1. On 27 November 2024 Irene Jasmin lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 July 2019. The MAC was confirmed by an Appeal Panel on 4 November 2019.
2. The former Workers Compensation Commission issued a Certificate of Determination on 9 December 2019, which was later rescinded because Ms Jasmin sought only a determination that the extent of permanent impairment exceeded the threshold in s 39 of the Workers Compensation Act 1987 (the 1987 Act).
3. Ms Jasmin relies on the grounds of appeal under s 327(3)(a) and (b) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • deterioration of the worker's condition that results in an increase in the degree of permanent impairment, and
   • availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
4. Ms Jasmin's employer, Cleaners New South Wales Pty Limited (Cleaners), consented to the appeal proceeding and to Ms Jasmin being re-examined.
5. The President's delegate was satisfied that, on the face of the application, the ground of appeal in s 327(3)(a) of the 1998 Act was made out. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made and Dr Oates undertook a re-examination on 28 February 2025.
6. 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.
7. 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. Ms Jasmin suffered an injury on 11 August 2009 when she slipped in a food court on her lunch break and suffered an injury to her right knee. She said that she developed back pain as a result of constant limping.
2. Ms Jasmin made a claim for permanent impairment compensation. On 2 September 2014, Medical Assessor Crane issued a MAC in which he assessed 9% WPI in respect of her right knee and made a deduction of one-tenth under s 323 of the 1998 Act. The Workers Compensation Commission issued a Certificate of Determination dated 21 October 2014 noting that Ms Jasmin had no entitlement to permanent impairment compensation because the relevant threshold had not been met.
3. Ms Jasmin underwent further treatment, including a partial right knee replacement on 5 March 2015. She commenced proceedings in 2019 and the claim was amended to seek referral to a Medical Assessor in respect of a threshold dispute as set out in a Certificate of Determination dated 17 June 2019.
4. Medical Assessor Pillemer examined Ms Jasmin on 1 July 2019 and prepared a MAC dated 3 July 2019. He was asked to examine her right lower extremity (knee), scarring under the Table for the Evaluation of Minor Skin Impairment (TEMSKI) and her lumbar spine. The Medical Assessor assessed 20% whole person impairment (WPI) in respect of Ms Jasmin's right knee. He deducted one-tenth of the assessment under s 323 of the 1998 Act, resulting in 18% WPI. The Medical Assessor did not assess any WPI in respect of Ms Jasmin's lumbar spine because an X-ray in 2010 showed constitutional degenerative changes and he considered it was more likely than not that she would have developed discomfort in her lumbar spine at this stage of her life, even without the injury in August 2009. He considered that Ms Jasmin had a well-healed scar which was part and parcel of her operations and would not entitle her to additional impairment.
5. Ms Jasmin's weekly payments of compensation came to an end in 2018 because of the operation of s 39 of the 1987 Act. In her statement dated 4 October 2024, Ms Jasmin described her further treatment, culminating in total knee replacement surgery on 23 October 2020. Ms Jasmin initially experienced relief in her knee the total knee replacement but her back pain continued to deteriorate. She began to experience further pain in her right knee in 2021.
6. On 21 October 2022, her solicitors provided the insurer with a report by Dr Lee dated 15 July 2022 in which assessed 23% WPI in respect of her right knee, lumbar spine and scarring. The insurer did not agree that the threshold had been met.
7. There has been some delay in bringing this appeal. After correspondence between the parties in late 2022, Mr McManamey of counsel prepared submissions in support of the appeal in April 2023. The notes from Ms Jasmin's treating doctors were obtained in 2022. Further reports were obtained in 2024 and Ms Jasmin's statement signed in October 2024.

1. We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. Noting the agreement of both parties, we determined that Ms Jasmin should undergo a further medical examination.
3. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment. Inevitably, fresh evidence will be obtained in respect of the grounds of appeal under s 327(3)(a) and (b) and we agree that the additional reports provided should be admitted.

1. We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination, as well as the new material provided by the parties.
2. Ms Jasmin relied on reports of Dr Lee dated 19 July 2022 and 19 April 2024, a report of her treating specialist, Dr Graham, a CT scan of her lumbar spine dated 20 February 2021 and notes from her treating doctors and Lakeview Private Hospital.
3. Dr Lee assessed 23% WPI comprised of 18% in respect of the right knee, 5% in respect of the lumbar spine and 1% for scarring.
4. Cleaners relied on a report from A/Prof Waller dated 11 December 2023. Dr Waller assessed 18% WPI in respect of Ms Jasmin's right knee, after a deduction of one-tenth under s 323. He allowed 1% for scarring. He assessed Ms Jasmin in DRE lumbar category 1, resulting in 0% WPI. His total assessment was 19% WPI.
5. Medical Assessor Oates of the Appeal Panel conducted an examination of the worker on 25 February 2025 and reported to us. His report forms part of these reasons and we adopt his findings.[1]
6. The parts of the MAC and other evidence that are relevant to the appeal are set out below.
7. Because of the agreement by the parties that re-examination was warranted, it is not necessary to summarise Mr McManamey's submissions.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[2] 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.
3. In Queanbeyan Racing Club Ltd v Burton[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.

1. Ms Jasmin underwent further surgery in the form of a total knee replacement after the date of Medical Assessor Pillemer's examination. It was therefore appropriate to reassess her right knee. The same method of assessment is applied for a partial or total knee replacement.
2. The criteria set out in Table 17-35 of AMA 5, as amended at paragraph 4.21 of the Guidelines, are pain, range of motion and stability, a higher score leading to a better result. Deductions are then made for the degree of flexion contracture, extension lag and tibio-femoral alignment. The assessment measures the functionality of the knee and the fact that Ms Jasmin had previously undergone a partial knee replacement does not, of itself, mean that her impairment will be greater after a total knee replacement.
3. Medical Assessor Pillemer determined that Ms Jasmin had a fair result from the partial knee replacement, assessing 20% WPI and making a one-tenth deduction under s 323. The same assessment was made by Dr Lee and by A/Prof Waller.
4. Medical Assessor Oates' findings are consistent with a fair result, leading to an assessment of 20% WPI. It remains appropriate to deduct one-tenth of the assessment under s 323, primarily because of the grade two to three degenerative changes in the medial joint compartment observed by Dr Elliott at the first arthroscopy and described in his report dated 18 March 2010. Ms Jasmine suffers 18% WPI in respect of her right lower extremity knee.
5. Because of the more extensive surgery Ms Jasmin has undergone since the original MAC, her scarring is more significant and warrants an assessment of 1% WPI under the TEMSKI.

1. Medical Assessor Pillemer did not make an assessment for Ms Jasmin's lumbar spine. He said:

"As noted above, a CT scan of her lumbar spine carried out in February 2018 showed some generalised disc bulging and x-rays in 2010 showed constitutional degenerative changes at multiple levels.

As far as Ms Jasmin's lumbar spine is concerned, as noted she has evidence of fairly widespread degenerative change with symptoms having come on in her lumbar region in the last three years, that is some seven years following her injury in August 2009."

1. He also observed that Ms Jasmin walked with a minimal limp and said she was unlikely to have more than a minimal limp when she recovered from the arthroplasty, which would be insufficient to place additional stress on her lumbar spine.
2. While we are not concerned with the correctness of the MAC when considering the ground in s 327(a), we note that the history that the Medical Assessor recorded is at odds with the evidence in the file.
3. On 6 January 2006, Ms Jasmin's general practitioner, Dr Soliman, recorded that she had chronic lower back ache and tender lumbar spine and prescribed anti-inflammatory medication. There are no other references to lumbar pain in the general practitioners' notes before the injury in 2009.
4. Ms Jasmin underwent an X-ray of her lumbosacral spine on 3 February 2010 and the clinical notes recorded "increasing back ache". Dr Lee reported that the X-ray showed scoliosis convex to the left and degenerate disc changes. His conclusion was "scoliotic degenerate spine."
5. Her general practitioner, Dr Soliman, noted a history of hip and knee pain on

19 January 2010 following the injury on 11 August 2010. On 27 January 2010, Dr Soliman recorded a history of increasing back pain for "> 1/12". The note for 11 February 2011 records "back and buttock pain." 6. Dr Elliott's reports from 15 February 2010 describe a prolonged recovery from the initial right knee arthroscopy in March 2010. Physiotherapy management plans from March and April 2010 record a need to "re-educate patterns of movement". 7. An initial assessment report from ipar, a rehabilitation provider, in respect of a referral in May 2011 noted that Ms Jasmin suffered back pain. 8. Dr Graham, who has seen Ms Jasmin since 2012 said in his report dated 4 June 2024 that Ms Jasmin injured her knee and back in 2009. 9. A CT scan of Ms Jasmin's lumbar spine dated 13 February 2018 evidenced a progression in the degenerative changes from the X-ray taken in 2010. 10. Cleaners initially disputed that Ms Jasmin suffered a consequential condition in her lumbar spine and this was the subject of the dispute determined by the Workers Compensation Commission on 17 June 2019, resulting in a determination that Ms Jasmin suffered a consequential condition as a result of her altered gait after the right knee injury. 11. The progression shown on the radiology in 2018 is consistent with Medical Assessor Oates' observations and assessment in DRE lumbar category II, with a loading of 1% in respect of the activities of daily living. 12. The history of pain in 2006 and the degenerative changes observed on X-ray in 2010 mean that a deduction under s 323 of the 1998 Act is appropriate. 13. In Ryder v Sundance Bakehouse Campbell J said:[4]

"What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great."

1. The lumbar spine condition suffered by Ms Jasmin is a progression of the pre-existing degenerative changes so that a part of her current impairment is due to the pre-existing condition. It is not possible to precisely determine the extent of the contribution so that the presumption in s 323(2) applies and a deduction of one-tenth should be made. The resulting lumbar spine impairment is 5%.
2. When that assessment is combined with those for Ms Jasmin's right lower extremity and scarring, the resulting total is 23% WPI.
3. For these reasons, we have determined that the MAC issued on 3 July 2019 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

Ms Jasmin attended at the PIC Medical Suites for Medical Appeal Panel re-examination by Medical Assessor Oates on behalf of the Panel on 28/02/2025 as arranged.

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

Ms Jasmin said on 11/08/2009, whilst working as a full-time cleaner at Westpac Sydney, she was on her lunch break when she slipped on a tile floor in a food court, fell forward and landed on the floor on her right knee. She also landed on her hands. She was embarrassed and was able to get up by herself.

She returned to the workplace and reported the incident. Ice was applied to the knee at work. She worked for about 15 minutes then the employer told her to go home and see a doctor.

She went to Dr Soliman, GP, Blacktown on 11/08/2009 and was given analgesics. She was sent to physiotherapy. From her recollection, she did not return to work after the date of accident. She does not agree with Paragraphs 7 and 8 of her Statement dated 19/03/2019. She can't recall when she was formally terminated.

Physiotherapy and hydrotherapy were of no benefit. She was referred to a specialist, Dr Elliott, for cortisone injection to the knee, but there was no benefit. Then he did an arthroscopy on 12/03/2010 and 01/02/2011, but there was no benefit.

She then was referred to Dr Graham in 2011. She had a further cortisone injection to the knee but there was no benefit.

He reviewed her in 2012 and referred her to a pain clinic at Parramatta. This treatment was of no benefit.

In March 2015, Dr Graham performed a medial compartment unilateral knee replacement. She says the operation helped her for about six months. Post-operatively she had Panadeine Forte and Nurofen or Panadol, and physiotherapy and hydrotherapy.

She was reviewed by Dr Graham in 2017 and again in 2020, and at this time he suggested a full knee replacement because of continuing pain in the knee, which was disturbing sleep and causing difficulty with walking and standing to cook and perform household duties, and she couldn't kneel to do gardening.

On 23/10/2020, Dr Graham performed a full knee replacement. This was followed by about three months of physiotherapy and hydrotherapy for one month, and medications. She doesn't feel there was any real benefit to her knee after the full joint replacement.

She had follow-up post-operatively and her last review was about two years ago in 2023.

She has central to right-sided low back pain with no symptoms radiating from the back. The back pain comes on with walking and standing, and also with sitting, bending and attempted lifting. It is relieved by lying down and by taking medications, which include Panadol Osteo three times a day. She has Codalgin Forte as required, about four times in the week, for both right knee and back pain.

She has numbness medial to the operative scar on the knee but no sensory changes in the remainder of the right leg. Her left leg is normal.

The right knee feels heavy and there is pain in the central and medial aspect of the knee for which she applies Deep Heat or Voltaren Gel.

The knee limits her walking to 15 - 20 minutes, then she has to sit down. She says overall walking is more affected by her knee than her back. Her knee limits her on steps, both up and down, and with squatting and going up inclines. She can't squat or kneel on that knee and can't push heavy objects because of knee pain. Her knee clicks and pops and gives way at times and swell at times, and feels hot at times.

The knee is relieved by sitting down for a period. She sometimes uses a walking stick but not very often.

I asked her about the scar on the knee and she says it looks "very bad" and there is numbness on the medial aspect of the scar.

She doesn't have any other treatment because she can't afford it.

Regarding her lower back, Ms Jasmin said she noticed low back pain early on after the date of accident, and even more so after the half knee replacement. She put on a lot of weight and was 65kg at the date of accident and about 72kg at the time of the half knee replacement.

She couldn't put any weight on her painful right leg after the accident and unsuccessful procedures on the right knee, so she was walking lopsided. She used a stick for the first time in her right hand for about one year after the half knee replacement, and she was on crutches and then a stick after the total knee replacement for several months.

Regarding the first Statement dated 1/11/2018, she does not recall Paragraph 5, that she only developed low back pain after the first arthroscopy, nor that she had been unable to return to work after this surgery on 12/3/2010. To the best of her recollection, she did not return to work after the date of accident.

Details of any previous or subsequent accidents, injuries or condition

I asked her about the GP record of 6/1/2006, which referred to chronic low back pain and tenderness in the lumbosacral spine, and she does not recall having this low back pain before the date of the right knee injury.

Work history including previous work history if relevant

She was born in Mauritius and came to Australia in 1986. She was a factory hand in Melbourne and then worked in catering in Melbourne, and then as a storeperson in Sydney from about 2007.

She had been a cleaner for one year before the date of accident.

I asked her about the history recorded by the previous Medical Assessor and she did not agree that she had continued work after the subject accident, but that she had stopped work after this and not returned thereafter. She says she has also not returned to any other work.

She was on workers compensation benefits until 2016 and thereafter Centrelink JobSeeker. At first on Centrelink, she had to look for work but this was unsuccessful, and then her benefit was changed so that she no longer had to seek employment and she is currently certified unfit on a three-monthly basis by her current GP, Dr Moussad, Doonside.

She says she is unfit for work on account of the right knee and lower back conditions.

She has been separated from her husband since the time of the accident. She lives in a house with her two sons aged 37 and 32, both of whom are working.

The older son does most of the cooking and also cleaning and the laundry and makes beds. She does some dishes and helps with some of the cooking. Her two sisters come over to change the linen on the bed and wash her white clothes, as she doesn't trust her son with this.

The shopping is done by her son. She goes with him sometimes. She doesn't drive and waits until she can get a lift where she needs to go.

She used to enjoy gardening but can't do it now. The sons always did the mowing. Her garden is neglected now, as they are not gardeners.

Before the accident, she also did walking as well as gardening, but is limited with walking now and can't do any gardening, as she can't kneel, squat, bend or lift.

She has no social outlets and doesn't do any volunteer activity.

She was of solid build with height 156cm and weight 79.8kg.

She sat comfortably but transferred out of a chair and on and off the couch with some low back discomfort.

Flexion was two-thirds of normal range with complaint of low back discomfort at the end of range. Extension one-third with complaint of right-sided low back pain. Lateral flexion was two-thirds of normal bilaterally with complaint of right-sided low back pain on right lateral flexion and rotation was two-thirds of normal bilaterally. There was no guarding or muscle spasm. There was tenderness over the right sacroiliac joint and L5/S1 centrally.

There was no trochanteric tenderness on either side. There was no left-sided lumbar tenderness.

The lower extremities showed normal power and sensation, with symmetrical reflexes and downgoing plantar responses. Straight leg raising was normal on the left and right sides.

Leg length; right 80cm, left 79cm measured from the ASIS to the medial malleolus.

Thigh girth; right equals left equals 44.5cm at 10cm above the superior patellar pole.

Leg girth; right 33cm, left 34cm at 12cm below the inferior patellar pole maximal circumference, but there were varicose veins on the left leg only.

There was no crepitus or instability. She stood with 4° valgus alignment bilaterally.

Right knee 0 - 110° of flexion. Left knee 0 - 140° of flexion.

There was a vertical 15.5cm up to 1cm wide scar running longitudinally over the mid-line of the right knee. There were some atrophic changes and paleness in the scar, with contrast with her pigmented skin.

There was no adherence. There was partially reduced sensation to light touch and pin-prick medial to the knee scar, but sensation was otherwise intact in the right leg. There were visible staple marks in the scar.

Flexion; right 100°, left 110°. Extension normal bilaterally. Abduction was normal bilaterally. Adduction was reduced equally bilaterally. External rotation was normal and internal rotation was reduced bilaterally.

No imaging was brought to the Panel re-examination.

13/2/2018 - CT scan lumbar spine - Generalised disc bulging causing thecal distortion anteriorly with some disc material encroaching on the right L4 nerve root at the L4/5 level.

Despite the vagueness of Ms Jasmin's recall of history around the lumbar spine condition, a review of the contemporaneous medical evidence indicates she reported to the GP in late January 2010, within months of the accident of 11/08/2009, of increasing lower back ache for which she was sent for x-rays and prescribed anti-inflammatories.

The GP record from Dr Soliman in late January 2010 (27/1/2010) notes increasing low back ache over the last one month, with tenderness in the lumbosacral spine, for x-ray. Treatment Mobic.

There was a further GP record from 11/02/2011, the reason for contact being back and buttock pain.

Ms Jasmin did not recall having a CT scan of the lumbar spine in February 2018, nor an x-ray of the lumbar spine in January 2010 after the date of accident.

She does not recall any separate injury of the lumbar spine after the date of accident and has had no treatment for the back, except for analgesics.

A rehabilitation assessment by Ipar dated 31/05/2011 included a history from the worker that she experienced pain in her lower back which comes and goes.

In contrast to the history taken by the original Medical Assessor that lumbar spine symptoms had only come on three years before his assessment in 2019, some seven years after the date of the original injury, this is not in keeping with the contemporaneous medical evidence and Ms Jasmin disputed the Assessor's reporting of the timeline of her back complaints.

The examination findings today indicated asymmetric loss of active range of motion of flexion and extension, with no guarding, no non-verifiable radicular complaints, and no signs of radiculopathy.

The dysmetria of flexion extension is consistent with the findings of Dr Lee and Dr Waller, and place her in DRE Lumbar Category II, giving a range of 5 - 8% whole person impairment.

The effect on activities of daily living is predominantly from the effects of the right knee condition, but there is also some contribution from the lumbar spine, which justifies a loading of 1% to the baseline 5%, giving 6% WPI.

A one-tenth deduction is appropriate for previously symptomatic lumbar spine degenerative changes in 2006, according to the GP record. 6% - 0.6% = 5.4% rounded to 5% whole person impairment.

I assess 20 points for pain, 22 points for ROM, 25 points for stability. Adding these gives 67 points. 5° extension lag gives 5 points, tibiofemoral alignment of 4° gives 3 points. The latter two are subtracted, that is, 67 - 8 = 59 points. This gives a fair result from total knee replacement, which is 50% lower extremity impairment converting to 20% whole person impairment.

A one-tenth deduction is appropriate for pre-existing degenerative changes present on the initial X-ray taken some five months after the accident, which contributed to the extent of the assessed impairment.

The previous history recorded by the various medical examiners and the worker's own statement indicate she worked for some months after the accident, indicating the relatively slow process of deterioration in the right knee after a relatively minor physical injury.

Scarring is assessed according to the TEMSKI table according to the principle of 'best fit'.

• The claimant is conscious of the scar.
• There is colour contrast with surrounding skin.
• The claimant is able to locate the scar.
• There are minimal trophic changes.
• There are visible staple marks.
• The anatomic location of the scar is not usually visible with usual clothing, but would be visible if short pants were worn.
• There is no contour defect.
• There is negligible effect on ADL.
• There is no requirement for treatment.
• There is no adherence.

The combined impairment is 18% by 5% by 1% giving 23% whole person impairment.

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 Roger Pillemer 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)

[1] Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].

[2] [2006] NSWCA 284.

[3] [2021] NSWCA 304 at [26].

[4] [2015] NSWSC 526 at [45].