1. On 7 April 2025 the appellant Shaleena Ramlu lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 March 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). "WPI" is reference to whole person impairment. "Baseline WPI" is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.

1. On 24 January 2025 this matter was referred for a WPI assessment of injuries to the left lower extremity (knee) and lumbar spine (consequential condition) which occurred on

17 August 2020. 2. Ms Ramlu was employed as an Age and Disability Support Worker and on the date of injury she fell whilst opening a gate above some stairs, striking her knee on the stairs. 3. At Sutherland Hospital she was diagnosed with an avulsion fracture of the tibial spine. She was placed in a brace following suturing and referred to a physiotherapist. 4. Non-operative treatment was recommended by the treating surgeon Dr Molnar and by

27 May 2021 Dr Molnar noted the persistence of a 5° fixed flexion contracture. Ms Ramlu continued with symptoms in her knee and another treating surgeon Dr MacDessie noting quadriceps wasting, but an otherwise stable knee. 5. In 2023, Ms Ramlu noted the development of back pain when she was walking around the time she stopped using a walking stick. The back pain progressively got worse. 6. The Medical Assessor assessed 12% WPI in relation to the left knee and 0% for the lumbar spine.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that the worker should not undergo a further medical examination as no error was found in the MAC as explained 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. 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 which have been considered below by the Appeal Panel.

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 issue in this case is whether the Medical Assessor erred in finding 0% in relation to the lumbar spine assessment.

1. The Medical Assessor took a history as outlined above. On examination he reported:[1]

"Range of motion in the lumbar spine demonstrated flexion to the mid-tibia. Rising from a flexed position was symmetrical, without evidence of dysmetria. Lateral flexion was to the proximal third of the tibia bilaterally."

1. Whilst the Medical Assessor noted extensive investigation of the left knee, he stated "No imaging for the lumbar spine was available for review." The Medical Assessor explained his calculations at 10b of the MAC of the lumbar spine:[2]

"The lumbar spine is assessed according to AMA 5 page 384, Table 15.3. On the basis of there being no significant clinical findings, no observed muscle guarding or spasm, no documented neurological impairment or documented alteration in structural integrity, the lumbar spine is assessed as DRE Lumbar Category I (0% whole person impairment)."

1. With regard to the opinions of the experts before him at [10C], the Medical Assessor found that the assessment for the lumbar spine was DRE category I. He said:

"With respect to the report by Dr Rimmer dated 8 February 2024, I did find a restricted range of motion in the knee and hence, have assessed impairment for it. I am in agreement with assessment of the lumbar spine as DRE Category I.

I disagree with the assessment of the lumbar spine as DRE Category II. Dr Stephenson does not record asymmetric loss of motion or guarding but he does note non-verifiable radicular symptoms. Examination today was consistent with DRE Category I, as described above."

1. Ms Ramlu submitted that the Medical Assessor had erred in two respects.
2. Firstly, the Medical Assessor had failed to consider a CT scan of the lumbar spine dated

30 April 2023 and a whole body bone scan with SPEC CT dated 20 April 2023. Ms Ramlu submitted that these investigations confirmed the presence of pathology and that the Medical Assessor had erred in finding that there had been no imaging available for the lumbar spine. 3. We were referred to Dr Brian Stephenson's report dated 22 May 2024, that considered the above imaging. Ms Ramlu submitted that Dr Stephenson had found her to be suffering from a DRE category II based on his findings on examination. 4. We were referred to the findings on examination by the Medical Assessor, particularly as to flexion and an apparent asymmetric restriction on lateral flexion. 5. It was submitted that these findings were similar to those of Dr Stephenson and the Medical Assessor had failed to explain why he did not find that a DRE category II assessment was appropriate in view of Dr Stephenson's finding. 6. We were referred to the Medical Assessor's summary of Dr Stephenson's reasons for finding a DRE category II rating, but it was submitted that the Medical Assessor's summary was not accurate. We were referred to Dr Stephenson's findings, which, it was submitted, included findings of an asymmetrical loss of range of motion and non-verifiable radicular complaints. 7. The second submission by Ms Ramlu referred to Table 15-3 of AMA 5, which contains the criteria for assessment of the DRE category II rating, which she kindly reproduced. 8. Ms Ramlu conceded that the Medical Assessor had properly identified that table, but she submitted that he did not have regard to Chapters 4.18 and/or 4.19 of the Guides, which again she kindly set out. This submission was not developed. 9. Ms Ramlu then submitted that the findings on examination as recorded by the Medical Assessor would qualify her for a DRE category II finding, in common with that given by

Dr Stephenson. She submitted "there is evidence of asymmetrical (sic) loss of range of motion and this alone would qualify...." 10. Thirdly Ms Ramlu submitted that there had been obvious error in the Table 2 assessment, as the Medical Assessor has found there to be 12% (which he had confirmed as being the Combined Table Total, but in another column had inadvertently recorded 11%).

1. The respondent referred to the report of Dr Stephenson and the fact that his reference to the imaging was in italics. The respondent submitted that accordingly the Medical Assessor would have been aware of radiological material as he had considered Dr Stephenson's opinion.
2. The respondent submitted that a Medical Assessor was not required or expected to refer exhaustively to every piece of material and we were referred to the well-known dicta of Wingfoot.[3]
3. The respondent submitted that the Medical Assessor had engaged with the relevant evidence including that of Dr Stephenson and had formed an independent opinion with the bounds of his clinical discretion.
4. The respondent conceded that the radiological investigations might be relevant but the mere presence of pathology did not of itself establish the criteria necessary for the findings sought by Ms Ramlu. It was ultimately the role of the Medical Assessor that determined whether findings on radiology were clinically significant or not.
5. Submissions were made about the findings of Dr Stephenson with regard to the pathology within the investigations and it was submitted that in any event the investigations did not show any protrusion.
6. Dr Stephenson's finding, it was submitted, appeared to be based on the worker's present complaints rather than the radiological findings.
7. It was submitted that a Medical Assessor was not bound to adapt or accept prior medical opinions.
8. We were referred to the Medical Appeal case of Bustos v Cleaners NSW Pty Ltd (In Liquidation).[4]
9. It was submitted that whilst the Medical Assessor might not have fully summarised

Dr Stephenson's findings, there was no compelling evidence to suggest that the Medical Assessor's conclusions would have been influenced by Dr Stephensen's opinion. 10. The respondent submitted that the DRE category II classification was not supported, as none of the criteria was present on examination - particularly that there was no asymmetrical loss of motion recorded by the Medical Assessor. 11. The fact that Dr Stephenson had observed asymmetry did not diminish the findings of the Medical Assessor, it was submitted. The difference in examination findings was not an error in applying the criteria. 12. The respondent concurred that the obvious error should be corrected in the WPI table.

1. The Medical assessor, in recording his findings in Table 2 made what is clearly an inadvertent error by assessing in the total WPI column "12%," but entered "11%" in the subtotal column. His error was obvious, as he entered "12%" in the Combines Value total.[5] The MAC will be revoked to correct this.
2. Table 15 of AMA5 provides the criteria for assessing lumbar spine impairment, relevantly:

DRE Lumbar Category I 0% Impairment of the Whole Person

No significant clinical findings, no observed muscle guarding or spasm, no documentable neurologic impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness; no fractures

Clinical history and examination findings are compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy

individual had a clinically significant radiculopathy and has an imaging study that demonstrates a herniated disk at the level and on the side that would be expected based on the previous radiculopathy, but no longer has the radiculopathy following conservative treatment...

1. Dr Stephenson considered the relevant criteria firstly in his report of 13 October 2023. He said:[6]

"Confirming the lumbar spine, the reference is to AMA 5, Page 304, Table 15-3. I have noted asymmetric loss of range of motion. When standing, she would forward flex her fingers to reach knee level only, with lateral flexion mid-thigh level. ...

There are non-verifiable radicular complaints of radicular pain without objective findings and therefore DRE Category II, baseline of 5% WPI...."

1. In his report of 22 May 2024, Dr Stephenson said:[7]

"There was, however, a positive compression test and resistance test for trochanteric bursitis and restricted motion of the left hip. At the right knee there was full extension and a good range of movement of 130°. The right knee was stable as I have indicated and there was no impairment rating at the right knee, but at the left knee there was a flexion contracture of 7° which is in the range 5° to 9° with loss of extension. She could flex that left knee to 90°only. When sitting there was good rotation in both hips. I found, therefore, a Diagnosis Related Lumbar Category II at 5% WPI plus 2% for ADLs gaining 7%. For trochanteric bursitis, right hip not left, 3% WPI or 7%

Lower Extremity Impairment. At the right knee, there was full range of motion to 130° and no impairment.

At the lumbar spine, when forward flexing, she would forward flex her fingers to reach knee level only and with lateral flexion at mid-thigh level. I found a Diagnosis-Related Category II for the lumbar spine, baseline 5% plus 2% for ADLs." (Emphasis added)

1. It can be seen that the emphasised sentence is a non sequitur. It seems that its appearance at that point in Dr Stephenson's findings was inadvertent.
2. Dr Stephenson's findings about the lumbar spine in both reports did however appear to record an asymmetry in flexion, namely forward flexion and lateral flexion. The asymmetry was said by Ms Ramlu to qualify under the above definition of a DRE Category II rating, namely, "asymmetric loss of range of motion."
3. There are four ranges of motion that are measured - forward flexion, extension, lateral extension, and rotation. The asymmetry relates to measurements in each range. Relevantly, lateral flexion is concerned with the side bending motion, and an asymmetry would be demonstrated by a person's ability to reach further down to one side than the other. Significantly, Dr Stephenson found that Ms Ramlu could reach to her mid-thigh region, and his failure to differentiate between the right or the left thigh rather indicates that the lateral flexion measurements were equal on each side. The forward flexion measurement is irrelevant to that enquiry.
4. Accordingly, Dr Stephenson's opinion could not be afforded much weight, if such were relevant. However, a Medical Assessor is not bound by any other opinion in the evidence before him. In Wingfoot the Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held at [48]:

"The function of a Medical Panel[8] is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."

1. We are satisfied that the Medical Assessor has complied with his function, and no error has been established in his doing so.
2. Ms Ramlu also submitted that the pathological condition of the lumbar spine as revealed in the investigations had not been recorded by the Medical Assessor, and accordingly he had fallen into error.
3. The results of investigations are of little relevance to the assessment as set out in Table 15-3, as can been seen. They were before the Medical Assessor in any event, as

Dr Stephenson listed them in his comprehensive report dated 13 October 2023, and again on 22 May 2024. We find no demonstrable error in the failure by the Medical Assessor to mention them in the MAC. 4. To correct the obvious error, the Appeal Panel has determined that the MAC issued on

10 March 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 Rob 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)

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

[3] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.

[7] Appeal papers page 79; report 22 May 2024.

[8]9 This dicta applies also to the function of a Medical Assessor: see e.g. Sydney Local Health District v Chan [2015] NSW SC 1968 at [13].