1. On 28 November 2024 Esther Yeboah, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on

1 November 2024. 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 (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, whilst working for Australian Foundation for Disability, the respondent, fell down an escalator on 11 October 2019 twisting and injuring her left knee. Because of that left knee injury, she subsequently developed a condition in her right knee.
2. On 22 September 2023 the appellant's solicitors wrote to the respondent's insurer advising it that the appellant claimed compensation from it under s 66 of the Workers' Compensation Act 1987 (the 1987 Act) for permanent impairment she had from her injury, which the appellant's solicitors advised in their correspondence was of the order of 17% whole person impairment (WPI). They attached to their correspondence reports of orthopaedic surgeon Dr Vijay Maniam dated 26 May 2023 and 21 October 2022 and advised that the appellant's claim was based on the content of Dr Maniam's reports.
3. In his earliest report Dr Maniam advised that he assessed the appellant's degree of permanent impairment from her injury was 15% WPI, which consisted of an impairment the appellant had relating to her left lower extremity and scarring from surgery she had to her left knee.
4. The surgery the appellant had was an ACL reconstruction of her left knee. Dr Maniam provided a description of the appellant's scar from the surgery and reported he assessed the appellant had 2% WPI relating to the scar based the TEMSKI scale, which is a reference to Table 14.1 of the Guidelines.
5. Dr Maniam in his subsequent report, which followed his further examination of the appellant on 25 May 2023, recorded the appellant was experiencing symptoms of pain in her right knee. He advised he assessed the appellant had 2% WPI relating to her right knee.
6. The respondent's solicitors arranged for the appellant to be examined by orthopaedic surgeon Dr Anil Nair on 31 January 2024. In a report of 8 February 2024, Dr Nair advised that he assessed the appellant did not have any permanent impairment relating to her right knee and had a permanent impairment, equivalent of 7% WPI, relating to her left knee.
7. On 28 March 2024 the respondent's insurer notified the appellant pursuant to s 78 of the 1998 Act that it disputed she was entitled to compensation for permanent impairment from her injury. It advised her this was because her degree of permanent impairment did not exceed the threshold imposed by s 66(1) of the 1987 Act for her to be entitled to compensation for permanent impairment. That threshold is "more than 10% permanent impairment". It indicated to her that it had accepted the opinion of Dr Nair to dispute her entitlement and provided her with a copy of Dr Nair's report.
8. The appellant thereafter commenced proceedings in the Personal Injury Commission (Commission) by lodging with the Commission an Application to Resolve a Dispute (ARD), by which sought the Commission determine her claim for compensation for permanent impairment from her injury. Following the respondent filing a reply to the ARD a delegate of the President referred various medical disputes regarding appellant's claim to the Medical Assessor to assess. The referral to the Medical Assessor specified the body parts to be assessed were the left lower extremity and the right lower extremity. No reference was made in the referral to scarring.
9. The Medical Assessor examined the appellant on 21 October 2024 for the purpose of assessing those medical disputes. As said, he issued the MAC on 1 November 2024. He certified he assessed the degree of the appellant's permanent impairment from her injury is 7% WPI, comprising 2% WPI relating to her right lower extremity and 5% WPI relating to her left lower extremity. The appellant does not raise any issue in her appeal against the MAC regarding the Medical Assessor's assessment of the degree of her permanent impairment relating to her left knee or right knee.
10. The appellant's complaint about the MAC is that the Medical Assessor did not carry out an assessment of her impairment due to the scarring from the surgery she had on her left knee.
11. The Medical Assessor in his clinical examination of the appellant had examined her scar and recorded that around her left knee the appellant had four scars, one being 6cm in length, one being 4cm in length and two being 1cm in length. He also noted that she had a 3cm well healed non-adherent post-traumatic scar on the top of her right patellae from an injury she had as a child.

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 appellant should undergo a further medical examination. This is because, for reasons the Appeal Panel explains below, the MAC contains a demonstrable error, and to correct that error, the Appeal Panel required further clinical data that could only be obtained from a further examination of the appellant. The Appeal Panel appointed one of its members, namely Medical Assessor Gothelf, to conduct that examination. His report to the Appeal Panel is copied under the heading Findings and Reasons below.

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. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. In summary, the appellant submitted that the Medical Assessor erred because he did not assess her impairment from scarring.
3. In reply, the respondent submitted that the appellant did not "plead" an impairment from scarring in the ARD and the body parts of the appellant that were referred to the Medical Assessor to assess were limited to the left lower extremity and the right lower extremity. The respondent, relying on the decision in Skates v Hills Industries Ltd[1] (Skates) submitted that the Medical Assessor was not entitled to go beyond the terms of the referral and assess body parts that were not specifically referred by the Commission.

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.
3. The respondent's reliance on Skates is misplaced and, indeed, Skates is authority for a principle diametric to what the respondent contends.
4. The form of referral by which the Commission refers a medical dispute to a Medical Assessor is essentially "paperwork associated with the administration of the legislation"[2]. It does not define the medical dispute between the parties that a Medical Assessor must assess. That dispute is crystalised by the correspondence that passes between the parties[3], and importantly in this case the documents by which the appellant made her claim and the respondent's response to that, those being the appellant's solicitors letter of 22 September 2023, Dr Maniam's reports of 26 May 2023 and 21 October 2022, the insurer's letter of

28 March 2024 and Dr Nair's report attached to that. 5. The appellant's claim was made by means of her solicitors forwarding their letter of

22 September 2023 to the respondent's insurer. That claim attached the reports of

Dr Maniam dated 26 May 2023 and 21 October 2022. Dr Maniam's report of 21 October 2022 included in his assessment of the appellant's permanent impairment 2% WPI for scarring. That scarring was a consequence of the ACL reconstruction procedure the appellant had on her left knee. There was no controversy that surgery related to her injury and so consequently there is no controversy that the scarring from the surgery was also a consequence of her injury. Hence any impairment she has from scarring is part of the permanent impairment she has from her injury. 6. Dr Nair did not assess any impairment relating to scarring. Hence, the medical dispute between the parties regarding the appellant's degree of permanent impairment from her injury included whether she had any impairment relating to scarring. The Medical Assessor was required to assess that matter. 7. The Medical Assessor's findings recorded in the MAC from his examination of the appellant contained only very brief descriptions of the appellant's scarring, specifically the length of her scars. That is not sufficient for the Appeal Panel to rate the appellant's impairment by reference to the criteria of Table 14.1 of the Guidelines. Consequently, and as noted above, the Appeal Panel needed to examine the appellant's scars so that it could correct the error that the Medical Assessor made by not assessing the appellant's permanent impairment from scarring. As said the Medical Appeal Panel appointed Medical Assessor Gothelf to conduct that examination. His report to the Appeal Panel from the examination is as follows:

Ms Yeboah was accompanied on the phone by Grace Duah, interpreter.

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

Body Parts/systems referred: Left Lower extremity, right lower extremity

After discussion from the appeal, it was decided to assess scarring in relation to the injuries sustained.

She was in the job a couple of weeks and was taking a mute epileptic patient with behavioural abnormalities to a doctor's appointment. He did not have his walker with him. On this occasion he escaped her and it caused her to fall, twisting her left knee and dragging the right knee, while she was on an escalator in a shopping mall. She attended the Emergency Department at Blacktown Hospital on 12 October 2019 and was discharged on 13 October 2019. Shortly after that, she attended her GP who organised an MRI scan of the left knee and diagnosed the tear of the ACL. It was about a month after the index injury that she started to get some pain in the right knee. Her specialist advised surgery, and she had an ACL reconstruction on the left knee utilising hamstring grafts. Postoperatively, she had physiotherapy and was on crutches for several months. She had two injections into her left knee. She returned to work on selected duties for several months and is currently now off work. She saw a psychiatrist a month or so ago.

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

• Left knee ACl with cruciate laxity 3%, Left patellofemoral subluxation 3%, Left knee patellofemoral crepitus 2%, tibial plateau fracture 5%
• Scarring 2%
• Combined to 15% WPI.

• Additional impairment to be added, right knee 2% for patellofemoral crepitus.
• Total whole person impairment is 17% WPI.

8 February 2024, Report Dr Anil Nair, Orthopaedic Surgeon.

• Date of Injury 11 October 2019
• There is no impairment of the right knee condition as there was full range of motion.
• For the left knee 3% for ACL avulsion and 2% for patellofemoral crepitus
• Scarring 2% WPI for keloid scarring
• Total 7% WPI, no deductions for pre-existing conditions.

• Right LE 2% (patellofemoral crepitus)
• Left LE. 5%, 3% for ACL mild laxity, 2% for patellofemoral crepitus by analogy
• Total 7%
• No scarring.

There were scars on both knees from the fall. The left knee had scars from surgery as well.

I noted that Dr Giblin's report stated that the right knee scar was from childhood. However, when asked, Ms Yeboah stated that this right knee scar was from the fall.

There was a 3cm scar on the right knee over the patella, and the left knee had a 3cm scar superior to the patella and a scar medially for the ACL reconstruction over the tibia 7cm longitudinal. There were small portal scars.

The scars were slightly darker than surrounding skin, slightly widened with trophic changes. There were no suture marks, and no contour defects. Ms Yeboah stated she is conscious of the scars, and they were visible with usual clothing. There was no adherence and no interference with ADLs.

Table 14.1 p 74 the Guides is used. Ms Yeboah was conscious of the scars. Some parts of the skin condition colour contrast with the surrounding skin. Ms Yeboah was able to locate the scars. There were trophic changes evidence to touch, no suture marks were visible. The location of the scars is usually visible with usual clothing. There were minor contour defects, there was a negligible effect on any ADLs, no treatment was required for the scars and there was no adherence. I consider that a 1% WPI applies.

I have reviewed the report of Dr Anil Nair dated 8 February 2024 and make the following comments:

• Dr Nair indicated that he applied 2% WPI due to "keloid scarring". There was no description of the scarring in his physical examination findings, and this by itself is not a listed criteria on the TEMSKI scale. There was no further explanation as to why a 2% WPI applied.

I have reviewed the reports of Dr Vijay Maniam dated 21 October 2022, 26 May 2023 and make the following comments:

• Dr Maniam mentioned that the scars were "hypertrophied and hyperpigmented", and raised above the surrounding surface. I appreciated these changes.
• Dr Maniam applied a 2% WPI but did not list the criteria specifically that justified this application.

The right knee showed the scar over the patella. The left knee had scarring shown above. These photos were taken on the day of this assessment.

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

1. The Appeal Panel considers that Medical Assessor Gothelf conducted a thorough examination of the appellant's scar and provided in his report a proper description of it. He included photos of the appellant's knees showing her scar. The Appeal Panel accepts the findings of Medical Assessor Gothelf and also considers that Medical Assessor Gothelf's rating of the appellant's scarring of 1% WPI is accurate for the reasons he provides. The Appeal Panel adopts that.[4]
2. For these reasons, the Appeal Panel has determined that the MAC issued on 1 November 2024 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 Peter Giblin and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

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)

[1] [2021] NSWCA 142

[3] Skates at [44] - [50]; Sakr v Merrylands Christians Pre-school Association Inc [2022] NSWSC768 at [40] - [45]; Oswell v Sublime Install Pty Limited at [9] - [13], [38] - [43]

[4] Coco Cola Euro Pacific Partners API Pty Ltd v Pombinho [2024] NSWCA191 at [88]