State of New South Wales (Department of Primary Industries)

WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by claimant regarding assessments for the cervical spine, both shoulders and digestive system for a 2005 injury, and impairment to the neck from a 2000 injury; whether adequate reasons had been given for the 2000 injury assessment in view of subsequent awards made over the years; whether Medical Assessor (MA) had erred in finding 0% for the shoulders; whether the MA had erred in applying the provisions of section 323 regarding the assessment of the cervical spine; whether the MA had erred in applying the provisions of section 323 regarding the digestive system; whether further submissions should be accepted; Held - being within the 5465 pages of material, prior MACs and awards relating to both injuries, the MA failed to explain his assessment of the Table of Disabilities injury to the neck in 2000 or the WPI cervical spine injury in 2005; Cole v Wenaline, Wingfoot v Kocak, Campbelltown City Council v Vegan, Rail Services Australia v Dimovski, and AV v AW considered; MA erred in finding there had been no injury to the shoulders, as they had been referred as consequential conditions; digestive system assessment reasons inadequate; appellant's further submissions said to be in reply to the respondent's submissions rejected as a matter of policy; submissions misconceived in any event; claimant re-examined; Held - MAC revoked.

1. On 3 February 2025 Alain Luc Legrand, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on

16 January 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 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). "WPI" is reference to whole person impairment. "Baseline WPI" is a reference to the total WPI assessed before deduction or modification pursuant to the relevant legislative authority.

1. On 21 November 2024 this matter was referred to the Medical Assessor for two assessments. The first was made under the Table of Disabilities for an assessment of the neck caused by injury on 7 January 2000.
2. The second was for an assessment of WPI caused on 7 February 2005 to:
   • the cervical spine;
   • the right upper extremity (consequential condition);
   • the left upper extremity (consequential condition), and
   • digestive system.
3. The referral followed a determination by Member Michael Wright on 7 December 2023. The face of the referral said:[1]

"● The applicant suffered a liver/digestive system condition as a result of injury to his neck and cervical spine on 5 January 2000 and 7 February 2005.

• The applicant suffered bilateral shoulder conditions as a result of injury to his neck and cervical spine on 5 January 2000 and 7 February 2005."

1. The face of the referral also indicated that there had been prior awards or settlements of:
   • 25% in respect of the neck; pursuant to a s 66A agreement;
   • 15% WPI in matter number "7300/03" [sic]. The Matter number was in fact 7300/06,[2] and
   • 23% WPI in matter number 10812/10.
2. Mr Legrand was employed as a Fisheries Inspector at the time of both injuries.
3. In relation to the injury of 7 January 2000, Mr Legrand was slinging a jerry can weighing over 20 kg into a boat when he experienced pain in his neck radiating down his left arm.
4. Mr Legrand came to a C6/7 fusion on 8 January 2001 with the internal fixation plate being removed in June 2002.
5. His condition was further aggravated in 2002 when he turned his head rather quickly whilst driving his car and hurt his neck again.
6. It was identified that there had been a deterioration at the C5/6 articulation immediately above the cervical fusion, although this did seem to settle down later.
7. This injury was the subject of a settlement agreement dated 4 April 2003.
8. The second injury of 7 February 2005 occurred whilst Mr Legrand was leaving a courtroom. He wrenched his neck whilst wrestling with the door, the spring of which was described as being very powerful. This resulted in pain in the neck and radiation down the right arm.
9. He came to further surgery after discogenic pathology at the C5/6 articulation was identified. A disc replacement was conducted at that articulation later that year, 2005, which resulted in some improvement.
10. On 12 October 2006, following the issue of a MAC, this matter was settled. A further settlement occurred on 12 July 2011 after further MACs were issued.
11. Around this time Mr Legrand's drinking became excessive as he found that excess alcohol was reasonably successful in trying to control the pain.
12. However Mr Legrand developed a severe liver condition which resulted in cirrhosis and a hepatoma was identified. A liver transplant followed which was fairly successful, although at operation two further hepatomas were identified. The liver transplant has meant that he was on an extensive anti-rejection medication.
13. The Medical Assessor found there to be 25% impairment under the Table of Disabilities to the neck in relation to the injury of 7 January 2000.
14. He found there was 32% WPI caused by the injury to the cervical spine on 7 February 2005, from which he deducted 26/32nds pursuant to s 323 of the 1998 Act.
15. He also found there was 24% WPI caused by the injury to the digestive system in the same injury.
16. He found no WPI with regard to either of the upper extremities.

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 a further medical examination should occur because the Medical Assessor fell into error, as described below.

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. Medical Assessor Robert Kuru of the Appeal Panel conducted an examination of the worker on 27 October 2025 and reported to the Appeal Panel.

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 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.

1. In his findings on examination of the upper extremities at [5] of the MAC, the Medical Assessor found:

"Upper Limbs. No significant features were demonstrated with the elbows, wrists, hands or any of the digits. He had the following shoulder movements:

Sensation to pinprick was reduced in both upper limbs. This was rather patchy but did seem to suggest a prevalence associated with the right C6 nerve root. Reflex activity on the left seemed reasonably normal. On the right side, it was just not possible to demonstrate any reflex activity of the C5 (anterior elbow) reflex. Both other reflexes, C6 and C7 were present and equivalent to the left side."

1. At 10c of the MAC the Medical Assessor explained his method of calculation:

"First Event 07/01/00. In the event of [January] 2000, Mr Le Grand sustained an

injury to the C6/7 disc which resulted in a fusion at that articulation, which gave him a fairly good result. Following this, an impairment of 25% is considered appropriate.

In the clinical literature, the level of impairment is described from 20% through to 35%, although most specialists have assessed this impairment at 25%.

Second Event 07/02/05. There has been a disc replacement at the C5/6 articulation

which is addressed similarly to a fusion in AMA 5 page 392, Table 15-05. This places Mr Le Grand in Cervical Category IV. This provides a whole person impairment ranging between 25% and 28%, depending on the activities of daily living. For this, he would attract a further 2%, giving 27%.

This surgical procedure was the third surgical procedure on his neck (the second was removal of the internal fixation plate). This therefore results in a further 3% WPI. This was the second level on which surgery was conducted, hence there is a further 1% WPI. At this assessment there were definite features of radiculopathy down the right arm, resulting in a further 3%. These figures are combined, giving 7% WPI.

This is combined to the earlier 27%, giving a whole person impairment of 32%.

Right Upper Extremity and Left Upper Extremity. Although there was restriction in elevation of both shoulders, this was completely symmetrical, and no other features have been identified. No injury ever occurred to the shoulders and the effects of the cervical spine injuries do not appear to have specifically affected shoulder function.

It is therefore concluded that any shoulder restriction is constitutional and is not associated with either the event of 2000 or the event of 2005. There also does not appear to be any significant investigation of shoulder dysfunction in the (more than) 5,000 pages in the very extensive clinical literature. Neurological dysfunction on the right comes under the cervical spine assessment as radiculopathy. The upper limb impairment therefore is 0% bilaterally.

Digestive System. This is addressed in AMA 5 page 121, Table 6-3. Mr Le Grand has had extensive surgery for the liver transplant, where there has been substantial anatomic alteration. There has been extensive alteration of his diet as well and he remains on immuno-suppressant medication. He is therefore assessed to be in Class II of this table. This provides a whole person impairment ranging between 10% and 24%. He is assessed at being at the upper level of this class with 24% WPI."

1. The Medical Assessor considered the evidence before him at [10d] of the MAC:

"d. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:

Specialist Orthopaedic Surgeon, Dr Alan Hopcroft in his series of reports from 2002 through to 2010 gives an initial assessment of neck impairment of 30% and subsequently 35%. Since only one disc level was affected and he achieved a fairly reasonable result following the C6/7 fusion, I believe that my assessment of 25% is more appropriate. This is also the same as the neck assessment given by Dr Noel Langley in his reports of 19/03/02 and 11/01/06 and by Specialist Neuro-surgeon, Dr John Matheson in his report of 26/07/06.

Those specialists assess (sic) Mr Legrand's cervical spine following the event in DRE IV with whole person impairments from 25% up to 32% which I assessed at this assessment. Nevertheless, most specialists did not demonstrate radiculopathy, which I demonstrated at this assessment and also have not taken into account the third surgical procedure. This is the reason why my assessment included a further 7% for these particular factors.

The only whole person impairment which I can find in the file for the digestive system is from Specialist Gastro-enterologist, Dr Donald Frommer in his reports ranging from January to September 2023. In this, he assesses a whole person impairment of 25% yet advises that all of Mr Le Grand's liver condition is due to excessive alcohol consumption not associated with the cervical spine injury. This issue is contested by Specialist Gastro-enterologist, Dr Sidarth Sethi in his report of 14/09/23. This therefore places us in rather a quandary. Nevertheless, it does appear that Mr Le Grand did have excess alcohol before the event of 2005 since his GP at the time prescribed acamprosate, which is used to reduce the cravings of alcohol. Nevertheless, it does appear to be a fact that regardless of this, after the event of 2005 he did consume significant excess alcohol. Therefore, the liver condition is likely to have several aetiological components.

1. In discussing whether any deduction should be made regarding any previous injury or pre-existing condition or abnormality, the Medical Assessor said at [11] of the MAC:

"There is no deduction to the Table of Disabilities assessment of 25% impairment of the neck. Nevertheless, this condition would have significantly predisposed Mr Le Grand to further cervical spinal injury, particularly the event which occurred in February 2005. At this assessment at face value, his whole person impairment of the cervical spine was calculated to be 32%. Nevertheless, this cannot be considered to be entirely due to the event of February 2005. A significant proportion is obviously due to the pre-existing condition of January 2000, which has already been addressed for associated compensatory purposes. At that time, the impairment was calculated with the Table of Disabilities. Nevertheless, and giving Mr Le Grand every possible benefit of the doubt, it is possible to calculate fairly accurately what the cervical spine impairment would have been had it been assessed using the whole person impairment modality. In cases of doubt, a deduction of one-tenth is frequently applied, although in this case this would be completely at odds with the existing information which we have, since it is possible to calculate a fairly accurate whole person event of 2000. Again, giving every possible benefit of doubt to Mr Le Grand, it is assessed that this would have been a whole person impairment of 26%. This would be from 25% from Table 15-05 on Page 392 with a further 1% for the activities of daily living. Strictly speaking therefore, this would be deducted from the most recent whole person impairment, which would give us a fairly accurate assessment of the effects of the event of February 2005. This would therefore calculate out to be 6% WPI for the event of February 2005. Although this may look rather clumsy in Table 2 of the MAC, this would strictly be a deduction of 26/32. Rather strangely, I cannot find any assessment in the very extensive clinical literature which has actually addressed this. Many specialists simply make a one-tenth deduction which, in my view, is very inappropriate because the effects of the injury of 2000 would have resulted in a significant predisposition for further cervical spine injury and the event of February 2005 was physically very minor and it has already been identified that the C5/6 articulation was significantly degenerate. (It is respectfully advised that this technique of impairment calculation has previously been utilised with the Commission).

Digestive System. The factors around the development of the very severe liver condition experienced by Mr Le Grand are not entirely clear, and their accuracy is clouded. It does appear, however that there have been significant pre-existing factors to severe liver dysfunction which predated the injury of February 2005. Therefore, a one-tenth deduction is applied."

1. Mr Legrand advanced five grounds of appeal. Firstly it was submitted that the assessment of neck impairment from the 7 January 2000 injury was erroneous, as "proper reasons" had not been provided.
2. Secondly, Mr Legrand submitted that error was demonstrated in the assessment of the cervical spine and both upper extremities from the 7 February 2005 injury, as the Medical Assessor had failed to follow the referral.
3. The third ground was that the Medical Assessor had failed to properly apply the provisions of s 323 of the 1998 Act in the light of a previous MAC dated 3 June 2011.
4. A fourth ground was an allegation that the Medical Assessor had failed to have regard to the prior awards Mr Legrand had received, particularly with reference to the 7 February 2005 injury.
5. A fifth ground alleged that the s 323 deduction for the digestive system was unsupported by evidence.
6. Mr Legrand then addressed each issue separately.

Ground one: The Medical Assessor failed to provide proper reasons as to the percentage impairment for the neck for the date of injury 7 January 2000 noting the prior s 66 compensation paid to the appellant with respect to that injury from the table of disabilities

1. Mr Legrand submitted that he already had the benefit of a s 66 award in relation to the permanent impairment of his neck and left arm at or above the elbow pursuant to the Table of Disabilities. We were referred to the outcome of the prior proceedings in the Compensation Court on 4 April 2003, in matter 7032 of 2002. Mr Legrand had received an award for a 25% permanent impairment of the neck, 20% permanent loss of the efficient use of the left arm at or above the elbow and an amount for pain and suffering under s 67.
2. The finding by the Medical Assessor of 25% permanent impairment of the neck was the same as that award and differed from the opinion of Mr Legrand's expert Dr John McKee of 11 January 2022, who had assessed 35% permanent impairment of the neck, Mr Legrand said.
3. We were referred to the two different levels in the cervical spine that had been the subject of surgery. It was submitted that the reasons given by the Medical Assessor at paragraph 10c of his assessment of 25% were not sufficiently detailed to explain why there had been no increase from that agreed on 11 March 2003.
4. Mr Legrand submitted that Dr McKee had found that there had been a worsening of his symptoms in the time Dr McKee had been assessing him between 24 August 2010 and

11 January 2022. 5. It was submitted that the findings by the Medical Assessor were not consistent with those of Dr McKee, and that a demonstrable error had occurred by his failure to provide reasons as to that inconsistency. 6. We were referred to the well known dicta of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak.[3] It was submitted that the path of reasoning must be identifiable, but the Medical Assessor had failed to properly consider or comment on the relevant material. A re-examination was sought.

Ground two: The Medical Assessor failed to follow the referral of Member Wright for the left and right upper extremities for date of injury 7 February 2005 as evidenced in paragraph 3(b) of the orders made by Member Wright dated 7 December 2023. The Medical Assessor determined causation on the left and right upper extremities against the findings that the Commission when the Medical Assessor was not seized of jurisdiction to do so

1. It was submitted that there had been a failure by the Medical Assessor to comply with the terms of the referral, as the Medical Assessor had determined causation contrary to its terms, and the orders of Member Wright. We were referred to the relevant passages.
2. Mr Legrand submitted that the Medical Assessor had determined causation, contrary to the terms of the referral that the left and right upper extremity assessments were to be made on the basis that they had resulted from a consequential condition resulting from the subject cervical spine injury. The fact that the upper extremities had been referred as a consequential condition was not appreciated by the Medical Assessor when he found that there was 0% WPI assessable on the basis that any shoulder restrictions were caused by a constitutional condition.
3. We were referred to a Medical Appeal Panel case of Gencer v Chelsam Joinery (Pty) Limited.[4]
4. We were also referred to Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd,[5] State of New South Wales (New South Wales Department of Education) v Kaur,[6] Jaffarie v Quality Castings Pty Ltd[7] and Jaffarie v Quality Castings Pty Ltd (No 2).[8]
5. It was submitted that the Medical Assessor had failed to conduct a proper examination as part of his acceptance and assessment of those "injuries".
6. It was asserted that the Medical Assessor had not conducted a proper examination and that Mr Legrand should be reassessed.
7. It was further submitted that it was "unclear" whether the Medical Assessor had assessed the upper limbs in conformance with figure 16-1A or figure 16-1B of AMA5.
8. We were referred to the Medical Assessor's findings on physical examination and

Mr Legrand submitted again that there had been a failure by the Medical Assessor to conform to the orders made by the Member.

Ground Three: The Medical Assessor failed to apply the correct methodology under s 323 in conformity with the case law concerning the cervical spine injury from 7 February 2005. The Medical Assessor should have at the most applied a deduction of 10% under s 323(2) for the cervical spine injury under s 323 in conformity with the previous Medical Assessment Certificate of Dr Parkington dated 3 June 2011

1. Mr Legrand submitted that by making a deduction of 26% from the 32% that the Medical Assessor had found resulted in his being assessed for a lesser amount than he had already been awarded pursuant to s 66.
2. We referred to the Medical Assessor's comments at [11] of the MAC.
3. The reasons given by the Medical Assessor demonstrated an incorrect approach to the application of s 323, it was submitted. We were supplied with a list of Workers Compensation Commission and Personal Injury Commission Medical Appeal cases on the subject.
4. It was submitted that the Medical Assessor had adopted an impermissible method of calculation for the extent of the deduction because he had made "an assessment of whole person impairment and deducted the level of whole person impairment from the present level of whole person impairment for the neck injury of 7 February 2025".
5. It was submitted that "the proper approach was to take a proportional percentage of the overall impairment that was attributable to the preexisting condition or abnormality that was consistent with the evidence in the particular case".
6. It was further submitted that the Medical Assessor had not acknowledged that the surgery following the 7 February injury had been to a different level of the cervical spine, at C5/6, whereas the surgery on 8 January 2001 was to the C6/7 level of the spine.
7. We were referred to the different surgical procedures in that regard.
8. The Medical Assessor made no mention, it was submitted, of the differing levels of the pathology in the two injuries. It was submitted there could be no aggregation of the two injuries under s 323 of the 1998 Act because the pathology was not identical.
9. Mr Legrand said that the first injury was dealt with under the Table of Disabilities whereas the second injury was dealt with under the WPI regime. It was submitted that the Medical Assessor had assessed the first injury under the WPI criteria which was inapplicable to the year 2000 and then he had used that criteria as a basis for the calculation under s 323.
10. This was alleged to be contrary to case law. We were referred to Cole v Wenaline Pty Ltd[9] and Vitaz v Westform (NSW) Pty Ltd.[10]
11. It was submitted that the three-step test in Cole was not adopted. The error with relation to the year 2000 injury was that the Medical Assessor had applied WPI in assessing the third step.
12. We referred to Southwell v Qantas Airways Pty Limited[11] and a further Medical Appeal Panel decision Ishac v Byblos Promotions Pty Limited.[12]
13. It was submitted that there was no clearly articulated reason why the Medical Assessor believed that the pathology at two different levels necessarily invoked the operation of s 323. This position was "consolidated" by the fact that Mr Legrand had received the benefit of the separate s 66 awards regarding the injury of 7 January 2000 and 7 February 2005.
14. Mr Legrand compared the assessment by the Medical Assessor with the prior MACs, noting the inconsistencies with the earlier assessments. Moreover, Mr Legrand said that the Medical Assessor had failed to apply the principles regarding the application of s 323 and did not properly explain the basis for the 26/32nds deduction.

Ground four: Failed to have regard to the prior awards and agreements under s 66 for the spinal injury of 7 February 2005

1. Mr Legrand had had the benefit of two prior awards, it was argued, namely that of

12 October 2006 and 12 July 2011. 2. It was submitted that the finding by the Medical Assessor could not stand as he had awarded a percentage impairment which was less than that had been adjudicated on two prior occasions. 3. We were referred to a Medical Appeal Panel case of John William Taylor v S&P Security Newcastle Patrol Services (Pty) Limited "WCC1483-2004". 4. The assessment by the Medical Assessor was inconsistent with the prior awards, it was submitted, "and could not stand."

Ground five: The Medical Assessor incorrectly applied s 323 to the digestive system in assessing the level of whole person impairment in circumstances where there was no evidence to do so or, alternatively, in circumstances where no proper path of reasoning was demonstrated

1. It was submitted that Dr Sethi, "Gastroenterologist accepted by the Commission," did not find any pre-existing condition for the impairment of the gastrointestinal system following the liver transplant.
2. It was submitted again that the Medical Assessor had "strayed into making observations on causation" when Member Wright had determined the issue of injury.
3. The finding by the Medical Assessor that the liver condition was likely to have several aetiological components was criticised, as Mr Legrand said that the question of causation had already been determined by the Member. Accordingly, it was not open to the Medical Assessor to examine questions of causation, and his finding that the factors around the development of Mr Legrand's very severe liver condition "were not entirely clear and their accuracy is clouded" were accordingly beyond his remit.
4. It was submitted that the history provided to Dr Sethi by Mr Legrand indicated that he had resolved his liver issues prior to February 2005 and that the need for a liver transplant arose directly from alcohol consumption as a means of pain relief. The Medical Assessor had erred to consider the 1997 history of the liver biopsy and prescription of Acamprosate. He had not explained a clear path of reasoning for the 1/10th deduction he made.

1. The respondent commenced by setting out the framework of the dispute and noting the previous settlements and proceedings.
2. The respondent then replied to the appellant's submission seriatim.

1. The respondent summarised Mr Legrand's proposition that because there had been Terms Of Settlement in 2003 that provided for a 25% impairment of the neck, the Medical Assessor was bound to accept as a starting point for his assessment in December 2024, that

Mr Legrand suffered at least 25% permanent impairment of the neck and was "in some sense" obligated to find deterioration since then. 2. However the appellant's submissions, the respondent argued, ignored the fact, firstly that

Mr Legrand had provided an award for the respondent for further loss pursuant to s 66 arising from the injury on 5 January 2000, and secondly, that there is no estoppel in a changing position. We were referred to Roche v Australian Prestressing Services Pty Limited,[13] and Abou_-Haidar v Consolidated Wire Pty Limited._[14] We also referred to Marriot v Hunter Area Health Service t/as Allendale Hospital.[15] 3. The respondent argued that the Medical Assessor was not obliged to assume a starting point of 25% but had to make his own decision on the evidence that was before him. 4. The respondent agreed that it was undoubted that a Medical Assessor was obliged to give reasons for his assessment. However they did not have to be elaborate or lengthy and in the present circumstances the Medical Assessor had described in sufficient detail why he had reached the view he had. 5. We were referred to Soulemezis v Dudley (Holdings) Pty Ltd[16] and Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford[17] to the effect that the adequacy of reasons is relative to the nature and context of the decision being made. 6. The respondent submitted that the Medical Assessor had given appropriate and clearly set out reasons for finding a 25% permanent impairment assessment and we were referred to those reasons:

"In the event of Janjuary [sic] 2000, Mr Le Grand [sic] sustained an injury to the C6/7 disc which resulted in a fusion at that articulation, which gave him a fairly good result. Following this, an impairment of 25% is considered appropriate. In the clinical literature, the level of impairment is described from 20% through to 35%, although most specialists have assessed this impairment at 25%."

1. For those reasons it was submitted that the Medical Assessor was not bound by any previous agreement or terms of settlement between the parties. The respondent repeated that the Medical Assessor was entitled to make the assessment on the available evidence before him.
2. It was noted that the assessment aligned closely with that provided by the respondent's expert, Dr Robinson, in his report of 19 May 2023.

1. Again the respondent did not cavil with the determination by Member Wright that Mr Legrand had suffered compensable injuries to his left and right upper extremities which were consequential in nature.
2. Those orders however did not bind the Medical Assessor to determine that there was any permanent impairment arising from the injuries, which was an issue solely for the determination by the Medical Assessor. The respondent referred to Haroun v Rail Corporation New South Wales & others[18] in that regard. We were also referred to a Medical Appeal Panel case, Secretary (Department of Education) v Clarke[19] as an example.
3. It was clear, it was submitted, that the Medical Assessor used his clinical expertise and determined that any restriction in Mr Legrand's shoulders was not related to the subject injury, and he gave reasons for that view.

1. The respondent submitted that this was simply a repeat of the submissions in ground one, but related to the cervical spine injury from 7 February 2005 where the WPI was found to be lower in 2025 than that assessed on 10 March 2011. The respondent repeated the authorities it had earlier discussed under ground 1, to the effect that there was no estoppel created by an earlier MAC. The substratum of the appellant's submission that the starting point of the cervical spine assessment was 23% was not correct, it was submitted.
2. With regard to s 323 the respondent agreed that the three-step test set out in Cole should be applied, but said that the deduction applied had to be based on the evidence relating to the consequences of that condition to the present (baseline) impairment. We were referred to NH and MH Slater v Slater.[20]
3. It was submitted that the Medical Assessor explained his reasoning in [11] of the MAC.
4. It was submitted that the explanation by the Medical Assessor was adequate as to his decision not to apply s 323(2) and otherwise his reasons were a "fairly scientific method" to determine the contribution of the earlier neck injury on 5 January 2000 to the impairment related to the cervical spine injury on 7 February 2005.
5. The respondent submitted that the CT scan of the cervical spine of 18 July 2001, which was taken prior to the C6/7 fusion procedure noted that Mr Legrand already had a small central disc herniation at C5/6. The CT scan of 10 September 2002, following the fusion procedure at C6/7 showed there was a posterior disc protrusion with an extruded disc at C5/6.
6. We were referred to the reports of Dr Tan of 7 October 2002 and Dr Miller of 28 October 2002 to underline the Medical Assessor's finding that the fusion of C6/7 was impacting on the C5/6 disc well before the incident of 7 February 2005.
7. It followed that the Medical Assessor's reasoning was shown to be that, but for the 2000 injury and resulting fusion, the impairment to Mr Legrand's cervical spine due to the incident on 7 February 2005 would not have been as great. We referred to Ryder v Sundance Bakehouse[21] in that regard.
8. The respondent then made some submissions in the nature of an appeal regarding the allegedly incorrect application of the modifiers regarding subsequent procedures (as provided by the Guides). These were inappropriate to a respondent's submissions in reply.

1. This ground was also made on a misapprehension, it was submitted. Mr Legrand's position was that because 23% WPI had been assessed in 2011 that the Medical Assessor was obliged to accept that as his starting point. The respondent repeated its submissions that there was no estoppel created in the earlier assessment and the issue of the extent of the permanent impairment related to the 7 February 2005 injury was within the Medical Assessor's remit.

1. With respect to the digestive system, the respondent repeated its submissions that no estoppel applied in this regard either. It was submitted that the application of s 323 of the 1998 Act regarding Mr Legrand's liver condition was within the Medical Assessor's jurisdiction and not constrained by any finding by Member Wright.
2. We were referred to evidence that was before the Medical Assessor that confirmed his findings about the 1997 liver biopsy and the pathology that was thereby identified, steatohepatitis and bridging fibrosis.
3. Moreover, as late as 3 September 2004, Mr Legrand's GP observed that Mr Legrand was using acamprosate at that time. This, being prior to the 7 February 2005 injury, showed a clear predisposing factor to the later development of the living condition.

1. On 5 June 2025, after this matter had been referred to us, a further document was received from Mr Legrand's solicitors, purporting to be "Appelant's [sic] Submissions in Reply to Respondent's Submissions." This is an unusual procedural step in the conduct of Medical Appeal Panels.
2. The respondent did not put on any further submissions (which procedural fairness would have required the Panel to consider if it had), but if the assumption by the appellant that there could be further argument made after the matter was referred to a Panel were correct, it could lead to unacceptable delay by a limitless exchange of submissions once the Form 10 Appeal was lodged. It would substantially impede the objects of the Commission as set out in ss 3 and 42 of the Personal Injury Commission Act 2020, that the real issues in proceedings be resolved justly and quickly, and that they be timely.
3. The appellant's submissions were misconceived in any event.
4. Mr Legrand referred to the estoppel submissions by the respondent and submitted that the respondent failed the to address the importance of Rail Services Australia v Dimovski.[22]
5. We were referred to dicta by Handley JA in which his Honour was discussing the argument put before the Court. Mr Legrand submitted that therefore the prior decisions relied on by the respondent were of no relevance and the Medical Assessor was estopped by the previous consent awards. This submission was made without proper justification, as the full context of the citation demonstrates. The appellant relied on Handley JA's statement at [10]:

"10 The argument based on issue estoppel involved two propositions. The first was that the consent award conclusively determined that as at 16 October 1996 the worker had a permanent impairment of his left leg at or above the knee of 25% which was the result of an injury or injuries sustained in the employment of the second respondent. This is correct. The second was that he suffered two further injuries to his left leg in the employment of the appellant, one from the nature and conditions of his work, and the other the frank injury on 25 May 1998. This was also correct."

"11 If these further injuries caused other than temporary aggravations of the worker's condition they must have increased the impairment in his left leg. The Judge did not find that they only caused temporary aggravations, but nevertheless found no increased impairment. Accordingly it was submitted that she had disregarded the estoppel. Mr King relied strongly on her statement that the consent award was 'possibly not reflective of an accurate assessment'.

12 These submissions must be rejected because they are contrary to the principles established in O'Donel v Commissioner for Road Transport...(citation omitted) ...."

1. His Honour then discussed the principle in O'Donel. He said from [13]:

"....The analogy is that a judicial valuation at one date plus evidence of a subsequent increase in value would not require a judicial valuer to find a higher value at the later date. Equally a binding determination of the extent of impairment at one date plus evidence of further injuries did not require the Judge to find increased impairment at the later date.

14 The Judge's remark that the consent award was "possibly" not an accurate assessment did not contravene res judicata principles. She had to determine the extent of the impairment at the date of trial. The consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker's impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the Judge.

15 Her task was to assess the extent of the worker's current impairment following the later injuries without legal constraints flowing from the earlier award. Having made her assessment she was not obliged to find an explanation for the discrepancy. There were a number of possible explanations and her tentative speculation about one was simply irrelevant. Its disclosure did not reveal legal error."

1. Accordingly, these submissions would not have assisted the Panel, had they been admissible.
2. Further submissions were repeated regarding the appellant's other grounds, without putting any useful argument against the respondent's submissions.
3. In any event, for the reasons given above, as a matter of policy we do not propose to admit these submissions.

1. It is convenient to consider the issue of the digestive system at this point, as the re-examination, along with the remaining grounds of appeal belong in the orthopaedic discipline, about which Medical Assessor Kuru has conducted a re-examination.
2. The ground was concerned with the 1/10th deduction made by the Medical Assessor from a baseline WPI of 24%.
3. The Medical Assessor said, as indicated:

"Digestive System. The factors around the development of the very severe liver condition experienced by Mr Le Grand are not entirely clear, and their accuracy is clouded. It does appear, however that there have been significant pre-existing factors to severe liver dysfunction which predated the injury of February 2005. Therefore, a one-tenth deduction is applied."

1. Mr Legrand submitted that there was no evidence to support the deduction, or, if there was, the Medical Assessor failed to give adequate reasons for doing so.
2. It was submitted firstly that Dr Sethi did not find any pre-existing condition for the impairment of the gastrointestinal system following the liver transplant. This was not entirely accurate, with respect. When Dr Sethi first reported on 26 November 2022, he took a history that

Mr Legrand began drinking alcohol "for analgesia as he was unable to tolerate analgesic medication" following his cervical spine surgery from 2005 onwards.[23] He took a past medical history of "Polymyalgia rheumatica." He noted that on 31 August 2020 Mr Legrand underwent a liver transplant. Dr Sethi said:

"Based on my observations of your client, in my opinion, your client's heavy consumption of alcohol from 2000 onwards is related to pain levels from the neck injury which he sustained during the course of employment on 7 February 2005.

Your client's liver cancer on the balance of probabilities, does result from his consumption of alcohol in the period 7 February 2005 until the time of the liver transplant."

1. Dr Sethi said at the same point that the consumption of alcohol was the "principal cause behind the need for the liver transplant.."
2. However, on 16 December 2022, Dr Sethi was given further material about Mr Legrand's past medical history. He recorded that on 26 September 1997, following a liver biopsy,

Mr Legrand was shown to have steatohepatitis and early bridging fibrosis.[24] 3. Dr Sethi thought that the mild damage shown by the biopsy were as a result of the past history of fatty liver disease with fat and mild scarring demonstrated. The existence of the liver biopsy of 1997 did not cause him to alter his opinion because "[Mr Legrand] subsequently reduced fat intake and lost weight, with normalisation of liver function." The fatty liver caused by fatty food intake did not play a causative role, Dr Sethi said.[25] 4. The expert retained by the employer was Dr Donald Frommer. He initially supplied two reports dated 9 January 2023 and 13 February 2023.[26] In his first report, Dr Frommer took the following history:

"Gastrointestinal history from the documentation

On 26 September 1997, Mr. Legrand underwent a liver biopsy which showed steatohepatitis and early bridging fibrosis. Dr. Josef Hruz (general practitioner) reviewed the biopsy results and advised him to eat a low fat diet. Repeat testing demonstrated normalization of liver function. He was advised that he had a fatty liver which resolved after avoiding fat intake.

Dr. N. F. Langley wrote on 19 March 2002 (p.18-23) and on 10 January 2005 (p.36-40) that Mr. Legrand "has an occasional drink". On the two occasions he recorded his height of 177 cm. and weights of 87 kg. and 96 kg., equivalent to BMIs of 27.8 and 30.6 respectively.

From 2005 onwards, he began consuming up to 2 bottles of wine daily and 12 beers daily. On occasion, he would consume 3.5 to 4 liters a day (p. 122). He developed progressively severe liver disease, jaundice, ascites and hepatocellular cancer.

On 31 August 2020, at Royal Prince Alfred Hospital he underwent a liver transplant and since then is on lifelong immunosuppression therapy with various medications."

1. In his second report Dr Frommer was asked to comment on a report from another specialist that Mr Legrand had been using acamprosate calcium as at 3 September 2004. Dr Frommer said:[27]

"Acamprosate can help people who have already stopped drinking alcohol. It does not work in a person who continues to drink alcohol, nor does it help ease withdrawal symptoms.... It would not be used in a person having 0 - 2 drinks/day before 2005, as stated by Mr Legrand, but will be used in those people who are displayed physical and/for psychological harm from alcohol and had succeeded in giving it up, at least temporarily."

1. He advised that steatohepatitis and/or early bridging fibrosis "are well recognised as forerunners to liver cirrhosis, hepatoma, liver failure and the need to have a liver transplant at a later point in time." Dr Frommer advised that in the absence of documented evidence of excessive alcohol intake for 2005 he had accepted that Mr Legrand only drank zero to two glasses of wine/day. Dr Frommer advised further that the prescription he had been referred to, dated 3 September 2004, of acamprosate calcium indicated that at some time earlier

Mr Legrand had a high alcohol intake causing him physical and/or psychological harm. 2. Dr Frommer thought therefore that the history he had obtained regarding his pre-2005 alcohol intake should be regarded as inaccurate. Mr Legrand had not mentioned the prescription of acamprosate calcium to him, nor the reason why it had been prescribed. 3. Dr Frommer issued a further report dated 4 September 2023, after he had received further clinical material. He said:[28]

"The alcohol history obtained by Dr G Feeney when Mr Legrand was being assessed for liver transplantation was that regular binge drinking occurred when he was off duty in the French army, for two years, starting at 19 years of age. After leaving, he became a bartender and waiter, where he had regular heavy drinking in excess of 120 g of ethanol/day. Over the subsequent years his peak alcohol intake was between 2 - 3 bottles of wine (160-240 g of ethanol) and up to a carton of beer (360 g of ethanol) per day...."

1. Dr Frommer noted history taken by another doctor that Mr Legrand changed his story multiple times about the alcohol he was drinking. Dr Frommer concluded that the alcohol history given to him by Mr Legrand was "completely unreliable." He said:

"The steatohepatitis and early-bridging fibrosis, found on liver biopsy and 1997, would almost certainly have occurred due to excessive alcohol intake and was an early stage in the progression to cirrhosis.

In the absence of further data on investigations of the liver between 1997 and 2001 cannot be certain whether the liver damage had reached the stage of early cirrhosis although there is a high chance of further damage having occurred, e.g. to having late stage bridging fibrosis. However by 2005 there is an extremely high chance that the damage to the liver had reached the stage of cirrhosis."

1. The Medical Assessor stated in his summary at [7] of the MAC that following the 2005 surgery to the cervical spine:

"...[T]here it is then a subjective history of increased use of alcohol resulting in severe liver dysfunction, which in turn included cirrhosis, then hepatoma development, and finally, a liver transplant which seems to have been fairly successful. The accuracy of this specific issue (the alcohol) seems to be rather clouded with the suggestion and possible evidence of increased alcohol consumption before the 2005 injury. Some reliance has been placed (in the clinical literature) on a liver biopsy which was conducted in 1997, although Mr Legrand maintains that this was for a fatty liver associated with obesity and his diet at the time rather than excessive alcohol use.

Nevertheless, there is also evidence of his GP at the time prescribing acamprosate in 2004, which is a medication used to reduce the cravings for alcohol. Therefore, regardless of the excessive use of alcohol after the 2005 injury, there does appear to have been a significant predisposing factor to further liver dysfunction."

1. At 8f of the MAC, the Medical Assessor returned to this subject. He said:

"Comment has already been made about the rather controversial and inconsistent history of Mr Legrand's excess alcohol consumption and the effects that this and possibly other factors have had on the development of his severe liver condition."

1. The Medical Assessor again discussed this issue in the concluding paragraph of [10c] of the MAC. He said:

"The only whole person impairment which I can find in the file for the digestive system is from Specialist Gastro-enterologist, Dr Donald Frommer in his reports ranging from January to September 2023. In this, he assesses a whole person impairment of 25% yet advises that all of Mr Legrand's liver condition is due to excessive alcohol consumption not associated with the cervical spine injury. This issue is contested by Specialist Gastro-enterologist, Dr Sidharth Sethi in his report of 14/09/23. This therefore places us in rather a quandary. Nevertheless, it does appear that Mr Legrand did have excess alcohol before the event of 2005 since his GP at the time prescribed acamprosate, which is used to reduce the cravings of alcohol. Nevertheless, it does appear to be a fact that regardless of this, after the event of 2005 he did consume significant excess alcohol. Therefore, the liver condition is likely to have several aetiological components."

1. It was submitted again that the Medical Assessor had "strayed into making observations on causation" when Member Wright had determined the issue of injury, but it is well known that matters of medical causation are exclusively those of the medical assessors: Jaffarie v Quality Castings Pty Ltd (No 2)[29] from [80] per White JA, McFarlan and Leeming JJA agreeing.
2. In any event, we had difficulty in understanding how a 1/10th deduction constituted an error regarding causation. The Medical Assessor found a baseline WPI of 24%, which has not been challenged, after fairly setting out the conflict in the evidence between Dr Sethi and

Dr Frommer. The 1/10th deduction was no more than an application of the provisions of s 323 of the 1998 Act. Before considering the decision of the Medical Assessor in that regard, we turn to the section itself.

1. Section 323 of the 1998 Act provides relevantly:

"(1) 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.

(2) 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[30] Schmidt J held:

"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 second injury was.[31] Secondly, whether a proportion of that impairment was due to the first injury. 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. The facts in Cole concerned an earlier injury, thus "second injury" was a reference to the subject injury. The issue before us is about a pre-existing condition, rather than a previous injury. It is the second step that is the issue in the present case. Mr Legrand objected to any proportion of the baseline WPI being found to be due to his pre-existing condition, on an assumption that such a determination involved a question of causation which was outside his remit, as described in the referral. We reject that submission as being misconceived. It is part of the function of a Medical Assessor, as much as an Appeal Panel, to determine causation, in so far as it relates to s 323.
2. Mr Legrand did not address the facts on which the dispute was based. He did not challenge the prior history related by Dr Frommer in his report of 4 September 2023, nor did he articulate an argument supporting the approach taken by the Medical Assessor, such as relying on his expertise and experience, to justify his finding.
3. The Medical Assessor expressed his misgivings about the evidence, as we have seen. He thought the accuracy of Mr Legrand's history was "rather clouded" by the evidence in the clinical notes related by Dr Frommer. He noted the 1997 liver biopsy. He noted that

Mr Legrand was prescribed acamprosate prior to his surgery and he advised that there appeared to have been a significant predisposing factor to further liver dysfunction. 4. We concur with Mr Legrand that the Medical Assessor did not give adequate reasons for his finding. However, the obscure path of reasoning related to his assessment of only 10%. He did not explain why he proportioned only 10% of the baseline assessment as being due to his pre-existing condition, and if he was relying on s 323(2), he failed to say why the statutory assumption was not at odds with the evidence. 5. There being no challenge to the history related of Mr Legrand's association with alcohol which contributed to his liver damage. To repeat Dr Frommer's history:

"The alcohol history obtained by Dr G Feeney when Mr Legrand was being assessed for liver transplantation was that regular binge drinking occurred when he was off duty in the French army, for two years, starting at 19 years of age. After leaving, he became a bartender and waiter, where he had regular heavy drinking in excess of 120 g of ethanol/day. Over the subsequent years his peak alcohol intake was between 2 - 3 bottles of wine (160-240 g of ethanol) and up to a carton of beer (360 g of ethanol) per day...."

1. We note that the respondent merely supported the 10% contribution found by the Medical Assessor, but the matter has been raised for our determination.
2. The 1997 biopsy demonstrated a high stage of pre-sclerotic conditioning. The above history makes it likely that the cirrhosis was already developing, and that the damage to the liver had been done many years earlier and had become chronic. Dr Sethi's opinion may be rejected, as he did not have the proper history, and his opinion that the 1997 biopsy simply demonstrated fatty food intake which, once Mr Legrand lost weight, normalised, is contradicted by the weight measurements taken in 2002, which indicated a weight of 87kg.
3. Accordingly, the assessment of 10% is at odds with the evidence, and the extent of the deduction is not difficult or costly to determine. In all the circumstances, we assess the contribution to the baseline WPI by Mr Legrand's consumption of alcohol prior to his injuries at one half.

1. We have referred to the history taken by the Medical Assessor in considering relevant factual background. Some further factual material however is relevant. At [11] of his MAC, when discussing the question of a s 323 deduction regarding the Table of Disabilities assessment, the Medical Assessor said:

"... A significant proportion is obviously due to the pre-existing condition of January 2000, which has already been addressed for associated compensatory purposes. At that time, the impairment was calculated with the Table of Disabilities...."

1. The Medical Assessor then described a complex method of assessing the deduction concerning the WPI assessment - arriving at the ratio of 26/32nds.
2. Although he acknowledged that the effects of the January 2000 injury had been "addressed for compensatory purposes" the Medical Assessor did not elaborate. Notwithstanding that the previous awards had been indicated on the face of the referral document, the Medical Assessor did not refer to the settlement of 11 March 2003, nor to the subsequent MACs dated 13 September 2006 and 10 March 2011.
3. On 11 March 2003, Terms of Settlement filed in the Compensation Court awarded

Mr Legrand compensation for a permanent impairment to the neck of 25%, relevantly.[32] 4. On 13 September 2006 a MAC certified that Mr Legrand had a WPI of 15% as a result of the injury to his cervical spine. The AMS (as Medical Assessors were then called) calculated that the injury of 7 January 2000, pursuant to AMA5 and the Guides, would have created an entitlement of 30% WPI, although he noted that such an assessment would have been incorrect as it fell within the ambit of the Table of Disabilities due to the date of injury. He indicated however that the injury he was asked to assess was within the WPI regime.[33] The AMS then calculated Mr Legrand's entitlement from the injury of 7 February 2005 as 22% WPI. He then combined the two WPI totals of 30% and 22% and made a deduction of 2/3rds from the resulting total of 45%, leaving an entitlement of 15% WPI, which was then the subject of a Certificate of Determination dated 12 October 2006.[34] 5. In further MACs dated 10 March 2011 and 3 June 2011, another AMS found there to then be 40% permanent impairment to the neck (and 10% loss of use of the efficient use of the left arm at or above the elbow) and a WPI assessment of 23% for the cervical spine.[35] A Certificate of Determination duly issued on 12 July 2011. 6. On 10 December 2024 the Medical Assessor in this appeal found: * 25% permanent impairment of the neck, and * 32% baseline WPI, with a reduction of 26/32, leaving * 6% WPI. 7. The consent order of 2003 thus demonstrated an agreement that 25% permanent impairment of the neck under the Table of Disabilities. There was no estoppel created thereby, and the evidence establishes no more than that the accepted permanent impairment assessment at that date was 25%. As was stressed in submissions from the respondent, there is no estoppel in a changing situation, as was demonstrated by the decision of Dimovski,[36] where Judge Ashford awarded the same impairment loss as had been awarded several years earlier. The Court of Appeal held, inter alia, that she was entitled to do so, as there was no estoppel created by the first award. We have discussed this principle above and adopt it in these reasons. 8. It can be seen that the Medical Assessor adopted the same methodology as the 2006 Assessor, by assessing the 2000 injury as if it were a WPI matter, and deducting that proportion pursuant to s 323. His reasons for doing so were quite involved, but he adopted a methodology that calculated a notional WPI for the 2000 injury of 32%. The 2006 Assessor found 30%. The Table of Disability impairment was not addressed in 2006, whilst the Medical Assessor in this case estimated 25%. 9. Without more, it could perhaps be argued that the Table of Disabilities assessment was thus demonstrated to be close enough to be the same in the 2006 MAC and the present MAC, due to the similarities of the notional WPI for the Table of Disabilities injury (30% and 32%). Further, the two methodologies also being the same, an inference could perhaps be drawn that the Medical Assessor's estimate of a 25% permanent impairment of the neck would have been close to that of the 2006 Assessor, had he been asked. 10. Mr Legrand submitted that this methodology was impermissible when he was arguing his case regarding s 323 in ground 3 of his submissions. We disagree, as whilst a Medical Assessor is required to adopt the three-step approach in Cole v Wenaline, which we have discussed above, in order to do so, he has to establish what the "overall impairment" or baseline impairment is. His method was an acceptable approach where he, like the 2006 Assessor, found that the whole of the impairment caused by the Table of Disabilities injury contributed to the baseline impairment, and converted it to WPI for that purpose. 11. Thus, although the Medical Assessor failed to address any of the prior assessments, it could perhaps have been argued that the 25% Table of Disabilities assessment demonstrated no error, and that his reasons had been adequate. 12. However, that hypothesis fails to take into account the 10 March 2011 MAC, which certified 40% under the Table of Disabilities. 13. The function of a Medical Assessor is, as stated in Wingfoot:[37]

"...The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."

1. However, that function is subject to the condition that a Medical Assessor give adequate reasons, about which the Plurality said at [48]:

".....What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself..."

1. In Vegan, Basten JA (Handley & McColl JJA agreeing) said:
   1. Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, 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. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.
   2. 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."
2. Thus, whilst there is no estoppel in Mr Legrand's changing situation, where there are earlier awards some explanation is called for, where more than one conclusion is open to a Medical Assessor on the evidence before him. To repeat Handley JA's decision at [14] in Dimovski:

"...The consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker's impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the Judge."

1. It is on this point that we part company with the respondent. Whilst we agree that, in conformance with Wingfoot, the function of a Medical Assessor is to make a considered assessment of permanent impairment presently suffered on examination and by reference to the documentation provided, we are not persuaded that the Medical Assessor has adequately considered the documentation before him, or that he has adequately explained his assessments in the light of that documentation.
2. It is not apparent that the Medical Assessor had considered the prior MACs or settlements in any detail, if at all. At [10d], he set out his brief comments regarding other medical opinions, but referred only to the expert opinions on either side of the record, namely, Dr Hopcroft and Dr Langley for Mr Legrand, and Dr Matheson for the respondent. The Medical Assessor said, to repeat:

"Specialist Orthopaedic Surgeon, Dr Alan Hopcroft in his series of reports from 2002 through to 2010 gives an initial assessment of neck impairment of 30% and subsequently 35%. Since only one disc level was affected and he achieved a fairly reasonable result following the C6/7 fusion, I believe that my assessment of 25% is more appropriate. This is also the same as the neck assessment given by Dr Noel Langley in his reports of 19/03/02 and 11/01/06 and by Specialist Neuro-surgeon, Dr John Matheson in his report of 26/07/06."

1. The first problem that arises from this survey, is that a perusal of the indexes for both the Application to Resolve a Dispute and the Reply contain many medical reports covering a period from the year 2000 to 2023, in an Appeal file that runs to 5,465 pages. It is unclear why the Medical Assessor decided to choose the three medical specialists he nominated. One of the advantages of the Workers Compensation scheme is that it incorporates by virtue of Division 7 of the 1998 Act, a system for having medical disputes independently assessed by a medical expert retained by the Commission and whose assessment, pursuant to s 326, is conclusively presumed to be correct. This system has the advantage of enabling a Medical Assessor to distil the opinions of the experts retained by the parties and give an assessment that is binding at the time it is made, and which is incorporated into a Certificate of Determination by the Commission.
2. The second problem is that the Medical Assessor did not accurately reflect the conclusion he reached as to the reports of Dr Langley. Whilst it is correct that Dr Langley assessed 25% permanent impairment of neck on 12 March 2002,[38] when he revisited his opinion on

"The permanent impairment of his neck, estimated as a proportion of a most extreme case arising from injuries, i.e., combining the two areas of C5/6 and C6/7 is a forty four (44) percent."

1. In that regard, we note the submissions by the respondent as to there being some pathology discovered in 2001 that implicated C5/6 disc pathology, as well as C6/7 disc pathology, and it may be that Dr Langley's revised opinion reflected that. If that were so, then the Medical Assessor was also incorrect to find that "only one disc level was affected" by the Table of Disabilities injury on 7 January 2000.
2. Thirdly, the Medical Assessor was aware that there had been some prior litigation, as he acknowledged at [11], to repeat:

"...A significant proportion is obviously due to the pre-existing condition of January 2000, which has already been addressed for associated compensatory purposes...."

1. There was no other mention of the settlements and MACs that were before the Medical Assessor. As we discussed above, there may have been a path that would have explained his reasons regarding his assessment, notwithstanding that he failed to mention the prior litigation, but the assessments made in the two MACs of 2011 blocked that path. The 25% certified by the Medical Assessor in the present appeal reflects an improvement in impairment of some 37.5% from the 40% (15%) assessed on 10 March 2011. This followed an earlier deterioration in impairment of 62.5% from notionally 25% to 40% between the MAC of 13 September 2006 and the MAC of 10 March 2011. Bearing in mind that these assessments had been binding at the time they were made, and indeed were the subject of Commission orders, the assessments by the Medical Assessor reflected fluctuations that on their face were difficult to follow. The evidence before the Medical Assessor left open more than one conclusion after a consideration of the prior settlements and awards.
2. Fourthly, we note Mr Legrand's reliance on the opinion of consultant general surgeon

Dr John McKee, who had supplied reports dated 24 August 2010, 11 January 2022,

26 July 2022 and 8 March 2023. Dr McKee confirmed on 8 March 2023 that the permanent impairment caused by the injury of 5 January 2000 was 35%, an assessment that was the same as he had made on 24 August 2010, having then been made aware of the 2003 agreement that there had been a 25% permanent impairment. 3. Of itself, this opinion is no more than a fact that was before the Medical Assessor with all the other reports and opinions. Moreover, it would be expecting a level of perfection for any Medical Assessor to be across all of that evidence, bearing in mind the 5,465 pages that are before us, a great deal of which were before the Medical Assessor. The above extract from Wingfoot shows that a Medical Assessor is not required to adjudicate between rival opinions, but that he is required to reach his own conclusion based on his experience and expertise. Notwithstanding, however, in the context of the difficulties in the MAC in this case,

Dr McKee's report raises further concern as to whether adequate reasons have been given.

1. Leaving aside for the moment the deduction made by the Medical Assessor pursuant to s 323 of the 1998 Act, the baseline impairment found was of 32% WPI. His deduction however was of 26/32nds, leaving an entitlement of 6% WPI.
2. The MAC of 2011 certified 25% WPI for the cervical spine, which after deducting 1/10th pursuant to s 323 gave an entitlement of 23% WPI. The 2011 MAC was conducted on

1 March 2011, some six years after the date of the second injury in the courthouse. 3. The 2011 Assessor noted the prior MAC of 13 September 2006. He said:[40]

"Dr Tony Blue, Orthopaedic Surgeon, in the MAC of 13.09.06, refers to a road traffic accident in January 2002 that Mr. Legrand did not tell me about. He thought that an

intervertebral disc replacement was the equivalent of a DRE III category with an 18% Whole Person Impairment but I feel this is a DRE IV. He did comment that the second operation was due to a separate injury but the X-rays show that degenerative disease at the CS/6 level was developing prior to the second injury and it is known that fusion at one level will predispose to an increase in degeneration at the level above."

1. The Assessor in the MAC of 13 September 2006 found a baseline WPI assessment of 42%, and deducted therefrom an amount close to 2/3rds for the Table of Disabilities injury, leaving an entitlement of 15% WPI.
2. Although a 32% baseline was assessed by the Medical Assessor, he found that the January 2000 injury had contributed a "significant proportion" of that impairment. In view of the inconsistency with the 1/10th deduction made in 2011, we were unable to follow the Medical Assessor's reasoning. He conceded that a 1/10th deduction was applicable in "cases of doubt," but he said that such a deduction would have been "completely at odds" with the existing evidence.
3. The Medical Assessor (knowingly or unknowingly) adopted the same methodology of notionally assessing the 2000 injury pursuant to the WPI Guides. He said that the WPI therefrom would have been 26% and said, "this would be deducted from the most recent whole person impairment, which would give us a fairly accurate assessment of the effects of the event of February 2005."
4. Whether or not the Medical Assessor was aware of the methodology used by the 2006 Assessor, he appeared to be unaware of the subsequent litigation in 2011, as he failed to consider it. As noted above, the 2011 Assessor found there to be 23% WPI, from which he deducted 1/10th. Regrettably, that Assessor's reasons for giving a 1/10th deduction were not before us, as the relevant page appeared to be omitted.[41] However, the Assessor in that case did say:[42]

"...I think it appropriate to make a deduction of 1/10th for pre-existing degenerative disease at the C5/6 level.

...I also agree with DRE Cervical Category IV impairment assessment and a subtraction of 1/10th."

1. The 2011 Assessor was agreeing with both experts before him.
2. The Medical Assessor in the present case appeared to be unaware of this MAC. Again, his finding represents a significant fluctuation between 2006 and 2011. Firstly, there was an 8% variation between the WPI the baseline WPI between 2011 and the present case, which the Medical Assessor did explain. As indicated above, at [10d] he said:

"Those specialists assess (sic) Mr Legrand's cervical spine following the event in DRE IV with whole person impairments from 25% up to 32% which I assessed at this assessment. Nevertheless, most specialists did not demonstrate radiculopathy, which I demonstrated at this assessment and also have not taken into account the third surgical procedure. This is the reason why my assessment included a further 7% for these particular factors."

1. The specialists the Medical Assessor was referring were, as indicated above, Dr Hopcroft,

Dr Langley and Dr Matheson. It does not appear that he was aware of the 2011 MAC, but his explanation also encompasses the 2011 Assessor's finding of 25%, and this explanation may be accepted. 2. However the deduction made by the Medical Assessor in this case was inconsistent with the 1/10 deduction made in 2011. Thus there was a two thirds (66%) deduction by the 2006 Assessor (from a baseline assessment of 45% WPI), a one tenth (10%) deduction by the 2011 Assessor (from a baseline assessment of 25% WPI) and a 26.32nd deduction (81,25%) in the present case (from a baseline assessment of 32% WPI). Whilst his explanation appeared to be similar to the methodology for the 2006 deduction, that ere was no acknowledgement, let alone a consideration of the more recent 1/10th deduction or any reasons as to why he differed. This is especially so in the face of his statement at [11]:

"... In cases of doubt, a deduction of one-tenth is frequently applied, although in this case this would be completely at odds with the existing information which we have, since it is possible to calculate a fairly accurate whole person impairment of what Mr Le Grand's [sic] cervical spine condition would have been following the event of 2005...."

1. There was thus an inconsistency of some 15% between the calculation of the s 323 deduction in the 2006 MAC and that of the Medical Assessor, not to mention a 70% inconsistency between the 2011 MAC and that of the Medical Assessor. The explanation given by the Medical Assessor to which we have just referred is accordingly inadequate to explain these fluctuations, and constituted a further inadequacy in reasoning.

1. With regard to the assessment of the upper limbs, the Medical Assessor has also fallen into error by finding that no injury ever occurred to the shoulders. It had not been claimed that it had, but rather that they were impaired as a consequence of the cervical injury. His comment that the cervical spine injuries "do not appear" to have "specifically" affected shoulder function did not engender any confidence in his logic, given that he did find a restriction in motion that had, he said, been caused by constitutional factors. We note the respondent's submissions and agree that a referral for assessment of a consequential condition requires the same assessment process as that of an injury, and a finding of nil impairment after a proper assessment is within an Assessor's function. However, that is not the problem with this particular assessment, as the finding that "there was restriction in elevations to both shoulders" required a more considered opinion as to why they were not consequential to the cervical injury, as the referral indicated they were. Moreover, there is some ambiguity in the explanation at [10c] of the MAC:

".... No injury ever occurred to the shoulders and the effects of the cervical spine injuries do not appear to have specifically affected shoulder function. It is therefore concluded that any shoulder restriction is constitutional and is not associated with either the event of 2000 or the event of 2005. There are also does not appear to be any significant investigation of shoulder dysfunction in the (more than) 5000 pages in the very extensive clinical literature...."

1. Accordingly a re-examination was arranged as to the assessments of the cervical spine, the shoulders and the s 323 assessment.
2. Medical Assessor Kuru's report follows:

1. The workers medical history, where it differs from previous records

The history as given to me by Mr Legrand was as reported in his statements included in the records and as recorded by Dr Anderson in his MAC of 16/01/2025.

Mr Legrand had 2 specific injuries to his neck. The first on 07/01/2000 was lifting a can of fuel overhead into a boat on a trailer. He sustained a C6/7 disc protrusion and underwent a C6/7 anterior cervical discectomy and fusion. He had reasonable relief of his symptoms with that surgery. He had some ongoing difficulty swallowing and subsequently underwent removal of the plate.

In 2005, he was walking out of a court and pulling on a large door as he twisted. He acutely developed pain in his neck and arm again. He was diagnosed as having a C5/6 disc protrusion and ultimately underwent C5/6 Bryan arthroplasty. He says initially he had improvement with the surgery but over time his symptoms deteriorated.

He has ongoing pain and stiffness in his neck. He has symptoms radiating down into his left more than right arm with numbness in the ulnar digits of both hands.

With respect to the shoulders, Mr Legrand told me that about 4 years ago he started getting pain over the shoulder girdles with progressive weakness. He developed an inability to lift his shoulders above horizontal.

I note an independent assessment by Dr McKee dated 24/08/2010 documenting range of motion in the shoulders to be normal. Subsequent IME by Dr McKee on 11/01/2022 notes complaints of pain and restricted movement in the shoulder. Dr McKee attributes this to being a chronic consequence of brachialgia subsequent to the cervical spine surgery. Independent assessment undertaken by Dr Robinson for the insurer, one of which on 28/04/2023 regards pathology in the shoulder is unrelated constitutional pathology.

1. Additional history since the original Medical Assessment Certificate was performed

Mr Legrand has undergone a liver transplant which has been successful.

He has recently undergone surgery for open reduction and internal fixation of a periprosthetic fracture related to his right total hip replacement.

Mr Legrand has returned to University and is studying counselling. He is currently volunteering in a counselling role.

On examination, he has well-healed scars on the right hand side of his neck consistent with approach for anterior cervical discectomy and fusion/arthroplasty.

Romberg's test is negative. Trendelenburg's test is normal. Heel-toe stance is normal. He has significant swelling in his right leg subsequent to his recent surgical fixation. Upper arm circumference is 37cm and symmetrical. Forearm circumference is 29cm and symmetrical. Reflexes are symmetrical. Peripheral power is intact. There is no intrinsic fatigue or ulnar escape. Tinel's test over the medial epicondyle is normal. There is subjective sensory alteration in the ulnar distribution of both hands.

There is a 5cm incision over the lateral aspect of the left shoulder consistent with approach for acromioplasty (Mr Legrand indicated he had this 6 weeks ago).

Range of motion in the shoulders is assessed as follows:

1. Results of any additional investigations since the original Medical Assessment Certificate

I have not been able to view any further imaging or investigations.

Mr Legrand has sustained 2 separate injuries to his neck: The first being where he sustained a C6/7 disc protrusion and underwent an anterior cervical discectomy and fusion. In the second he developed a C5/6 disc protrusion and has undergone a C5/6 arthroplasty.

I note the MAC of Assessor Blue dated the 21 Aug 2006. Dr Blue assesses the C5/6 injury as DRE III with additional impairment for radiculopathy and multiple procedures (22% WPI). He assesses the 2000 injury as DRE IV with modifications ( 30%WPI),combines the two and then makes a 2/3 deduction on the basis of the 2000 injury.

I note the MAC of Assessor Parkington dated the 10 March 2011. Dr Parkington assesses the 2005 injury as a discrete injury as DRE IV and applies a 1/10th deduction (23% WPI).

Dr Anderson in his MAC dated 16 January 2025 has considered the second injury consequential to the first injury and made a significant deduction for the pre-existing impairment. This methodology was inconsistent with that used in the previous two MAC's. Dr Anderson has not assessed impairment for the shoulders concluding there was no consequential injury to them and that there was no restriction of movement at his assessment. He also notes no structural diagnosis has been made with respect to shoulder pathology.

At issue here is whether these injuries represent separate discrete incidents or whether one predisposes to the other. I have not been able to review imaging related to the injuries, but note the MAC of Assessor Parkington dated the 10th March 2011 which documents advanced degeneration of the C5/6 disc in August of 2004, preceding the 2005 injury. Given the mechanism of injury, per SIRA, page 6, paragraph 1.27 I conclude that the injury to C5/6 was a discrete injury independent to the injury at C6/7 in 2000, but that a one tenth deduction applies for the pre-existing C5/6 degeneration.

SIRA, page 29, paragraph 4.37 directs that surgery undertaken for arthrodesis of the spine be assessed as DRE Category IV. SIRA, page 29, paragraph 4.38 directs that arthroplasty be assessed similarly to arthrodesis. The cervical spine is hence assessed according to AMA-5, page 392, Table 15-5 as DRE Category IV, 25% whole person impairment.

An additional 2% is assessed per SIRA, page 28, paragraph 4.34 for restriction of activities of daily living.

Injury to the cervical spine of the date of injury of 07/02/2005 is hence assessed at 27% whole person impairment.

Given that the injury on 07/02/2005 has been assessed as a separate and discrete injury, additional impairment for additional surgical levels and procedures has not been assessed. Whilst Mr Legrand has ongoing symptoms, he does not meet the criteria for radiculopathy per SIRA, page 27, paragraph 4.27. Specifically, he does not have loss or asymmetry of reflexes, weakness localised to a spinal nerve root, positive nerve root tension signs, or muscle wasting or atrophy. Additional impairment for persistent symptoms and radiculopathy is not assessed.

With respect to the shoulders, it is evident that Mr Legrand has now been diagnosed with subacromial impingement, rotator cuff tendinopathy (ie, a structural diagnosis has been made). Impairment for the shoulders is assessed per AMA-5, page 476 Figure 16-40, page 477 Figure 16-43 and page 479 Figure 16-46. On the basis of restricted range of motion, 12% upper extremity impairment for both shoulders is assessed. According to AMA-5, page 439, Table 16-3 this converts to 7% whole person impairment. Whilst he has only recently undergone surgery on the left shoulder, his range of motion is stable when compared to his pre-operative assessments (Dr McKee IME 11 Jan 2022) and I do not believe it will change significantly with further rehabilitation. On that basis I believe it is appropriate to proceed with assessment of the left shoulder.

With respect to section 323(2) deduction for pre-existing pathology, a 10% deduction is appropriate given the previous surgery at C6/7. 27% whole person impairment less 10% leaves 24% whole person impairment rounded for the cervical spine.

Given the time course of development of symptoms in the shoulder and the surgical levels involved in the cervical spine, the development of rotator cuff tendinopathy/impingement in the shoulders has a significant constitutional component to it. A 10% deduction would be at odds with the available evidence. I apply a one third deduction for each shoulder. 7% whole person impairment less one third rounded is 5% whole person impairment.

24% whole person impairment combined with 5% combined with 5% gives 32% whole person impairment.

The assessment of the neck injury of 7 January 2000 has been discussed above in the body of our report. Doing the best I can with the extensive material in this case, I find that 35% represents a fair evaluation.

1. We adopt Medical Assessor Kuru's report.
2. For these reasons, the Appeal Panel has determined that the MAC issued on

16 January 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

State of New South Wales (Department of Primary Industries)

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

Assessment in accordance with the Table of Disabilities for injuries received before

(describe the body part as per Table of Disabilities)

Total amount of permanent % loss of efficient use or impairment

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

Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.)

State of New South Wales (Department of Primary Industries)

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 Tim Anderson 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)

Total % W two PI (the Combined Table values of all sub-totals)

[3] [2013] HCA 43.

[4] [2021] NSW PIC MP84 [33].

[5] [2014] NSWCA 264.

[6] [2016] NSWSC 346.

[7] [2015] NSWCA 325.

[8] [2018] NSWCA 88.

[9] [2010] NSWSC 78.

[10] [2011] NSWCA 254.

[11] [2024] NSWSC 467.

[14] [2010] NSWWCCPD 128.

[16] (1987) 10 NSWLR 247.

[17] [2002] NSWWCCPD 6.

[19] [2022] NSWPICMP 320.

[21] [2015] NSWSC 526.

[22] [2004] NSWCA 267.

[26] Appeal papers pages 3,865 and 3,880.

[29] [2018] NSWCA 88.

[30] [2010] NSWSC 78 at [38].

[31] [The facts in Cole concerned an earlier injury, thus the subject injury was 'the second injury.' The issue before us is about a pre-existing condition].

[35] Appeal papers pages 130 and 133 respectively.

[36] Rail Services v Dimovski [2004] NSWCA 267 from [12].

[37] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 437 at [47]. This dicta applies to the function of a Medical Assessor: Sydney Local Health District v Chan [2015] NSW SC 1968 at [13].