted on 28 November 2013 (approximately two weeks after the subject injury) revealed “Significant foraminal stenosis on the left at C5/6 and C6/7”. The MRI conducted on 19 December 2013 revealed “Degenerative disc disease, most marked at L1/2 and L5/S1. No neural compression.” It is evident from the above scans, which were taken within weeks of the frank injury, that the appellant suffered from pre-existing degenerative changes in the neck and lumbar spine. There was nothing in the MAC that suggests the degenerative disc disease at L5/S1 and stenosis at C5-C7 would have led the appellant to undergo multiple surgical procedures but for the subject injury.
(h)    In the absence of medical evidence which pre-dates the subject injury and given that the appellant was capable of performing full-time work and his activities of daily living were not affected, it would be too difficult for a medical assessor to determine the exact level of contribution of the pre-existing to the appellant’s current level of permanent impairment (i.e. 48% WPI) and therefore 1/10 deduction is appropriate.
(i)    The MAC involved a demonstrable error for the reasons outlined above and should be revoked.
The respondent’s submissions include the following:
(a)    The errors asserted are not those involving incorrect criteria. The Medical Assessor applied his clinical judgement to determine the extent of the deduction to be applied under s 323 of the 1998 Act.
(b)    The Medical Assessor provided detailed and appropriate reasons for the determination to deduct one half from the impairment assessed. His path of reasoning has been clearly outlined on pages 4, 5, 6 and 7 of the MAC. The Medical Assessor formed the view that absent the pre-existing condition (which had been aggravated by the work injury) the appellant would have had no assessable impairment. He determined based on the radiology and his assessment that the deduction was “large” and settled on one half.
(c)    The Medical Assessor discharged his obligation to provide reasons. He confirmed the nature and extent of the pre-existing condition as revealed on radiological imaging, addressed the aspects of Dr Endrey-Walder’s opinion on the extent of the pre-existing condition with which he disagreed, and advised why a deduction of one half was in his opinion required. There is no error in the reasons provided by the Medical Assessor.
(d)    Extent of the deduction - based on the radiology the appellant suffered a significant pre-existing degenerative condition in the cervical and lumbar spine, including spondylosis. That condition was plainly revealed on radiological investigation taken shortly following the subject injury and the appellant has conceded the presence of such a condition.
(e)    The Medical Assessor also reached a conclusion that the discal pathology revealed on imaging had pre-dated the injury. That was a finding/conclusion the Medical Assessor was entitled to make in his assessment of causation (Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264, at 110).
(f)    In determining the deduction required, the Medical Assessor reached a specific conclusion, that is, in the absence of the pre-existing condition, there would be no assessable impairment. He concluded that the contribution made by the pre-existing condition to the impairment now assessed was “large.” The Medical Assessor’s conclusions were supported by the evidence. Dr Wallace concluded that the appellant was suffering pre-existing multilevel degenerative spondylosis which was constitutional in origin and determined there was no WPI resulting from the subject injury.
(g)    The Medical Assessor agreed with Dr Wallace’s conclusions regarding the nature and extent of the pre-existing condition. Moreover, the Medical Assessor provided his reasons for disagreeing with the opinion provided by Dr Endrey-Walder.
(h)    The extent of the deduction required was a matter for the clinical judgement of the Medical Assessor. There was clearly evidence of a significant pre-existing condition, and the Medical Assessor in essence agreed with the opinion proffered by Dr Wallace on that issue.
(i)    A deduction of one half under s 323 of the 1998 Act may be considered high. However, each case must be determined on its own facts. In this matter, the appellant plainly suffered significant pre-existing degeneration affecting multiple levels of the lumbar and cervical spine, including disc pathology. The Medical Assessor accepted that the subject injury was in the nature of an aggravation of that condition.
(j)    The Medical Assessor concluded that the pre-existing condition made a significant contribution to the impairment now assessed, and that in the absence of the pre-existing condition there would have been no assessable impairment resulting from that injury. It was on the basis of that conclusion that the one half deduction was calculated.
(k)    It was open to the Medical Assessor to reach that conclusion based on the evidence before him and his examination. Once that conclusion was reached, it was open to the Medical Assessor, utilising his clinical judgement to determine that the appropriate deduction was one half. Accordingly, no error has been made out.
(l)    The appellant relies upon the absence of symptoms and the absence of any incapacity in connection with his work duties, as establishing error on the part of Medical Assessor in making a 1/2 deduction. The degree of symptoms, if any, that existed prior to the injury is not determinative of the deduction required under s 323. In Vitaz v Westform (NSW) Pty Ltd 2011] NSWCA 254 at 43, Basten JA stated: “The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury.”
(m)     Reliance on the purported absence of symptoms or restrictions prior to the subject injury is not a basis to assert error on the part of the Medical Assessor. The question is the contribution made by the pre-existing condition to the impairment assessed. The Medical Assessor properly grappled with that question and applied his clinical judgement to determine the deduction required.
(n)    The appellant submits that the absence of medical evidence that pre-dates the injury, and the fact the appellant was performing full time work prior to the injury, means it would be “too difficult” for the assessor to determine the exact deduction required “and therefore 1/10^th deduction is appropriate”. The erroneous reliance on the functional effects of the pre-existing condition, as it existed prior to the injury, has been dealt with above.
(o)    The suggestion that if the exact deduction required is too difficult or costly to determine, it automatically follows that the 1/10th deduction under s 323(2) is applicable, is incorrect. Section 323(2) requires required is too difficult or costly to determine, but also that a 1/10th deduction is not at odds with the evidence.
(p)    On page 8 of the MAC, the Medical Assessor acknowledged that determining the exact deduction required was difficult or costly. However, he stated “…the deductible proportion is large and a deduction of one tenth is at odds with the available evidence.” The evidence supported the Medical Assessor’s conclusion, and accordingly, s 323(2) did not apply.

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.

Ground 1 – s 323 deduction

The appellant submits that the deduction of one half pursuant to s 323 of the 1998 Act in respect of both the lumbar spine and cervical spine is excessive. The appellant argues that the Medical Assessor failed to explain his path of reasoning and offered no explanation as to why the deduction should be one half despite acknowledging that “the extent of the deduction is difficult or costly to determine”.
The Medical Assessor noted under “History relating to the injury” that,
“Mr Ramsey was working as an IT Specialist for the Catholic Diocese of Parramatta. In the course of his duties, he was establishing a backup site which required him to
manipulate multiple service power banks and computers. Without specific injury, he noted over time that he developed pain in his neck and left arm and pain in his back.
I note an entry in the General Practitioner’s records dated 23/11/2013 where Mr Ramsey presents with ‘left arm pain and numbness at the fingertips for the last 6 days’. Subsequent clinical letter from Dr Abraszko, Neurosurgeon, dated 05/12/2013 notes ‘recently he developed numbness in the first and second fingers and weakness in the first and second fingers’ on a background of Mr Ramsey having been “born with left arm brachial plexus palsy as a result of delivery and he is unable to lift his left hand and shoulder’. Dr Abraszko notes an MRI demonstrating ‘large C5/6 disc protrusion causing compression of the spinal cord and C6/7 left sided disc causing severe foraminal narrowing.’ She goes on to recommend a C5/6, C6/7 anterior cervical discectomy and fusion. She has made this recommendation for surgical treatment some 2 weeks after the onset of symptoms. I note the MRI report dated 02/11/2013 actually being reported as multilevel degenerative changes with pathology not isolated to C5/6, C6/7.
On 07/02/2014, Mr Ramsey goes on to have a C5/6, C6/7 anterior cervical discectomy and fusion. Unfortunately, he had persistent neck and arm pain subsequent to this and on 17/07/2016 went on to have left C4/5, C5/6, C6/7 foraminotomy. He reports persistent numbness in the C6/C7 distribution in the left hand and ongoing weakness in the hand.
Mr Ramsey also developed pain in his back which over time radiated into his left anterior thigh. He underwent an L5/S1 anterior lumbar interbody fusion on 28/10/2020. With no significant improvement, he has subsequently undergone an L1/2 decompression and then on 22/11/2021, posterior instrumentation.
Mr Ramsey continues to have pain in his back and numbness in his anterior thigh.”

Under “Details of any previous or subsequent accidents, injuries or condition”, the Medical Assessor noted that the appellant had a left side Erb’s palsy and in the lumbar spine, isthmic spondylosis which is a developmental condition.
Under “Social activities/ADL” the Medical Assessor noted that the appellant previously enjoyed playing basketball with his children and fishing which he is no longer able to do.
Under “Summary of injuries and diagnoses” The Medical Assessor wrote:
“Mr Ramsey developed pain in his left arm. Imaging subsequently demonstrated a C5/6 disc protrusion. Mr Ramsey attributes this to heavy lifting at work.
Mr Ramsey subsequently went on to develop low back pain. Imaging showed a
developmental isthmic spondylolysis and degenerative L1/2 stenosis. He has undergone surgical treatment for this with limited improvement”.
At Part 8 of the MAC, the Medical Assessor wrote:
“e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
Yes.
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.
Cervical spine and lumbar spine.”
The Medical Assessor in commenting on the other medical opinions wrote:
“With respect to the report by Dr Endrey-Walder dated 14/11/2016, I note he has
assessed the cervical spine as DRE Cervical Category V rather than Category IV. This is corrected in a supplementary report.
He has assessed the lumbar spine as DRE Category V but his review pre-dated any
surgical intervention on the lumbar spine. Curiously, I note in his opinion that he opines ‘Mr Ramsey suffered soft tissue injuries to his neck and lower back’ but he does not go on to consider the multilevel degenerative disease seen on imaging as a preexisting condition.
I note Dr Endrey-Walder’s statement ‘I would not contemplate at this stage surgical intervention for back pain’.
In a report dated 08/06/2017, Dr Endrey-Walder corrects assessment of the cervical
spine as DRE Cervical Category IV. He appropriately allows for second operation and a 2 level fusion. He does not assess for persistence of radiculopathy.
With respect to the lumbar spine, he makes a one fifth deduction due to pre-existing
pathology.
With respect to Dr Endrey-Walder’s report dated 08/06/2017, in considering a report by Dr Wallace, he opines ‘Whilst the initial MRI scan does indicate some moderate disc degenerative and spondylitic change of the mid cervical spine, there is no way that this man would have had such a large, yet asymptomatic disc protrusion without radiculopathy prior to the incident of heavy lifting on 16/11/2013.
The fact that Dr Endrey-Walder notes the imaging is demonstrating ‘a large left sided disc/osteophyte complex’ he does not seem to appreciate the inconsistency in his opinion. It should be noted it is common to see significant disc protrusion in the absence of symptoms and that the belief that disc protrusion is associated with lifting is opinion not supported by evidence.
With respect to the report by Dr Abraszko dated 10/04/2017, I note she offers “He suffered from injury to his C4/5, C5/6, C6/7 discs which requires operation/cervical fusion and then posterior decompression. The changes to the C4/5, C5/6 and C6/7 discs were not injury, but pre-existing degenerative change. The presumption here is that Mr Ramsey has aggravated this. With failure of non-operative treatment, it is
appropriate to proceed with surgical intervention. This could have been undertaken
either anteriorly or posteriorly. The subsequent necessity to proceed with a posterior
procedure was that the index anterior operation did not meet its objectives. I have
assessed 32% rather than 31% impairment for the cervical spine.
I note Dr Abraszko has assessed 5% whole person impairment for the lumbar spine
although again this pre-dates the subsequent surgery to the lumbar spine.
With respect to the report by Dr Wallace dated 16/01/2017, I note his comments with respect to the etiology [sic] of the multilevel degenerative cervical spondylosis are
consistent with accepted medical evidence.
With respect to his report dated 06/11/2017, again I note he assesses 0% whole
person impairment attributable to the work injury on the basis of his condition being
pre-existing.
With respect to the MAC by Dr Wilding dated 14/08/2018, I am in agreement with the assessment of the cervical spine as DRE Cervical Category IV with the addition of 2% for restriction of activities of daily living. I also agree with the addition of 3% for persisting radiculopathy, a further 2% for the second operation and a further 1% for as second level. I note 27% combined with 6% converts to 31% not 30%, as per the MAC. A further 1% is assessable for the third surgical level.
I note Dr Wilding makes a 10% deduction for pre-existing degenerative condition.
I note Dr Wilding assesses the lumbar spine as DRE Category I and listed the
diagnosis for the lumbar spine as musculoligamentous strain and aggravation of preexisting degenerative change.”
At Part 11 of the MAC, the Medical Assessor wrote:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
(a) In my opinion the worker suffers from the following relevant previous injuries, preexisting conditions or abnormalities:
(i) Degenerative spondylosis cervical spine;
(ii) Spondylolysis lumbar spine.
(b) The previous injury, pre-existing condition or abnormality directly contributes to the
following matters that were taken into account when assessing the whole person
impairment that results from the injury, being the matters taken into account in 10a,
and in the following ways:
(i) Cervical spine: In the absence of there being significant pre-existing degenerative
disease, it is unlikely that any impairment would be assessable either from injury or the nature and conditions of employment.
(ii) Lumbar spine: In the absence of pre-existing spondylolysis, it would be unlikely that any impairment would be assessable either from injury or the nature and conditions of employment.
(c) Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is one half for the following reasons:
(i) Cervical spine: Imaging undertaken after the onset of symptoms demonstrates a
pre-existing degenerative pathology. In the absence of this pathology, it is unlikely
that either injury or the nature and conditions of employment would have led to any
impairment in the cervical spine.
(ii) Lumbar spine: The surgery on the lumbar spine was undertaken to address preexisting
developmental and degenerative pathologies. In the absence of this
pathology, it is unlikely that specific injury or the nature and conditions of employment would have resulted in any assessable impairment in the lumbar spine.”
The Appeal Panel reviewed the evidence in the matter.
Dr Kalev Wilding, AMS, in the MAC dated 14 August 2018 assessed 30% WPI of the cervical spine and made a deduction of one tenth pursuant to s 323. He assessed the lumbar spine as DRE Category I which resulted in an assessment of 0% WPI in respect of the lumbar spine. Dr Wilding expressed the opinion that the appellant suffered from pre-existing degenerative change in the cervical spine with significant foraminal stenosis on the left at C5/6 and C6/7. He wrote: “The extent of the deduction is difficult or costly to determine so in applying the provisions of s 323(2) I assess the deductible proportion as one tenth”.
Dr Wilding noted that the appellant had commenced employment with the respondent as an IT manager in 2009 and was responsible for setting up IT systems in various Catholic outlets ‘from scratch’. The appellant said that there were ten branches in which he had to set up IT equipment and the job involved physical work lifting computers, servers and batteries and placing them in position at various sites.
Dr Wilding took the following history:
“On 16/11/2013 Mr Ramsey was transporting servers which weighed 40kg and workstations which weighed 15kg from Parramatta head office to the Blacktown office. He had to carry the servers and workstations and place them in a company SUV and transport them to Blacktown. There was no trolley. He then had to lift them into the Blacktown office and place them in situ. At some stage during the day he became aware of neck pain and referred pain down the left arm which he described as an ‘electric shock’ down the arm. The “electric shock’ went down to the fingers. He denied any previous history of similar symptoms.
…
On 7/2/2014 Dr Abraszko operated and performed an anterior cervical fusion at C5/6 and C6/7. Mr Ramsey said that the s down his left arm but he had persisting numbness in the tips of the left thumb, middle and ring fingers and numbness in the whole of the index finger. This had been present pre-operatively and persisted post operatively. He no longer experienced any shooting pain down his left arm. He remained off work for two months and then returned to work in a full time capacity with a 5kg lifting limit. However he said that he did not have any help at work and he did his normal duties still lifting heavy items, and arranged IT departments in various Catholic outlets.
In October 2015 he said that the main office was moving from Parramatta to a new Blacktown office (not the old Blacktown office). He said that he had to lift servers off racks in the Parramatta office and then they were collected and transported to the new Blacktown office where he had to place the servers in position. These servers weighed 40kg. Whilst doing this work he had a recurrence of shooting pain down the left arm and he also experienced low back pain.
He consulted Dr Gayed again and he was referred to Dr. Abraszko who arranged further MRI scans.
Dr Abraszko operated again on 18/6/2016 and performed a cervical decompression and discectomy on the left at C4/5, C5/6 and C6/7.
Mr Ramsey said that this relieved the shooting pain down his left arm but the numbness persisted in the fingers of the left hand as described previously. He was referred to physiotherapy for his lower back.”
Dr Wilding noted that the appellant had an MRI scan of the lumbar spine on
19 December 2013 and on questioning the appellant about why the scan was done at that stage, the appellant said that he had minor discomfort in his back in December 2013.
Dr Wilding noted that the appellant denied any history of neck pain prior to the incident on
16 November 2013. Dr Wilding noted that the appellant had an episode of back pain 10 years ago which settled, and he did not have any low back pain immediately prior to commencing employment in 2009.
Dr Wilding under “summary of injuries and diagnoses” wrote:
“Cervical Spine: Aggravation of pre-existing degenerative change and development of radicular pain down the left arm due to significant foraminal stenosis on the left at
C5/6 and C6/7.
Lumbar Spine: Musculoligamentous strain and aggravation of pre-existing degenerative change.”
In a statement dated 8 August 2016, the appellant described his job with the respondent as building a network which involved the purchase of servers, installation and linking of the servers to all of the computers in the agency. The appellant stated that this involved a lot of manual handling, lifting, connecting and disconnecting and a lot of shuffling of computers and servers. The appellant wrote:
“11.   The servers weighed in excess of 40 kg. Sometimes I would have to lift and carry these servers by hand, and other times I was able to access a trolley in order to manoeuvre and move these servers from one place to the next. The servers were large, bulky, and quite awkward to carry.
12.    There were also workstations which I had to purchase and assemble, and these weighed about 15kg each. Again I received no assistance with carrying either these servers or workstations.
13.    The head office, at the time that I was employed, was in Parramatta. This was the master site for the servers. The agency also had 9 other sites.
14.    My work involved travelling to each of these different sites and connecting all of the servers. Often times, I would have to disconnect the servers, and lift them into my car, and move them to another site. I was also responsible for all the purchasing, receiving, delivery, and connecting of these servers.”
The appellant described a further injury that occurred in October 2015 when he was required to move all of the servers to a new office in Blacktown. He stated that following this work in about late November 2015 he noticed increasing pain in his neck coming down his left arm and increasing pain down his lower back and coming down his left leg.
The appellant stated that “approximately 10 years ago, I did have pain in my lower back”. He described seeing his general practitioner at the time and thought that he was sent for some X-rays. He remembered being told that there was nothing out of the ordinary. He stated that since then he continued with his normal lifestyle without any problems and was able to perform his work with the respondent including all of the heavy and repetitive lifting of the computer servers and the computer parts until his injury in November 2013.
In the clinical note dated 23 November 2013, Dr Amir Philipos, the appellant’s general practitioner, noted: “History - He has had left arm pain and numbness of the fingertips for the last 6 days”.
In the clinical note dated 3 December 2013, Dr Ramsis Gayed, the appellant’s general practitioner, noted that the results of the MRI cervical spine (radiculopathy) were given to the patient.
In the ED Discharge Referral dated 10 December 2013, Dr Ian Ferguson of Liverpool Health Service noted that the appellant presented with increasing left arm pain on a background of diagnosed multilevel cervical spine disc prolapse and nerve root compression. Dr Ferguson wrote: “His main pain is in his L shoulder and upper arm, radiating to all his fingers. He also has some left lateral thigh parasthesia and is awaiting a lumbar spine MRI.”
In a report dated 23 May 2016, Dr Medhat Guirgis, treating orthopaedic surgeon, noted that the appellant’s employment with the respondent as an IT project manager involved a lot of manual handling, a lot of lifting, a lot of connecting and disconnecting, and a lot of shuffling of computers and servers with no support in all these manual handling activities. Dr Guirgis noted that these servers would weigh in excess of 40k and sometimes he would have to lift and carry these servers manually to other sites, and on other times he was able to access a trolley in order to manoeuvre and move these servers from one place to the next. Dr Guirgis noted that in about October/November 2013, it was decided to make the Blacktown site a backup site which required the appellant to reshuffle a number of existing servers both from the Parramatta site, and also in the Blacktown site and also to add new servers into the Blacktown site. Dr Guirgis reported that these were servers weighing over 40 kg in weight each and he had to load and unload them into and from the Holden Captiva car provided to him by work which proved to be quite awkward, as he had to put the back seats of the car down, and their lift the boxes or servers into the back of the car, and push them further into the car, so that he could carry more than one server at a time. Dr Guirgis noted that it was then he experienced pain in his neck shooting down his left arm and lower back pain shooting to both buttocks.
In a report dated 14 November 2016, Dr P. Endrey-Walder, consultant general surgeon, took the following history:
“Mr. Ramsey gained employment with the Catholic Care Social Services as an IT Project Manager in June 2009. He was the only person in that department of the Service, which involved a lot of physical input. He explained that his job was building networks for a multi-site agency, a lot of lifting and shifting hardware, climbing under desks to connect and disconnect the hardware, shifting servers weighing around 40kgs.
For a period of more than four years he was able to cope with his daily work but acknowledged that having had some lower back pain for a number of years prior to his employment, the various lifting activities would impact on his back. Still, he managed.
In October, November 2013 the Service established a back-up site in Blacktown, activity that involved a much greater amount of physical work in connecting and disconnecting the various apparatus, shifting and positioning servers in and out of the car on transfer.
On 16 November 2013 he suffered specific injuries while on the job. He explained that ‘on this day I had to transfer the back-up battery, UPS, about 40-45kgs, from Parramatta to Blacktown. I had neither a trolley, nor somebody else to give me a hand, I had to carry it some distance from the office to the car, struggled to place it in the back of the car and then taking it out, had to carry it into the Blacktown office, some distance from the car’.
He acknowledged that he had damage to his left upper limb at the time of birth, which resulted in stunted development of the left upper limb.
Nevertheless, he had never had any sensory deficit or pain in the arm prior to the above date.
‘I developed pain in the shoulder and in the arm which I never had before’
He continued working over the next few days but was troubled.
On 26.11.2013 he was seen by Dr Gayed of Liverpool, his family physician, who initially suspected possible heart problem, given the left arm pain.
Investigations and a stress test identified no cardiac pathology.
On 28.11.2013 he had an MRI scan of the cervical spine which led to his referral to Dr. Abraszko, Neurosurgeon…
In March or April 2014 he did start a Return to Work Programme, but was soon back on pre-injury duties, there was nobody there to help him with the physical aspects of the job.
In late 2014 he had increasing symptoms again, both at the neck and the lower back, on account of the daily lifting of heavy objects, once again including servers. He had to work at various sites of the Service.
In October 2015 the Parramatta head office and the Blacktown office were combined in a much larger office in Blacktown, once again resulting in an inordinate amount of daily physical input essentially on his own.
In late November 2015 he began experiencing increasing pain in the left upper arm, acknowledging that the numbness he felt in the arm since the injury in November 2013 never having dissipated after the neck operation. He also complained of lower back pain radiating to the left leg.”
Dr Endrey-Walder in his report dated 8 June 2017 assessed the cervical spine as DRE Category IV resulting in a 27% WPI. A two level fusion resulted in a 1% WPI. A second operation resulted in a 2% WPI and the scarring was assessed at a 1% WPI. The lumbar spine was assessed as DRE Category II resulting in a 5% WPI with a 1/5th deduction resulting in an overall 4% WPI.
Dr Raymond Wallace, consultant orthopaedic surgeon, in a report dated 16 January 2017, noted that the appellant was employed as an IT Manager by Centre Care Catholic Social Services based in Parramatta from May 2009. Dr Wallace noted that in 2013, the appellant was employed on a full-time basis with work duties including maintaining equipment computer equipment at night centre care branches. His work duties included office work, computer work and installing computer equipment. Dr Wallace wrote:
“In October 2013, he was required to reshuffle equipment in order to set up the Blacktown branch as a back-up site. He was required to move servers weighing between 35 and 40kg each and some universal power supplies weighing up to 50kg each using his work vehicle.
On 16 November 2013, he noted the onset of shooting pain at his cervical spine radiating to his left arm. He reported these symptoms to his employer”.

Dr Wallace expressed the opinion that the appellant’s cervical spinal condition was due to pre-existing multilevel degenerative cervical spondylosis which was constitutional in origin and not work-related.
Dr Wallace, in a report dated 6 November 2017, expressed the view that the appellant had suffered no work-related injury at his lumbar spine.
Dr Renata Abraszko, treating neurosurgeon and spinal surgeon, in a report dated
10 April 2017 noted that the appellant’s job with the respondent involved building networks for a multi-site agency, a lot of lifting and shifting hardware, climbing under desks to connect and disconnect the hardware, shifting servers weighing around 40 kg. She wrote: “There were no pre-existing conditions contributing to his injury”.
Dr Abraszko, in a report dated 9 December 2022, assessed 30% WPI in respect of the cervical spine and 26% WPI in respect of the lumbar spine. Dr Abraszko made no deduction pursuant to s 323 of the 1998 Act.
The approach to be taken in assessing the s 323 deduction was 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.”
At [38] of Cole, Schmidt said:
“38. What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
In Elcheikh v Diamond Formwork (NSW) Pty Ltd [2013] NSWSC 365Schmidt J referred to her decision in Cole, stating:
“88. Section 323 requires that once the level of impairment which results from a work injury has been established, that a medical specialist must make 'a deduction for any proportion of the impairment that is due to any previous injury'. As discussed in Cole v Wenaline Pty Limited at [29] that requires a conclusion: ‘on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment'.”
The process for determining impairment and any appropriate s 323 deduction was set out by Garling J in Pereira v Siemens Ltd [2015] NSWSC 1133 at [83]-[90] in a three-stage process being:
“The first step requires a finding of fact that the worker has suffered an injury at work which has resulted in a degree of permanent impairment which has been assessed pursuant to s 322 of the 1998 Act: see Elcheikh at [125].
The second step which needs to be addressed is, assuming such an injury has been sustained and impairment has resulted, what is the extent of that impairment expressed as a percentage of the whole person: see Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [38]; Elcheikh at [126].
The third matter to be addressed is whether the worker had any previous injury, or any pre-existing condition or abnormality. The previous injury does not have to be one in respect of which compensation is payable under the 1998 Act. If the phrase ‘pre-existing condition or abnormality’ is to be relied upon, then such condition or abnormality must be a diagnosable or established clinical entity: Fire & Rescue NSW v Clinen [2013] NSWSC 629.
A finding of the existence of a previous injury can be made without the presence of symptoms, but there must be evidence which demonstrates the existence of that pre-existing condition: Mathew Hall at [31]-[32].
The pre-existing injury or condition must, on the available evidence, have caused or contributed to the assessed whole person impairment: see Matthew Hall at [32]; Cole at [29]-[31]; Elcheikh at [88] and Ryder at [42].
It cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment: Clinen at [32]; Cole at [30]; Elcheikh at [91]. What must occur is that there must be an enquiry into whether there are other causes of the whole person impairment which reflect a difference in the degree of impairment: Ryder at [45].”
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”.
As noted above the appellant submits that the deduction of one half pursuant to s 323 of the 1998 Act in respect of both the lumbar spine and cervical spine is excessive and the Medical Assessor failed to explain his path of reasoning including why the deduction should be one half.

CERVICAL SPINE

In relation to the cervical spine the Medical Assessor made the deduction on the basis that the imaging undertaken after the onset of symptoms demonstrated a pre-existing degenerative pathology. He stated that in the absence of this pathology, it was unlikely that either injury or the nature and conditions of employment would have led to any impairment in the cervical spine.
The Appeal Panel considers that a deduction made pursuant to s 323 cannot be made on the basis of imaging only. The findings on imaging must be corelated with symptoms and functioning pre-injury. The Medical Assessor failed to adequately consider the symptoms and functioning pre-injury.
The Appeal Panel notes that the Medical Assessor failed to take an adequate history concerning the injury which was referred for assessment, that being a frank injury on
16 November 2023 and an injury which was caused by the “nature and conditions” of his work during his employment that was deemed to have occurred on 18 April 2026. The Medical Assessor failed to take a proper history of the appellant’s work duties during the period of his employment with the respondent. These work duties were described in far more adequate detail by Dr Wilding, Dr Endrey-Walder, Dr Guirgis and Dr Abraszko.
The history taken by the Medical Assessor appears to be limited to the establishment of a backup site in 2013. Indeed, the Medical Assessor stated in the history that there was “no specific injury” but over time the appellant developed pain in his neck and left arm and pain in his back. This does not accord with the terms of the referral, nor with the detailed history taken by the AMS, Dr Wilding, in the MAC dated 14 August 2018. The Medical Assessor did not take a history concerning the increase in symptoms in late 2015 when the appellant was required to move all of the servers to a new office. The Appeal Panel considers that the failure by the Medical Assessor to take a proper and adequate history results in a failure to properly consider the question of what deduction should be made pursuant to s 323 because he did not take into account all of the history relating to the injury and evaluate the contribution to the current impairment assessed made by the pre-existing condition.
While the Medical Assessor noted that Dr Wilding, AMS, made a deduction of 10% for a pre-existing condition in the cervical spine, he did not comment on why his opinion concerning the deductions differed. In circumstances, where the difference is extremely large, the Appeal Panel considers that the Medical Assessor should have provided some reasons to explain this difference in opinion.
The Appeal Panel is satisfied that the Medical Assessor failed to take an adequate history of the nature and conditions of the appellant’s employment and failed to take a proper history into account in making a deduction pursuant to s 323 of the 1998 Act.
The Appeal Panel is satisfied for the reasons given above that the Medical Assessor made a demonstrable error in making a deduction of one half pursuant to s 323 of the 1998 Act in respect of his assessment of the cervical spine. The Appeal Panel concludes that the Medical Assessor made a demonstrable error in making a deduction where there was insufficient consideration as to the actual consequences of the pre-existing condition and the Medical Assessor did not adequately explain how the pre-existing degenerative changes contributed to the assessment.
Having found error that the Medical Assessor erred in the making of a deduction pursuant to s 323 of the 1998 Act in relation to the cervical spine, the Appeal Panel must consider what deduction should be made for the pre-existing condition in the cervical spine.
There is no issue that the appellant had a pre-existing condition in his cervical spine. The Appeal Panel must determine the extent that the subject injuries were due to the earlier pre-existing condition.
The Appeal Panel is satisfied that although the appellant had a pre-existing degenerative condition in the cervical spine, he was asymptomatic until 16 November 2023.
The MRI scans dated 28 November 2013 were reported as:
“Significant foraminal stenosis on the left at C5/6 and C6/7. Correlation with the distribution of radicular symptoms is advised. If this is unclear, or if the arms fail to resolve with conservative measures, targeted CT-guided injection in the C5/6 and a/or C6/7 exit foramina could be performed as required.”
However, as noted above a deduction should not be made on the basis of imaging alone.
The appellant, in his employment with the respondent, worked in positions where he would twist his neck working under desks. He carried out duties which involved repetitive heavy lifting and these duties increased in November 2013. The Medical Assessor did not consider whether the appellant’s work duties from 2009 to 2016 could have contributed to development of degenerative change in the cervical spine or whether the C5/6 and C6/7 changes seen on the imaging in November 2013 could be post-traumatic. There is evidence that the appellant had shooting pain about a month after the frank injury in 2013 and this timing suggests a slow onset followed by acute pain, consistent with clinical notes of the GP and the history taken by Dr Endrey-Walder.
The evidence of the appellant is that immediately prior to the injury on 16 November 2013, he was able to engage with fully in the activities of daily living and performed heavy physical work in his employment.
The Appeal Panel considered that in circumstances where the appellant was asymptomatic before the injury on 16 November 2013 and performing heavy physical work, there was limited evidence as the actual consequences of the pre-existing condition or abnormality on the assessed impairment, and how it contributes to that assessment.
In terms of a deduction pursuant to s 323 of the 1998 Act, the Appeal Panel agrees that the appellant has a pre-existing condition, namely, degenerative spondylosis. The Appeal Panel is satisfied that this pre-existing condition contributes to the impairment assessed. However, the Appeal Panel concludes that the extent of the required deduction is difficult to assess because of the lack of medical information concerning the appellant’s pre-existing condition before his injury on 16 November 2013. The Appeal Panel considers that a one tenth deduction is appropriate in respect of the cervical spine and that this deduction is not at odds with the evidence.
The Appeal Panel noted that the respondent submitted that the Medical Assessor agreed with Dr Wallace’s conclusions regarding the nature and extent of the pre-existing condition. In fact, the Medical Assessor wrote:
“With respect to the report by Dr Wallace dated 16/01/2017, I note his comments with respect to the etiology [sic] of the multilevel degenerative cervical spondylosis are consistent with accepted medical evidence.
With respect to his report dated 06/11/2017, again I note he assesses 0% whole
person impairment attributable to the work injury on the basis of his condition being pre-existing.”
The Medical Assessor did not express agreement with the assessment made by Dr Wallace. Further, Dr Wallace did not address the aetiology of the multilevel degenerative cervical spondylosis beyond stating that the appellant was suffering from significant pre-existing multilevel degenerative cervical spondylosis prior to his symptom onset in November 2013.
The respondent submits that the Medical Assessor provided his reasons for disagreeing with the opinion provided by Dr Endrey-Walder. The Appeal Panel notes that the disagreement was confined to the question of the cause of the disc protrusion. The Medical Assessor noted but did not comment specifically on the deduction made by Dr Endrey-Walder for pre-existing pathology.
The Appeal Panel therefore assesses 32% WPI of the cervical spine and applies a one-tenth deduction, which results in an assessment of 28.8% which rounds up to 29% WPI.

LUMBAR SPINE

In relation to the lumbar spine the Medical Assessor made the deduction on the basis that in the absence of pre-existing spondylolysis, it would be unlikely that there would be any assessable impairment related to injury to or nature and conditions affecting the lumbar spine. He stated that the surgery on the lumbar spine was undertaken to address pre-existing developmental and degenerative pathologies and in the absence of this pathology, it is unlikely that specific injury or the nature and conditions of employment would have resulted in any assessable impairment in the lumbar spine.
As noted above, the Medical Assessor failed to take any history relating to the appellant’s employment duties and simply assumed that “the nature and conditions of employment” were unlikely to have resulted in any impairment in the lumbar spine if there had not been pre-existing pathology.
As noted in Cole for a deduction to be made from what the level of impairment assessed which resulted from 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. Further, this exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by s 323.
The Appeal Panel is satisfied that the Medical Assessor had made an assumption that in the absence of the pre-existing pathology in the lumbar spine, it was unlikely that specific injury or the nature and conditions of employment would have resulted in any assessable impairment in the lumbar spine. In the view of the Appeal Panel, the Medical Assessor did not make a conclusion based on all of the evidence that the pre-existing condition actually caused or contributed to that impairment.
The Medical Assessor under “Details and dates of Special investigations” referred to an MRI of the lumbar spine on 19 December 2013 and concluded “L5/S1 spondylolysis”.
Dr Laughlin Dawes, radiologist, in his MRI Lumbar spine report dated 19 December 2013 noted that there was a clinical history of low back pain radiating to the left leg. He wrote: “Comment: Degenerative disc disease, most marked at L1/1.2 and L5/S1. No neural compression”. There was no reference to spondylolysis in Dr Dawes’ report. The Appeal Panel considers that the changes reported in this MRI scan were typical for a person of the appellant’s age and were relatively minor.
Dr Ramesh Cuganesan, radiologist, in his report of CT lumbar spine scan, XR lumbosacral spine dated 9 January 2016, noted a clinical history of lower back pain and L4/L5 tenderness. He concluded: “Multilevel degenerative disc disease worst at the L5/S1 level with sided foraminal narrowing and possible impingement of the exiting left L5 nerve root”.
As noted above, the Appeal Panel consider that a deduction made pursuant to s 323 cannot be made on the basis of imaging only. The findings on imaging must be corelated with symptoms and functioning pre-injury. The Medical Assessor failed to take an adequate history and failed to adequately consider symptoms and functioning pre-injury in the lumbar spine. In particular, the Medical Assessor did not consider the history of further injury in late 2015 when the appellant was required to perform heavy physical work and move servers to a new office from various sites. Dr Abraszko noted that at this time in late 2015, the appellant started to complain of increasing lower back pain radiating to the left leg.
The history taken by the Medical Assessor was limited to the establishment of a backup site in 2013 and a reference to the appellant developing pain in his back which over time radiated into his left anterior thigh. The Appeal Panel considers that the failure by the Medical Assessor to take a proper and detailed history resulted in him being unable to adequately consider the question what deduction should be made deduction pursuant to s 323.
The appellant submitted that the deduction made by the Medical Assessor of one half in his assessment of the lumbar spine was excessive. The Appeal Panel noted that the Medical Assessor did not take into account the fact that the appellant was asymptomatic prior to the onset of his back symptoms, and his work was very labour intensive, involving lifting equipment weighing up to 40kg. The Appeal Panel considered that the Medical Assessor did not offer sufficient explanation as to why a deduction of one-half was appropriate apart from a reference to the findings on investigations.
The Appeal Panel is satisfied that the Medical Assessor made a demonstrable error in making a deduction of one half in respect of the lumbar spine pursuant to s 323 of the 1998 Act, because he failed to take an adequate history and properly consider the actual consequences of the work injury as well as the actual consequences of the pre-existing condition.
Having found error that the Medical Assessor erred in the making of a deduction pursuant to s 323 of the 1998 Act in relation to the lumbar spine, the Appeal Panel must consider what deduction should be made for the pre-existing condition in the lumbar spine.
There is no issue that the appellant had a pre-existing condition in his lumbar spine. The Appeal Panel must determine the extent that the subject injuries were due to the earlier pre-existing condition.
The Appeal Panel noted that the appellant had some problems with his low back in the past for which he had an MRI scan or X-ray. Dr Endrey-Walder noted that the appellant was told that there was no specific problem but acknowledged that heavy lifting in his job would impact on him in a symptomatic sense but never resulted in loss of time from work.
Dr Endrey-Walder made a deduction of one fifth for a pre-existing condition in his assessment of the lumbar spine. Dr Wilding, AMS, made no deduction as he rated the lumbar spine as DRE Category I although he concluded that the appellant had a pre-existing degenerative change in the lumbar spine. Dr Wilding noted that the appellant had an episode of back pain 10 years ago which settled and he did not have any low back pain immediately prior to commencing employment in 2009. Dr Wallace did not address the question of a s 323 deduction because he was of the view that the appellant had suffered no work-related injury at his lumbar spine.

The evidence of the appellant is that immediately prior to the injury on 25 March 2022, he was able to engage with all of the activities of daily living without problem and perform his work duties which required a lot of heavy repetitive lifting.
The Appeal Panel considered that taking into account the appellant’s history of back problems in 2006, a deduction of one fifth should be made pursuant to s 323 of the 1998 Act in respect of the impairment of the lumbar spine. This deduction accords with the deduction made by Dr Endrey-Walder, who took a very detailed history during his first examination of the appellant in 2016.
The Appeal Panel therefore assesses 32% WPI of the cervical spine and deducts one tenth which results in 28.8%, which is rounded up to 29% WPI. The Appeal Panel assesses 23% WPI of the lumbar spine and deducts one fifth which results in 18.4%, which is rounded down to 18%WPI. These figures combine to total 42% WPI as a result of the injury on
16 November 2013 and 18 April 2016 (deemed).
For these reasons, the Appeal Panel has determined that the MAC issued on
11 October 2024 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:	1140/18
Applicant:	Michael Ramsey
Respondent:	Trustees of the Roman Catholic Church for the Diocese of Parramatta

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 Rob Kuru 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)
Cervical Spine		16/11/2013 and nature and conditions – deemed date 18/4/2016	Chapter 4 Page 24-29	Chapter 15 Page 392 Table 15-5	32%	1/10th	29% (rounded up from 28.8%)
Lumbar spine	16/11/2013 and nature and conditions – deemed date 18/4/2016		Chapter 4 Page 24-29	Chapter 15 Page 384 Table 15-3	23%	1/5th	18% (rounded up from 18.45%)
Total % WPI (the Combined Table values of all sub-totals)						42%

[2025] NSWPICMP 86

12 February 2025