Smart v C.T Morrison & J.A Morrison & T.C Morrison t/as TC Morrison Partnership
[2025] NSWPICMP 354
•21 May 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Smart v C.T Morrison & J.A Morrison & T.C Morrison t/as TC Morrison Partnership [2025] NSWPICMP 354 |
| APPELLANT: | Alan Lawrence Smart |
| RESPONDENT: | C.T. Morrison & J.A. Morrison & T.C. Morrison t/as TC Morrison Partnership |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 21 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); section 323; Cole v Wenaline Pty Limited, and Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) applied; worker’s injury aggravation of a disease due to nature and conditions of employment; Southwell v Qantas Airways Limited discussed; Cullen v Woodbrae Holdings Pty Ltd applied; no evidence of a “relevant date” at which pre-existing condition existed to contribute to impairment; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 January 2025 Mr Smart, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 January 2025.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Smart has worked in heavy duties from the age of about 12. He commenced work on his grandparent’s farm doing farm type duties. He worked in various roles, always using his hands, including with an electrical engineer, as a construction labourer, and as a farm labourer. He commenced work for the respondent in about 2010.
Mr Smart first suffered an injury to his shoulders. This was a specific incident in 2015, but does not form part of the present claim before the Personal Injury Commission (Commission). In the period following that injury, Mr Smart had some time off and returned to work some time in 2016. He worked with sheep, mustering them, moving them and wool pressing. This work involved lots of bending and heavy lifting.
Mr Smart then brought a claim for lump sum compensation for injuries suffered to the cervical spine, thoracic spine and lumbar spine in the course of employment with the respondent. The matter proceeded to the Commission and was ultimately assessed by the Medical Assessor, with a MAC being issued on 7 January 2025. The cervical spine was assessed at 6% and the lumbar spine at 5%, with a deduction of 1/10 for each, for a total whole person impairment of 10%.
The appellant appeals against that medical assessment limited to the deduction made by the Medical Assessor pursuant to s 323 of the 1998 Act.
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 not necessary for the worker to undergo a further medical examination because there was sufficient information contained in the material before the Appeal Panel, as well as in the MAC, to determine the issue.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in his application of s 323 as he failed to record any history of a pre-existing condition or abnormality that contributed to the degree of impairment, contrary to established principles. The appellant submits that the starting point for considering a deduction is determining the relevant date, being the commencement of employment.
In reply, the respondent submits that question for the Medical Assessor was whether s 323 of the 1998 Act was engaged in the circumstances, and whether there is any evidence available of a pre-existing condition in the cervical and lumbar spine. The respondent says the Medical Assessor appropriately applied s 323 in the circumstances. The respondent refers to the Medical Assessor’s identification of constitutional facet arthrosis, as well as bone scans that support that conclusion. The respondent notes that both Dr Bosanquet and Dr Dixon made deductions pursuant to s 323.
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 Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 (Burton), the Court of Appeal confirmed that the Appeal Panel is not limited to the ground held by the President to have been made out pursuant to s 327(3), but cannot look for errors which are not part of the grounds of appeal (per Basten JA at [26]). The issue in this case is limited to s 323 of the 1998 Act.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel has an implied obligation to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The issue in this case concerns s 323 of the 1998 Act. There is a wealth of case law interpreting the application of that section, most of which has been referred to by the parties in their submissions. Section 323 provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note—
So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.
(5) (Repealed)
Note—
Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.”
The starting point for considering the application generally of s 323 of the 1998 Act is often the regularly cited Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole), per Schmidt J. Cole was followed by Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365 (Elcheikh), in which the three-step test was affirmed and elaborated upon:
“As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
·Firstly, what the extent of the resulting impairment is.
·Secondly, whether the pre-existing condition contributed to the impairment.
·Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.”
In Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder), Campbell J sets out the interpretative history of s 323 through various decisions of the Supreme Court and Court of Appeal from [38]-[45]. His summary of what the section requires is expressed at [45]:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
In addition to the above general authorities, the specific facts of this case require some additional commentary. Mr Smart suffered injury not due to a specific incident on a specific date, but over time due to the aggravation, acceleration, exacerbation or deterioration of a disease. This is made clear both by the description of injury in the Application to Resolve a Dispute and the terms of the consent orders reached by the parties and issued by the Commission on 5 November 2024. This represents a “deemed” date of injury, an injury suffered due to repetitive bending, twisting, lifting and working in a prone posture for many years. As described above, Mr Smart was employed as a farm labourer working for many years with the respondent. His performed the above duties as part of his employment.
Where the injury is in the nature of a disease, or aggravation of a disease, the decision of Beech-Jones J in Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 (Cullen) becomes relevant. After referring to Mathew Hall Pty Ltd v Smart [2000] NSWCA 284, his Honour held:
“This reasoning is equally applicable to s 323 of the WIM Act. Thus to establish a pre-existing condition for the purposes of s 323(1) there must, at the relevant date, be an actual condition although it may be asymptomatic. A mere predisposition or even a susceptibility is not sufficient to constitute a condition.”
Cullen was applied by Johnson J in Craigie v Faircloth & Reynolds Pty Ltd and Ors [2021] NSWSC 1211 (Craigie). In that case, the Appeal Panel had also failed to identify the “relevant date” in its reasons. The appellant relies on both Cullen and Craigie in submissions.
The appellant submits that the Medical Assessor failed to identify a “relevant date”, which in the circumstances of this case, was the relevant date of commencement of employment. The appellant also refers to s 68B of the Workers Compensation Act 1987 although makes no submissions in support of that reference. The respondent refers to the identification of the pre-existing condition by the Medical Assessor as well as the other medical opinions in this case, which is submitted fulfils the test in Ryder.
In the MAC, the Medical Assessor identified the following history or onset of injury:
“Mr Smart told me he developed pain in his neck and lower back which he attributed to the nature and conditions of his employment as a Farmhand/Shearer. He could recall no specific incident over the years of his employment.”
He noted that the date of injury was “27/01/2017 (deemed)”. It is clear that he was aware that this was a claim for an aggravation of a disease type injury, that developed over time, due to the nature and conditions of Mr Smart’s employment. The Medical Assessor referred to specific investigations that he was able to review “on the PRP PACS site”, being bone scans taken on 23 September 2020 and 9 June 2022. The respondent refers to and relies on these investigations as being supportive of the conclusion reached by the Medical Assessor. The conclusion of the Medical Assessor was that the first showed “C3/4 facet arthritis” and the second “Multiple level cervical facet arthritis maximal C3/4”.
In the section of the MAC considering the impact of s 323, the Medical Assessor provides:
“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) Degenerative spondylosis 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) Injuries to the cervical and lumbar spine represent aggravation of a pre-existing consitutional condition.
c) 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.”
In terms of the three-step test as required by Cole and Elcheikh, the Medical Assessor has clearly applied the first step correctly. He has identified the current degree of permanent impairment by reference to the presentation of the appellant on the day of examination.
The second step in Elcheikh requires consideration of “whether the pre-existing condition contributed to the impairment”. This presupposes (or requires the identification of) a pre-existing condition or abnormality. The identification of any relevant condition is an important part of concluding, per the second step, that it contributed to the impairment present.
In the present circumstances, the Medical Assessor identified degenerative spondylosis in the cervical and lumbar spine. In respect of the cervical spine, the Medical Assessor has identified on the existence of radiology (bone scans) which show facet arthritis being present, maximally at C3/4. There are two comments to make about this radiology. The first is that there is no discussion of any radiology in the lumbar spine. The Medical Assessor has not identified the existence of any investigations in that regard. The second is that in respect of the cervical spine, these investigations post date the injury by three and five years. The reliability of that evidence to identify the presence of a pre-existing condition must be considered in those circumstances.
Further, the Medical Assessor has failed to identify, per Cullen, a “relevant date” at which these pre-existing conditions actually existed. No reasons are provided in support. In circumstances where Mr Smart commenced work with the respondent in about 2010, and completed the same duties until finally ceasing work in 2017, this required the Medical Assessor to appropriately consider at what point in time the pre-existing condition in fact existed. The only evidence referred to post-dates the injury by a significant period. The Medical Assessor’s reasons do not adequately explain this important and required aspect of his consideration.
The Medical Assessor’s reasons, when in answer to the question of contribution (not the existence of the pre-existing condition or abnormality), is that the injuries “represent aggravation of a pre-existing constitutional condition”. This may be the case on a factual basis, per the terms of the referral. The aggravation (etc) disease provisions provide for an injury to be found on those terms. However, the existence of a pre-existing condition that has been aggravated for the purposes of determining injury pursuant to s 4 of the 1987 Act has no impact on the application of s 323.
This approach is precisely the error identified by Wright J in Southwell v Qantas Airways Limited [2024] NSWSC 497 (Southwell). Commenting on Elcheikh (and Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334), his Honour said this of the second step in the three-step test:
“In light of the construction referred to above, however, the formulation of the second of these three enquiries may, in a case such as the present, misdirect consideration, if it were thought that all that had to be established was that the pre-existing condition was causally related in some way to subsequent workplace injury and the impairment suffered as a result of that injury, without any part or portion of that level of impairment being due to the pre-existing condition and not the injury.”
Here, the Medical Assessor has proceeded on that basis. That is, he has assumed that the mere fact that the injuries represent aggravation of a pre-existing constitutional condition means that they have contributed to the current degree of permanent impairment. As above, more is required than identifying that the pre-existing condition causally relates to the subsequent workplace injury and the impairment suffered from that injury. What is required is that some portion of that impairment is due to the pre-existing condition.
The respondent relies on Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz) at [43], on the basis of that extensive reasons are not required where alternative conclusions are not presented on the evidence. In that same paragraph, it is made clear that a deduction can be made “even though the pre-existing condition had been asymptomatic prior to the injury”. This is undoubtedly the case, but does not circumvent the requirement that on a proper construction of s 323, the pre-existing condition must be identified as contributing to the current degree of permanent impairment (see Southwell at [52]).
In present circumstances, the Medical Assessor has not approached the question in accordance with the legislation. He has presumed that, on the basis that the injury consisted in the aggravation of a pre-existing condition, it has contributed to the degree of permanent impairment. He has also proceeded on this basis whilst failing to identify at what point that pre-existing condition existed medically, with reference to appropriate evidence. This is, as the appellant submits, a demonstrable error.
Accordingly, the Appeal Panel must consider the appropriate and correct application of s 323. True it is that both independent medical opinions in this case have made a deduction pursuant to s 323. In those circumstances, the Medical Assessor was able to proceed on a partly intuitive basis without the requirement to provide extensive reasons (Vitaz at [43]).
However, the proper application of s 323, in the circumstances of this case, still require the identification of a pre-existing condition, at the “relevant date”, that has contributed to the degree of permanent impairment.
The radiological evidence in this case post-dates the injury by a significant period. The Appeal Panel have reviewed the material attached to the Application and Reply, and have been unable to identify any relevant complaints, investigations, or issues that pre-date the applicant’s commencement of employment with the respondent and commencement of duties that caused the aggravation injury he now presents with. On that basis, the Appeal Panel are unable to identify a pre-existing condition that contributes to the current degree of impairment.
It is clear, based on the agreement between the parties in terms of the referral for assessment, that such a condition existed. It is an essential nature of a finding of an aggravation etc. type injury that that is the case. However, that does not mean in all and every circumstance where such injury is found (or agreed) that there is to be a deduction pursuant to s 323. The Appeal Panel are not satisfied that such is the case here.
Per step two in Elchiekh, the Appeal Panel are not satisfied that the evidence supports the existence of a pre-existing condition that contributes to the current degree of impairment. Accordingly, the next step is not enlivened, and no deduction can be made, regardless of whether it is made pursuant to s 323(2) on the basis that it would be difficult or costly to determine, as found by the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 January 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: | W25939/24 |
Appellant: | Alan Lawrence Smart |
Respondent: | C.T. Morrison & J.A. Morrison & T.C. Morrison t/as TC Morrison Partnership |
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 | 27/01/2017 (deemed) | Chapter 4 Page 24-29 | Chapter 15 Table 15-5 | 6% | Nil | 6% |
| Thoracic spine | 27/01/2017 (deemed) | Chapter 4 Page 24-29 | Chapter 15 Table 15-4 | 0% | N/A | 0% |
| Lumbar spine | 27/01/2017 (deemed) | Chapter 4 Page 24-29 | Chapter 15 Table 15-3 | 5% | Nil | 5% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
0
11
0