1. On 8 April 2025 Allan Wilson lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 March 2025.
2. Mr Wilson relies on the following grounds of appeal under s 327(3)(c) and (d) 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 President's delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the MAC contained a demonstrable error with respect to a deduction under s 323 of the 1998 Act. We conducted a review of the original medical assessment, limited to the grounds 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 Wilson was employed by Challenge Community Services (Challenge) as a disability support worker. On 16 March 2020 he was on an outing with a group of clients when he attempted to alight from a van. His foot became caught in a bag in the footwell of the van, causing him to fall from the vehicle, injuring his left leg, left ankle and back.
2. Mr Wilson was treated in hospital for a fractured left ankle and distal tibia. In 2021 Dr Cartwright, pain specialist, performed radiofrequency ablation on the sciatic nerve in the popliteal fossa. Mr Wilson was referred to an orthopaedic surgeon, Dr Sharp, when he suffered pain in his right knee and hips. Dr Sharp referred him to a neurosurgeon, A/Prof Mitchell, in respect of his lumbar spine. He was treated by Dr Gooden in respect of his right knee.
3. The claim for permanent impairment compensation was assessed by Dr Riley who assessed 33% whole person impairment (WPI). Challenge arranged for Dr Nair to assess the orthopaedic injuries and Dr Rapaport to assess the cardiovascular system. Their assessments combined to reach 26% WPI.
4. The Personal Injury Commission was not required to resolve any liability disputes before referral to the Medical Assessor. The Medical Assessor was asked to assess Mr Wilson in respect of his left lower extremity, lumbar spine, cardiovascular system and scarring under the Table for the Evaluation of Minor Skin Impairments. He assessed a total of 19% WPI.

1. We 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, we determined that it was not necessary for Mr Wilson to undergo a further medical examination because there is sufficient material in the file to determine the appeal.
3. In the course of that review, the Panel noted an error made by the Medical Assessor which has no bearing on the determination of the appeal. The Medical Assessor assessed the vascular component of Mr Wilson's injury with the left lower extremity. As the Medical Assessor noted, Table 4.5 of AMA 5 on page 6 headed Criteria for Rating Permanent Impairment of the Lower Extremity Due to Peripheral Vascular Disease is identical to Table 17.38 in the chapter dealing with the lower extremity. The result is mathematically the same and has no bearing on the outcome but because the referral was in respect of the cardiovascular system, the correct assessment was under Table 4.5.

1. We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
2. The parts of the MAC that are relevant to the appeal are set out below.

1. Both parties made written submissions. They are not repeated in full, but we have considered them.
2. In summary, Mr Wilson submitted that the Medical Assessor made a demonstrable error in making a deduction under s 323 of the 1998 Act because there was no evidence that he suffered degenerative spondylosis.
3. Mr Wilson said that the Medical Assessor made a factual error in assessing his lumbar spine in DRE Lumbar Category II as opposed to DRE Lumbar Category III because the Medical Assessor said that the imaging did not show significant compression of the left L5 nerve root. The submissions referred to the part of the DRE categories which referred to fractures and compression of vertebral bodies. The Medical Assessor referred to an MRI scan dated 22 February 2022 of which Mr Wilson is unaware. The MRI scan report in the Application to Resolve a Dispute is dated 15 February 2022, which Mr Wilson said demonstrated severe compression of the L5 nerve roots. On that basis he said that the Medical Assessor used incorrect criteria and that the impairment should be assessed as Category III "due to 25% to 50% compression of one vertebral body, in line with the previous assessments of Dr Stuart Riley and Dr Anil Nair".
4. In reply, Challenge submitted that it was open to the Medical Assessor to make a deduction under s 323 because a CT scan report dated 28 June 2021 and the MRI scan dated 15 February 2022 showed longstanding degenerative change in Mr Wilson's lumbar spine. Dr Nair, retained on behalf of Challenge considered there was "almost certainly pre-existing lumbar degeneration".
5. Challenge said that the Medical Assessor was entitled to rely on his clinical findings. In the absence of observing radiculopathy, it was open to the Medical Assessor to assess Mr Wilson in DRE lumbar category II.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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. In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
4. An Appeal Panel is only permitted to re-examine a worker once it has determined that the Medical Assessor has made a demonstrable error or applied incorrect criteria. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[3] Davies J said:

"...if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment."[4]

1. An Appeal Panel cannot re-examine to determine if there is an error or to determine if a different result would be obtained on a different day.
2. Mr Wilson only raised grounds of appeal in respect of the assessment of his lumbar spine so we have only set out the parts of the MAC that deal with the lumbar spine. Because the assessment of impairment in the lumbar spine is undertaken before the application of any deduction, we have considered Mr Wilson's grounds of appeal in reverse order.

"Examination of the lumbar spine demonstrated restricted flexion to the knees with dysmetria arising from the flexed position. Lateral flexion was only to the knees. Quadriceps reflexes were symmetrical. Ankle reflex on the left was diminished but present my assessment was this was secondary to the fracture and subsequent ankle stiffness rather than lumbar pathology. Straight leg erase was to 90° in the sitting position without tension signs."

1. The Medical Assessor set out his interpretation of an MRI scan which he said was dated 22 February 2022:

"L5/S1 degenerative disc disease with end stage narrowing and modic changes and right sided L5 foraminal stenosis. Left side L2/3 degenerative disc disease."

1. Explaining his assessment, the Medical Assessor said:

"Lumbar Spine: The lumbar spine is assessed according to AMA 5 page 384 15.3. On the basis of there being evidence of dysmetria on examination and non-dermatomal symptoms referred into the lower limbs, the lumbar spine is assessed as DRE Category II (5% whole person impairment). A further 2% is assessed for restriction of activities of daily living, giving a whole person impairment of 7% for the lumbar spine.

Examination findings to support a diagnosis of radiculopathy, as per SIRA page 27 4.27 were not present. There was some asymmetry of the left ankle reflex but this was on the basis of restricted movement in the ankle joint. There was not anatomical weakness related to a spinal nerve root distribution, sensory alteration related to the spinal nerve root distribution, nerve root tension sign or evidence of muscle wasting. Available imaging did not demonstrate significant compression of the left L5 nerve root."

1. The Medical Assessor commented on the reports of Dr Riley and Dr Nair:

"...I have assessed the lumbar spine as DRE Category II rather than DRE Category III. The sensory loss in the lower limb is consequent to local injury from the fracture and not consistent with radiculopathy. Diminished ankle reflex on the left is consistent with restricted movement in the ankle joint, consequent to the tibial fracture.

With respect to the report by Dr Nair dated 23 July 2024 ... Again, I have assessed the lumbar spine as DRE Category II rather than Category III. I did not make findings consistent with radiculopathy today. With respect to Dr Nair's findings, I did not find abnormal reflexes in the right lower limb or sensory abnormality in the right lower limb. I did not find restricted straight leg raise."

1. The Medical Assessor was required to assess Mr Wilson as he presented on the day of the examination and to make his own assessment, using his clinical judgement. In State of New South Wales (NSW Department of Education) v Kaur[5] Campbell J said:

"...In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:

'The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.'

Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular, it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:

'The statement of reasons... explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.'"

1. Each of Dr Riley and Dr Nair had observed criteria for the assessment of radiculopathy under paragraphs 4.27 and 4.28 of the Guidelines. Those paragraphs provide:

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

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

4.28 Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy."

1. The Medical Assessor said that he did not observe the relevant signs on the day of his examination. He determined that asymmetry of the left ankle reflex was the result of restricted movement in the ankle joint. The MAC shows that he considered the application of paragraphs 4.27 and 4.28.
2. The radiologist's report of the MRI scan dated 15 February 2022 reads:

"Vertebral body height and alignment is normal. Disc height and hydration is severely reduced at LS/S1 and moderately reduced at L2/3. The conus signal shape and position is normal and the distribution of cauda equina nerve roots is normal. No paraspinal soft tissue abnormalities. No fractures.

L5/S1 level near complete obliteration of the disc with posterior and anterior broad posterior soft disc bulging causing high-grade left and right neural foraminal stenosis and compression of exiting L5 nerve roots and also contact of descending S1 nerve roots in the lateral recesses. Modic type 2 endplate changes. Facet joints preserved.

L4/5 level disc height and hydration is preserved and there is no central canal or neural foraminal stenosis. Facet joints preserved.

At L3/4 level no compressive discopathy, central canal or neural foraminal stenosis.

L2/3 level reduction of disc height and hydration with anterior and posterior soft disc bulging causing low-grade central canal stenosis and low grade neural foraminal stenoses. Focal hyperintense speckled well-circumscribed lesion of the posterior superior endplate of L2 on the right extending into the patent coal has features typical of a haemangioma.

L1/2 level no compressive discopathy central canal and neural foraminal stenosis.

Compression of bilateral L5 nerve roots and contact of descending bilateral S1 nerve roots by L5/S1 severe discopathy. Mild discopathy at L2/3 level. No fractures."

1. The Medical Assessor referred to an MRI scan dated 22 February 2022. We are satisfied that the date is a typographical error and that the scan that the Medical Assessor reviewed was that dated 15 February. The Medical Assessor said that the scan was undertaken at Hunter Radiology and it would be unlikely for a person to undergo two MRI scans one week apart at the same facility.
2. The description in the MAC is the Medical Assessor's interpretation of the scan. He was not bound to agree with that of the radiologist. Notably, A/Prof Hansen provided a summary of the scan in his report dated 29 June 2022 which also does not refer to the L5 nerve root compression. A/Prof Hansen said:

"His MRI shows L5/S1 disc desiccation, with bilateral foraminal stenosis which is worse on right, and some modic changes. The other discs are relatively well preserved."

1. The Guidelines set out at the beginning of Chapter 4, the way in which AMA 5 Chapter 15 is to be used in the assessment of the spine:

"4.1 The spine is discussed in Chapter 15 of AMA5 (pp 373-431). That chapter presents two methods of assessment, the diagnosis-related estimates method and the range of motion method. Evaluation of impairment of the spine is only to be done using diagnosis-related estimates (DREs).

4.2 The DRE method relies especially on evidence of neurological deficits and less common, adverse structural changes, such as fractures and dislocations. Using this method, DREs are differentiated according to clinical findings that can be verified by standard medical procedures."

1. The criteria for rating lumbar spine impairment are set out in Table 15-3 by reference to the Diagnosis-Related Estimates Method. It is explained in paragraph 15.3:

"The DRE method has five diagnosis-related categories for each of the three spinal regions. In assigning the individual to the correct DRE category, one of two approaches is used. The first is based on symptoms, signs, and appropriate diagnostic test results. The second is based on the presence of fractures and/or dislocations with or without clinical symptoms. If a fracture is present that places the individual into a DRE category, no other verification is required. The symptoms, signs other than fractures, and tests used to assist correct categorization of an individual are defined in Box 15-1."

1. Box 15-1 provides definitions of the clinical findings used in Table 15.
2. The criteria for DRE Lumbar Category II are:

"Clinical history and examination findings are compatible with a specific injury; findings may include significant, muscle, guarding, or spasm, observed at the time of the examination, asymmetric, loss of range of motion, non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity, and no significant radiculopathy,

individual had a clinically significant radiculopathy, and has an imaging study that demonstrates a herniated disc at the level, and on the side that would be expected based on the previous radiculopathy, but no longer has the radiculopathy following conservative treatment

fractures (1) less than 25% compression of one vertebral body (2) posterior element, fracture without dislocation (not developmental spondylolysis) that has healed without alteration of motion segment integrity; (3) spinous, or transverse process fracture with displacement, without vertebral body, fracture, which does not disrupt the spinal canal."

"Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, loss of relevant reflex(es), loss of muscle strength, or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location; impairment may be verified by electrodiagnostic findings

history of a herniated disc at the level, and on the side that would be expected from objective clinical findings, associated with radiculopathy, or individuals who had surgery for radiculopathy, but are now asymptomatic

fractures: (1) 25% to 50% compression of one vertebral body; (2) posterior element fracture with displacement, disrupting the spinal canal; in both cases, the fracture has healed without alteration of structural integrity."

1. Mr Wilson's submissions focus on the parts of those criteria which refer to fractures, confusing the reference to compression of the exiting L5 nerve root in the MRI scan report with the reference to compression fractures. The reference to vertebral bodies in the last part of each DRE category is a reference to the vertebrae of the spine. Mr Wilson did not suffer a fractured vertebra; as the Guidelines point out, such injuries are less common.
2. Mr Wilson's injury fell to be assessed under the first part of each DRE category based on the clinical findings, the symptoms reported and signs observed at the date of the examination. The Medical Assessor was alert to the requirements for the assessment of radiculopathy under the Guidelines and did not observe the relevant criteria at his examination. Assessment in DRE Lumbar Category II was therefore appropriate.

1. Mr Wilson argued that the Medical Assessor did not cite or rely on "medical evidence" to support the opinion that he suffered from degenerative spondylosis in his lumbar spine and submitted this was a conclusion or assumption.
2. Paragraph 1.40 of the Guidelines point out that an assessor applying the Guidelines will be a registered medical practitioner recognised as a medical specialist. A Medical Assessor's role is to provide an opinion, including a diagnosis, based on his or her expertise. As an orthopaedic surgeon, the Medical Assessor has the relevant training and experience to diagnose degenerative spondylosis. The Medical Assessor made the diagnosis on the basis of his examination.
3. The first investigation of Mr Wilson's back was the CT scan undertaken on 28 June 2021 taken to rule out nerve impingement as a cause for shooting pain down his left leg for a few months. The radiologist reported on mild osteoarthritis (OA) at L2/3 and moderate discovertebral degeneration at L5/S1.
4. The MRI scan report dated 15 February 2022 likewise showed degenerative changes at L2/3 and L5/S1. Those findings are not consistent with traumatic injury.
5. There are limited reports from treating practitioners in the file and none of the reports contain a diagnosis. That is not surprising when the reports were prepared for the purpose of treatment. A/Prof Hansen said that the MRI scan showed disc degeneration with bilateral foraminal stenosis. His findings are a description of age related degenerative changes.
6. Dr Riley described the history of Mr Wilson's back pain since the injury. The extent of his diagnosis was advanced degenerative changes at L5/S1. He did not make any deduction under s 323 nor did he consider in his report if it was warranted.
7. Dr Nair noted that the MRI scan showed degenerative changes as well as right nerve root compression. He said that there was clinical and radiological evidence of lumbar spondylosis, that is age related degenerative change. He deducted one-tenth from his assessment under s 323 due to those degenerative changes.
8. A deduction under s 323 can be appropriate in the absence of pre-existing pain and limitation. Despite his history that he had not previously suffered pain in his back, it would be anticipated that he would have begun to suffer those changes at his age.
9. In Vitaz v Westform (NSW) Pty Ltd[6] Basten JA, with whom the other members of the Court agreed, rejected the contention that if a worker did not suffer symptoms from a pre-existing condition and there was no rateable impairment before an injury, there would be no deduction under s 323. His Honour said:

"That opinion contained a legal assumption which is inconsistent with the approach adopted by this Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]- [32] and, more recently, by Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]). The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury."

1. In Ryder v Sundance Bakehouse Campbell J said:[7]

"What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment would not have been as great."

1. Had any of the doctors who treated Mr Wilson been asked to provide a diagnosis, it is likely that it would have been the same as that made by Dr Nair and the Medical Assessor - that the lumbar spine injury was the aggravation of pre-existing degenerative change.
2. The deduction of one-tenth is made because the extent of the contribution of those changes to Mr Wilson's current condition would be difficult or costly to determine, in accordance with s 323(2). While he said he did not suffer back pain before the injury and was therefore asymptomatic, the findings on CT and MRI scan are not likely to have developed since the injury. It is the presence of the degenerative changes that led to the injury that Mr Wilson now suffers in his lumbar spine.
3. For these reasons, we have determined that the MAC issued on 26 March 2025 should be confirmed.

[1] [2006] NSWCA 284.

[2] [2021] NSWCA 304 at [26].

[3] [2013] NSWSC 1792.

[5] [2016] NSWSC 346 at [25]- [26].

[6] [2011] NSWCA 254 at [43].

[7] [2015] NSWSC 526 at [45].