1. The applicant, Simon Carr, was employed by the respondent, CBH Resources Limited, as a heavy diesel mechanic. While climbing down greasy ladder steps in a drill rig on 31 October 2018, he slipped and "wrenched" his left knee causing tearing and other damage to the joint. Arthroscopic surgery was conducted on the injury and then further surgery followed. The applicant's left peroneal nerve was damaged either during or because of surgery. Weakness and numbness arose in his left foot from the nerve damage, including "footdrop".
2. A claim for lump sum compensation was made by the applicant in relation to the effects of the left knee injury and its consequences. Although the respondent accepts liability for the left knee injury and consequential damage to the peroneal nerve, it disputes the existence of a specific injury to the applicant's left foot. The applicant seeks to have the effects of the nerve damage to his left foot assessed for the purposes of his claim for permanent impairment. A dispute has arisen between the parties on that issue.
3. The applicant lodged an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 3 December 2024 to initiate these proceedings.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter was before the Commission for arbitration hearing on 19 March 2025.

Mr Goodridge of counsel, instructed by Firths Compensation Lawyers, appeared for the applicant, who was also present. The respondent was represented by Mr Stiles of counsel, instructed by Lee Legal Group and its insurer, Employers Mutual Limited. 2. I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an acceptable settlement. The parties had sufficient opportunity to explore settlement. They were unable to reach an agreed resolution of the dispute.

1. The issue for determination by the Commission is the nature and effect the damage to the applicant's peroneal nerve causes to his left foot.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents;

(b) Reply with attachments from the respondent;

(c) Application to Lodge Additional Documents (ALAD) lodged by the applicant and dated 13 March 2025, and

(d) ALAD lodged by the respondent and dated 18 March 2025.

1. There was no application to call oral evidence or cross-examine any witness at the hearing.

1. There is no dispute about the key relevant facts. The applicant injured his left knee at work and because of surgery undertaken to treat the injury, his peroneal nerve was damaged. It is also undisputed the applicant experiences problems with his left foot, including footdrop, due to the nerve damage.
2. The respondent argues the left foot condition is a result of the consequential peroneal nerve injury and so should only be assessed as part of the nerve injury rather than separately.
3. The applicant contends the problem with his left foot constitutes a distinct impairment that requires assessment in addition to the consequential damage to the peroneal nerve.
4. In relation to diagnosis of the applicant's left ankle condition in his report of 14 March 2024,[1] Dr Frank Machart, orthopaedic surgeon and independent medical examiner (IME) qualified by the respondent, considered there was "no specific injury to the ankle joint". There was however "[f]ootdrop due to damage to the common peroneal nerve at the knee". He diagnosed "partial peroneal nerve palsy" as a "[c]omplication of surgery". On the issue of assessment, Dr Machart stated:[2]

"I am not in agreement that the left ankle should be assessed as per range of movement model. There was no injury to the left ankle. There is no reason why there should be diminished movement actively other than through dysfunction of the common peroneal nerve. To assess both is a duplication."

1. The respondent relies on that opinion about assessment, and it is central to the dispute. It was submitted that there is no evidence of a specific injury to the applicant's left foot, which is consistent with the findings of both independent medical examiners. There needs to be some diagnosis of a left ankle condition to permit separate assessment according to the respondent.
2. The applicant contends it is unnecessary for any "condition" to be diagnosed and only impairment that results from injury is required for assessment for the purposes of s 65 of the Workers Compensation Act 1987 (the 1987 Act) and s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), which is a submission that is accepted as correct.
3. According to the applicant, there was an injury to his left knee for which surgery was required and the surgery caused consequential injury to the peroneal nerve and that resulted in more than one impairment. That is correct and uncontroversial. The dispute is about how that impairment is to be assessed.
4. The IME qualified by the applicant, Dr Evan Dryson, considered in his 25 January 2022 report that the peroneal nerve damage and its effect on the left ankle were appropriately assessed individually for impairment and then combined, in contrast to Dr Machart's view that to do so would be "duplication".
5. The applicant has not contended his left foot is a different injury, rather that it is impairment that results from the peroneal nerve damage and ultimately the knee injury.
6. In Matar v Zeineddine, Roche DP said:[3]

"Once it is established, on the balance of probabilities, that [the worker's complaints] resulted from the established work injury, he is entitled to have the assessment of any loss resulting from that [injury] determined by an AMS."

1. According to s 319(c) of the 1998 Act, the "degree of permanent impairment of the worker as a result of an injury" is a medical dispute and s 322(2) is directly applicable, that is, "impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker".
2. The applicant's left foot problem is plainly impairment (being something damaged or weakened) that results from "the same injury", that is, his knee injury of 31 October 2018 from which the nerve damage arose. The extent of any related impairment is a matter for a Medical Assessor to determine.
3. This was confirmed in Haroun v Rail Corporation New South Wales,[4] where the Court of Appeal determined that it was solely within the province of an AMS to determine whether any permanent impairment results from an injury. A Medical Assessor being the current equivalent of an 'AMS'.
4. The nature and extent of the applicant's impairment and the manner it is to be assessed is a matter for a Medical Assessor to determine in accordance with s 322 and related provisions of the 1998 Act as a medical dispute. The cause of the left knee injury and consequential nerve damage is clear, it is the impairment that arises from those conditions that is the essential issue disputed in these proceedings.
5. The Medical Assessor will consider the competing views of Dr Machart and Dr Dryson as part of the statutory assessment of impairment regime with due regard to the NSW workers compensation guidelines for the evaluation of permanent impairment. It is not for the Commission to interfere in that process given injury and causation is undisputed and not in doubt.

1. The issue in dispute is for determination by a Medical Assessor and the matter is referred for the assessment of whole person impairment accordingly.

[3] [2008] NSWWCCPD 51 at [46].

[4] [2008] NSWCA 192.