1. On 30 April 2025 Vishal Bhatiya, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gregory McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 April 2025.
2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • 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. The appellant worked as a picker-packer for Bidfood NSW Pty Ltd, the respondent. During his employment with it on 14 June 2023 he lifted a 20 kilogram box of juice and felt immediate pain in his lower back. He consulted his general practitioner on 15 June 2023, who referred him for an MRI scan. That was done on 22 June 2023, and reported on by Dr Craig Harris. Relevant to this appeal he described the following finding at L2/L3:

"Disc dehydration without disc height loss. Focal posterior central disc protrusion, projecting 5 mm beyond the expected posterior margin of the disc, partially effacing cauda equina, reflecting moderate canal stenosis. No foraminal narrowing. There is no facet joint arthropathy."

1. On 19 July 2023 the appellant was admitted to Westmead Hospital under the care of neurosurgeon and endoscopic spine surgeon Dr Yingda Li. In a letter Dr Li wrote on 4 July 2023, that was not addressed to any particular person, she advised that the appellant denied "any saddle anaesthesia or sphincteric incontinence". Dr Li observed the MRI demonstrated a large central L2/3 disc protrusion. Dr Li recommended the appellant have surgery which the appellant decided against. Dr Li organised for the physiotherapy team to attend to the appellant which eventually cleared him for discharge.
2. The appellant consulted spinal surgeon Dr Bhisham Singh on 19 July 2023. In a letter of referral that Dr Singh wrote on that date to the neurosurgical spine registrar at the Royal North Shore Hospital, Dr Jonathon Ball, Dr Singh advised that a scan done on 22 June 2023 "revealed large disc herniation at L2-3 with cauda equina compression".
3. A further MRI scan was done of the appellant's lumbar spine on 6 September 2023. Dr Mathew Lee reported on that. With respect to the L2/3 level he reported "the disc is degenerative with broad central bulge and subtle annular fissure." He also noted that there was mild stenosis at that level.
4. On 11 September 2023 Dr Singh reviewed the appellant. In a letter he wrote to the appellant's general practitioner he advised that the appellant "is significantly better since his last presentation". He noted that an MRI scan revealed that he has a disc bulge "which has improved somewhat".
5. On 18 July 2024 the appellant's solicitors wrote to the respondent's insurer advising it that the appellant claimed compensation under s 66 of the Workers Compensation Act 1987 for permanent impairment from his injury which they advised was of the order of 46% whole person impairment (WPI). They enclosed with their letter, in support of the appellant's claim, reports of orthopaedic surgeon Dr E Gher dated 15 July 2024. Dr Gher advised therein that he examined the appellant on 15 July 2024. It is obvious from his reports that he was provided with the reports on the MRI scans done on 22 June 2023 and 6 September 2023. Dr Gehr diagnosed the appellant's injury was:

"lumbar spine L2/3 - disc rupture, guarding, dysmetria and right cauda equina with right drop foot. Incomplete cauda equina."

1. Dr Gehr advised he assessed the degree of the appellant's permanent impairment is 46% WPI which was a combination of the following assessments:

"i. 5% WPI on the basis that the appellant's L2/3 disc rupture met the criteria for DRE Lumbar Category II;

1. 3% WPI pursuant to paragraph 4.33 of the Guidelines, (although Dr Gher wrongly said that was pursuant to 4.34) for the effect of the appellant's injury on his activities of daily living;
2. 15% WPI pursuant to Table 15-6 of AMA5 for sexual impairment the appellant has due to cauda equina;
3. 30% WPI also pursuant to Table 15-6 of AMA5 on the basis that the appellant has lower extremity weakness, right foot drop and uses orthosis and crutches."

1. The Appeal Panel notes that the latter two ratings Dr Gehr made were pursuant to Parts f and c respectively of Table 15-6.
2. Following the appellant making his claim for compensation the respondent's solicitors organised for the appellant to be examined by neurologist Dr Ross Mellick on 11 September 2024. In a report dated 18 September 2024 Dr Mellick advised that he considered the appellant had not reached maximum medical improvement and, because of that, he could not perform an assessment of the appellant's permanent impairment. His diagnosis was that the appellant suffered an acute disc herniation when he injured himself on 14 June 2023. He advised that abnormal physical signs the appellant exhibited during his examination of him were consistent with the presence of an acute disc lesion with cauda equina pressure.
3. On 18 November 2024 the respondent's lawyers wrote to the appellant's lawyers advising them that the respondent would not be making an offer with respect to the appellant's claim for compensation for permanent impairment. They advised the respondent's position was based on Dr Mellick's opinion that the appellant had not reached maximum medical improvement. It is implicit too from the respondent's lawyers advising that the respondent would not make an offer, that it did not accede to the appellant's claim.
4. Thereafter the appellant registered with the Personal Injury Commission (Commission) an Application to Resolve a Dispute dated 22 January 2025. Following the respondent lodging a reply to that, the matter was referred on 17 February 2025 to the Medical Assessor to assess the various medical disputes relating to the appellant's claim, including whether the appellant's impairment is permanent, whether the appellant's degree of permanent impairment is fully ascertainable, and the degree of the appellant's permanent impairment resulting from his injury.
5. The Medical Assessor examined the appellant on 25 March 2025 to conduct that assessment. As said, he issued the MAC on 2 April 2025, in which he recorded the appellant had achieved maximum medical improvement and certified that the degree of the appellant's permanent impairment from his injury is 12% WPI. Neither party has taken issue with the Medical Assessor's conclusion that the appellant had achieved maximum medical improvement. It is implicit from that finding that the Medical Assessor was also of the view that the appellant's impairment is permanent and that the degree of his permanent impairment is fully ascertainable. He made no formal certification however, of those two disputes in the MAC notwithstanding those were two of the medical disputes referred to the Medical Assessor to assess.
6. The issues the appellant has raised in his appeal relate to the Medical Assessor's diagnoses of his injury, which the appellant contends was incorrect, which the appellant contends had the consequence of the Medical Assessor not assessing his permanent impairment by reference to the correct criteria.
7. Relevant to that, the Medical Assessor under the heading Summary in the MAC said the following regarding, regarding, his diagnosis of the appellant's injury and, secondly, the manner in which the appellant presented at examination:

Mr Bhatiya sustained an injury to the lumbar spine on 14 June 2023. Investigations have suggested significant disc pathology at L2/3 resulting in some canal stenosis and at one stage there was a suggestion of some involvement of the cauda equina, although the most recent scan has suggested that there was no compression of the cauda equina. Based on his presentation there was evidence of a right radiculopathy. There is no documentation of any relevant effects on the bladder, the bowel or the sexual organs that would be associated with cauda equina syndrome.

He displayed significant abnormal pain behaviour and Waddell's signs were strongly positive. I find it difficult to accept that a 32 year old man with the symptomatology that he demonstrates would refuse reasonable treatment such as surgery and it is also somewhat inconsistent that he has not seen a specialist with regard to medical management for some time and he has not been recently investigated with regard to his spinal condition."

1. The Medical Assessor copied the findings from the MRI scans of the appellant's lumbar spine done on 22 June 2023, and had regard to those findings.
2. The Medical Assessor recorded the following findings from his examination of the appellant:

"The Medical Assessor recorded that the appellant reported the following symptoms:

'He was supported with a Canadian crutch in his right arm and his friend supported him from the left. When supported in a standing position on the examination couch he did not elevate his right foot, although he could elevate the left. He said he couldn't walk on toes and could not perform a squat due to back pain. On assessment of range of movement of the thoracolumbar spine this was grossly restricted to being minimal in all directions and this included rotation and this was similar when done passively from the knees. Straight leg raising was 30 degrees on the left and minimal on the right. He could extend his legs from a seated position with low back pain but neural tension tests were negative. I couldn't detect any wasting of the lower extremities with calf circumference at maximum being 37cm bilaterally and thigh circumference measured 10cm suprapatellar 46cm. There was, however, weakness of dorsiflexion of the right foot. On assessment of reflexes it was difficult to obtain either knee or medial hamstring reflexes, although I could obtain a left ankle jerk. He demonstrated a global stocking distribution of loss of sensation in the right leg relative to the left. There was tenderness to light touch globally around the lower back area.'"

1. The Medical Assessor commented on the reports that Dr Gher and Dr Mellick had prepared. With respect to Dr Gher, the Medical Assessor noted he diagnosed the appellant had an impairment due to cauda equina syndrome. The Medical Assessor said that he "felt there was not enough objective evidence to enable this diagnosis to be made". The Medical Assessor also said that there is no objective evidence that the appellant has sexual impairment and that the appellant's sexual impairment is based on subjective symptomology. The Medical Assessor said that there is not sufficient objective evidence to determine that any alteration of the appellant's gait is a result of cauda equina syndrome.
2. With respect to Dr Mellick's assessment, the Medical Assessor noted that Dr Mellick considered there was some pressure on the appellant's cauda equina and that the appellant required urgent surgery. Those matters led Dr Mellick to the conclusion that the appellant had not reached maximum medical improvement. The Medical Assessor said that he felt that it was unlikely the appellant would have surgery and hence he was able to assess the appellant's permanent impairment.
3. The Medical Assessor also had regard to reports of other clinicians who had provided evidence relating to the appellant's injury. That included neurosurgeon Dr Fuller whose report was dated 8 August 2023 and wherein he noted the appellant had an incomplete cauda equina syndrome.
4. The Medical Assessor advised within Part 10b of the MAC that the appellant met the criteria of paragraph 4.27 of the Guidelines for a finding of radiculopathy and that was on the basis that the appellant had loss of reflexes and anatomically localised muscle weakness. The Medical Assessor consequently assessed the appellant's permanent impairment by reference to Diagnostic Relation Estimate (DRE) Lumbar Category III which provides for a rating of 10 to 13% WPI. The Medical Assessor assessed that the appellant had 2% WPI for the effect his injury has on his activities of daily living. Hence, the Medical Assessor's certification that he assessed the degree of the appellant's permanent impairment is 12% WPI from the appellant's injury.

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 appellant to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established the grounds for appeal on which she relied, and consequently the Appeal Panel neither has power nor reason to examine the appellant.[1]

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.
2. The appellant sought to rely on the clinical records of Dr Joshua Piercey, an orthopaedic surgeon who had provided treatment to the appellant. The respondent supported the appellant's application for the Appeal Panel to receive this evidence, and given that the Appeal Panel has received those clinical records into evidence and has considered them.

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 submitted, with respect to its application relating to the ground for appeal listed in s 327(3)(b) of the 1998 Act, that the medical records of Dr Piercey "are an important part of the history". No other submission was made regarding this ground for appeal.
3. The appellant submitted that the Medical Assessor erred with respect to his diagnosis. The appellant submitted that the Medical Assessor should have found that the appellant had an incomplete cauda equina condition because he satisfied the criteria specified in paragraph 4.22 of the Guidelines relating to cauda equina syndrome. The appellant referred to the MRI that was done on 22 June 2023 and to several other pieces within the evidence that was before the Medical Assessor to support his contention that he has cauda equina syndrome. The appellant submitted that this evidence "is directly opposite to the impression formed by the [Medical Assessor]". The appellant submitted that because he meets the requirements to diagnose cauda equina syndrome the Medical Assessor ought to have applied the criteria of Table 15-6 of AMA 5 to assess his permanent impairment.
4. The appellant submitted that the Medical Assessor erred by considering what the cause of his gait impairment was. The appellant submitted that his having gait impairment was a factor that ought to have been evaluated by the Medical Assessor to establish whether he had cauda equina syndrome.
5. The appellant submitted that the Medical Assessor considered an irrelevant matter by considering a non-medical factor, that being the appellant's decision not to have surgery.
6. The appellant submitted that the Medical Assessor failed to consider the evidence of Dr Gher who found he had sexual impairment.
7. The appellant submitted that the Medical Assessor erred by saying that Dr Gher's assessment of sexual impairment was based on subjective symptomology. The appellant submitted that Dr Gher's assessment was based on the appellant's history and his finding of incomplete cauda equina.
8. In reply, the respondent submitted that the Medical Assessor noted the previous involvement of the appellant's cauda equina in his injury but the Medical Assessor preferred the most recent MRI scan that revealed a normal distal cord and cauda equina which did not enable the Medical Assessor to make a diagnosis of cauda equina syndrome. The respondent also referred to the report of Dr Mellick in which Dr Mellick stated that the appellant experienced normal sensation to pass urine and have his bowels open. The respondent submitted that there is a lack of treating medical evidence to substantiate that the appellant has urinary or bladder difficulties or loss of sexual function.
9. The respondent referred to other pieces of the evidence relating to clinical matters and submitted that none of that established the appellant had bladder, bowel or sexual dysfunction. The respondent submitted that the only doctor who made an "outright diagnosis" of cauda equina syndrome is Dr Gher. The respondent submitted that the Medical Assessor did not err by not diagnosing cauda equina syndrome.
10. The respondent submitted that the Medical Assessor was entitled to rely on his clinical findings.
11. The respondent referred to paragraph 7.12 of the Guidelines and submitted that as there was no treating medical evidence indicating sexual dysfunction and the most recent scan revealed a normal cauda equina there was no basis upon which the Medical Assessor could assess the appellant as having a permanent impairment relating to sexual dysfunction.

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.

1. The question an Appeal Panel must ask itself when considering whether the ground for appeal provided in s 327(3)(b) of the 1998 Act is established is whether the additional information would lead the Appeal Panel to a different conclusion from that reached by the Medical Assessor.[2]
2. The records of Dr Piercey reveal that the appellant consulted him on four occasions, being 13 February 2024, 19 March 2024, 23 April 2024 and 5 June 2024. They further revealed that Dr Piercey referred the appellant for a CT guided right L4 nerve root injection based on a history of the appellant having right L4 radiculopathy. The records of Dr Piercey accord with the findings of the Medical Assessor that the appellant had radiculopathy. They do not indicate that the appellant then had cauda equina syndrome. The records of Dr Piercey consequently do not lead the Appeal Panel to form a different conclusion from that reached by the Medical Assessor.
3. It also seems to the Appeal Panel that the evidence in the form of Dr Piercey's records was available to the appellant prior to the medical assessment and could reasonably have been obtained by him. With the clinical records that the Appeal Panel has received into evidence is correspondence between the appellant's solicitors and Dr Piercey's rooms and that reveals that the appellant's solicitors initially sought Dr Piercey's records on 26 June 2024. It also seems from that correspondence that the only reason the records were not provided by Dr Piercey's rooms to the appellant before the medical assessment is that the appellant's solicitors did not attend to paying the fee that Dr Piercey was charging to provide a copy of the records. Consequently, the evidence does not meet the terms of s 327(3)(b).

1. Paragraphs 4.22 and 4.23 of the Guidelines read as follows:

"4.22 The cauda equina syndrome is defined in Box 15.1 in Chapter 15 of AMA5 (p 383) as 'manifested by bowel or bladder dysfunction, saddle anaesthesia and variable loss of motor and sensory function in the lower limbs'. For a cauda equina syndrome to be present there must be bilateral neurological signs in the lower limbs and sacral region. Additionally, there must be a radiological study which demonstrates a lesion in the spinal canal, causing a mass effect on the cauda equina with compression of multiple nerve roots. The mass effect would be expected to be large and significant. A lumbar MRI scan is the diagnostic investigation of choice for this condition. A cauda equina syndrome may occasionally complicate lumbar spine surgery when a mass lesion will not be present in the spinal canal on radiological examination.

4.23 The cauda equina syndrome and neurogenic bladder disorder are to be assessed by the method prescribed in the spine chapter of AMA5 Section 15.7 (pp 395-98). For an assessment of neurological impairment of bowel or bladder, there must be objective evidence of spinal cord or cauda equina injury."

1. Paragraph 1.6a of the Guidelines stipulates that a key principle of an assessment is that the assessment is done based on how a worker presents at the time of the assessment, taking into account the worker's relevant medical history and all the available evidence. Paragraph 1.6b stipulates a further key principle is that a Medical Assessor exercise their clinical judgment to determine a diagnosis.
2. In the Appeal Panel's view, based on how the appellant presented to the Medical Assessor at examination and based on the evidence before the Medical Assessor, the Medical Assessor did not make an error by not diagnosing the appellant had cauda equina syndrome.
3. A finding of the MRI scan done on 22 June 2023 was that the L2/3 disc partially effaced the cauda equina. The view of the Medical Assessor members of the Appeal Panel is that the term "effacing/efface" in a medical context means touching. It does not mean compression. SO the MRI scan on 22 June 2023 did not provide definitive evidence the appellant had cadua equina syndrome.
4. Further, a protrusion of a disc can recede or abate over time. That is, it can heal completely or partially. The MRI done on 6 September 2023 indicates that that occurred with the appellant. That investigation indicated that the protrusion of the L2/3 disc had eased and that the distal cord/ cauda equina was then normal.
5. The Medical Assessor's findings from his examination of the appellant did not reveal saddle anaesthesia.
6. Consequently, the most recent radiological study that was available to the Medical Assessor did not reveal a lesion in the spinal cord causing a mass effect of the cauda equina with compression of multiple nerve roots. It is doubtful too that the earlier investigation revealed that. Nor did the appellant have saddle anaesthesia at the time of assessment. Accordingly, the requirements of paragraph 4.22 were not met such that the Medical Assessor could make a diagnosis that the appellant had cauda equina.
7. Given that, the Medical Assessor was unable to assess the appellant's the appellant's permanent impairment by reference to the criteria of s15.7 of AMA 5, and specifically Table 15-6.
8. Further, as the respondent submitted, consistent with paragraph 7.12 of the Guidelines, because there was no objective evidence of spinal cord, cauda equina or bilateral nerve root dysfunction, the Medical Assessor was correct not to assess the appellant as having an impairment due to loss of sexual function. The most recent MRI scan did not reveal bilateral nerve root dysfunction, or any evidence of pressure on the spinal cord or cauda equina.
9. The Medical Assessor was correct to correlate the appellant's signs and symptoms with the criteria for DRE Lumbar Category III. The fact that the appellant had a gait derangement did not change that. That could not result in the appellant's impairment being elevated to a higher DRE category. Similarly, the fact that the appellant had sexual dysfunction also did not elevate his impairment to a higher DRE category.
10. For these reasons, the Appeal Panel has determined that the MAC issued on 2 April 2025 should be confirmed.

[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]- [130]; Saveski v Brunjev Pty Ltd [2025] NSWSC 157 at [66].

[2] Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [13].