State of New South Wales (Fire & Rescue NSW) v Lennon
[2025] NSWPICMP 504
•11 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (Fire & Rescue NSW) v Lennon [2025] NSWPICMP 504 |
| APPELLANT: | State of New South Wales (Fire & Rescue NSW) |
| RESPONDENT: | Brett Lennon |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 11 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); medical appeal; multiple grounds of appeal raised, including that worker had not reached maximum medical improvement; respondent worker conceded that he had not reached maximum medical improvement; Appeal Panel satisfied on the evidence that this was the case; other issues not appropriate to be determined; Held – MAC revoked; worker’s impairment certified as not fully ascertainable. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 March 2025 State of New South Wales (Fire & Rescue NSW) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 February 2025.
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, 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 Lennon commenced employment with the appellant in 1985. He worked as a firefighter until his medical discharge on 11 January 2024. As is understandable for a front-line firefighter, his duties were heavy, involving crawling, dragging, moving heavy equipment and people from dangerous situations and the like. He initially injured his back carrying firefighting equipment, and then sustained a number of further aggravations during his employment.
Mr Lennon made a claim for lump sum compensation, which was assessed and then disputed, only on the basis of the degree of permanent impairment. He then commenced proceedings in the Personal Injury Commission (Commission), with the matter being referred for assessment before Dr Mastroianni, a Medical Assessor. A MAC was issued on 21 February 2025, assessing 16% whole person impairment.
The respondent appeals against that assessment on a number of bases, that, as will be seen, all fall away due to the first ground of appeal.
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 of the issues raised on appeal and the respondent’s concession in respect of the first ground raised by the appellant.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
As indicated, the appellant relies on five grounds of appeal. In brief, they are:
(a) the Medical Assessor proceeded to assess permanent impairment in circumstances where he had concluded that the respondent’s condition had not reached maximum medical improvement;
(b) the Medical Assessor went beyond the scope of referral by assessing a nerve condition in the left leg;
(c) the Medical Assessor failed to provide sufficient reasons to distinguish the nerve condition he found from symptoms of radiculopathy;
(d) the assessment of 3% whole person impairment for the impact of the injury on activities of daily living is inconsistent with the evidence, and
(e) the Medical Assessor has not provided reasons for the decision to not make a deduction pursuant to s 323 of the 1998 Act.
In response, the respondent worker concedes that there has been an error, as alleged in the first appeal ground, and on that basis there is no need to comment on the other grounds of appeal.
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 raises a variety of issues but due to the first ground of appeal, those issues must necessarily fall away.
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 first ground of appeal concerns whether the respondent has reached maximum medical improvement. The appellant refers to cl 1.15 and 1.16 of the Guidelines. On page 4 of the MAC, the Medical Assessor answers the question of whether the worker had reached maximum medical improvement by stating “No see 10a”, and then goes on to record:
“NB: The claimant will be reviewed by his treating specialist (Dr Reddy) in the next 2 months for a routine review. In view of the recent flare-up, the consultant may consider more invasive treatments. The claimant however is adamant that he would only undergo surgery as a last resort, and would consider surgical options if advised by the treating specialist.
In my opinion it is unlikely that the claimant will agree to have surgery at this point in time however I would recommend waiting for review by Dr Reddy, and the claimants decision regarding ongoing treatment.
I did a whole person impairment assessment which reflects the current WPI. However if the claimant was to have surgery I recommend waiting 6-9 months after the surgery to assess whole person impairment.”
The respondent work concedes this ground in their submissions in response.
There are two issues that arise for consideration and determination. The first is whether the ground of appeal, as alleged by the appellant, is made out. It is insufficient to concede the point – the Appeal Panel must consider the issue in accordance with the legislation, regardless of the respondent’s submissions (although no doubt they will be persuasive as to the appropriate course of action).
Clause 1.15 and 1.16 of the Guidelines concern maximum medical improvement and provide the following:
“1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
1.16 If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation – subject to paragraph 1.34 in the Guidelines.”
The determination of whether a worker has reached maximum medical improvement is an aspect of a “medical dispute” referred for assessment, per s 319(g) of the 1998 Act, which provides: “whether the degree of permanent impairment of the injured worker is fully ascertainable”.
In present circumstances, the Appeal Panel are satisfied that the Medical Assessor has erred in his approach. He has determined that the worker has not reached maximum medical improvement. In such a case, the Guidelines provide a specific procedure by virtue of cl 1.16 – the assessment should be deferred. The finding then would be that the degree of permanent impairment of the injured worker is not fully ascertainable (see s 319(g) of the 1998 Act).
For completeness, the Appeal Panel agree with the Medical Assessor’s conclusion that in the presence of the worker’s deteriorating condition and recent flare up, as well as his upcoming review with his treating specialist, the worker cannot be considered to have reached maximum medical improvement. His condition is fluctuating and it cannot be said that it is well stabilised and unlikely to change substantially in the next year.
The approach taken by the Medical Assessor was no doubt a practical one. Should invasive treatment not be required then it is likely that the worker’s condition could be considered to be stable and maximum medical improvement reached. However, in taking that approach, the Medical Assessor has applied incorrect criteria and accordingly the MAC must be revoked.
The second issue relates to the other four grounds of appeal raised by the appellant. It is the Appeal Panel’s view that it is not necessary to consider or determine those issues, in circumstances where the conclusion reached is to revoke the MAC and make a finding that the worker has not reached maximum medical improvement. The subject assessment of impairment no longer exists in those circumstances and the consideration of the grounds of appeal would thus be otiose. Any further assessment of impairment, that may proceed at a later stage, will replace the findings made by the Medical Assessor in the current MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 February 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: | W29226/24 |
Applicant: | Brett Lennon |
Respondent: | State of New South Wales (Fire & Rescue NSW) |
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 Tommasino Mastroianni 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) |
| Lumbar spine | 31 July 2022 | Chapter 1, cl 1.15-1.16 Chapter 4 | Chapter 15 | n/a | n/a | Not fully ascertainable |
| Total % WPI (the Combined Table values of all sub-totals) | Not fully ascertainable | |||||
0
2
0