WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of permanent impairment as a result of laceration with circular saw; referred to Medical Assessor (MA) by consent; MA stated that the incident was inconsistent with the injury and declined to assess whole person impairment (WPI) necessitating re-examination; re-examination findings adopted; _Coca- Cola Europacific Partners v Pombinh_o considered; Held - MAC revoked.

1. On 9 May 2025 Adam Burcher lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Donald Cawthorn, who issued a Medical Assessment Certificate (MAC) on 1 April 2025.
2. Mr Burcher relies on the grounds of appeal under s 327(3)(c) and (d) 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 President's delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. She was also satisfied that it was appropriate to extend time for Mr Burcher to file the appeal. We conducted a review of the original medical assessment, limited to the grounds 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. Mr Burcher was employed by CVA Construction and Carpentry Pty Ltd (CVA Construction) as a carpenter when he suffered an injury to his left arm on 4 April 2018 when using a drop saw without a guard. He suffered a serious laceration of his left forearm. Dr Nabarro undertook surgery on the following day, repairing multiple extensor tendons to the wrist, thumb and fingers and inserting nerve tubes to two divided branches of the posterior interosseous nerve.
2. On 14 January 2025 a Member of the Personal Injury Commission remitted the matter for referral to a Medical Assessor by consent. The Medical Assessor was asked to assess Mr Burcher's left upper extremity (hand, wrist, elbow, shoulder) and scarring under the Table for the Evaluation of Minor Skin Impairments (TEMSKI).
3. The Medical Assessor said that he was unable to "clinically link the stated injury sustained and the symptoms that Mr Burcher is now presenting with." He did not assess whole person impairment (WPI).

1. We 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, we determined that it was necessary for Mr Burcher to undergo a further medical examination because the Medical Assessor did not assess WPI and he did not examine Mr Burcher's shoulder.

1. We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
2. Medical Assessor Anderson of the Appeal Panel conducted an examination of the worker on

21 August 2025 and reported to us. His report forms part of these reasons. 3. The parts of the MAC that are relevant to the appeal are set out below.

1. Both parties made written submissions. They are not repeated in full, but we have considered them.
2. In summary, Mr Burcher submitted that the Medical Assessor's examination was cursory and said it was curious that the Medical Assessor considered that the objective findings he made, including restricted movement and cosmetic deformity were inconsistent with the mechanism of injury. He observed that both Dr Stephenson and Dr McGlynn were able to assess WPI.
3. In reply, CVA Construction submitted that the Medical Assessor's inability to establish a clinical link between the injury and the symptoms on the day of the examination was a difference of opinion, rather than a demonstrable error. The Medical Assessor conducted an appropriate orthopaedic examination.

1. The Medical Assessor set out a history of the injury and the surgery undertaken on the following day. He noted that Mr Burcher was no longer undergoing physiotherapy and that he took Panadol at the end of the day when his hand starts hurting. The Medical Assessor set out Mr Burcher's current symptoms:

"Loss of movement: Unable to move thumb and has lost individual finger movement.

States he can move all four fingers down 'a bit' but has lost ability to move them individually. Greatly restricted in flexion and extension.

Pain: Experiences pain and tightness in the forearm at the end of the day.

Numbness: Mr Burcher states that numbness starts at mid forearm level. Has sensation above this level but has no sensation in the hand. No issues with temperature variation.

Feels symptoms are getting worse despite doing stretches and exercises provided.

Unable to play guitar anymore which he used to enjoy. States that he greatly misses being able to work as a carpenter, which he has done his whole life. Feels the injury has destroyed his life and led to the loss of his wife."

1. The Medical Assessor set out his findings on examination of Mr Burcher's elbow, wrist and each digit of his hand. He did not record his findings with respect to Mr Burcher's shoulder. He summarised the injuries and his diagnoses:

"Mr Burcher sustained a laceration to the dorsum of his left forearm on 04/04/2018 from a drop saw at work. He underwent surgery the following day to repair multiple structures.

He has ongoing issues with loss of movement, sensation and function in the left hand and forearm impacting his activities and, leaving him unable to work as a carpenter."

"I cannot clinically link the stated injury sustained and the symptoms that Mr Burcher is now presenting with.

The incident described by the Worker is NOT consistent with the injury that has been suffered."

1. He did not offer any further explanation as to why that was so, other than to say:

"I am unable to supply a whole person impairment rating based on the inconsistency of the said mechanism and the clinical picture on review today."

1. Commenting on the other reports in the file, the Medical Assessor said:

"Dr Stephenson: Report on 06/05/2024 - 34% WPI and 2% TEMSKI.

My findings are in keeping with the findings of Dr McGlynn that clinically, the presentation and the stated injury cannot be linked anatomically."

1. In a report dated 12 April 2018, one week after surgery, Dr Nabarro said that Mr Burcher reported minimal pain. The repaired extensor tendons were intact and sensation in his hand was normal.
2. On 5 July 2018 Dr Nabarro said that Mr Burcher reported some pain in his left forearm but had regained good function in his left hand. He said:

"In the left forearm , the scar is thick and non-tender. He has Grade 5 power of EDC, ECU and ECRL but mild weakness of EPL. He is unable to independently extend his index or small finger. Sensation of the dorsum of the hand is normal. Grip strength averaged 54kgf on the right and 36kgf on the left."

1. There are no other reports from Dr Nabarro in the file and little contemporaneous medical information.
2. Mr Burcher described his treatment in his statement dated 9 July 2024. He said that he felt depressed because of the pain and discomfort he experienced in his left arm and hand.
3. Dr Stephenson examined Mr Burcher for the first time on 28 October 2020, at the request of his solicitors. Dr Stephenson observed restriction of movement of all digits of Mr Burcher's left hand and in his left wrist. There was a full range of motion of his elbow and shoulder. Dr Stephenson assessed 23% WPI. He considered that Mr Burcher was unfit to work as a carpenter or builder because of the stiffness in all fingers of his left hand. Dr Stephenson recommended psychological counselling or referral to a psychiatrist.
4. The Medical Assessor's opinion is not in fact consistent with that of Dr McGlynn, who assessed Mr Burcher on behalf of CVA Construction. Dr McGlynn prepared two reports. In the first dated 29 June 2021, he said that Mr Burcher suffered:

"Circular saw laceration of left mid dorsal forearm with laceration of multiple extensor tendons to wrist, thumb and fingers, and posterior interosseous nerve, requiring surgical repair.

As a result of the injury Mr Burcher has mild restriction of left wrist, thumb and finger joint movements, and reduced strength of his left hand.

The prognosis is good. His condition is stable and unlikely to deteriorate in the future. He has reduced left hand grip strength which should steadily improve with more normal use of the left hand."

1. Dr McGlynn said that Mr Burcher had hand therapy until six months previously. He observed that there was normal sensation in all areas of the left upper limb. He considered that Mr Burcher had the physical capacity to resume work as a carpenter though may need help handling heavy objects. Dr McGlynn said:

"He is able to fully flex his left fingers to the palm of hand. He has mild restriction of active left wrist and hand joint movements which may make some manual tasks more difficult but would not prevent him from working as a Carpenter with a 10kg restriction for his left hand.

His left upper extremity partial incapacity and complaints are entirely due to the workplace injury sustained on four April 2018."

1. Dr McGlynn assessed 11% WPI, measuring the range of movement of each digit and Mr Burcher's left wrist and assessing scarring under the TEMSKI.
2. Dr Stephenson assessed Mr Burcher again and reported on 6 May 2024. Dr Stephenson found restriction of movement of all five fingers of Mr Burcher's left hand and significant sensory loss of the medical antebrachial cutaneous nerve, so that sensation was dull or absent on the entire dorsum of his left forearm. Dr Stephenson said that there had been a deterioration in Mr Burcher's left arm and that he now suffered a restricted range of motion is his shoulder and elbow. Dr Stephenson assessed 35% WPI.
3. In his second report dated 12 September 2024, Dr McGlynn said that the active range of movement of Mr Burcher's hand and wrist was greatly diminished. The sensation was normal in 2021 but Mr Burcher complained of a total loss of sensation at the 2024 assessment. Dr McGlynn said he told Mr Burcher that he could not see a physical cause for the deterioration. Mr Burcher said he had been told that all tendons and nerves to his left arm had been cut in the injury. He had not had any treatment since Dr McGlynn's last examination and his condition had deteriorated. Dr McGlynn said:

"He described psychological symptoms of anxiety and depression. I was unable to determine if there was of exaggeration, embellishment, malingering or feigning. It is possible his deterioration in physical presentation is related to his psychological condition: however, this should be assessed by a psychiatric expert.

In my opinion his clinical presentation is inconsistent with the injuries sustained and my previous observations. It is at significant variance with the observations of others in the documents supplied. This may be due to a consequential psychological injury and could improve significantly with appropriate treatment.

Because of this I rely on my previous assessment in May 2021 where I reported left upper extremity injury causing 9% WPI and skin scarring causing 2% WPI with a total of 11% WPI."

"When I examined Mr Burcher in May 2021 my opinion and the difference between Dr Stephenson's and my examination findings was improvement during the intervening period between the two assessments. His significant deterioration since May 2021 is inconsistent with the physical injury and may be related to a psychological condition."

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan[1] the Court of Appeal held that an 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 Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
4. A demonstrable error is an error which is clear from an examination of the MAC.[3] The Medical Assessor made a demonstrable error because he declined to assess the permanent impairment resulting from the injury that was referred to him.
5. While there are circumstances in which a Medical Assessor may be required to determine questions as to causation of an impairment,[4] CV Construction did not dispute that Mr Burcher suffered an injury on 4 April 2018. If there had been a dispute as to CV Constructions' liability for the injury, it was required to be determined by a Member before referral to the Medical Assessor. Procedural Direction PIC6 provides in cl 29:

"A liability dispute in relation to a claim for permanent impairment compensation must be resolved, either by agreement between the parties or determined by a member of the Commission, before the degree of permanent impairment is assessed."

1. There is very little medical information in the file. The parties agreed on the terms of the referral. The Medical Assessor was required to accept the agreement of the parties as to the injury. He was required to undertake an assessment of permanent impairment as Mr Burcher presented on the day of the examination,[5] to record his findings and to set out the permanent impairment assessed.
2. The Medical Assessor did not say that he considered that Mr Burcher's presentation was inconsistent but rather that he did not consider the incident was consistent with the mechanism of the injury. He did not offer further reasoning.
3. If the Medical Assessor was concerned about inconsistency, paragraph 1.36 of the Guidelines provides guidance:

"AMA5 (p 19) states: 'Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual's range of motion are good but imperfect indicators of people's efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.' This paragraph applies to inconsistent presentation only."

1. The Medical Assessor did not say that the range of motion measured was not consistent on range of motion testing as described in paragraph 2.5 of the Guidelines.
2. It was necessary that the assessment be undertaken afresh, which Medical Assessor Anderson did on behalf of the Appeal Panel. We adopt his report and his assessment and there is no utility in repeating the matters set out in it, noting the statement Ward P with whom the other members of the Court of Appeal agreed, in Coca-Cola Europacific Partners API Pty Ltd v Pombinho:[6]

"The statutory provisions assume power on the part of a medical member of the Appeal Panel to carry out a re-examination and assessment of the worker. It may be inferred that the Appeal Panel, in adopting the report and findings, was endorsing the reasoning in that report since that is where the reasons are to be found. I do not accept that the Appeal Panel was required to deliver separate or distinct reasons as to why the Appeal Panel (or two of the three members of it, perhaps) accepted [the Medical Assessor]'s assessment in preference to the assessment of, say, the Medical Assessor. In my opinion, it was sufficient for the Appeal Panel to adopt [the Medical Assessor]'s assessment (for the reasons contained therein)."

1. For these reasons, we have determined that the MAC issued on 1 April 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

1. The worker's medical history, where it differs from previous records

There was no significant difference to the medical history.

1. Additional history since the original Medical Assessment Certificate was performed

No further history has emerged, although it does appear evident that since the clinical surgical treatment of his condition, there has been a gradual and progressive deterioration. All clinical specialists suggest that there probably is some form of psychological association.

Mr Burcher had a height of 1.83m and weighed 78kg. With these parameters, he currently has a body mass index of just over 23, which is right in the middle of the healthy BMI range. He was therefore fairly tall and lean and moved with a slightly stooped posture. It was obvious that he was protecting his left arm which occasionally was cradled by the right arm, particularly when he was sitting. It was also obvious that the left hand has minimal current usage and as earlier mentioned in the MAC by Dr Donald Cawthorne, the digits of the left hand were in a constant position of semi-flexion. These could be passively extended but he had very little capacity for active extension as demonstrated in the following digit movement and impairment table.

The assessment started with the major joints of the upper limbs:

As demonstrated, the range of movement of each shoulder was symmetrical and easily within the normal range.

The range of movement of the elbows was almost normal with minor findings of slightly reduced pronation of the left elbow complex.

As demonstrated, the major restriction of movement in the larger joints resides with the left wrist.

UPPER EXTREMITY IMPAIRMENTS DUE TO REDUCED RANGE OF MOVEMENT:

Page 438, Table 16-01, Convert to % HAND IMPAIRMENT

Page 438, Table 16-01, Convert to % HAND IMPAIRMENT

Page 438, Table 16-01, Convert to % HAND IMPAIRMENT

Page 438, Table 16-01, Convert to % HAND IMPAIRMENT

NEUROLOGICAL. There was gross reduction of sensation in the left forearm and hand. This was fairly dense. Similar to the findings of Dr Cawthorne and Dr McGlynn, it did tend to be glove-like. Specific attention was paid to the dorsal (extensor) surface of the forearm and hand and to the injury scar and the associated damage due to the effects of the circular saw injury. The scar was located just proximal to the mid-forearm extensor area, running obliquely from the radial side proximally towards the ulnar side distally. This therefore traverses the territory of the posterior and medial ante-brachial cutaneous nerves. Both of these nerves are superficial to the extensive damage occasioned to five extensor tendon complexes and two branches of the interosseus nerve. Therefore, with the extent of this injury, it would have been almost impossible for this to have occurred with the damage to these deeper structures without significantly damaging these two cutaneous nerves. This assessment therefore includes these two cutaneous nerves. These are identified initially in AMA 5 Page 488, Figure 16-48. In Table 16-15 on Page 492, the maximum sensory impairment for the medial ante-brachial cutaneous nerve is 5% UEI. The posterior

ante-brachial cutaneous nerve does not actually feature in this table, although in accordance with the SIRA Guidelines Page 5, Paragraph 1.21, an analogous nerve to this is the medial ante-brachial cutaneous nerve with a maximum sensory impairment of 5% UEI, and therefore, it is assessed that the maximum sensory impairment for the posterior ante-brachial cutaneous nerve would also be 5% UEI.

Modification is addressed from Table 16-10 on Page 482. Grade III with 50% of the maximum assessed as appropriate. This gives an Upper Extremity Impairment of 2.5% for each of these two nerves, which is then rounded up to 3% Upper Extremity Impairment for each of these nerves.

From Page 439, Table 16-03 this converts to 33% WPI.

Concern over Mr Burcher's consistency has been raised by both Dr Cawthorne and Dr McGlynn, however this was not a significant issue at this assessment. Attention is drawn to my observation that he had full and symmetrical movement of the shoulders and almost so with the elbows. It was with the left wrist, hand and fingers where gross restriction of movement was demonstrated. Whilst it is probable that the glove-like restriction of sensation is generated by a psychological influence, as advised by Dr McGlynn in his report dated 12 September 2024, it remains the case that the injury from the circular saw blade did traverse the territory of the medial and posterior ante-brachial cutaneous nerves which would account for the reduction of sensation in their distribution.

SCARRING. The scar over the extensor surface of the left forearm is very obvious, easily identified by Mr Burcher and causes him a lot of concern. The scar is slightly widened and ragged, has deeper pigmentation and also has noticeable tethering in its centre portion, particularly on attempted extension movements. It does not cause specific dysfunction of his activities of daily living and further treatment is not indicated. From the SIRA Guidelines, Page 74, Table 14, with these features, 2% WPI is assessed. (This is the same as the scarring impairments assessed by Dr Brian Stephenson and Dr Michael McGlynn.)

Final Whole Person Impairment. The combination of these two factors gives a final whole person impairment of 34% WPI (which is very close to the calculations of Dr Brian Stephenson).

1. Results of any additional investigations since the original Medical Assessment Certificate

No pre-existing condition has been identified which would necessitate the application of any deduction.

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 Donald Cawthorne 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)

Chap 2 P 10

P 476 F 16-40

P 477 F 16-43

P 479 F 16-46

P 472 F 16-34

P 474 F 16-37

P 467 F 16-28

P 469 F 16-31

P 488 F 16-48

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

[1] [2006] NSWCA 284.

[2] [2021] NSWCA 304 at [26].

[3] Pitsonis v Registrar of the Workers Compensation Commission [2008] NCWCA at [49].

[4] Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [109]- [111].

[6] [2024] NSWCA 191 at [88].