1. On 25 June 2025 Windgap Foundation Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by

Dr Mohammed Assem, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 May 2025. 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 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 worker should undergo a further medical examination because the Panel has determined that the Medical Assessor erred in failing to either examine the uninjured left ankle in order to provide a baseline comparison or (if he did conduct such examination), to document his findings in the MAC.

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 James Bodel of the Appeal Panel conducted an examination of the worker on 23 September 2025 and reported to the Appeal Panel.

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 erred as set out in paragraph 7 above.
3. In reply, the respondent submits that no errors were made.

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 was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the right lower extremity including complex regional pain syndrome type I (if present), intra-articular fracture with displacement of the ankle, and associated scarring resulting from an injury on 6 May 2022.
4. The Medical Assessor obtained a "brief history of the incident/onset of symptoms and of subsequent related events, including treatment" as follows:

"On 6 May 2022, while employed by Windgap Foundation Limited as a support worker in the disability sector, Ms Sonia Della Grazia sustained an inversion injury to her right ankle while stepping out of a work van causing her to fall to the ground. She reported being unable to feel her right foot immediately upon attempting to stand and subsequently called for assistance from a colleague. She was transported by ambulance to Prince of Wales Hospital where radiological investigations confirmed a displaced intra-articular fracture of the right tibia and fibula.

Due to substantial soft tissue swelling, surgical intervention was delayed. On 10 May 2022, Dr Kamra proceeded to perform Open Reduction and Internal Fixation of the right ankle. She was later discharged with her right ankle supported in a plaster of paris cast and crutches. However, she was unable to return to her first-floor apartment due to difficulty negotiating two flights of stairs. As a result, she stayed with a friend for a approximately eight months.

In around June 2022, Dr Kamra noted abnormal foot discolouration and persistent sweLEIng raising the suspicion of Complex Regional Pain Syndrome (CRPS) Type I. He referred her to Dr Sachin Shetty, a specialist in pain medicine at the Prince of Wales Pain Clinic who confirmed the diagnosis of CRPS and commenced a conservative multidisciplinary pain management program. She was prescribed Lyrica, Allegron, Celebrex and Palexia. She also tried mirror box therapy. Although interventional techniques such as nerve blocks were considered, no injections were performed.

She was referred to Mr Paul Bowles, a podiatrist, due to worsening foot pain. Further imaging identified a stress fracture of the third metatarsal. She was fitted with custom made orthotic supports.

She later progressed to a graded therapeutic exercise program, aquarobics at Des Renford Pool, and one-on-one mat-based pilates exercises. She was referred to psychiatrist Dr George Jacobs, who diagnosed Post-Traumatic Stress Disorder (PTSD)."

1. After setting out details of the respondent's current treatment, the Medical Assessor noted current symptoms as follows:

"Ms Grazia continues to experience constant discomfort in her right ankle and foot. She describes the pain as stabbing and sharp, particularly when initiating movement or engaging in certain activities. At other times, the discomfort presents as a deep aching tightness associated with stiffness, especially after periods of immobility. At the present time, she rated the discomfort as 8 /10 on the pain scale. Her symptoms are worse after standing or walking for more than 10 minutes. In addition, she experiences frequent cramping in the right foot and loss of toe flexion control, stating that she is no longer able to scrunch or curl her toes. This is associated with involuntary muscular contractions and stiffness in the forefoot and toes. Her foot is constantly swollen, and the skin appears dusky or redder, particularly on hot days. There is a perceptible temperature difference compared to the unaffected limb, with the injured foot feeling noticeably warmer. She also notes trophic changes, including reduced hair growth and slowed nail growth."

1. The Medical Assessor then turned to consider the impact of Mr Khan's injury on his social activities and activities of daily living (ADL's) and said:

"Her fiancé has assumed responsibility for most of the household duties. Ms Della Grazia is able to perform only short periods of light activity, such as washing dishes, before needing to rest due to pain and stiffness."

1. Findings on examination were reported as follows:

"Ms Sonia Della Grazia appeared well and in no apparent physical distress. She sat comfortably throughout the interview. She ambulated with a limp but did not require any walking aids or external support. She wore comfortable footwear with orthotic inserts. At the commencement of the examination, she was advised not to perform any manoeuvres beyond her tolerance to avoid exacerbation of her condition or risk of further injury. Her height was recorded at 156 cm and her weight at 85 kg.

Inspection of the right ankle revealed an 11 cm surgical scar over the lateral aspect, consistent with previous open reduction and internal fixation. The scar demonstrated mild pigmentation and slight thickening, as shown in the accompanying photograph. There was generalised swelling of her ankle and her skin was taut and shiny. There were no visible suture marks and no adherence to underlying structures. She expressed concern regarding its appearance.

On palpation, she reported tenderness, with notable hyperalgesia and dysaesthesia over the operative site. However there were no overt colour change in the surrounding skin, no discernible temperature differential and no change in perspiration.

There was mild soft tissue swelling of the right lower leg, measuring approximately 0.5 cm greater in circumference than the contralateral side at the most distal measurable point. Muscle atrophy of the right calf was approximately 1.5 cm less in circumference compared to the left.

Assessment of range of motion in the ankle revealed reduced dorsiflexion to -20 degrees, while plantarflexion was preserved at 35 degrees. I note that this was inconsistent with other medical examiners and could reflect pain, weakness or lack of effort. Inversion was limited to 20 degrees, and eversion was absent at 0 degrees.

There was normal active movement of the right big toe, but movement of the lesser toes was significantly reduced. Due to hyperalgesia, clinical tests for ligamentous instability could not be performed."

1. The Medical Assessor then set out details of the various investigations he had before him.
2. He then summarised the injuries and diagnoses as follows:

"Ms Grazia sustained a complex trimalleolar fracture of the right ankle on 6 May 2022 in a workplace incident, requiring open reduction and internal fixation. Following surgery, she developed persistent pain, swelling, stiffness, and sensory disturbances. She was subsequently diagnosed with Complex Regional Pain Syndrome (CRPS) Type I. At the time of my assessment, she did not satisfy the objective criteria for CRPS specified in the WorkCover Guidelines."

1. The Medical Assessor assessed 14% WPI in respect of the right lower extremity and 1% for scarring.
2. He then turned to consider the other medical opinions and material before him and said:

Prof. Boesel concluded that the injury and subsequent development of Complex Regional Pain Syndrome (CRPS) were directly related to the workplace incident on 6 May 2022. On physical examination, he documented significant right ankle swelling, allodynia, reduced range of motion, skin discolouration, temperature asymmetry, oedema, and motor deficits, including inability to curl the toes.

He assessed the following impairments: 20% lower limb impairment for a displaced intra-articular fracture of the ankle (AMA5, Table 17-33) 32% lower limb impairment due to CRPS (comprising 30% sensory and 2% range of motion) 1% whole person impairment (WPI) for scarring under the TEMSKI scale Combined total WPI: 19%.

Comment: According to AMA5 Table 17-33, a 20% LEI is typically assigned for "Displaced intra-articular fracture involving the subtalar, talonavicular, or calcaneocuboid joints" when there is evidence of significant joint displacement. These joints are located in the hindfoot and midfoot, whereas Ms Della Grazia's fracture was limited to the ankle joint.

Dr. Reiter agreed that the right ankle fractures and subsequent CRPS were causally related to the work injury. She supported this conclusion with documentation of immediate post-injury symptoms, a delay in surgery due to swelling, and early suspicion of CRPS by the treating orthopaedic surgeon. On examination, she observed mild restriction in ankle and subtalar joint movement, as well as reduced mobility of the lesser toes. Consistent with findings in the current assessment, she noted normal skin colour, temperature and perspiration. However, she did not observe swelling which is evident in the attached photograph.

Dr. Reiter concluded that Ms Della Grazia did not meet the diagnostic threshold for CRPS under the WorkCover Guidelines, but did satisfy the Budapest criteria. She opined that the only ratable impairment in Prof Boesel's assessment was that of the displaced intra-articular ankle fracture, assigning 8% WPI based on Table 17-33 (AMA5, Chapter 17, p. 547).

Dr. Reiter, follow-up report dated 21 August 2024

This follow-up confirmed the same mechanism of injury and diagnostic conclusions as her earlier report. She acknowledged impairment related to restricted range of motion in the right ankle but did not quantify a Whole Person Impairment (WPI) rating.

On 2 October 2023, Dr Ashra Kamra documented that Ms Sonia Della Grazia demonstrated ankle dorsiflexion of approximately 5 degrees and plantarflexion of 30 degrees. These values indicate a measurable but limited range of motion, consistent with postoperative stiffness and sequelae of a complex trimalleolar fracture.

In contrast, on 22 September 2023, Dr Sachin Shetty, pain specialist, observed significantly restricted mobility of the right ankle and foot, with noted pain-limited effort during the assessment. He recorded: Minimal active dorsiflexion, stating the foot was just able to reach plantigrade position. Plantarflexion restricted to approximately 15 degrees, notably reduced from expected norms. Inversion and eversion each limited to around 10 degrees."

(a) it is accepted that the Medical Assessor's finding that worker does not satisfy the objective criteria for CRPS specified in the Guidelines is correct;

(b) the Medical Assessor chose to use the range of motion (ROM) methodology in order to arrive at his overall WPI assessment with respect to the alleged right ankle injury. This is permissible under Chapter 3 of the Guidelines, having regard to the nature of the alleged injury. It is, however, important to note, in this context, that it is specifically observed in paragraph 3.17 of the Guidelines that: "When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities";

(c) it is unclear as to whether the Medical Assessor undertook an examination of the uninjured left ankle in this matter in order to provide a baseline comparison in terms of his findings with respect to the injured right ankle. If he did so, it is not documented in the MAC, and the MAC does not attach a copy of the Medical Assessor's worksheet;

(d) Dr Assem then went on to record his findings in terms of the ROM assessment methodology and with reference to Tables 17-11 to 17-14 inclusive as set out in AMA 5. Those findings, which appear on page 6 of the MAC, are as follows (with "LEI" being a reference to Lower Extremity Impairment): Range of motion (based on Table 17-11 to 17-14): • Dorsiflexion of 20° = 30% LEI • Plantarflexion of 35° = 0% LEI • Inversion of 20° = 2% LEI • Eversion of 0° = 2% LEI • All lesser toes = 5% LEI;

(e) the Medical Assessor goes on to find a total ROM impairment, after applying the Combined Values Chart, of 36% LEI, which, the Medical Assessor goes on to note, converts to "14% WPI";

(f) there is no dispute concerning the Medical Assessor's findings in terms of "Inversion" and "Eversion", which are relevant to Table 17-12 on page 537 of AMA 5 - assuming of course that those findings still apply after the "baseline" comparison is made with findings in connection with the uninjured ankle, as outlined in paragraphs 3.3 to 3.6 above. The Medical Assessor's findings in relation to Inversion and Eversion equate to no more than 2% WPI;

(g) similarly, there is no dispute concerning the Medical Assessor's findings in "Plantarflexion", which is relevant to Table 17-11 on page 537 of AMA 5 - assuming of course that those findings still apply after the "baseline" comparison is made with findings in connection with the uninjured ankle, as outlined in paragraphs 3.3 to 3.6 above;

(h) in any event, it is noted that the "plantarflexion" finding by the Medical Assessor equates to 0% LEI;

(i) it is submitted, however, that the Medical Assessor's examination finding with respect to "Dorsiflexion" represents an application of incorrect criteria, and a demonstrable error, in that there is no reference to "Dorsiflexion" either in Table 17-11 or in any of the other relevant tables referred to by the Medical Assessor (Tables 17-11 to 17-14);

(j) it is submitted that, by medical definition, Dorsiflexion at the ankle joint is an "Extension" movement. When the ankle joint moves, the foot is brought upwards, towards the shin, which is therefore an extension of the foot;

(k) on that basis, if the Medical Assessor has medically found 20° in terms of "Extension", then under Table 17- 11, this can result in no more than 7% LEI (and 3% WPI); and certainly not "30% LEI" as is set out in the MAC;

(l) it is possible, although by no means clear, that the Medical Assessor intended his examination finding with respect to "Dorsiflexion" to apply to "Flexion Contracture" in Table 17-11. If that is the case, then there are a number of issues which flow from this. Firstly, it is arguable that this is medically incorrect, if we are correct in submitting that Dorsiflexion is an extension movement, and it is not the same as Flexion Contracture. Secondly, the Medical Assessor has not provided a worksheet or any other reasons as to why his finding with respect to "Dorsiflexion" should apply to "Flexion Contracture" in Table 17-11. And thirdly, the Guidelines do not appear to make any allowance for a discretionary departure from what is required by Table 17-11;

(m) it is respectfully also submitted that the Medical Assessor was also incorrect in finding 5% LEI in relation to all "Lesser toes". Under table 17-14 of AMA 5, which deals with "Toe Impairments", the maximum LEI which can be applied for the "Lesser toes" is 2% (and 1% WPI);

(n) furthermore, the footnote to table 17-14 in AMA 5, regarding the lesser toes, also states that: "The maximum whole person impairment percent for impairment of two or more lesser toes of one foot is 2%";

(o) the appointed Medical Assessor has not provided sufficient reasoning in terms of his assessment of lesser toe impairment;

(p) in any event, as has been observed, the maximum finding which the Medical Assessor could have made in relation to "all lesser toes", with reference to table 17-14 of AMA 5 would be 2% LEI (and not 5% LEI as is stated in the MAC), and

(q) it is accepted that the MA's findings of 2% LEI for inversion and 2% LEI eversion are correct; and if the MA were to then apply the available 2% LEI for the "Lesser toes" this would then result in a total 6% LEI assessment, which converts to no more than 3% WPI. It is also accepted that the finding of 1% WPI in terms of TEMSKI scarring is correct. This would accordingly result in an overall assessment of 4% WPI.

(a) in this case the respondent suffered a complex Tri malleolar fracture of the right ankle which has been complicated by the development of complex regional pain syndrome. The treatment has been limited to the right ankle. There is no history of any problem in the left ankle that affects the range of movement;

(b) the respondent worker's claim relied upon the report of Dr Boesel. The doctor assessed on the basis of range of movement, the intra articular fracture and sensory loss due to CRPS. There was no reduction because of any restriction in the range of movement in the contralateral foot and ankle;

(c) the Appellant relied upon the opinion of Dr Reiter. Dr Reiter also did not make any reduction because of any restriction in the left ankle. Furthermore, Dr Reiter conducted an examination of the left ankle and foot. Her findings equate to a normal range of movement in the left foot and ankle;

(d) when the opinions are considered it is clear that it was common ground that there was no reduction to be made for any restriction of movement in the left foot and ankle. As such there was no dispute that there was no restriction in the left foot and ankle and any reduction for the contralateral extremity did not form part of the medical dispute;

(e) in the circumstances the Medical Assessor was not obliged to specifically consider whether there should be any reduction;

(f) even if there was such an error the error was not material. As explained, there was no evidence of a reduction in the range of movement in the left ankle. The only actual measurement of the range of movement was that made by Dr Reiter which found a normal range of movement. The only conclusion available to the Assessor was that there was no basis for any reduction;

(g) if, contrary to these submissions, it is found that there was a material error the Respondent should be re-examined by a member of the Appeal Panel. If it is found that there is a reduction in the movement of the left foot and ankle it does not automatically follow that there would be a reduction. Consideration will be needed whether the restriction was a consequence of the right ankle injury. The evidence shows that the Respondent has been limping as a consequence of the significant disability in the right foot and ankle. This would have thrown a disproportionate loading onto the left ankle with the consequence that any current restriction would have resulted from the accepted compensable injury;

(h) the appellant has confused whole person impairment with lower extremity impairment;

(i) the Medical Assessor found 5% LEI. This equates to 2% WPI in accordance with Table 17-14 and Table 17-3.

(j) the assessment made by the Medical Assessor is in accordance with the guides and does not offend the note to Table 17-14, and

(k) the Medical Assessor found a loss of range of movement in all of the lessor toes. A finding of mild impairment in each toe would result in a total LEI of 8% however this is capped at 5% pursuant to the note. As there had been a finding of restriction in all of the lessor toes there is no requirement to provide the specific measurements as the result must be 5% LEI as found by the Medical Assessor.

1. The Panel agreed in principle with the submissions made by the appellant such that we concluded that a re-examination of the respondent was appropriate.
2. As stated earlier, Medical Assessor re-examined the respondent on 23 September 2025 and reported to us as follows:

"1. The workers medical history, where it differs from previous records.

I have reviewed the medical history as recorded by Dr Assem in his medical assessment for the Personal Injury Commission and there is no change in the substance of the matter as recorded.

Ms Della Grazia Sonia does confirm the medication that she has been taking in recent times and that is 25mg of Lyrica twice a day, Allegron 25mg at night, and also occasional Celebrex 100mg tablets, as well as Panadol Osteo. In the past she had taken Panadeine Forte, but does not require that now.

The description of her symptoms is the same as that reported by Dr Assem, with a sharp stabbing pain, particularly when initiating movement, and at other times a dull aching pain, tightness and stiffness. She rated the discomfort at about 8/10 on a visual analogue scale, where 10 is the most severe pain imaginable.

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

She rises from the chair slowly and walks with a right-sided limp and this is a flat-footed gait pattern. When standing however, her ankle is at the neutral position of 90° in relation to the long axis of the tibia.

The right calf is smaller than the left by approximately 1.5cm. There is generalised swelling around the ankle, which is approximately 1cm greater in circumference than the left, and there is some generalised soft tissue swelling in the lower limb.

There is no temperature differential between the right and left leg today. There is no objective sign of trophic changes, although she does complain of some localised hair loss over the medial aspect of the calf and some brittle nail changes. These are not evident on clinical assessment.

She clearly does have a form of neuropathic pain, but incomplete signs to make the justification of the diagnosis of CRPS in accordance with the Budapest protocol in Table 17-1 on page 81 of the WorkCover Guidelines.

Active right ankle Extension 0° (7% LEI), active left ankle Extension 15° (0% LEI). Active right ankle plantarflexion 30° (0% LEI), active left ankle plantarflexion 30° (0% LEI)

There is no flexion contracture on either side (0% LEI bilaterally)

Active right subtalar (hindfoot) inversion 20° (2% LEI), active left subtalar inversion 30° (0% LEI)

Active right subtalar (hindfoot) eversion 10° (2% LEI), active left subtalar eversion 20° (0% LEI)

There is a very restricted range of movement of the small toes of the right foot, with no more than 10° observed during the examination section and compared with left small toes extension being within normal limits.

There is weakness of resisted ankle movement in all directions, but no objective sign of neurological abnormality in the lower limbs.

4. Results of any additional investigations since the original Medical Assessment Certificate

The claimant has rateable restriction of ankle movement. I have observed the range of motion in the uninjured left side and recorded that in the table above. The range of motion attracts a 7% Lower Extremity Impairment for the ankle and a 4% Lower Extremity Impairment for the subtalar joint.

The footnote to Table 17-14 on page 537 indicates that in regards to the lesser toes, the maximum Whole Person Impairment percent for impairment of two more lesser toes for one foot is 2% (WPI).

The 7% Lower Extremity Impairment combined with the 4% Lower Extremity Impairment for the ankle and subtalar joint, gives an 11% Lower Extremity Impairment, which converts to a 4% Whole Person Impairment using Table 17-3 on page 527.

That is then combined with the 2% Whole Person Impairment for the lesser toes, to give a 6% Whole Person Impairment overall.

Dr Assem has given a 1% Whole Person Impairment for scarring under the TEMSKI scale and I agree with that on the basis of the clinical findings in the scar seen here today.

This gives a total of a 7% Whole Person Impairment in this case."

1. The Panel agrees with the assessment of Dr Bodel given his thorough re-examination of the respondent, the other medical evidence and the submissions of both parties regarding all of the evidence.
2. For these reasons, the Appeal Panel has determined that the MAC issued on

29 May 2025 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 Dr Mohammed Assem, and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Chapter, page and paragraph number in WorkCover Guides

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)