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 the worker should undergo a further medical examination to determine if he fell into DRE category I of his lumbar spine as suggested by the Medical Assessor, or DRE category II.

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. Medical Assessor Roger Pillemer of the Appeal Panel conducted an examination of the worker on 2 February 2026 and reported to the Appeal Panel.

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:
   • Lumbar spine: reports a nagging pain in the lower back, which is dependent on activity. Driving particularly exacerbates the pain and restricts his movement when looking around. Lumbar spine: range of motion: right lateral flexion 30°, left lateral flexion at 25°, flexion 60°, extension 20° (Page 4);
   • he has ongoing issues with neck pain, spasms and headaches, as well as activity-related low back pain (Page 5);
   • Lumbar spine DRE category 1: Table 15-3 p384. No significant clinical findings, no neurological impairment, 0% WPI ( Page 6), and
   • I did not identify any inconsistency with regard to the worker's presentation. The incident described by the worker is consistent with the injury that has been suffered - (Page 5).

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 complains that whilst the Medical Assessor has concluded that the appellant qualifies for DRE category I, he fails to provide a chain of reasoning with respect to reaching that conclusion.
3. The appellant points out that there is clear observation of asymmetric range of motion in respect of assessment of the lateral flexion of the lumbar spine which leads to a finding of a DRE category II classification. It is observed by the Appeal Panel that the Medical Assessor did indeed acknowledge some asymmetry with respect to lateral flexion, noting a 5° difference between right and left lateral flexion.
4. In the alternative, the appellant complains that the Medical Assessor failed to properly identify whether the appellant suffered muscle spasm associated with the lumbar spine injury. This is in direct contradiction to the opinion of Dr Giblin together with contemporaneous medical evidence of Dr Mark Uren which demonstrated muscle spasm associated with lumbar spine injury.[1]
5. The appellant submitted that a re-examination of the appellant was necessary in respect of the lumbar spine. The appellant points out that the Medical Assessor's findings in relation to the lumbar spine were indeed limited however the Medical Assessor observed no observable gait issues or difficulties ambulating and the clinical findings did not include report of tenderness and/or radicular complaint.
6. The respondent concedes that there was a 5° difference in range of motion between the right lateral flexion and left lateral flexion.
7. The respondent submitted that it was open to the Medical Assessor to assess DRE category I on the basis there was no significant clinical findings and no neurological impairment as stated in paragraph 10(b) of the MAC, with the slight lateral flexion difference being the only positive finding.
8. In respect of muscle spasming, the respondent submits that it is evident from the MAC that "significant muscle guarding on spasm" was not observed at the time of the examination and that the Medical Assessor has exercised clinical judgement and expertise in determining that the presentation of the lumbar spine fell within DRE category I.

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 Appeal panel has considered the material before it and the submissions made by both parties. The Appeal Panel considers that there has been a demonstrable error.
4. A Medical Assessor's reasons for an assessment need to be such, so that an appellant and a respondent, as well as the Appeal Panel, can comprehend why an appellant's permanent impairment is assessed at a certain level.
5. The reasons need to explain the actual path of reasoning followed by the Medical Assessor. In Western Sydney Local Health District v Chan [2015] NSWSC 1968, Adams J (at [13]) saw the role of the Medical Assessor as analogous to the role of the Victorian Medical Panel discussed by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Wingfoot). At [55] in Wingfoot, the plurality of the High Court stated as follows:

"The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."

1. In respect of present symptoms in the lumbar spine, the Medical Assessor has failed to mention whether there was any referred pain down the legs which could qualify DRE category II on the basis of 'non-verifiable radicular complaints.' In addition, there is no mention of whether there was guarding or spasm, and there was also no mention of the Medical Assessor having tested straight leg raising.
2. Further whilst the Medical Assessor has suggested that there was no evidence of radiculopathy, he has not mentioned whether there was any wasting to circumferential measurement.
3. It is therefore hard to follow the Medical Assessor's reasoning in respect of his determination.

1. The Appeal Panel considered that it was necessary for a re-examination of the appellant by one of the Appeal Panel Members to determine whether the appellant falls within DRE category I or DRE category II.
2. Mr Finch was re-examined by a Member of the Appeal Panel, Medical Assessor Pillemer, on 2 February 2026. A copy of the findings has been attached to this decision.
3. The Appeal Panel observes that the DRE category II assessment made by Medical Assessor Pillemer is appropriate on the basis that there were findings of asymmetry of movement, guarding, localised tenderness in the lower lumbar region and negative axial load.
4. In those circumstances the Appeal Panel adopts the observations and reasoning of Medical Assessor Pillemer in his assessment.
5. For these reasons, the Appeal Panel has determined that the MAC issued on 5 August 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

1. The workers medical history, where it differs from previous records

I read Mr Finch the history as taken by Dr D Cawthorne on 24 July 2025 and he basically agreed with this history, and I note from the MA's report that under the heading "Present Symptoms" with regard to the lumbar spine, he has noted 'reports nagging pain in the lower back, which is dependent upon activity. Driving particularly exacerbates the pain and restricts his movements when looking around'.

I note that this history is very brief and does not describe the frequency, extent, or severity of the symptoms, and does not mention any referred pain. While mentioning that driving aggravates the pain, there was no detail of any other aggravating factors nor is there any mention of relieving factors.

1. Additional history since the original Medical Assessment Certificate was performed

Mr Finch informs me that he has had intermittent ongoing problems with his low back from very soon after his original injury in June 2006 and that his back never settled completely. He does say that he could go for up to a month at a time without any particular discomfort depending on the extent of his activity, and then at times when the pain came on, it could last for up to 10 days at a time.

He indicates the discomfort being felt I the lower lumbar region with radiation particularly to the right side, but no referred pain into his lower limbs.

Symptoms could go as high as 7-8/10 when he has his flare-ups, and then as mentioned, they tend to settle in between.

Symptoms are aggravated by driving, which he has had to do on a number of occasions, driving from Albury to Sydney and back again since he separated from his wife, having a 5 year old daughter who is now living in Sydney.

He says for example he recently had to lift his daughter out of her car seat and symptoms were significantly aggravated and lasted for some 10 days. Mr Finch is aware that he has to be very careful with bending and activities such as sweeping.

He does get relief by doing his stretching exercises and using his 'back roller', and rest would also help when his symptoms flare up.

Mr Finch avoids taking tablets but occasionally does take Panadol Osteo and Nurofen, and importantly I note that he has been seeing a chiropractor intermittently over the past 10 years for his back, and has also seen an osteopath.

Mr Finch still tries to go to gym 5 times a week and as mentioned has to be very careful when he lifts weights, and he says when his back is painful he will simply walk on the treadmill and avoid stress to his low back. He walks for a kilometre every day and is still able to drive, but with long distances he finds that he has to stretch his low back.

He lives alone and has thick carpets, and vacuuming now takes him much longer and he has to break it up. He manages with shopping and his self-care.

Mr Finch was an adult male with an excellent physique, and as noted he tries to keep his fitness. He undresses and dresses without any particular discomfort, walks without an obvious limp and is able to walk on heels and toes.

He shows restriction of low back movement, getting his fingertips some 6cm below his knees in flexion and extension was satisfactory. Lateral flexion to the left was slightly restricted compared to the right side.

Straight leg raising was present to 80° bilaterally, reflexes are present and generally depressed, and motor power was good in all groups tested. He does have 1.5cm of wasting of his left calf compared to the right side, almost certainly as a result of having had two operations to remove varicose veins after which he developed an infection. He also has sensory loss in the medial leg extending down to the medial foot in the distribution of the saphenous nerve. In my opinion these latter signs are not related to his lumbar spine condition.

1. Results of any additional investigations since the original Medical Assessment Certificate

Mr Finch has not had any further investigations carried out.

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 Donald Crawthorne 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)

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.