1. On 19 June 2025 RSL LifeCare Limited, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 May 2025.
2. In addition to the appeal, on 20 June 2025 the appellant sought reconsideration of the MAC, on the basis that there was an agreement that the left elbow would not be included in any assessment of impairment. The respondent agreed and consented to the matter being referred back to the Medical Assessor to exclude any impairment arising from the left elbow.
3. 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.
4. The reconsideration and appeal applications were both considered by a delegate of the President.
5. 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. The delegate also determined that it was appropriate to refer the reconsideration application to the Appeal Panel to determine, in conjunction with the appeal.
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. Mr Glass, the respondent worker, was employed by the appellant as an aged care nurse. He suffered an injury on 3 December 2017 when assisting a resident to bed. The resident fell, putting the entirety of his weight on Mr Glass's arm, causing injury to the cervical spine and left shoulder. He underwent rehabilitation with physiotherapy and some injections.
2. He made a claim for lump sum compensation which was referred to the Commission for resolution. A MAC was issued on 22 May 2025, assessing 30% whole person impairment. The appellant has appealed against that assessment and sought reconsideration. Given the respondent worker accepts that the MAC should be amended to remove any assessment of the elbow, the Appeal Panel will revoke the MAC to remove the assessment of the elbow.

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 undergo a further medical examination because the Appeal Panel were satisfied that the MAC contained a demonstrable error in the assessment of the cervical spine, and there were insufficient reasons in the MAC to determine the correct assessment.

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 Rob Kuru of the Appeal Panel conducted an examination of the worker on 13 March 2026 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.
2. In summary, the appellant submits that the Medical Assessor erred in his assessment of radiculopathy. The appellant submits that it is not clear from the MAC the criteria which formed the basis for a finding of radiculopathy. The objective findings on examination do not support a major criterion in accordance with the Guidelines. The appellant also submits that the Medical Assessor's assessment of activities of daily living does not consider whether there has been any contribution from the neck, as opposed to the left arm, to this restriction.
3. In reply, the respondent submits that the findings of the Medical Assessor support the finding of radiculopathy in the neck, as found by the Medical Assessor. The respondent refers to a loss of reflexes in the left arm, and the presence of positive nerve root tension, muscle wasting, and imaging studies consistent with clinical signs. In respect of activities of daily living, it is submitted that the difficulties listed in respect of the left arm relate not only to the shoulder but also the neck injury.

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. The appeal concerns the Medical Assessor's assessment of the respondent worker's spine and a reconsideration in respect of the left upper extremity, and the consideration of the appeal is therefore limited to those issues (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):

"Secondly, s 328(2) requires that the review 'is limited to the grounds of appeal on which the appeal is made.' Because the gateway function of the Registrar is satisfied if 'at least one of the grounds' has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant's application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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. There are two grounds of appeal raised by the appellant, both concerning the assessment of the cervical spine. On page 5 of the MAC, the Medical Assessor provides the following explanation of his calculations:

"The cervical spine is assessed by the DRE method, as set out in T15-5 p 392. He has supporting evidence of a radiculopathy, as per treating doctors. This is rated DRE3 with 15% WPI."

4. As foreshadowed at [11] above, the Appeal Panel were satisfied that the Medical Assessor had failed to provide sufficient reasons for his conclusion. The Medical Assessor has referred to the correct methodology for assessment, being the DRE method, with reference to AMA 5. However, no reference is made to the Guidelines and in particular cl 4.27, which provides the following definition for radiculopathy:

"4.27 Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):

• loss or asymmetry of reflexes
• muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
• reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
• positive nerve root tension (AMA5 Box 15-1, p 382)
• muscle wasting - atrophy (AMA5 Box 15-1, p 382)
• findings on an imaging study consistent with the clinical signs (AMA5, p 382)."

1. Even in the certificate on page 7 of the MAC, the Medical Assessor only refers to cl 4.35 of the Guidelines, which concerns activities of daily living. The Appeal Panel accept that the MAC contains a demonstrable error, and due to the lack of reasons, a re-examination was arranged with Medical Assessor Kuru of the Appeal Panel.
2. The second ground of appeal concerns the Medical Assessor's assessment of activities of daily living. The Medical Assessor provides the following explanation for his assessment of 2% whole person impairment:

"A further rating is added from interruptions to ADLs as per 4.34 P 28 NSW guides. He has lost recreational activity and is very limited in use of left arm for house care rated 2% WPI."

3. The appellant submits that the restriction on activities of daily living is due to the left arm, as opposed to the cervical spine, and the Medical Assessor has failed to consider cl 1.24 of the Guidelines. In reply, the respondent submits that the difficulties the worker suffers in respect of the left arm relate not only to the left shoulder, but also the neck, and the finding of 2% whole person are consistent and feasible on the history provided.
4. Again, the Appeal Panel are satisfied that the MAC contains a demonstrable error in this regard. The Medical Assessor has explicitly referred to a "very limited" use of the left arm in respect of house care. No reference is made to cl 1.24 of the Guidelines which must be considered as part of the assessment of activities of daily living. The Appeal Panel agree that as an act of assessment, the Medical Assessor must consider whether any restriction is due to the cervical spine or the left shoulder. The Medical Assessor's reasons indicate that the restriction in house care is due to Mr Glass's "very limited" use of his left arm, without reference to the cervical spine. On that basis, the Appeal Panel also conducted, as part of the re-examination, a reassessment of the activities of daily living.
5. Accordingly, Medical Assessor Kuru conducted a re-examination of Mr Glass. The report of that examination is as follows:

"REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR > > MEMBER OF THE APPEAL PANEL

1. The workers medical history, where it differs from previous records

The history given to me by Mr Glass was consistent with that on review of the records. He was assisting in the transfer of a large patient who grabbed his left shoulder and he sustained a traction injury. He felt acute pain in his left shoulder blade radiating up to his neck. He has had pain in his neck radiating to the back of his scapula. He has pain posteriorly and laterally in his shoulder. He has global tingling extending down his arm which is more marked in the thumb and index rather than the ulnar 3 digits.

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

On examination, he was obviously reluctant to use his left arm. Romberg's test was negative. Trendelenburg's test was normal. Lower limb reflexes were symmetrical with down going Babinskis. Upper limb reflexes similarly were symmetrical with a negative Hoffman test. > > Range of motion in the shoulder is assessed as follows: > > Flexion 70° > > Extension 30° > > Abduction 50° > > Adduction 10° > > Internal rotation 30° > > External rotation 20° > > The range of motion is not passively extendable. There was weakness in the anterior fibres of the deltoid but the lateral and posterior fibres activated normally. There was minimal palpable contraction of the supraspinatus. There was active contraction of the rhomboids. > > Arm circumference was 37cm and symmetrical. Forearm circumference was 30cm and symmetrical. There was subjective global sensory alteration affecting all digits of the left hand. > > Examination of range of motion of the cervical spine demonstrates normal flexion and extension. There is reduced rotation to the left.

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

I was not able to review any further investigations. I was able to review an MRI of the cervical spine and left shoulder from 23/02/2018 on the North Coast Radiology PACS site. This demonstrates multiple level constitutional degenerative spondylosis with a left sided C4/5 disc protrusion potentially impinging the left C5 nerve. There is no significant compressive pathology at C5/6, C6/7 and C7/T1 on the left hand side. Imaging of the brachial plexus is unremarkable. On the MRI of the shoulder, there is some acromioclavicular joint osteoarthritis and evidence of insertional tendinopathy. > > MRI dated 04/11/2021 demonstrates similar findings. > > Motor examination of the left shoulder is consistent with traction injuries to the anterior branch of the axillary nerve and suprascapular nerve. Motor function present in the posterior deltoid, teres minor and rhomboids is not consistent with motor lesion affecting the C5 nerve root. The reported sensory changes extending into the left arm are also not consistent with the C5 nerve root distribution. > > I note SIRA, page 11, paragraph 2.9 which states 'If an upper extremity impairment results solely from a peripheral nerve injury, the Assessor should not also evaluate impairments from AMA section 16.4 Abnormal Motion for that upper extremity. AMA section 16.5 should be used for evaluating such impairments'. > > Further, I note SIRA, page 11, paragraph 2.13 which states 'Strength evaluation as a method of upper extremity impairment should only be used in rare cases and its use justified when loss of strength represents an impairing factor not adequately considered by more objective ratings. If chosen as a method, the caveats detailed in AMA-5, page 508 under the heading '16.8 Principles' need to be observed, ie decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities and absent parts (eg thumb amputation)'. > > Mr Glass has a painful, fixed restriction of movement in the shoulder. On this basis, assessment of the shoulder injury on the basis of injury to the axillary and suprascapular nerves is not appropriate and assessment of impairment for the left shoulder is appropriately done by range of motion. > > In the absence of clinical findings consistent with SIRA, page 27, paragraph 4.27 to support the diagnosis of radiculopathy, the cervical spine is assessed as DRE Category II. An additional 1% is assessed per SIRA, page 28, paragraph 4.34 for restriction of activities of daily living. Whilst Mr Glass is significantly impaired, the impairment is consequent to the shoulder as opposed to the cervical spine. > > Whole person impairment for the cervical spine is hence 6%."

5. The Appeal Panel accept and adopt the findings on clinical examination of Medical Assessor Kuru.
6. The Appeal Panel would make the following additional comments about the assessment. In terms of radiculopathy, the criteria in cl 4.27 are set out above. On assessment, the findings in respect of criterion are as follows (retaining bold per the Guidelines):

(a) Loss or asymmetry of reflexes - upper limb reflexes were symmetrical with a negative Hoffman test;

(b) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution - any weakness demonstrated on examination (of the anterior fibres of the deltoid) relates to Mr Glass's shoulder injury. There was otherwise not muscle weakness demonstrated in appropriate spinal nerve root distribution, which would be in the left C5 nerve;

(c) reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution - Mr Glass demonstrated global sensory alteration in the whole hand, which is again not anatomically localised to the affected nerve root distribution;

(d) positive nerve root tension - not demonstrated on examination;

(e) muscle wasting - atrophy - arm circumference was 37cm and symmetrical. Forearm circumference was 30cm and symmetrical, and

(f) findings on an imaging study consistent with the clinical signs - MRI dated 23February 2018 demonstrates a potential impingement on the left C5 nerve which is not reflected in clinical findings.

1. In the absence of any findings of the presence of radiculopathy, particular in one of the major criteria, Mr Glass does not meet the requirements of cl 4.27 of the Guidelines for an assessment of DRE III under Table 15-5 of AMA 5. The correct assessment is DRE II, and the MAC will be revoked.
2. The assessment of the impact of daily living is also discussed by Medical Assessor Kuru. Mr Glass has demonstrated restriction in home care. This restriction is due to his shoulder. Mr Glass's cervical spine injury does not materially contribute to his restriction in home care, which is consistent with the finding in the MAC. The Medical Assessor has failed to consider cl 1.24 of the Guidelines in making his assessment. In accordance with the Guidelines, the restriction demonstrated in home care is due to Mr Glass's shoulder injury, which "is not considered" in an assessment of the upper extremity. As such, the correct assessment of restriction in activities of daily living is 1%.
3. This leaves a whole person impairment in the cervical spine of 6%.
4. The assessment of the cervical spine is to be combined with the assessment in the left upper extremity. By the agreement of the parties, the elbow is to be excluded from the assessment of impairment. No challenge has been made to the findings recorded in the shoulder, of 20% upper extremity impairment. 20% upper extremity impairment converts to 12% whole person impairment.
5. Combining the two whole person impairment assessments results in 17% whole person impairment.
6. For these reasons, the Appeal Panel has determined that the MAC issued on 22 May 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)