1. On 12 March 2025 Sydney Trains, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on

14 February 2025. 2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act): * the assessment was made on the basis of incorrect criteria, and * the MAC contains a demonstrable error. 3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made. 4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules. 5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

1. Robert Williams, the respondent, commenced employment with the appellant on

14 September 1990. He last performed duties for the appellant on 6 January 2020. His employment was terminated on 21 October 2020. 2. It is uncontroversial that he suffered an injury to his cervical spine due to the duties he performed over the course of time in his employment with the appellant. 3. On 3 October 2023 his lawyers wrote to the appellant advising it that he claimed compensation for permanent impairment from his injury of the order of 24% whole person impairment (WPI). He relied on a report of orthopaedic surgeon Dr Peter Bentivoglio dated 26 September 2023 which his lawyers enclosed with their correspondence to the appellant. 4. The appellant denied liability for his claim, based on a report it had obtained from orthopaedic surgeon Dr Stephen Rimmer dated 13 December 2023. The appellant notified the respondent of its decision in a notice issued under s 78 of the 1998 Act on 7 March 2024. It attached Dr Rimmer's report to its notice, as well as earlier reports Dr Rimmer had issued relating to earlier examinations he had conducted of the respondent. In its notice, the appellant drew the respondent's attention to Dr Rimmer's advice in his report of

13 December 2023 that he assessed the respondent had 26% WPI but attributed all of that to a pre-existing degenerative condition that he considered the respondent suffered, such that he assessed the degree of the respondent's permanent impairment resulting from his work injury is 0% WPI. 5. Two critical issues arise in this appeal, about which there is controversy between the parties, being firstly, the nature of the work the respondent performed for the appellant from which his injury to his cervical spine arose and secondly, when he commenced performing that work. Why those issue are critical will become apparent in what the Appeal Panel discusses under the heading Findings and Reasons. 6. Relevant to these issues is what the respondent said at paragraphs 16-19 in a statement he signed on 1 August 2024, specifically:

"My job title has changed regularly over the years. Between 2011 and 2020, I had been

doing the same type of work although my job title changed. My most recent job title was as a full-time Resource Delivery Lead at the Railway Operations Centre for Sydney Trains located in Alexandria. I worked approximately 40 hours per week on average.

The main duty of a Resource Delivery Lead was to monitor the movement of all Sydney

train guards and drivers throughout the Sydney Trains Network. I had five monitors in

front of me at my workstation, as well as a further six large television screens on the wall in front of me that I was required to continuously monitor. I have a phone system and a paper diary on my workstation which makes me look down constantly to make calls and to write in the diary. This involved continuously flexing, rotating and moving my neck up and down to look at all monitors and screens. I believe this activity caused the injury to my neck. Annexed to this statement and marked with the letter "A' is a copy of photographs of my workstation at Sydney Trains.

I was never provided with a headset for the phone at my desk. As such, I did not use a

headset for telephone calls and I was required to hold the phone to my ear when I had a free hand or insert the phone between my shoulder and ear when the work I was

completing required the use of both of my hands. Whilst on phone calls I would continue to monitor the screens while working on my keyboard and computer as all calls from crew had to be verified via the in house computer program and written down in the daily dairy.

The chair that was provided to me by Transport for NSW had arm rests that prevented the chair from being pushed in under the desk as the arm rests did not frt under the desk. The desk was not adjustable. As such, I had to constantly lean forward to reach my desk and attend to my work duties."

1. For completeness, the Appeal Panel notes that the annexure marked A, to which the respondent referred in his statement, is not in evidence.
2. Also relevant to these issues is the history Dr Bentivoglio detained in reports he provided to the respondent's solicitors on 29 September 2021, (which followed his consultation with the respondent on 16 September 2021) and his report of 26 September 2023 (which followed his consultation with the respondent on 15 September 2023). In his earlier report Dr Bentivoglio noted that the respondent had been employed by Sydney Trains for 30 years and that on

1 September 2020 the respondent awoke with acute pain in his neck, with "no actual injury" (by which Dr Bentivoglio meant that no specific event occurred on 1 September 2020 that triggered the acute pain symptom with which the respondent awoke). Dr Bentivoglio noted that the respondent "relates this to the fact that he's had to look at screens for may years working with Sydney Trains and doing this for long periods of time which has caused him to develop acute neck syndrome". 3. Dr Bentivoglio in that report also said that "the diagnosis is clearly defined", and advised his diagnosis was "multi-level degenerative disease which has been developing slowly over a period of time". Dr Bentivoglio noted that the respondent had developed brachialgia in his right arm with evidence of a C7 radiculopathy. Dr Bentivoglio said that the respondent had "been doing this same of work for 30 years and in particular looking at all the screens for the last 12 years". 4. The Appeal Panel notes that whilst Dr Bentivoglio detailed the respondent had been looking at screens for the last 12 years in his employment with the appellant, he did not otherwise detail the nature of the work or the tasks the respondent had undertaken in his employment with the appellant prior to that time. Dr Bentivoglio provided the following summary of the respondent's injury:

"So in summary he's a gentleman who has developed neck pain and right brachialgia secondary to pre-existing asymptomatic degenerative spondylytic changes in his cervical spine which has now become symptomatic because of the vulnerability and nature of the degenerative disease causing nerve root compression. His work has been a contributing factor to this and one would have to suspect it's the main contributing factor."

1. In his subsequent report Dr Bentivoglio did not diverge from the opinions he had expressed in his early report nor did he provide any further details in the history he set out therein that shed light on the nature of the work the respondent did prior to commencing looking at the screens. Indeed, within the material before the Appeal Panel, which comprises 500 pages, there is nothing that relates to the nature of the work or the specific tasks the respondent performed prior to 2011 from which, as he said in his statement, he was required to sit in a chair and look at six large televisions screens, the consequence of which was that he continuously had to flex, rotate and move his neck up and down. Further he also had to hold a phone to his ear with his hand or between his ear and shoulder when he was using both hands.
2. The respondent's solicitors in their letter of 3 October 2023, by which they notified the appellant of the respondent's claim for compensation, described the mechanism of the respondent's injury in the following terms:

"Our client suffered injury to his cervical spine as a result of performing repetitive manual activity including monitoring various screens at a time which included looking at 5 computer monitors in front of him and 6 television screens on the wall above his head resulting in our client suffering a cervical spine injury with a deemed date of injury of 1 September 2020."

1. In the Application to Resolve a Dispute dated 5 August 2024, that the respondent lodged with the Personal Injury Commission (Commission), and by which he sought the Commission determine his claim against the appellant for compensation for permanent impairment from his injury, the respondent provided the following details regarding how his injury was caused:

"The Applicant had to work at a workstation and look constantly at monitors on his desk as well as television screens on the wall in front of him to monitor the movement of trains during the course of his employment. He had to flex, rotate and move his neck to look at the monitors all day. Over an extended period of time this actually resulted in the aggravation, acceleration, exacerbation or deterioration of a disease process."

1. On 19 November 2024 a delegate of the President of the Commission issued a referral to the Medical Assessor to assess various medical disputes relating to the respondent's claim for compensation for permanent impairment, including the degree of his permanent impairment as a result of his injury, and whether any proportion of his permanent impairment is due to a previous injury or pre-existing condition or abnormality and if so the extent of the proportion. There was delay in that referral being issued due to what is best described as lack of clarity about the nature of the injury the respondent suffered and procedural matters, which resulted in the matter ultimately coming before a Commission's Member, namely Mr Parnel McAdam, who issued a determination dated 18 November 2024 that ultimately resulted in clarity on those matters. Those matters do not need to be described herein.
2. Ultimately the Medical Assessor examined the appellant on 12 February 2025, and as said, issued the MAC on 14 February 2025. In that he certified that the appellant had a total permanent impairment relating to his cervical spine of 27% WPI. No issue has been raised with respect to that assessment in the appeal. The issue that is raised in the appeal relates to the Medical Assessor's assessment that no proportion of the respondent's permanent impairment is due to a previous injury or pre-existing condition or abnormality. With respect to that matter the Medical Assessor provided the following reasons for his assessment:

"With respect to deductions for pre-existing injury or condition I note that he has no history of pre-existing condition or injury prior to his commencing work with Sydney Trains on 14 September 1990. I also noted on questioning that the only sport that he has played previously was playing junior rugby league until the age of 11. He played on the wing and did not sustain any injury. He then used to play ten pin bowling on a social basis but again sustained no injury to his neck. Apart from this his most frequent exercise was walking. In conclusion there is no evidence of pre-existing or subsequent condition or frank injury before he commenced work with Sydney Trains. I therefore believe that no deduction is appropriate."

1. Hence, the Medical Assessor assessed, and certified, that the degree of the respondent's permanent impairment from his injury to his cervical spine is 27% WPI.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This because the material before the Appeal Panel is sufficient for the Appeal Panel to deal with the appeal.

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. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. In summary, the appellant submitted that the injury the respondent suffered, and that was the subject of the medical dispute between the parties, was not an injury arising from the work the respondent did in his employment from 1990, but rather an injury arising from the office duties the respondent did after 2011. The appellant submitted, in substance, that the Medical Assessor assumed the injury the respondent suffered arose due to duties the respondent performed from 1990 and that was an error which in turn led to a further error by the Medical Assessor in that the Medical Assessor did not engage s 323 of the 1998 Act.
3. The appellant also submitted that the Medical Assessor erred with respect to his reasoning whether s 323(1) of the 1998 Act could be engaged in that the Medical Assessor reasoned that because the respondent had no cervical spine symptoms in 1990 and the respondent had not reported any evidence of a pre-existing degenerative disease s 323(1) could not be engaged. The appellant submitted that an asymptomatic condition can contribute to current impairment, which if it did would require a deduction under s 323(1). The appellant submitted, in effect, that the fact the respondent did not report any pre-existing disease or did not experience any symptoms from any pre-existing disease was no reason for the Medical Assessor not to engage s 323(1) of the 1998 Act.
4. In reply, the respondent submitted that his claim for compensation for permanent impairment from his injury was based on the opinion of Dr Bentivoglio who obtained a history that he had been performing the same sort of work for 30 years. The respondent submitted that his claim was not consequently limited to permanent impairment from an injury that occurred owing to the work he did after 2011. The respondent submitted that the Medical Assessor had "a very good appreciation of what 'injury' underpinned the medical dispute".
5. When broadly considered, the respondent further submitted that the Medical Assessor did not make an error in not applying s 323(1) because there was no evidence that as at 1990 he had any relevant pre-existing condition or abnormality or had suffered a previous injury.
6. The respondent further submitted that the Medical Assessor was not in error by considering whether or not he suffered any symptoms prior to his injury because whether or not he suffered symptoms is an important consideration in deciding whether any symptoms persisted and contribute to his impairment. The respondent submitted that the appellant's submissions involve an assumption that the spondylitic changes revealed in the MRI done on 22 September 2020 were present before his injury.

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.
3. The Medical Assessor was required to assess the medical dispute that had arose between the parties. That required the Medical Assessor to identify that medical dispute by reference to the documentation the parties lodged with the Commission.[1] Crucial to identifying what the medical dispute was is identifying the injury from which the respondent has a permanent impairment.
4. The appellant contends that that injury was the aggravation of a pre-existing degeneration in the respondent's cervical spine due to the duties the respondent undertook in his employment with the appellant between 2011 and 2020. The respondent was then employed as a resource delivery lead at the appellant's operation centre during this period.
5. The respondent contends that his injury was due to activities he undertook from 1990.
6. The Appeal Panel agrees with what the appellant contends. The identification of the medical dispute the subject to the respondent's claim, as discussed earlier, must be done by reference to the documents that the parties filed with the Commission.
7. The letter from the respondent's solicitors dated 3 October 2023 to the appellant's insurer, by which the respondent notified the insurer of his claim, identified the mechanism by which the respondent suffered his injury in the following terms:

"Our client suffered injury to his cervical spine as a result of performing repetitive manual activity including monitoring various screens at a time which included looking at 5 computer monitors in front of him and 6 television screens on the wall above his head resulting in our client suffering a cervical spine injury with a deemed date of injury of 1 September 2020."

1. That letter also made it apparent that the respondent relied on the report of Dr Bentivoglio dated 26 September 2023 to support his claim. Dr Bentivoglio in that report expressed the view that the respondent's "underlying pre-existing degenerative disease has been aggravated by his employment". In other words, he was expressing his view that the respondent did have a degenerative disease in his cervical spine that had been aggravated by his employment. In terms of what work Dr Bentivoglio considered aggravated the respondent's pre-existing degenerative changes in his cervical spine, regard must be had to Dr Bentivoglio's earlier report of 29 September 2021. Therein, Dr Bentivoglio detailed a history of the respondent having been employed by Sydney Trains for 30 years and that the respondent had attributed his cervical spine symptoms that he commenced experiencing on 1 September 2020 to the work the respondent did of looking at screens for many years for long periods of time. Dr Bentivoglio also detailed that the respondent had been "looking at all the screens for the last 12 years".
2. Whilst Dr Bentivoglio also said that the respondent has been doing "the same type of work for 30 years", nowhere within either of his reports did he provide any history relating to the work the respondent undertook prior to "the last 12 years". The content of the documents he listed in his report of 26 September 2023 that he was provided for the purpose of preparing that report, which are in evidence, do not reveal at all the nature of the work that the respondent undertook before 2011. Dr Bentivoglio did not in his report of 29 September 2021 detail the documents that he was provided for the purpose of preparing that report, so it is unknown what he reviewed and whether whatever it was he did review shed any light on the work the appellant did prior to the "last 12 years". As said earlier, nothing within the evidence before the Appeal Panel, sheds light on that.

1. The nature of the work that Dr Bentivoglio said the respondent did in his work over the last 12 years of his employment is confirmed, in the main, by the respondent in his statement of

1 August 2024, with the exception that the respondent indicates that he did this work only in the last nine years of his employment. The respondent does not in his statement provide any detail of work he did prior to 2011. 2. The description of injury the respondent provided in the application he lodged with the Commission to commence the current proceeding described the cause of his injury as the work he did at a work station of looking constantly at monitors on his desk as well as television screens on a wall, which required him to flex, rotate and move his neck which over an extended period of time aggravated, accelerated, exacerbated or deteriorated a disease process. 3. Having regard to all that, the Appeal Panel considers that the better view is that the injury the subject of the respondent's claim, that was the subject of the medical dispute that was referred to the Medical Assessor, is an injury in the form of an aggravation and a deterioration of degenerative changes in the respondent's cervical spine as a consequence of the work he did after 2011. 4. Given that, the Appeal Panel accepts the MAC contains a demonstrable error in that the Medical Assessor assessed a medical dispute relating to a purported injury consisting of a disease that was contracted by the respondent due to the work he did over the course of 30 years. 5. The Appeal Panel having found the MAC contains a demonstrable error, the task falls upon the Appeal Panel to correct that error. The correction of that error involves consideration of whether s 323(1) of the 1998 Act is to be engaged. 6. The pre-existing condition for which a deduction can be made under s 323(1) of the 1998 Act relating to an injury falling within the description of s 4(b)(ii) of the 1987 Act must be a condition that the respondent had prior to his commencing the tasks he undertook for the appellant from which his injury arose.[2] In other words, it must be a condition that existed in his cervical spine in 2011. 7. The Appeal Panel considers that the respondent did have a condition in his cervical spine at that time. That condition is widespread spondylosis. The MRI scan done on

22 September 2020 revealed multi-level spondylotic changes in the respondent's cervical spine. The changes as revealed in that scan were extensive and those changes could not have occurred within the course of nine years between 2011 and 2020. That is to say the pre-existing degeneration must have existed in the respondent's cervical spine to a significant extent as at 2011. 8. The Appeal Panel also considers that the degeneration in the respondent's cervical spine as at 2011 contributes to the respondent's current permanent impairment. This is because the respondent's impairment is assessed on the basis that he had a cervical decompression and fusion at C6/7 and consequently his impairment is to be rated on the basis that he falls within DRE Cervical Category IV. The surgery that the respondent had was the consequence of both the degeneration in his cervical spine and that degeneration being aggravated and deteriorated by the work he performed over nine years until 2020. In other words, it was both the injury and the existing degeneration in the respondent's cervical spine combining to necessitate the surgery, by reference to which the respondent's permanent impairment has been assessed. 9. As the appellant submitted, the fact that the degenerative changes in the respondent's spine were asymptomatic at the time he commenced his TV monitoring duties in 2011 is no reason not to engage s 323(1). What is relevant is whether that degeneration contributes to his current impairment, and for the reasons as just set out, the Appeal Panel considers it does. 10. The Appeal Panel also considers that this is a case in which, in accordance with s 323(2), the Appeal Panel must assume that the deductible portion for s 323(1) is 10%. This is because it is difficult to determine the exact contribution the pre-existing condition makes. It cannot be known exactly how extensive the degeneration was in his cervical spine as at 2011, other than to say it would have then been extensive. It was in 2011 asymptomatic. It cannot be known from the evidence for how long the degeneration would have remained asymptomatic, absent the respondent undertaking the work he did after 2011. It is likely it would have become symptomatic at some time and that the respondent would have required surgery at some point in time even if he had not done the work he did after 2011. That would be the consequence of the natural progression of the degeneration in his cervical spine, but as to when that surgery would have been needed, if the respondent had not done the work he did after 2011, simply cannot be determined from the evidence before the Appeal Panel. It is for those reasons that the Appeal Panel considers that s 323(2) is engaged and the making of the assumption required by that subsection is not at odds with the evidence that the Appeal Panel has just set out. 11. In summary therefore, the Appeal Panel assesses the degree of the respondent's permanent impairment resulting from the injury to his cervical spine to be 24% WPI, which is 27% WPI as the Medical Assessor assessed it, less the 10% deduction made in accordance with s 323(1) of the 1998 Act. 12. For these reasons, the Appeal Panel has determined that the MAC issued on

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

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

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Mark Burns 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 % WPI (the Combined Table values of all sub-totals)

[1] Skates v Hills Industries Ltd [2021] NSWCA 142 at [29]- [30], [44], [46]-[48]; Oswell v Sublime Install Pty Ltd [2024] NSWSC 1586 at [8]- [9].

[2] Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 at [47]- [58]; Craigie v Faircloth & Reynolds Pty Ltd [2021] NSWSC 1211 (Oswell) at [85] - [92].