1. On 12 August 2025 John Stephen Maher (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on

21 July 2025. 2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act): * the assessment was made on the basis of incorrect criteria, and * the MAC contains a demonstrable error. 3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made. 4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules. 5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

1. The appellant sustained an injury on 4 September 2018 in his employment as an electrical contractor with Lone Pine Jack Pty Ltd (the respondent).
2. The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 9 May 2025 in which he claimed lump sum compensation in respect to the injury to his left lower extremity, left upper extremity and nervous system
3. The matter was referred to Dr Robert Kuru, Medical Assessor, for assessment of whole person impairment (WPI) of the left lower extremity (ankle/foot, peripheral nervous system) left upper extremity (wrist) and scarring (TEMSKI) as a result of the injury deemed to have occurred on 4 September 2018.
4. The Medical Assessor examined the appellant on 3 July 2025 and assessed 5% WPI of the left lower extremity (ankle / foot, peripheral nervous system), 2% WPI of the left upper extremity (wrist) and 2% for scarring (TEMSKI). The total WPI assessed was 9 % as a result of the injury deemed to have occurred on 4 September 2018.

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 appellant should undergo a further medical examination because there was an error in the MAC and insufficient information on which to make a determination.

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 David Crocker of the Appeal Panel conducted an examination of the appellant on 24 November 2025 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.

1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel:

(a) ground 1 A - assessment made on the basis of incorrect criteria - left lower extremity (ankle/foot/peripheral nerve system);

(b) in paragraph 10(b) of the MAC the Medical Assessor stated that impairment was not assessable for restricted range of motion in the left ankle per AMA 5 pages 536, Table 17.11 and 17.12 and Guidelines page 153.17, whereas it was assessable for ankylosis of the subtalar joint;

(c) in paragraph 10(c) of his report Medical Assessor states that he found a greater range of motion in the appellant's left ankle and has not assessed impairment on the basis of restricted motion but assessed impairment on the basis of subtalar arthrodesis;

(d) the Medical Assessor does not mention in his report the position of the appellant's left heel in which the subtalar joint has become ankylosed. The only description the Medical Assessor makes of the left foot is as being plantigrade, which describes walking on the sole of the foot as opposed to the toes. Dr Negus measured the appellant's heel as 15 degrees valgus which is outside the optimum position as described in AMA 5 and the Guidelines;

(e) the main discrepancy between the impairments measured by the Medical Assessor, Dr Negus and Dr Machart relates to the left lower extremity. Both

Drs Negus and Machart assessed the impairment of the left lower extremity (ankle/foot/peripheral nervous system) as significantly higher than the Medical Assessor;

(f) at paragraph 10(b) of the MAC the Medical Assessor gives an explanation of his calculation of the impairment of the appellant's left lower extremity. The Medical Assessor assesses the 20 degrees of plantar flexion of the left ankle as per AMA 5 Table 17 - 11 at 7% lower extremity impairment (LEI), with the 20 degrees of dorsiflexion not attracting an impairment;

(g) with regard to the appellant's left hindfoot, the Medical Assessor has assessed subtalar ankylosis, which according to Table 3.1 in the Guidelines, on page 16 gives a 10% LEI when ankylosed in a neutral position. Dr Negus found the position of the ankylosed subtalar joint to have the left heel in a non-optimum position of 15 degrees valgus which according to Table 3.1(a) of the Guidelines gives an additional impairment rating of 10% LEI which is to be added as per paragraph 3.18, page 16, of the Guidelines;

(h) at paragraph 10(b) of his report the Medical Assessor states that impairment is not assessable for restricted range of motion in the ankle as per AMA 5, page 536, Table 17-11 and 17-12. The Medical Assessor has fallen into error in relation to his understanding of the Guidelines. It is submitted that the ankle and the hindfoot are different joints and treated as such in the Guidelines which allow for separate impairment assessments of the left ankle and left hindfoot and allow for the assessment to be combined to find a total impairment. For example, if using Tables 17-11 and 17-12 to assess motion impairments of the ankle joint and the subtalar joint, both impairments are combined. It logically follows to assess the left lower extremity/ankle it is necessary to combine the impairment from the loss of ankle motion with any impairment caused by subtalar ankylosis;

(i) if the Medical Assessor had correctly used the impairment criteria, in relation to his own findings in respect of the appellant at his examination, his assessment should have been 7% LEI for plantar flexion, (AMA 5 Table 17-11), 10% LEI for ankylosis (Table 3.1 Guidelines), 10% LEI non-optimum position - 15 degrees valgus Guideline Table 3.1(a) which total 26% LEI;

(j) this is the same assessment that Dr Negus made in his supplementary report of 20 January 2025, which the Medical Assessor does not refer to although it was before him when he examined the appellant;

(k) ground 1 B - peripheral nervous system - the Medical Assessor did not find any sensory deficit in the distribution of the appellant's common peroneal nerve or superficial/deep peroneal nerve but assessed sensory deficit on the basis of an injury to the sural nerve. At paragraph 10(b) of his report the Medical Assessor has assessed 2% LEI for the accepted sensory loss in the distribution of the sural nerve and combined it with the LEI that he found for the ankylosis of the appellant's subtalar joint and has only allowed 5% WPI for the combined total;

(l) Dr Machart in his report of 8 January 2025 commented that he did not see evidence of superficial or common peroneal nerve injury but did note sural nerve damage. Dr Negus, in his report of 20 January 2025 says:

"This is different to my findings, and I cannot explain why our examinations found sensory loss in a different anatomical area. However, the 2% WPI for Sural nerve involvement is the same as the 2% WPI for superficial peroneal nerve that I found";

(m) on both the findings of Drs Machart and Negus for the nerve damage, whether it is in the distribution of the common peroneal nerve, or the sural nerve, 2% WPI should be allowed and added to the assessment for the left lower extremity/ankle. The Medical Assessor has not done this;

(n) ground 1 C. left upper extremity (wrist) - there is no dispute that the appellant suffered a serious fracture of his left wrist and has been left with diminished movement of his left wrist;

(o) Dr Machart examined the appellant on 26 September 2024 and having regard to the findings of the movement of the left wrist assessed 4% WPI. In his supplementary report of 20 January 2025, Dr Negus said:

"I found less stiffness in the wrist than Dr Machart. I found an impairment of 2% UEI and he found a greater impairment of 6% UEI. I am happy to take his impairment rating for the wrist. As he states, there may be further degeneration since my examination, due to the nature of the intra-articular injury";

(p) the Medical Assessor examined the appellant on 3 July 2025. In relation to his left wrist he found movement as follows (see paragraph 5) Movement Left Wrist Extension 60 degrees Flexion 40 degrees Radial Deviation 20 degrees Ulnar Deviation 30 degrees;

(q) Dr Machart found extension of the left wrist at 40% and the Medical Assessor found 60%, exactly the same as the uninjured right wrist. This is a significant deviation to the assessment of Dr Machart, particularly where Dr Negus, and

Dr Machart, expressed the opinion that there would be further deterioration of the appellant's left wrist due to the nature of the intraarticular injury that he sustained to his right wrist;

(r) ground 2 - demonstrable error - for the reasons set out above it is submitted that the Medical Assessor has made errors in relation to the assessment of the appellant's left lower extremity (ankle/foot/peripheral nervous system) and his left upper extremity (wrist). On the proper construction of the relevant Guidelines, the Medical Assessor's MAC contains demonstrable errors. There is no dispute that the appellant sustained significant injuries, has undergone complex surgical procedures and has been left with significant impairments and yet on the assessment made by the Medical Assessor the appellant does not reach the necessary threshold to receive any compensation pursuant to s 66 of the Workers Compensation Act 1987;

(s) the Medical Assessor examined the appellant over nine months after Dr Machart, and it is submitted that the Medical Assessor's findings on examination in relation to the left upper extremity, that it has significantly improved cast significant doubt on the accuracy of the Medical Assessor's examination findings, and

(t) both in relation to the proper assessment of the appellant with respect to his left lower extremity, and right upper extremity, it is submitted that a member of the Medical Appeal Panel should examine the appellant and make up to date assessments of his range of motion, both in relation to his left lower extremity and left upper extremity, and make an assessment of the appellant's left heel.

1. The respondent's submissions include the following:

(a) left lower extremity - there are two aspects to the assessment in respect of the left lower extremity. Firstly, the assessment in respect of the ankle/hindfoot. Secondly, the assessment in respect of the peripheral nerve system;

(b) the main point of contention appears to relate to the Medical Assessor's decision to provide an assessment in respect of the left ankle/hindfoot on the basis of ankylosis of the subtalar joint rather than assessing range of motion;

(c) the Medical Assessor details his reasons for this decision in paragraph 10b of the Medical Assessment Certificate, relying on AMA 5, Page 536 17.11 and 17.12 and the Guidelines, Page 15, 3.17. It is noted that the correct page number for the AMA Guides is Page 537;

(d) Chapter 3.1 of the Guidelines refers to AMA 5, Chapter 17 at Page 523 to 564. Chapter 3.1 stipulates that a number of alternative methods of assessing permanent impairment involving the lower extremity are provided. Further, Chapter 3.2 provides that assessment of the lower extremity "can use a variety of methods" and that "in general, the method should be used that most specifically addresses the impairment present";

(e) Chapter 3.18 of the Guidelines provides that "ankylosis is to be regarded as the equivalent to arthrodesis in impairment terms. Table 3.1 provides 10% lower extremity impairment for ankylosis of the subtalar joint in optimum position". Specifically, this follows the history obtained by the Medical Assessor that the appellant underwent subtalar joint fusion in April 2023;

(f) no error is demonstrated in circumstances where there is specific latitude authorised by the Guidelines as to the method of assessment;

(g) in response to the submission that the Medical Assessor should have provided separate assessment for the ankle and hindfoot, the subtalar joint is a complex joint in the foot located between the talus and calcaneus (heel bone) which, the undoubtedly forms part of the hindfoot. The percentage allowed by Table 3.1 encompasses all affects [sic] of the subtalar fusion, including on the adjacent structures;

(h) the appellant cavils with differences in assessments by the qualified doctors and the Medical Assessor. Chapter 1.6a of the Guidelines specifically provides that "assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment...". A difference of opinion is not a demonstrable error: see Merza v Registrar of the Workers Compensation Commission [2006] NSW SC 939 at [51];

(i) peripheral nervous system - as to assessment of the peripheral nervous system, the appellant points to differences in the assessments between the Medical Assessor and in the qualified doctors. As to this submission, see paragraph (h) above, and

(j) left upper extremity (wrist) - the appellant again relies upon differences in the assessments of the qualified doctors and the Medical Assessor. In relation to grounds of appeal in relation to left upper extremity, see paragraph (h) above.

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 reviewed the MAC and the evidence in this matter.

A - Left Lower Extremity (ankle/foot/peripheral nerve system)

1. In the MAC under "Findings on Physical Examination", the Medical Assessor wrote:

"On examination he was a well looking man in no obvious distress. Range of motion of the ankles was assessed as follows:

The foot was plantar grade with normal distribution of callosity on the sole. There was irregular sensory disturbance over the dorsum of the foot. Sensation in the first web space was intact. Toe movement was normal.

Gastrocnemius circumference was 38cm on the right and 36cm on the left."

1. Under "Summary of injuries and diagnoses" the Medical Assessor wrote:

"Mr Maher fell from a ladder and sustained a fracture of his left distal radius and left

calcaneus. He subsequently underwent open reduction and internal fixation on the left calcaneal fracture. Unfortunately, with ongoing symptoms he then underwent subtalar joint arthrodesis."

1. Under "Reasons for Assessment" the Medical Assessor assessed 5% WPI of the left lower extremity (ankle / foot, peripheral nervous system), 2% WPI of the left upper extremity (wrist) ad 2% WPI for scarring / TEMSKI. He explained his calculations as follows:

"Impairment was not assessable for restricted range of motion in the ankle per AMA 5 page 536 17.11, 17.12 and SIRA page 15 3.17. Impairment was assessable per SIRA page 16 3.1 for ankylosis of the subtalar joint (10% lower extremity impairment).

I have assessed a further 2% lower extremity impairment per AMA 5 page 552 17.37 for sensory loss in the distribution of the sural nerve.

10% LEI combined with 2% LEI gives 12% LEI. According to AMA page 527 17.3, this converts to 5% whole person impairment.

Restricted range of motion in the wrists is assessed according to AMA 5 page 467

16.28, 469 16.31. 3% upper extremity impairment was assessed. Per AMA 5 page

1. 16.3, this converts to 2% whole person impairment.

Scarring / TEMSKI is assessed according to SIRA page 74 14.1. On the basis of there being colour and contour defects, 2% whole person impairment was assessed for scarring / TEMSKI."

1. In commenting on the other medical opinions, the Medical Assessor wrote:

"With respect to the report by Dr Negus dated 27 July 2024, I found a greater range of motion in the ankle and have not assessed impairment on the basis of restricted

motion. I have, however assessed impairment on the basis of subtalar arthrodesis

I note Dr Negus assessed impairment for sensory deficit in the distribution of the

common peroneal nerve. I did not find evidence of sensory change in the distribution of the superficial or deep peroneal nerve and have assessed sensory deficit on the basis of the injury to the sural nerve. I have assessed 2% rather than 1% for scarring / TEMSKI.

With respect to the report by Dr Machart dated 2 October 2024, I note he has assessed 14% lower extremity impairment for a subtalar arthrodesis per SIRA page 16 Table 3.1. 14% is the ankle or foot impairment. The lower extremity impairment is 10%. I did not find restriction of extension at assessment. I agree with the assessment of impairment for diminished sensation in the distribution of the sural nerve.

With respect to the assessment of motion in the wrist, I did not find restriction of

extension and have not assessed impairment for it. I am in agreement with the assessment of 2% whole person impairment for scarring / TEMSKI."

1. The appellant submits that the Medical Assessor did not mention in the MAC the position of the appellant's left heel in which the subtalar joint has become ankylosed. The only description the Medical Assessor made of the left foot was as being plantigrade, which describes walking on the sole of the foot as opposed to the toes.
2. The Appeal Panel agrees that Dr Negus in his report of 27 July 2025 under "Left ankle" noted "Left heel in 15° valgus compared to the right at 5°" whereas Dr Machart noted: "Valgus 5°, no additional LEI". Dr Negus measurement of the appellant's heel as 15 degrees valgus is outside the optimum position as described in AMA 5 and the Guidelines.
3. The Appeal Panel notes that in order to determine impairment relating to arthrodesis of the subtalar joint there should be clinical findings made relating to a valgus, varus or neutral alignment for it, particularly in circumstances where an Independent Medical Examiner (IME) makes findings which are outside the optimum position in AMA 5 and the Table 3.1(a) of the Guidelines.
4. The Appeal Panel considers that the failure to make clinical findings relating to a valgus, varus or neutral alignment for the subtalar joint resulted in the assessment being made on incorrect criteria and was a demonstrable error.
5. The appellant notes that at paragraph 10(b) of his report the Medical Assessor states that impairment is not assessable for restricted range of motion in the ankle as per AMA 5, page 536, Table 17-11 and 17-12. The appellant submits that the Medical Assessor has fallen into error in relation to his understanding of these Guidelines because the ankle and the hindfoot are different joints and treated as such in the Guidelines which allow for separate impairment assessments of the left ankle and left hindfoot and for the assessment to be combined to find a total impairment.
6. The appellant argues, for example, if using Table 17-11 and Table 17-12 to assess motion impairments of the ankle joint and the subtalar joint, both impairments are combined. The appellant submits that it logically follows to assess the left lower extremity/ankle it is necessary to combine the impairment from the loss of ankle motion with any impairment caused by subtalar ankylosis.
7. The Appeal Panel agree that the Medical Assessor should have assessed both the ankle and subtalar joint and then added those assessments together (using the methodology in the Lower Extremity Impairment Evaluation Record and Worksheet template in AMA 5 - Figure 17-10 page 561). The ankle joint and subtalar joint are different joints: the subtalar joint is under the talus whereas the ankle joint on top of the talus. Both joints should have been assessed in order to correctly calculate impairment in the left ankle and foot. The Appeal Panel is satisfied that the Medical Assessor made the assessment of the ankle and subtalar joint on the basis of incorrect criteria and that this was a demonstrable error.
8. This ground of appeal is made out.

1. The appellant submits that both Drs Machart and Negus assessed 2% WPI for nerve damage, whether it was in in the distribution of the common peroneal nerve, or the sural nerve, and 2% WPI should be allowed for nerve damage and added to the assessment for the left lower extremity/ankle.
2. The appellant noted and the Appeal Panel agrees that the Medical Assessor did not find any sensory deficit in the distribution of the appellant's common peroneal nerve or superficial/deep peroneal nerve but assessed sensory deficit on the basis of an injury to the sural nerve. At paragraph 10(b) of his report the Medical Assessor has assessed 2% LEI for the accepted sensory loss in the distribution of the sural nerve and combined it with the LEI that he found for the ankylosis of the appellant's subtalar joint allowing 5% WPI for the combined total.
3. Dr Negus, in his report of 20 January 2025 noted that he found sensory loss in a different anatomical area, however, the 2% WPI for sural nerve involvement was the same as the 2% WPI for superficial peroneal nerve that he found. Dr Machart, in his report of 8 January 2025, commented that he did not see evidence of superficial or common peroneal nerve injury but did note sural nerve damage. However, Dr Machart assessed 2% LEI for "diminished sensation/sural nerve", not 2% WPI.
4. The Medical Assessor assessed 2% LEI for nerve damage to the sural nerve which was the same assessment made by Dr Machart. The Medical Assessor has assessed 2% for nerve damage and added to the assessment for the left lower extremity/ankle.
5. This ground of appeal is not made out.

1. The appellant notes that Dr Machart examined him on 26 September 2024 and assessed 4% WPI, which was accepted by Dr Negus in his supplementary report of 20 January 2025. The appellant notes that both doctors agreed that there may be further degeneration since my examination, due to the nature of the intra-articular injury.
2. In the examination on 3 July 2025, the Medical Assessor found in relation to his left wrist: Extension 60 degrees, Flexion 40 degrees, Radial Deviation 20 degrees and Ulnar Deviation 30 degrees.
3. The appellant notes that Dr Machart found extension of the left wrist at 40 degrees while the Medical Assessor found 60 degrees, that is, exactly the same as the uninjured right wrist. The appellant submits that this is a significant deviation to the assessment of Dr Machart, particularly where Dr Negus and Dr Machart, expressed the opinion that there would be further deterioration of the appellant's left wrist due to the nature of the intraarticular injury that he sustained to his right wrist.
4. The Appeal Panel notes that Drs Negus and Machart did not state that "there would be further deterioration" of the appellant's left wrist. Dr Negus, in his report of 27 July 2024, wrote: "My prognosis for the left wrist is good as this has stabilised and is unlikely to degenerate."
5. In his later report dated 20 January 2025, Dr Negus wrote:

"I found less stiffness in the wrist than Dr Machart. I found an impairment of 2% UEI and he found a greater impairment of 6% UEI. I am happy to take his impairment rating for the wrist. As he states, there may be further degeneration since my examination, due to the nature of the intra-articular injury."

1. Dr Machart, in his report dated 2 October 2024, commented on the report of Dr Negus and wrote: "There appeared to be greater stiffness in the left wrist, perhaps due to posttraumatic arthritis."
2. The Appeal Panel notes that neither Dr Negus nor Dr Machart expressed the view that there "would be further deterioration" in the appellant's left wrist. Both Dr Negus and Dr Machart only expressed the view that there "may be" further degeneration.
3. Chapter 1.6a of the Guidelines provides that "assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment...".
4. The Medical Assessor applied the correct criteria and there was no demonstrable error in his assessment of the left wrist.
5. This ground of appeal is not made out.

1. The appellant submits that the Medical Assessor has made errors in relation to the assessment of the appellant's left lower extremity (ankle/foot/peripheral nervous system) and his left upper extremity (wrist) for the reasons set out above. The Appeal Panel has found error in the assessment of the left ankle and foot but not in the assessments of the peripheral nervous system and the left upper extremity.
2. As noted above, the Appeal Panel considered that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination in relation to any impairment arising from motor deficit from an axillary nerve lesion.
3. As noted above, Medical Assessor Davis Crocker of the Appeal Panel examined the appellant on 24 November 2025. Medical Assessor Crocker provided the following report:

"The purpose of the further examination was fully explained to Mr Maher at the commencement of the consultation.

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

I took the opportunity of further discussing aspects relating to the medical history and information contained in the Medical Assessment Certificate dated 21.7.25 completed by Dr Robert Kuru, Spinal Surgeon, at the request of the Personal Injury Commission. The assessment was conducted on 3.7.25.

Details, in particular, were discussed in relation to Mr Maher's current medical status. He indicated that he was in agreement with the documentation pertaining to present symptoms relating to the left ankle as outlined in the Medical Assessment Certificate.

Based upon the Medical Appeal Panel teleconference of 30.10.25 with input of Ms Carolyn Rimmer, Dr Drew Dixon and myself, it was agreed that there had been an error in the Medical Assessment Certificate and that a re-examination was required pertaining to the region of the left ankle/hindfoot.

It is apparent that the legal representative for the worker had indicated that it was their opinion that Dr Kuru had not taken into account his finding of limitation with active range of motion at the left ankle in his calculation of impairment and that based upon the documentation of Dr Kuru's findings, it was not possible to determine impairment relating to arthrodesis of the subtalar joint in view of apparent absence of clinical findings relating to a valgus, varus or neutral alignment for it.

The Appeal Panel had not considered that re-examination was necessary with respect to Dr Kuru's findings relating to the peripheral nervous system pertaining to the left lower extremity nor that relating to the region of the left upper extremity pertaining to the wrist.

I took the opportunity of reviewing the more recent radiological investigations as follows:

• CT scan examination (26.9.23) of the left foot (inclusive of report).
• X-ray examination (12.3.24) of the left ankle (inclusive of report).
• X-ray examination (22.5.23) of the left foot (without accompanying report).
• X-ray examination (4.7.23) of the left ankle (inclusive of report).

Mr Maher reported that he has not undergone any radiological investigations since the time of Dr Kuru's assessment of 3.7.25.

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

Mr Maher was informed that I would require his full cooperation but that I would cease or modify any manoeuvres that were potentially distressing for him.

He exhibited a mildly asymmetric gait when observed walking within the confines of my office.

He was only able to undertake submaximal squatting and lunging manoeuvres within his range of comfort.

Post-surgical scarring was observed to the region of the left foot/ankle as documented by Dr Kuru.

Active range of motion was assessed on multiple occasions with use of a goniometer with respect to the ankles/hindfeet with maximal findings noted as follows:

Inspection of the left ankle/hindfoot revealed an arthrodesis with 5° of valgus alignment.

As alluded to above, nil further investigations have been attended since the time of Dr Kuru's assessment of 3.7.25.

With respect to the left ankle joint, there is a 7% lower extremity impairment taking into account mild limitation with plantar flexion.

In relation to the subtalar joint arthrodesis, reference is required to the NSW Workers' Compensation Guidelines of the Evaluation of Permanent Impairment (4th edition), in particular, Chapter 3, Tables 3.1 and 3.1(a), pg 16. These tables override those relating to ankylosis contained in the AMA Guides to the Evaluation of Permanent Impairment (5th edition).

Table 3.1 indicates a base determination relating to ankylosis at the subtalar joint of 10% lower extremity impairment.

Table 3.1(a) also needs to be referenced in relation to an optimal position or otherwise pertaining to the region. By referencing this table and noting a 5° valgus alignment of the left subtalar joint, nil additional impairment is accrued.

Taking into account the 7% lower extremity impairment with respect to the ankle joint and a 10% lower extremity impairment with respect to the subtalar joint, there is a 17% lower extremity impairment accrued.

When this is combined with the impairment of 2% pertaining to peripheral nerve dysfunction, a 19% lower extremity impairment is determined which converts to an 8% whole person impairment of the left lower extremity.

Dr Kuru had considered that nil deduction was indicated in relation to the region of the left lower extremity.

When combining the 8% with a 2% whole person impairment pertaining to the left upper extremity (wrist) and in relation to scarring (TEMSKI) of 2%, a final combined whole person impairment of 12% is determined."

1. The Appeal Panel adopts the report and findings of Medical Assessor Crocker.
2. The Appeal Panel assesses the appellant has as having a 7% LEI taking into account mild limitation with plantar flexion in the left ankle joint. The Appeal Panel assesses 10% LEI relating to ankylosis at the subtalar joint with nil additional impairment accrued for the 5° valgus alignment of the left subtalar joint.
3. Taking into account the 7% LEI with respect to the ankle joint and a 10% LEI with respect to the subtalar joint, 17% LEI is accrued. When this 17% LEI is combined with the impairment of 2% LEI pertaining to peripheral nerve dysfunction, a 19% LEI is determined which converts to an 8% WPI of the left lower extremity. When the 8% WPI is combined with a 2% WPI pertaining to the left upper extremity (wrist) and 2% WPI in relation to scarring (TEMSKI), this results in a final combined WPI of 12%.
4. For these reasons, the Appeal Panel has determined that the MAC issued on 21 July 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 Robert Kuru 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)

1. Left Lower Extremity (Ankle/Foot/Peripheral Nervous System)

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