1. On 31 January 2025, Giuseppe Ferraro (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The relevant medical dispute was assessed by Medical Assessor Rob Kuru (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 8 January 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 MAC contains a demonstrable error.
3. The President's delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out (in accordance with her decision in this regard dated 24 February 2025). The Appeal Panel has therefore been convened and it has conducted a review of the original medical assessment, but limited to the grounds of appeal on which the Appeal is made.
4. Clause 128 of the Personal Injury Commission Rules 2021 (the Rules) and Procedural Direction PIC7 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 cl 128(1) of the 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 employed by Coles Supermarkets Australia Pty Ltd (the respondent) when he sustained injury on an agreed deemed date of 19 October 2023.
2. He was injured whilst performing his normal employment duties for the respondent, particularly as a fresh produce manager between 2011 and July 2023. He describes these duties in his 1 August 2024 statement (found at page 3 of the Application to Resolve a Dispute (ARD)) as "heavy, repetitive and fast paced work involving both of my arms". He injured both his shoulders.
3. He says that he initially underwent surgery to his right shoulder on 28 July 2016, and subsequently underwent surgery to his left shoulder on 4 June 2020 and on 12 November 2020. The surgeries resulted in scarring.
4. He says that he was able to return to work for the respondent following these surgeries, but continued to experience ongoing pain in both his shoulders, for which he sought treatment from his general practitioner and took pain medication.
5. He says that in addition to his injury to his shoulders deemed to have occurred on 19 October 2023, he also sustained an injury in the course of his employment with the respondent on 5 August 2004. That injury was to his left knee, but he developed consequential conditions in his lumbar spine, right knee, right wrist, and right elbow.
6. He says that he last worked for the respondent in July 2023 when he was told "that I was not able to come back to work until I was cleared as fully fit for pre-injury duties with respect to all of my workers compensation injuries".
7. The appellant claimed compensation from the respondent with respect to his injury to his shoulders, and the respondent accepted that it was liable to pay compensation in this regard, in accordance with the provisions in the Workers Compensation Act 1987 (the 1987 Act).
8. The appellant then claimed lump sum compensation in this regard pursuant to s 66 of the 1987 Act, by a letter from his solicitors to the respondent dated 19 October 2023 (found at page 9 of the ARD). He relied upon opinions from Dr Ho, who had assessed him with 14% whole person impairment.
9. The respondent arranged for Dr Machart to also assess the appellant, and based upon that doctor's assessment, the respondent wrote to the appellant's solicitors on 22 January 2024 (found at page 11 of the ARD), advising that it was unable to make any offer in relation to the appellant's claim pursuant to s 66 of the 1987 Act.
10. The appellant therefore lodged the ARD with the Personal Injury Commission (Commission), claiming compensation pursuant to s 66 of the 1987 Act. The ARD specifically:

(a) pleaded the appellant's injury as a disease injury with a deemed date of 19 October 2023;

(b) described the appellant's injury as "to his left and right shoulder as a result of the heavy and repetitive nature and conditions of his employment", and

(c) listed the body parts/systems claimed as - left upper extremity, right upper extremity, and TEMSKI/scarring.

1. There being no dispute from the respondent as to liability in relation to the pleaded injury, the Commission referred the dispute as to the extent of the appellant's whole person impairment as a result of the injury directly to the Medical Assessor, by a referral dated 13 November 2024.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel formed the view that the Medical Assessor had fallen into error in a number of respects when assessing the degree of the appellant's whole person impairment.
3. The Appeal Panel also formed the view that it was not itself able to determine the degree of the appellant's whole person impairment without a further medical examination of him. It therefore exercised its power in accordance with s 324 of the 1998 Act to require the appellant to attend an examination with Dr James Bodel from the Appeal Panel on 16 May 2025.
4. A preliminary review certificate was issued by the Appeal Panel and provided to the parties. It informed the parties of the medical examination on 16 May 2025, and it also advised:

"Having conducted a preliminary review of the Medical Assessment Certificate (MAC), the Panel has formed the view that the Medical Assessor had fallen into error in a number of respects when assessing the degree of the appellant's permanent impairment.

In accordance with the two-stage process explained by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792, the Panel has also formed the view that it is not itself able to determine the degree of the appellant's permanent impairment without a further medical examination of him. It therefore exercises its power in accordance with s 324 of the Workplace Injury Management and Workers Compensation Act 1998 to require the appellant to attend the examination referred to below.

It is appropriate that the full reasons for the Panel finding error are incorporated in the final Statement of Reasons for Decision of the Appeal Panel in relation to a Medical Dispute, to be issued after the Panel's further assessment of the appellant's permanent impairment.

It is sufficient at this stage to advise the Panel's opinion that the Medical Assessor erred in:

(a) failing to consider relevant and significant material - see Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor [2017] NSWSC 453;

(b) failing to obtain a history from the appellant regarding his pleaded injury;

(c) failing to assess the medical dispute as crystallised by the documents in the application to resolve a dispute and the reply - see Klement v Bull 'N' Bush Nurseries Pty Limited [2024] NSWSC 466, and

(d) assessing an injury not pleaded by the appellant."

1. The appellant attended the 16 May 2025 medical examination ordered.

1. The Appeal Panel has before it the following documents (which were also provided to the Medical Assessor) and has taken them into account in making this decision:

(a) the ARD and its attachments, and

(b) the respondent's Reply (Reply) and its attachments.

1. The parts of the MAC that are relevant to the Appeal are set out in the body of this decision. It is unnecessary however to refer to the MAC in detail given the nature of the Appeal.
2. The Medical Assessor notes that the referral involves a 19 October 2023 date of injury, and body parts/systems of the left upper extremity, the right upper extremity, and scarring/TEMSKI. However, he then records the following history (the history section of his report is produced in full due to its relevance to this decision);

"Mr Ferraro told me that in November 2023 he was at home, going downstairs. His right knee collapsed under him, and he fell, hitting his right arm. Mr Ferraro told me had a previous compensable knee injury. He started to have immediate swelling in his wrist, which radiated up his arm towards his elbow. He was referred to Dr Jansen, Orthopaedic Surgeon. A diagnosis of a torn biceps' insertion was made. A request to the insurer for surgical repair was declined until February 2024. When Mr Ferraro returned to Dr Jansen for review, he determined that the window for surgical repair had passed and recommended nonoperative treatment.

Subsequently, Mr Ferraro has noted decreased strength in his right elbow with increasing pain in his right shoulder. He had previously undergone a rotator cuff repair around 16 June 2016 and his shoulder had been pretty good after that. He said subsequent to the fall, the shoulder has been more painful.

With respect to the left upper extremity, Mr Ferraro told me that it was good and he had no problems with it subsequent to having had surgery on his shoulder on 17 February 2020."

1. The Medical Assessor notes, under the heading of 'previous or subsequent accidents' that the applicant had previously had surgery on his right shoulder in 2016, and had previously had surgery on his left shoulder on 4 June 2020 and on 12 November 2020.
2. The Medical Assessor examines both shoulders (and makes range of motion recordings), but reviews no radiology in relation to either shoulder. He summarises his opinion as follows:

"Mr Ferraro sustained a fall at home when his right knee gave way on him. He was subsequently diagnosed with a rupture of the right biceps' insertion. Ultimately, the decision was made to treat this nonoperatively. He aggravated a previous rotator cuff repair in his right shoulder."

1. The Medical Assessor assesses the appellant with 4% whole person impairment in relation to the right upper extremity (3% upper extremity impairment for the shoulder and 4% upper extremity impairment for the elbow). He apportions the appellant's overall shoulder upper extremity impairment between the 14% found by him and the 11% found by Dr Ho, to conclude that 3% represents the "deterioration in range of motion of the right shoulder subsequent to the recent injury". The Medical Assessor then assesses the appellant with 0% whole person impairment in relation to the left upper extremity, and with 0% whole person impairment in relation to scarring/TEMSKI (as "no surgical procedures have been undertaken for the recent injury").

1. As noted at paragraph 19 above, Dr James Bodel of the Appeal Panel conducted an examination of the appellant on 16 May 2025 and has now reported to the Appeal Panel:

"1. The worker's medical history, where it differs from previous records

I have carefully reviewed the medical history provided by Mr Ferraro and it is consistent with his signed statement dated 1 August 2024.

The important features are that the claimant was employed as a Department Manager at the Warrawong Coles Supermarket store, south of Wollongong, and he commenced the work in 1999. Later in 2006, he worked as a Regional Department Manager for a period of about five years.

He then moved to working as the Fresh Produce Manager at Helensburgh (just the one store, not the multiple stores throughout the region) and this was a very physical and heavy type of work, 38 hours a week. He often worked 40-50 hours a week depending on the workload, as it was a very busy store. He confirms that he was 'receiving a salary and I was not paid for any of the extra hours that I worked'.

His statement then goes through the heavy nature of the work that he did, and that is part of the medical record and I will not reiterate it here.

Importantly, it is also noted in the ARD that the injury is listed as a deemed date of injury, being 19 October 2023, and the description of the injury is as follows:

'The applicant suffered injury to his left and right shoulder as a result of the heavy and repetitive nature and conditions of his employment.'

That is the injury which has been pleaded. Unfortunately, the wording of the referral for the assessment of permanent impairment only lists 'left upper extremity, right upper extremity and scarring' as the body parts to be assessed. It does not confine the upper extremity reference to 'shoulders only', as it should have.

The appellant's complete medical history, therefore, is outlined in his statement in relation to the pleaded injury, which is the injury to both shoulders.

2. Additional history since the original medical assessment was performed

I have assessed the range of motion in both shoulders. The diagnosis of the pathology and the associated injury is bilateral rotator cuff pathology proven on clinical testing and also on the accompanying investigation reports.

The operative reports also confirm the intraoperative findings of 'biceps wear with a full-thickness tear of the upper subscapularis and some partial-thickness tearing of the anterior supraspinatus on the bursal side and a virtual full-thickness tear of the anterior supraspinatus extending into the shoulder joint_._'

This pathology was identified in both shoulders and that is the diagnosis of the accepted pleaded injuries.

There is some restriction of elbow movement on the right-hand side which is an unrelated matter and not a pleaded injury in the circumstances.

There is scarring from the operations. The scars are rated as 0% WPI. They are well healed surgical scars. In item 14.6 on page 73 of the WorkCover Guides, 'A scar may be present and rated as 0% WPI. Note that uncomplicated scars from standard surgical procedures do not of themselves rate an impairment.'

There is no neurological abnormality in the upper limbs.

4. Results of any additional investigations since the MAC

The conclusions are that this gentleman has suffered rotator cuff pathology in both shoulders as a result of the nature and conditions of his heavy work over an extensive period of time while employed with Coles Supermarkets Australia Pty Ltd.

The pleaded injury is, 'Injuries suffered to the left and right shoulder as a result of the heavy and repetitive nature and conditions of his employment' and that is confirmed on clinical testing here today.

He has a rateable restriction of shoulder movement on both sides. This is assessed using Figure 16-40 on page 476, Figure 16-43 on page 477, and Figure 16-46 on page 479 (of AMA 5). The degree of recorded restriction of movement constitutes a 15% Upper Extremity Impairment for the Right Upper Extremity and a 15% Upper Extremity Impairment for the Left Upper Extremity.

This converts to a 9% Whole Person Impairment for the Right Upper Extremity and a 9% Whole Person Impairment for the Left Upper Extremity, using Table 16-3 on page 439 (of AMA 5).

There is no indication clinically of any pre-existing abnormality or condition and there is no deduction under s 323 of the 1998 Act in these circumstances. The claimant came to his workplace initially in 1999 at Warrawong. He later moved to a Regional Department Manager from 2006, and then to Helensburgh as a Fresh Produce Manager in 2011. He therefore commenced work with the Employer 24 years prior to the deemed date of injury, being 19 October 2023, and according to his statement, and in the history given here today, he did perform very heavy manual tasks throughout this period of time.

There was no medical evidence of any pre-existing abnormality or condition prior to the commencement of his work in 1999, and therefore no basis for a deduction for pre-existing impairment."

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:

"...it is clear from a reading of the MAC that the MA failed to consider the injury as pleaded in the ARD, failed to consider the evidence annexed to the ARD, and failed to assess the injury as an injury to the left and right shoulder caused by the heavy and repetitive nature and conditions of the Appellant's employment with the Respondent. All of these constitute a demonstrable error."

1. The appellant specifically refers to his 1 August 2024 statement (discussed at paragraphs 7-11 above), Dr Ho's report dated 21 September 2023 (found at page 23 of the ARD) and his pleadings in the ARD (outlined at paragraph 15 above).
2. The appellant then refers to the history obtained by the Medical Assessor (see paragraph 24 above) as "evidence that the MA has failed to consider the injury as pleaded". This failure is a demonstrable error as it is readily apparent from an examination of the MAC.
3. The appellant also emphasises that the Medical Assessor (see paragraph 27 above):

(a) assessed right elbow impairment, when an injury to the right elbow was not pleaded in the ARD;

(b) did not assess scarring due to no surgical procedures having been undertaken, when the appellant had undergone three shoulder operations, and

(c) apportioned right shoulder upper extremity impairment by utilising the impairment found by Dr Ho in order to determine the impairment due to the "recent injury", when the recent injury (which occurred in November 2023 according to the history recorded by the Medical Assessor) was not the pleaded injury in the ARD.

1. The appellant submits that it is appropriate for the Appeal Panel to re-examine him in order to correct the errors of the Medical Assessor. However, the appellant also submits that the Appeal Panel can use the range of motion recordings in the MAC, and should limit the re-examination to correcting the history of injury and assessing scarring.
2. In reply, the respondent concedes that:

"The history obtained by the Medical Assessor...is different to that pleaded in the Application to Resolve a Dispute, the history provided to Dr Key-Ho, Dr Machart and the appellant's statement...Unfortunately, the Medical Assessor did not assess the shoulders in accordance with the pleadings in the Application to Resolve a Dispute and this may amount to a demonstrable error."

1. The injury in November 2023 recorded by the Medical Assessor is not an injury for which any claim has been made by the appellant. The Medical Assessor did not correlate the history recorded by him of that injury with the description of the injury pleaded in the ARD and described in the appellant's 1 August 2024 statement, as well as in the medical evidence from Dr Ho (21 September 2023 report) and Dr Machart (9 January 2024 report - found at page 14 of the ARD). In assessing an injury for which no claim had been made, the respondent concedes that the MAC contains a demonstrable error.
2. The respondent does not level any criticism at the Medical Assessor, suggesting that he relied upon the history provided by the appellant during his clinical examination of the appellant, and that the "appellant did not however provide a history of injury to his right shoulder or left shoulder, which was the purpose of the assessment".
3. The respondent requests that the Appeal Panel re-examine the appellant. It submits that the re-examination should not be limited as submitted by the appellant (see paragraph 34 above):

"The fall as referred to by the Medical Assessor in the history (Paragraph 4 History relating to injury) relates to a torn biceps tendon. The Medical Assessor based his assessment on the history provided. That history was incorrect although informed by the appellant to the Medical Assessor. If the history is incorrect then any assessment of WPI resulting from that incident would not form a part of the claim as pleaded in the ARD and the assessment of WPI would be tainted by the incorrect history."

(a) the medical evidence indicates that the appellant's "shoulder pathology is multi-factorial" - consideration needs to be given as to whether there should be deductions pursuant to s 323 of the 1998 Act when the appellant's whole person impairment as a result of the pleaded injury is correctly assessed;

(b) the medical evidence indicates that the appellant was making "good progress" with his shoulder injuries by 15 March 2021 (having good external rotation and power, but pain and weakness on elevation), and that by 21 February 2022, Dr Jansen (his treating orthopaedic surgeon) was pleased with that progress;

(c) although he assessed an injury for which no claim had been made by the appellant, the Medical Assessor nevertheless recorded that the appellant had told him that the appellant had "no problems" with his left shoulder (see paragraph 24 above) - a statement which "would indicate little or no assessable loss, although this is ultimately a matter for the Medical Panel to re-assess on appeal", and

(d) Dr Ho's 21 September 2023 report assessed the appellant's scarring at 0% whole person impairment.

1. In Campbelltown City Council v Vegan [2006] NSWCA 284, the Court of Appeal held that an 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.
2. The procedures on appeal are contained in s 328 of the 1998 Act. An 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 an appeal is made, that is, those errors identified by a party in its submissions - see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
3. An appeal panel in this regard has to ensure that it does not disturb any unchallenged findings in a medical assessment certificate. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated (at [35]):

"The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and [emphasis in original] the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor's reasoning with respect to that finding; neither course was part of its statutory function."

1. The Appeal Panel accepts the submissions of both parties that there is a demonstrable error in the MAC. It is clear from the history recorded by the Medical Assessor that he did not assess the injury pleaded in the ARD. He assessed instead an injury that occurred in November 2023. The Appeal Panel refers specifically to the extracts from the MAC quoted at paragraphs 24 and 26 above.
2. Whether this error arose as a result of his discussions with the appellant during his examination of the appellant is of little import. It is clear that he did not have regard to the pleadings in the ARD, the appellant's 1 August 2024 statement, or the medical evidence in both the ARD and the Reply (particularly the reports from Drs Ho and Machart). It is clear that he did not assess the medical dispute that had been referred to him.
3. He assessed an injury to the appellant's right wrist (as a result of an incident in November 2023) that was not pleaded by the appellant. He did not obtain a history (either directly from the appellant or otherwise) regarding the actual injury pleaded by the appellant. In the opinion of the Appeal Panel, his errors in this regard are readily apparent from an examination of the MAC, and thus a demonstrable error. In this regard, the Appeal Panel refers to the decision of Hoeben SCJ in Merza v Registrar of the Workers Compensation Commission and Anor [2006] NSWSC 939 (at [39]):

"I do not propose to, nor is it necessary, that I define what is 'demonstrable error' for the purposes of s 327 of the Act in an exhaustive way. It is sufficient for the purposes of this matter that I conclude that 'demonstrable error' is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment."

1. The function of the Medical Assessor was to assess the medical dispute referred to him. In Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates), Leeming JA emphasised the significance of the documents attached to an ARD in identifying the relevant medical dispute (at [46]-[50]):

"The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates' application; indeed, it was why the documents setting out both sides' claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a 'medical dispute' because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute...Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences 'Referral of medical dispute' and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate...In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute...The foregoing substantially corresponds with the first explanation given by Basten JA for confirming the correctness of the result reached by the Appeal Panel and the primary judge, with a heavier emphasis upon the purpose of the statutory regime being to resolve a medical dispute and that a dispute is identified by the disputants' competing claims [emphasis in original]."

1. Skates was applied by Schmidt SCAJ in Klement v Bull 'N' Bush Nurseries Pty Limited [2024] NSWSC 466, where her Honour stated (at [58]):

"The Panel was thus plainly mistaken in its understanding of what Mr Klement's claim had advanced. In a passage in Skates at [46], not referred to by the Panel, it was what was attached to his application, which included Mr Klement's claim letter and the documents attached to it as well as his statement and the documents attached to the insurer's reply, which had crystallised the parties' medical dispute."

1. The Appeal Panel finds that the Medical Assessor did not appreciate the medical dispute referred to him regarding the disagreement between the parties as to the level of the appellant's whole person impairment resulting from the injury to his shoulders deemed to have occurred on 19 October 2023. The medical dispute was crystallised by the correspondence and supporting evidence (including the appellant's 1 August 2024 statement and the reports from Drs Ho and Machart) in the ARD and the Reply. However, the Medical Assessor did not adequately refer to this material that had crystallised the dispute, and therefore did not appropriately understand the dispute that he was required to resolve. As a result, he did not fulfil his statutory function of resolving the medical dispute which had been referred to him. This is a demonstrable error.
2. The Appeal Panel also finds the failure of the Medical Assessor to adequately refer to the appellant's 1 August 2024 statement (as well as the histories contained in the other medical evidence in the ARD and the Reply) to be an error in not considering 'relevant and significant material'. In the opinion of the Appeal Panel, the statement (see paragraphs 7-11 above) clearly describes the injury to the appellant's shoulders, that is pleaded in the ARD and that is ignored by the Medical Assessor in the MAC. The details in the statement are also consistent with the histories in relation to the pleaded injury that are recorded in the medical evidence attached to the ARD and the Reply.
3. Although a Medical Assessor does not have to refer in a MAC to "every matter or thing that is germane or critical to an administrative decision" (per Harrison SCJ in Prasad v Workers Compensation Commission [2010] NSWSC 418), it is an error for a Medical Assessor not to consider 'relevant and significant material'. As Adams SCJ found in Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor [2017] NSWSC 453 (at [14]):

"Given the significance of the Medical Assessment Certificate by the Appointed Medical Specialist in the scheme of the Act, which is designed amongst other things to avoid hearings and to dispose of applications by non-participatory decision making, a failure to consider relevant and significant material provided by one of the parties must be regarded as a significant error. Indeed, it seems to me that it amounts to a denial of natural justice."

1. Having determined that the Medical Assessor has fallen into error, it is not however for the Appeal Panel to speculate regarding what he would have found if he had assessed the injury pleaded in the ARD, assessed the medical dispute crystallised by the documentation attached to the ARD and the Reply, and adequately considered the 'relevant and significant material' in that documentation. As a result, the appellant needed to be re-examined in order to correct the Medical Assessor's errors.
2. The Appeal Panel accepts the respondent's submission (see paragraph 38 above) that the re-examination not be limited in the manner suggested by the appellant (see paragraph 34 above). While the range of motion recordings in the MAC could be considered to be objective recordings not tainted by the other errors in the MAC, it is nevertheless incumbent upon the Appeal Panel to completely re-assess the whole person impairment findings in the MAC and substitute new whole person impairment findings as caused by the appellant's pleaded injury. In doing so, it is appropriate for the doctor conducting the re-examination on behalf of the Appeal Panel to clinically and physically examine the appellant, and make his own range of motion recordings. He would not otherwise be able to provide his own assessment of whole person impairment and satisfy himself as to its correctness.
3. The Appeal Panel appointed Dr James Bodel from it to conduct the necessary re-examination, and it is satisfied that the re-examination was conducted thoroughly, that the doctor performed a complete physical examination of the appellant (including making his own reliable range of motion recordings in relation to the appellant's shoulder movements), and that the doctor considered all 'relevant and significant material' in the ARD and the Reply.
4. The report prepared by the doctor is found at paragraph 28 above. It appropriately determines the medical dispute between the parties in relation to the injury to the appellant's shoulders deemed to have occurred on 19 October 2023, that is pleaded in the ARD. In doing so, it provides relevant whole person impairment assessments in relation to the appellant's right upper extremity (shoulder) and left upper extremity (shoulder), but it assesses the appellant's scarring at 0% whole person impairment. The shoulder assessments are based upon the doctor's range of motion recordings and are in accordance with AMA 5. The doctor has also explained why it is not appropriate to make any deduction from those assessments in accordance with s 323 of the 1998 Act. The doctor has used his clinical judgement in this regard.
5. In Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191, Ward P considered (at [88]):

"The statutory provisions assume power on the part of a medical member of the Appeal Panel to carry out a re-examination and assessment of the worker. It may be inferred that the Appeal Panel, in adopting the report and findings, was endorsing the reasoning in that report since that is where the reasons are to be found. I do not accept that the Appeal Panel was required to deliver separate or distinct reasons as to why the Appeal Panel (or two of the three members of it, perhaps) accepted Medical Assessor Glozier's assessment in preference to the assessment of, say, the Medical Assessor. In my opinion, it was sufficient for the Appeal Panel to adopt Medical Assessor Glozier's assessment (for the reasons contained therein)."

1. The Appeal Panel considers the findings and assessments of Dr James Bodel to be reliable, and the Appeal Panel adopts those findings and assessments as a result. The whole person impairment assessments of the appellant found by Dr James Bodel are of course different to the assessments of the Medical Assessor.
2. For these reasons, the Appeal Panel has determined that the MAC issued on 8 January 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 Rob Kuru dated 8 January 2025 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)