Upper Lachlan Shire Council v Roberts

DETERMINATION OF APPEAL PANEL
CITATION:	Upper Lachlan Shire Council v Roberts [2025] NSWPICMP 848
APPELLANT:	Upper Lachlan Shire Council
RESPONDENT:	Scott Andrew Roberts
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Gregory McGroder
MEDICAL ASSESSOR:	Robert Kuru
DATE OF DECISION:	3 November 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor (MA) erred by not providing sufficient reasons for why permanent impairment the respondent has from his right shoulder injury is not due to a pre-existing condition, and by not making a deduction under section 323(1) for pre-existing conditions; whether MA provided sufficient reasons for adding 2% whole person impairment (WPI) for the effects the respondent’s cervical spine injury has on his activities of daily living, and for the effects the respondent’s cervical spine injury has on his activities of daily living; Held – MA did not provide sufficient reasons for why a pre-existing condition in the respondent’s right shoulder did not form any proportion of the respondent’s permanent impairment; Appeal Panel corrected the error by providing reasons for why that is so; MA erred by not making a deduction under section 323(1); MA erred by adding 2% WPI for the effects the respondent’s cervical spine injury has on his activities of daily living; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 August 2025 the Upper Lachlan Shire Council, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 July 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, 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 employed Scott Andrew Roberts between February 2006 and August 2022 as a roadside supervisor. On 20 August 2019 the respondent suffered an injury to his right shoulder and cervical spine when he used a sledgehammer to hit a pole into hard ground. An MRI scan of his right shoulder was done on 5 September 2019 which revealed an undisplaced humeral head greater tuberosity fracture, a type 2 SLAP tear between 3 and 11 o’clock, supraspinatus tendinosis with bursal sided fraying and low grade partial thickness tearing, and moderate osteoarthritis in the acromioclavicular joint (AC joint) with mild subacromial bursitis.
The respondent came under the care of orthopaedic surgeon Dr Hamish Rae. In a report
Dr Rae wrote to the appellant’s insurer on 19 September 2019 he advised it that the respondent’s injury is a greater tuberosity fracture and a SLAP tear. Dr Rae in a subsequent letter he wrote on 11 October 2019 to the respondent’s general practitioner noted that the respondent had developed associated capsulitis and stiffness due to the fracture of his right shoulder.
In January 2020 Dr Rae undertook surgery on the respondent carrying out a right shoulder arthroscopic capsular release and biceps tenodesis. The respondent continued to suffer symptoms and in March 2022 Dr Rae performed a right shoulder arthroscopic capsular release and subacromial decompression.
On 3 September 2024 the respondent’s solicitors wrote to the appellant’s insurer advising it that the respondent claimed compensation for permanent impairment resulting from his injury. They enclosed with their correspondence a report they obtained from orthopaedic surgeon Associate Professor Brett Courtenay dated 25 June 2024 to support the respondent’s claim. In that report Associate Professor Courtenay advised he assessed the degree of the respondent’s permanent impairment from his injury is 18% whole person impairment (WPI), being a combination of 7% WPI relating to his cervical spine (which included 2% WPI for the effect the respondent’s injury had on his activities of daily living) and 12% WPI relating to the respondent’s right shoulder.
To respond to that claim the insurer had the respondent examined by orthopaedic surgeon Dr Richard Powell on 28 October 2024, who advised in a report dated 3 December 2024 he assessed the degree of the respondent’s permanent impairment relating to his injury is 9% WPI, which related entirely to the respondent’s right shoulder. Dr Powell said that the respondent had 0% WPI relating to his cervical spine.
The insurer notified the respondent on 11 February 2025 that it disputed he was entitled to compensation for permanent impairment. It advised him this was because it took the position that the degree of his permanent impairment was not more than 10% WPI. It provided him with a copy of Dr Powell’s report.
Thereupon the respondent initiated proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute dated 7 March 2025. Following the appellant filing a reply to that, a delegate of the President of the Commission issued a referral to the Medical Assessor to assess the degree of the respondent’s permanent impairment from his injury.
The Medical Assessor recorded in the history he detailed in the MAC relating to the respondent’s injury that the respondent had “an almost immobile right shoulder”, that the respondent has continuous pain in his right shoulder and that the respondent also has pain in his neck. The Medical Assessor noted that the respondent could not do much around his house either indoor or outdoors because of “the useless right shoulder” and that prior to his suffering his injury the respondent engaged in recreational activities and had a boat. The Medical Assessor noted that now “all these are lost”.
The Medical Assessor detailed in the MAC his findings from his examination of the respondent. No issue had been raised in the appeal against the medical assessment regarding the Medical Assessor’s findings.
The Medical Assessor referred to two investigations, one of which was an MRI of the respondent’s right shoulder done on 1 February 2021, and which the Medical Assessor noted revealed AC joint degeneration, a previous bicep tenodesis, rotator cuff tendinopathy and reduced signal within the superior labrum. The other was an MRI of the respondent’s cervical spine done on 3 May 2023 which the Medical Assessor commented was unremarkable.
The Medical Assessor diagnosed the respondent had a soft tissue injury to his cervical spine and had an unresolved soft tissue injury to his right shoulder.
The Medical Assessor advised that he based his assessment on “a thorough history, a comprehensive physical examination, a review of the documentation made available by the Personal Injury Commission with reference to the SIRA Guidelines (2021) and AMA-5”. The Medical Assessor repeated that subsequently in the MAC when explaining what matters he took into account in making the assessment.
The Medical Assessor certified that he assessed the degree of the respondent’s permanent impairment from his injury is 19% WPI. That was a combination of 13% WPI of the right upper extremity and 7% WPI of the cervical spine. The Medical Assessor provided the following explanation within part 10a of the MAC for his assessment:
“The cervical spine is assessed by the DRE method, as set out in T15-5 p 392. There was no dysmetria, but a significant muscle spasm on the right on my examination. There were no suggestions of radiculopathy. DRE 2, with 5% WPI.
A further rating is added from interruptions to ADLs as per 4.34 P 28 NSW guides. He has lost all recreational and outside maintenance tasks and is useless inside the house, awarding 2% WPI for loss of these ADLs. WPI 7%.
The shoulder is rated by loss of ROM, as set out in table below. This results in 21% UEI which converts to 13% WPI.”
The medical disputes that were referred to the Medical Assessor to assess included whether any proportion of the respondent’s permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of proportion. With respect to that particular dispute the Medical Assessor certified that his assessment is that no proportion of the respondent’s permanent impairment is due to a previous injury, pre-existing condition or abnormality.

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 respondent to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for it to determine the appeal.

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.
In summary, the appellant submitted that the Medical Assessor erred by not making a deduction under s 323(1) of the 1998 Act when assessing the degree of the respondent’s permanent impairment relating to both the respondent’s cervical spine and right shoulder. The appellant contended that a proportion of the respondent’s permanent impairment with respect to both body parts is due to a pre-existing condition. The appellant referred to various parts of the evidence before the Medical Assessor including reports of MRI investigations done of the respondent’s right shoulder on 5 September 2019, 5 May 2020, 1 February 2021 and 3 May 2023, and a report on an MRI investigation of the respondent’s cervical spine done on 3 May 2023, and the reports of Associate Professor Courtenay and Dr Powell. The appellant submitted that the reports of the MRI investigations revealed arthritic change in the respondent’s right shoulder and facet joint osteoarthritis at C2/3. The appellant submitted Associate Professor Courtenay had concluded that there was evidence of the respondent having underlying facet joint arthritis in his cervical spine, and that Dr Powell had identified the respondent suffered an injury to his cervical spine in a motor vehicle accident in 2000 and that he had underlying changes cervical spondylosis and aggravation of underlying degenerative disease in his right shoulder as a consequence of the injury the respondent suffered.
The appellant submitted that the Medical Assessor did not give consideration to those matters. The appellant submitted that the Medical Assessor was required to have regard to the consequence of a prior injury or pre-existing condition or abnormality. The appellant submitted that the Medical Assessor ought to have addressed this evidence when determining what proportion of the respondent’s impairment is due to a prior injury or pre-existing condition or abnormality.
The appellant submitted that the evidence revealed extensive and significant prior pathology and warranted intervention by the Appeal Panel.
The appellant submitted that the Medical Assessor did not provide adequate reasons for not making a deduction under s 323(1) of the 1998 Act.
The appellant referred to statements the Medical Assessor made in the MAC that the respondent is unable to do activities because of his useless right shoulder. The appellant submitted the respondent’s impairment with respect to his activities of daily living is due to the injury to right shoulder rather than the injury to his cervical spine. The appellant submitted to the effect that the Medical Assessor was wrong to add a percentage WPI for the impact the respondent’s injury to his cervical spine had on his activities of daily living. The appellant further submitted that the Medical Assessor’s reasons were inadequate with respect to the 2% WPI he added when assessing the degree of the respondent’s permanent impairment relating to his cervical spine for the impact of this injury on the respondent’s activities of daily living. The appellant submitted that there is no evidence to indicate that the respondent’s inability to undertake activities of daily living is due to the injury to his cervical spine.
The appellant submitted that the Medical Assessor did not have regard to reports that it had received from Gary Cox Investigations dated 14 April 2023, 10 May 2023, 12 June 2024 and 25 November 2024 relating to surveillance that organisation undertook of the respondent. The appellant submitted that this evidence conflicted with the respondent’s “self-report” that he has a useless right shoulder.
The appellant highlighted the Medical Assessor’s findings relating to the respondent’s range of movement of his right shoulder along the planes of abduction, internal rotation and external rotation was much more limited than that which Dr Powell and Associate Professor Courtenay found from their respective examinations. The appellant contended that there had been a marked deterioration in the respondent’s range of movement since Dr Powell and Associate Professor Courtenay had examined him and the appellant submitted to the effect that the respondent’s inability with his activities of daily living would be due to that deterioration of his shoulders rather than the injury to his cervical spine.
In reply, the respondent submitted that there is no evidence that he had experienced any symptoms in his right shoulder or cervical spine before he suffered injury on 20 August 2019. The respondent noted that the cause of his impairment of his right shoulder is the fracture of his greater tuberosity and that this fracture is responsible for the entirety of his impairment.
The respondent submitted that the appellant did not refer to any medical or other evidence regarding the existence of a pre-existing pathology in his cervical spine other than the MRI of the cervical spine done on 3 May 2023. The respondent submitted that the Medical Assessor had to be satisfied that the pre-existing condition was present before his injury. The respondent submitted that the MRI of 3 May 2023 did not substantiate he had a pre-existing condition.
The respondent submitted that in accordance with the Medical Assessor’s clinical discretion it was open to the Medical Assessor not to make a deduction.
The respondent submitted that the Medical Assessor was also entitled to use his clinical discretion, in the circumstance involving multiple bodies systems, to determine that the injury to his cervical spine affected his activities of daily living.
The respondent submitted that the series of still photographs contained in the reports of Gary Cox’s Investigation carried little or no probative weight relating to his functionality. The respondent submitted that the reports do not say anything about the impact his injury has had on his ability to engage in regular domestic tasks.

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.

Section 323 deduction

The Appeal Panel agrees with the appellant’s submission that the Medical Assessor did not provide sufficient reasons for why any proportion of the permanent impairment the respondent has from his right shoulder injury is not due to a pre-existing condition that the respondent had in right shoulder.
The MRI scan done on 5 September 2019 of the respondent’s right shoulder revealed moderate osteoarthritis in the respondent’s AC joint. That would have been present in the respondent’s right shoulder at the time of his injury on 20 August 2019. That degeneration in the respondent’s right shoulder could not have occurred in the two weeks between his injury and the date the MRI scan was done and so necessarily it was a pre-existing condition.
That said however, it is the Appeal Panel’s view that that pre-existing degeneration does not make up a proportion of the respondent’s permanent impairment relating to his right shoulder. The other findings that the MRI revealed, that is the fracture of the respondent’s greater tuberosity, the type 2 SLAP tear and the supraspinatus tendinosis with bursal sided fraying were caused by the respondent’s injury. That pathology resulted in the respondent developing capsulitis, stiffness and synovitis. That pathology necessitated the respondent to have surgery.
The respondent’s impairment with respect to his right shoulder has been correctly assessed by reference to the restricted range of movement he has in his right shoulder. That restricted range of movement the respondent has in his right shoulder is due entirely to the injury the respondent suffered to his right shoulder, and to repeat that injury is a fracture greater tuberosity, the type 2 SLAP tear, from which the respondent developed complications in the form a capsulitis, stiffness and synovitis that necessitated his having surgery. None of the restriction of movement he has in his right shoulder is explicable by the pre-existing osteoarthritis which was likely to have been existing for some years prior to the respondent suffering injury and which had caused no complication or had resulted in the respondent suffering symptoms. Absent the injury to the respondent’s right shoulder, and the subsequent surgery to treat complications arising from it, he in all likelihood would have no current impediment with respect to the movement of his right shoulder, by reference to which his permanent impairment has been correctly assessed. It cannot be known whether the pre-existing pathology the respondent had in his shoulder would have ever impeded his movement in his shoulder, or even if it would have, at what point in time that would have occurred.
Consequently, although the Medical Assessor erred by not providing adequate reasons for explaining why the respondent’s pre-existing condition in his right shoulder forms no part of the respondent's permanent impairment relating to his right shoulder, when the Appeal Panel corrects that error by providing an explanation, the result remains the same. That is the respondent’s permanent impairment relating to his right shoulder is correctly assessed at 13% WPI.
The Appeal Panel also agrees with the appellant’s submission that the Medical Assessor made an error by not providing adequate reasons for not making deduction why a pre-existing condition in the respondent’s cervical spine did not form a proportion of the permanent impairment the respondent had relating to his cervical spine. The Appeal Panel also considers that the Medical Assessor erred by not making a deduction under s 323(1) of the 1998 Act for the extent to which a pre-existing condition that the respondent had in his cervical spine contributes to his permanent impairment.

The Appeal Panel does not accept the respondent’s submission that the investigation that was done of his cervical spine on 3 May 2023 does not reveal he had a pre-existing condition at the time of his injury. Whilst the investigation was done some three and a half years after the respondent suffered his injury, the degeneration that the investigation revealed at C2/3 is such, in the Appeal Panel’s view, that a large part of it would have to have been in existence at the time the respondent suffered injury. Indeed, noting the symptoms the respondent suffered, his injury was correctly diagnosed as an aggravation of the degeneration that was extant in his cervical spine.
The respondent’s impairment relating to his cervical spine has been assessed on the basis of the Medical Assessor’s finding that the respondent had significant muscle spasm during his examination of the respondent and that the respondent suffers pain in his neck. The spasm and the pain the respondent experiences are due to the continuing aggravation he has of the degeneration he has in his cervical spine. In other words, the pre-existing condition he had at the time of his injury currently contributes to his permanent impairment he has relating to his cervical spine and therefore forms a proportion of it.
The medical evidence that is available, which consists of MRI done of the respondent cervical spine, the Medical Assessor’s findings from his examination of the respondent’s cervical spine and the respondent’s report of symptoms, does not enable a precise assessment to be made of the extent to which the pre-existing degeneration in the respondent’s cervical spine contributes to his current permanent impairment. No evidence would be available that could be gathered to determine that precisely. Consequently, in accordance with s 323(2) of the 1998 Act the Appeal Panel assumes that the deductible proportion for purpose of s 323(1) is 10%. Making that assumption is not at odds with the evidence, that evidence being that the respondent did not experience symptoms in his cervical spine before he suffered injury, notwithstanding he had degeneration in his cervical spine at the time of his injury and notwithstanding that he could have for years in arduous work.

Activities of daily living

The Appeal Panel agrees with the appellant’s submission that the Medical Assessor did not provide adequate reasons with respect to his assessment of the degree of the respondent’s permanent impairment relating to his cervical spine for adding 2% WPI for the effect that that injury had on his activities of daily living. The Appeal Panel also agrees that the Medical Assessor made an error by adding 2% WPI.
The Medical Assessor stated in the MAC that the respondent could not do much around his house because of his useless right shoulder. The Medical Assessor noted that the respondent was unable to participate in his past recreational activities. It is implicit, noting the context in which the Medical Assessor made mention of that, that the Medical Assessor considered that the respondent’s inability to participate in his past recreational activities is also due to the respondent having “a useless right shoulder”. The Medical Assessor did not explain how it is that the respondent’s injury to his cervical spine affects his activities of daily living.
Noting the severe limitation the Medical Assessor found the respondent has with respect to his right shoulder, the Appeal Panel considers that it is this injury that impedes entirely the respondent’s capacity with respect to his activities of daily living. It is a significant injury that has significant impacts that inhibits his ability to undertake any meaningful task. His cervical spine injury does not in the Appeal Panel’s view impede his capacity in this regard in any significant way.
The Appeal Panel notes for completeness that the Medical Assessor in the MAC stated that he did have regard to all the documentation that had been forwarded to him, which included the reports that Gary Cox Investigations provided the appellant. In the Appeal Panel’s view, and consistent with the respondent’s submission, the still photographs in those reports do not substantiate the Medical Assessor made any error by concluding the respondent is unable to engage in his past recreational activities and that he is unable to do much around his house. The photos do not indicate that the Medical Assessor’s findings with respect to the respondent’s range of movement of his shoulders are incorrect. A couple of the photos reveal the respondent carrying a box and a bag of groceries. The weight of those packages is not known, but they appear to be light.
In any event, the Appeal Panel has accepted the appellant’s submission that no percentage WPI ought to have been added by the Medical Assessor when assessing the degree of the respondent’s permanent impairment relating to his cervical spine. Hence, even if it were the case that the Medical Assessor was wrong to conclude that the respondent is unable to do much around his household or is unable to participate in his past recreational activities, once the Appeal Panel has corrected the Medical Assessor’s error with respect to his assessment of the respondent’s impairment relating to his cervical spine, the consequence is neutral.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 July 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:	W2593/25
Applicant:	Scott Andrew Roberts
Respondent:	Upper Lachlan Shire Council

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 Peter Honeyman and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Right upper extremity	20/08/2019	Chapter 2	16-40 p476 16-43 p477 16-46 p479	13%	-	13%
Cervical spine	20/08/2019	Paragraph 1.26 Chapter 4,	Table 15-5	5%	1/10	5% (rounded)
Total % WPI (the Combined Table values of all sub-totals)					17%

[2025] NSWPICMP 848

3 November 2025