STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

1. On 12 December 2024 Leondios Savva, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin Alexander Mitchell, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 November 2024.
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 commenced employment in February 2019 with R & L Sparkes Pty Limited (the respondent), working as a fulltime boiler maker. He suffered an injury to his right shoulder and lumbar spine due to the activities he performed until October 2019 in his employment. Due to relying on his left shoulder, as a consequence of not being able to use his right shoulder due to the injury to it, he developed left shoulder pain.
2. The appellant's lawyers organised for him to be examined by orthopaedic surgeon Dr Sheikh Habib on 14 November 2023. Dr Habib produced a report on that day relating to various matters regarding the appellant's injury, including the degree of permanent impairment the appellant had from his injury, which Dr Habib assessed is 27% whole person impairment (WPI). That was a combination of 12% WPI relating to the appellant's lumbar spine, 11% WPI relating to the appellant's right shoulder and 6% WPI relating to the appellant's left shoulder.
3. On 19 December 2023 the appellant's solicitors wrote to the respondent's insurer enclosing a copy of Dr Habib's report and advising it that the appellant claimed compensation from it under s66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from his injury that Dr Habib had assessed at 27% WPI.
4. The respondent's lawyers then organised for the appellant to be examined by orthopaedic surgeon Dr Stephen Rimmer on 13 February 2024. Dr Rimmer had previously examined the appellant through an audio-visual link on 6 October 2021 and had provided a report relating to that on 14 October 2021. With respect to his examination of the appellant on 13 February 2024 he produced a report dated 14 February 2024 in which he advised he had assessed the degree of the appellant's permanent impairment from his injury was 0% WPI. This was because he considered the appellant demonstrated abnormal illness behaviour and malingering. Dr Rimmer advised that he considered the appellant exhibited "great inconsistencies" and had "tendencies to over exaggerate". He said he did not believe the appellant has any "significant physical impairment". It would seem, from Dr Rimmer's report of 14 February 2024 that the inconsistencies to which he referred were his observations of the appellant moving normally in his waiting area which was not what he found from his examination of the appellant.
5. On 12 April 2024 the insurer wrote to the appellant notifying him under s 78 of the 1998 Act that it disputed he was entitled to compensation for permanent impairment. It advised him, in substance, that this was because Dr Rimmer had assessed the degree of his permanent impairment as 0% WPI.
6. The appellant's solicitors subsequently requested the insurer to review that decision, providing the insurer with further evidence in the form of a report of physiotherapist Mr Ken Elias dated 10 April 2024. The insurer maintained its decision and notified the appellant's solicitors on 9 May 2024 of that. This led to the appellant registering with the Personal Injury Commission (the Commission) an Application to Resolve a Dispute dated 19 August 2024 (the ARD). By that, the appellant sought the Commission determine his claim for compensation for permanent impairment and also a claim for compensation he made for the cost of future treatment of his injury. Following the respondent lodging a reply to that, the matter was referred to one of the Commission's members, namely Mr John Isaksen.
7. Member Isaksen, with the consent of the parties, entered an award on 17 September 2024 for the respondent with respect to the appellant's claim for compensation for future medical expenses and remitted the matter to the President of the Commission so that it could be referred to a Medical Assessor to assess the medical disputes between the parties relating to the degree of permanent impairment that the appellant had from his injury.
8. That referral was issued to the Medical Assessor on 18 September 2024. The Medical Assessor, as said, issued the MAC on 15 November 2024 in which he certified he assessed the degree of the appellant's permanent impairment from his injury is 10% WPI, consisting of 7% WPI relating to the appellant's right upper extremity, 3% WPI relating to the appellant's left upper extremity and 0% WPI relating to the appellant's lumbar spine.
9. Within the MAC the Medical Assessor detailed the clinical history he had obtained and his findings from his examination of the appellant. The latter included, in tabulated form, the range of motion that he found the appellant had along the various planes of motion of the shoulder. The findings that Medical Assessor made with respect to the appellant's lumbar spine were the following:

"Movement in the lumbar spine was mildly reduced, in a symmetrical manner, with ¾ flexion and ¾ extension possible, together with ¾ of normal lateral flexion to the right and ¾ of normal flexion to the left side noted.

Neurological examination of the lower limbs appeared normal, with no evidence of muscle wasting or abnormal reflex. There is no evidence of radiculopathy."

1. The Medical Assessor said "the only radiological results available came from the independent medical of Dr Habib dated 14 November 2023". Thereafter he paraphrased slightly most of the summaries Dr Habib had provided of the radiological investigations the appellant had undergone.
2. The Medical Assessor provided the following summary of the appellant's injuries and his diagnoses of them:

"Mr Savva presents with pain in the right shoulder, together with reduced shoulder joint movement, following the subject injury date, with investigations subsequently identifying soft tissue changes in the rotator cuff, including a partial-thickness tear and tendinopathy of the supraspinatus and subscapularis tendons, with subacromial bursitis, which were subsequently treated with reconstructive surgery.

He subsequently developed similar symptoms in the left shoulder, in the absence of any frank injury, however I understand those symptoms been accepted as being a consequential injury. Investigations identified rotator cuff tendinopathy and a partial thickness tear of the anterior to mid distal supraspinatus tendon together with mild subacromial bursitis and a small tear of the infraspinatus tendon.

He also reports ongoing lumbar back pain, which appears to be a soft tissue nature in the absence of any clinical evidence or radiological sign of underlying injury."

1. The Medical Assessor said that he "based my assessment of whole person impairment on Mr Disney's [sic] provided documentation, the available investigations, the history provided by him, and my physical examination".
2. The Medical Assessor indicated that he had assessed the degree of the appellant's permanent impairment relating to his shoulders by reference to the restricted range of movement he found the appellant to have of his shoulders. He noted that the appellant exhibited inconsistent movement but the Medical Assessor said that he based his assessment on the "maximum demonstrated as possible described in the table". That was a reference to a table appearing in section 10 b of the MAC, which was a repeat of the table under section 5 in which he had recorded his findings from his examination. That totalled 5% upper extremity impairment for the left shoulder and 11% upper extremity impairment of the right shoulder, which converted to 3% WPI and 5% WPI respectively.
3. The Medical Assessor within section 10b noted that the appellant had mild symmetrical reduction of movement in his lumbar spine and no evidence of dysmetria, guarding, abnormal neurological sign or reflex difference between the right and left leg, muscular wasting or weakness or consistent reduction of skin sensitivity. Based on that, the Medical Assessor determined that the appellant did not have signs to indicate radiculopathy and that his signs and symptoms correlated with the criteria of diagnosis related estimate (DRE) Lumbar Category I of Table 15-3 of AMA 5, which correlates with 0% WPI.

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. This is because the Appeal Panel, for reasons set out below under the heading Findings and Reasons, found that the MAC contained a demonstrable error, which the Appeal Panel would need to correct. To do that, the Appeal Panel needed further clinical data which it could only obtain by further examination of the appellant. Medical Assessor Home of the Appeal Panel was appointed to do that, which he did on 2 June 2025. His report to the Appeal Panel is set out also under the heading Findings and Reasons.
3. During its preliminary review, the Appeal Panel also considered whether it should receive into evidence a statement the appellant signed on 12 December 2024. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
4. In Lukacevic v Coates Hire Operations Pty Ltd (Lukacevic) Hodgson JA said that:

"...a dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an [Appeal Panel] not to admit evidence raising such dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply be raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the [Appeal Panel] in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act."[1]

1. Hence, even though fresh evidence may meet the threshold of s 328(3), the Appeal Panel is not required to accept the evidence if it is irrelevant or if it does not have "substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support".
2. Within paragraphs 1-5 of the appellant's statement he detailed his name and address, date of birth, marital status and the fact that he attended a medical assessment with the Medical Assessor. That detail is irrelevant to the task of the Appeal Panel and, absent the date upon which he attended the medical assessment, it is just a repeat of evidence he had provided in an earlier statement.
3. The appellant in paragraphs 6-11 of his statement detailed what he says was the length of time of the physical examination the Medical Assessor did, what he says the Medical Assessor did during his examination or him, and also an instruction he says the Medical Assessor gave him and some of the questions he says the Medical Assessor asked of him. At paragraph 12 he explains what occurred in the few minutes after the examination, which is that the Medical Assessor dictated some notes about the examination and during which the appellant said he was in pain. At paragraph 13 of his statement the appellant expresses an opinion about the adequacy of the Medical Assessor's examination of him.
4. It is reasonable to infer that the appellant has no medical or clinical expertise, and consequently has no knowledge of what is required of a Medical Assessor to obtain a relevant clinical history and to conduct a clinical examination. The appellant's statement was signed by him approximately six weeks after the Medical Assessor conducted his examination of him. The Medical Assessor issued the MAC around two weeks after his examination of him, and further, as the appellant indicates in his statement, the Medical Assessor was making notes regarding his examination immediately following his examination. The Medical Assessor is a medical specialist and has the necessary expertise and training to conduct an examination of an injured worker and to obtain a relevant clinical history. In the Appeal Panel's view the history the Medical Assessor obtained was sufficient for the purposes of assessing the appellant's permanent impairment. The Appeal Panel also considers that the Medical Assessor conducted a thorough examination of the appellant's shoulders and his findings from that examination with respect to the appellant's movement of his shoulders is consequently reliable. This is because the Medical Assessor noted that he had recorded "the maximum" movement that the appellant exhibited which reveals that he had conducted repeating testing of the appellant's movement of his shoulders.
5. The appellant's statement insofar as it relates to the questions the Medical Assessor asked of him, which relate to the Medical Assessor obtaining the necessary history and the Medical Assessor's examination of the appellant's shoulders, lacks particularity and independent support such that the Appeal Panel cannot give it any substantial probative value.
6. Further, the appellant's statement insofar as it relates to the Medical Assessor's examination of his lumbar spine again lacks particularity. As said, the appellant has no medical expertise and is unaware of what is required to conduct a clinical examination of the lumbar spine and also would be unaware of exactly what the Medical Assessor was doing and for what purpose. Again, the Appeal Panel considers that that part of his statement lacks particularity and independent support such that it provides any substantial probative value.
7. The appellant's statement so far as it relates to his opinion on the adequacy of the Medical Assessor's examination lacks plausibility. He has no expertise in clinical matters. The Appeal Panel can give it no weight.
8. For those reasons, the Appeal Panel declines to accept the appellant's statement into evidence.

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. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. The Appeal Panel considers that large parts of the appellant's submissions are expressed obscurely. As the Appeal Panel understands the appellant's submissions, they are, in summary, that the Medical Assessor was incorrect to state that the only radiological results were those available from Dr Habib's report. The appellant submitted that in evidence, in addition to those upon which Dr Habib had noted in his report of 14 November 2023, and the Medical Assessor noted in the MAC, were reports on an MRI of his lumbar spine done on 6 November 2023, a CT of his lumbar spine done on 2 August 2021 and a further CT of his lumbar spine done on 10 August 2022. It would seem that the appellant contends that the Medical Assessor not referring to those reports means he was unaware of them and this amounts to a demonstrable error.
3. The appellant also contends that the Medical Assessor's reference to Mr Disney at section 9 of the MAC, wherein the Medical Assessor detailed the matters upon which he made his assessment, indicates a lack of professional attention on the part of the Medical Assessor which the appellant also contends is a demonstrable error.
4. The appellant also submits that the Medical Assessor did not properly examine him with respect to his lumbar spine.
5. The appellant referred to various authorities mainly dealing with medical assessments done relating to claimant's entitlements under the Motor Accident (Lifetime Care and Support) Act 2006 and the Motor Accident Compensation Act 1999, to support a submission that the Medical Assessor was required to consider and comment on the evidence relating to central issues and to provide a more expansive explanation where there is a medical controversy about a particular issue. It is implicit from that that the appellant submits that the Medical Assessor failed to meet that standard. However, the appellant did not particularise what medical controversy or issue in regards to which the Medical Assessor was required to give a more expansive explanation or to comment on the evidence regarding the issue.
6. The appellant also submitted that the Medical Assessor did not have the appropriate qualifications to carry out an assessment of his injury.
7. In reply the respondent submitted that the appellant did not detail how the Medical Assessor's qualifications were not sufficient to allow him to conduct the assessment. The respondent observed that the appellant did not take any issue with the referral, which detailed the Medical Assessor would be conducting the examination.
8. The respondent noted that the Medical Assessor referred to a CT scan of the lumbar spine done on 20 August 2021, which the respondent submitted was one of the CT scans to which the appellant made reference in his submissions. The date was wrong and the respondent submitted that that is a typographical error not a demonstrable error.
9. The respondent submitted, in summary, that the absence of a reference to a scan is not a demonstrable error. The respondent submitted that there is no medical evidence that the appellant had sustained complaints of radicular pain or suffered significant radiculopathy or a herniated disc, and, as a consequence, the absence of reference to scans would not affect the Medical Assessor's assessment of the appellant's impairment by reference to the several diagnostic related entities contained within Table 15-3 of AMA 5. The respondent submitted that the only consideration for the Appeal Panel is whether the Medical Assessor's failure to refer to specific scans represents an error on the part of the Medical Assessor in determining whether the appellant met the criteria of DRE Category I. The respondent submitted that what is revealed in a scan is not relevant to that.
10. Further, the respondent submitted that in the event that the Appeal Panel were to find that the Medical Assessor's failure to refer to specific scans was an error, then that error makes no difference to the outcome. The respondent submitted this is because the Medical Assessor found no asymmetry in range of movement, no evidence of dysmetria, no muscle guarding, and no objective signs of radiculopathy.
11. The respondent further submitted that the Medical Assessor's reference to "Mr Disney" is a minor typographical error and not a demonstrable error.

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.
3. The Appeal Panel rejects the appellant's submission that the Medical Assessor did not have the appropriate qualifications to conduct the assessment of the medical dispute that was referred to him. Section 33(1) of the Personal Injury Commission Act 2020 empowers the President of the Commission to appoint Medical Assessors for the purposes of the 1998 Act. The President must do so in accordance with the regulations. Regulation 6 of the Personal Injury Commission Regulation 2020 provides the qualifications for a person to be appointed as a Medical Assessor. They include that the Medical Assessor is a registered health practitioner or medical practitioner within of the Health Practitioner Regulation National (NSW), a member of an Australian or Australasian medical college, faculty or other Australian or Australasian health professional body, and is in the opinion of the President suitably qualified and has the necessary skills and expertise to exercise the function of a Medical Assessor. The presumption of regularity applies in this case such that it can be presumed that the Medical Assessor met that criteria. There is no evidence to rebut the presumption. Further, and in any event, it is readily ascertained from the Commission's website that the Medical Assessor is a specialist in the area of occupational medicine. He consequently had the appropriate qualifications and skill to conduct the medical assessment.
4. The Appeal Panel also considers that the Medical Assessor's reference to Mr Disney in the MAC, whilst clumsy and unfortunate, does not amount to a demonstrable error. It is apparent when the MAC is read as a whole that this is a "cut and paste" error, that is a typographical error. It did not affect the reasoning the Medical Assessor provided for his medical assessment of the medical dispute referred to him for assessment. The Appeal Panel would however comment that it is incumbent upon Medical Assessors to proof read a certificate to avoid such a clumsy mistake and to ensure no discourtesy is shown or offence caused to a party.
5. The Appeal Panel accepts the appellant's submission to the effect that it cannot be known from the Medical Assessor's findings from his examination of his lumbar spine, that the examination he conducted of the lumbar spine was complete. The Medical Assessor does not specify within his findings from his examination what he did to ascertain whether the appellant exhibited muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution or what he did to ascertain whether or not the appellant had reproduceable impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution. With respect to the latter matter the appellant's neurosurgeon had noted that the appellant had radiation of symptoms through his groin and occasionally down the left leg. It was incumbent upon the Medical Assessor to examine the appellant to determine whether that symptom is a non-verifiable sign of radiculopathy or whether it represented a clinical sign consistent with an imaging study, noting that the CT scan done on 10 August 2022 suggested a possible irritation of the right traversing S1 root and the MRI scan done on 6 December 2023 suggested possible mild contact of the existing L5 nerve root within the far lateral disc.
6. It was necessary for the Medical Assessor to examine for these matters to determine whether the appellant met the criteria listed in paragraph 4.27 of the Guidelines, which if he did would allow a finding of radiculopathy to be made. That in turn affects the DRE Category by reference to which the appellant's impairment is to be assessed.
7. The Medical Assessor's failure to detail in the MAC how he examined the appellant to test whether the appellant met those criteria, and the Medical Assessor's failure to detail the reports of some of the investigations the appellant had undergone relating to his lumbar spine, which relates to the last bullet point of paragraph 4.27 of the Guidelines, represents an error on the part of the Medical Assessor such that the MAC contains a demonstrable error. It was necessary for the Medical Assessor to consider and discuss the findings of the radiology that had been done of the appellant's lumbar spine given that they relate to a criterion within 4.27, which depending upon the appellant meeting a major criterion, would have enabled the appellant to be assessed with a higher degree of permanent impairment relating to his lumbar spine.
8. As indicated above, the Appeal Panel considered it was necessary for one of its members, namely Medical Assessor Home, to examine the appellant to obtain the necessary clinical data to correct the demonstrable error the Appeal Panel found in the MAC. Medical Assessor Home's report to the Appeal Panel is as follows:

Body Parts referred: Right upper extremity (shoulder)

Left upper extremity (shoulder) as a consequential condition

Mr Savva states that he sustained injury to his back and his right shoulder in a workplace accident on or about 1 October 2011.

He was undertaking work as a boilermaker/welder/fabricator, working in a confined space. He says that it was necessary for him to adopt awkward postures to work under the job. He says that he experienced the immediate onset of pain in his right shoulder. He thought this was initially muscle fatigue.

After reporting the complaint to his supervisor, he was referred to his general practitioner. He recalls that he attended a doctor in Wentworthville.

An ultrasound of the right shoulder was performed on 1 October 2019. This demonstrated supraspinatus tendinopathy and subacromial bursitis. He was subsequently referred for a period of physical therapy.

Due to persisting right shoulder pain, he underwent right shoulder MRI scans performed 20 April 2020. The scans demonstrated a partial thickness tear in the right shoulder supraspinatus tendon and in the subscapularis. There was associated subacromial bursitis.

He confirms treatment under the care of Dr Cunningham, sports physician. He underwent a corticosteroid injection to the shoulder. He recalls no anaesthetic or durable benefit.

He then underwent a series of PRP injections administered between April and June 2021. Again, he recalls no durable symptom benefit from the procedures.

In October 2021, he underwent further MRI scans of the right shoulder. These demonstrated moderate rotator cuff tendinopathy with an intrasubstance tear of the supraspinatus footprint and intra-articular biceps tendinopathy with a chronic posterior SLAP lesion and a frayed anteroinferior labrum.

Subsequently, he came under the care of Dr Gupta, orthopaedic surgeon. He confirms that he underwent right shoulder surgery. It is noted that this consisted of arthroscopy, labral debridement, biceps tenodesis and a subacromial decompression.

He states that following this surgery, he developed adhesive capsulitis in the right shoulder.

There was a long period of physical therapy and supervised exercise. He underwent further MRI scans of the right shoulder in August 2023.

He recalls that physiotherapy treatment continued until mid-2024. He has since undertaken a home exercise program.

He recently underwent a further period of passive physiotherapy treatment.

In relation to his left shoulder complaint, he recalls the onset of these symptoms whilst undertaking selected duties in 2020.

Imaging of the left shoulder included ultrasound examination performed 11 September 2020 and MRI scans performed in July 2021. The latter demonstrated evidence of rotator cuff tendinopathy with partial tearing of the supraspinatus tendon and mild subacromial bursitis with a small tear of the infraspinatus tendon.

His left shoulder condition has been treated with physical therapy. There has been no injection therapy or surgical management.

He states that he experienced the onset of lumbar back pain at the time of his initial workplace injury. He states that acceptance of liability for the condition occurred only recently.

He attended Dr Simon McKechnie, neurosurgeon, who recommended conservative management.

He recently attended Dr McKechnie again. There was discussion about possible laminectomy surgery.

He recently underwent an epidural injection into the lumbar spine. This provided no anaesthetic or durable benefit.

Currently, he takes Oxycodone prescribed by his general practitioner, Dr Pope. He takes the medication 5mg every few days. He continues home exercise.

Mr Savva reports constant right shoulder pain of moderate severity, 6-7/10 on a visual analogue scale (VAS). There is restricted motion at the shoulder. He describes a painful block in motion in all directions.

At the left shoulder, there is also constant pain, declared at 7/10. There is restricted motion at the left shoulder, however, the range of motion is better than on the right. He says that he preferentially lifts with his left hand.

He describes constant low back pain of intensity 8/10 on a visual analogue scale (VAS). He describes exacerbation of back pain with coughing and sneezing.

The pain radiates intermittently into the back of the thigh and as far as the right calf. There is complaint of burning pain extending along the back of the thigh to the calf.

There are no complaints of lower limb paraesthesia or numbness. There is no bowel or bladder dysfunction.

He describes a sitting tolerance of between 15 minutes, a driving tolerance of 15 minutes and a walking tolerance of 15 minutes. Forward bending at the waist is restricted. He avoids deep crouching and kneeling. Stair climbing is restricted. He says that he can perform stairclimbing asymmetrically leading up with his left foot.

He says that he limits lifting to approximately 2kg.

He is married with one son aged 14 months. He smokes five to six cigarettes daily.

At his home, he helps his wife with very light domestic chores such as bench height cleaning but he does not engage in laundry tasks, bathroom cleaning, mopping or vacuuming. He finds that any attempt to mop of vacuum exacerbates his back pain. He is not undertaking gardening chores.

Prior to the accident, he enjoyed fishing. He has attempted to return to light recreational fishing to improve his mental health.

There is no past history of shoulder or back complaints. There is no other relevant medical of family history.

He worked as a boilermaker for his pre-accident employer, R & L Sparks Pty Ltd. He was working as a boilermaker at the time of the accident.

He has previously worked as a boilermaker. He completed year 12 schooling in Cypress. He undertook 12 months military service in the Cypress Army.

He has not worked since December 2022. Prior to that, he was undertaking selected duties at the workplace.

Mr Savva is a 33 year old standing 174cm and weighing 120kg.

The examination is confined to the lumbar spine, which is the subject of the dispute.

Examination of the lumbosacral spine reveals normal spinal curvature. There is no muscle spasm. Active forward spinal flexion was performed to 1/4 normal range, extension 1/4 normal range, right lateral flexion 1/2 normal range and left lateral flexion 1/4 normal range.

In a long sitting position, straight leg raise is performed to 70° on the right and 80° on the left. There is a negative slump test.

Straight leg raise in a supine position was somewhat unusually restricted with only 20° leg raise on the right and 40° on the left. The motion was symmetrical to 70° when tested indirectly.

Lasegue's sign is bilaterally negative for leg pain.

The neurological examination of the lower extremities reveals normal lower limb power in all muscle groups.

There is reduced sensibility in the right leg in a non-dermatomal pattern involving the anterior right thigh, the lateral and posterior right calf and also of the right foot. The deep tendon reflexes are symmetrically preserved.

There is no measurable muscle wasting. The circumference of the right thigh is 56.5cm and the left thigh 57cm, the right calf 40.2cm and the left calf 40.7.

• CT thoracolumbar spine, dated 23 July 2021. No spinal canal abnormality. Very mild facet and costotransverse degenerative change within the lower thoracic spine.
• CT lumbar spine, dated 2 August 2021. There is a mild posterior disc bulge at L4/5. There is a mild posterior disc protrusion at L5/S1.
• CT lumbar spine, dated 10 August 2022. At L5/S1, diffuse posterior disc bulge with prominent right paramedian component resulting in mild to moderate central canal narrowing and moderate narrowing of the right lateral recess with possible irritation of the right traversing S1 root.
• MRI thoracic spine and pelvis, dated 5 December 2023. Normal appearance of the pelvis. Thoracic spine normal.
• MRI lumbar spine, dated 6 December 2023. Minor posterior disc bulge at L5/S1. The right paracentral component is mildly contacting the descending S1 nerve root at the lateral recess. There is mild stenosis at the right foramen with possible mild contact of the exiting right L5 nerve root within the far lateral disc.
• A CT guided right L5 epidural injection was administered under CT guidance with dexamethasone on 22 April 2025.

The claimant has experienced lower back pain since a workplace accident. The diagnostic imaging has demonstrated an L5/S1 disc protrusion. There are non-verifiable radicular complaints.

The clinical signs required for a diagnosis of radiculopathy are not met. The criteria for radiculopathy are set out in Section 4.27 of the Guidelines, as follows:

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).

There is possible irritation of the right S1 nerve root on imaging.

The claimant suffers from non-verifiable radicular complaints in the right lower extremity. There is also spinal dysmetria with restricted left sided lateral flexion at this assessment.

The worker has reached maximum medical improvement.

I have not determined any medical evidence of a pre-existing or underlying condition upon which to base a deduction of the calculated impairment rating.

Impairment is determined using the methodology set out in the American Medical Association's Guides to the Evaluation of Permanent Impairment (5th Edition) and the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th Edition).

The clinical presentation satisfies the criteria for a DRE Category II impairment rating of 5% WPI. There are non-verifiable radicular complaints. There is spinal dysmetria at this assessment.

The criteria for a diagnosis of radiculopathy in accordance with Section 4.27 of the Workers Compensations Guidelines are not met.

I have also assessed impairment due to the impact of the injuries upon the capacity for activities of daily living in accordance with Sections 4.33 to 4.35 of the Workers Compensation Guidelines.

The worker is unable to perform heavy domestic chores, sporting and recreational activities to the previous level. His capacity for other activities of daily living are also affected. He is independent for activities of personal care.

Therefore, the total whole person impairment rating is 7% for the lumbar spine condition.

There is no evidence of pre-existing degenerative change or other underlying or pre-existing condition, therefore no deduction is made in accordance with Section 323 of the Act."

1. The Appeal Panel finds that the history Medical Assessor Home obtained is thorough and also relevant. Further, the Appeal Panel is satisfied that Medical Assessor Home's examination of the appellant's lumbar spine is complete in that Medical Assessor Home examined the appellant with respect to all matters necessary to ensure a proper assessment could be done of degree of the appellant's permanent impairment relating to his lumbar spine.
2. The Appeal Panel accepts and adopts the history Medical Assessor Home obtained and also his findings from his examination.
3. The Appeal Panel consequently accepts Medical Assessor Home's finding from his examination and also his opinion that, firstly, the relevant imaging indicates a L5/S1 disc protrusion, and secondly the appellant has non-verifiable radicular complaints but does not exhibit the clinical signs required for a diagnosis of radiculopathy because only one of the criteria of paragraph 4.27 of the Guidelines is met.
4. The appellant exhibited spinal dysmetria. The Appeal Panel consequently accepts that the appellant meets the criteria of DRE Category II of AMA 5, the base rating for which is 5% WPI.
5. The Appeal Panel also accepts Medical Assessor Home's opinion, based on the history obtained, that the appellant is unable to perform heavy domestic chores, or do sporting and recreational activities to his previous level and, because of that, 2% WPI should be added to the base rating of 5% WPI in accordance with paragraphs 4.33 to 4.35 of the Guidelines.
6. Consequently, the Appeal Panel assesses the appellant has 7% WPI relating to his lumbar spine.
7. As Medical Assessor Home noted in his report to the Appeal Panel there is no evidence that the appellant had any pre-existing degenerative changes or had suffered a previous injury to his lumbar spine and hence s 323(1) of the 1998 Act is not engaged.
8. For these reasons, the Appeal Panel has determined that the MAC issued on 15 November 2024 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 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)

Chapter 16, Figs 16-40, 16-43, 16-46, Pages 476-479

Chapter 16, Figs 16-40, 16-43, 16-46, Pages 476-479

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

[1] [2011] NSWCA 112 at [78].