1. On 15 November 2024, the employer (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Stephenson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 October 2024.
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 sought that the worker undergo a re-examination by a Medical Assessor who was also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.

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

1. Medical Assessor Christopher Oates of the Appeal Panel conducted an examination of the worker on 2 April 2025 and reported to the Appeal Panel.

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

1. Both parties made written submissions. 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 to the Medical Assessor as follows:

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

• Date of injury: 16 March 2021
• Body parts/systems referred: Left lower extremity (knee), lumbar spine, left upper extremity (shoulder).
• Method of assessment: Whole person impairment."

1. The Medical Assessor issued a certificate as follows:

page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

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)

Chapter 16, Page 384, Table 15-3

Chapter 2, Page 10-12

Chapter 15, Page 384, Table 15-3, Page 439, Table 16-3

Chapter 3 lower extremity, Paragraph 3.1 to Table 3.3 Page 19

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

1. The employer appealed.
2. In summary, the appellant submitted that the Medical Assessor made demonstrable errors and/or assessments on the basis of incorrect criteria for reasons which included the following:

(a) the Medical Assessor referred to his clinical findings on examination in respect of the lumbar spine but has not identified what they were;

(b) he has provided inadequate reasoning when making his assessments, and

(c) his examination findings refer to the right knee when it was the left knee that was referred for assessment.

1. The respondent worker Buu Maria Chung (the respondent) submitted that the Medical Assessor did not make demonstrable errors or assessments on the basis of incorrect criteria and the MAC should accordingly be confirmed.
2. 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. 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 worker.
3. The Medical Assessor recorded a history which included a reporting of symptoms as follows:

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

• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: on 16 March 2021, the roof of the warehouse leaked, the rain causing the floors to become wet. She was asked to move goods from the shelves to dry areas. She went to get boxes from the shelves next to buckets of water when she slipped and fell into the shelving on left side injuring her left buttock, left thigh, left leg, left hip and lower back.

On 15 July 2021 because of that original injury, she was unstable. Her left leg gave way and she fell on both her knees heavily sustaining further injury to bilateral knees. On 1 August 2022, her leg gave way again and she fell in the shower. She extended her left wrist injuring left wrist and left shoulder. Treatment, she has seen her GP and there has been physiotherapy.

• Present treatment: She sees her physiotherapy once per month. For pain, she is prescribed Panadol, Endone, Norspan patches and oxycodone as well as Panadol and Voltaren.
• Present symptoms: There is pain plus restricted movement in the three affected regions.
• Details of any previous or subsequent accidents, injuries or condition: I have referred to those above which in my opinion were not significant injuries causing disability as the claimant was able to continue working.
• General health: Said to be satisfactory.
• Work history including previous work history if relevant: Not applicable.
• Social activities/ADL: For avoidance or an assistance with sport, recreation, yard, garden and homecare, I have made a 2% addition to basic lumbar spine impairment value."

1. The Medical Assessor recorded his findings on physical examination as follows:

"Reference AMA5, Page 537, Table 17-10, at the right knee there is a flexion contracture of 7 degrees, which is in the range 5 to 9 degrees gaining 4% WPI for the right knee.

I have noted a full range of motion of the opposite left knee and left shoulder.

Left shoulder reference AMA5, Page 476 to 479 at Figure 16-40 to Figure 16-46, upper extremity impairment convert to whole person impairment at Page 439, Table 16-3.

The 16% upper extremity impairment converts, Page 439, Table 16-3, to 10% WPI.

Reference AMA5, Page 534, Table 15-3, there is a diagnosis related category III, reference also SIRA Guidelines, Page 27, Paragraph 4.27, when sufficient parameters have been achieved in terms of rating. Also reference to Modifier Table, Page 29, Table 4.2, for lumbar spine spinal surgery with residual symptoms and radiculopathy under paragraph 4.27 in the guidelines, the modifier is 3% WPI. Reference Table 15-3, the history and clinical findings are consistent with diagnosis related category III, the baseline is 10% WPI. To that I have added 2% WPI for ADLs, gaining 12% WPI with radiculopathy persisting post injury and there has not been surgery. The combination of 12% with 3% i.e. the basic DRE III plus 3% for the Modifier Table 4.2, Page 29 of the Guidelines, therefore the combination of 12% with 3% gains 15% WPI for the lumbar spine. The combination of 15% WPI lumbar spine, 10% WPI left shoulder and 4% WPI left knee is undertaken. The combination of 15% with 10% with 4% gains 27% WPI. There is no deductible proportion."

1. The Medical Assessor had regard to the special investigations as follows:

"Lumbar spine x-ray. Comment: Minor OA changes both hip joints. Facet joint hypertrophy L5/S1. There is spondylolisthesis of L5 on S1 due to facet joint degenerative change. -

CT lumbar spine. No significant disc bulges from L1/2 to L3/4 and a trivial disc bulge at L4/5 and L5/S1. There is a forward slip of some 3 mm L5 and S1. - Dr Silva, Radiologist.

Left knee. Comment: No features of fracture or joint effusion. - Dr Doull.

Ultrasound left shoulder. Conclusion: Subacromial and subdeltoid bursitis. No rotator cuff tear."

1. The Medical Assessor summarised the injury and diagnosis as follows:

"● summary of injuries and diagnoses: There are sufficient signs of radiculopathy meeting the requirements of SIRA Guidelines Page 27, Paragraph 4.27. There are sufficient signs of radiculopathy affecting the right lower extremity as follows. Definition, Paragraph 4.27: Radiculopathy is the impairment caused by malfunction of the spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be made, one of which must be major (major criteria in bold).

My comment is that the first three modalities are in bold and the findings were as follows:

Left lower extremity all those three reflexes are increased also.

• Muscle weakness anatomically localised to appropriate spinal nerve root distribution.

Power of dorsiflexion right foot and ankle 4/5 compared with left foot and ankle normal at 5/5.

• Reproducible impairment of sensation anatomically localised to appropriate spinal nerve root distribution.

With pinprick testing using Neurotip device, sensation is dull lateral aspect of entire right calf. Clear but sharp at the opposite normal side.

On active straight leg raise right leg at 30 degrees. There is acute pain from lumbar spine to right gluteal. Straight leg raise was normal in opposite left lower extremity at 80 degrees.

Circumference right calf atrophy present at 32.5 cm midcalf compared with left normal side 41.5 cm midcalf.

• Findings on imaging study are consistent with the clinical signs, reference AMA5, Page 382.

There has been injury to lumbar spine with the right lumbar disc sciatica evident. There has been subacromial/subdeltoid bursitis following injury left shoulder. There is flexion contracture of left knee with a loss of extension as a result of 70 degrees which is in the range of 5 to 9 degrees gaining 4% WPI. The combination of 15 with 10 with4 gains 27% WPI.

The presentation is consistent with the history of injury, clinical findings, radiological investigations and the medico-surgical reporting."

1. The Medical Assessor explained his impairment assessment as follows:

"I found a 27% WPI. This is a combination of 15% WPI for lumbar spine with 10% WPI for left shoulder and 4% WPI for left knee.

In making that assessment I have taken account of the following matters:-

Examination findings: These have been listed in the text above.

Investigation findings: These have been listed in the text above.

Matter of history that determine the assessment: There was a slip and fall on a wet floor at work."

1. The Medical Assessor made brief comment on the other opinions that were before him as follows:

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

Dr James Bodel, Orthopaedic, 17 October 2023, referred to knee flexion and extension. He found no extension loss right knee, but in fact I found a flexion contracture of 10 degrees.

Dr James Bodel, Orthopaedic, 17 October 2023, noted that there were no x-rays or other tests available for his report. He considered the claimant's clinical issues were based on the physical injury, was largely a psychological issue associated with the psychological illnesses and her domestic circumstances. My answer: I am unable to comment on psychology matters as it is beyond my expertise.

Dr Robin Diebold, Orthopaedic, 7 May 2024. Dr Robin Diebold considered the condition was an acute injury and not a disease of gradual process. I agree with that contention.

Dr Alexander Woo, diagnosed left shoulder soft tissue injury, left hip labral tear, left wrist de Quervain's tenosynovitis, left knee patellofemoral contusion.

I did not find those diagnoses. For left knee, there was no patellofemoral contusion but there was a flexion contracture. For the left shoulder, he diagnosed soft tissue injury which would be consistent with what I found, subacromial/subdeltoid bursitis. The left hip and the left knee are not referred for this assessment."

1. The Appeal panel notes that the examination findings are recorded in terms of the assessments of impairment as opposed to a clear record of the findings on examination. The MAC is confusing with various errors throughout the MAC. The injury referred was to the left knee but the MAC refers at various points to right knee findings and it is not clear whether or not that is being used as the contralateral limb by comparison. In respect of the lumbar spine, there is a modifier of 3% applied for radiculopathy persisting post-surgery when surgery did not take place.
2. In these circumstances, the Appeal Panel has been satisfied as to error and considered a re-examination to be necessary in the circumstances.
3. In the circumstances of a finding of error the Appeal Panel considered a re-examination of the respondent worker was necessary and appointed Medical Assessor Christopher Oates to undertake the re-examination. Medical Assessor Christopher Oates conducted a re-examination of the respondent worker on 2 April 2025 and reported to the Appeal Panel as follows:

Ms Chung attended Medical Assessor Oates for re-examination on behalf of the Medial Appeal Panel at the PIC Medical Suites on 2/4/2025 as arranged.

An official Vietnamese interpreter (NAATI No. CPN4GS49P) was in attendance for the duration of the assessment.

Brief history of the incident, onset of symptoms and of subsequent related events including treatment

Ms Chung confirmed on 16/3/2021, it was raining and the roof of the warehouse in which she worked was leaking, causing the floors to become wet. She was asked to move boxes of goods from a shelving area to dry areas. As she went to get boxes from the shelves, she slipped on the wet floor and fell against the shelving, contacting the left side of her body including lower back, buttock, hip, thigh and knee area. The shelf then moved and she lost balance, falling to the floor, landing on her buttocks.

It took her some time to get up unassisted, by holding onto nearby objects, and then she walked slowly to the office and reported the injury. She was advised to apply an ice pack. She then said the whole of her left side was sore, so she was told to go and see a doctor.

She saw a GP at a medical centre in Marrickville. She had x-rays and when these were reviewed, she was told she was unfit for work for at least four weeks. She was treated with Panadol and sleeping pills, and sent to physiotherapy with treatment to the left side of her lower back and hip and thigh area.

She rang the employer the next day to tell them what had happened and she was told to not worry about coming back, meaning she was terminated. She did not work anywhere else after this.

After the accident, she received workers compensation benefits for 12 months, after which these were ceased. She then took legal action and after six months benefits were reinstated and they continue. She also accesses a superannuation benefit.

She was not referred to a specialist. She now sees a GP at a medical centre at Earlwood for treatment and continues with medications and physiotherapy.

After the work accident, she remained unsteady with her left leg giving way from weakness in the hip and buttock area, and she has had further falls, one of which caused her to land on her knees on 15/7/2021. A further one caused her to fall in the shower at home when her left thigh muscles gave way on 1/8/2022. She has had further falls since that time.

Ms Chung told me that her main problem is her left lower back and left buttock and hip area, and she also has left shoulder soreness and pain in the left knee. The discomfort is present 24/7.

She can't lift her left arm very well at the shoulder and can't move her left knee too well because it feels like something is pinching inside the knee.

She continues to have falls at times because of weakness in the left proximal thigh (quadriceps) area.

She was attending physiotherapy twice a week but this reduced some time ago to once a fortnight and is paid for by the insurer.

Her current medications are Panadol Osteo, two tablets three times a day, Endone occasionally for severe pain, Somac one daily, temazepam one at night, and Voltaren Gel which she self-prescribed and applies to the lower back, left gluteal area and left shoulder.

Details of any previous or subsequent accidents, injuries or condition

There have been no previous problems with the injured parts, but she has had falls since the accident when the quadriceps muscles of the left proximal thigh area have given way. One fall caused bruising to the left wrist for which she wears a brace, and another fall resulted in bruising to the face when she hit her face on the top of her walking stick as she fell.

This is good and she was previously on no regular medication and has had no serious illnesses or operations.

Work history including previous work history if relevant

She was born in Vietnam and came to Australia in 1979. She came alone then sponsored her mother, father and two younger brothers to Australia.

She is single. She sees her two brothers. She lives alone in a unit.

She did not work in Vietnam. In Australia, she started work immediately and was a process worker in a factory, in a jewellery warehouse, then work in a ceramic tile factory and then in a souvenir factory. She worked for Ahava Australia for many years but can't recall how long. She originally worked for the father and then for the son when the father retired.

As mentioned above, she has not worked since the date of accident.

Before the accident she was busy looking after her elderly mother and father who lived with her. Her mother passed away 20 years ago and her father passed away during the COVID period.

She used to do shopping and walking before the accident. Since the accident she can't go shopping, as she attempted this and fell twice in the shopping centre when she lost balance because of left proximal thigh weakness, so her sister-in-law who lives nearby comes and does her shopping for her. She doesn't drive a car.

Walking is limited to about 20 metres using a stick in her right hand. She can't use it in the left hand because of the wrist injury. She then will stop and wait and then can walk again a further similar distance.

She can manage a couple of steps into her ground floor unit but not a lot of stairs.

She used to do her housework before the accident but is unable to do this now, so her sister-in-law cleans and cooks meals for her and brings them over, and a friend of hers also helps by cooking meals and bringing them to her.

She uses a shower chair because of previous falls in the shower, and has a lot of discomfort when sitting on the toilet in the left lower back area and has to manoeuvre herself up off the toilet with the assistance of her stick.

She generally can dress herself, though wears loose-fitting clothing.

The strata committee look after any outside work at the units. She doesn't have any gardening.

She doesn't take part in any social activities because of a fear of falling when she goes out.

She walked slowly using a rubber-based, broad-based walking stick in the right hand and showed me a brace on the left wrist. She was of small stature with height 147cm and weight 50kg.

There was some tenderness in the left lower lumbar area at L5/S1 and over the left gluteal region. There was no guarding.

Flexion and extension were both one-half normal range. Lateral flexion to the right was one-third normal range and to the left one-half with complaint of left low back discomfort on right lateral flexion. Thoracic rotation was two-thirds of normal bilaterally. Dysmetria was present.

Lower limb reflexes were brisk and symmetrical. Plantar responses were both flexor.

Sensation was partially decreased to light touch and pin prick in the lateral left thigh and left leg to the foot.

Power was symmetrical in the lower extremities, although there was pain inhibition on the left causing give way, however I assessed power in the left lower extremity as intact.

Thigh girth; right 43cm, left 41.5cm at 10cm above the superior patellar pole.

Leg girth; right 32cm, left 31cm at 10cm below the inferior patellar pole (maximal circumference). There is muscle wasting - atrophy of the left lower extremity.

Sitting straight leg raising 80° bilaterally with negative slump test. Supine straight leg raising was 80° bilaterally with complaint of low back and buttock pain on the left, but a negative slump test.

Active range of joint movement was measured with a goniometer.

Ms Chung indicated that the right shoulder was asymptomatic.

There was complaint of left patellar tenderness but no crepitus on patellofemoral compression. There was no patellofemoral tenderness in the right knee. Both knees were stable in anteroposterior and mediolateral directions.

No additional imaging was brought to this examination.

• lumbar spine with clinical findings of left S1 radiculopathy,
• left shoulder
• left knee.

The injuries are stable for assessment of permanent impairment.

Impairment of sensation in an S1 nerve root distribution (major criterion) and muscle atrophy in the left lower extremity (minor criterion) are present, placing her in DRE Lumbar Category III giving a range of 10-13% whole person impairment. I assess 12% whole person impairment as there is interference with moderate to heavy activities, including previous recreational activity and household tasks, but personal care is undertaken independently with adjustments having been made

With respect to the shoulders, on the asymptomatic uninjured right side flexion 130° gives 3% upper extremity impairment (UEI), abduction 150° gives 1%, adduction 30° gives 1% and internal rotation 60° gives 2%. Adding these gives 7% upper extremity impairment.

On the injured left side flexion 100° gives 5% UEI, extension 40° gives 1%, abduction 80° gives 5%, adduction 20° gives 1%, internal rotation 60° gives 2%. Adding these gives 14% upper extremity impairment.

Using the asymptomatic right shoulder as a baseline, 14% minus 7% gives 7% net upper extremity impairment, which is equivalent to 4% whole person impairment.

With respect to the left knee injury, -5° extension gives 10% lower extremity impairment, which is equivalent to 4% whole person impairment.

Combining 12% by 4% by 4% gives 19% whole person impairment using the Combined Values Chart.

There was no evidence of any relevant previous injury or pre-existing condition or abnormality, hence no reason to make a deduction from the assessed permanent impairment."

1. The Appeal Panel considers that Medical Assessor Oates has applied his clinical expertise in conducting a thorough re-examination with detailed physical findings. The Appeal Panel adopts the findings and report of Medical Assessor Oates.
2. This means that the MAC will be revoked and a new MAC issued as follows:

page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

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)

Chapter 16, Page 384, Table 15-3

Chapter 2, Page 10-12

Chapter 15, Page 384, Table 15-3, Page 439, Table 16-3

Chapter 3 lower extremity, Paragraph 3.1 to Table 3.3 Page 19

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

1. For these reasons, the Appeal Panel has determined that the MAC issued on

30 October 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

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

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor John Brian Stephenson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

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)

Chapter 16, Page 384, Table 15-3

Chapter 2, Page 10-12

Chapter 15, Page 384, Table 15-3, Page 439, Table 16-3

Chapter 3 lower extremity, Paragraph 3.1 to Table 3.3 Page 19

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

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.