1. On 9 July 2025 the appellant, Daniel Davies, lodged an Application to Appeal Against a Decision of Medical Assessor lodge. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 June 2025.
2. 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.
3. 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.
4. 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.
5. 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). "WPI" is reference to whole person impairment. "Baseline WPI" is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.

1. On 20 May 2025 this matter was referred for a WPI assessment of injuries caused to the right upper extremity (shoulder), left upper extremity - consequential condition and scarring TEMSKI that occurred on 28 May 2019.
2. Mr Davies was employed as a storeman but on the date of injury was directed to use a star picket driver to drive in star pickets when he developed symptoms in his right shoulder.
3. He came to surgery on 1 November 2019, being an arthroscopic subacromial decompression and bursectomy with resection of the acromioclavicular joint.
4. Mr Davies came to a second surgical procedure on the right shoulder on 19 March 2021.
5. Between the two surgeries he started developing pain in his left shoulder and on

1 September 2021 came to a left shoulder subacromial decompression. 6. The Medical Assessor found that there had been a 10% WPI caused to the right upper extremity (shoulder), from which one-tenth was deducted, pursuant to s 323. 7. In relation to the left upper extremity consequential condition, the Medical Assessor found

4% WPI, from which he again deducted one-tenth. 8. For the scarring, he found 1%, without deduction. 9. The combined table value was 14%.

1. 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.
2. 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 although error was found in the reasons, it could be corrected without the need for further re-examination, as the issue concerned the application of s 323 of the 1998 Act.

1. 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.

1. 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.

1. Both parties made written submissions which have been considered below by the Appeal Panel.

1. 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.
2. In Campbelltown City Council v Vegan[1] 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.

1. The Medical Assessor noted the following investigation at [6] of the MAC:[2]

"6. DETAILS AND DATES OF SPECIAL INVESTIGATIONS

I was able to review the following modalities of imaging on the Hunter Imaging PACS site:

rotator cuff tendinopathy, posterior degenerative tear with labral cyst.

I was able to review the following imaging on the Alto PACS site:

1. At [8e and f] the Medical Assessor confirmed that a s 323 deduction was warranted in relation to the two shoulder injuries.
2. He explained his rationale for the deduction at [11]:[3]

"11. 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) Right shoulder acromioclavicular joint osteoarthritis.

(ii) Left shoulder rotator cuff tendinosis.

(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) Injury to the right shoulder and subsequent requirement for resection of the distal clavicle is on the basis of aggravation of a pre-existing constitutional degenerative condition in the acromioclavicular joint

(ii) The development of symptoms from 'over use' of the left shoulder can only occur in the context of pre-existing constitutional rotator cuff tendinopathy.

(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."

1. The only issue raised by Mr Davies was as to the appropriateness of the s 323 deduction with respect to firstly the right shoulder acromioclavicular joint osteoarthritis, and secondly the left shoulder rotator cuff tendinosis.
2. He submitted that the Medical Assessor did not refer to any evidence to substantiate any contribution to the baseline impairment of either deduction.
3. He submitted that the evidence did not suggest any prior history of shoulder symptoms.
4. Mr Davies submitted that the Medical Assessor had adopted the wrong test in basing his assessment on the mere existence of a pre-existing condition without regard to whether it contributed to the baseline impairment. We were referred to "Cole and similar cases."
5. Mr Davies submitted that if there was evidence of impairment arising from the pre-existing condition, it had not been referred to by the Medical Assessor, and he had accordingly failed to disclose his path of reasoning.
6. We were referred as an example to McNaughton v Engineering & Business Services (NSW) Pty Limited.[4]
7. The failure to provide adequate reasons it was submitted also infringed Chapter 1.48 of the Guides.

1. The respondent submitted that Mr Davies had failed to establish that the Medical Assessor had applied incorrect criteria, and it referred to Chapter 1.6(b) and Chapter 1.28 of the Guides. It also referred to State of New South Wales (NSW Department of Education) v Kaur[5] regarding the requirement to explain the actual path of reasoning given by a Medical Assessor.
2. The respondent submitted that the Medical Assessor had indeed provided sufficient reasons.
3. It submitted that the Medical Assessor identified:
   • right shoulder acromioclavicular joint osteoarthritis;
   • left shoulder rotator cuff tendinosis;
   • the MRI report of 3 September 2019;
   • the ultrasound of the left shoulder dated 3 September 2019, and
   • the ultrasound of the left shoulder of 11 June 2021.
4. The respondent submitted that the Medical Assessor had applied his clinical judgment to define the injury, being an aggravation of a pre-existing constitutional degenerative condition in the acromioclavicular joint and that the development of overuse symptoms in the left shoulder. This would not have occurred without the existence of a pre-existing constitutional rotator cuff tendinopathy, [which is an unusual proposition that was not picked up].
5. The respondent submitted that there is no evidence to suggest that the one-tenth would be at odds with the available evidence and that, in relying on his expertise and clinical judgment, the Medical Assessor had applied the requirements of Chapters 1.28 and 1.6 of the Guides.
6. We were referred to Cole v Wenaline Pty Ltd[6] and the three steps which are now accepted as the criteria necessary in the application of s 323.
7. It was submitted that the Medical Assessor had appropriately complied with those criteria.
8. The respondent referred to Ryder v Sundance Bakehouse.[7] The Medical Assessor had therefore explained how the pre-existing conditions would have made a difference to the assessment of permanent impairment, it was submitted. The Medical Assessor's reasons complied with the dicta from Ryder in that they supported a conclusion that, but for the

pre-existing condition, the baseline impairment would not have been as great. 9. We were also referred in this regard to Elcheikh v Diamond Formwork (NSW) Pty Limited (in liquidation).[8] 10. We were also referred to settled authority as to the meaning of the demonstrable error and it was submitted that the Medical Assessor had not erred.

1. Section 323 of the 1998 Act provides relevantly:

(a) 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, and

(b) 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.

1. It is well accepted that there are three steps to be considered in the application of this section. In Cole v Wenaline Pty Ltd[9] Schmidt J held that firstly the level of impairment caused by the subject injury should be assessed - what is described herein as the "baseline impairment." Her Honour said:

"What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the [subject] injury was. Secondly, whether a proportion of that impairment was due to the [pre-existing condition][10]. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical

judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section."

1. In the present case, the baseline assessments have not been challenged.
2. The second step, therefore, was to enquire whether a proportion of that impairment was due to Mr Davies' pre-existing condition.
3. Essentially the argument advanced by Mr Davies is that the Medical Assessor did not give adequate reasons for making the s 323 deduction for either shoulder.
4. He submitted that in fact the Medical Assessor had adopted the wrong test in that the deduction had been made on the basis of hypothesis and assumption - that because there was a pre-existing condition, it must have contributed to the impairment assessed.
5. Mr Davies' reference to McNaughton was of limited utility. McNaughton was a hearing loss appeal and the Medical Panel in that case confirmed that each case depends on its own facts.
6. In Vegan, Basten JA (Handley and McColl JJA agreeing) said at [122]:

"122 On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: (authority omitted). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required."

1. The medical science in the right shoulder case is uncontroversial. The issue is whether there is any need for a more extensive or detailed explanation, as the medical specialists on the Panel recognise the criteria on which this deduction was made.
2. The explanation given by the Medical Assessor was:

"Injury to the right shoulder and subsequent requirement for resection of the distal clavicle is on the basis of aggravation of a pre-existing constitutional degenerative condition in the acromion load acromioclavicular joint."

1. We have above reproduced the radiological investigations that were before the Medical Assessor, which demonstrated in an MRI scan of 4 September 2019 "acromioclavicular osteoarthritis, rotator cuff tendinopathy." Mr Davies came to surgery with Dr David Gill on

"As expected, we did find the cuff to be intact besides a little bit of degeneration. The AC joint was very degenerative and inflamed as well and I resected this arthroscopically and performed a subacromial decompression. I removed a large bursa as well...."

1. We note that when he commenced employment with the respondent in April 2018, Mr Davies said in his statement of 14 March 2024 that he was asymptomatic in both shoulders.[12]
2. In ElCheikh Schmidt J said at 91:

"The [Appeal Panel] noted, correctly, that the fact that the pre-existing condition had been asymptomatic did not preclude it from contributing to the impairment being assessed. Nor, however, could it be assumed that an asymptomatic condition did contribute to the impairment. Whether or not there had been any contribution had to be determined on the evidence, which included the competing specialist opinions on the matter, as well as various other evidence."

1. At [25] of his statement, Mr Davies said he had never before done the work that he had been required to do on the date of his injury. However, the medical specialists on the Panel agree that what was demonstrated in the MRI of 4 September 2019 was chronic acromioclavicular osteoarthritis and rotator cuff tendinopathy of such a degree that it needed resection, and the operation report confirmed that the chronicity of the acromioclavicular osteoarthritis was such that the Panel is satisfied that it must have pre-existed the date of injury, as the MRI scan was only taken some four months later.
2. But for the pre-existing osteoarthritis of the acromioclavicular joint, the distal clavicle would not have required resection. Table 16.27 of AMA 5 provides for a further 5% upper extremity impairment. Thus, the severity of the acromioclavicular osteoarthritis would as a matter of medical probability, have contributed to the baseline impairment. It is consistent that such a quiescent condition would be made symptomatic by the unusual physical work Mr Davies was required to do in May 2019, and the deduction is accordingly reasonable.
3. This ground is rejected, therefore, the Medical Assessor also made a one-tenth deduction for the consequential condition to the left shoulder, on the basis that there was pre-existing constitutional rotator cuff tendinopathy. He did not explain that decision any further, and unlike the pathology in the right shoulder, there were no images taken until the ultrasound of the left shoulder was performed in June 2021, some two years later. In this case it would seem that the Medical Assessor was relying on an assumption which was based on that imaging. We are not persuaded that this condition was contributing to the baseline assessment of the left upper extremity, and this ground is made out.
4. We note, however, that the result is the same, as the practical effect of a deduction of one-tenth from 4% is the same as if there had been no deduction.
5. The MAC will accordingly be revoked to reflect this finding.
6. For these reasons, the Appeal Panel has determined that the MAC issued on 30 June 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Robert Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Chapter, page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

P 476 F 16-40

P 477 F 16-43

P 479 F 16-46

Total % WPI (the Combined Table values of all sub-totals)

[1] [2006] NSWCA 284 (Vegan).

[4] [2021] NSWPICMP 159.

[5] [2016] NSWSC 346.

[6] [2010] NSWSC 78.

[7] [2015] NSWSC 526.

[9] [2010] NSWSC 78 at [38].

[10] In Cole there were two injuries under consideration. The words in parentheses replace "second" injury and the previous "first injury."