1. On 8 January 2025, Christine Best (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mary Obele, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on

13 December 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): availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against); * 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. On 26 February 2021, the appellant was performing her normal duties as an Assistant Project Officer with the Department of Communities and Justice (the respondent) when a colleague sprayed their desk with disinfectant, causing the appellant to suffer a sudden burning sensation on her tongue, shortness of breath and light-headedness.
2. Liability for the injury was accepted, and on 1 May 2024, the appellant brought a claim for permanent impairment compensation in respect of a respiratory injury alleged to be in the nature of reactive airway dysfunction syndrome.
3. In response to the claim for permanent impairment compensation, the respondent arranged for a medical assessment by its independent medical examiner (IME) Professor Grainge. Professor Grainge diagnosed laryngeal hypersensitivity, otherwise known as upper airway dysfunction syndrome, and opined the appellant's condition had not reached maximum medical improvement.
4. The appellant then brought these proceedings in the Personal Injury Commission (Commission) seeking permanent impairment compensation. The matter was referred to Medical Assessor Obele. The Medical Assessor was requested to determine whether the appellant's permanent impairment was fully ascertainable, and if so to determine the degree of permanent impairment.
5. On 13 December 2024, the Medical Assessor issued a MAC in which she found the appellant had not reached maximum medical improvement. The appellant appeals from that decision, alleging it was made on the basis of incorrect criteria, and/ or that it contains a demonstrable error.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was no error on the part of the Medical Assessor.

1. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
2. Neither party sought to lead fresh evidence.

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

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

1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
2. In summary, the appellant submits that the Medical Assessor erred in finding the appellant had not reached maximum medical improvement by not evaluating the current level of impairment in circumstances where the appellant has refused to undergo orthodox medical treatment and takes natural medicine only.
3. In reply, the respondent submits that the Medical Assessor made no error, as she was entitled to exercise her clinical judgment in finding maximum medical improvement had not been reached until such time as a clear diagnosis of the appellant's condition was made.

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. In the Appeal Panel's view, for the following reasons the Medical Assessor's finding that the appellant has not reached maximum medical improvement was open to her and properly made.
4. The Medical Assessor did not, as asserted by the appellant, make her finding on the basis of any refusal by the appellant to undertake orthodox medical treatment. Rather, the Medical Assessor's exercised her clinical judgment in finding there was no firm diagnosis of the appellant's respiratory condition.
5. The Medical Assessor made the following clinical findings at page 6 of the MAC:

"Because there is no objective evidence of airways dysfunction, I do not agree with

Dr Wijetunga, Occupational Physician's report noting an aggravation of asthma,

Dr Dimitri 19 April 2024 report noting reactive airways dysfunction, or Dr John Criticos and Dr Nicholas Gazy, 6 June 2023 reports noting "chemical sensitivity".

It is possible that Professor Grainge's diagnosis of upper airways dysfunction syndrome or laryngeal hypersensitivity is correct, although in the absence of a ENT specialist and Speech Therapist review, laryngoscopy / endoscopy, provocation testing, laryngeal EMG, action potentials, it is not possible to confirm this diagnosis. I consider that the diagnosis has not been clarified and further treatment could possibly be required." (emphasis added)

1. Contrary to the appellant's submissions, the Medical Assessor's finding of non-maximum medical improvement was not made because the appellant had refused orthodox treatment. The Medical Assessor made no recommendation as to treatment which the appellant should undertake. Rather, the finding was made because, exercising her clinical judgment, the Medical Assessor found there was no clear diagnosis of the condition from which the appellant suffered, and recommended assessment by an ENT specialist and speech therapist to establish a diagnosis.
2. Such a finding by the Medical Assessor is appropriate and in keeping with established authority: see Swan v Disability Services Australia Ltd [2023] NSWPICMP 504 (Swan), a Medical Assessor made a finding analogous to that in this matter, albeit in relation to the worker's left lower extremity. The Appeal Panel in Swan held:

"... it was within the Medical Assessor's clinical judgment to conclude, having proper regard to the history taken and the other medical evidence before him, that the appellant had not reached MMI in respect of the left hip...The Appeal Panel therefore finds that the conclusion that the left lower extremity was not MMI was open to him."

1. It follows from the above findings that the Medical Assessor made no error and the finding in relation to maximum medical improvement was open to her in the exercise of her clinical judgment. Nor did the Medical Assessor use incorrect criteria in reaching her conclusion, a ground of appeal which arises from the same factual matrix relied on in asserting a demonstrable error.
2. Having found the Medical Assessor's finding was appropriately open to her and that the appellant's submission concerning alleged reliance by the Medical Assessor on refusal of treatment was not correct, it follows there was no reliance on incorrect criteria.
3. For these reasons, the Appeal Panel has determined that the MAC issued on