WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of permanent impairment arising from crush injury to foot resulting in amputation of four toes; examinations by orthopaedic surgeon and plastic surgeon; plastic surgeon allowed 0% whole person impairment (WPI); re-examination limited to scarring; Held - MAC revoked.

1. On 21 May 2025 Mark Pawlutschenko lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessors Rob Kuru and John Giles. As lead assessor, Medical Assessor Kuru issued a Medical Assessment Certificate (MAC) on 23 April 2025.
2. Mr Pawlutschenko appeals in respect of Medical Assessor Giles' MAC only. He relies on the following of appeal under s 327(3)(c) and (d) 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 President's delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d) . We conducted a review of the original medical assessment, limited to the grounds 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. Mr Pawlutschenko was employed by Marr Contracting Pty Ltd (Marr Contracting) as a rigger when he suffered a crush injury to his right foot on 7 March 2022, which resulted in the amputation of the second to fifth toes. He underwent extensive plastic surgery, using a skin graft from his right hip.
2. Mr Pawlutschenko's claim was based on a report by Dr Giblin, orthopaedic surgeon, who assessed 16% whole person impairment (WPI). Dr Giblin's assessment was made in a "broad brush" way, allowing the basic assessments of Mr Pawlutschenko's toes, then making the maximum assessment under the TEMSKI to take account of all of the other consequences of the injury.
3. Dr Giblin assessed 4% lower extremity impairment (LEI) due to the loss of the range of motion of Mr Pawlutschenko's big toe, 8% LEI in respect of the amputation of his remaining toes, resulting in 12% LEI or 5% WPI. He assessed 2% WPI in respect of a "compensatory injury" of Mr Pawlutschenko's right knee. Using the Table for the Evaluation of Minor Skin Impairments (TEMSKI), Dr Giblin assessed 9% WPI for scarring to Mr Pawlutschenko's amputation stumps, big toenail and right thigh.
4. Dr Machart, orthopaedic surgeon, assessed Mr Pawlutschenko at the request of Marr Contracting. He assessed 15% LEI, which converts to 6% WPI, comprised of the loss of movement in the big toe and loss of the other toes and right knee pain. Dr Curtin, hand and plastic surgeon, assessed Mr Pawlutschenko's scarring at 3% WPI and allowed 1% for a digital neuroma on a branch of the medial plantar nerve.
5. The Personal Injury Commission (the Commission) was not required to determine any issues before the referral to the Medical Assessor. The referral was expressed in the same way as the claim was set out in the Application to Resolve a Dispute, with the body parts referred being right lower extremity and scarring.
6. Medical Assessor Kuru assessed 34% LEI which converts to 14% WPI. He set out his reasons:

"AMA 5 page 545 17.32 assesses 2% lower extremity impairment for amputation of each lesser digit. A further 2% lower extremity impairment is assessed for restricted movement of the metatarsophalangeal joint of the great toe according to AMA 5 page 537 17.34. 4% lower extremity impairment is assessed for restricted range of motion in the right subtalar joint according to AMA 5 page 437 17.12.

The loss of normal, sensate, padded protective skin over the distal metatarsal stumps consequent to the amputation leaves significant compromise to foot function and limitation in performance of activities of daily living (via altered gait and restricted footwear options).

Impairment for this is inadequately assessed by the SIRA guidelines and AMA5.

According to AMA5 p550 T17.36, due to amputation, I assess 12% LEI for impaired skin covering on the Vth metatarsal head. According to SIRA p5 para 1.23, due to amputation, I assess a further 12% LEI for skin loss over the 2nd metatarsal head given its prominence and significant impact on functioning.

24% LEI, 8% LEI, 4% LEI and 2% LEI combines totals 34% LEI. According to AMA5 p 527 T 17.3 this converts to 14% WPI."

1. Medical Assessor Giles assessed 0% WPI because:

"There is no denying that Mr Pawlutschenko has had a very major injury and he has permanent and disabling symptoms; however, these relate to the amputation of his toes which will be assessed by Dr Kuru. The skin closure on his foot is good, with excellent flap coverage of the metatarsals and there are no areas of skin breakdown, whilst the skin graft donor site has settled so well that it is no longer visible. Under these circumstances, I believe the 'best fit' for the impairment his scarring has caused would be 0%.

Permanent impairment ratings take symptoms into account; however the percentage whole person permanent impairment is not a direct measure of disability. A finding of zero percent whole person impairment indicates that there was an injury caused by the motor accident [sic] and that there may be continuing symptoms, however, relevant guides rate the associated impairment at 0% WPI."

1. The original Appeal Panel included Medical Assessor McGlynn. The 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, we determined that Mr Pawlutschenko should undergo a further medical examination because Medical Assessor Giles had assessed scarring at 0% WPI despite photographs which showed significant scarring on Mr Pawlutschenko's foot. He provided minimal reasons for his assessment. We determined that Medical Assessor McGlynn should undertake the examination.
3. When the parties were provided with the details of the re-examination, Mr Pawlutschenko's solicitor informed the Commission that Medical Assessor McGlynn had previously examined Mr Pawlutschenko, though his report was not in the brief. The Appeal Panel was then reconstituted with Medical Assessor Linsell, replacing Medical Assessor McGlynn and a further appointment for re-examination made.

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.
2. Medical Assessor Linsell of the Appeal Panel conducted an examination of the worker on 17 September 2025 and reported to us. The report forms part of these reasons.
3. The parts of the MAC that are relevant to the appeal are set out below.

1. Both parties made written submissions. They are not repeated in full, but we have considered them.
2. In summary, Mr Pawlutschenko submitted that Medical Assessor Giles only assessed the scarring at the skin donor site and failed to assesses the significant scarring "in and around the amputation stump". Mr Pawlutschenko sought a re-examination for assessment of scarring at the skin donor site and the amputation site.
3. In reply, Marr Contracting submitted that it was evident from the MAC that Medical Assessor Giles had taken the scarring at the amputation site into account. It said that Medical Assessor Kuru had assessed 24% LEI for impaired skin and skin loss over the amputation site. If Mr Pawlutschenko was to undergo re-assessment, it would potentially involve duplication of assessments for the skin body system.

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[1] 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[2] 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. No appeal is raised in respect of Medical Assessor Kuru's assessment, though it is important to summarise his MAC to explain why his assessment of skin loss under Table 17.36 of AMA 5 does not result in double-counting.
2. Medical Assessor Kuru set out a history of the injury including that Mr Pawlutschenko "will develop pain after long periods of being on his feet and walking". His present symptoms include "ongoing pain in his forefoot, particularly with prominence over the second metatarsal head."
3. Medical Assessor Kuru set out his examination findings:

"On examination he was a well looking man who walked with a slight limp. Clinically he had an amputation of the second through fifth toes. There was prominence of the second metatarsal head. Range of motion in the ankles was recorded as follows:

Range of motion of the great toe was 30° of dorsiflexion to neutral. Range of motion of the IP joint was from 0° to 30°.

Range of motion in the knee demonstrated full range of painless movement. There was no patellofemoral crepitus. Ther knee was coronally and sagittally stable.

The irregular scar showed previous evidence of grafting over the distal metatarsal heads.

1. Comparing his assessments to those in the file, Medical Assessor Kuru said:

"With respect to the report by Dr Machart dated 13 February 2024, I have assessed similar impairment for the amputation and restricted movement of the great toe. Dr Machart did not detect restricted motion in the subtalar joints and has not assessed impairment for it. Dr Marchart has not assessed impairment for the soft tissue defect.

With respect to the report by Dr Giblin dated 23 May 2023, I agree with the assessment of 8% lower extremity impairment for the amputation. I did detect restricted movement of the great toe but not a rateable restriction of movement in the IP joint of the great toe. Dr Giblin did not assess impairment for restriction in range of motion of the subtalar joint. Dr Giblin also has not assessed impairment for the soft tissue defect.

I did not make findings consistent with chondromalacia patellae in the knee and hence, have not assessed impairment for it."

1. Medical Assessor Kuru made an assessment in respect of impaired skin covering under Table 17.36 of AMA 5. It is important to note that the table appears in the chapter which deals with the lower extremity. The heading of the section is Skin Loss and the introduction reads:

"Full-thickness skin loss about certain areas in the lower extremity results in significant impairment, as shown in Table 17-36, even when the areas are successfully covered with an appropriate type of skin graft."

1. The table includes assessment of the "[p]lantar surface, metatarsal head covering that limits standing and walking time". The Medical Assessor made an assessment of 12% LEI in respect of two metatarsal heads.
2. The Guidelines provide in paragraph 3.31 (also in the chapter dealing with the lower extremity):

3.31 Skin loss (AMA5, p 550, AMA5) can only be included in the calculation of impairment if it is in certain sites and meets the criteria listed in AMA5 Table 17-36 (p 550), AMA5)."

1. While there might appear at first glance to be an overlap with the assessment of scarring, the assessment of skin loss is made because of the impact of the skin loss on the time a worker can spend standing and walking. As Table 17.36 makes clear, it is measuring the loss of the underlying layers of the skin and not the appearance of the scar.

"Mr Pawlutschenko is not receiving any specific treatment for his injuries at present apart from anti-depressants, Gabapentin and analgesics such as Nurofen and Panadol for his continuing pain."

1. Setting out his present symptoms, Medical Assessor Giles said:

"Mr Pawlutschenko now complains of the following problems which he attributes to his injury,

• Pain in his right foot, particularly at night, for which he takes regular analgesics.
• The unsightly appearance of his right foot because of which he will no longer go to the beach because he is too embarrassed by the appearance of his foot.
• The loss of the fat pad on the dorsum of his forefoot which causes difficulty with walking.
• He has difficulty with shoes and he requires special footwear which he can no longer obtain.
• He can no longer do activities, such as running, rock climbing or walking long distances that he did before being injured."

1. Medical Assessor Giles' assessment of WPI was at odds with the history he obtained and the photographs in his MAC, necessitating a re-examination.

1. Medical Assessor Linsell re-examined Mr Pawlutschenko on behalf of the Appeal Panel. We adopt his report and his assessment and there is no utility in repeating the matters set out in it, noting the statement Ward P with whom the other members of the Court of Appeal agreed, in Coca-Cola Europacific Partners API Pty Ltd v Pombinho:[3]

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

1. Skin is assessed under Chapter 14 of the Guidelines. The matters in the introduction explain how it is to be assessed and says in paragraph 14.4 that Table 8-2 of AMA 5 provides the method of calculation. Paragraph 14.7 of the Guidelines explains that the TEMSKI is an extension of Table 8-2 of AMA 5, dividing class 1 of that table into five categories of impairment. It says:

"The TEMSKI may be used by trained assessors (who are not trained in the skin body system), for determining impairment from 0-4% in the class 1 category, that has been caused by minor scarring following surgery. Impairment greater than 4% must be assessed by a specialist who has undertaken the requisite training in the assessment of the skin body system."

1. In this case, where scarring is being assessed by a specialist plastic surgeon, it is appropriate that the scarring is assessed under chapter 8 of AMA 5 and chapter 14 of the Guidelines.
2. We point out that Medical Assessor Linsell has been careful to distinguish between the skin loss assessed by Medical Assessor Kuru and the scarring. The skin loss, being the loss of the plantar fat pad, is illustrated in the photograph on page 13.
3. For these reasons, we have determined that the MAC issued on 23 April 2025 by Medical Assessor Giles and the consolidated MAC should be revoked. A new MAC is attached to this decision.

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

The medical history relayed to me by Mr Pawlutschenko on 17 September 2025 does not differ from previous records.

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

1. The original Medical Assessment Certificates were performed on 23 April 2025. 2. Since that time the plantar surface of the ball of the foot has become more sensitive. 3. The dorsal surface of the skin over the amputated second toe has also become more sensitive. 4. Below is list of ADL's currently affected by his scarring (as opposed to his amputated toes). 1. Self-Care: Mr Pawlutschenko's scars create no issue with self-care.

1. Communication: Mr Pawlutschenko has no issue with communication. 1. Physical Activity: Mr Pawlutschenko's scars do not interfere with his physical activity, 2. Sensory Function: The area over the tip and dorsal surface of Mr Pawlutschenko's second toe is very sensitive to touch.

1. Hand Function: Mr Pawlutschenko has no issue with hand function.
   1. Travel: Mr Pawlutschenko is unable to fly long distances because he finds his foot swells and becomes painful.
   2. Sexual Function: Mr Pawlutschenko became depressed after his accident and issues with achieving an erection and libido remain.
   3. Sleep: Mr Pawlutschenko's sleep is frequently disturbed by 'electric shocks' in his foot which wake him. This is worse if he has been on his feet all day.

1. Findings on clinical examination
   1. Mr Pawlutschenko is a communicative and personable man, and I could detect no attempts at embellishment of his history or symptoms.
   2. He walks with a slight limp.
   3. As previously described his right second to fifth toes have been amputated at the metatarso-phalangeal joints.
   4. Skin flap coverage over toes 3 to 5 is reasonable though sensitive to touch.
   5. Over the tip of the amputated 2nd toe, there is very thin, hypersensitive skin. There is a positive Tinel's test when tapping the tip of the toe.
   6. Over the dorsum of the 2nd toe is a skin graft measuring 3cm x 1cm, which is pigmented, surrounded by sutures marks and atrophic scar.
   7. On the lateral border of the great toe, at mid nail level, there is a 1cm horizontal scar with some contour defect.
   8. On the medial aspect of the base of the nail of the right great toe is a barely perceptible 1cm scar.
   9. On the plantar surface there is loss of the fat pads that normally protect the ball of the foot. This area is very sensitive to touch.
   10. The donor site on his right thigh is barely perceptible.

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

There have been no additional investigations since the original Medical Assessment Certificate.

My answers to the following questions regarding the assessment of impairment and or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:

1. Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body part/system: No
2. Have all body parts/systems stabilised/reached maximum medical improvement? Yes
3. If not, please list those injuries not yet stable/at maximum medical improvement: N/A
4. If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur? N/A

1. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No
2. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. N/A

My assessment is based on the history as supplied by Mr Pawlutschenko to me personally and upon my examination of his right foot.

1. My opinion and assessment of whole person impairment

• The Claimant's Whole Person Impairment (WPI) from his work-related injury, has been arrived at in accordance with WCG4 and AMA 5.
  • Mr Pawlutschenko had no previous conditions or illnesses relevant to the injury sustained at work.
  • With reference to AMA5 Table 8-2, p.178, in my view Mr Pawlutschenko has a Class 1 impairment.
  • I arrived at this assessment because:
    • His skin disorder signs and symptoms are present,
    • His scars provide few limitations in performance of some activities of daily living (sensory function, travel and sleep.) Sexual function is probably not related to his scarring alone.
    • He requires only intermittent treatment for his scars.
  • NSW Workers Compensation Guidelines 4th Edition paragraphs 14.7 and 14.8 then direct use of table 14.1 Table for Evaluation of Minor Skin Impairment (TEMSKI).
  • In my view, the impairment lies in the 5-9% WPI of TEMSKI because,
    • Claimant is conscious of the scars.
    • There is distinct colour contrast with surrounding skin.
    • Claimant is easily able to locate the scars.
    • Trophic changes are visible.
    • Suture marks are clearly visible.
    • Anatomic location of the scars is covered by shoes but obvious with sandals.
    • Contour defect is clearly visible.
    • Limitation in the performance of a few ADL and exposure to physical agents eg sunlight, cold, may temporarily increase limitation. Please note there is no limitation of grooming or dressing due to his scars, however in my view an impairment of 5-9% is the best fit.
    • Intermittent treatment only is required.
    • Some adherence is present.
  • In my opinion Mr Pawlutschenko's skin disorder is at the lower end of this range, namely 6%.
  • In my assessment, Mr Pawlutschenko has a WPI of 6% for his skin disorder.

In making that assessment I have taken account of the following matters:-

• The skin condition/scars are assessed as Class 1 because there is limited performance in a few activities of daily living (sensory function, travel and sleep) and he only requires intermittent treatment such as moisturisation.
• The injury was sustained at work and there were no pre-existing injuries.

1. An explanation of my calculations (if applicable)

1. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
   1. I have read the medical opinion of Dr John Giles (who assessed Mr Pawlutschenko's Whole Person Impairment for his skin disorder at 0%).
   2. Dr Giles reached this conclusion because he felt there was good flap coverage over the amputated toes and felt that any impact on ADL's was due to the amputated toes.
   3. I disagree with Dr Giles assessment because the skin coverage over the 2nd toe is very thin, and very painful with an obvious skin graft over the dorsal surface of the 2nd toe. There are also scars on Mr Pawlutschenko's great toe which were not taken into consideration.
   4. In my view. Mr Pawlutschenko has symptoms related to his scarring, which limit the performance of a few activities of daily living, placing him just above the midrange of a Class 1 impairment, according to TEMSKI.

1. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.

1. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY

1. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:

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 John Giles and the Consolidated Medical Assessment Certificate 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] [2006] NSWCA 284.

[2] [2021] NSWCA 304 at [26].

[3] [2024] NSWCA 191 at [88].