1. On 7 August 2025 the employer Willoughby City Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 July 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. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. The appellant did not request that the worker be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
3. As a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
3. The matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:

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

• Date of injury: 19 September 2019 (deemed)
• Body parts/systems referred: Cervical spine

• Method of assessment: Whole person impairment."

page and paragraph number in NSW workers compensation guidelines

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

% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality

Sub-totals % WPI (after any deductions in column 6)

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

1. The employer appealed.
2. The complaint on appeal does not concern the assessment of overall impairment for the cervical spine but rather the failure of the Medical Assessor to make a s 323 deduction. There is no complaint about the scarring assessment at 0%.
3. In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable errors in failing to make a deduction under s 323.
4. In summary, the worker Cameron Bennell (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed.
5. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a physical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
6. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applied.
7. The Medical Assessor recorded the following history:

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

Mr Bennell informs me that he was originally employed with Willoughby City Council in 1997 on a full time basis. He informs me that over the years he did have intermittent discomfort in his neck region and early on he may well have reported this to his general practitioner, and he does recall having had a period where he took oral medications, but the pain was never bad enough to stop him from working.

In September 2019 his son had been admitted to hospital and when he arrived home he noted that he developed severe pain in his neck and within a short period of time had discomfort radiating down his right arm, and he recalls this was particularly to the ring and middle fingers of his right hand. Mr Bennell was treated conservatively initially with tablets, physiotherapy and injections, and I note that he eventually came to surgery on his cervical spine on 30 May 2022 being a micro foraminotomy at the C6/7 level. This was done through a posterior approach.

Post-operatively he had tablets and physiotherapy, and attended rehabilitation.

Mr Bennell is not having any treatment at the moment but does see his treating specialist on a 6-monthly to yearly basis.

Mr Bennell says that prior to his surgery he had very severe pain in his neck and his arm which he described as being constantly present and going as high as 9/10. There was a burning sensation in his right posterior shoulder region and down his arm and into the fingers of his right hand.

The operation has given him significant improvement in his symptoms although he will still get occasional neck discomfort which can go as high as 6/10, but he can go for a few days without any particular neck discomfort if he is simply being careful.

He is also aware that he still gets some tingling in the fingers of his right hand particularly the middle and ring fingers, but occasionally the little finger, and this will occur once or twice a week and can last for up to 24 hours. He also gets intermittent discomfort in the posterior shoulder region.

• Details of any previous or subsequent accidents, injuries or condition:

As noted, Mr Bennell has had intermittent ongoing problems with his cervical spine over many years. As noted, he was not required to take any time off work but did have tablets on occasions.

Mr Bennell is on medication for hyperthyroidism and is otherwise well.

• Work history including previous work history if relevant:

Mr Bennell reported his symptoms at the time and went on sick leave, taking intermittent periods on and off work and was then able to get back to restricted duties which he did until he had his surgery carried out. He was given a lifting limit of 5 - 6kg but was working full hours doing mainly office work.

After his operation he was off work for some 6 weeks and was then able to get back to full time work and suggested pre-injury duties, but he says he has to be very careful with his activities and particularly for example extension of his head and neck, or elevation of his right arm for long periods, or doing any heavy lifting. He simply avoids these activities at the present time.

He used to play cricket and play his guitar which he cannot do at this stage because of discomfort in his posterior shoulder region.

He lives at home with his partner and his son, and can manage with light housework but avoids activities such as sweeping which tends to aggravate his symptoms. If he does any housework and this aggravates his symptoms, he simply stops doing what he was doing.

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

"I note that an MRI scan carried out on 1 October 2019 showed a right paracentral disc extrusion at the C6/7 level with severe right-sided foraminal narrowing and right C7 nerve root involvement."

1. The Medical Assessor recorded his examination findings which were not the subject of complaint on appeal.
2. The Medical Assessor summarised the injury and diagnosis as follows:

Mr Bennell developed a disc protrusion in his cervical spine which was treated surgically with a satisfactory result. He has been left with ongoing restrictions as well as symptoms and features of radiculopathy.

1. The Medical Assessor set out the facts on which his assessment was based as follows:

"The facts on which I have based my assessment of whole person impairment are:

My opinion is based on the clinical history obtained, my findings on clinical examination, examination of the investigations and reports thereof, as well as my review of the accompanying documents."

1. The overall impairment rating of 19% whole person impairment (WPI) by the Medical Assessor was not the subject of complaint on appeal.
2. The Medical Assessor made no deduction under s 323 to take account of any pre-existing injury, condition or abnormality and it is this aspect that is the subject of complaint on appeal.
3. The Medical Assessor stated that a deduction was not applicable and gave reasons as follows:

"In my opinion there is no deduction for pre-existing condition noting that Mr Bennell has worked for Willoughby City Council since 1997 and that the work could be very heavy at times. The nature and conditions of his employment would be regarded as either the cause of his present problems or the main contributing factor to the development of his disc protrusion. In addition, I have been given a deemed date which covers the whole period of his employment."

1. The Appeal Panel notes that the reasons for not making a deduction are clear and cogent and adequately expressed.
2. The Medical Assessor made brief comments on the other medical opinions, which shows he was clearly cognisant of the IME opinions before him which had made a deduction, as follows:

"I note the reports of Dr D Millons (surgeon) of 27 July 2023 and finding restricted range of right shoulder movement which I did not find today, and suggesting an absent right triceps reflex and diminished sensation in the ulnar three digits.

He placed Mr Bennell in DRE Category III of his cervical spine with 16% WPI, and added an additional 3% for radiculopathy, giving a total of 19% WPI. I have agreed with this figure. He then made a deduction of one-tenth leaving Mr Bennell with 17% WPI. I did not make a deduction for the reasons given above. He then added an additional 2% for restriction of shoulder movement and an additional 1% for scarring, giving a final figure of 20% WPI.

As noted Mr Bennell did have a full range of right shoulder movement today and in my opinion his scar was well healed, and I have therefore not suggested any impairments for these body parts.

There is a report of Dr R Powell of 17 April 2024 noting the excellent result following the surgery, and not finding any evidence of radiculopathy and placing Mr Bennell in DRE Category III with 15% WPI and an additional 1% for ADLs, giving a total of 16% WPI. He has made a one-tenth deduction, leaving Mr Bennell with 14% WPI. Once again I have not made any deduction. He has not suggesting any impairment for scarring."

1. A deduction under s 323 can only be made if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. The Medical Assessor found no such contribution for the reasons he gave.
2. The MAC must be read as a whole. The Medical Assessor was clearly cognisant that the IMEs, qualified on behalf of each party, had made a deduction. Having explained his reasons for not making a deduction in a clear and cogent way, the Appeal Panel considers that the reasons given were adequate and open to the Medical Assessor in the exercise of his clinical judgment. Making no deduction under s 323 is consistent with the available evidence for the reasons given by the Medical Assessor and the Appeal Panel can discern no error.
3. For these reasons, the Appeal Panel has determined that the MAC issued on 9 July 2025 should be confirmed.