The application of s 323 was considered in Cole v Wenaline [2010] NSWSC 70 and Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365. In those cases, Schmidt J established a three-step test for the appropriate consideration of s 323 of the 1998 Act. The first step is to determine the extent of impairment following the work injury. The second is to determine whether a proportion of that impairment is due to a previous injury, or pre-existing condition or abnormality. The final step is to determine the extent or proportion of that contribution.
Whilst the Medical Assessor's reasons are brief, he has applied s 323 in accordance with the above authority. He identifies assesses the current degree of permanent impairment in each shoulder (21% and 9%). He determines that there is a pre-existing condition (based on the history taken on page 2, osteoarthritis), and then applies s 323(2) of the 1998 Act to determine that the extent of the deduction is difficult or costly to determine and a deduction of 1/10 is appropriate.
The Appeal Panel's view is when read as a whole, the path adopted by the Medical Assessor was the correct one. There is no evidence to support a deduction of 2/3rds as suggested by the appellant. To do so would be inconsistent with s 323 of the 1998 Act and the appropriate consideration of the material available to the Medical Assessor.
If anything, based on Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 (), it may have been appropriate for the Medical Assessor to have made no deduction. That is not a submission put to the Appeal Panel and the Panel does not consider it appropriate to tread down that path.

"Overall, the approach of the MAP was to treat a pre-existing condition as a condition that existed outside the course of employment whereas in this case it had to be a condition that existed prior to Mr Cullen's employment. As noted, Mr Blount repeatedly asserted that there was evidence to support such a finding. However that contention travels nowhere as the MAP did not make such a finding. Instead the MAP concluded that once it was established that Mr Cullen had osteoarthritis that had a 'constitutional pathology' then it automatically followed that it was a pre-existing condition. In this case that approach was erroneous in law and constitutes an error of law on the face of the record (and that is the case irrespective of whether the condition had to pre-date the commencement of his employment or some later time)."

The Appeal Panel are not satisfied that the MAC contains a demonstrable error. The appellant's submissions are unconvincing and inconsistent with the law.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 June 2024 should be confirmed.

Injury Management and Workers Compensation Act 1998

Injury Commission Rules 2021

Compensation Act 1987

Injury Commission Act 2020

Inghams Enterprises Pty Ltd v Kitchen [2025] NSWPICMP 187 (20 March 2025)

In particular are rules 128(1) and (2) - an Appeal Panel determines the proceedings in accordance with the procedures determined by the Panel, and the Appeal Panel may determine the proceedings solely on the basis of the written application.
The procedures on appeal are similar, allowing for differences in terminology, to those adopted in the former Workers Compensation Commission. Relevant differences under that scheme include that appeals were subject to the Workers Compensation Guidelines (rather than any rules that were in force at that time).
The issue of the appropriate procedure to be adopted, including an oral hearing, were considered in Galluzzo v Little [2013] NSWCA 116 (Little). The appellant's solicitors would no doubt be familiar with that case. In Little, submissions were made that were described by the Appeal Panel as "not of an acceptable standard" that contained "nothing but vague unspecified assertions without reference to the evidence". The Appeal Panel denied a request for an oral hearing and also did not call for further submissions. Barrett JA described the task of the Appeal Panel in that case in the following circumstances:

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 ground of appeal in this case is limited, concerning the nature of the injury assessed and s 323 of the 1998 Act and accordingly the Appeal Panel's consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):

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 appellant's submissions are broad and non-specific. There are two areas these submissions address that will be considered in turn by the Appeal Panel.

Inghams Enterprises Pty Ltd v Kitchen [2025] NSWPICMP 187

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Inghams Enterprises Pty Ltd v Kitchen [2025] NSWPICMP 187 (20 March 2025)