WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of the lumbar spine and right lower extremity; whether the Medical Assessor (MA) failed to properly assess the worker's activities of daily living having regard to the available evidence; whether the MA failed to correctly apply section 323 to the assessment of the lumbar spine and right knee; Held - MA erred in failing to correctly apply the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th ed (Guidelines) in assessing ADL; in the alternative, failed to reconcile the inconsistency between contemporaneous evidence and self-reported impact on ADL at the time of examination; no error in application of a section 323 deduction of one-tenth in respect of the lumbar spine or right knee; error in methodology in combining the "additional amount" of DRE modifiers under Table 4.2 of the Guidelines to assess DRE impairment to arrive at a total whole person impairment for the lumbar spine; MAC revoked.

1. On 12 September 2025, the appellant employer, Adecco Industrial Pty Ltd, lodged an Application to Appeal Against the Decision of Medical Assessor. The medical dispute was assessed by Dr Farhan Shahzad, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 August 2025.
2. On 3 October 2025, the respondent worker, Asela Tanuvasa lodged a Notice of Opposition Appeal Against Decision of Medical Assessor.
3. 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.
4. The delegate was satisfied that, on the face of the application, at least one ground of appeal had been made out. Accordingly, the matter was referred to the Appeal Panel.
5. 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.
6. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Guidelines), 4th ed 1 March 2021 and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA Guides).

1. On 8 June 2016, the respondent worker was employed as a machine operator when he sustained an injury to his right knee and lumbar spine. He was descending from a loading machine when his left leg was caught on some overhanging wires on the machine. The respondent fell forwards heavily down five stairs, resulting in an injury to multiple body parts including the right knee and lumbar spine.
2. In early 2025, the respondent lodged an Application to Resolve a Dispute seeking lump sum compensation in respect of the injury.
3. On 2 June 2025, Member Isaksen issued a Certificate of Determination - Consent Order. The member remitted the matter to the President for referral to a Medical Assessor for assessment of the respondent's impairment to his lumbar spine, right lower extremity (knee) and scarring (TEMSKI) in relation to injury on 8 June 2016.
4. The matter was referred to Dr Shahzad, Medical Assessor, for assessment of whole person impairment (WPI) of the respondent's lumbar spine, right knee and scarring.
5. On 30 July 2025, the Medical Assessor examined the respondent. The Medical Assessor assessed the respondent to have a WPI of 26%, comprising of 16% in respect of the lumbar spine (inclusive of a "2%" deduction), 9% in respect of the right knee (inclusive of a "1%" deduction) and 2% in respect of scarring (TEMSKI).

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
2. As a result of that preliminary review the Appeal Panel determined that, despite errors corrected below, the available medical evidence was sufficient for the matter to be dealt with 'on the papers' without requiring the respondent worker to undergo a further medical examination. However, the Panel considered it necessary, having found error in respect of the lumbar spine, to seek submissions on the Medical Assessor's methodology in combining the assessed DRE impairment category figure and the assessed impairment for persisting radiculopathy following surgery and second surgery to arrive at a WPI figure for the lumbar spine.
3. The Appeal Panel issued a direction seeking submissions. The appellant sought clarification on the request for submissions and an extension of time to provide submissions. Further clarification was provided and the timetable for submissions was extended, for submissions to be lodged by the appellant by 2 December 2025 and the respondent by 9 December 2025. Submissions were lodged in accordance with the timetable and have been recorded 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. 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 in detail by the Appeal Panel.

1. The appellant provides broad submissions on appeal grounds of incorrect criteria and/or demonstrable error under s 327(3) of the 1998 Act. The appellant seeks a revocation of the MAC but does not seek that the respondent is re-examined.
2. The appellant submits that the MAC contains a demonstrable error in that:

(a) the Medical Assessor failed to take a complete and accurate history of the respondent's activities of daily living (ADL) and did not reconcile the inconsistency between the respondent's self-reported ADL difficulties during the examination and the contemporaneous account of the treating doctors, and

(b) the Medical Assessor failed to engage with material that demonstrated longstanding non-work factors and pre-existing pathology (lumbar degeneration; ACL/degenerative knee; obesity/weight) before defaulting to one-tenth deductions and has failed to provide any or any adequate reasons as to why a deduction greater than one-tenth was not applied in light of evidence to the contrary.

1. The appellant also submits that the Medical Assessor's assessment was made on the basis of incorrect criteria in that:

(a) the Medical Assessor treated the statutory one-tenth assumption in s 323(2) of the 1998 Act as the operative criterion, rather than applying it only where the extent of the deduction is too difficult or costly to determine. This was contrary to the proper construction of s 323(2), particularly given the medical evidence available, and

(b) the Medical Assessor misapplied the Guidelines. Under the Guidelines, an ADL component of 3% is reserved for cases where personal care (dressing, washing, toileting, shaving) is affected. In this case, the Medical Assessor elevated the lumbar DRE base rating to 13% on the basis of ADL limitations, yet Dr Thornley recorded that the worker was independent in all ADL and assisted with cooking, cleaning, shopping and driving. This evidence demonstrates that the threshold for an ADL-based uplift was not met, meaning the 13% base (and therefore the total 16% lumbar figure) was wrongly elevated.

1. The respondent opposes the appeal and submits that the alleged errors are unpersuasive and incapable of affecting the result of the assessment.
2. The respondent sets out the relevant aspects of the MAC relating to the alleged errors.
3. The respondent submits that the appellant does not argue that he is not DRE III, but rather that he should not be assessed at the higher end of the range 10-13%.
4. The respondent refers to Table 15-3 of the AMA Guides, which sets out the criteria for assessment of ADL in assessing impairment of an injury to the spine. The respondent submits that the only basis on which the appellant argues against the ADL component is on the basis that an endocrinologist, someone entirely unequipped to assess lumbar spine injuries, took a different history.
5. In respect of the deduction under s 323 of the 1998 Act, the respondent refers to cl 1.6(b) and cl 1.38 of the Guidelines. The respondent submits that there is nothing to suggest the Medical Assessor did not exercise his clinical judgment in determining the deduction. The Medical Assessor took account of the previous conditions and made a deduction.
6. The respondent submits that the appellant has failed to identify any available evidence that is at odds with the 1/10th deduction, and this is fatal to the appeal. The respondent further asserts that the appellant has failed to provide any persuasive or probative evidence or reasons why any more than a 1/10th deduction ought to be made and, if so, what the deduction ought to be.
7. The respondent submits that the appeal should be dismissed and MAC confirmed.

1. In response to the direction issued, the appellant submits that the Medical Assessor combined or added each of the modifiers that he assessed under Table 4.2 of the Guidelines one at a time to the DRE rating. The appellant submits that the modifiers of 3% for residual symptoms of radiculopathy following surgery and 2% for the second operation ought to have been combined first in accordance with the Combined Values Chart at page 604 of the AMA Guides and then combined with the base WPI assessed for the lumbar spine. The appellant submits this approach would have resulted in a total WPI rating of 17%, and not 18% WPI, prior to any s 323 deduction being applied.

1. In response to the direction issued and the appellant's submissions, the respondent submits that cl 4.37 of the Guidelines does not dictate that impairments must be combined first in accordance with the Combined Values Chart prior to adding them to the DRE WPI. The respondent submits that this is to be contrasted with other parts of the Guidelines or AMA Guides where the reader is specifically directed to combine different impairments with the Combined Values Chart. Rather, cl 4.37 simply says there are "additional ratings" which should be combined with the DRE rating and this is the "appropriate additional amount" to be combined with the DRE WPI determined.
2. The respondent submits that the Medical Assessor was correct to add 3% to 13% and then 2% to 16%, to total 18% WPI, and that this is the correct approach when using the Combined Values Chart. However, if the Personal Injury Commission (Commission) disagrees, the respondent submits that he "accepts that 17% is the correct WPI figure".

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,[1] 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 judgment.
3. The meaning of "incorrect criteria" under s 327(3)(c) of the 1998 Act was considered by the Court of Appeal in Pitsonis v Registrar of the Workers Compensation Commission,[2] where the Court said:

"The expression 'incorrect criteria' is undefined in the Act. In Campbelltown City Council v Vegan [ 2004] NSWSC 1129, Wood CJ at CL referred (at [58]) to a statement in the minister's Second Reading speech to the effect that s327(3)(c) was designed to cover circumstances where the Guides themselves had been incorrectly applied. His Honour observed (at [59]) that this tended to suggest that the 'criteria' upon which assessment is to be based are to be found in any relevant guides including guides issues by WorkCover. At [60] his Honour that this view drew support from the requirement in s322(1) that the assessment is to be made 'in accordance with the WorkCover Guidelines.'

The Chief Judge's decision went on appeal to this Court (Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284). Basten JA, with whose reasons McColl JA agreed said (at 391[95]) that, while it was arguable that factual errors made by an approved medical specialist, as recorded in the Certificate, may be 'demonstrable errors' within s327(3)(d), they would not usually satisfy the 'incorrect criteria' ground. His Honour observed that the latter ground:

'must refer to such matters as the tests set out in the Guidelines, where they are applicable.'

1. The meaning of "demonstrable error" under s 327(3)(d) has also been discussed by appellate courts. The courts have held that "demonstrable error" is a "material error" that is "readily apparent from an examination of the medical assessment certificate" and the material referred to the Medical Assessor.[4] Justice Leeming, in Sydney Trains v Batshon,[5] provided useful commentary on the meaning of "demonstrable error" under s 327(3)(d) of the 1998 Act. His Honour said:

"There is discussion of 'demonstrable error' in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [76]- [87]. The term has given rise to a deal of authority, much of which is summarised in that passage. The error must be 'contained' in the certificate, which is to say 'the error must be apparent in the certificate of the approved medical specialist': Vannini at [78]. While it is sufficient that the error be 'readily apparent from an examination of the medical assessment certificate' (Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39]), that is not a necessary condition. While it is not defined, the error 'must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist': Vannini at [86]."[6]

1. In Queanbeyan Racing Club Ltd v Burton,[7] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. The Appeal Panel has only considered those grounds specifically raised by the appeal.

1. The Medical Assessor prepared a MAC following examination of the respondent.
2. The MAC lists the documentary evidence considered, which includes reference to clinical records, investigation reports, and reports of Dr Lee, Dr Thornley, and Dr Walker.
3. The Medical Assessor records the respondent's history, under the heading "History relating to the injury" in the MAC. The Medical Assessor records details of previous or subsequent accidents, injuries or conditions. In this regard the Medical Assessor records a history of the respondent's right knee injury in 2012 while playing touch football. He also records that in 2015 the respondent developed lower back pain that worsened by "persistent coughing during an episode of influenza" but that the pain resolved "following a cortisone injection, allowing him to resume his regular work duties".
4. The Medical Assessor further records the respondent's general health and notes that his back and right knee were "in good condition" prior to the workplace injury.
5. The Medical Assessor records the respondent's "Social activities/ADL", where he comments that the respondent "[h]as four children. He has difficulty with personal care, domestic chores and gardening relying on support." He adds that the respondent "...previously led an active lifestyle, frequently participating in family outings, recreational activities, and regular gym sessions."
6. The Medical Assessor refers to the extensive radiological evidence in relation to the spine and bilateral knees and provides a summary of the findings of those investigations.
7. The Medical Assessor provides a summary of the injuries and diagnoses in relation to the right knee and lumbar spine, which is not the subject of dispute.
8. Under the heading "Evaluation of Permanent Impairment", the Medical Assessor records:

(a) "Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?

(b) "If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.

1. Under the heading "Reasons for assessment" in the MAC, the Medical Assessor provides his opinion and assessment of the respondent's WPI.
2. In respect of the lumbar spine, the Medical Assessor records that the respondent "fits the criteria for DRE Lumbar Category III of between a 10% and 13% whole person impairment with clinical history and examination findings compatible with a lumbar spine injury." He assessed the respondent at "13% whole person impairment, due to limitations personal care, domestic chores, gardening and recreational activities". He adds that the respondent shows "significant signs of radiculopathy on clinical examination" and states:

"Due to the persistent radiculopathy post-surgery present on clinical examination, an additional 3% WPI has been assigned as per Table 4.2, Part 4 of the NSW GEPI 4th Edition. This results in a WPI of 16% for the lumbar spine. The second operation elicits a further 2% WPI. Therefore, he has 18% WPI."

1. The Medical Assessor acknowledged pre-existing degeneration in the lumbar spine and stated:

"As per Part I of the NSW Guides to the evaluation of Permanent Impairment 4th Edition, paragraphs 1.27 and 1.28, for the injury being assessed, the deduction is 1/10th of the assessed impairment, and therefore 2% is deducted. He therefore has 16% WPI."

1. In respect of the right knee, the Medical Assessor assessed the respondent's impairment using Table 17-33 of the AMA Guides. The Medical Assessor records that the respondent had "tibial osteotomy i.e., 10% WPI." The Medical Assessor considered it appropriate that a deduction be applied to that assessment given the existence of a "[p]revious ACL injury" to the right knee. He stated:

"As per Part I of the NSW Guides to the evaluation of Permanent Impairment 4th Edition, paragraphs 1.27 and 1.28, for the injury being assessed, the deduction is 1/10th of the assessed impairment, and therefore 1% is deducted. He therefore has 9% WPI."

1. Applying the Combined Values Chart under the AMA Guides of all WPI assessments (inclusive of s 323 deductions), the Medical Assessor found a combined total of 26% WPI.

1. The appellant asserts error based on incorrect criteria and demonstrable error in respect of the Medical Assessor's assessment of impairment for effect of the injury on the respondent's ADL. Although, the Appeal Panel observe that the appellant does not specify the appropriate figure for assessment of ADL having regard to the evidence.
2. There is no apparent dispute that the respondent meets DRE Lumbar Category III, as the respondent submits, and/or that the assessed impairment figures for residual radiculopathy following surgery and a second operation are correct.
3. Table 15-3 of the AMA Guides provides the criteria for assessment of each DRE Lumbar Category. Each category includes a range to account for the resolution or continuation of symptoms and their impact on the ability to perform ADL, except for DRE Lumbar Category I. DRE Lumbar Category III provides a WPI ranging between 10% and 13% depending on the impact of the injury on activities of daily living.
4. The Guidelines provide that within the impairment range for DREs II-V a figure of 0%-3% may be assessed for the effect of the injury on ADL. It provides that ADL is "not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports."[8] The Guidelines further provide that assessment of ADL should be "added to the bottom of the appropriate impairment range" and that it should only be added "if there is a difference in activity level as recorded and compared to the worker's status prior to the injury".[9]
5. Clause 4.34 of the Guidelines provides a diagram of the three ADL categories, namely, "Yard/Garden Sport/Recreation - 1%", "Home Care - 2%" and "Self Care - 3%". Clause 4.35 of the Guidelines provide for how the categories are to be interpreted by reference to examples, as follows:

• 3% WPI if the worker's capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected

• 2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances

• 1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc."

1. The Medical Assessor explained his pathway of reasoning to arrive at an impairment figure of 13% for DRE Lumbar Category III, including an evaluation of impact of ADL. The Medical Assessor explained that the respondent had 13% WPI due to limitations in respect of personal care, domestic chores, gardening and recreational activities. Having regard to the AMA Guides and Guidelines set out above, which provide that ADL are to be added to the base DRE III impairment, it is apparent that the Medical Assessor assessed 10% for the baseline and 3% for ADL in respect of the lumbar spine.
2. The Appeal Panel accept that there is an inconsistency between the reported history of ADL recorded in the MAC and that recorded by Dr Thornley, endocrinologist qualified by the appellant. In this regard, the Appeal Panel note that the MAC records the respondent at the time of examination on 30 July 2025 had limitations or difficulty with personal care, domestic chores and gardening relying on support. The MAC also records that the respondent previously led an active lifestyle in respect of social and recreational activities prior to the injury. However, Dr Thornley records the respondent at the time of examination on 19 February 2025 (five months prior to the Medical Assessor examination) that he was "independent in activities of daily living" and that he was "able to assist his wife with cooking, cleaning, shopping and driving". He notes that the respondent's social life had been "significantly curtailed" since the injury and that he had not worked since. The Appeal Panel observe that the history recorded by Dr Thornley and the Medical Assessor is not entirely inconsistent, in that both record similar limitations in ADL as a result of the injury, but the extent of those limitations is varied.
3. The Appeal Panel also observe that the parties did not specifically refer to any other evidence on ADL apart from Dr Thornley, presumably because there was no other contemporaneous evidence to the Medical Assessor's examination. In this regard, the Appeal Panel note that the most recent statement of the respondent is dated 20 January 2023, the respondent's independent medical expert report of Dr Lee is dated in June 2022 and the respondent's independent medical expert report of Dr Smith is dated in September 2022.
4. To the extent the appellant seeks to submit that the Medical Assessor erred in assessing 3% ("Self Care") for impact on ADL, in submitting that the ADL base uplift was not met and wrongly elevated, the Appeal Panel accept that there was an error.
5. The Guidelines provide guidance in determining the appropriate ADL figure which should be added to the bottom of the impairment range for the assessed DRE Category, where there is a difference in activity level as recorded and compared to the respondent's status prior to injury. The Guidelines provide some guidance using examples of limitations or restrictions to assist the relevant medical assessor to identify the appropriate ADL assessment or category. The assessed category of "Self Care" is to be applied where a worker's capacity to undertake personal care activities (dressing, washing, toileting, shaving) has been affected.[10] The Appeal Panel find that the respondent does not meet this category on the available evidence.
6. An assessed and/or self-reported difficulty (or limitation) with personal care falls in the ADL category of "Home Care", where a worker can manage personal care but has restrictions (or limitations or difficulty). A difficulty (or limitation) with personal care does not mean that the respondent does not have capacity to undertake personal care activities such as dressing, washing, toileting and shaving under the ADL category of "Self Care". In other words, it does not equate to a worker's capacity to "undertake personal care activities such as dressing, washing, toileting and shaving..." being affected such that it cannot be self-managed. The evidence of Dr Thornley and the history taken by the Medical Assessor indicate that the respondent is able to undertake personal care activities with support or assistance. On this basis, the Appeal Panel agree with the appellant that the Medical Assessor erred in failing to correctly apply the Guidelines in assessing that the respondent fell within the category of "Self Care".
7. If the Appeal Panel is wrong in this interpretation, it nonetheless considers that the Medical Assessor erred. That is, the Medical Assessor erred in not reconciling the inconsistency between the respondent's self-reported ADL difficulties during examination and the most contemporaneous evidence on ADL that suggested the respondent fell within the ADL category of "Home Care".
8. The evidence of Dr Thornley, in his report dated 24 February 2025 (arising from examination on 19 February 2025), was the most contemporaneous to the Medical Assessor's examination of the respondent, on 30 July 2025. While Dr Thornley is an endocrinologist and does not specialise in the spine, this does not give the Appeal Panel cause to give less weight to the objective and contemporaneous history he recorded in respect of ADL. This was the most contemporaneous evidence of the impact of ADL to the Medical Assessor's examination (and by two to three years). In these circumstances, it was incumbent on the Medical Assessor to reconcile the inconsistency in self-reported impact on ADL and the history recorded in the report of Dr Thornley. This did not occur and was inconsistent with the Guidelines.[11]
9. The Appeal Panel also observe that the Medical Assessor did not explain why his assessment of effects on ADL varied from the independent medical experts qualified by both parties. Namely, Dr Yuk Kai Lee, orthopaedic surgeon qualified by the respondent, who in June 2022 assessed 2% in respect of ADL and Dr Anthony Smith, orthopaedic surgeon qualified by the appellant, who in May 2022 did not consider there was any work-related interference with ADL.
10. The Appeal Panel does not consider the appellant has demonstrated how or that the Medical Assessor has failed to take a complete and accurate history of the respondent's ADL. However, the Appeal Panel considers that the Medical Assessor has not used his best clinical judgment in assessing impairment as his reasons do not support the ADL category identified. The Appeal Panel also consider that it was necessary for the Medical Assessor to explain or reconcile the inconsistency between the self-reported impacts on ADL at the time of examination and that reported by Dr Thornley (the most contemporaneous medical evidence to the Medical Assessor examination). This was an error.
11. The MAC records that the respondent reported difficulty with ADL. The MAC records that the respondent:

(a) "[h]as four children. He has difficulty with personal care, domestic chores and gardening relying on support", and

(b) "...previously led an active lifestyle, frequently participating in family outings, recreational activities, and regular gym sessions."

1. The respondent's statement details the effects that the injury had on his ability to undertake activities of daily living. In this regard, the Appeal Panel note:

(a) in the respondent's statement, dated 23 November 2020, he records that:

(i) prior to the injury "the overall condition of [his] back was very good" and he was not suffering from any "pain or problems" until the injury, and

(ii) that he continues to suffer from symptoms, including, "[s]evere back pain radiating through the right leg and into the foot", chronic back pain, difficulty standing or walking or sitting for long periods, unable to participate in previous sporting and recreational activities, loss of agility and mobility.

(b) in the respondent's statement, dated 20 January 2023, he records that:

(i) he still suffers from "chronic back pain", and

(ii) he experiences "radiating pain that shoots from [his] back down [his] right leg on a daily basis".

1. The Appeal Panel note the medical evidence on ADL. In particular, the Appeal Panel note the evidence of Dr Lee who in June 2022 records the respondent meets DRE III with an impairment of 10% and adds 2% for ADL as he "cannot manage yard/garden/sports/recreation and cannot do housework". This is not inconsistent with the history recorded by Dr Thornley in his report of 24 February 2025, that the respondent "is independent in all activities of daily living" but his social life had been significantly curtailed. It is also not inconsistent with the evidence of Dr Smith.
2. The Appeal Panel accept that the evidence demonstrates that there is a difference in the level of the respondent's activity when compared to his status prior to the injury. In this regard, the evidence demonstrates that the respondent has difficulty with managing personal care and unable to manage domestic chores and gardening, However, the evidence does not support he is incapable of undertaking such activities with support. The evidence also demonstrates that the respondent is unable to participate in previous sporting and recreational activities.
3. Having regard to the available evidence, the Appeal Panel consider that the respondent meets the ADL category of "Home Care" for interference in activities of daily living which represents a 2% impairment rating.
4. In the circumstances, the Appeal Panel consider it was not open to the Medical Assessor to conclude that the respondent had an assessment of 13% for lumbar spine DRE III inclusive of the effect of the injury on the respondent's activities of daily living.
5. It follows that appellant has established error on the basis of assessment of ADL.

1. The appellant asserts an error on the basis of incorrect criteria and a demonstrable error in relation to the deduction applied under s 323 of the 1998 Act in respect to the assessment of the lumbar spine and right knee.
2. Section 323 of the 1998 Act provides:

"323 Deduction for previous injury or pre-existing condition or abnormality

(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. In Ryder v Sundance Bakehouse,[12] Justice Campbell J said:

"What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great."[13]

1. It is well established that the application of s 323 requires three separate enquiries.[14] In Southwell v Qantas Airways Limited,[15] Justice Wright, following consideration and application of Cole v Wenaline Pty Ltd,[16] said:

"Thus, it has been held, in cases such as Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 at [126] (Schmidt J) and Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334 at [52] (Griffiths AJ), that what must be determined under s 323 involves, at least three enquiries:

• Firstly, what the extent of the resulting impairment is.
• Secondly, whether the pre-existing condition contributed to the impairment.
• Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition."[17]

1. A pre-existing condition which is asymptomatic before a workplace injury may contribute to a portion of the level of impairment after the workplace injury. Where this arises a deduction under s 323 of the 1998 Act is required.[18]
2. Paragraph 1.6(a) of the Guidelines provides that: "[a]ssessing permanent impairment involves clinical assessment of the claimant as they present on the day of the assessment taking into account the claimant's relevant medical history and all available relevant medical information ..."
3. Paragraphs 1.27 - 1.28 of the Guidelines provides that:

"The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.

In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as 'the deductible proportion' and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence."

1. The appellant's submissions in respect of the deduction applied under s 323 of the 1998 Act is founded on the following broad bases:

(a) the Medical Assessor treated the statutory one-tenth assumption as the operative criterion, rather than applying it only where the extent of the deduction is too difficult or costly to determine;

(b) the Medical Assessor failed to engage with material that demonstrated longstanding non-work factors and pre-existing pathology (lumbar degeneration; ACL/degenerative knee; obesity/weight) before defaulting to the one-tenth deduction, and

(c) the Medical Assessor failed to provide any or any adequate reasons as to why a deduction greater than one-tenth was not applied in view of evidence to the contrary.

1. The appellant's submissions in respect of the deduction under s 323 of the 1998 Act, fail to explain how the Medical Assessor applied the statutory 1/10th deduction (or assumption) as the operative criterion rather than only applying it where the extent of the deduction was too difficult or costly to determine. The appellant's submissions also fail to identify with any specificity any available evidence that is at odds with a 1/10th deduction or engage with the evidence with any particularity to explain how it supports any alleged error. The appellant's submissions further fail to explain why a greater than a 1/10th deduction was required, and, if so, what deduction.
2. A fair reading of the MAC as a whole demonstrates that the Medical Assessor was acutely aware of and considered the evidence dealing with the respondent's pre-existing conditions, degeneration and his weight. The Medical Assessor referred to and summarised the evidence, which included evidence of the respondent's pre-existing conditions in his lumbar spine and right knee. The Medical Assessor records the history relating to the injury, noting the previous 2012 right knee injury and 2015 lower back pain and his return to work and recreational activities. He refers to the surgical procedures undertaken in respect of the lumbar spine and right knee, each post-dating the injury. He has detailed regard to the radiological investigations and medical reports which note evidence of degeneration (spondylitic change) in the lumbar spine and osteoarthritis and a previous ACL injury in the right knee. The Medical Assessor also records the respondent's BMI and weight of 145kg at the time of examination.
3. The appellant's submissions under this general ground overlap and rise no higher than a contentious assertion that there may be an error in respect of the deduction applied under s 323 of the 1998 Act based on the application of that provision and the evidence available. I will deal with the specific body parts further below.

1. It is not disputed that the respondent had pre-existing conditions, namely:

(a) multi-level spondylosis in the lumbar spine, and

(b) previous anterior cruciate ligament tear and arthritis of the right knee.

1. The Medical Assessor elected to make a 1/10th deduction from the assessed impairment of the lumbar spine and right knee on the basis of the pre-existing conditions, according to the history he took from the respondent and the available medical evidence at the time of examination.
2. The Medical Assessor recorded in the MAC:

(a) that in 2012 while playing touch football the respondent suffered a right knee injury;

(b) that in 2015 the respondent developed lower back pain which resolved following a cortisone injection allowing him to resume his regular work duties;

(c) that the respondent reports that prior to the subject workplace injury he previously led an active lifestyle, participating in family outings, recreational activities and regular gym sessions, and

(d) that the respondent suffered from degeneration of the lumbar spine and had a previous ACL injury of the right knee.

1. The Appeal Panel note the following evidence, that was before the Medical Assessor, in respect of the lumbar spine and right knee:

(a) on 23 January 2015, Dr Michael, general practitioner, records "LBP for 2 weeks with mild radiculopathy" and "mild lumbar spinal tenderness". It notes the respondent is referred for a CT scan;

(b) on 29 January 2015, the CT scan report of the lumbar spine notes "posterocentral protrusion L4/5 causing moderate stenosis";

(c) on 4 February 2015, Dr Ninos Khnania, general practitioner, records the respondent had "[b]ilateral L5 radiculopathy on CT scan" and "clinical left L5 radiculopathy". The respondent was referred for a cortisone injection;

(d) on 14 June 2016, Dr Khnania records the "MRI lumbar spine showed L4/5 disc bulge with right L4 nerve root impingement - flare-up of an existing condition due to a recent work-related injury";

(e) on 19 July 2016, Dr Khnania records long standing ACL tear and "uncertain if old or new injury". Dr Khnania also records "overall has improvement in back and knee pain";

(f) on 2 August 2016, Dr Khnania records "acute flare up on low back pain";

(g) on 12 October 2016, Dr Khnania, records "sig improvement in back pain";

(h) on 25 November 2016, Dr Sekel, appellant's independent medical consultant, records that the respondent had been working 38 hours per week in November 2016 "...either operating production line machines by pressing buttons, or operating a forklift, without any heavy lifting;"[19]

(i) on 21 October 2019, Dr Thompson records a history from the respondent that he had "no problems in the injured areas prior thereto...";

(j) on 25 February 2020, Dr Smith, notes the clinical history and a comparison between the lumbar spine investigations in 2015, 2016 and 2019. Dr Smith notes the lumbar spine CT scan in 2015 was for "...low back pain for two weeks and left-sided leg pain" and that "[p]osterior osteophytes were seen at L4-5, with no disc space reduction height. There was moderate to severe central canal stenosis and bilateral outlet stenosis." He also records that a letter was sent from Dr Walker, treating orthopaedic surgeon, to the treating general practitioner in July 2016 noting that the doctor had seen the respondent previously in 2012 when it was considered that respondent had a deficient ACL but that it had improved "dramatically clinically" so did not need further investigation. It also noted that the respondent had returned to playing football without any issues, following physiotherapy, but that the respondent had not returned to work since the subject workplace injury;

(k) on 18 September 2020, Dr Walker notes that prior to the injury the respondent was playing sports including basketball and touch football and had no pain or giving way (presumably in respect of the right knee). He also records that the respondent previously had a back problem but that this "has now improved". He also notes the respondent had an anterior cruciate ligament tear and residual instability. He adds that in mid-2017 the respondent was 140kg and would need to lose weight before any potential surgery. He notes that he most recently saw the respondent in June 2020 and that he recommended physiotherapy;

(l) on 18 June 2022, Dr Lee records that following the pre-existing injuries in 2012 and 2015, the respondent was able to return to normal duties. However, he now cannot play sports and that he "tries to help" with housework but is not doing any yard work;

(m) on 12 November 2024, Dr McKechnie, treating neurosurgeon, notes a worsening recurrent right leg pain consistent with right L5 radiculopathy, and

(n) on 30 December 2024, Dr McKechnie records that the respondent's back pain resolved following a cortisone injection and that he only took one week off work and then returned to normal work following the 2015 episode of lower back pain.

1. The Appeal Panel consider that the medical evidence does not support any deduction under s 323 of the 1998 Act beyond one-tenth. The evidence supports a history of no clear persisting problems prior to the workplace injury. The last recorded complaint of symptoms of the lumbar spine prior to the injury was in early 2015, approximately 18 months prior to the injury. There is also no clear ongoing complaint of symptoms in the right knee prior to the injury, notwithstanding evidence of an anterior cruciate ligament tear in 2012. The records post-dating the injury relate to the results or effects of the injury on the lumbar spine and right knee.
2. The Appeal Panel has had regard to the independent medio-legal evidence of Dr Lee and Dr Smith, to which the parties only briefly refer to in submissions. Dr Lee in June 2022 applied a "3%" s 323 deduction to his assessment of 10% for the right knee, as a result of the previous ACL injury with probable mild instability and a one-tenth deduction to his assessment of 12% for the lumbar spine as a result of pre-existing degeneration. Dr Smith in May 2022 applied a 50% s 323 deduction to his assessment of the right knee on the basis of a valgus deformity but does not clearly apply any deduction to the assessed impairment of the lumbar spine.
3. While there may be some support for a greater than 10% deduction for the pre-existing conditions having regard to the medico-legal evidence, the Appeal Panel consider caution should be given to the weight to be attached to that evidence. The Appeal Panel consider that Dr Lee failed to have regard to the absence of symptoms or complaint prior to the subject injury when determining the appropriate deductible proportion for the pre-existing conditions. The Appeal Panel also consider that Dr Smith does not adequately address the effects of the accepted injury on the resulting impairment to the lumbar spine and right knee on the basis that he considered there was an aggravation injury that had resolved, despite evidence suggesting the respondent was asymptomatic for approximately 18 months prior to the injury and his symptoms were ongoing post-injury. The Appeal Panel also observe that the s 323 deduction applied by Dr Smith in respect of the right knee was made on a basis which is not the subject of appeal.
4. The Appeal Panel notes the appellant's general submission regarding the respondent's weight. However, it considers that this submission is undeveloped and does not specifically address how the respondent's weight impacts his assessed impairment of the lumbar spine or right knee or how the Medical Assessor failed to address evidence of his weight. The appellant has not specifically referred to any evidence that suggests that the respondent's weight is a pre-existing condition, and, if so, how it contributes to the assessed impairment and why it would require deduction of greater than 1/10th.
5. The appellant submits that Dr Walker maintained that the respondent was overweight and that there was "no doubt" this contributed to ongoing knee symptoms. The appellant refers to the report of Dr Walker dated 13 December 2016 (pg 121 ARD), but this report does not contain this specific commentary. Although, Dr Walker states that a combination of a weight loss program and also physiotherapy would hopefully improve the respondent's symptoms. Dr Walker also notes the respondent was playing sports including basketball and touch football without any difficulties and had no pain or episodes of giving way prior to the injury.
6. The Medical Assessor was acutely aware of the respondent's weight. The Medical Assessor had the benefit of the respondent's past medical records, which addressed the respondent's weight at various periods in time. The Medical Assessor took a history that the respondent was working full-time and undertook an active lifestyle prior to the injury but no longer could play basketball or touch football. The Medical Assessor also recorded the respondent's weight and BMI at the time of examination.
7. It is not disputed that the respondent was reasonably active prior to the accepted injury engaging in recreational sports such as basketball and full-time pre-injury duties when he weighed just under 140kg. The Appeal Panel note the evidence indicates that the respondent weighed 137kg prior to the injury (November 2015) and gained less than 10kgs afterwards (weighing 133kg in March 2017 and 145kg in 2025 at the time of examination by the Medical Assessor). The Appeal Panel does not consider the Medical Assessor was ignorant of the respondent's weight. On the basis of the available evidence, the Appeal Panel also does not consider that the respondent's weight (or its fluctuation since the injury) contributes to the impairment assessed.
8. The Appeal Panel also notes the appellant's submission that by August 2016 the respondent's L4 radiculopathy had resolved but that he had presented with L5 radiculopathy. It is on this basis, together with reference to earlier clinical records in 2015 and 2016 and Dr McKechnie's report of November 2024, that the appellant submits that the lumbar spine injury was not new, but a continuation/aggravation of pre-existing disease. The appellant has not clearly articulated the basis on which this evidence supports a finding of error in the application of a deduction under s 323 of the 1998 Act or otherwise. While these medical records demonstrate the existence of the undisputed pre-existing condition in the lumbar spine they do not address whether that condition contributes to the impairment assessed, and, if so, the extent of any contribution. To the extent the appellant seeks to agitate a dispute as to injury and/or pathology of injury it is not open to do so through a medical appeal process. To the extent the appellant seeks to contend that resulting impairment assessed does not result from the accepted injury or that the deduction applied was inadequate, the error has not been made out on the basis of this submission.
9. Having regard to the available evidence, the Appeal Panel does not accept that the Medical Assessor failed to grapple with the evidence regarding pre-existing conditions, degeneration/osteoarthritis and/or weight issues. To the extent the Medical Assessor failed to have regard to this evidence, the Appeal Panel does not consider it results in a different outcome. In this regard, and for the further reasons set out below, the Appeal Panel accepts the respondent's general submissions that he was not suffering from any (or significant) symptoms due to the pre-existing conditions in the lumbar spine and right knee.
10. In respect of the lumbar spine, the medical evidence supports the respondent had mechanical problems in his lumbar spine without clear evidence of radiculopathy prior to the injury. However, the evidence does not suggest that this condition caused any particular issue prior to the accepted injury. In this regard, the Appeal Panel note the evidence that the respondent had complaint of lower back symptoms and had a cortisone injection in early 2015 but that he returned to his usual activities thereafter without further complaint.
11. In respect of the right knee, the evidence demonstrates that the respondent had an anterior cruciate ligament tear and residual instability to his right knee from the 2012 incident. However, the right knee did not require surgery (until 2017, after the subject injury) and the respondent undertook conservative treatment including physiotherapy to manage his symptoms. The evidence suggests that the 2012 incident did not significantly impact the respondent's ability to work or undertake activities of daily living. The respondent had also returned to full-time work for some time and was engaging in recreational activities such as basketball and touch football prior to the injury.
12. The Appeal Panel does not accept that the Medical Assessor failed to engage with material that demonstrated pre-existing pathology before applying the one-tenth deduction to the resulting impairment in the lumbar spine and right knee. The Appeal Panel also do not accept that the Medical Assessor failed to provide any or any reasonable explanation as to why a 1/10th deduction was applied and why it was too difficult or costly on the basis of the available evidence. The Appeal Panel is satisfied that the Medical Assessor provided an adequate path of reasoning consistent with his statutory requirement. To the extent that the Medical Assessor failed to provide adequate reasons, the Appeal Panel consider that the decision to apply one-tenth deduction to the assessment of the lumbar spine and right knee was not at odds with the available evidence. The Appeal Panel observe that deductions must be based on actual consequences of the pre-existing condition having regard to the available evidence rather than an assumption where for example the evidence is scant or unavailable.[20] The Medical Assessor correctly applied the one-tenth deduction, because the precise extent of the deduction to be applied was difficult to determine.
13. On balance, having regard to the MAC and the medical evidence, the Appeal Panel considers that there is no error in the assessment of a 1/10th deduction under s 323 of the 1998 Act for the lumbar spine or right knee.

1. The Appeal Panel is of the view that the Medical Assessor calculated the impairment for the lumbar spine incorrectly by combining figures inconsistent with the Guidelines, under cl 4.37 Table 4.2.
2. There is acceptance between the parties that the Medical Assessor assessed the respondent in DRE Category III with 13% WPI (inclusive of interference with ADL), to which he added 3% for residual radiculopathy following surgery to give 16% WPI and then added an additional 2% for the second surgery giving a final total of 18% WPI. There is also no dispute as to the individual figures applied for the modifiers for persisting radiculopathy (3%) and a second operation (2%).
3. It is true that the Guidelines do not specifically provide for the modifiers for DRE categories to be combined using the Combine Values Chart in the AMA Guides. However, cl 4.37 of the Guidelines provides that "additional ratings" under Table 4.2 for residual radiculopathy and a second operation "should be combined with the rating determined using the DRE method". It further provides to calculate WPI the Medical Assessor is required to:

(a) select the appropriate DRE category (in this case DRE III 10%-13%);

(b) determine the WPI value within the allowed range according to the impact on the worker's ADL (in this case 3% ADL; therefore, 10% (baseline) + 3% (ADL) to total DRE III 13%), and

(c) combine this value (13%) with the "additional amount" from Table 4.2 (The Appeal Panel consider the "additional amount" to be the total amount for DRE modifiers, which represents 5%. That is, 3% for persisting radiculopathy following surgery plus 2% for the second operation totalling 5% for the "additional amount".).

1. In other words, the correct methodology is to calculate the DRE impairment (13%) and then calculate all the impairments according to Table 4.2 (3% + 2% = 5%) and then combine the two figures (13% + 5%) to arrive at a total WPI. The respondent did not oppose this approach, if the Appeal Panel considered it correct.
2. The Appeal Panel find that the Medical Assessor erred in his reasons and assessment in respect of ADL. The Appeal Panel consider that the respondent's assessment of ADL should be 2% and that this should be added to the 10% base rate of DRE Lumbar Spine Category III to total 12% WPI. The 12% WPI should then be combined with the total additional amount for DRE modifiers under Table 4.2 of 5%, to result in a total of 16% WPI before any deduction under s 323 of the 1998 Act is applied.

1. The Medical Assessor erred in his assessment of the effects of ADL in respect of the lumbar spine, and also in the methodology in arriving at a total WPI for that body part.
2. For the reasons set out above, the Appeal Panel assesses 16% WPI of the lumbar spine. There being no error in respect of the application of s 323 of the 1998 Act, the Appeal Panel adopts the one-tenth deduction applied by the Medical Assessor for the lumbar spine which results in an assessment of 14.4% which is rounded down to 14% WPI. There being no error found or identified in respect of the right knee or scarring the Appeal Panel also adopts the Medical Assessor's assessment of impairment of those body parts.
3. Accordingly, the MAC issued on 15 August 2025 is revoked and a new MAC 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 Tommasino Mastroianni 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] [2006] NSWCA 284.

[2] [2008] NSWCA 88.

[3] Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88, [40]-[42] (per Mason P).

[4] Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324, [77]-[80] (per Gleeson JA); Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, [39] (per Hoeben J); Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88, [49] (per McColl and Bell JJA).

[5] [2021] NSWCA 143, [41]-[42].

[6] Sydney Trains v Batshon [2021] NSWCA 143, [43] (per Leeming J).

[7] [2021] NSWCA 304, [26] (per Basten JA).

[12] [2015] NSWSC 526.

[13] Ryder v Sundance Bakehouse [2015] NSWSC 526, [45] (Campbell J).

[14] Cole v Wenaline Pty Limited [2010] NSWSC 78; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365; Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334; Southwell v Qantas Airways Limited [2024] NSWSC 497.

[15] [2024] NSWSC 497.

[16] [2010] NSWSC 78, [30]-[31] (per Schmidt J).

[17] Southwell v Qantas Airways Limited [2024] NSWSC 497, [50] (per Wright J).

[18] Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254, [43] (per Basten JA).

[19] Dr Sekel's report dated 25 November 2016.

[20] Cole v Wenaline Pty Ltd [2010] NSWSC 78.