1. On 6 March 2025 Fuller Mobile Cranes Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mary Obele, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 December 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 firstly that special circumstances justify an increase in the period for an appeal, and secondly, 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. Kaan Del Grande, the respondent, commenced employment as a dogman with the appellant in 2018. On 14 July 2021 he fell approximately 1.8m whilst walking on scaffolding. He suffered a compound fracture and dislocation of his left distal tibia and fibula for which he had surgery on 16 July 2021 when an open reduction and internal fixation debridement was done. Further surgery was done on 3 June 2022 when the hardware was removed from his ankle and an arthroscopy and bone grafting done. On 16 August 2022 he had further surgery when a tibial nail was inserted with osteotomies. That latter surgery was complicated with infection that necessitated the respondent use a cane for 18 months. The fracture eventually healed.
2. The respondent also suffered a condition in his lumbar spine due to the treatment to his left ankle. A trial spinal cord stimulator was inserted to treat the pain in his lower back and also pain he was experiencing in his left distal leg and right hip area. That was removed after seven days due to a lack of benefit.
3. The respondent claimed compensation from the appellant and its insurer for permanent impairment of the order of 20% whole person impairment (WPI) he said resulted from his injury. In support of his claim he relied on reports from orthopaedic surgeon Dr Peter Giblin dated 21 November 2023 and 8 April 2024, and a report from plastic, reconstructive and hand surgeon Dr Michael McGlynn dated 21 March 2024.
4. Dr Giblin in his report of 21 November 2023 advised he assessed the degree of the respondent's permanent impairment from his injury, insofar as it affected his lumbar spine and left lower extremity, is 17% WPI. That was a combination of 7% for his lumbar spine and 11% for his left lower extremity. Dr McGlynn advised in his report he assessed the degree of the respondent's permanent impairment is 4% WPI from the scarring the appellant had as a consequence of the surgeries to his left ankle. In his report of 8 April 2024 Dr Giblin advised that when his assessment of the respondent's permanent impairment relating to his lumbar spine and left lower extremities is combined with the assessment Dr McGlynn made for scarring, the result is 20% WPI.
5. On 23 September 2024 the appellant's lawyers wrote to the respondent's solicitors advising them that the appellant offered to pay compensation to the respondent for 13% WPI resulting from his injury. That offer was based on reports they had obtained from orthopaedic surgeon Dr Todd Gothelf dated 5 August 2024, who assessed the degree of the respondent's permanent impairment relating to his lumbar spine is 0% and the degree of his permanent impairment relating to his left lower extremity is 9% WPI, and a report of hand and plastic surgeon Dr Howard De Torres dated 25 June 2024 who advised he assessed the degree of the respondent's permanent impairment relating to scarring is 4% WPI. Those assessments combined to 13% WPI.
6. On 25 October 2024 the respondent lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute seeking the Commission determine his claim for compensation. A determination of his claim could only be done once the medical disputes between the parties were resolved and, to that end, and after the appellant had filed a Reply to the respondent's application, a delegate of the President of the Commission issued a referral to the Medical Assessor on 18 November 2024, which was subsequently amended on 3 December 2024.
7. The Medical Assessor examined the respondent on 4 December 2024 and, as said, issued the MAC on 12 December 2024. In that she certified that she assessed the degree of the respondent's permanent impairment from his injury is 16% WPI, being a combination of 5% WPI relating to his left lower extremity, 8% WPI relating to his lumbar spine, and 4% WPI for scarring.
8. No issue is raised in the appellant's appeal relating to the Medical Assessor's assessment of the respondent's permanent impairment of his left lower extremity and for scarring.
9. With respect to the Medical Assessor's rating of the respondent's permanent impairment of his lumbar spine, the Medical Assessor explained in the MAC that she correlated the respondent's symptoms and signs with the criteria for DRE Category II, which allows for an assessment of permanent impairment to be made within a range of 5% to 8% WPI. No issue has been taken with that element of the Medical Assessor's assessment.
10. Where within that range a Medical Assessor is to assess a worker's impairment is determined by the instructions set out in paragraphs 4.33 - 4.35 of the Guidelines, which in substance, allow a Medical Assessor to add 0%, 1%, 2% or 3% WPI to the base 5% WPI for a DRE Category II assessment, depending on the effect a worker's spinal injury has on the worker's activities of daily living.
11. In this case the Medical Assessor added 3% WPI, and the appellant takes issue with that aspect of the Medical Assessor's assessment of the medical dispute that was referred to her.
12. Apropos to that matter, the Medical Assessor noted that the respondent experiences symptoms of burning pain in a band across his lower back that worsened with sneezing and straining and was occasionally unpredictable. The Medical Assessor noted that this pain was constant and the respondent's experience of it fell between 4 and 7 on a scale out of 10, with 10 being the worse pain imaginable. The Medical Assessor also noted that the respondent experiences severe pain in all of his left lower leg but mainly through the sole and medial malleolus and laterally to the lower medial shin. The Medical Assessor noted that the respondent has mild swelling at times in his left lower leg and that his left ankle cramps, which awakes him. The Medical Assessor noted that the respondent uses a walking stick when outdoors.
13. Under the heading "social activities/ADL" the Medical Assessor recorded the following:

"Mr Del Grande is divorced from his wife and separated from his partner. He lives alone in Willmott, NSW. He said he plods about at home most of the time and the injury has had a profound effect on his life. He manages his personal care and housework slowly and cautiously and cannot easily crouch or squat. He can lift 5 kg to 10 kg. He does not drive a car. He has three children, which he sees fortnightly. He is a non-smoker. He no longer engages in his hobbies of fishing, hiking, bicycling and golfing due to his injuries."

1. The Medical Assessor also observed from her examination of the respondent that he walked with a left sided limp and used a walking stick and that he had difficulty removing or placing his lower clothes and difficulty getting on and off the examination couch. The Medical Assessor recorded in the MAC the range of motion she measured the respondent had in his left and right hips, knees and ankles and also recorded her measurements of the respondent's circumference of his right and left thighs and calves and recorded his leg length. The Medical Assessor's measurements of the respondent's range of motion of his lower extremities revealed he had a restricted range of motion of the left ankle compared to the right. Her measurements of the respondent's thigh and calve circumferences revealed he had left calf atrophy.
2. The Medical Assessor observed that the respondent was able to walk on his toes and heels on the right side but not on the left, that he was able to balance on his right foot but not the left, and that he was able to do half a squat holding onto furniture. She observed that both the respondent's ankles have normal stability. She recorded that the respondent had a peripheral sensory nerve deficit of the sural nerve with a loss of sensation of his lower lateral heel, ankle and dorsum of the foot. She opined that the respondent's sensory loss due to the sural nerve damage was a consequence of his surgery and was not due to a nerve root or spinal issue.
3. She recorded that the respondent had soft tissue tenderness and guarding of the left sided paraspinal muscles and asymmetrical reduced range of motion of his lower back.
4. Under the heading "summaries of injuries and diagnoses" the Medical Assessor said the following:

"Mr Del Grande sustained a Grade III left pilon (comminuted, impacted) ankle fracture on14 July 2021 when he fell off scaffolding. He has significant scarring, pain and restriction interfering with his daily activities. He also has subsequential lumbar spine discomfort and restriction secondary to this accident, from the change in lower limb dynamics. His lumbar spinal imaging has no acute physical changes, it is within an expected range for his age."

1. With respect to the Medical Assessor adding 3% WPI for the effect the respondent's spinal injury has on his activities of daily living the Medical Assessor said the following within part 10b of the MAC under the heading "lumbar spine":

"Based on the NSW Guidelines Chapter 4, page 28, paragraphs 4.34 and 4.35, 3% is added for ADLs because Mr Del Grande noted that he has difficulty cutting his fingernails, putting on his shoes and socks and standing up in the shower safely, doing his housework, yard work and recreational activities due to his left lower leg injury."

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 respondent should undergo a further medical examination to be conducted by video. This is because the Appeal Panel found, for reasons explained below, the MAC contained a demonstrable error and, in order that the Appeal Panel could correct that error, it would need further information from the respondent relating to his left leg symptoms and his lumbar spine symptoms and how these affected his function. The Appeal Panel appointed Medical Assessor Christopher Oates, one of its members, to conduct that examination, which he did on 14 July 2025. His report to the Appeal Panel on his examination is copied below.

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. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. In summary, the appellant submitted that the Medical Assessor erred in adding 3% WPI for the effect of the respondent's injury on his activities of daily living. The appellant submitted that the Medical Assessor appeared "to have attributed the relevant restrictions to the respondent's left lower extremity injury". The appellant noted the increase allowed under paragraph 4.33 - 4.35 of the Guidelines is relevant to the respondent's spine only.
3. The appellant noted that at one part of the MAC the Medical Assessor said that the respondent does not engage in his prior pastimes "due to his injuries". The appellant submitted the Medical Assessor did not clarify whether the restrictions on the respondent's activities of daily living resulted from his left lower extremity or his lumbar spine injury or both of those injuries.
4. The appellant highlighted the Medical Assessor's summary included the respondent's left ankle injury caused the respondent scarring and pain and that this restricted his daily activities. The appellant highlighted too that the Medical Assessor had separately noted the respondent had subsequent lumbar spine discomfort and restriction.
5. The appellant submitted that the Medical Assessor incorrectly applied the criteria of paragraphs 4.33 - 435 of the Guidelines and "has erred by assessing the impact of the respondent's ADLs in relation to the left lower leg injury in addition to the lumbar spine". The appellant submitted that the Medical Assessor's reasoning is not clear and that she did not explain with sufficient clarity why she attributed 3% WPI to the effect the respondent's lumbar spine injury has on his activities of daily living.
6. The appellant noted that Dr Gothelf was of the opinion that the respondent's low back pain did not prevent him from performing activities. The appellant submitted that if the respondent's restriction on his activities of daily living arises from his injury to his left lower extremity, then the addition of 3% WPI is not warranted.
7. In reply, the respondent submitted that the Medical Assessor provided cogent reasons for the impact his spinal injury has on his activities of daily living. The respondent referred to the lower back symptoms the Medical Assessor noted he currently experiences and to the limitation the Medical Assessor noted he now has with respect to his activities of daily living, and to her finding that he had lumbar spine discomfort.
8. The respondent submitted that if his restrictions of his activities of daily living relate both to his left lower extremity and lumbar spine then the appellant's appeal must fail because it is not necessary that he show that a specific restriction on his activities of daily living arises only from his lumbar spine injury. The respondent submitted that his lumbar spine injury does not need to be the sole cause of the restrictions on his activities of daily living for a WPI percentage to be added when assessing the degree of his permanent impairment relating to his lumbar spine.

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.
3. Paragraph 4.33 of the Guidelines provides a Medical Assessor with a discretion to add nothing or 1% WPI, 2% WPI, or 3% WPI when assessing the degree of a workers' permanent impairment from an injury to the lumbar spine. The instruction in paragraph 4.33 includes that any additional WPI a Medical Assessor decides to add is not to depend solely on the worker's report of restrictions, but must be based on clinical findings and other reports. Within paragraph 4.34 of the Guidelines there is a diagram consisting of three concentric circles that has self-care 3% in the inner most circle, home care 2% in the middle circle, and yard/garden/sports/recreation 1% in the outer circle. Paragraph 4.35 provides instructions for how the diagram is to be interpreted specifying that the base impairment of a worker that is assessed by reference to Table 15-3 of AMA 5 can be increased by 3% WPI if the worker's capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected; by 2% WPI if the worker can manage personal care but has restrictions with normal household tasks such as shopping, climbing stairs and walking reasonable distances; and by 1% WPI if the worker can cope with personal activities and household activities but is unable to get back to sporting or recreational activities.
4. Ultimately, the task of a Medical Assessor in applying paragraph 4.33 is to balance all relevant matters relating to the impact that a worker's spinal injury has on the worker's activities of daily living to determine whether and to what extent the base impairment allowed by a particular DRE should be increased.
5. As the respondent has submitted, the impact that a lumbar spine injury or condition has on a worker's activities of daily living does not have to be the sole cause of any restriction or incapacity the worker has with respect to his or her activities of daily living for a rating to be added under paragraph 4.33 of the Guidelines. So long as the worker's spinal injury or condition is a material factor in any incapacity or restriction the worker has with respect to his or her activities of daily living, then that incapacity or restriction must be weighed when determining what if any rating should be added to the base WPI range allowed by a DRE category.
6. That said however, the Appeal Panel agrees with the appellant's submission that the explanation the Medical Assessor provided for adding 3% WPI to the base rating of 5% WPI for DRE Lumbar Category II is ambiguous at best. It certainly lacks clarity. In the Appeal Panel's view, it is unclear from her reasoning whether the restrictions the respondent has with his activities of daily living are due only to his injury to his left lower extremity or are due in part to his lumbar spine condition and if the latter to what degree those restrictions relate arise as a consequence of his left lower extremity injury and his lumbar spine condition. Whilst, as the Appeal Panel has noted, a lumbar spine injury or condition does not have to be the sole factor causing a restriction or incapacity of a worker in his or her activities of daily living, nevertheless it is still relevant if the restriction is multi-factorial for a Medical Assessor to take that into account so as to ensure all relevant factors are weighed by the Medical Assessor when exercising the discretion the Medical Assessor has regarding what additional WPI percentage should be added under paragraph 4.33 of the Guidelines.
7. Because the reasoning of the Medical Assessor regarding why she considered 3% WPI ought to be added to paragraph 4.33 of the Guidelines for the impact of the respondent's spinal injury on his activities of daily living is unclear, the Appeal Panel found the MAC contained a demonstrable error. This is simply because the Medical Assessor has not clearly or cogently exposed the path of her reasoning to come to that conclusion.
8. As noted earlier, the Appeal Panel had Medical Assessor Oates re-examine the respondent. His report to the Appeal Panel follows:

Mr Del Grande was assessed alone via Teams video conference by Medical Assessor Oates on behalf of the Medical Appeals Panel.

Brief history of the incident/onset of symptoms and subsequent related events including treatment

Mr Del Grande confirmed that on 14/7/2021, he was working on a single-storey house roof as a dogman and rigger. He was climbing down the scaffold when a plank he was standing on see-sawed, as the supports had not been placed in the correct position. He fell about 1.8 metres, landing heavily on his left foot and sustaining an open compound fracture dislocation of the left distal tibia and fibula.

He was taken to St George Hospital and had open reduction and internal fixation with 32 screws and plates. He developed infection post-operatively requiring antibiotics.

In approximately June 2022, he had a left ankle arthroscopy and bone graft with removal of the metal fixation. The left ankle subsequently drifted into varus angulation and on 4/8/2022, he had a fibular osteotomy and insertion of tibial intra-medullary nail.

The fractures subsequently united as evidenced on progress imaging.

He was initially mobile with crutches and a Cam boot, and the progressed onto a walking stick.

He attended a podiatrist to obtain orthotics, and had physiotherapy and hydrotherapy, along with analgesia.

The medications included ibuprofen, Endone, paracetamol, gabapentin and medicinal cannabis, and he was subsequently placed on an opioid management program.

A trial spinal cord stimulator was inserted by his pain specialist, Dr Ramachandran, which was to cover the pain in the left distal leg and lower back and right hip area, but this was removed after the seven day trial owing to a lack of benefit.

The worker confirmed he takes continuing medications which consist of Endone 5mg twice daily, Targin 10mg twice daily, gabapentin 300mg twice daily, Nurofen twice daily as required, Panadol one tablet with each Endone, and THC (cannabis) in liquid form and also cannabis in flower form, which needs to be smoked but he is not using this at present because of fears of the consequences.

He is under the care of his GP, Dr Ramon Botros, Hassall Grove.

He has recently been speaking to his pain specialist and to his cannabinoid doctor, Dr Mir. Dr Ramachandran suggested the possibility of further injections, however Mr Del Grande is uncertain whether these will be of benefit, as he has already had pain injections. Dr Mir has not discussed any changes in therapy to date.

With respect to the lower back, he has constant stiffness across the low back and more concentrated on the right side, radiating into the right buttock, with numbness and discomfort through to the mid-hamstrings and at times to the top of the calf. Pain is 8.5/10 at worst and 4/10 at best on a visual analogue scale.

Back pain and discomfort are made worse with sitting too long. He gets restless after 10 minutes and has to shift his weight in the chair. He can tolerate sitting for variable amounts of time. He is always fidgety when sitting.

His back is worse on bending and he has difficulty putting socks and slippers on his feet, particularly his left foot, which is very cold in winter. He has difficulty leaning down to cut his toenails and use the vacuum cleaner, because this action of leaning forward increases low back pain and right buttock pain.

He has to pace such household activities involving bending out over a couple of days. There is some partial relief of back symptoms by analgesia.

With respect to the left lower leg, he notices colour changes of redness in the left lower leg and foot, and coldness in the area, with numbness and discomfort. There is a 20 cent size area of complete loss of sensation at the exit point of the compound fracture.

He has reduced range of movement in the left ankle on inversion and eversion, and has difficulty going down stairs and to a lesser extent up stairs, and has to go sideways because his ankle and foot don't dorsiflex and plantar flex properly, and he is now afraid of falling.

The pain in the left distal leg is better some nights after rest, but he will get increased pain if he rolls, trips or slips on uneven ground, soft grass or mossy surfaces.

His left ankle and foot pain flares up if he walks around too much, and he will get a cramp in the middle of the foot. The foot looks generally more swollen by afternoon. He always uses a walking stick, mainly in his right hand, when he is outside the house. The left foot pain varies from 6 - 8/10.

Details of any previous or subsequent accidents, injuries or conditions

He said he had no prior relevant injuries or conditions, and has had no subsequent accident, injury or condition.

In the past, he has had minor sprains to the back from the heavy physical nature of his labouring work, but he has not required any significant treatment or lost time from work.

He has a history of hypertension but since he changed his diet, he no longer requires medication.

He had whiplash from an MVA in 1997, and has had bilateral groin and umbilical hernia repairs, all in 2010. Surgery was successful and this was a workers compensation injury.

Work history including previous work history if relevant

He was born in Australia and completed Year 12. He then did four years of training as a motor mechanic but found he could earn more on building sites, so he started work as a steel fixer and crane operator, rigger and dogman for various companies, including Fullers Mobile Cranes Pty Ltd from 2019.

He does heavy physical labouring work involving lifting, climbing, bending, twisting and crawling.

He is a divorcee and has also separated from a subsequent partner.

He has three children aged 16, 14 and seven who live with the two mothers. He lives alone in a house.

He has not returned to work. He spends most of his time at home. He has to do his own personal care and housework. He did have home help but this was cancelled. He has difficulty doing inside housework, particularly jobs involving bending over, because of his back. He has difficulty getting down to the laundry basket or emptying the washing machine.

His sleep is disturbed by back discomfort radiating to the right buttock area and he has to rest his left foot on a pillow. He drives an automatic car, as he can no longer drive a manual, but just drives locally now.

He did intend to get a motorcycle licence but this is now not possible, as he can't swing his leg over a motorcycle because of back problems.

He tries to do some mowing and gardening, but can only manage 10 - 15 minutes at a time before his back gets sore and he has to have a break. He gets his 16-year-old son over to help him whenever he can. What yard work took 2.5 - 3 hours in the past, now has to be spread over a week.

He can no longer do his pre-accident hobbies of fishing, playing golf, hiking or cycling, as he can't walk on rocks or around the golf course because of his left ankle, nor on hiking trails. His back is too sore and stiff to be able to get up onto a bicycle.

He is independent with personal care but does use a shower chair for safety, and as mentioned above does have difficulty because of back stiffness and discomfort when attempting to bend to put shoes and socks on.

I asked whether Mr Del Grande had anything else to add and he answered in the negative."

1. The Appeal Panel considers that Medical Assessor Oates has obtained a relevant history with respect to all matters that are germane to how the Appeal Panel should assess what percentage WPI ought to be added pursuant to paragraph 4.33 of the Guidelines. The Appeal Panel consequently adopts the content of Medical Assessor Oates' report.
2. It is apparent to the Appeal Panel that the respondent has significant restrictions on his activities of daily living. He is now unable to return to his previous pastimes. He is no longer able to do gardening and yard work. He is restricted with his household tasks. He has difficulty with shopping, climbing stairs and walking on uneven terrain and walking distances. He has discomfort putting on his shoes and socks but otherwise is unrestricted with his self-care activities.
3. The restrictions the respondent has in pursuing his pastimes and doing gardening and yard work is due to a combination of both his left ankle injury and his lumbar spine injury. His restrictions with his household tasks, such as vacuuming, making beds, cleaning the bathroom and doing laundry is primarily a consequence of his lumbar spine injury. His restrictions with shopping, climbing stairs and walking on uneven terrain and distances is due to his left ankle injury. His difficulty with putting on his shoes and socks is a consequence of his experiencing discomfort due to his lumbar spine injury.
4. The upshot of that is that that the respondent's lumbar spine condition has had a significant impact on a range of the respondent's activities of daily living. It is really only his restriction with shopping, climbing stairs and walking distances and on uneven terrain that is solely due to his ankle injury, and otherwise his lumbar spine condition contributes to all the other restrictions he has. In those circumstances, the Appeal Panel considers that 3% WPI should be added to the base rate of 5% WPI allowed under DRE Category II on account of the impact the respondent's lumbar spine injury has on his activities of daily living.
5. So, although the MAC contained a demonstrable error, when the Appeal Panel corrects that error, the same result is achieved.
6. For these reasons, the Appeal Panel has determined that the MAC issued on