Sydney Trains v Singh
[2025] NSWPICMP 551
•29 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Sydney Trains v Singh [2025] NSWPICMP 551 |
| APPELLANT: | Sydney Trains |
| RESPONDENT: | Mahendra Singh |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Michael Davies |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 29 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); medical appeal; causation; questions of causation not foreign to medical disputes; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd applied; previous injury; section 323 applied; effect of finding that injury had resolved; subsequent events excluded on basis of Secretary, New South Wales Department of Education v Johnson, and State Government Insurance Commission v Oakley; relevant considerations; surgery causally connected to injurious event; scarring also causally connected and assessed appropriately; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 May 2025, Sydney Trains, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Donald Cawthorne, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 April 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 Singh, the respondent worker to these proceedings, commenced employment in an administrative role with the appellant in 2005. Later that same year, he commenced employment as a train guard, a role he was employed in until April 2021. He ceased employment with the appellant in July 2023.
The nature of Mr Singh’s injury, as well as other injuries he has suffered in his employment with the appellant, is complex. This is (at least) the fourth set of proceedings between the appellant and respondent that has proceeded through the Commission. Earlier proceedings have involved a claim for weekly compensation, which were resolved by consent in December 2021, a claim for neck surgery, which was also resolved via consent on 3 April 2024, and lump sum compensation proceedings in respect of injuries to the left and right upper extremities (shoulders), which proceeded to a medical assessment with a MAC issued on 19 August 2022.
That MAC was issued by Dr Berry and assessed 12% whole person impairment as a result of a deemed date of injury on 4 February 2021.
Mr Singh initially made a claim for injury to the cervical spine at some point prior to 10 August 2023. That is when the injury was first disputed by the respondent. On 22 August 2023, a request for review was sent by Mr Singh’s legal representatives. At that stage the claim in respect of the cervical spine was for weekly compensation and medical expenses. In that document, there are five alternatives postulated for the date of injury and causation of that injury:
(a) Nature and conditions of employment between 2005 and 2023;
(b) Frank injury (an assault on 14 September 2006, aggravated on 3 October 2012), which was also aggravated by the nature and conditions of employment between 2012 and 2023;
(c) Frank injury (assault on 3 October 2012), aggravated by nature and conditions of employment between 2012 and 2023;
(d) Frank injury (assault on 3 October 2012), aggravated by the nature and conditions of employment between 2012 to 2023 and further aggravated due to altered biomechanics (due to the accepted shoulder injuries), or
(e) A consequential condition, as a result of altered biomechanics due to increased stressors on the neck because of shoulder injuries.
Mr Singh made a claim for lump sum compensation on 27 September 2024 for injury to his cervical spine, with a date of injury of 4 February 2021 (deemed) or the nature and conditions of employment between 2005 to 2023. Reference is made in that correspondence to the two previously pleaded assaults, as being included as part of the nature and conditions of employment. There are four alternatives pleaded in that claim.
On 26 November 2024, the claim for lump sum compensation was rejected with reference to s 66(1A) of the Workers Compensation Act 1987 (the 1987 Act).
The matter ultimately proceeded to the Commission, with the Application to Resolve a Dispute being lodged on 12 December 2024. The date of injury in the pleadings was said to be 1 April 2021 (deemed). The cause was a nature and conditions claim “inclusive of the injuries events in 2006 (assault), 2012 (assault)”.
The matter proceeded to conciliation with a certificate of determination – consent orders being issued on 14 March 2025 and amended on 21 March 2025. The relevant orders on that occasion were:
“1. The Application to Resolve Dispute is amended as follows:
a. The dates of injury of “1 April 2021” and “27 September 2024” are deleted and replaced with a date of 'personal 'injury' of “3 October 2012”
b. The date of injury of “3 October 2012” is not a deemed date;
c. The injury description is deleted in its entirety and the following is inserted in place thereof: “The applicant suffered injury to his cervical spine due to an assault”
2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a. Date of injury: 3 October 2012 - Personal Injury.
b. Body systems / parts:
i. Cervical spine
ii. Scarring/TEMSKI
c. Method of Assessment: Whole person impairment
There was also a list of documents to be referred. Those documents are all before the Appeal Panel.
A referral was prepared and issued on 17 March 2025, reflecting the agreement of the parties. The MAC currently under appeal was then issued on 9 April 2025.
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 is sufficient material contained in the MAC, in conjunction with the documentary evidence before the Appeal Panel, to determine the dispute. It is noted that whilst the appellant requested a re‑examination by a medical member of the Appeal Panel, it is the Appeal Panel’s view that it is not necessary to conduct a re-examination. Further, for the reasons below, the appellant has not demonstrated that the MAC contains an error and accordingly it is not open to the Appeal Panel to conduct a re-examination in those circumstances (see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792).
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 identifies four grounds of appeal:
(a) the medical assessment was confined solely to the personal injury dated 3 October 2012, but the Medical Assessor provided an impairment assessment which included events prior to and post the date of injury;
(b) the Medical Assessor erroneously relied on an MRI of September 2017, which is not in evidence before the Commission;
(c) the Medical Assessor erred in attributing the entirety of impairment to the incident on 3 October 2012, despite evidence with respect to impairment caused by subsequent events, and
(d) the Medical Assessor erred in his assessment of scarring.
In reply, the respondent worker submits that the task of the Medical Assessor was to consider the impairment resulting from the injury and consider whether a deduction under s 323 was appropriate. It is sufficient if the injury materially contributes to the impairment assessed.
In respect of the MRI of September 2017, the respondent submits that the Medical Assessor placed no significance on that document and it does not form any part of his reasoning. The respondent also submits that the reasons of the Medical Assessor are adequate. In respect of scarring, the respondent submits that the scarring results from injury, and the assessment of scarring is a matter of clinical judgement. The Medical Assessor found 2% whole person impairment and there is no competing assessment available.
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. The appellant raises four grounds of appeal, although with a significant degree of overlap. Accordingly, the Appeal Panel’s consideration of the matter is limited to those issues (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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.
The majority of the appeal in this matter concerns questions of causation. It has long been acknowledged that causation is not foreign to medical disputes. The definition of a medical dispute in s 319 includes “the degree of permanent impairment of the worker as a result of an injury”. The words “as a result of” incorporate the question before a Medical Assessor, in assessing the degree of impairment, with scope to consider causal connection. The extent of that causal question is limited by other sections of the workers compensation legislation. This was explained in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 (Bindah):
“However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of "medical dispute". Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]).”
As can be seen by the summary of the claim for injury to the neck, and the ultimate referral of the claim for assessment, there is significant complexity to the causal question in this matter. The worker has postulated no less than five possible injurious causes of the impairment he now suffers in his neck. There is a degree of overlap of those causes, it is true, but ultimately the parties have agreed that Mr Singh suffered a specific injury and the consequences of that injury are what needs to be assessed. However, that does not, of itself, mean every other aspect of Mr Singh’s life, including any other potentially pleaded cases, is to be excluded from the assessment of impairment. As the respondent submits, the appellant has not really explained why the conclusion on causation was not available to him.
Ground 1 - causation
Although the appellant’s submissions include grounds 1 and 2 together due to overlap, the Appeal Panel consider them to be different issues and will tackle them separately. The causation question is summarised above, but turns on the nature of the referral and the role of the Medical Assessor in circumstances where Mr Singh has had a long history of employment and a number of potential contributing factors to his impairment. Ground 2 concerns a procedural fairness and irrelevant consideration argument.
The appellant submits that in accordance with the terms of the referral, the assessment of impairment must be confined solely to the personal injury that occurred on 3 October 2012, and not to any events that occurred before or after that event. The appellant submits that the Medical Assessor erred in three ways:
(a) by failing to consider the effects of the 2006 injury;
(b) by failing to consider the evidence that confirms a resolution of injury sustained on 3 October 2012, and
(c) by failing to consider relevant evidence attributing the worker’s cervical spine condition to other subsequent causes.
The 2006 injury
It is noted, per the above, that this injurious event has, at times, formed part of the claimed injury to the cervical spine, either as connected to a “nature and conditions” type claim, or an initiating event that was then aggravated by the assault on 3 October 2012 (the injurious event referred for assessment).
The Medical Assessor takes the following history of the two assaults that occurred in the course of the respondent’s employment with Sydney Trains:
“Mr Singh states he sustained two separate injuries during the course of his work with Sydney Trains. The initial injury took place on 14/09/2006 when he was punched in the face by a person on the platform as the train was pulling out of Merrylands station with the guard's door still open. He was pushed backwards into the train, injuring the back of his head and neck, and his left eye.
The second assault took place on 03/10/2012 (referred date). There was a disagreement with a passenger accompanying a wheelchair passenger about ramp availability to exit the train on arrival at Campbelltown station. Following verbal abuse aimed at Mr Singh by the passenger, he states he was assaulted, being hit in the back of the right side of his neck with a firm plastic bottle. Mr Singh attributes worsening neck pain since this incident.”
The history of injury on 14 September 2006 is consistent with Mr Singh’s statement, the history recorded in the report of Dr Edger, and the report of Dr Casikar.
The history of the incident on 3 October 2012 is consistent with Mr Singh’s statement, the history recorded in the report of Dr Edger, and other contemporaneous documents including the report of incident given on that date. Dr Casikar’s history records that in respect of the 2012 incident, “this has since recovered”. In a later report of 1 August 2023, Dr Casikar opines that the neck pain is due to the bilateral shoulder injury. On 1 November 2023, he diagnoses constitutional degenerative disease of the cervical spondylosis.
The Medical Assessor provides the following summary of injuries and diagnoses:
“Mr Singh is a 55-year-old former train guard who sustained two work-related neck injuries. The first occurred in 2006 when he was punched in the face, and the second in 2012 when he was hit in the back of the neck with a plastic bottle. He underwent a right C5/6 microforaminotomy in February 2024, which resolved his numbness, but he continues to experience neck pain. He is taking meloxicam and ceased working at Sydney Trains in July 2023.”
There are a number of observations about the existence of the 2006 injury that should be made. The first is that whilst the Medical Assessor refers to it existing, per the above paragraph and that quoted at [31], there is nothing within the reasons provided to suggest that he has placed any weight on it, or, somehow, inappropriately incorporated it into his assessment of impairment. The first reference is to the history of events, the second is to diagnosis.
Secondly, the existence of a previous injury, that has not formed part of the referral, forms part of the Medical Assessor’s consideration under s 323 of the 1998 Act. It is a “previous injury” by virtue of s 323: “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)”. It is not, as is more commonly seen, a pre-existing condition or abnormality. However, the existence of a previous injury does not mean that that injury contributes to impairment. As is the case with the exercise of s 323 in all matters, it is appropriate to make a deduction “for any proportion of the impairment that is due to any previous injury”. This, again, raises a causation question that must be answered by the Medical Assessor. The 2006 injury was a relevant consideration for the Medical Assessor. The Appeal Panel are satisfied that he approached that consideration appropriately.
Thirdly, the Appeal Panel would observe that the appellant’s symptoms following the September 2006 injury were minor. He would experience pain and symptoms intermittently. There is no evidence available to the Appeal Panel of any attendances or investigations undertaken. Meanwhile, following the 3 October 2012 assault, Mr Singh attended his general practitioner and was referred for a CT Scan (of the brain and cervical spine). This was reported on 4 October 2012 and showed “degenerative/spondylotic changes are seen in the lower cervical spine between C4/5 and C6/7”.
The Medical Assessor’s conclusion in respect of s 323 (which the 2006 injury forms part of) is on page 7 of the MAC. He refers to “pre-existing degeneration of the cervical spine” as the relevant issue, with how it contributes said to be “Degenerative changes noted on imaging would make symptoms and subsequent surgery more likely than if they were not present.”. That is, the Medical Assessor did not identify the 2006 injury as a “previous injury” that has contributed to the degree of permanent impairment.
Whilst the Medical Assessor’s reasoning on s 323 does not refer to the 2006 incident, the Appeal Panel are not satisfied this is an error. The contribution from the incident in 2006 was minor in all of the circumstances. No radiological investigations were undertaken then. The significant contributing factor to the question posed by s 323, as identified by the Medical Assessor, was the pre-existing degeneration of the cervical spine. The Appeal Panel would note that even though the 2006 incident could be considered to be a previous injury within the meaning of s 323, we are not satisfied that it contributed to the degree of impairment resulting from the 3 October 2012 injury. On that basis, it is not appropriate to consider it as part of the exercise of applying s 323.
The Appeal Panel agree with the respondent’s submission that there is no evidence that the Medical Assessor considered the effects of the 2006 incident to be anything other than a matter of history.
The resolution of the 2012 injury
The appellant submits that the Medical Assessor failed to consider the evidence that confirms a resolution of the injury sustained on 3 October 2012. The principal piece of evidence in this regard is a final certificate of capacity dated 13 December 2012, but also includes the treating material following that certificate, which the appellant submits does not show any complaints arising from the whiplash injury that occurred on that date. This is contrasted with the various other potential injurious causes including altered biomechanics, or a consequential condition arising from the shoulder injuries.
The reference to the final certificate of capacity does not mean that the injury had “resolved” in a way that prevents any claim being made for lump sum compensation. This circumstance was tackled in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie) at [249]-[264], although concerning an award made in the Workers Compensation Commission (as opposed to, in this case, a final certificate of capacity). After discussing the relevant authorities, including Bindah, Deputy President Roche said this (at [264]:
“The result is that, contrary to Peric, where there is a claim for weekly compensation and lump sum compensation and an Arbitrator decides that, because the effect of the injury has ceased, there is no entitlement to weekly compensation, and makes an award for the respondent in respect of that part of the claim, the assessment of whole person impairment must still be referred to an AMS.”
Thus, a finding of an injury having resolved is limited to the effects of that injury on a worker’s capacity. That is consistent with what occurred in this case – a certificate of capacity (known then as a Workcover NSW medical certificate) issued saying that the applicant is fit for pre-injury duties on 13 December 2012, a certificate headed “final”. That does not preclude an assessment of permanent impairment arising from injury.
The Appeal Panel acknowledge the various other hypotheses, within the worker’s statements, claims and medical evidence, attributing the cervical symptoms as arising from other causes (some of which are work-related, some of which are not). Ultimately, however, the parties agreed that the applicant suffered an injury on 3 October 2012 and that injury should be the subject of referral. By virtue of the medical causation question that is inherent in the assessment of a medical dispute, it was open to the Medical Assessor to assess impairment as he did. The question, as the respondent worker submits, is one of material contribution (Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49).
The other subsequent causes
The final of the triumvirate of errors is said to be in respect of subsequent causes, including, as discussed above, the other potential or hypothetical causes of the injury as pleaded by the respondent worker. The respondent submits that the evidence “clearly establishes other causes for the onset of the worker’s subsequent cervical spine symptoms, need for surgery, and overall impairment”.
It is not particularly clear what the “other causes” are. This is probably due, in part, to the way this case has been claimed and litigated from the start. There may have been contribution from the nature and conditions of work, but it is trite law that injury (and impairment) can have multiple causes (ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 at [27].
The respondent worker refers to Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 (Johnson). That case identified the three categories in State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003 (Oakley), which involves consideration of the impact of a subsequent injury on the determination of damage resulting from an earlier injury. The three categories are:
“(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and
(3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include [sic] no element of aggravation of the earlier injury, the subsequent and further injury should be regarded as causally independent of the first.”The Appeal Panel have, at length, discussed the other “injuries” which are contemplated by the three categories in Oakley. It is noted that none of those have found to be an injury at law as the parties have agreed the injury for referral occurred on 3 October 2012. They are allegations or pleadings, at best. For the purpose of the consideration of the three categories, they would be:
(a) the nature and conditions of Mr Singh’s employment, in the period following the 3 October 2012 injury, and
(b) altered biomechanics (in the usual nomenclature of the Commission, a consequential condition), as a consequence of the respondent worker’s accepted shoulder conditions.
The appellant has not alleged any other incident as causative of impairment. The degenerative change can only be relevant for the purpose of a pre-existing condition and has been considered as part of s 323.
For those two identified causes, the Appeal Panel are not satisfied that the events fall into the third category in Oakley. Mr Singh suffered an injury to his neck on 3 October 2012. That injury was sufficient to necessitate time off work for a period, radiological investigations, and, by Mr Singh’s evidence, resulted in ongoing symptoms that would come and go from time to time. The certification of Mr Singh as fit for pre-injury duties has been dealt with above and does not have impact on the consideration of the categories in Oakley.
It is the Appeal Panel’s view that from a causation perspective, within the confines of the causation question arising out of a medical dispute, the two identified further causes of damage would not have occurred had the worker been in normal health. The third category of Oakley does not apply to the factual circumstances of this case. The 3 October 2012 injury set in train a series of events in the respondent worker’s cervical spine that meant it was weaker, and more susceptible to injury (and the consequence of injury was more likely to be greater) than if that injury had not occurred.
The appellant also, albeit faintly, suggests that there is another cause for the respondent needing surgery and overall impairment. The issues raised in Oakley confirmed in Johnson also apply to the need for surgery. As the respondent submits, the present dispute did not concern the requirement for surgery.
It is noted that in a Certificate of Determination dated 3 April 2024, the appellant agreed to pay the costs associated with the surgery undertaken by the respondent worker, being the C4/5 and C5/6 microforaminotomy. This was on a “voluntary basis and without admission of liability”. This agreement, in a notation, does not bind the appellant. The agreement also does not bind the respondent worker. In circumstances where there can no longer be a dispute about the payment of medical expenses compensation for the surgery, the parties are unable to have that issue conclusively determined. Nonetheless, for the reasons as above, the Appeal Panel are satisfied that the worker’s 3 October 2012 injury materially contributed to the subsequently required surgery. It falls part of the “subsequent events” but is also part of the causal chain of the injury. It is therefore not possible to exclude it as part of the assessment impairment, as advocated by the appellant.
That is, the nature and conditions of employment following 3 October 2012 and the altered biomechanics as a consequence of the respondent worker’s shoulder conditions have aggravated the earlier injury. As the latter incidents fall into the second category in Oakley, they form part of the injury as pleaded in this case that occurred on 3 October 2012. The injury remains a material contributing factor to the impairment suffered.
Ground 2 – the reference to the MRI scan in September 2017
The appellant has referred to the existence of the MRI in submissions under ground 1. The Appeal Panel have considered the causation issues raised in that ground. It is difficult to see how a reference to a September 2017 MRI goes to causation, but the appellant has provided their submissions addressing the existence of that MRI in conjunction with ground 1.
The reference to the 2017 MRI appears under the heading “History relating to the injury” and is as follows:
“After multiple conservative measures failed, Mr Singh was seen by Dr Anil Nair, spinal surgeon. An MRI scan confirmed previous findings from a September 2017 MRI of the cervical spine, showing moderate right C5/6 foraminal narrowing due to a posterolateral disc and osteophyte complex.”
The appellant suggests that the Medical Assessor has taken the existence of this MRI scan, as well as the commentary on it, from the report of Dr Edger. The appellant submits that no MRI was undertaken in September 2017, which calls into question the accuracy and reliability of the conclusion reached by the Medical Assessor.
The Appeal Panel accept that the discussion above is largely taken verbatim from the report of Dr Nair. The Appeal Panel have been unable to locate a copy of any MRI from 2017, although note, as discussed above, a CT scan that was taken in 2012. The respondent worker’s statement refers to the MRI having occurred, on 13 September 2017.
The Appeal Panel agree with the respondent worker’s submission that the reference to the September 2017 MRI was only for the purposes of history and the Medical Assessor places no significance on it. The specific investigations considered and discussed by the Medical Assessor appear on pages 4 and 5 of the MAC. These support the findings made by the Medical Assessor.
The Appeal Panel are not satisfied that this ground of appeal is made out. If the reference to the existence of the September 2017 was incorrect (which is not clear, given the respondent worker states that such an examination did take place), it made no difference to the outcome of the assessment and the Medical Assessor placed no weight on it in reaching his conclusion.
Ground 3 - reasons
The appellant submits that the Medical Assessor erred by failing to provide reasons for considering the worker’s subsequent injuries and surgery as arising from the 3 October 2012 incident. The Appeal Panel have rejected the “causation” ground above, which potentially makes this ground of appeal otiose. The Medical Assessor has not answered the causation question incorrectly, or improperly assessed the worker, which makes his reasoning sound.
The role of a Medical Assessor, in the context of the requirement for reasons, was explained in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, discussed in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346, where Campbell J states:
“That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise.”
That is precisely what the Medical Assessor has done. As the respondent submits, the Medical Assessor’s reasons are self-evident. He properly considered the relationship between the injury on 3 October 2012 and the current impairment. Reasons are to be read as a whole. The Medical Assessor’s reasons take a full history of the injury the subject of the Medical Dispute, as well as the previous injury and subsequent events, including the surgery (which informs the degree of permanent impairment to a large extent). The fact that he did not reach a conclusion advocated for by the appellant does not mean his reasons are inadequate, particularly in circumstances where the position argued for is not really one open at law.
The Appeal Panel are satisfied the Medical Assessor has provided adequate reasons for his conclusion. This ground of appeal is not made out.
Ground 4 - scarring
The appellant challenges the assessment of scarring on two bases. The first is that some of the factors referred to by the Medical Assessor qualify for an assessment of 2%, whilst some qualify for 1% and 0%. The second is that the Medical Assessor has not provided adequate reasons given the potentially lower assessments.
The appellant also “relies on its submissions above with respect to the legal framework”. It is not clear if this suggests the appellant is relying on the same arguments with respect to causation as previously articulated. The respondent worker’s submissions suggests that is the case. The Appeal Panel have already found that the surgery undertaken by the respondent (from which the scarring results) was materially contributed to by the injury on 3 October 2012 (and accordingly, the scarring results from injury). Those reasons and conclusions do not need to be repeated here. Further, the assessment of scarring forms part of the medical dispute and was appropriately assessed by the Medical Assessor.
The Medical Assessor provides the following findings on physical examination in respect of the scar:
“Scarring
· 5cm midline posterior scar, 5mm wide, paler than surrounding skin, mild indenting, no trophic changes”
He provides the following explanation for the calculation of impairment:
“TEMSKI: 2%
Table 14.1 p 74 SIRA: Noticeable colour contrast, Anatomic position visible with normal clothing, contour defect.”
It is firstly noted that the assessment of scarring, under the TEMSKI scale, is one of “best fit”. The Medical Assessor has clearly considered the appropriate criteria in Table 14.1 and has reached a conclusion based on “best fit”. He has not applied incorrect criteria.
In respect of his reasoning process, the Appeal Panel are satisfied the reasons are adequate. They explain the path of reasons in sufficient detail so that it is possible to understand the reason for the conclusion reached. The criteria in the TEMSKI table are straightforward and do not need to be espoused in great detail. The fact that there was a “potential” for a lower assessment does invalidate the reasons given by the Medical Assessor or make them inadequate.
The Appeal Panel are not satisfied that this ground of appeal is made out.
Conclusion
The Appeal Panel are not satisfied that any of the appellant’s grounds of appeal are made out. For the reasons given above, the Appeal Panel has determined that the MAC issued on 9 April 2025 should be confirmed.
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