1. On 11 June 2025 [BRP], the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 May 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):
   • 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 suffered severe injuries in a car accident on 14 October 2018 whilst working for Sheridan Equipment Pty Ltd, the respondent. The injuries were as such that the Public Guardian has been appointed as his guardian to decide where he may reside, what services that are to be provided to him, and what access he is to have to legal services. His estate has also been made subject to the management of the New South Wales Trustee and Guardian.
2. The appellant has initiated proceedings in the Personal Injury Commission (Commission) seeking the Commission determine a contested claim he had made against the respondent for compensation for permanent impairment from the injuries he suffered in the motor vehicle accident. Neither the appellant nor the respondent lodged with the Commission the document by which the appellant made his claim for compensation, but it is apparent from the particulars the appellant provided in the Application to Resolve a Dispute he lodged to initiate the proceedings in the Commission that he made his claim on 11 December 2023 and that he contended that his permanent impairment from his injuries is of the order 73% whole person impairment (WPI). It also apparent from a letter that the respondent's solicitors wrote to the appellant's solicitors on 5 August 2024, which is in the material that was lodged with the Commission, and in which the respondent's solicitors advised that the respondent offered to settle the appellant's claim by paying compensation to him for 56% WPI, that the respondent relied on reports of orthopaedic surgeon Dr Drew Dixon dated 19 January 2023, ophthalmic surgeon Dr Michael Steiner dated 8 December 2022, neurosurgeon Dr Peter Spittaler dated 21 April 2023, and plastic and reconstruction surgeon Dr Michael McGlynn dated 18 January and 7 August 2023, to support his claim for compensation. The appellant has lodged copies of all those reports with the Commission.
3. In his report Dr Dixon advised that he assessed the degree of the appellant's permanent impairment relating to the orthopaedic injuries the appellant suffered in the car accident is 19% WPI. Dr Steiner in his report advised he assessed that the degree of the appellant's permanent impairment relating to his visual system is 24% WPI. Dr McGlynn in his report of 7 August 2023 advised he assessed the degree of the appellant's permanent impairment relating to scaring and facial disfigurement from his injuries is 11% WPI. In his reports of

21 April 2023 Dr Spittaler advised he assessed that the degree of the appellant's permanent impairment from the injuries he suffered, insofar as they related to his nervous system, is 51% WPI. Dr Spittaler's assessment is a combination of 40% WPI he assessed the appellant to have by reference to the criteria of Table 13-6 of AMA5, 9% WPI he assessed the appellant to have by reference to the criteria of Table 13-7 of AMA5, and 10% WPI he assessed the appellant to have by reference to the criteria of Table 13-8 of AMA5. 4. For completeness the Appeal Panel further notes that when the impairments that Dr Dixon, Dr Steiner, Dr McGlynn and Dr Spittaler each assessed the appellant to have are combined in accordance with the combined values charts at pages 604 to 606 of AMA5, 73% WPI is the result. 5. The Commission referred the appellant's disputed claim to one of its members, namely

Mr John Turner, to deal with some preliminary matters. The Commission issued a Certificate of Determination on 31 March 2025 recording several determinations and a notation that Member Turner had made with the consent of the parties, which included the following:

"The referral to Medical Assessor Melick is amended as follows:

a. From body systems / parts delete "Nervous system, Thoracic spine, Right upper

extremity" and insert the following in place thereof "Central and peripheral nervous system."

1. Add to the documents to be referred to the Medical Assessor Melick this Certificate of Determination - Consent Orders.

c. In addition to assessing whole person impairment (WPI) of the "Central and

peripheral nervous system" pursuant to 4 a. above, Medical Assessor Melick is to

provide a combined WPI assessment combining the WPI assessment of the central and peripheral nervous system with the agreed impairments in notation A below.

1. The parties have agreed the following impairments due to injury sustained on 14 October 2018:

d. 2% WPI scarring/TEMSKI (right shoulder and scalp), and

1. A delegate of the President of the Commission duly issued a referral to the Medical Assessor in accordance with the determination and notation Member Turner had made.
2. As said the Medical Assessor issued the MAC, in response to that referral, on 21 May 2025, after having examined the appellant on 7 May 2025. The Medical Assessor noted in the MAC that a carer of the appellant attended with him at his examination. In the MAC the Medical Assessor certified he assessed the degree of the appellant's permanent impairment relating to his central nervous system is 22% WPI and that the appellant's permanent impairment relating to his peripheral nervous system is 0% WPI. When the Medical Assessor combined the impairment he assessed the appellant has with the other impairments the parties had agreed the appellant suffered from his injury, and which was detailed in the notation within the Certificate of Determination, the end result is 52% WPI, which is what the Medical Assessor certified is the degree of the appellant's permanent impairment from his injury.
3. Within the history the Medical Assessor detailed in the MAC, he commented that he had not received detailed clinical documents from the Royal North Shore Hospital, to which the appellant was admitted on the day of his accident. The Medical Assessor further commented he had access to a report of neurologist Dr Grant Walker dated 13 June 2024, whom the Medical Assessor said had access to "important documentation regarding cerebral scanning, and access to documents from the Royal North Shore Hospital and also the Royal Rehabilitation Hospital at which the client was subsequently admitted". The Appeal Panel observes that Dr Grant Walker was qualified by the respondent to provide a forensic medical report. Dr Walker assessed the appellant has 29% WPI. His assessment was done by reference to the criteria of Table 13-5 and Table 13-6 of AMA5.
4. The history the Medical Assessor recorded included that the appellant had a Glasgow score of seven at the site of the accident and that CT scans done at the Royal North Shore Hospital revealed the appellant had suffered a right frontal and temporal bone fracture, a fracture of the right lateral orbits and the right maxillary sinus, a fracture of his scaphoid and right clavicle, and T8 fracture, and fractures of the right third to fifth ribs. The Medical Assessor recorded in the history he detailed that the appellant suffered a traumatic brain injury with bilateral subdurals that were larger on the left, and a temporal subdural with subarachnoid blood over the left frontoparietal and frontal regions with changes suggestive of diffuse axonal injury.
5. The Medical Assessor noted that when the appellant was discharged from the Royal Ryde Rehabilitation Hospital on 4 April 2019 he had a considerable speech disorder but which has now markedly improved. The Medical Assessor also recorded in the history he detailed that Dr Walker had reported that at the time the appellant was discharged from the Royal Ryde Rehabilitation Hospital he was independent in self-care. The Medical Assessor recorded that he had been informed that the appellant makes considerable mess in the toilet and that his carers have to be involved regarding his toileting and other day to day activities.
6. The Medical Assessor recorded that the appellant was aware of significant impairment of his retentive memory to the extent that he kept a diary. The Medical Assessor recorded that the appellant is aware of impaired judgement that necessitates his having assistance from others. The Medical Assessor noted that the appellant has some impairment of maintaining normal orientation in time and place. The Medical Assessor noted that the appellant can go for walks with carers but he does not do his shopping or go to distance places unaccompanied.
7. The Medical Assessor noted that the appellant has withdrawn from community because of lack of interest and that he has lost considerable interest in his hobby of collecting and fixing lawnmowers. The Medical Assessor noted that the appellant showers every evening without prompting. The Medical Assessor noted that the appellant has no impairment of bimanual function or lower extremity function and no impairment of bladder or bowel sensation or his bladder and bowel function or control.
8. The Medical Assessor noted that the appellant did not have episodes of lost or disturbed consciousness or disorder of his sleep wake rhythm. The Medical Assessor noted that the appellant occasionally feels irritable but he did not have a history of physical violence or significant lability of mood. The Medical Assessor noted that the appellant had no abnormality of his comprehension or expression of language.
9. From his examination of the appellant, the Medical Assessor found the appellant to be alert and cooperative, and that he did not exhibit any "abnormality of normal rhythm of gait or of accessory upper extremity or truncal movements during ambulation". The Medical Assessor found the appellant had no abnormality of his cranial nerves, including olfaction. The Medical Assessor found the appellant had no abnormality of contour, posture, tone, power production, coordination or sensation in the upper or lower extremities. The Medical Assessor found the appellant had intact fine finger movement bilaterally but found that the appellant's deep reflexes were sluggish although there were improvements on reinforcement. The Medical Assessor found the appellant's plantar responses were flexor. The Medical Assessor found the appellant's speech and comprehension of speech was intact.
10. The Medical Assessor's explanation for the assessment he made of the impairment of the appellant's central nervous system and peripheral nervous system is contained within 10c of the MAC, being the section within the prescribed form of MAC that allows the Medical Assessor to provide comments on other medical opinions. His explanation for his assessment contained therein its as follows:

"There is close agreement with the assessment made by Dr Grant Walker in his report of 13 June 2024 and my assessment of the central nervous system; we both make a

category 2 impairment. On the basis of the evidence available, I make a middle of the

range impairment of 22% whole person impairment whereas Dr Walker makes a 29%

assessment. This does not reflect any major difference of opinion and is likely related to the marginal difference in clinical judgement and that Dr Walker's assessment was made almost 12 months previously.

I do not identify impairment of the peripheral nervous system and I note that Dr Walker does not make a whole person impairment for the peripheral nervous system."

1. The Appeal Panel observes that within the Table on the final page of the MAC in which the Medical Assessor certified his assessment, the Medical Assessor indicated that in making his assessment he had applied the criteria in Chapter 13(d) of AMA5, including Tables 13-2, 13-3, 13-4, 13-4, 13-5, 13-6, 13-7, 13-8 of AMA5. Notwithstanding that, it is apparent when the MAC is read as a whole, that the Medical Assessor assessed the appellant's impairment relating to his central nervous system by reference to the criteria of Table 13-5 and 13-6 only.

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 the appellant should undergo a further medical examination. This is because the Appeal Panel found that the MAC contained a demonstrable error, which the Appeal Panel would need to correct.
3. The Appeal Panel considered that to correct the error it required further clinical data from the appellant which it could only obtain from further examination of him. Medical Assessor O'Neill, a member of the Appeal Panel, was appointed to conduct that examination, which he did on 8 September 2025. His report to the Appeal Panel is copied 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. 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 that the Medical Assessor had to resolve or at least explain conflicting medical opinion, including why his opinion is not in agreement with other doctors, including Associate Professor Batchelor and Dr Spittaler. (The Appeal Panel notes that Associate Professor Jennifer Batchelor is a clinical neuropsychologist who provided reports dated 29 October 2021 and 4 February 2022 to the appellant's then solicitor in which she detailed and explained a neuropsychological assessment she had conducted of the appellant.)
3. The appellant submitted that there is nothing within the Medical Assessor's reasons that indicated that he had regard or had read the reports of Associate Professor Batchelor and

Dr Spittaler. The appellant noted that he had relied on the reports of these clinicians to support his claims. 4. When read broadly, the appellant's submission is that the reports of Associate Professor Batchelor and Dr Spittaler together with the report of Dr Walker, set the parameters of the medical dispute between the parties relating to the degree of his permanent impairment from his injuries due to his nervous system, and that this thereby determined the scope of the dispute that was referred to the Medical Assessor to assess. The Appeal Panel understands this element of appellant's submissions as being that the Medical Assessor did not engage with, and therefore did not assess, the totality of the medical dispute that had been referred to him. 5. The appellant submitted that the Medical Assessor did not give proper or genuine consideration to the medical legal case he had made. The appellant referred to AAI Ltd v Fitzpatrick[1] and Campbelltown City Council v Vegan[2] at [122] and contended that in a circumstance where there is expansive medical controversy there is a greater need for a Medical Assessor to give express consideration to the competing medical legal cases of the parties. 6. The appellant noted that the Medical Assessor said that he had not received detailed clinical notes from Royal North Shore Hospital and that he had "a helpful report" from Dr Walker who had access to documents from the Royal North Shore Hospital and the Royal Ryde Rehabilitation Hospital and important documentation regarding cerebral scanning. The appellant submitted that this is "curious" because the clinical notes of the Royal North Shore Hospital with cerebral scanning and relevant extracts from the Royal Ryde Rehabilitation Hospital had been attached with the application he lodge with the Commission to initiate the proceedings in the Commission. The appellant noted that none of those documents that were attached to his application were mentioned or referred to by the Medical Assessor. 7. The appellant submitted that the Medical Assessor's reasons were "patently inadequate" and the Medical Assessor did not disclose the path of his reasoning in making his assessment. 8. In reply, the respondent submitted that the Medical Assessor was not obliged to accept the medical legal case of either party or to account for all documents that were lodged with the Commission. The respondent noted that the assessment Associate Professor Batchelor conducted was done by reference to the Motor Accident Guidelines and AMA4 and the respondent submitted that consequently that evidence of Associate Professor Batchelor is of limited probative value. 9. The respondent noted that the Medical Assessor confirmed in the MAC that his assessment had been based on the information available to him and his clinical judgement and a full neurological examination he conducted with the appellant. The respondent submitted that the Medical Assessor set out the relevant evidence to support his assessment. The respondent submitted that the findings of the Medical Assessor were open to him on the evidence before him. 10. The respondent acknowledged that the clinical records of the Royal North Shore Hospital had been included in the documents the appellant had lodged with the Commission. The respondent acknowledged that it is not clear if the Medical Assessor received and reviewed those documents.

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 Vegan the Court of Appeal held that the Appeal Panel is obliged to give reasons.
3. The Appeal Panel rejects the appellant's submission to the effect that the Medical Assessor was required to provide his reasons for disagreeing with the assessments Associate Professor Batchelor and Dr Spittaler had done. Section 325(2)(c) of the 1998 Act required the Medical Assessor to set out his reasons for his assessment. That obligation on the Medical Assessor required him to expose his path of reasoning such that a Medical Appeal Panel could determine whether there is error in his reasoning.[3] That obligation of the Medical Assessor was to articulate his reasons for the degree of permanent impairment he assessed the appellant has from his injury. He was not required to "opine on the correctness of other opinions".[4]
4. The Appeal Panel notes that the form the President has approved for a medical assessment certificate includes at Part 10c a section titled "my brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinions differ". However, that section of the approved form cannot extend the obligation of a Medical Assessor to provide reasons beyond that stipulated by s 325(2) and consequently it did not oblige the Medical Assessor in this case to explain why his opinion differed from either Dr Spittaler or Professor Batchelor.[5]
5. The Appeal Panel also observes that the explanation a Medical Assessor provides for his or her assessment, whilst requiring the Medical Assessor to expose sufficiently his or her reasons such that an Appeal Panel can comprehend if there is any error within them, does not necessarily require the reasons to be comprehensible to a person with no medical expertise. In such circumstance, the Medical Assessor can shortly state his or her reasons. If however a conclusion is medically contestable or controversial a more expansive explanation will be required.[6]
6. In the Appeal Panel's view, and consistent with the appellant's submission, the Medical Assessor did not sufficiently expose his reasons for his assessment. His reasons indicate he was unaware that the clinical records that the Royal North Shore Hospital and the Royal Ryde Hospital maintained relating to the appellant's admissions therein and the treatment he received therein were before him. He considered these were important documents, which indeed they are. The Medical Assessor seems to have derived his knowledge of the important clinical detail contained within these documents from the summary Dr Walker provided of it in his report of 13 June 2024, which summary consisted of seven bullet pointed observations.
7. It seems to the Appeal Panel also that the Medical Assessor did not consider the neurological assessment Associate Professor Batchelor had conducted of the appellant, as detailed in her report of 29 October 2021. That report contained relevant and significant data relating to the appellant. In Associate Professor Batchelor's subsequent report of

4 February 2022 she provided an assessment of the appellant's impairment based on the criteria of AMA4, which as the respondent submitted is not the criteria by which the appellant's impairment is to be assessed for his disputed claim for compensation for permanent impairment under s 66 of the Workers Compensation Act 1987. Consequently, the content of that latter report is not of any significant probative value, but that does not diminish the relevant significant clinical data provided in her earlier report. 8. The Appeal Panel observes that Dr Spittaler's assessment of the appellant's permanent impairment from his injury, insofar as to related to the appellant's nervous system, included impairments the appellant had due to aphasia and communication disorders and emotional and behavioural impairments, which he rated respectively by reference to the criteria of Tables 13-7 and Tables 13-8 of AMA5. On the other hand, the assessment that Dr Walker conducted of the appellant's impairment from his injury, insofar as to related to his nervous system, did not include such impairment. Dr Walker indicated in his report that he considered the appellant's dysphasia had resolved but it is not apparent from Dr Walker's report that he considered whether the appellant had any impairment due to emotional and behavioural disorders and hence qualified for a rating of impairment by reference to the criteria of Table 13-8 of AMA5. 9. Be that as it may, it is apparent that the medical dispute between the parties relating to the degree of the appellant's permanent impairment from his injury included whether the appellant had any permanent impairment relating to his nervous system due to aphasia or dysphasia and emotional or behavioural disorders. It is not apparent from the MAC that Medical Assessor Melick considered those matters, and hence whether he assessed the appellant had any permanent impairment relating to those matters. 10. In that regard, the Appeal Panel accepts that appellants submission to the effect that the Medical Assessor did not assess the totality of the medical dispute between the parties insofar as related to the appellant's nervous system. 11. For these reasons the Appeal Panel found that the MAC contained a demonstrable error. As said above, in order to correct that error the Appeal Panel had one of its members, Medical Assessor O'Neill, examine the appellant. His report to the Appeal Panel follows:

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

• Date of injury: 14 October 2018
• Body parts/systems referred: central and peripheral nervous system
• Method of assessment: whole person impairment

• Date of birth and age at examination: [redacted]; 75yrs

Details of who attended the examination: [BRP] and his carer, Ms Erin Bromley

Employer and occupation: Sheridan Equipment Pty Ltd; truck driver

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

It is the recall of [BRP] that he was driving a truck down a hill. He was trying to slow it down but it rolled over as it negotiated a curve at the bottom of the hill. He said he was then hit by two other vehicles.

He had no memory of events from then until he was in Royal Ryde Rehabilitation Centre.

The ambulance report states there was a high speed collision between a truck and a car. [BRP] was in the cabin of the truck. His GCS was 7 at the scene. He was bleeding from a closed depressed skull fracture in the right occipital region. He had to be intubated at the scene and was transported by road to Royal North Shore Hospital.

[BRP] was in Royal North Shore Hospital from 14 October until 16 November 2018.

A CT brain scan on 14 October 2018 showed a moderate right-sided subgaleal haematoma. There was an undisplaced fracture extending from the right frontal bone into the temporal bone and along the greater wing of the sphenoid. There was a minimally displaced fracture through the lateral wall of the right orbit. There were mildly displaced fractures of the anterior and lateral walls of the right maxillary sinus. There were bilateral subdural haemorrhages, small on the right and moderate on the left. There was a small amount of subdural haemorrhage layering along the left tentorium. There was subarachnoid haemorrhage within the sulci of the left frontoparietotemporal lobe and right frontal lobe. There was an intraparenchymal haemorrhage within the left temporal lobe with mild adjacent oedema. There was mild mass effect on the left lateral ventricle.

A progress CT brain scan (at Royal Ryde Rehabilitation Centre) on 21 January 2019 reported an area of gliosis in the left temporal lobe with ex-vacuo dilatation of the left lateral ventricle. There was hypodensity along the right frontal extraventricular drain tract.

The brain injury was managed conservatively. [BRP] remained in ICU until 27 October 2018.

[BRP] was deemed to still be in a "chronic amnesia state" some 116 days after the accident.

[BRP] also sustained: right third to fifth rib fractures; right haemopneumothorax; right clavicular fracture and a manubrial fracture.

[BRP] remained at Royal Ryde Rehabilitation Centre from 29 November 2018 until 4 April 2019 when he was allowed home with fulltime care and with management of lifestyle and medical matters by the Public Guardian.

At that stage there was marked mixed dysphasia requiring continuing speech therapy and a right homonymous superior quadrantanopia was evident.

On 29 October 2020 [BRP] was accepted into the Lifetime Care Support Scheme.

A telehealth neuropsychological assessment was undertaken by Associate Professor Jennifer Batchelor on 20 October 2021. Dr Batchelor found "evidence of very significant residual cognitive impairment". Deficits were particularly evident in working memory, recent memory and executive functions including word retrieval, mental flexibility and response regulation.

In terms of assessment of memory, Dr Batchelor gave Clinical Dementia Rating (CDR) scores of 2.0 for memory, 1.0 for orientation, 2.0 for judgement & problem solving, 2.0 for community affairs, 2.0 for home & hobbies and 1.0 for personal care.

[BRP] thought he was on two medications, the names of which he could not remember. He said "one was to slow me up a bit and the other a vitamin". His carer did not know the names of his medications.

[BRP] knew he had been in an accident but he was happy that he was "alive and well". He knew he needed carers and told me he would not have been able to find my rooms today without the carer. He thought he had got off the train at Bondi Beach but the carer told me he got off the train at Kings Cross and they walked from there to the Clinic. He had no idea how to get home without the help of the carer.

[BRP] has a carer from 8am to 8pm on seven days of the week.

He requires no assistance with self-care in terms of morning ablutions and dressing.

He is unable to drive and a carer takes him to a free food stall (St John's) every two weeks and he comes home with four packages of food to last two weeks. He said he would unpack the foodstuff himself. He said he cooked his own meals such as fried eggs on bread and heating prepared meals.

The carer told me this was true but she said assistance was sometimes required because he would sometimes want to take excess items which were not necessary for the fortnightly "shop".

I asked him what he did during the day and he said he would do a bit of gardening in his small garden and would tinker with his old lawnmowers. A mowing service cuts his lawns on a regular basis.

He said he would go to the Men's Shed for three-and-a-half hours on one day of the week. At the Men's Shed he would do whatever task he was instructed to undertake by the "boss" and this usually involved gardening. There was a recent argument with "the boss" and [BRP] had been told he would not be able to return for a short period.

He said he was a member of a group which took him for a walk every Thursday afternoon. His t-shirt was labelled the "Penrith Men's Walk and Talk". He particularly enjoyed his cup of coffee there in the afternoon. He thought he would walk about 8kms over the space of one hour.

He said he did not read or used the internet or watch TV. He had a mobile phone for which he would ring people such as the case manager, his son, his sister or a friend down the road.

He said he didn't have to pay any bills because he didn't have any money.

He thought he still occasionally saw a speech therapist. He said he thought this was to teach him to speak "in polite manner".

I asked the carer what he would be like without their support. She said he would be unsafe. She said that in the past he had tried to clean with undiluted bleach and had sustained burns. He had tried to use blowtorches inappropriately. He had tried to climb onto his roof to do repairs. He had gone into abandoned houses to see if he might find anything he could use at home.

The carer said he would sometimes get confused about what he wanted to say and would then become frustrated and start yelling. He had recently been upset about poorly fitting new dentures.

When asked about vision, [BRP] simply said his right eye sometimes "flutters and runs".

He had no actual complaints related to the accident.

Details of any previous or subsequent accidents, injuries or condition: Not applicable.

• General health: [BRP] was clearly in very good general health.
• Work history including previous work history if relevant:

[BRP] had retired as a machinist prior to the accident. He did however hold a commercial driver's licence and started doing part-time truck driving to make extra money.

[BRP] was of trim build and good fitness but he had very little or no insight into the effect the accident had had on his life.

He thought his age was ninety-five. As previously mentioned, he had no idea of how he could get from his home to the Clinic and return.

There was no obvious difficulty with speech but historically there had been occasions where [BRP] was frustrated at not being able to make himself understood.

He could not smell perfume from either nostril. On specific questioning, he said he might occasionally get the fragrance of flora when out on a walk but in general he thought his sense of smell was not as good as it had been in the past. He also thought his sense of taste was not as good as it had been.

There was a dense right homonymous superior quadrantanopia.

He wore hearing aids but apparently had hearing impairment prior to the accident.

Cranial nerve examination was otherwise normal.

Limb power and reflexes were normal with both plantar responses flexor.

1. DETAILS AND DATES OF SPECIAL INVESTIGATIONS

[BRP] sustained an extremely severe head injury in the motor vehicle accident. There was almost certainly loss of consciousness at the scene. The GCS was only 7 on arrival of ambulance officers. There was radiological evidence of severe traumatic brain injury as per the CT scan of 14 October 2018. The period of post-traumatic amnesia persisted for at least 116 days.

This is the type of head injury which would be expected to give rise to impairment of cognitive function (SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

The accident has resulted in impairment of mental status, impairment of emotion and behaviour, (historically) alteration of speech and today I felt there was also impairment of olfaction and taste which had not previously been documented.

When assessing impairment, I took note of Guidelines, Point 5.4, p31 wherein it is stated "the Assessor should take care to be as specific as possible and not to double-rate the same impairment particularly in the mental status and behavioural categories".

I initially assessed mental status using AMA5, Table 13.5, p320. I awarded 2.0 for memory, 2.0 for orientation, 2.0 for judgement & problem solving, 1.0 for community affairs, 1.0 for home & hobbies and 0 for personal care. This results in a CDR of 2.0.

Mental status impairment was then calculated using AMA5, Table 13.6, p320. A CDR of 2.0 gives rise to impairment of mental status from 30 - 49%. I awarded the minimal impairment of 30% WPI.

I assessed emotion and behaviour using AMA5, Table 13.8, p325. I thought there was a Class 2 impairment with moderate limitation of some activities of daily living and daily social and interpersonal functioning. I awarded the minimum impairment of 15%.

Historically there have been difficulties with speech and speech therapy was still being provided. This was not evident to me today. I assessed the documented dysphasia using AMA5, Table 13.7, p323. I thought there was minimal disturbance of comprehension and production of language symbols of daily living and awarded only 3% WPI.

As stated, I felt there was post-accident impairment in olfaction and taste. For this I awarded 3% WPI (Guidelines, Point 5.11, p32).

The combined whole person impairment assessable by me therefore, is 30% + 15% + 3% + 3% = 45% WPI.

This impairment does not include impairment arising from his right homonymous superior quadrantanopia (assessable by an ophthalmologist).

The facts on which I have based my assessment of whole person impairment are: the history I obtained today from [BRP] and his carer; the examination I performed today and review of all documents referred by the Commission.

1. The Appeal Panel accepts and adopts the history that Medical Assessor O'Neill obtained and detailed in his report. The Appeal Panel also accepts and adopts the detail Medical Assessor O'Neill provided in his report relating to the appellant's present treatment and present symptoms. The Appeal Panel considers that the examination Medical Assessor O'Neill conducted of the appellant is thorough and the Appeal Panel consequently adopts his findings from his examinations of the appellant. The Appeal Panel accepts as correct the summary Medical Assessor O'Neill has provided of the appellant injury.
2. The Appeal Panel also considers that the assessments that Medical Assessor O'Neill made of the appellant's permanent impairment relating to his nervous system, as a consequence of his injury, as well as his reasons for those assessments are correct and consequently the Appeal Panel adopts those assessments so as to correct the demonstrable errors in the MAC.[7]
3. For these reasons, the Appeal Panel has determined that the MAC issued on 21 May 2025 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 Ross Mellick 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)

[3] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA43; Tradieh v LM Hayter & Sons Pty Ltd [2025] NSWSC840 at [33] - [42] (Tradieh).

[6] Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34]; Vegan at [122].

[7] Coca Cola Euro Pacific Partners API Pty Ltd v Pombinho [2024] NSWCA191 at [88].