1. On 8 September 2025, Bradley Dunn (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on

22 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 appellant was a self-employed carpet layer who claims that, as a result of the nature and conditions of his employment, he sustained injuries to his bilateral knees and lumbar spine.
2. On 9 September 2024, the appellant's solicitor forwarded to the respondent's insurer a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The appellant relied on an assessment made by orthopaedic surgeon, Dr James Bodel of 32% whole person impairment (WPI). Dr Bodel found 18% WPI for the right knee, 10% WPI for the left knee, 7% WPI for the lumbar spine and 1% WPI for scarring.
3. The respondent responded to the claim on 18 December 2024, making an offer to settle the claim on the basis of 25% WPI of the bilateral knees and scarring in accordance with an assessment made by orthopaedic surgeon, Dr Richard Powell on 22 October 2024.

Dr Powell found 18% WPI for the right knee, 10% WPI for the left knee, 0% WPI for the lumbar spine and 1% WPI for scarring. 4. Proceedings were commenced in the Personal Injury Commission (Commission) seeking lump sum compensation in accordance with Dr Bodel's assessment. The matter was referred to the Medical Assessor for an assessment of the degree of permanent impairment at the bilateral lower extremities, lumbar spine and scarring. 5. Medical Assessor Honeyman made an assessment of 17% WPI of the right lower extremity, 0% WPI of the left lower extremity, 7% WPI of the lumbar spine and 2% WPI for scarring.

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 the Panel had sufficient information before it on which to resolve the appeal.

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.
2. The appellant provided a written statement dated 27 March 2025.
3. The appellant stated that in or around 1995, he commenced self-employment with the respondent as a floor layer on a full-time basis, working 40 hours per week. The applicant was required to perform duties involving the removal and installation of vinyl and carpet flooring, which required the use of a "knee kicker" device and various other tools. The applicant engaged in repetitive bending, kneeling, squatting, twisting and lifting of heavy flooring materials.
4. On or around 14 June 2019, the applicant presented to Gunnedah Hospital Emergency Department due to debilitating pain and swelling in his right knee associated with the use of the knee kicker device and crawling across floors while completing his ordinary duties. In the lead up to this date, the appellant had experienced intermittent discomfort in both knees due to the repetitive nature of his work.
5. The applicant's injury was treated conservatively initially. The applicant was referred to various orthopaedic surgeons and was treated with ultrasound-guided injection to the right knee which caused an adverse reaction and provided only short-term pain relief.
6. Orthopaedic surgeon, Dr Brett Fritch performed surgery to the appellant's right knee on

4 February 2020. Following the surgery, the appellant experienced a blood clot and was required to wear a leg brace. The appellant continued to experience pain and swelling at the right knee. 7. The appellant saw another surgeon, Dr Bruce Caldwell, who performed a second surgery to the right knee in the form of a right patellofemoral joint replacement on 2 December 2020. 8. At a review with Dr Caldwell on 20 January 2021, the appellant complained of significant pain in his left knee. Following an MRI scan, surgery to the left knee was recommended. On

5 July 2021, Dr Caldwell performed a left patellofemoral reconstruction with tibial tubercle transfer. 9. At a post-operative review, the appellant was advised to use an Osteotron IV ultrasound electronic bone growth stimulator as X-rays revealed a gap between bone graft and tibial bone. 10. The appellant was advised to undergo further surgeries to both knees, however, in February 2023, he suffered an acute medial cerebellar infarction. As a result of the stroke, the further surgeries were postponed indefinitely. 11. The appellant said he continued to experience debilitating pain in his left and right knees which affected his ability to perform basic daily activities involving periods of walking or standing. The appellant experienced extreme pain when engaging in activities involving bending, lifting and carrying. It was now more difficult for the appellant to put on his shoes and socks, lift up his children, kneel or jump. 12. An operation report prepared on 5 July 2021 by Dr Caldwell confirmed that the appellant was admitted to Lingard Private Hospital for patellofemoral reconstruction with tibial tubercle transfer at the left knee. 13. In his medico-legal report for the appellant, dated 11 April 2024, Dr Bodel took a history relating to the injury that was broadly consistent with the appellant's statement evidence.

Dr Bodel noted that Dr Caldwell had performed a tibial tubercle transfer and ITB release in the left knee on 5 July 2021. This was complicated by delayed union of the osteotomy which required the use of a bone stimulator to facilitate healing. 14. In assessing impairment at the left knee, Dr Bodel recorded:

"In the left knee he has had a good outcome from a proximal tibial osteotomy and that attracts a 10% Whole Person Impairment using Table 17-33 on Page 547."

1. In his report for the respondent, dated 22 October 2024, Dr Powell, recorded the same history regarding surgery to the left knee. Dr Powell noted that the left knee remained symptomatic with intermittent and anteroinferior pain. The appellant was aware of clicking and could not kneel, squat or run. There was no swelling, instability or locking.
2. In assessing impairment at the left knee, Dr Powell commented:

• Section 17.2f Range of Motion -10 on Page 537, there is no assessable permanent impairment.
• According to Table 17.2j "Diagnosis Based Estimates" a tibial tubercle transfer with a good result by analogy to a proximal tibial osteotomy is allocated a 10% whole person impairment.
• I would not make any deductions for pre-existing pathology."

1. The Medical Assessor noted that the history was somewhat confusing as the appellant had memory problems following his stroke. It was noted that the appellant had problems with the left knee and underwent surgery. The appellant continued with pain in both knees and had been told he had a neuroma in the left knee.
2. The Medical Assessor referred to Dr Caldwell's history of attempted management and surgical improvement. Brief mention was made of the assessments of impairment made by Dr Bodel and Dr Powell.
3. The Medical Assessor stated:

"The knees are rated on loss of ranges of movement as in T17-10 p537.

The left knee has ranges (120 and 0) that attract no LEI."

1. The Medical Assessor noted that Dr Bodel and Dr Powell varied in any measurements but "agreed on the patellofemoral replacement rating."

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 Medical Assessor made an assessment of the left knee on the basis of incorrect criteria or, alternatively, the MAC contained a demonstrable error with respect to the assessment of the left knee.
3. The appellant referred to the operation report dated 5 July 2021 and noted the assessments of impairment made by Dr Bodel and Dr Powell by analogy to a proximal tibial osteotomy with a good result.
4. The appellant submitted that the Medical Assessor failed to comply with paragraphs 1.8, 1.9, 3.13.5 of the Guidelines and paragraph 17.2 of the AMA5 guidelines. In particular, after making an assessment on the basis of range of motion, the appellant asserted that the Medical Assessor failed to consider other methods of assessment including paragraph 17.2 of the AMA5 guidelines. The appellant submitted that the Medical Assessor gave no reason why he did not consider paragraph 17.2 of the AMA5 guidelines when both Dr Powell and Dr Bodel did so in making their assessments.
5. The appellant submitted that the Medical Assessor should have made an assessment of 10% WPI at the left knee in accordance with paragraph 17.2 and Tables 17-1 and 17.33 of the AMA5 guidelines.
6. The respondent did not oppose the appeal. The respondent conceded that the Medical Assessor failed to apply Table 17-33 of the AMA5 and failed to consider paragraphs 1.9 and 3.5 of the SIRA Guidelines.
7. The respondent noted that both Dr Bodel and Dr Powell found the left knee attracted 0% WPI due to a full range of movement but both found it appropriate to apply Table 17-33, determining that there was a good result by analogy to a proximal tibial osteotomy and assigning 10% WPI.
8. The respondent agreed that the Medical Assessor failed to consider the assessments of

Dr Bodel and Dr Powell. The respondent conceded that the MAC was affected by an error under ss 327(3)(c) and (d) of the 1998 Act.

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. In Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 the Court considered the expression "incorrect criteria" in s 327(3)(c) of the 1987 Act, and stated:

"The expression 'incorrect criteria' is undefined in the Act. In Campbelltown City Council v Vegan [ 2004] NSWSC 1129, Wood CJ at CL referred (at [58]) to a statement in the minister's Second Reading speech to the effect that s327(3)(c) was designed to cover circumstances where the Guides themselves had been incorrectly applied. His Honour observed (at [59]) that this tended to suggest that the 'criteria' upon which assessment is to be based are to be found in any relevant guides including guides issues by WorkCover. At [60] his Honour observed that this view drew support from the requirement in s322(1) that the assessment is to be made 'in accordance with the WorkCover Guidelines.'

The Chief Judge's decision went on appeal to this Court (Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284). Basten JA, with whose reasons McColl JA agreed said (at 391[95]) that, while it was arguable that factual errors made by an approved medical specialist, as recorded in the Certificate, may be 'demonstrable errors' within s327(3)(d), they would not usually satisfy the 'incorrect criteria' ground. His Honour observed that the latter ground:

'must refer to such matters as the tests set out in the Guidelines, where they are applicable.'

1. The concept of "demonstrable error" in s 327(3)(d) of the 1998 Act was discussed at length in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 (Vannini) (Gleeson JA with Macfarlan JA and Barrett AJA agreeing) from [76] to [92]. The Court concluded:

"That a demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist, is consistent with the tentative remarks of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales."

1. The parties to the present appeal are in agreement that the Medical Assessor made an assessment on the basis of incorrect criteria or that his MAC was affected by demonstrable error due to the Medical Assessor's failure to follow the approach to assessment mandated by paragraphs 1.9 and 3.5 of the Guidelines and adopted by both Dr Bodel and Dr Powell.
2. Paragraph 1.9 of the Guidelines relevantly provides:

"1.9 The Guidelines may specify more than one method that assessors can use to establish the degree of a claimant's permanent impairment. In that case, assessors should use the method that yields the highest degree of permanent impairment. (This does not apply to gait derangement - see paragraphs 3.5 and 3.10 in the Guidelines)."

1. Chapter 3 of the Guidelines relevantly provides:

"3.2 Assessment of the lower extremity involves physical evaluation, which can use a variety of methods. In general, the method should be used that most specifically addresses the impairment present. For example, impairment due to a peripheral nerve injury in the lower extremity should be assessed with reference to that nerve rather than by its effect on gait.

3.3 There are several different forms of evaluation that can be used, as indicated in AMA5 sections 17.2b to 17.2n (pp 528-54). AMA5 Table 17-2 (p 526) indicates which evaluation methods can be combined and which cannot. It may be possible to perform several different evaluations, as long as they are reproducible and meet the conditions specified below and in AMA5. The most specific method of impairment assessment should be used.

3.5 In the assessment process, the evaluation giving the highest impairment rating is selected. That may be a combined impairment in some cases, in accordance with the AMA5 Table 17-2 'Guide to the appropriate combination of evaluation methods', using the Combined Values Chart on pp 604-06 of AMA5."

Thirteen methods can be used to assess the lower extremities, as listed

in table 17-2. Table 17-1 classifies the 13 methods into 3 non-mutually

exclusive categories to reflect their primary mode of assessment: (1)

anatomic, (2) functional, or (3) diagnosis based.....

Diagnosis-based estimates are used to evaluate impairments caused by

specific fractures and deformities, as well as ligamentous instability,

bursitis, and various surgical procedures, including joint replacements

Table 17-1 Methods Used to Evaluate Impairment of Lowe Extremities

Table 17.33 Impairment Estimates for Certain Lower Extremity Impairments

Poor result Estimate impairment according to examination and arthritic degeneration."

1. On review of the MAC, the Appeal Panel notes that the history regarding surgical treatment of the left knee was not accurately recorded by the Medical Assessor.
2. On examination, the Medical Assessor found a good range of knee movement from 0° to 120°. In making his assessment, the Medical Assessor noted that this range of movement did not attract any impairment.
3. Paragraphs 1.9 and 3.5 of the Guidelines then required the Medical Assessor to consider whether any other method of evaluation more specifically addressed the impairment present and select the method that yielded the highest impairment rating.
4. Both of the Independent Medical Examiners adopted this approach and referred to Table

17-33, finding that the tibial tubercle transfer and ITB release of the left knee region performed on 5 July 2021 by Dr Caldwell was equivalent or analogous to a proximal tibial osteotomy. As the surgery had yielded a good result, Dr Bodel and Dr Powell both found 10% WPI. 5. The Medical Assessor referred to the approach taken by the Independent Medical Examiners but did not adopt it himself. Nor did the Medical Assessor explain why he did not consider that approach appropriate. In this regard the Appeal Panel agrees with the parties that the Medical Assessor fell into errors of the kind provided in ss 327(3)(c) and (d) of the 1998 Act. 6. The Appeal Panel notes that Dr Caldwell did not perform a proximal tibial osteotomy but an osteotomy of the 'tibial tubercle'. AMA 5 and the Guidelines do not specifically provide for a tibial tubercle osteotomy. However, paragraph 1.23 of the Guidelines provides:

"Given the range, evolution and discovery of new medical conditions, these Guidelines cannot provide an impairment rating for all impairments... In situations where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.' The assessor must stay within the body part/region when using analogy. The assessor's judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guidelines criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment."

1. The Appeal Panel accepts the parties' submissions that the surgery performed by

Dr Caldwell was analogous to a proximal tibial osteotomy. Applying paragraph 1.23, the Appeal Panel accepts that the left knee ought to be assessed at 10% WPI in accordance with Table 17.33 of AMA 5. 2. For these reasons, the Appeal Panel has determined that the MAC issued on

22 August 2025 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 Peter Honeyman 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)

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