1. On 13 June 2025 the worker Mr Joshua Graydon (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Groman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 19 May 2025.
2. The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • the MAC contains a demonstrable error.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

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. The appellant did not request that he be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
3. As a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because although the Appeal Panel found error, there was sufficient material before the Appeal panel to enable it to make a determination.

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. They are not repeated in full, but have been considered 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 [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.
3. The matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:

"The following matters have been referred for assessment (s 319 of the 1998 Act):

Body part/s referred: Lumbar Spine, Scarring (TEMSKI)

page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)

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

Table 4.37 on page 29; Para 4.35 on page 28; Table 4.2 on page 29

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

1. The worker appealed.
2. The complaint on appeal does not concern the assessments of overall impairment for the lumbar spine or scarring but rather the extent of the s 323 deduction at one half for the lumbar spine.
3. In summary, the appellant submitted on appeal that the Medical Assessor made demonstrable errors in assessing the extent of the deduction under s 323 at one half for the lumbar spine.
4. In summary, the respondent employer Joshua Raymond Falk submitted that the Medical Assessor did not make demonstrable errors and that the MAC should be confirmed.
5. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a physical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
6. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applies.
7. The Medical Assessor recorded the following history:

"• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

• He first had a lumbar problem on around 14 August 2018 and later 12 October 2018. This was put down to an L5/S1 injury. He had no specific incident but the pain built up with his heavy lifting at work. He had severe lower back pain with severe pain into his right leg.
• He told me that he was seen by a chiropractor. An MRI scan was arranged.
• The MRI scan was on 23/08/2018. It showed a significant degenerative L5/S1 segment with a significant right-sided disc prolapse causing compression at the L5/S1 level of the S1 nerve root. The L5 nerve root appears to be maintained. The disc above also seems to be abnormal and there is a loss of disc height and a degree of dehydration of the L4/5 disc.
• He saw Dr Peter Maloney, who performed a laminectomy after an unsuccessful injection. He was away from work for a three-month period and told me that his right leg pain disappeared on the day of the surgery. He went back to work without any restrictions, this in January 2019. He had no significant issues for about two years and on one day he remembers moving some timber and felt some discomfort in his back. There has not been a recurrence of right-sided leg pain.
• There was a further aggravation on 31 January 2022. He was twisting from the right to the left loading a slab of hardwood. I note that there was a MRI this taken on 28/02/2022. This demonstrated the previous L5/S1 hemilaminectomy and microdiscectomy. There was a tear of the L5/S1 annulus, and there was a disc protrusion, but there was no evidence of ongoing nerve root compression. Degenerative changes were also noted at the L4/5 level.
• He continued to have symptoms and had another flare up in November 2022. This led to a further investigation. This suggested a degenerate L5/S1 segment.
• Dr Peter Moloney then performed a L5/S1 fusion, and the L4/5 level was also included in the instrumentation.
• Present treatment:
• He takes Palexia 50mg IR if needed.
• Present symptoms:
• He still has "niggling" pain in the lower right lumbar spine. He says that he has learnt to adapt.
• Some days are good her says.
• Some days are good and others are "bad". If he needs to extra at work he struggles.
• If he has a bad day the Palexia helps him get to sleep.
• Details of any previous or subsequent accidents, injuries or condition:
• There have been no relevant previous or subsequent injuries apart from the previous injury outlined above.
• General health:
• He has been well.
• Work history including previous work history if relevant:
• He works for himself as a carpenter working with a plasterer. He does only lighter jobs.
• Social activities/ADL:
• He lives with his father - he has a girlfriend. He does not have children.
• He is a non-smoker and only has occasional alcohol."

1. The Medical Assessor made the following observations in relation to special investigations:

"MRI lumbar spine - 23/08/2018: it shows a significant degenerative L5/S1 segment with a significant right-sided disc prolapse causing compression at the L5/S1 level of the S1 nerve root. The L5 nerve root appears to be maintained. The disc above also seems to be abnormal and there is a loss of disc height and a degree of dehydration of the L4/5 disc.

MRI Lumbar spine - 28/02/2022: this demonstrated the previous L5/S1 hemilaminotomy and microdiscectomy. There was a tear of the L5/S1 annulus, and there was a disc protrusion, but there was no evidence of ongoing nerve root compression. Degenerative changes were also noted at the L4/5 level."

1. The Medical Assessor recorded his examination findings, about which there was no complaint on appeal.
2. The Medical Assessor summarised the injury and diagnosis as follows:

Mr Graydon has lumbar disc injury with an eventual 2 level fusion. He does not have residual radiculopathy.

1. The overall impairment rating of 22% whole person impairment (WPI) by the Medical Assessor is not the subject of complaint on appeal.
2. The Medical Assessor went on to deduct one-half from the 22% WPI assessed for the lumbar spine. It is this aspect that is the subject of complaint on appeal.
3. The Medical Assessor set out his reasoning for the deduction of one-half as follows:

"Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?

1. He also stated when making his calculation of overall impairment:

"Mr Graydon has had a lumbar fusion - based on the NSW Workers Compensation Guidelines this is DRE IV. Using AMA Guides this is 20% WPI.

Added to this is 1% for its effect on ADL's based on page 4.35 on page 28 of the NSW Guides. He is able to work albeit not to full capacity.

1% is added for the second level (L5/S1 and L4/5) operation.

I have not added anything for the first operation on the spine as this occurred before the 31 January 2022 and is completely covered by the deduction for pre-existing impairment.

From this, as discussed below, 5/10 is deducted giving a WPI of 11%."

1. He gave reasons for the deduction. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:

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:

(ii) He had lumbar spinal pain after the 2018 injury but was able to return to work. However, the injury in 2018 led to decompression surgery at that level. That injury was to the L5/S1 disc leading to a disc protrusion.

(iii) There were recurrences of pain at the L5/S1 and L4/5 levels in 2021 and also in the subject injury on 31 January 2022.

Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is 5/10 for the following reasons:

(iv) As discussed above, while he had improved after the 2018 L5/S1 disc injury, it caused significant disc weakening and predisposed him to recurrences in 2021 and the subject aggravation on 31 January 2022.

(v) The deduction for the injury to the disc prior to 31 January 2022 must be significant. I believe that a 5/10 deduction is appropriate."

1. The Medical Assessor made brief comments on the other medical opinions as follows:

"I noted the report from Dr Peter Moloney dated 9 December 2022. He looks in detail at the history and the reports of Dr Casikar (Neurosurgeon). He clearly outlines the 2018 injury and the subsequent aggravation in 2022.

I noted the report from Dr Yiu-Key Ho (Orthopedic Surgeon). He outlined a similar history but focussed on 2018 as the relevant injury in his report dated 28 March 2024. He then stated that the 25% WPI was solely due to 14 August 20218 injury and that the 2022 exacerbation was not significant.

He then changed his mind completely in a Supplementary Report dated 17 October 2024 where he stated that the WPI was only due to the 31 January 2022 injury - he stated this because this led to the fusion operation.

For this matter the 2022 aggravation is the relevant injury for this assessment. Dr Ho's changing his opinion completely means that his reports offer little guidance in determining the deduction.

I note the report from Associate Professor Paul Miniter (Orthopedic Surgeon) dated 14 August 2024 and 18 June 2024. He maintained his belief that the need for surgery was not work related and therefore stated that 100% of the lumbar impairment be deducted. I disagree with this. I understand the insurer also consented to the performance of the surgery by Dr Moloney. The causation of a lumbar spinal injury is also felt to be work related by the Personal Injury Commission (as per this referral to me). I also note Mr Graydon's improvement after the fusion surgery confirming that it was an appropriate procedure."

1. The appellant complains about the extent of the s 323 deduction at one-half.
2. A deduction under s 323 can only be made if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. In this case there is no cavilling on appeal with a s 323 deduction having been made but rather the extent of same.
3. A deduction cannot be at odds with the available evidence.
4. In making a deduction of one-half to take account of the prior injury, the Medical Assessor has made a demonstrable error. This is because the extent of the deduction is at odds with the available evidence. As a result of the prior injury in 2018 the appellant underwent a microdiscectomy (decompression surgery) because of radiculopathy. There was no residual radiculopathy following the first surgery and the appellant recovered and was able to return to work, which was heavy, without restriction. After the subject injury, he came to a two-level fusion and has not been able to return to work. Whilst there has been a contribution by the pre-existing injury to the level of permanent impairment assessed as a result of the subject injury which needs to be taken into account, it is too difficult to assess, and accordingly a deduction of one-tenth should have been made which is not at odds with the available evidence.
5. For these reasons, the Appeal Panel has determined that the MAC issued on 19 May 2025 should be revoked. A new Medical Assessment 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 Pane revokes the Medical Assessment Certificate of Medical Assessor David Groman and issues this new Medical Assessment Certificate as to the matters set out in the table below:

page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)

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

Table 4.37 on page 29; Para 4.35 on page 28; Table 4.2 on page 29

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

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.