1. On 4 September 2025 the employer Damann Pty Ltd (deregistered) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Negus, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 August 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 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 did not request that the worker be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
3. 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 even though the Appeal Panel found error, there was sufficient material before the Appeal Panel to enable it to make a determination in the matter.

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: 12 June 2018
• Body parts/systems referred: Lumbar spine

• Method of assessment: Whole Person Impairment"

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)

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

1. The employer appealed.
2. There are no complaints on appeal about the assessments for the lumbar spine, right lower extremity (knee), left upper extremity (shoulder) or scarring. The complaint on appeal only concerns the assessment in respect of the left lower extremity (knee). The complaint on appeal does not concern the assessment of overall impairment for the left lower extremity (knee) but rather the extent of the s 323 deduction made by the Medical Assessor at one-tenth.
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 errors for reasons which included the following:
   • there is no reasoning as to why a deduction of one-tenth was not at odds with the available evidence, and
   • a deduction of one-half is sought.
4. In summary, the worker Kyle Brooker (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 that the MAC should be confirmed.
5. 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 physical 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.
6. 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 worker 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.
7. The Medical Assessor recorded the following history:

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

• Injury occurred 12 June 2018 during loading at bottling factory, Lidcombe.
• Mechanism: Jumping up/down truck trailer, assisting with pallets. Slipped while descending, landed with left leg fully extended. Unable to bend left knee, immediate pain in left knee and lower back.
• Continued working; pain severe next morning, left knee locked.
• Sought medical attention following day from Dr. Donovan (Goulburn Medical Clinic).
• Referred to Dr. Herald (1 Aug 2018) → then Dr. De la Torre (TKA recommended and performed on left knee, 10 Dec 2018).
• Developed right knee symptoms during recovery secondary to overuse.
• Persistent lower back symptoms; reviewed by Drs De la Torre, Damodaran, Oyang (2018-2024), managed non-operatively, included injections and pain specialist referral.
• Ongoing left knee and right knee issues led to right TKA by Dr. De la Torre (Concord Hospital, 19 Aug 2020), insurance accepted as consequential condition.
• Left shoulder injury following fall down stairs after right knee 'gave out'; sustained impact shoulder injury + reported rib fracture.
• Present treatment:
• Ongoing: Painkillers only.
• No current physio (previous physio ceased post device failure).
• Not currently undertaking additional physical treatments, medical, surgical or psychiatric.

• Targin 20mg oral daily.
• Endone 5mg oral PRN.

• Left knee: Multiple ACL reconstructions (2004, 2007, 2009 [revision w/synthetic graft], 2010 [arthroscopy], 2012 [revision ACL]).
• Left knee: TKA (10 Dec 2018).
• Right knee: TKA (19 Aug 2020).
• Right + left knee: Arthroscopies (2010).
• Present symptoms:
• Lumbar spine: Persistent stiffness, chronic pain, coldness, limited ROM, pain radiating to left hip/buttock/knee; weakness left side. Aggravated by twisting, bending.
• Left upper extremity (shoulder): Loss of muscle bulk, restricted ROM, chronic pain, nerve symptoms incl. electric-like pulses, 'crunching', weakness, history of traumatic fall.
• Right knee: Chronic pain, swelling, instability, clunking, moderate continuous pain, prior injection, TKA.
• Left knee: Chronic pain, swelling, instability, clunking, severe continuous pain, prior multiple reconstructions, TKA.
• Other regions: Nil specified.

• Previous PTSD following unrelated workplace near miss (2016);
• No ongoing psychiatric treatment declared in transcript.
• Details of any previous or subsequent accidents, injuries or condition:
• Previous
• Bilateral knee surgeries (see above).
• Subsequent
• Left shoulder traumatic injury after right knee gave way post-injury.
• Right knee overuse
• Lumbar spine pain
• General health:
• Smoker: 20/day..
• No current alcohol use history provided
• General health: significant pain, chronic fatigue, poor sleep.
• No other current meds for chronic illnesses.
• Work history including previous work history if relevant:
• Left school age 17 (approx. 2005).
• Manual/labour jobs incl. metalworking (TEFCO, Australian Stockyard), drilling (Melbourne)
• Full-time truck driver ("Block Trans" 2015-17), ceased due PTSD after near-miss.
• Truck driver, Daman Pty Ltd/Todiam Freight Lines, start 7 Feb 2017 - ceased after injury (never returned to paid work).
• Social activities/ADL:
• Home Chores: Limited by exhaustion and pain; struggles with basic activities.
• Driving: Restricted, only short distances locally (partner's car).
• Sports/Hobbies: Not participating (not specified).

Personal care: Difficulty showering/washing, dressing (uses elastic laces, struggles with shoes/socks)."

1. The Medical Assessor noted the following seven special investigations and the Appeal Panel notes all of the special investigations pertained to the left knee and that four out of the seven pre-dated the injury:
   • X-ray left knee 6 August 2009: Cross pin fixation ACL, minimal arthrosis;
   • X-ray left knee 20 May 2010: Metallic screws tibia/femur, post-revision ACL;
   • MRI left knee 29 May 2014: Medial chondral loss, arthritis;
   • X-ray right knee 29 May 2014: Evidence of prior ACL recon, medial OA;
   • X-ray left knee 29 June 2018: Previous ACL reconstruction (femoral metallic screw, endobutton), benign bone lesion in tibia, OA changes;
   • MRI left knee 19 June 2018: Previous ACL surgery, grade 4 chondral loss, medial meniscus loss, osteophyte formation, and
   • X-ray left knee 20 December 2019: TKA PS + patellar component, well fixed/located.
2. The Medical Assessor recorded his examination findings which were not the subject of complaint on appeal. The Appeal Panel notes that there is no complaint about the assessment of overall impairment for the left lower extremity (left knee).
3. The Medical Assessor summarised the injury and diagnosis as follows:

Mr Brooker is a 38yo former truck driver. He injured his left knee and lumbar spine loading

a truck on 12/6/2018. He underwent a TKA on 10/12/2018.

• - an overuse injury to right knee leading to a TKA on 19/8/2020.
• - A traumatic Left shoulder injury following a fall caused by his right TKA
• - Lower back pain

He has been unable to return to any paid employment and suffers substantial limitations in his ADLs and social functions.

No inconsistencies identified; mechanism and current impairments concordant with documented injury history"

1. The Medical Assessor set out the facts in which his assessment was based as follows:

"The facts on which I have based my assessment of whole person impairment are:

A thorough history, a comprehensive physical examination, a review of the documentation made available by the Personal Injury Commission with reference to the SIRA Guidelines (2021) and AMA-5.

• Mechanism and chronology outlined in history and medical record review.

• Imaging and operative records confirm nature/severity of injury, sequelae of prior surgery, and post-op outcomes.
• Physical exam consistent with advanced joint pathology (ROM, instability, atrophy).
• Historical and current symptoms corroborated across multiple sources."

1. The Medical Assessor considered that the left knee was affected by a pre-existing condition, abnormality or injury answering the following questions as follows:

"(a) Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?

(b) If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. Body part/system affected by prior injury:

Right knee (prior arthroscopy) & pre-existing OA right knee on 2014 films."

1. The Medical Assessor made a one-tenth deduction under s 323 to take account of any pre-existing injury, condition or abnormality in respect of the left knee and it is this aspect that is the subject of complaint on appeal. This deduction was made from the assessed overall impairment of the left knee at 30%, less one-tenth leaving 27% WPI for the left lower extremity (left knee).
2. The Medical Assessor set out his reasoning as follows:

"DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY

a) In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:

(i) Left knee: Multi-ACL reconstructions (2004/07/09/10/12), chondral loss, prior arthroscopies, established OA pre-injury.

(ii) Right knee: Prior arthroscopy, OA present pre-injury (X-ray 2014).

(iii) Nil for left shoulder/lumbar spine directly (no pre-existing history documented).

b) The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:

(i) He clearly had some pre-existing degenerative changes in his knees from prior injuries and surgeries but he was working without issue prior to the subject injuries.

The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323 (2) I assess the deductible proportion as one tenth."

1. The Medical Assessor made brief comments on the other medical opinions as follows:

"I am in general agreement with the reports of Dr Bodel. We agree that there was pr-existing disease in his knees but that he was working without issue prior to the injuries. At the time of my examination, Mr Brooker describes more severe pain in both knees leading to the poor outcome which is different to when Dr Bodel saw him.

Regarding the report of Dr Miniter dated 4 February 2021, I disagree with much of its content. Mr Brooker presented well at my examination and was cooperative and forthcoming. I do not agree that it is 'simply an arthritic knee' as this statement discounts the rest of the history of injury and subsequential injury.

In his subsequent report of 25 January 2024 he repeats that there is no relationship between 'his workplace episode and the current presentation.'

Therefore, I disagree with the bulk of both reports."

1. A deduction under s 323 can only be made if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. There is no cavilling by either party on appeal that a deduction should have been made to take account of the contribution to the overall level of permanent impairment assessed in respect of the left lower extremity (knee).
2. A deduction of one-tenth can be made if the deduction is too difficult or costly to assess and this is the Medical Assessor's reasoning for making the one-tenth deduction. However, the deduction cannot be inconsistent with the available evidence. An adequate path of reasoning must also be demonstrated. Whilst the MAC must be read as a whole and whilst the Medical Assessor has referred to the opinion of Dr Bodel, the IME qualified to provide an opinion on behalf of the worker, the Medical Assessor fails to identify that Dr Bodel in fact made a deduction of one-half from his assessment of the left knee. Whilst it is the case that a Medical Assessor need not refer to every aspect of the evidence and whilst its is also true that the Medical Assessor has to make an independent assessment, the extent of the deduction made by a Medical Assessor must be consistent with the available evidence. Here the overwhelming consistency of the evidence, demonstrated with the extensive radiological investigations undertaken prior to injury as well as the other medical evidence before the Medical Assessor, and supported by the opinion of Dr Bodel, the IME qualified to provide an opinion on behalf of the worker, is that a one-tenth deduction is inconsistent with the available evidence and inadequate to take account of the contribution of the pre-existing injury, abnormality, or injury to the left knee to the overall impairment assessed.
3. Consistent with the available evidence, the appropriate deduction is one-half and the Appeal Panel will revoke the MAC in respect of this aspect. This means that the assessment for the left lower extremity (left knee) becomes 30 less 15 equals 15% WPI.
4. This means the combined values total as follows:

27 COMBINE 15 COMBINE 11 COMBINE 7 COMBINE 1 equals a total impairment of 50% WPI

1. For these reasons, the Appeal Panel has determined that the MAC issued on 12 August 2025 should be revoked. A new Medical Assessment 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 Pane revokes the Medical Assessment Certificate of Medical Assessor John Negus and issues this new Medical Assessment Certificate as to the matters set out in the table below:

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)

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

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.