DETERMINATION OF APPEAL PANEL	
	
CITATION:	Davistown RSL Club Ltd v Conley [2024] NSWPICMP 332	
		
APPELLANT:	Davistown RSL Club Ltd	
		
RESPONDENT:	Suzanne Mary Conley	
		
Appeal Panel		
		
MEMBER:	Jane Peacock	
		
MEDICAL ASSESSOR:	Drew Dixon	
		
MEDICAL ASSESSOR:	Tomassino Mastroianni	
		
DATE OF DECISION:	27 May 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Appeal by the employer alleging Medical Assessor (MA) failed to exclude impairment from subsequent injury; the overall impairment assessment of the cervical spine is 30% as assessed by the MA and not the subject of complaint on appeal; excluding from the impairment assessment one tenth (3%) to take account of the impairment that results from the further injury in 2014 leaves 27%; this is reasoned on the basis that consistent with the history taken by the MA and consistent with a review of the other evidence before him, the 2009 injury was the index injury from which the worker never recovered fully; surgery was considered as a treatment option after the 2009 injury but not pursued because the worker was reluctant to undertake surgery at that time; she returned to work only ever performing modified duties; remained symptomatic after the 2009 injury; in 2014 after lifting a single tray of glasses she suffered an aggravation of the previous injury; she again returned to work continuing to perform modified duties.; resigned in 2019 and ultimately she came to surgery in 2021; in the Appeal Panel’s view, excluding one tenth from the overall impairment assessment accounts for the degree of any permanent impairment that can be considered to result from the 2014 incident; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 20 November 2023 the employer Davistown RSL Club Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Donald Cawthorne, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 October 2023.
2.	The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
•	the assessment was made on the basis of incorrect criteria.
•	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 (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). 
PRELIMINARY REVIEW
6.	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.
7.	The appellant did not seek that the worker be subject to a re-examination by a Medical Assessor member of the Appeal Panel. The Appeal Panel did not find error for the reasons set below and accordingly had no power to require that the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
EVIDENCE
Documentary evidence
8.	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. 
Medical Assessment Certificate
9.	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. 
SUBMISSIONS 
10.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
FINDINGS AND REASONS 
11.	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. 
12.	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.
13.	The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act): 
Date of injury:	02/02/2009	
Body parts / systems referred:	Cervical spine	
Method of assessment:	Whole Person Impairment”	
14.	The Medical Assessor issued a MAC as follows:
Body Part or system	Date of Injury	Chapter, page and paragraph number in SIRA guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides
	% WPI 	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)	
Cervical spine	02/02/09	paragraphs 4.34, 4.35, 
and 4.37 Table 4.2, p29 4th Edition Guidelines
paragraph	Ch 15.6 Table 15-5, p392 AMA5	30	1/10	27	
Total % WPI (the Combined Table values of all sub-totals)	27	
15.	The employer appealed. 
16.	The appellant submitted that the MAC should be revoked and a fresh Mac be issued which correctly assesses the respondent’s degree of impairment resulting only from the injury on 2 February 2009 as required by the referral for the assessment of permanent impairment.
17.	The appellant noted that the respondent had previously brought proceedings in the former Workers Compensation Commission against the appellant claiming weekly compensation and medical treatment expenses which resolved before Arbitrator Wynard by way of consent orders dated 20 April 2020.. The appellant refers the Appeal Panel to the orders dated 20 April 2020.
18.	The Appeal Panel notes that the consent orders provided for payment by the appellant of weekly compensation and medical expenses. There was a notation that noted the agreement that the insurers of the respondent (GIO for the 2009 injury) and CEM for the 2014 injury) would agree to pay 50% of the weekly compensation and medical expenses claimed. It was agreed that CEM would take the role of lead agent in the management of the claim. 
19.	On 4 January 2003 the worker gave notice of claim to CEM (as lead agent) in respect of lumps sum compensation from injury on 2 February 2009 relying on the report dated 4 January 2023 of Dr Bodel, the independent medical expert (IME) qualified to provide an opinion on the workers behalf and who provided an assessment of whole person impairment (WPI) of 31%.
20.	The appellant relied on a report of Dr Silva dated 9 February 2023 who considered that the workers overall impairment of 28% WPI impairment should be apportioned between two injures (18% to the 2009 incident and 10% to the 2014 incident). 
21.	Proceedings were commended seeking lump sum compensation of 31% WPI as a result of injury on 2 February 2009 pleaded as injury the result of nature and conditions of employment.
22.	The Application to Resolve a Dispute (ARD) also claimed compensation for injury to the right upper extremity. As this was not the subject of Dr Bodel’s assessment, the right upper extremity was not referred just the cervical spine as a result of injury on 2 February 2009. 
23.	In summary, the appellant made submissions in support of their contention that the Medical Assessor had made an assessment on the basis of incorrect criteria and made demonstrable errors which included the following:
(a)	 the Medical Assessor noted the injury to be assessed was an injury to the respondent’s cervical spine on 2 February 2009. However he assessed the workers cervical spine impairment resulting from injuries on 2 February 2009 and 20 October 2014. In doing so he effectively aggregated the workers impairments instead of as directed by the referral only providing an impairment assessment as a result of the injury on 2 February 2009. The medical evidence is that the pathology resulting from the injury on 2 February 2009 and 20 October 2014 was not the same. This is an error readily apparent from an examination of the MAC. 
(b)	The injury assessed by the Medical Assessor is not what was referred for assessment (an injury on 2 February 2009). The Medical Assessor failed to assess the respondent’s WPI which resulted from the injury on 2 February 2009 because what was referred for assessment was injury to the cervical spine on 2 February 2009 not an assessment which included any impairment resulting from the later 2014 injury.
(c)	The correspondence which predated the proceedings being commenced between the parties (workers claim for lump sum compensation dated 13 June 2003 and settlement offer from the appellant dated 13 June 2023)“crystallised the dispute to one concerning the percentage impairment of injury to the respondent’s cervical spine as a result of injury on 2 February 2009”. (
(d)	The Medical Assessor failed to carefully consider the medical evidence before him. The medical evidence is that “the pathology resulting from injury on 2 February 2009 and 20 October 2014 was not the same”. The Medical Assessor erred in failing to address the effect of the respondent’s injury on 20 October 2014 and exclude any impairment resulting from the injury on 20 October 2014 and failing to provide reasons for why he did not deduct same.
(e)	The Medical Assessor has applied incorrect criteria when assessing the respondent degree of impairment by aggregating the impairment resulting from the 2009 and 2014 injuries and then determining he whop person impairment results from the 2009 injury. 
24.	In summary, the worker Suzanne May Conley (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and nor did he make a demonstrable error and the MAC should be confirmed.
25.	The Medical Assessor took a history on examination as follows:
“• 	Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:	 
On 02/02/2009, as part of her normal work duties, Mrs Conley described pulling up a tray of empty glasses on a stacking machine and experiencing acute onset of right hand pins and needles with sharp pain in the neck. She denies having these symptoms previously.
Due to worsening pain symptoms over the next day, she attended her GP and ultimately underwent conservative measures which included physiotherapy and acupuncture and also underwent further imaging.
Based on CT and MRI findings (see below) she was reviewed by Dr Nicholas Little, Spine Surgeon, on 01/04/2009 with options of operative and non-operative interventions discussed. A decision was made for non-operative measures and Mrs Conley went back to work eventually, though the pain did not fully resolve.
Although her duties slowly increased, they were still modified to avoid tasks that exacerbated her pain symptoms.
In 2014, whilst lifting a single tray of glasses out of a dishwasher, Mrs Conley had an acute severe exacerbation of her neck pain and right sided symptoms. Mrs Conley also describes a gradual onset of some left sided pins and needles after approximately 2 weeks.
Mrs Conley underwent further non-operative management and imaging with a referral to initially Dr Nathan Hartin, Spine Surgeon, and then Dr Marc Coughlan, Spine Surgeon. Based on repeat MRI scan (see below) and also worsening pain symptoms and function, Mrs Conley underwent a C4/5 disc replacement and a C5/6 and C6/7 anterior discectomy and fusion under Dr Coughlan at Gosford Private Hospital on 30/03/2021.	
•	Present treatment: 
Mrs Conley has now been discharged from Dr Coughlan’s care and is no longer doing any physiotherapy. 
She takes pain killers continually to manage the pain symptoms in her neck which includes Panadol and Palexia PRN 50mg. She also takes occasional Ibuprofen.
•	Present symptoms:
Mrs Conley describes ongoing symptoms with a sharp zap-like pain felt in and around the lower skull and posterior neck. This can radiate into the right trapezius muscle region. She has ongoing left sided thumb and index finger pins and needles which occur on and off. She states these have settled since surgery although are not normal. She has also noticed significant decrease in her neck range of motion and states she is having difficulty now with driving the car looking certain ways. The pain from her neck radiates into the shoulder although there is thoughts from Mrs Conley that the shoulder is a separate issue with a corticosteroid injection improving her pain and range of motion somewhat.
•	Details of any previous or subsequent accidents, injuries or conditions: 
2014: Re-injury, see above.
•	General health: 
Mrs Conley takes antidepressants and is routinely seen by a Psychologist.
She routinely takes venlafaxine and mirtazapine.
•	Work history including previous work history: 
Mrs Conley has worked previously as a Sheep Farmer in Victoria, a Vegetable Picker, a Restaurant Waitress and in the fencing business, all of which she performed when she was much younger. She has worked at Davistown RSL since 2002.	
•	Social activities/ADL: 
Mrs Conley states that she is having significant issues in regards to some activities at home. She does have her daughter assist in washing her hair although this is thought to be secondary to some pains in her shoulder rather than the neck. She also has some difficulty with shoes and socks due to the bending required.
She has modified her equipment at home so now uses a clothes horse to hang washing as she is unable to perform this on a normal clothes line. She does not put sheets on the bed as she is unable to lift the mattress although she can at times use a vacuum with a long handle.
She does not currently have a garden at her residence.
She can continue to drive although, as previously stated, has difficulty turning her neck which makes checking blind spots and reversing difficult.
Socially, she enjoys spending time with her family.”
26.	The Medical Assessor recorded of his physical examination the following:
“At the commencement of the examination, Mrs Conley was advised that the examination would be conducted with all movements to be within a pain free range. Although some discomfort might be experienced at end range of movement, any discomfort during the examination should be reported immediately and the movement discontinued. All movements were measured using a goniometer and confirmed by repetition, if necessary. A tape measure is used, as required. Only the active range of motion was measured in terms of allowable methodology. Passive range of motion was reserved for clinical and diagnostic reasons.
It was noted that Mrs Conley was extremely tearful and emotional throughout the entire consultation.
In reference to her cervical spine, she has a 3cm transverse scar on the right side of her anterior neck which had some mild tethering of the skin. There was no discoloration. 
Her range of motion of the C-spine was as follows:
Flexion 25°
Extension 10°
Left lateral bend 10°
Right lateral bend 30°
Left rotation 25°
Right rotation 45°
She had grade 5 power in all myotomes (C-5 to T1) and normal sensation subjectively to light touch in all dermatomes (C5-T2).
Her reflexes of biceps were 2+ and symmetrical. Her brachioradialis was 2+ and symmetrical. Her triceps on the left was 2+ and on the right 1+. She was Hoffman sign negative for myelopathy.”
27.	The Appeal Panel notes that there is no complaint on appeal about the findings on physical examination by the Medical Assessor, rather it is the attribution of impairment to injury that is the subject of complaint.
28.	Of the special investigations the Medical Assessor noted as follows:
DATE	INVESTIGATION	RESULTS (Report)	
16/02/2009	CT scan C-spine	The appearance is suggestive of a large right paracentral disc protrusion at C5/C6 compressing the right C7 nerve root and possibly the right C6 nerve root.	
06/03/2009	MRI scan C-spine	Degenerative changes are present. There is a right paracentral disc herniation at the level of C5/C6 with nerve root impingement.	
28/11/2014	MRI scan full spine	Cervical spine: Spondylolitic changes of disc pathology as described. C4/5 focal posterior central disc protrusion impressing the anterior aspect of the spinal cord. C5/6 mild to moderate end plate and bilateral uncovertebral joint arthropathy. Broad based, generalised posterior disc bulge causing moderate central canal stenosis. Uncovertebral joint osteophytes cause mild left foraminal stenosis. C6/7 mild to moderate end plate and bilateral uncovertebral joint arthropathy. Broad based, generalised posterior disc bulge causing mild to moderate centre canal stenosis. Uncovertebral joint osteophytes cause moderate to severe left and moderate right foraminal stenosis.
It was also noted that when compared to the previous CT in 2009, there has been progression of changes at the C4/5, C5/6 and C6/7 levels.	
30/06/2017	CT scan	Degenerative changes are most prominent at C6/7 with moderate left and mild to moderate right foraminal narrowing at this level. This involves the C7 nerve root and should be correlated with clinical assessment.	
20/09/2019	MRI scan	Mild degenerative changes in the cervical spine at C4/C5 and C6/C7 levels. There is no cord/nerve root compression.	
31/07/2020	X-ray cervical spine	There are end plate and facet joint degenerative changes most marked at C5/6 and C7/T1 levels. Facet joint degeneration changes are also seen at C2/3.	
29.	The Medical Assessor summarised the injury and diagnosis as follows:
“Summary of injuries and diagnoses: 
Mrs Conley is a 53 year old lady who sustained an injury to her neck with right arm radicular symptoms on completing duties of her employment. On investigation, a large right sided paracentral disc herniation was noted with nerve root impingement and some early degeneration. Initially managed non-operatively, Mrs Conley’s pain settled although did not resolve and was again exacerbated in 2014 at work whilst lifting a tray of glasses from the dishwasher.
Despite ongoing conservative measures, pain continued and repeat imaging showed progression of degenerative changes within the cervical discs with structural abnormality and she ultimately underwent a C4/5 disc replacement and C5/6, C6/7 anterior cervical discectomy and fusion.”
30.	The Medical Assessor noted that the worker was consistent in her presentation and that the incident described was consistent with the injury suffered:
“There was no inconsistency in regard to the worker’s presentation and clinical findings. The incident described by the worker is also consistent with the injury that has been suffered.”
31.	He considered that the worker suffered a pre-existing condition or abnormality that needed to be taken into account under s 323 as follows:
“Pre-existing degenerative changes within the C-spine”
32.	The Medical Assessor noted that in making his assessment of whole person impairment he had taken into account the following:
“A thorough history, a comprehensive physical examination, a review of the documentation made available by the Personal Injury Commission with reference to the SIRA Guidelines (2021) and AMA-5.”
33.	The Medical Assessor reiterated that in making his assessment of 27% WPI he had taken into account the following:
“The history, examination and imaging discussed above in combination with all supplied documentation.”
34.	The Medical Assessor explained his assessment of permanent impairment as follows:
“Cervical spine: DRE Category IV, spinal fusion surgery equals 25% WPI Table 15-5, p392 AMA5. Modifiers for DRE category: Residual symptoms cervical spine: 3%. Second and further levels cervical spine: 1% each (equals 2%) (paragraph 4.37 Table 4.2, p29 4th Edition Guidelines). ADLs as per paragraphs 4.34 and 4.35, 4th Edition Guidelines: Restricted with usual household tasks: 2%.
WPI for DRE IV for spinal surgery equals 25% + 2% for restriction with household tasks equals 27%. 27% combined with 3% for residual symptoms equals 29%. 29% combined with 2% for ‘second and further levels’ equals 30%. (AMA5 Combined Values Chart p604)
Deduction of one tenth for pre-existing disease: 30% x 1/10th equals 3%.
Therefore, WPI is 30% - 3% which equals 27% WPI.”
35.	There is no complaint on appeal about the overall figure assessed for permanent impairment of 30% WPI, rather it is the attribution of the impairment found to injury on 2 February 2009 being the referred date of injury, noting that further injury had taken place in 2014 which was not part of the referral. 
36.	The Medical Assessor made brief comment on the other medical evidence Including differing medical opinion as follows: 
“The overall WPI determined (27%) is similar to that chosen by Dr Bodel in his report from 04/01/2023 (31%). However, I have added a deduction of one tenth for pre-existing disease noted on scans at the time of the injury. 
It also aligns closely with Dr Silva’s report on 09/02/2023 (28%) although a slight difference in calculation involves the addition of residual symptoms and deduction for pre-existing disease in my report.”
37.	The Medical Assessor explained further the deduction made under s 323 which took account of the pre-existing condition of the cervical spine prior to the injury on February 2009 as follows:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY 
a.	In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)	Pre-existing degenerative change within the C-spine.
b.	The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)	Pre-existing ‘neck pain over the last couple of years’ documented by Dr Nicholas Little on 01/04/2009 and degenerative changes within the cervical spine noted on CT scan 16/02/2009 and MRI scan 06/09/2009 make the pathology responsible for Mrs Conley’s presentation and condition more likely to occur.
The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth.”
38.	The Appeal Panel notes that there is no complaint on appeal by either party about the one-tenth deduction made by the Medical Assessor to take account of the contribution to the level of permanent impairment assessed of the pre-existing condition of the cervical spine prior to the 2009 injury.
39.	The appellant says that the medical assessor has improperly aggregated the impairments from two separate injuries and this has been done in error as the medical evidence clearly supports two separate pathologies resulting from injury in 2009 and injury in 2014. 
40.	It was the job of the Medical Assessor to reach his own independent assessment as to the degree of permanent impairment as a result of the injury referred to him. He is clearly cognizant of the history. That history can be summarised as an injury in 2009 from which the worker never fully recovered, and surgery was considered as a treatment option but she was reluctant to consider surgery. She returned to work but had persistent symptoms she continued with modified duties. She then suffered what the Medical Assessor has regarded as an aggravation of the initial injury, and again she returned to work. At all times since 2009 it seems she was performing modified duties. She worked on until 2019 when she resigned unable to cope with her duties. Ultimately she came to surgery in 2021. It is this surgery upon which the assessment of WPI has been based properly in accordance with the Workcover Guidelines. It is clear from a reading of the MAC as a whole that the Medical Assessor regarded the impairment suffered as a result of her injury on 2009 as one which resulted in an impairment that is indivisible between the injury in 2009 which he regarded as having been aggravated in 2014. It is clear from the reasoning of the Medical Assessor and it is supported by other medical opinion before him that the index injury in 2009 never resolved, was subject to aggravation in 2014 by the lifting of a single tray of glasses and ultimately resulted in surgery upon which the impairment assessment is based.
41.	Any agreement noted between the different insurers indemnifying the employer as to apportionment of liability cannot bind the Medical Assessor in the discharge of his task to assess the degree of permanent impairment from the injury. It certainly cannot bind him in the proportion agreed to by the insurer. 
42.	It is clear from Dr Bodel reports that are in evidence that he also took the same approach as having assessed an indivisible impairment of 31% WPI.
43.	Dr Silva in his earlier reports also considered that the impairment flowed from the 2009 injury and that the 2014 injury was an aggravation of the first injury assessing an overall impairment of 28% WPI.
44.	In Dr Silva’s report of 2023 he considered that he was bound by a determination of the Workers Compensation Commission that there were two separate injuries and he apportioned 18% WPI to the 2009 injury and 10% WPI to the 2014 injury. The Appeal Panel notes that there was no such binding determination of theWorkers Compensation  Commission. The Appeal Panel also notes that Dr Silva does not refer to separate pathologies from the two injuries but simply makes an apportionment of impairment.
45.	The Medical Assessor did not in the exercise of his clinical judgment apportion liability impairment to the incident in 2014 although he was aware of it having characterised it as an aggravation of the original injury and clearly having considered that the 2009 injury was the index injury which resulted in an indivisible impairment based on the surgery performed in 2021. 
46.	The Medical Assessor has taken the contribution to the level or permanent impairment assessed of the condition of the cervical spine which pre-existed the 2009 injury into account by making a deduction under s 323 of one-tenth and there seems to be no complaint on appeal about this deduction under 323 for a pre-existing condition. 
47.	When assessing impairment from a subsequent injury it is not a deduction under s 323 which deal with pre-existing injury, abnormality or condition. Rather the Medical Assessor is required to exclude from the impairment assessment the impairment that results from the subsequent injury. The complaint is that the Medical Assessor did not exclude any impairment flowing from the 2014 injury. 
48.	The Appeal Panel considers that the impairment resulting from the incident in 2014 should be excluded from the impairment assessment such that one-tenth of the overall impairment of assessment should be attributable to the incident in 2014.
49.	The overall impairment assessment of the cervical spine is 30% as assessed by the Medical Assessor and not the subject of complaint on appeal. Excluding from the impairment assessment one-tenth (3%) to take account of the impairment that results from the further injury in 2014 leaves 27%. This is reasoned on the basis that consistent with the history taken by the Medical Assessor and consistent with a review of the other evidence before him, the 2009 injury was the index injury from which the worker never recovered fully. Surgery was considered as a treatment option after the 2009 injury but not pursued because the worker was reluctant to undertake surgery at that time. She returned to work only ever performing modified duties. She remained symptomatic after the 2009 injury. In 2014 after lifting a single tray of glasses she suffered an aggravation of the previous injury. She again returned to work continuing to perform modified duties. She resigned in 2019 and ultimately she came to surgery in 2021. In the Appeal Panel’s view excluding one-tenth from the overall impairment assessment accounts for the degree of any permanent impairment that can be considered to result from the 2014 incident. 
50.	The Medical Assessor made a deduction under s 323 to take account of the pre-existing condition of the cervical spine prior to the 2009 injury. The calculations then become calculated as 27% - 2.7 leaves 24.3% giving (after rounding) 24% WPI as a result of injury on 2 February 2009. 
51.	For these reasons, the Appeal Panel has determined that the MAC issued on 25 October 2023 should be revoked. A new Medical Assessment Certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number:	W5513/24	
Applicant:	Suzanne Mary Conley	
Respondent:	Davistown RSL Club Ltd	
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 Donald Cawthorne and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI) 
Body Part or system
	Date of Injury	Chapter, page and paragraph number in WorkCover Guides 	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides
	% WPI 	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)	
1.	2/2/2009	Paragraphs 4.34,4.35 and4.37 Table 4.2, p29	Ch 15.6 Table 15.5 p 392	27	1/10
	24	

Total % WPI (the Combined Table values of all sub-totals)                          
	24%	

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