1. On 4 November 2025 Brain Taber (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on

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

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

1. The appellant sustained an injury to his left shoulder on 16 January 2020 in his employment as an aviation safety trainer with Qantas Airways Limited (the respondent). The appellant subsequently developed a consequential condition in the right shoulder.
2. The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 31 July 2025 in which he claimed lump sum compensation in respect the bilateral shoulder injury and scarring.
3. The matter was referred to Dr Todd Gothelf, Medical Assessor, for assessment of whole person impairment (WPI) of the right upper extremity, left upper extremity and scarring as a result of the injury on 16 January 2020.
4. The Medical Assessor examined the appellant on 19 September 2025 and assessed 5% WPI of the right upper extremity, 5% WPI of the left upper extremity and 0% WPI for skin. This resulted in a combined WPI of 10% as a result of the injury on 16 January 2020.

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 it was not necessary for the worker to undergo a further medical examination because there was sufficient information on which to make a determination.

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

1. 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. The appellant's submissions include the following:

(a) ground 1 - demonstrable error on the basis that the Medical Assessor exceeded the scope of his jurisdiction by assessing impairment for scarring despite there being no 'medical dispute' capable of referral in respect of scarring;

(b) first, it is a 'medical dispute' that is referred for assessment by an assessor. The outcome of that assessment is the resolution of the medical dispute, meaning that absent a dispute, no Commission intervention is required. Accordingly, the Medical Assessor's role is constrained to assessing the "medical dispute" between the parties;

(c) second, the nature of the 'medical dispute' between the parties is ascertained from a review of the competing claims (Skates v Hills Industries Ltd [2021] NSWCA 142 at [44]). That requires analysis of the competing claims in respect of the individual body systems forming part of the overall assessment. The decision in Voudouris v TDV Constructions Pty Ltd (Voudouris) [2023] NSWPICPD 53 at [49] held that in circumstances where 0% WPI is assessed for a particular body part, that body part cannot form part of the 'medical dispute' between the parties. The converse conclusion must be that where body parts are assessed identically by each respective party, that body part also cannot form part of the 'medical dispute' since there is no Commission intervention required to determine the degree of impairment;

(d) the identical assessments for scarring in the context of the parties competing claims must lead to the conclusion that scarring could did [sic] form part of the 'medical dispute' between the appellant and the respondent. Accordingly, it was not open to the Medical Assessor to assess scarring since the Medical Assessor's jurisdiction was limited to the 'medical dispute' referred for assessment;

(e) furthermore, the existence of 'scarring -TEMSKI' on the referral document to the Medical Assessor is of no consequence. While it would have been preferable for the referral to be amended to reflect the true nature of the medical dispute at law, the referral itself does not itself define or alter the underlying medical dispute;

(f) it is noted that competing authority to Voudouris exists - see Transdev NSW South Pty Ltd v Twining (Transdev) [2024] NSWPICPD 12 [134]-[150]. Transdev supports the contention that a claim encompassing a body part assessed with 0% WPI can still form part of the overall 'medical dispute' and can therefore be assessed by an assessor. The consequence being, if applied to this matter, the identical assessments for scarring forming part of the competing claims would be irrelevant, meaning the Medical Assessor was acting within jurisdiction in assessing scarring;

(g) the controversy between Voudouris and Transdev has not been settled by an appellate Court. The Appeal Panel ought to follow Voudouris for three reasons. First, Transdev was disposed of on the basis that the contention regarding the correctness of Shankar in light of Skates was not raised at first instance. Accordingly, the reasons in Transdev are not ratio and are not binding. Second, in circumstances where there is some doubt as to whether a later decision overrules an earlier decision, the earlier decision ought to be followed for the matter to be resolved on appeal. Third, for the reasons set out in Voudouris, Shankar and Transdev are wrongly decided;

(h) Ground 2 - the Medical Assessor failed to provide sufficient reasons explaining the differences between his clinical examination of the appellant's scars in contrast with the examinations conducted by the medico-legal experts;

(i) Ground 2 asserts demonstrable error by the Medical Assessor on the basis that he failed to give reasons to reconcile his clinical findings pertaining to the appellant's scars with those of the medico-legal experts, in circumstances where the Medical Assessor's assessment was vastly different from that of the experts;

(j) the obligation to give lawful reasons applies equally to a Medical Assessor as it does to an Appeal Panel. To satisfy the obligation, the reasons need not be extensive or detailed but they must explain the actual path of reasoning by which the Medical Assessor arrived at their conclusion. The Medical Assessor failed to do this in relation to his assessment of scarring in circumstances where his clinical examination was at odds with the assessment of both medico-legal experts;

(k) the Medical Assessor's observations regarding the appellant's scars are outlined above. In contrast, Dr Bodel recorded: He does have significant scarring in both shoulders. There is one large mini-open scar approximately 2 cm long on the right and the left shoulders. There is some slight loss of subcutaneous tissue in that region. I would rate these scars as mildly complicated surgical scars under the TEMSKI scale. The scars are visible. There is no pigmentation. There is some loss of subcutaneous tissue. There is some mild tenderness on palpation of the scars and associated numbness in the scars and the suture marks are clearly visible. There is minimal interference in activities of daily living and this rates as a 1% WPI under the TEMSKI scale for these scars;

(l) Dr Millons did not provide much detail in relation to his examination of the appellant's scars. However, Dr Millons did acknowledge his methodology of assessment was the same as Dr Bodel's, and that he had 'no difficult with the thrust of [Dr Bodel's] report';

(m) the Medical Assessor's observations are vastly different such that he considered 0% WPI was appropriate, which was inconsistent with the opinion of both

Dr Bodel and Dr Millons. This obliged the Medical Assessor to explain why this was the case. To do so, the Medical Assessor should have reconciled his findings with those of the experts. However, the Medical Assessor's commentary in that regard is limited to a statement that he assessed 0% WPI for scarring while the experts assessed 1% WPI, and

(n) the MAC should be revoked and a replacement certificate be issued with an assessment of 1% WPI for scarring with the resulting overall impairment being increased to 11% WPI.

1. The respondent's submissions include the following:

(a) Ground 1 - the Medical Assessor exceeded the scope of his jurisdiction by undertaking an assessment of scarring outside the bounds of the 'medical dispute';

(b) in Skates v Hills Industries Ltd [2021] NSWCA 142, the court of appeal held that the Medical Assessor 's assessment is to be dealt with reference to the claim made by the appellant and as pleaded in the Application to Resolve Dispute (ARD);

(c) in the ARD filed on 1 August 2025, the appellant confirms the body systems claimed to be 'right upper extremity, left upper extremity and TEMSKI/Scarring'. On 21 August 2025, the respondent filed a reply in response to the ARD filed. Following this, a referral to the Medical Assessor was made. The referral to the Medical Assessor required the Medical Assessor to assess the right upper extremity, left upper extremity and scarring;

(d) the referral clearly places scarring in dispute. The respondent submits that this is correct and in accordance with the dispute that was advanced by the appellant when filing of the ARD on 1 August 2025. The referral was made available to both parties, well in advance of any Medical Assessor assessment and the appellant had ample opportunity to seek to amend the referral, however, did not do so;

(e) accordingly, the Medical Assessor assessed 0% WPI for scarring, and this was in line with the referral made to him, which was not disputed by the appellant;

(f) Ground 2 - the Medical Assessor failed to provide sufficient reasons explaining the difference between his clinical examination of the appellant's scars in contrast with the examinations conducted by the medicolegal experts. The appellant submits that the Medical Assessor erred in his assessment, as he failed to disclose a proper path of reasoning for disagreeing with the opinions of Dr Bodel and Dr Millons as to the issue of scarring;

(g) the position adopted by the appellant is not correct. In the MAC, the Medical Assessor notes the various characteristics of the scars. Cl 14.6 of the Guidelines provides that "uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment". The characteristics fulfil the criteria of 0% WPI;

(h) the Medical Assessor provided a clear explanation as to why his assessment of scarring differed from that of Dr Bodel or Dr Millons;

(i) the Medical Assessor exercised his clinical judgement in accordance with Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140;

(j) it is not a requirement that the Medical Assessor is to respond word by word to the competing assessments of Dr Bodel and Dr Millons. It is apparent that the Medical Assessor has appropriately engaged with those opinions;

(k) the Medical Assessor has provided sufficient reasoning for his assessment in accordance with the guidelines and has sufficiently engaged with the opinions of Dr Bodel and Dr Millons, and

(l) in line with the above, the respondent submits that the assessment of 0% for scarring should be confirmed. The MAC dated 8 October 2025 is based in the correct criteria and does not contain a demonstratable error. Therefore, the assessment of 10% WPI should be confirmed.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
3. The Appeal Panel reviewed the MAC and the evidence in this matter.

Ground 1 - the Medical Assessor exceeded the scope of his jurisdiction by undertaking an assessment of scarring outside the bounds of the 'medical dispute' referred for assessment

1. The appellant submits that the Medical Assessor exceeded the scope of his jurisdiction by undertaking an assessment of scarring outside the bounds of the 'medical dispute' referred for assessment.
2. The Appeal Panel accepts that on 10 March 2025, the appellant made a claim for lump sum compensation in respect of 18% WPI, which was supported by the report of Dr James Bodel dated 5 March 2025. Dr Bodel's assessment of 18% WPI was a combination of impairments of which scarring accounted for 1% WPI. In response to the appellant's claim, the respondent made an offer of compromise on 1 July 2025 relying on the report of

Dr Millons dated 30 April 2025. Dr Millons assessed 13% WPI of which scarring accounted for 1% WPI, which was identical to Dr Bodel's assessment for scarring. 3. The appellant submits that the Medical Assessor's role is constrained to assessing the "medical dispute" between the parties with the nature of the "medical dispute" between the parties being ascertained from a review of the competing claims (Skates v Hills Industries Ltd [2021] NSWCA 142 at [44] (Skates)). 4. In Skates, both Leeming and McCallum JJA stating that what is referred for assessment by a Medical Assessor was the "medical dispute" not body parts. The observations of the Court of Appeal in Skates, confirmed that the exchange of correspondence and medical evidence relevant to the claim, identified the scope of the medical dispute. 5. In Skates at [46], Leeming JJA stated:

"The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates' application; indeed, it was why the documents setting out both sides' claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a 'medical dispute' because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute."

"The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the 'referral' to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission."

1. In Klement v Bull N'Bush Nurseries P L (2024) NSWSC 466 at [74], Schmidt AJ said:

"This statutory scheme accepts that injuries can improve or worsen over time and so an assessor must base his conclusions on his own findings and opinions, formed at the time of the assessment, while taking into account what earlier examinations have established."

1. In Sharma v Woolworths Group Limited [2024] NSWPIC 350 (Sharma), Principal Member John Harris considered the term "medical dispute" and said:

"109. The medical dispute defined in ss 319 and 326 is "the degree of permanent impairment of the worker as a result of an injury".

110. A reading of that aspect of the meaning of "medical dispute" probably indicates that it relates to the overall impairment as opposed to the individual claimed body parts. Where there are multiple impairments arising from the same incident, these are combined to produce an overall assessment.

111. It is settled law that the injured worker must make a claim that is capable of being compensated, normally providing an assessment of a qualified medical practitioner, and claiming permanent impairment of at least 11%: Sukkar v Adonis Electrics Pty Ltd.

112. If there is disagreement of the overall impairment, a medical dispute exists, and the injured worker is entitled to have the various body parts assessed. Accordingly, provided there is a valid claim of the overall impairment, the assessment of a particular body part does not have to meet the minimum threshold of at least 11% and can be assessed at 0%."

1. The appellant relies on the decision in Voudouris v TDV Constructions Pty Ltd (Voudouris) [2023] NSWPICPD 53 at [49] where Phillips P held that in circumstances where 0% WPI is assessed for a particular body part, that body part cannot form part of the 'medical dispute' between the parties. The appellant submits that the converse conclusion must be that where body parts are assessed identically by each respective party, that body part also cannot form part of the 'medical dispute' since there is no Commission intervention required to determine the degree of impairment. However, the Appeal Panel considers that Voudouris addresses a different issue, that is, whether a 0% WPI assessment is capable of referral to a Medical Assessor. It does not follow if a claim of 0% WPI in respect of a body part cannot be referred to a Medical Assessor, that any part of a claim where the IMEs agree on the WPI assessed for that particular body part is removed from the assessment process and cannot be referred to a Medical Assessor for assessment.
2. The Appeal Panel agrees with the approach taken by Principal Member Harris in Sharma and considers that "medical dispute" should be read as relating to the overall impairment as opposed to the individual claimed body parts. Where there are multiple impairments arising from the same incident, these are assessed together (s 322 of the 1998 Act) and combined to produce an overall assessment (Cl 1.17 and 1.18 of the Guidelines).
3. The Appeal Panel notes that Transdev NSW South Pty Ltd v Twining (Transdev) [2024] NSWPICPD 12 [134]-[150] supports the argument that a claim encompassing a body part assessed with 0% WPI can still form part of the overall "medical dispute"' and can therefore be assessed by an assessor. The appellant accepts that if Transdev is followed and applied to this matter, the identical assessments for scarring forming part of the competing claims would be irrelevant, meaning the Medical Assessor was acting within jurisdiction in assessing scarring.
4. The appellant did not refer to the decision of Schmidt AJ in Klement v Bull N'Bush Nurseries P L (2024) NSWSC 466 nor to the decision of Sharma v Woolworths Group Limited [2024] NSWPIC 350. In both of those matters, it was held that that a claim encompassing a body part assessed with 0% WPI can still form part of the overall "medical dispute".
5. In Jaffarie v Quality Castings Pty Limited [2014] NSWWCCPD 79, Deputy President Roche held (at 259) that consistent with the Court of Appeal authority in Bindah, where a worker's injury has been agreed by consent or determined by the Commission, it is for the Medical Assessor to determine the impairment and it is open to the medical assessor to find that no WPI has "resulted from the agreed or found injury".
6. There was no dispute that the appellant had injured both shoulders and there was scarring in the shoulder area from surgery. No agreement was reached between the parties as to the combined WPI and therefore that dispute was required to be resolved by the Medical Assessor.
7. The fact that both Dr Millons and Dr Bodel assessed 1% does not confine the medical dispute to an assessment only of the other body parts, which the parties' Independent Medical Examiners (IMEs) have provided an assessment where there is a difference in the impairment assessed. The Medical Assessor is not bound by the conclusions of the IMEs.
8. The Medical Assessor had to make his own assessment, having regard to the various reports and the other material which he had to consider because of the way the claim had been advanced and resisted, based on opinions which he formed, having undertaken the examination of the appellant.
9. The assessments by the various assessors were made at various times. There can obviously be some degree of variation between assessments as the condition assessed may deteriorate or improve.
10. The Guidelines require the appellant's condition to be assessed as he presents on the day of assessment. Whilst the appellant has scarring, the effluxion of time may have been effective in improving the appearance of the scars. Reaching such a conclusion is within the scope of the function performed by the Medical Assessor.
11. To conclude that the scarring is to be assessed at 0% WPI is not to fall into error, as the Medical Assessor had plainly accepted that such an injury had been suffered, and endeavoured to assess the impairment resulting from that injury. His clinical examination supported a conclusion that there was no assessable impairment in relation to the scarring from the operations to the shoulders, thereby warranting a 0% WPI assessment for skin/scarring.
12. The Appeal Panel is satisfied that the fact there are identical assessments for scarring by the IMEs forming part of the competing claims is irrelevant, and the Medical Assessor was acting within jurisdiction in assessing scarring.
13. It does not follow that because the parties' respective IMEs agreed on one particular part of the claim, that is scarring, and not the other parts of the claim (right upper extremity and left upper extremity) that the Medical Assessor exceeded the scope of his jurisdiction by undertaking an assessment of scarring outside the bounds of the 'medical dispute' referred for assessment.
14. The Appeal Panel also noted that there was no objection by the appellant to the terms of the referral, which included scarring. As Leeming JA said in Skates, the referral is an important document even if the fundamental legal concept is a dispute.
15. The Appeal Panel finds that Medical Assessor did not exceed the scope of his jurisdiction by undertaking an assessment of scarring. This ground of appeal in not made out.

Ground 2 - the Medical Assessor failed to provide sufficient reasons explaining the differences between his clinical examination of the scars in contrast with the examinations conducted by the medico-legal experts

1. The appellant submits that the Medical Assessor failed to provide sufficient reasons explaining the differences between his clinical examination of the appellant's scars in contrast with the examinations conducted by the medico-legal experts.
2. At pt.5 of the MAC, the Medical Assessor recorded the following observations in relation to the appellant's scars:

"There were portal scars around the left and right shoulders. Mr Taber was not conscious of the scars. There was a good colour match, no contour defect, no widening, no trophic changes. The scars were usually covered with clothing, There were no suture marks."

1. At pt.10(b), the Medical Assessor set out his assessment of impairment regarding the appellant's scars:

"Table 14.1 p 74 the Guides is used. There were portal scars around the left and right shoulders. Mr Taber was not conscious of the scars. There was a good colour match, no contour defect, no widening, no trophic changes. The scars were usually covered with clothing, there were no suture marks. In accordance with section 14.6 "uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment". The characteristics fulfill the criteria of a 0% WPI."

1. Dr James Bodel, consultant orthopaedic surgeon, in a report dated 5 March 2025 wrote:

"He does have significant scarring in both shoulders. There is one large mini-open scar approximately 2 cm long on the right and the left shoulders. There is some slight loss of subcutaneous tissue in that region. I would rate these scars as mildly complicated surgical scars under the TEMSKI scale. The scars are visible. There is no pigmentation. There is some loss of subcutaneous tissue. There is some mild tenderness on palpation of the scars and associated numbness in the scars and the suture marks are clearly visible. There is minimal interference in activities of daily living and this rates as a 1% Whole Person Impairment under the TEMSKI scale for these scars."

1. Dr David Millons, consultant surgeon, in a report dated 30 April 2025 assessed 1% WPI for scarring under Table 14/1 of the Guidelines on a "best fir scenario". Dr Millons provided no description of the scars but commented on Dr Bodel's report noting that their methodology was the same and that he had "no difficulty with the thrust of his report".
2. Clause 14.6 of the Guidelines provides:

Note that uncomplicated scars for standard surgical procedure do not, of themselves, rate an impairment".

1. Dr Bodel considers that the appellant had "mildly complicated" surgical scars. The Medical Assessor found that the characteristics of the scars fulfilled the criteria of a 0% WPI assessment in accordance with cl 14.6, that is, the scares were uncomplicated scars for a standard surgical procedure.
2. The Appeal Panel considers that the Medical Assessor provided sufficient reasons explaining the differences between his clinical examination of the appellant's scars in contrast with the examinations conducted by the IMEs. The Medical Assessor provided a detailed description of the scars based on the criteria set out in the TEMSKI Table 14.1 addressing colour match, contour defect, trophic changes, widening, suture marks, visibility with usual clothing, and not being conscious of the scar. His findings differed in some respects from Dr Bodel's findings. Dr Bodel had examined the appellant on 3 March 2025 while the Medical Assessor examined the appellant on 19 September 2025, that is, six months later. Dr Millon's assessment lacked detail and he provided no description of the scars, so it is not possible therefore to know what he based his assessment of 1% for scarring on.
3. The Appeal Panel finds no error in the MAC. This ground of appeal is not made out.
4. For these reasons, the Appeal Panel has determined that the MAC issued on