1. On 30 October 2024 Donhad Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 3 October 2024.
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. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

1. The Appeal Panel has before it all the documents that were sent to the MA 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 submits that the MA erred in his application of section 323 of the 1998 Act, failed to consider available evidence and failed to provide adequate reasons.
3. In supplementary submissions, the appellant added that the MA erred in failing to have regard to the matters raised in the decision of Secretary, Department of Communities and Justice v Virtue [2024] NSWSC 1380 (31 October 2024) ('Virtue').
4. In reply, Alan John Asbury (the respondent) submits that no errors were made.

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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the following:
   1. Right knee, Left knee (consequential), and Right shoulder (consequential) resulting from a deemed date of injury of 21 October 2003.
   2. Right knee, Left knee (consequential) and Right shoulder (consequential) resulting from a frank injury on 22 December 2003.
4. The MA obtained the following history:

"Mr Asbury states that on 21 October 2003 after he finished work the right knee was swollen. He consulted the doctor and was treated conservatively with physiotherapy. He said that the knee fully recovered and he returned to normal duties and had no problems with the knee until the 22nd of December 2003.

He states that on the 22nd of December 2003 he went to get an overhead crane. The area where the crane was located was dark. He slipped on a ledge and fell. He said he could not get up and he had pain in the back and right knee. Co-workers went looking for him as he had not returned and found him on the ground. They helped him up and Mr Asbury then went to see the local doctor. He had time off and was then certified fit to work on selected duties. Apparently selected duties were not available and he did not resume work and he has not worked since. Knee and back pain persisted and he was referred to Dr Verheul (orthopaedic specialist).

Under Dr Verheul he had three operations. In 2004 he had arthroscopy of the right knee, in 2013 he had right knee replacement and in August 2019 he had another arthroscopy.

In 2019, Dr Verheul's findings were soft tissue impingement. The soft tissue around the patella was debrided and cleared.

The right knee continued to trouble him and he has had good and bad days since. The knee flares up intermittently. He will be reviewed by Dr Verheul in November regarding the continuing problem with the knee.

Mr Asbury states that on 14 June 2022 the right knee was very sore. The knee gave way and he fell. In the fall he injured the right shoulder. He consulted his doctor, he was investigated with x-rays and ultrasound and had a cortisone injection. He was also reviewed by Dr Hutabarat (orthopaedic surgeon). Surgery was recommended. He did not have the surgery as liability was not accepted at time.

He said that he has been reviewed by Dr Richard Powell (Independent Medical Examiner) on a number of occasions and last reviewed on 6 March 2024. He was apparently told by Dr Powell that he would not be a suitable candidate for surgery because of his chronic ear infections.

Mr Asbury has not seen his treating surgeon. Mr Asbury said that he would like surgery however because of the chronic ear infection and risks as apparently mentioned by Dr Powell, he would need to get advice from his other treating specialists, ENT surgeon and his rheumatologist.

Mr. Asbury was diagnosed with chronic ear infections and mastoiditis. He is under the care of Dr Cheng (ENT surgeon) who operated on his left ear for chronic ear infection and mastoiditis in February 2024. He will be apparently reviewed by Dr Cheng in June 2025 and if he has had a good result then Dr Cheng would consider operating on the right ear.

Mr Asbury states that as a result of him favouring the right leg the left knee has been aching."

"He states that the right knee is not good. He has constant pain aggravated by walking. Symptoms fluctuate for no particular reason. The constant pain is rated 6-7 on a VAS scale of 10 and when it flares up the pain is a 10. He has difficulty with stairs.

Some days he has difficulty getting into the car and he has to lift the leg up to get in the car. He states that the left knee aches most of the time. It is getting worse.

He complains of right shoulder pain and he can't sleep on the right shoulder. The shoulder is restricted. On direct questioning he states that the left shoulder is okay."

1. When asked to provide "Details of any previous or subsequent accidents, injuries or conditions" the MA said:

"He states that in the early 90's, he had a right knee reconstruction from which he fully recovered. After the reconstruction he played touch football, he exercised and did boxing and had no problems in the knee."

1. The MA then turned to consider the impact of Mr Asbury's injuries on his social activities and activities of daily living (ADL's) and said:

"Prior to the knee injury in 2003 he played touch football. He no longer does any sports and he has difficulty with physical work, doing activities with the right arm above shoulder height, using stairs, kneeling and squatting. He is independent in self-care."

1. Findings on examination were reported as follows:

"Man of stated age, tall of large frame and build. He walks with a limp favouring the right leg. he sat comfortably whilst relaying the history. He relays the history in a straightforward manner.

He gets on and off the couch with no difficulty and is comfortable supine.

Examination of the right knee reveals healed surgical scar. The knee is swollen but there is no effusion. The knee is stable. There was no crepitus but there was tenderness in the patellofemoral joint. The knee lacks 5° extension and flexes to 80°.

Examination of the left knee reveals no swelling, no tenderness and no knee joint or patellofemoral crepitus. The knee extends normally and flexes to 130°.

I found tenderness in the right anterior shoulder joint and no tenderness in the left shoulder. There is wasting of the right deltoid. The right shoulder movements were restricted while left shoulder movements were normal. Impingement test was positive on the right shoulder..."

1. The MA then turned to consider the radiological and other material he had and said:

He was apparently told not to bring any x-rays. The following x-ray reports were reviewed.

X-ray left knee, 13/2/2019, Dr Forsberg Knee remains normal in alignment and joint spaces are preserved in height. The sharpening at medial joint margins is noted suggesting early OA.

X-ray right knee, 8/5/2019, Dr George Total knee replacement is evident with prosthetic components in position showing normal alignment. The appearance remains unaltered on comparison with previous.

29/5/2019, bone scan Clinical history right TKR 2013 increasing pain. There is focal area of increased blood pool and delayed activity in the medial right tibial condyle adjacent to the prosthesis. This is consistent with a local area of bone injury or loosening. Mild synovitis in the right knee.

X-ray right knee, 25/9/2019, Dr Hellwege. There is total knee joint replacement. The position appears stable with no surrounding bony abnormality. There are also fixation devices of previous anterior cruciate ligament repair."

1. The MA summarised the injuries and diagnoses as follows:

"As a result of the injury on 21 October 2003 the claimant developed knee pain. The knee was sore after a days work. He had physiotherapy and fully recovered and returned to preinjury duties.

Following the fall in December 2003 when he slipped injuring the knee, he has had persistent pain which has progressively got worse over the years and for which he had an arthroscopy in 2004, a total knee replacement in 2013 and a knee arthroscopy in 2019.

He had a consequential injury to the right shoulder following a fall and a consequential injury to the left knee as a result of favouring the right knee."

In respect of the 1st injury on 21 October 2003 (deemed):

0% impairment in respect of the right knee, the left knee and the right shoulder.

In respect of the frank injury on 22 December 2003:

20% impairment in respect of the right knee less 1/10th deduction under s323, a total of 18% WPI; 0% in respect of the left knee and 8% in respect of the right shoulder, a total of 25% WPI.

1. He then turned to consider the other medical opinions and material before him which we will refer to in due course in our discussion of the evidence.

(a) The MA failed to take into consideration the extensive degenerative changes which pre-date the subject injuries.

(b) The MA noted: "Guided by the history of the previous knee reconstruction, evidence of early degenerative changes in the knee prior to the injury in December 2003 I have deducted one tenth applying the provision of section 323 due to pre-existing arthritis. This equates to 10% WPI. He therefore has 18% WPI as a result of the work injury in December 2003."

(c) The evidence before the MA included the report of Dr Hopcroft dated 6 April 1990 who recorded a history of injury to the right knee as a result of an MVA on 13 May 1989. Dr Hopcroft recorded a history of bilateral knee symptoms as a result of this incident.

(d) The worker underwent an investigation of his right knee dated 1 June 1989, which recorded the following findings: "There is mild degenerative change in the knee with minimal spur formation. No bony loose body or chondrocalcinosis."

(e) On 30 August 1996 the worker suffered injury to his right knee when he tripped on carpet. The worker's right knee impairment was assessed in the decision of the Compensation Court of New South Wales, Matter No. 34815 of 1999, Alan Asbury v Mayne Nickless Ltd trading as Armaguard dated 23 February 2000.

(f) This decision included the following:

"He has presently, in the opinion of a medical panel a 25 per cent permanent loss of efficient use of the right leg at or above the knee.

It is common ground among the doctors that whilst the applicant had recovered symptomatically from the injury in 1989 that injury had precipitated in his knee at the onset of arthritis.

Mr Asbury is only 36 years of age and it is the opinion of Dr Berton, the treating doctor that he has a 75 per cent chance of requiring reconstructive surgery or joint replacement in his injured knee because of the deterioration of his condition. Dr Kleinman similarly is of the view the applicant will ultimately come to a total knee joint replacement."

(g) The MA references the results of the x-ray dated 13 November 2003 as summarised in the 2005 MAC, which found that the worker had early degenerative changes in his right knee. The MA does not record any of the findings of Dr Verhuel, which post- date this investigation.

(h) The report of Dr Verhuel, Treating Surgeon, dated 15 January 2004 provided a diagnosis of mild osteoarthritis and a potential underlying meniscal tear, he considered that an arthroscopy was indicated.

(i) In the report of Dr Verheul dated 9 February 2004, following the arthroscopy, Dr Verheul concluded, with the benefit of reviewing the worker's right knee during the procedure, that the worker suffered from significant lateral compartment osteoarthritis and a lunge lesion of the trochlear groove.

(j) This diagnosis of significant osteoarthritis is referenced in the latter reports of Dr Verhuel, as is the ongoing degenerative nature of the worker's osteoarthritis. In the report of Dr Verheul dated 31 March 2004, he noted that he had "once again explained to him the nature of the osteoarthritic process in his knee ... however he is fully aware of the condition and the progressive nature and that ultimately a knee replacement will be required at some stage."

(k) On 14 September 2005, Dr Verhuel noted that the worker's only real alternative is a total knee replacement however it was recommended that they try and get him a little bit older prior to embarking on this. He continued to reference in his subsequent reports that the worker required s total knee reconstruction, and that they were attempting to delay the surgery as long as possible given the worker's age.

(l) The worker was previously examined by AMS Dr Drew Dixon in the MAC dated 27 October 2005 (Matter No. WCC5702-05).

(m) Dr Dixon recorded under the heading of "details of any previous or subsequent accidents, injuries, condition or abnormality"

"He had a fractured right ankle following a motor vehicle accident in 1989 as well as injury to his left knee which required arthroscopy and AC joint of his left shoulder. He injured his right knee while working for Armaguard in 1997 having tripped on a carpet carrying a 90kg box of coins. He required ACL reconstruction of his right knee six months later on 30 April 1997."

(n) Dr Dixon provided an assessment of WPI as follows: "From this one half would be deducted for his previous injury and reconstruction of the right knee in 1998... I would deduct one half for pre-existing arthritis and cruciate reconstruction giving a 7% whole person impairment."

(o) These changes did not develop due to the subject incident, rather the incidents aggravated the pre-existing degenerative changes.

(p) In Cobcroft v Mushroom Composters Pty Ltd [2024] NSWPICMP 196 (4 April 2024), the Appeal Panel considered:

"(39) The worsening of his symptoms made it necessary that the appellant have the surgery sooner than what would otherwise have been the case. But irrespective of that, had he not had the severe osteoarthritic in his right hip as of the date of his injury, he would not have needed a hip replacement and consequently he would not have had the permanent impairment of his right hip that he now has. Consequently his pre-existing condition did make a difference in terms of the outcome for him. Had he not had the extensive disease in his right hip at the time of the injury his permanent impairment from his injury would not have nearly been as severe as it is now, because he would not have had a right hip replacement."

(q) Based Dr Berton's opinion, there was a "75 per cent chance of requiring reconstructive surgery or joint replacement in his injured knee because of the deterioration of his condition" prior to the claimed injury occurring and as such the medical evidence support that the right total knee replacement would have been required irrespective of the injury on 22 December 2003.

(r) The MA failed to consider the findings and deductions made by Dr Drew Dixon in the MAC dated 27 October 2005, or the Compensation Court Decision.

(s) The MA recorded: "In the early 90s he had a right knee reconstruction from which he fully recovered. After the reconstruction he played touch football, he exercised and did boxing and had no problems in the knee."

(t) The MA failed to take a complete history of the 13 May 1989 injury, the 30 August 1996 injury, the decision of the Compensation Court or the MAC dated 27 October 2005.

(u) The only reference to the 2005 MAC within the current MAC was with respect to the x-ray from 13 November 2003. As noted above, this x-ray demonstrated mild degenerative changes, however on arthroscopic examination, Dr Verhuel diagnosed significant lateral compartment osteoarthritis and a lunge lesion of the trochlear grove. The MA failed to consider and/or record this subsequent diagnosis and findings.

(v) Under the heading of social activities/ADL, the MA recorded:

"Prior to the knee injury in 2003 he played touch football. He no longer does any sports and he has difficulty with physical work doing activities with the right arm above shoulder height, using stairs, kneeling and squatting."

(w) This history is inconsistent with the Compensation Court Decision from 2000 which noted:

"In 1989 the applicant had also suffered injury to that knee when he was struck by a motor vehicle injury... following that surgery in 1989 he resumed his full fitness and played grade football as a prop forward without any problems. He retired from football in about 1995 because of groin surgery but it is quite apparent that he had not symptomatically recovered from the injury in 1989.

Already the applicant having been active in football, touch football, boxing and indoor cricket is unable to enjoy those pursuits..."

(x) There is no evidence within the MAC that the MA had regard to the above findings.

(y) The MA did not provide any reasoning as to why he considered it difficult or costly to determine the extent of the deduction under section 323 of the Act. In the Compensation Court Decision, a deduction was made of 20 per cent of the loss for the pre-existing degenerative changes. In the 2005 MAC, Dr Dixon provided an assessment of WPI and said: "From this one half would be deducted for his previous injury and reconstruction of the right knee in 1998..."

(z) The MA did not provide any commentary on these deductions in the current MAC or reasoning regarding why a different approach should have been taken to the 2005 MAC.

(aa) The MA referenced the reports of Dr Powell who deducted one third for pre-existing conditions.

(bb) The MA did not record a history of or commentary with respect to the opinions of Drs Hopcroft or Panjratan who both considered that a 50% deduction was appropriate when having regard to the findings of the 2005 MAC. In the earliest report of Dr Ghabrial, he considered that the impairment should be apportioned with 50% attributed to the 1997 injury and 50% to the October 2003 date of injury.

(cc) In making a deduction, an MA is required to consider whether this assumption was at odds with the available evidence.

(dd) The MA failed to provide reasons why, guided by the 2005 MAC, a 50% deduction should not be made based on the contemporaneous evidence available to him.

(ee) In Virtue, Basten JA considered whether any deductions from an injury, which in both the respondent's worker's matter and in the decision of Virtue relates to the right knee, should flow through to any consequential conditions and assessed impairment of these consequential conditions.

(ff) Any deductions pursuant to section 323 of the 1998 Act made for the right knee condition, should 'logically flow through to any consequential impairments', being the respondent worker's consequential left shoulder condition. We note that no impairment was assessed by the MA for the consequential left knee condition.

1. As noted earlier, the respondent submits that no errors were made.
2. In addition, the respondent adds:
   1. The Medical Assessor was not required to consider all of the evidence that was lodged by the parties, but was only required to consider evidence which he was bound to consider (Roger v De Gelder [2015] NSWCA 211 at [90] - [111]). Noting the Medical Assessor was undertaking a medical assessment and resolving a medical dispute, he was not required to consider a prior judgement in any detail and he has not committed any error in this matter.
   2. The appellant's further submissions are misconceived as Basten AJ's remarks in Virtue have been misconstrued and treated as ratio when they were unambiguously obiter.
   3. At [55] his Honour stated: "Not having been raised in these terms, this is not a factor which affects the outcome in this Court, but it may be a matter which will need to be considered in an appropriate case."
   4. Furthermore, the deduction required by section 323 is to the specific impairment assessed pertaining to the specific injury. It is inconsistent with section 323 to deduct an impairment in respect of one body part, simply because a deduction was to be made in respect of another body part. Conducting such a deduction would not be consistent with the fact section 323 is focused upon the impairment to the specific injury or impairment and requires consideration to medical evidence pertaining to a specific injury or impairment.

1. To begin with, the Panel accepts the respondent's submission regarding Virtue, and we do not propose to consider it further in respect of this matter.
2. The MA found no impairment as a result of the first date of injury, namely 21 October 2003 (deemed), and assessed all the impairments as a result of the second frank injury on 22 December 2003. In this regard he found 20% WPI for a fair result following the right total knee replacement which is the correct figure. He then made a one-tenth deduction leaving Mr Ashbury with 18% WPI.
3. The MA then found no impairment of the left knee as a consequential injury, and found 8% WPI for the right shoulder, being a consequential injury, with a combined total (18:8) of 25% WPI.
4. The MA has based his decision on a number of factors including the fact that under the heading "Details of any previous or subsequent accidents, injuries or condition", he notes that in the early 1990s Mr Ashbury had a right knee reconstruction '...from which he fully recovered. After the reconstruction he played touch football, exercised and did boxing and had no problems in the knee'.
5. When referring to the other medical opinions, the MA notes that Professor Ghabrial had not made any deduction for pre-existing condition, whereas orthopaedic surgeon, Dr Powell has made a one-third deduction.
6. This is not strictly correct since in the earliest report of Dr Ghabrial, he considered that the impairment should be apportioned with 50% attributed to the 1997 injury and 50% to the October 2003 date of injury.
7. Unfortunately, as the appellant pointed out, the MA does not refer to a number of other medical reports that were available to him at the time, particularly those of Dr R Verheul, treating orthopaedic surgeon at the time of arthroscopy in 2003/2004 who noted "significant lateral compartment osteoarthritis and a lunge lesion in the trochlear groove'. In his report of 31 March 2004 he noted that it is predictable that Mr Ashbury's osteoarthritic process is progressive '...and that ultimately a knee replacement will be required at some stage'.

1. We do not accept the respondent's submission that the Medical Assessor "was not required to consider all of the evidence that was lodged by the parties, but was only required to consider evidence which he was bound to consider."

1. He was required to consider all relevant evidence and as the appellant noted, and we agree, he failed in this task.

1. In his report of 14 September 2005 Dr Verheul noted the only real alternative was a total knee replacement but suggested that _"..._they try and get him a little bit older prior to him embarking on this."
2. As noted earlier, Dr Dixon also provided an assessment of WPI and made a one-half deduction for his previous injury and the reconstruction of his right knee in 1998.
3. We agree with the appellant's submission that there was significant evidence before the MA confirming that Mr Asbury had severe degenerative changes in his right knee prior to his more recent injuries.
4. We also agree with the submission that the MA failed to take a complete history of the injury in May 1989 or 30 August 1996, and the decision of the Compensation Court or the MAC of 27 October 2005.
5. This confirms then that the MA has failed to consider all of the evidence, in particular the reports of Drs Dixon and Verheul, only mentioning those of Drs Ghabrial and Powell.

1. Our task then is to apportion the impairment between the two injuries.

1. We agree with the MA that the first injury on the deemed date of 21 October 2003 was relatively minor.

"Mr Asbury states that on 21 October 2003 after he finished work the right knee was swollen. He consulted the doctor and was treated conservatively with physiotherapy. He said that the knee fully recovered and he returned to normal duties and had no problems with the knee until 22 December 2003."

1. The subsequent frank injury on 22 December 2003 was clearly more significant since, as the MA noted:

"He slipped on a ledge and fell. He said he could not get up and he had pain in the back and right knee. Co-workers went looking for him as he had not returned and found him on the ground. They helped him up and Mr Asbury then went to see the local doctor. He had time off and was then certified fit to work on selected duties. Apparently selected duties were not available and he did not resume work and he has not worked since."

1. We agree that the MA was correct in applying all the impairment to the second injury.

1. The MA assessed 0% WPI in respect of the consequential injury to the left knee and we do not consider that the MA has erred in his assessment. Neither the appellant nor the respondent made any submissions regarding the assessment of the left knee so that it should stand.

1. With respect to the right shoulder, this was accepted as being a consequential injury and again, neither party has challenged the assessment of 8% WPI. We accept it and it should stand.

1. Having said that, the nature of this claim and the terms of the referral require us to apportion between the two injuries, and then consider the application of s323 to the injury to the right knee.
2. As a starting point, as noted earlier, the MA assessed 20% WPI for a fair result following the right total knee replacement which is the correct figure.

1. Having carefully considered the whole of the evidence, and the numerous medical reports noting the advanced degenerative changes in the right knee, we consider that 1/4 of the impairment relates to the first injury and 3/4 to the second injury.

1. The total impairments, the apportionment and the respective deductions are noted in the Table attached to our decision.
2. For these reasons, the Appeal Panel has determined that the MAC issued on 3 October 2004 12 December 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 Tommasino Mastroianni and issues this new Medical Assessment Certificate as to the matters set out in the table below:

page and paragraph number in NSW workers compensation guidelines

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

% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality

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

page and paragraph number in NSW workers compensation guidelines

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

% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality

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

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