1. On 7 October 2025, Toyo Tyre & Rubber Australia Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessors Tommasino Mastroianni and John Garvey, who issued Medical Assessment Certificates (MAC) on 8 September 2025. The appellant appeals against the assessment of Medical Assessor Garvey only.
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. Mr Taik was employed with the appellant as a process worker. He suffered an injury to his back on 12 June 2008, which led to multiple bouts of surgery. Following the initial surgery, he reported difficulty with bladder control at night and frequency during the day. He also reports difficulty with sexual intercourse, particularly following the birth of his child. His medical history in respect of his urinary and sexual disfunction is complex.
2. He made a claim for lump sum compensation which eventually came to the Personal Injury Commission (Commission) for an assessment of impairment. He was referred for assessment with two Medical Assessors, with a combined MAC issuing on 20 October 2025. The appellant appeals against the assessment of Medical Assessor Garvey, who assessed the urinary and reproductive system. No appeal is made against the assessment of the lumbar spine or scarring.

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 contained in the MAC and the material referred for assessment to determine the Appeal, and none was requested by the parties.

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. In summary, the appellant commences submissions by setting out the legal background to the appeal process. The appellant then divides submissions into two parts, alleging incorrect assessment of the urinary system impairment and incorrect assessment of the reproductive system impairment.
2. In respect of the urinary system, the appellant refers to the Guidelines at Chapter 7 and parts of AMA 5. The appellant also refers to various evidence before the Medical Assessor, relating largely to his treatment and radiology, as well as the determination of a previous Medical Appeal Panel, in matter no M1-011204/11, a decision arising out of the former Workers Compensation Commission. Also discussed are various medicolegal opinions contained in the material. The appellant submits that based on proper consideration of the available evidence, it is not proper to conclude that the respondent has any degree of impairment. The appellant makes a series of submissions about how the Medical Assessor misdirected himself, and the lack of information to support a finding that the respondent suffers significant urological impairment. The appellant submits that the Medical Assessor failed to give sufficient explanation to support his clinical reasoning.
3. In respect of the reproductive system, the appellant refers to relevant parts of the Guidelines, as well as other assessments including the MAC of Medical Assessor Mastroianni and the medicolegal opinions that formed part of the dispute before the Commission. The appellant submits that on proper consideration of the available evidence, the conclusion that the respondent has any degree of impairment of the reproductive system is not possible. The appellant also makes some specific submissions that include the lack of reliable finding of cauda equina syndrome, the inconsistent history given regarding the fathering of a child, and with reference to other assessments. The appellant submits that the Medical Assessor has failed to give sufficient information to support his clinical reasoning.
4. In reply, the respondent worker submits that the appellant's submissions demonstrate that they have not understood the fundamental task of the Medical Assessor. The respondent refers to the references to other material contained in the submissions, submitting that the assessment is based on the worker's presentation on the day of examination. The Medical Assessor was not required to explain why he rejected or did not rely on some of the material that was before him. Similar submissions are made in respect of the reproductive system impairment.

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 assessment of the urinary and reproductive systems and accordingly the Appeal Panel's consideration of the matter is 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. The appeal has been divided into two sections dealing with the assessments of the urinary system and reproductive system, and accordingly the Appeal Panel will approach the issues on appeal in the same way.

1. The Medical Assessor assessed 40% for the urinary system due to the respondent worker's bladder dysfunction. The following reasons are provided on page 8 of the MAC:

"The Claimant is continuously wet in bed at night and merits the maximum allowable under the SIRA guides of 40% WPI for enuresis."

2. Earlier in the MAC, the Medical Assessor took the following history from Mr Taik in respect of these urinary symptoms:

"With respect to his urinary symptoms, the Claimant said that he could not control his bladder and he had leakage at night. The bed needed to be padded because it was always wet and this would occur about 5 or 6 times at night. He needed an effort to control it and he would leak 5 times. He suffered from stress incontinence when he sneezed or coughed and suffered a leak of urine. During the day he did not use a pad but he used a pad at night."

3. The appellant commences submissions by referring to various aspects of the medical and medicolegal evidence that were available to the Medical Assessor. The appellant submits that on proper consideration of the physical assessment and the available evidence, the conclusion that the respondent has any degree of impairment of the urinary system is not possible based on this information.
4. In respect of this submission it is firstly noted that the appellant is not submitting that there has been a failure to consider relevant evidence. The appellant is submitting that the evidence does not lead to the conclusion made by the Medical Assessor. In response the respondent refers to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Kocak) at [47] is appropriately made in the circumstances - as the respondent worker submits, it is not the role of the Medical Assessor to choose between competing arguments to make a determination. The function of a Medical Assessor is to form and give an opinion on the issue referred (noting that Kocak has been widely applied as apropos to the role of the Medical Assessor, see for example in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346).
5. The Appeal Panel agree that there is limited relevance to the material including previous determinations of the former Workers Compensation Commission, noting that they do not create estoppels and are assessments of impairment on the day of examination. Mr Taik's circumstances have changed dramatically since those assessments and his impairment must be considered and assessed today.
6. The appellant goes on to provide further submissions that address the criteria for assessment, with reference to the Guidelines and AMA 5, as well as evidence that the appellant submits tends towards findings that there is no assessable neurogenic condition.
7. In particular, the appellant refers to cl 7.5 and table 7.2 of the Guidelines and Table 15-6d of AMA 5. The assessment of impairment, according to page 8 of the MAC, was based on cl 7.8 of the Guidelines, which provides:

"Urge urinary incontinence is the involuntary loss of urine associated with a strong desire to void. Stress urinary incontinence is the involuntary loss of urine occurring with clinically demonstrable raised intra-abdominal pressure. It is expected that urinary incontinence of a regular or severe nature (necessitating the use of protective pads or appliances) will be assessed as follows:

Stress urinary incontinence (demonstrable clinically)

Total incontinence (continuously wet - eg from fistula)

The highest scoring condition is to be used to assess impairment - combinations are not allowed."

Class 1

0-15% impairment of the whole person

Class 2

16-40% impairment of the whole person

Class 3

41-70% impairment of the whole person

Symptoms and signs of bladder disorder and requires intermittent treatment and normal functioning between malfunctioning episodes

Symptoms and signs of bladder disorder eg urinary frequency (urinating more than every two hours), severe nocturia (urinating more than three times a night), urge incontinence more than once a week

and

requires continuous treatment

Abnormal (ie under or over) reflex activity (eg intermittent urine dribbling, loss of control, urinary urgency and urge incontinence once or more each day)

and/or

no voluntary control of micturition, reflex or areflexic bladder on urodynamics

and/or

total incontinence eg fistula.

1. The Medical Assessor's explanation that the respondent is continuously wet at night and thus "merits the maximum allowable under the SIRA guides of 40% WPI for enuresis" makes it sufficiently clear the path he has adopted in making his assessment. Under cl 7.8 of the Guidelines, nocturnal enuresis or wet in bed attracts 16-40% according to severity. It is noted that the appellant has not challenged the severity assessment undertaken by the Medical Assessor, of the "maximum allowable", but rather whether the assessment was available at all.
2. What is important to note here about the Guidelines for the assessment of bladder disfunction under Chapter 7 is that there is no requirement for the involvement of cauda equina or neurological damage. The urinary and reproductive systems are assessed specifically under Chapter 7. Cauda equina syndrome causing bladder disorders are also assessable under a different methodology. There is some uncertainty within the evidence of the presence of cauda equina syndrome, including in the report of Dr Granot, referred to in the appellant's submissions. But this is not relevant to an assessment of impairment of bladder dysfunction under Chapter 7. Clauses 4.22 and 4.23 of the Guidelines refer to the effects of cauda equina syndrome on the bladder, but that is not the methodology that has been adopted here. Nowhere does the Medical Assessor rely upon a cauda equina syndrome to reach his conclusion. Whilst the Medical Assessor refers to Table 15-6d of AMA 5 in the table he provides on page 8 of the MAC, it is clear, based on the other parts of the certificate that his assessment is in fact based on the Guidelines. To the extent of any inconsistency, the Guidelines prevail.
3. It is the Appeal Panel's view that the approach of the Medical Assessor was the correct one. Mr Taik has a neurogenic bladder with significant bladder dysfunction. His history in that regard has been consistent and as is reported in the MAC, with nocturnal enuresis. His present symptoms have evolved since previous assessments, making reference to those of little weight, but the history of nocturnal enuresis is consistent.
4. Accordingly, this ground of appeal has not been made out and the assessment of the bladder will be confirmed.

1. The Medical Assessor assessed 20% for loss of sexual function, providing the following reasons:

"In addition, he merits 20% WPI for impotence under the SIRA guides and AMA5 because he appears to qualify for loss of sexual function spinal assessment under Clause 4.26 on page 26 of the SIRA guides having objective evidence of bilateral nerve root dysfunction (MRI and CT scan reports noted in #7 above)"

2. On page 5 of the MAC, the Medical Assessor takes the following history of loss of sexual functioning:

"With respect to sexual function, the Claimant said that when he was married in 2016, he would have sexual intercourse about once per week. Towards 2018 he would have sexual intercourse occasionally but after his child was born in 2018, he was unable to have sexual intercourse and did not know the reason and said that it "just happened". He does not experience erections and said that his penis does not work anymore and he has not had any sexual intercourse since the birth of his child 6 years ago"

3. The appellant's submissions commence similarly to those provided for the bladder impairment, with reference made to the criteria in the Guidelines and AMA 5. Relevant criteria will be discussed below. The appellant then refers to aspects of the MAC, previous medicolegal assessments, before submitting that the conclusion that the respondent has any degree of impairment of the reproductive system is not possible. The respondent then makes further specific submissions about inconsistencies and the reasons provided by the Medical Assessor.
4. The respondent, in reply, notes that the allegations of error are similar to those made under the bladder impairment heading. The respondent submits that the appellant has failed to accept that impairment is based on the day of assessment.
5. Based on the reasons provided by the Medical Assessor, as quoted above, he has made an assessment relying on cl 4.26 of the Guidelines. That clause provides:

"Loss of sexual function should only be assessed where there is other objective evidence of spinal cord, cauda equina or bilateral nerve root dysfunction. The ratings are described in AMA5 Table 15-6 (pp 396-97). There is no additional impairment rating system for loss of sexual function in the absence of objective neurological findings. Loss of sexual function is not assessed as an ADL."

6. It is, however, noted that the assessment of impairment based on the table provided by the Medical Assessor relies on Chapter 7 of the Guidelines, specifically cl 7.9. This is consistent with the Medical Assessor describing the body part as the "Penis" in that table.
7. When read as a whole, it is clear that in contrast with the assessment of the bladder, the Medical Assessor has based his assessment of loss of sexual functioning based on cl 4.26 of the Guidelines, that is on the basis of "other objective evidence of spinal cord, cauda equina or bilateral nerve root dysfunction".
8. The issue with that conclusion is that there is no objective evidence of such dysfunction. It is the Appeal Panel's view that the special investigations do not show spinal cord dysfunction. Cauda equina syndrome has never been positively identified, and is not apparent from the radiology. The highest is a suspicion of cauda equina from Dr Granot, without confirmation. Further there is no bilateral nerve root dysfunction. The presence of radiculopathy was dismissed by Medical Assessor Mastroianni and there is evidence to show the nerve reflexes are intact. To the extent that there is evidence of a neurological deficit it is not specific to the appropriate spinal distribution. The Appeal Panel also note the inconsistencies in history of onset of sexual dysfunction, contradicted by Mr Taik having a six-year-old son.
9. The cause of Mr Taik's impotence is unclear but does not involve confirmed, objective neurological findings. Impotence can be multifactorial, including contribution from medications and psychological issues. In the absence of objective neurological findings, cl 4.26 of the Guidelines applies to disallow any additional impairment for loss of sexual function.
10. The Appeal Panel note the respondent's reliance on Strinic v Singh [2009] NSWCA 15. The Appeal Panel contains two suitably qualified experts that are able to comment upon and determine the medical issues that arise in this matter, and accordingly that authority is of limited relevance.
11. The above is contrasted with the loss attributed to the bladder, which is not covered by cl 4.26 of the Guidelines. Mr Taik has a neurogenic bladder impairment attributable to his work injury and the consequences following, and for the reasons given above that assessment will be confirmed.
12. Accordingly, the assessment of 20% made by the Medical Assessor for such loss will be revoked.
13. For these reasons, the Appeal Panel has determined that the MAC issued on 8 September 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons. That certificate will be combined with the findings made by the lead assessor, whose MAC has not been challenged.

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor John Garvey and issues this new Medical Assessment Certificate, including the assessment of Lead Assessor Tommasino MAstroianni 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)