WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); injury to right and left upper extremities and cervical spine; claim for permanent impairment; Medical Assessor (MA) assessed DRE Category I (0% whole person impairment (WPI)) for the cervical spine and 6% WPI for each upper extremity; appeal only concerned the cervical spine assessment; complaint on appeal concerned the MA's failure to find non-verifiable radiculopathy; Held - Appeal Panel found no error as the MA exercised his clinical judgment which he applied to his physical findings on the day of examination; MAC confirmed.

1. On 24 May 2025 the worker Mr Nathan Busutel (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 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):

(a) the assessment was made on the basis of incorrect criteria, and

(b) the MAC contains a demonstrable error.

1. It is noted that the appellant did not rely on ground of availability of additional evidence in the formal part of the Application to Appeal but attached to the submissions additional evidence in the form of statements from the appellant and his wife dealing with the conduct of the medical assessment specifically the physical examination. The respondent has had the opportunity to meet the submissions of the appellant and so there is no prejudice to the granting of leave to the appellant to rely on this further ground, and therefore to the extent that it is necessary, the Appeal Panel grants leave to the appellant to rely on the ground of appeal of assessment on the basis of the availability of additional evidence. The question of whether that additional evidence is admitted is dealt with separately below.
2. 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.
3. 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.
4. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. The appellant requested a re-examination by a Medical Assessor who is also a member of the Appeal Panel. However, as a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

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. The appellant seeks to admit statements from the appellant and his wife subsequent to the medical assessment and concerning the conduct of the medical assessment, specifically the physical examination.
3. The appellant submits that the evidence is relevant and that the evidence was not available and could not reasonably have been obtained because it concerns the conduct of the medical assessment.
4. The respondent opposes the admission of the additional evidence as being more prejudicial than probative.
5. The Appeal Panel determines that the evidence should not be received on the appeal because it concerns the conduct of the medical assessment to which the presumption of regularity applies and the findings on physical examination have been fully documented by the Medical Assessor and cover all requisite aspects in accordance with the Guidelines.

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.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
3. The matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:

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

• Date of injury: 07/09/2021 (deemed)
• Body parts/systems referred: Cervical spine

Right upper extremity (hand/wrist) (carpal tunnel syndrome)

Left upper extremity (hand/wrist) (carpal tunnel syndrome)

• Method of assessment: Whole Person Impairment"

1. The Medical Assessor issued a MAC certifying impairment as follows:

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

WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)

Sub-total/s % WPI (after any deductions in column 6)

Right upper extremity (hand/wrist) (carpal tunnel syndrome)

Left upper extremity (hand/wrist)(carpal tunnel syndrome)

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

1. The worker appealed.
2. There is no complaint on appeal about the assessments that pertain to the upper extremities. The appeal concerns only the assessment of the cervical spine, specifically, the Medical Assessor's failure to assess non-verifiable radiculopathy.
3. In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error for reasons which included the following:

(a) failed to assess non-verifiable radiculopathy,

(b) made his assessment of DRE category I (0% WPI) on the basis of incorrect criteria when he should have assessed DRE category II (5% WPI), and

(c) in so doing he failed to provide adequate reasoning.

1. In summary, the respondent employer Coastal Shipwrights Pty Ltd (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and provided adequate reasoning and that accordingly the MAC should be confirmed.
2. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a medical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
3. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applied.
4. The Medical Assessor recorded the following history:

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

Mr Busutel has developed pain in both his hands and elbows through the nature and conditions of his employment. This involved using grinders, sanders and buffing machines above horizontal for prolonged periods of time. He went on to develop pain in his elbows, hands and wrists with associated numbness.

He was referred to Dr Meyers, a Hand Surgeon. In a clinical letter dated 15/08/2019,

Dr Meyers details the occupational exposure. He notes pain in the wrists radiating up the forearms with numbness in the hands. He conducts nerve conduction studies demonstrating mild carpal tunnel syndrome on the right but no significant conduction delay on the left. He refers Mr Busutel initially for a steroid injection but advises ultimately carpal tunnel release may be required.

He subsequently goes on to undertake bilateral endoscopic carpal tunnel releases on 10/12/2019. Unfortunately, he did not get significant relief from the procedure and he was not able to return to work. As soon as he tried to undertake any activity, he developed recurrent pain in his wrists.

A follow up nerve conduction study undertaken on 21/10/2020 demonstrated no residual conduction delay. Dr Meyers then went on to organise an MRI of the cervical spine on 02/12/2020.

On 08/10/2021, Dr Meyers was considering revision carpal tunnel release, given progression of the symptoms. He organises another nerve conduction study. This was undertaken on 07/10/2021. No abnormalities were demonstrated on the study and hence no further surgery was contemplated.

On 03/06/2022, Mr Busutel was reviewed by Dr Hansen, a Neurosurgeon. Dr Hansen notes MRI of his neck showing 'only mild degeneration at C5/6 with very little neural compression'. Dr Hansen recommends review by Dr Volschenk, a Pain Management Specialist.

Mr Busutel takes Duloxetine, Lyrica and Palexia. He is not engaged in hand therapy or an exercise-based rehabilitation program.

He continues to have pins and needles in the volar aspect of his forearm which extend from his whole hand up to his neck bilaterally. He has a dull headache. He reports intermittent 'spasms' in his elbow and hand.

• Details of any previous or subsequent accidents, injuries or condition:

Mr Busutel reports no previous injuries to his neck or upper limbs.

Mr Busutel is otherwise healthy. He takes no other regular medication and has no allergies.

• Work history including previous work history if relevant:

Mr Busutel previously enjoyed golfing, fishing and driving a boat which he is no longer able to do."

1. The Medical Assessor made the following comment in relation to special investigations:

"I was able to review the following modalities of imaging on the Hunter Imaging PACS site:

Minor C4/5, C5/6 degenerative disc disease. No significant central or lateral recess or foraminal stenosis.

Minor C4/5, C5/6 degenerative disc disease without significant central or lateral recess or foraminal stenosis.

1. The Medical Assessor conducted an examination and recorded his findings as follows:

"On examination, he was a well-looking man in no obvious distress.

Romberg's test is negative. Trendelenburg's test is normal. Heel-toe stance is normal. Lower limb neurological exam demonstrates symmetrical reflexes with down going Babinskis. Peripheral power is intact. Straight leg raise is to 90° in the sitting position without tension signs.

Upper limb reflexes similarly are symmetrical with a negative Hoffman test. There is cog-wheel weakness bilaterally in all muscle groups. There is sensory change in the median nerve distribution bilaterally.

Examination of range of motion of the cervical spine demonstrates normal range of unrestricted flexion, extension and rotation. There is no evidence of asymmetry or dysmetria.

Range of motion of the elbows is recorded as follows:

Range of motion in the wrists is recorded as follows:

There was a full range of symmetrical movement of the fingers and thumbs. There was symmetrical weakness of abductor pollicis brevis bilaterally. This was consistent with generalised weakness observed in both upper limbs."

1. The Medical Assessor summarised the injury and diagnosis in respect of the lumbar spine as follows:

Mr Busutel developed pain in his forearms, wrists and numbness in his hands. He has undergone bilateral carpal tunnel release. Unfortunately, he has significant ongoing symptoms for which an anatomical cause is not clear.

Mr Busutel was co-operative throughout the assessment."

1. The Medical Assessor explained his reasoning that in making the assessment of 0% WPI for the cervical spine and that he has taken into account the following:

"My opinion and assessment of whole person impairment:

Right upper extremity (hand/wrist) (carpal tunnel syndrome): 6% whole person impairment.

Left upper extremity (hand/wrist) (carpal tunnel syndrome): 6% whole person impairment.

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

Review of the material provided and a detailed examination of the claimant.

The cervical spine is assessed according to AMA-5, page 392, Table 15-05. On the basis of there being no significant clinical findings, no observed muscle guarding or spasm, no documented neurological impairment and no documented alteration in structural integrity, the cervical spine is assessed as DRE Category I: 0% whole person impairment.

For persistent sensory deficit in the distribution of the median nerve, this is assessed according to AMA-5, page 482, Table 16-10 as grade 4 deficit. AMA-5, page 492, Table 16-15 assesses 39% upper extremity impairment for sensory alteration of the median nerve at or below the mid forearm. 25% of 39% rounded gives 10%. According to AMA-5, page 439, Table 16-03, this converts to 6% whole person impairment for each upper extremity."

1. The Medical Assessor made brief comments on the other evidence that was before him as follows:

"With respect to the report by Dr Bodel dated 18/10/2023, I did not find significant restriction of movement in the elbows or wrists and have not assessed impairment for it. I agree with the assessment of grade 4 sensory loss and the assessment of 10% upper extremity impairment for this. As above, I did not find restricted movement in the elbows and wrists and have not assessed impairment for it.

Dr Bodel assessed the cervical spine as DRE Cervical Category II. Clinical findings were not consistent with this at the time of my assessment.

With respect to the report by Dr Bosanquet dated 11/10/2022, I note Dr Bosanquet does make an assessment for persistent symptoms in the carpal tunnel despite finding 'subjective altered sensation in his fingers'. He does make some assessment of impairment for minor restriction of wrist flexion which was not present at the time of my assessment. Dr Bosanquet does not assess the cervical spine.

I note a report by Dr Sheehy dated 18/10/2022. I note he has not assessed impairment with respect to the cervical spine.

With respect to Dr Bosanquet's report dated 06/07/2023, I note he now assesses the cervical spine as DRE Cervical Category II despite recording in his clinical examination 'He was tender in both trapezius. Flexion and extension were full. Rotation and lateral bending were full'. He continues to assess 2% for restricted range of motion in the wrists but not for residual sensory deficit in the hands. He reiterates his findings in a subsequent report dated 01/05/2024.

I note reference to a previous report by Dr Doig assessing 34% whole person impairment. That report has not been included in the documents for me to review."

1. The appellant complains on appeal that the Medical Assessor did not adequately explain why he did not find non-verifiable radiculopathy and hence a classification of DRE category II for the cervical spine.
2. The MAC must be read as a whole. What the Medical Assessor has done is assess, in accordance with the correct criteria, the impairment on the day of assessment applying his clinical judgment to his examination findings.
3. The Medical Assessor is entitled to rely on his examination findings on the day of assessment. The appellant points out that Dr Bodel and Dr Bosanquet both found non-verifiable radiculopathy and assessed DRE category II for the cervical spine. He specifically notes that in his view Dr Bosanquet's own record of physical findings, which the Medical Assessor quotes, do not support a DRE category II classification. The Medical Assessor also specifically notes that his clinical findings of the day of examination do not accord with that of Dr Bodel.
4. It must be remembered that the role of the Medical Assessor is to conduct an independent assessment and he is entitled to rely on his clinical findings on the day of examination. This is what the Medical Assessor has done in this case. The Medical Assessor is clearly cognisant of the views of Dr Bodel and Dr Bosanquet to whom he refers but he is not bound to follow their findings but to apply his own clinical judgment to his own examination findings. This is what has been done here after a physical examination that was thorough as evidenced by the findings recorded on examination which covered all requite aspects. The Medical Assessor has explained adequately why his opinion differs from the other medical opinion that was in evidence before him.
5. It also must be remembered that for non-verifiable radiculopathy to be found, pain still has to follow anatomical pathways. Here the appellant's residual symptoms in the hand do not follow anatomical pathways from the neck. The bilateral sensory deficit in the median nerve is taken account of in the impairment assessment of the bilateral upper extremities. Combined with the other examination findings of a full range of motion of the cervical spine (demonstrated normal range of unrestricted flexion, extension and rotation) and no evidence of asymmetry or dysmetria, the Appeal Panel can discern no error in the assessment of the cervical spine as DRE category I (0% WPI).
6. What the Medical Assessor has found in accordance with his examination findings on the day of assessment is that there is no clinical justification to find non-verifiable radiculopathy. This is adequately explained when the MAC is read as a whole. The Medical Assessor is entitled to rely on his clinical findings on the day of assessment and has applied the correct criteria to assess impairment. There is no error and the Appeal Panel considers that the reasoning given by the Medical Assessor was adequate.
7. For these reasons, the Appeal Panel has determined that the MAC issued on 30 April 2025 should be confirmed.