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, and having found error (which was appropriately conceded by the respondent) the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because there was insufficient material before the Appeal Panel to properly assess the appellant's degree of permeant impairment.

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 Crocker of the Appeal Panel conducted an examination of the worker on

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 was aware that the appellant had undergone a right total knee replacement procedure and therefore should have assessed impairment on that basis. The appellant submits that additionally the applicant is entitled to a further assessment with respect to a partial meniscectomy.
3. In reply, the respondent concedes that the Medical Assessor has failed to take into account the appellant's right total knee replacement. The respondent sought that the matter be referred back to the Medical Assessor, as an alternative to an appeal, for reconsideration as the Medical Assessor had not correctly applied Table 17-35 of the Guidelines to allow the error to be corrected.
4. The respondent further submitted that the assessment with respect to the total knee replacement cannot be combined with an assessment of impairment for the collateral ligament laxity and that to do so would be double counting.

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 appellant submits, and the respondent concedes that the Medical Assessor did not assess impairment on the basis that the appellant had undergone a right total knee replacement and that this amounts to the application of incorrect criteria and demonstrable error. The respondent does not contend that a total knee replacement did not occur.
4. The Medical Assessor takes a history that the appellant had had a number of operations on his knee, "leading up to, about 2 years ago, a full knee replacement. The knee continues to give way, and the specialists are keen to tighten the ligaments around the knee, but he is unwilling to proceed with further surgery". On examination of the right knee, the Medical Assessor records 'Most notable is a loss of lateral stability. He has a moderately loose medical collateral ligament". The Medical Assessor then records under summary of injuries and diagnosis "His right knee has moderate collateral ligament laxity despite repeat attempts at repair, and medical and lateral meniscal excisions". In discussing whether the appellant's conditions had reached maximum medical improvement, the Medical Assessor records "He has been advised to repair this unstable knee, but between his family responsibilities, and failed other attempts he is clear he will not attempt this surgery".
5. Without reference to the right total knee replacement which he has commented on, the Medical Assessor then assesses impairment with respect to the right knee as follows:

"The knee is assessed by reference to DRE methods T17-33 p546. He has moderate collateral ligament laxity with 17% LEI. In addition, he has partial meniscectomy with 10% LEI."

1. There is no explanation within the MAC as to why the Medical Assessor assessed impairment under Table 17-33 with respect to moderate collateral ligament laxity and partial meniscectomy rather than on the basis of a total knee replacement. Paragraph 3.5 of the Guidelines provides that the evaluation giving the highest impairment rating is to be selected.
2. Having regard to the submissions of the parties, the MAC and the Guides and Guidelines, the Appeal Panel is satisfied that in not assessing impairment on the basis of a total knee replacement the Medical Assessor has applied the incorrect criteria and fallen into error.
3. Having found error, the Appeal Panel appointed Medical Assessor Crocker, Medical Assessor member of the Appeal Panel to conduct the re-examination. The Appeal Panel is satisfied that the re-examination was conducted thoroughly, a complete physical examination of the appellant occurred, and that Medical Assessor Crocker considered all 'relevant and significant material' in the ARD and the Reply and additional documents.
4. Medical Assessor Crocker reported to the Appeal Panel in the following terms:

"1. The worker's medical history, where it differs from previous records

It is evident that the purpose of the current re-examination is in relation to a dispute pertaining to the assessment of impairment with respect to the region of the right lower extremity pertaining to the knee and the requirement for Mr Wheeler having had a total knee replacement/arthroplasty.

It was evident that the other regions inclusive of the right hip, lumbar spine and with respect to scarring are not in dispute.

As a consequence, the focus of the present re-examination is in relation to the right lower extremity with respect to the knee.

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

It was found necessary to obtain further information in relation to Mr Wheeler's current status relating to the right knee.

In this respect, he reports constant pain affecting the joint from a moderate to "strong" degree, in particular, to the medial, lateral and posterior aspects. As best fit, he considered that moderate continual pain was appropriate to describe pain affecting the region.

He reports that the joint feels 'hot' and often swollen.

He has a constant feeling of instability relating to the joint and reportedly has had frequent falls.

He does not describe a locking sensation at the joint.

Mr Wheeler also reports variable pain affecting the left knee.

He also continues to report complaints referable to both hips and the region of the lumbar spine.

He indicates that he has variable pain affecting multiple regions when endeavouring to sleep. He has a variable walking tolerance. He has difficulty with stair use and describes a 'fear' particularly when having to walk downstairs. He indicates that he has had multiple falls in this respect. He is limited with household chores and gardening tasks. Other family members often attend to these aspects of activities of daily living. He is independent in relation to personal care but reports difficulty with tasks such as dealing with his shoes and socks.

Aspects relating to treatment and analgesic requirements have been covered in the Medical Assessment Certificate completed by Dr Honeyman dated 14.5.24.

As alluded to above, the current re-examination pertains to the region of the right knee.

Dr Honeyman has previously described features relating to scarring overlying the joint.

Mr Wheeler exhibited a slow symmetric gait when observed walking within the confines of my office. He only undertook a partial squatting manoeuvre. In this respect, he was informed that he should not undertake activities or manoeuvres that would cause him undue discomfort.

Girth measurements within the lower extremities were approximately as follows: 49cm (right thigh); 50cm (left thigh); 42.5cm (right calf); 42.5cm (left calf).

Active range of motion was assessed on multiple occasions at both knees with use of a goniometer with maximal findings noted as follows:

Tenderness was reported overlying the joint, in particular to the medial, lateral and posterior aspects.

There was minimal laxity in the sagittal (anteroposterior) plane. There was prominent laxity evident in the coronal (mediolateral) plane of greater than 14 degrees.

There was nil evidence of a flexion contracture or extension lag pertaining to the right knee.

With respect to alignment, there was an approximate 4° of valgus noted bilaterally.

Aspects relating to the findings of the current assessment are summarised in the accompanying worksheets.

Mr Wheeler had with him a radiological study pertaining to the right knee that predated the total knee replacement surgery.

He did not report that any further investigations have been attended since the time of his earlier assessment.

In relation to the right lower extremity pertaining to the knee, utilisation is required of the modified table from AMA 5 contained in the NSW Workers' Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (Table 17-35). On this basis, 40 points are accrued.

The above equates with a 'poor result' as a consequence of arthroplasty. AMA 5 indicates that this accrues a 75% lower extremity impairment.

It has been outlined that the other regions are not in dispute.

At the time of the assessment by Dr Honeyman on 14.3.25 (date of MAC 14.5.25), a determination of 20% lower extremity impairment pertaining to the right lower limb is documented with respect to the hip.

When the lower extremity impairments of 75% and 20% are combined, an 80% lower extremity impairment is accrued. This converts to a 32% whole person impairment.

It is evident that Dr Honeyman had considered a one-tenth deduction was applicable in relation to the region of the lumbar spine. He had not considered that a deduction was applicable in relation to the right lower extremity pertaining to the hip and knee. Similarly, it is considered that nil deduction is appropriate pertaining to this region, in particular, relating to the right knee based upon the current re-examination assessment.

Concerning the other regions not in question, a 5% whole person impairment had been determined with respect to the lumbar spine after a one-tenth deduction had been made.

A 1% whole person impairment had been determined with respect to scarring with reference to the TEMKSI table.

When taking into account the whole person impairments of 32%, 5% and 1%, a final combined whole person impairment of 36% is determined.

The above determinations are summarised in the accompanying table.

It has also been indicated that worksheets are provided in relation to the right lower extremity, in particular, to the right knee and also taking into account the finding of Dr Honeyman with respect to the region of the right hip."

1. The Appeal Panel, having reviewed the assessment and findings on examination of

Medical Assessor Crocker, including the worksheet which is annexed to these reasons, is satisfied that it appropriately determines the medical dispute between the parties with respect to the degree of permanent impairment to the right lower extremity (knee) as a result of injury on 22 April 2003 being the extent of the dispute (subject to appeal). The Appeal Panel notes that the findings and assessment of the Medical Assessor with respect to the right hip, lumbar spine and scarring were not the subject of complaint on appeal nor submissions by the parties and have not been disturbed by the Appeal Panel. 2. In Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191, Ward P considered at [88]:

"The statutory provisions assume power on the part of a medical member of the Appeal Panel to carry out a re-examination and assessment of the worker. It may be inferred that the Appeal Panel, in adopting the report and findings, was endorsing the reasoning in that report since that is where the reasons are to be found. I do not accept that the Appeal Panel was required to deliver separate or distinct reasons as to why the Appeal Panel (or two of the three members of it, perhaps) accepted Medical Assessor Glozier's assessment in preference to the assessment of, say, the Medical Assessor. In my opinion, it was sufficient for the Appeal Panel to adopt Medical Assessor Glozier's assessment (for the reasons contained therein)."

1. The Appeal Panel considers the findings and assessments of Medical Assessor Crocker to be reliable, and the Appeal Panel adopts those findings and assessments.
2. The assessment by Medical Assessor Crocker, with respect to the right knee, assessed impairment of the right knee as 75% lower extremity impairment. This assessment is in accordance with Table 17-35 of the Guidelines, whereby the appellant was assessed with a poor result as a consequence of the right total knee replacement procedure.
3. The Appeal Panel does not accept the appellant's submission that he is entitled to a further assessment of impairment based on the partial meniscectomy. While the appellant had undergone a number or procedures to his right knee since the injury in 2003, including a partial meniscectomy this condition was subsumed into the total knee replacement when the knee joint, including the meniscus is replaced by the prosthetic joint. As such, at the time of the assessment by Medical Assessor Crocker, the joint replacement surgery having taken place, the panel does not accept it permissible to assess the past partial meniscectomy in addition to the total knee replacement. The overall function of the knee joint is assessed, following total knee replacement surgery, in accordance with table 17-35 as corrected in the Guidelines. To do otherwise, adopting the submission of the respondent, would be double counting.
4. The 75% lower extremity impairment assessed by Medical Assessor Crocker is combined with the uncontested 20% lower extremity impairment for the right hip for a combined right lower extremity impairment of 80% converting to 32% WPI.
5. For these reasons, the Appeal Panel has determined that the MAC issued on 14 May 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WILLIAM ANGUS SCOTT & MIGELLA MARGARET SCOTT t/as Scotts Spreading Services

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 Honeyman 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)