Advanced Recruitment Pty Ltd v Issawi

DETERMINATION OF APPEAL PANEL
CITATION:	Advanced Recruitment Pty Ltd v Issawi [2025] NSWPICMP 529
APPELLANT:	Advanced Recruitment Pty Ltd
RESPONDENT:	Nour Issawi
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	18 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); respondent suffered an injury to his lumbar spine, cervical spine and ribs and claimed compensation for permanent impairment relying on a report from an IME who assessed he had permanent impairment of the cervical spine and lumbar spine; referral listed the body parts referred for assessment as lumbar spine and cervical spine; Medical Assessor (MA) assessed the respondent had a permanent impairment of those body parts and also assessed the respondent had a permanent impairment of the left upper extremity because he found the respondent had hypoesthesia in the distribution of the supraclavicular nerve which arises from the C3 and C4 nerve roots; whether the MA erred and made his assessment based on incorrect criteria by including in his assessment a rating of impairment of the respondent’s left upper extremity; Appeal Panel held MA did so, because neither injury to nor impairment of the supraclavicular nerve was part of the medical dispute referred for assessment; Held – MAC revoked .

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 May 2025 Advanced Recruitment Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 April 2025.
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.
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.
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.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Nour Issawi, the respondent, was employed as a dogman by the appellant. On 7 February 2022 he was working at a site in Frenchs Forest assisting a crane operator to instal columns. He stood on a plywood platform which gave way causing him to fall through the plywood and collide with timber beams that had been supporting the plywood. He suffered an injury to his neck, ribcage and lower back.
At the request of his solicitors, he was examined on 11 January 2023 and again on
14 November 2024 by orthopaedic surgeon Dr James Bodel. Dr Bodel issued reports to the respondent’s solicitors on the days he examined the respondent. In both reports Dr Bodel advised he assessed the degree of the respondent’s permanent impairment from his injury is 12% whole person impairment (WPI) that being a combination of 7% WPI relating to the respondent’s lumbar spine and 5% WPI relating to the respondent’s cervical spine.
On 24 June 2024 the respondent’s solicitors wrote to the appellant’s insurer advising it that the respondent claimed compensation from the appellant under s 66 of the Workers CompensationAct 1987 (the 1987 Act) for a permanent impairment of 12% WPI resulting from his injury. The respondent’s solicitors provided several documents to support the respondent’s claim, including a copy of Dr Bodel’s report dated 11 January 2023.
On 9 October 2024 the insurer wrote to the respondent notifying him pursuant to s 78 of the 1998 Act that it disputed he was eligible for compensation for permanent impairment from his injury. It advised him that was on the basis of a report it obtained from orthopaedic surgeon Dr Roger Rowe dated 26 August 2024 who had examined the respondent on
10 October 2023 and again on 19 August 2024. In his report of 26 August 2024, Dr Rowe advised the insurer he assessed the degree of the respondent’s permanent impairment from his injury is 10% WPI. That did not exceed the threshold imposed by s 66(1) of the 1987 Act for the respondent to be entitled to compensation for permanent impairment, and hence the insurer’s decision to dispute the respondent’s claim.
Thereupon, the respondent initiated proceedings in the Personal Injury Commission (Commission) seeking the Commission determine his claim for compensation. Before that could occur the medical dispute between the parties relating to the degree of the respondent’s permanent impairment was required to be resolved and hence a referral was issued to the Medical Assessor on 28 February 2025. The body parts that were listed in that referral for the Medical Assessor to assess were “lumbar spine cervical spine”.
The Medical Assessor examined the respondent on 31 March 2025 to conduct that assessment and as said issued the MAC on 8 April 2025. In the MAC he recorded making the following findings from his examination of the respondent:
“Mr Issawi is an adult male in no obvious discomfort who undresses and dresses without a problem, walks without an obvious limp and is able to walk on heels and toes. He gets his fingertips halfway down his shins in flexion and lateral flexion to the left is slightly more restricted than to the right.
Straight leg raising is present to 80° bilaterally, reflexes are present and equal, sensation is intact and motor power was good in all groups tested.
The circumference of his left thigh and calf are both 1cm less than the right side, with the thighs being measured at 10cm above his kneecaps.
He complains of discomfort throughout the lumbar region with the main discomfort being at the lumbosacral level.
Mr Issawi shows restriction of cervical movement with lateral rotation to the right being more restricted than to the left, and also slight restriction of flexion and extension movements.
He does have a full range of shoulder movements and also a full range of movements of all the joints of his upper limbs. Reflexes are present and equal, and good grip strength was present bilaterally, and there was no wasting to circumferential measurement.
Importantly, Mr Issawi has hypoaesthesia to pinprick over his shoulder cowl extending from the base of his neck laterally over the acromion, and anteriorly and posteriorly to the anterior and posterior axial lines on his chest wall. This sensory loss is distinct and present with repeated testing, and in the distribution of the supraclavicular nerve.”
The Medical Assessor provided the following summary of the respondent’s injury and his diagnosis of it:
“Mr Issawi sustained a number of injuries at the time of his fall on 7 February 2022 being a soft tissue injury to his cervical and lumbar regions, with ongoing discomfort as well as showing asymmetric loss of range of movement of both the cervical and lumbar regions, as well as having non-verifiable radicular complaints. He also had fractured ribs on the right side which have not healed.
In addition, as noted, Mr Issawi has evidence of damage to the supraclavicular nerve on the left side. Please note that AMA Guides and the WorkCover Guides do not suggest figures of impairment for this nerve, and therefore an equivalent or analogous condition needs to be used. The most appropriate suggestion would be the sensory involvement of the axillary nerve which gives a maximum of 5% upper extremity impairment.
In my opinion Mr Issawi falls into Grade 3 with 50% sensory deficit, giving a total of 2.5% which rounds to 3% upper extremity impairment, which in turn equates with 2% WPI.” (footnotes omitted)
In parts 10a and 10b of the MAC the Medical Assessor explained that he assessed the degree of the respondent’s permanent impairment relating to his cervical spine by reference to DRE Category II, the base rating for which is 5% WPI, and that he assessed the respondent’s permanent impairment relating to his lumbar spine by reference to the criteria of DRE Category II, the base rate for which also being 5% WPI. The Medical Assessor explained that he added 2% WPI to the base assessment for the lumbar spine on account of the interference the respondent experienced with his activities of daily living, bringing the permanent impairment relating to his lumbar spine to 7% WPI.
The Medical Assessor again stated his view that the respondent is entitled to 3% upper extremity impairment for the sensory impairment the respondent has with respect to his supraclavicular nerve on the left side. He said “normally this is expressed in terms of left upper extremity impairment, but please note that the supraclavicular nerve arises in the side of the neck, and is more appropriately therefore related to his neck injury”. The Medical Assessor made that rating by reference to the criteria of Table 16-15 of AMA 5, with the Medical Assessor reasoning that paragraph 1.23 of the Guidelines allowed him to include that rating in his assessment of the respondent’s permanent impairment from his injury.
The Medical Assessor also included the following footnote in the table in the MAC to clarify that he had combined 2% WPI he assessed the respondent had with respect to his left upper extremity with the other impairments he assessed the respondent had relating to his cervical spine and lumbar spine:
“As noted in all fairness, although the left upper extremity impairment was not requested, AMA 5 does suggest that this particular nerve lesion is normally assessed
under the upper extremity. As noted however, the nerve arises in the cervical spine,
and therefore, it is certainly appropriate in my opinion to include it in the cervical spine, and please note that it is in addition to his 5% WPI for the DRE Category II.”
The combination of the 5% WPI the Medical Assessor assessed the respondent had relating to his cervical spine, the 7% WPI he assessed the respondent had with respect to his lumbar spine and the 2% WPI he assessed the respondent had with respect to his left upper extremity came to 14% WPI, and that is what the Medical Assessor certified he assessed the respondent to have resulting from his injury.

PRELIMINARY REVIEW

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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to deal with the appeal.

EVIDENCE

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the body parts referred to the Medical Assessor to assess was limited to the lumbar spine and cervical spine. The appellant submitted that the Medical Assessor erred by assessing the respondent’s impairment of a body part that was not part of the referral. The appellant submitted that the Medical Assessor based his assessment on incorrect criteria by virtue of the Medical Assessor assessing the respondent had an impairment based on the criteria of chapter 16 of AMA 5.
The appellant noted that the Medical Assessor referred to paragraph 1.23 of the Guidelines to support his assessment that the respondent had a permanent impairment of his left upper extremity. The appellant submitted that that paragraph of the Guidelines did not allow the Medical Assessor to assess the respondent had impairment relating to his left upper extremity because the paragraph did not permit the Medical Assessor to consider an analogous condition outside of a body part that was referred for assessment. That is, because the Medical Assessor was referred the respondent’s cervical spine, the Medical Assessor when assessing the respondent’s impairment relating to his cervical spine could not consider a condition outside of the cervical spine.
In reply, the respondent submitted that the Medical Assessor assessed only the cervical spine by rating his supraclavicular nerve. The respondent submitted that any restriction in his shoulders and arms that flow from a condition in his cervical spine are properly included in the assessment of his cervical spine. The respondent submitted that the Medical Assessor’s engagement of paragraph 1.23 of the Guidelines was permissible.

FINDINGS AND REASONS

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.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The Medical Assessor was required to assess the medical dispute that arose between the parties.[1] It was that medical dispute that was to be resolved by the medical assessment the Medical Assessor undertook.
[1] Skates v Hills Industries Ltd [2021] NSWCA 142 at [47], [76] and [82].
The identification of the medical dispute is done by reference to the documentation the parties lodged with the Commission.[2]
[2] Skates at [29]-[30], [44] and [46]-[48]; Middleton v Hyett t/as Phoenix Rising Café [2024] NSWSC1201 at [58]; Oswell v Sublime Install Pty Ltd [2024] NSWSC 1586 at [8]-[9].
The documents the parties lodged with the Commission included the letter by which the respondent made his claim against the insurer for compensation for permanent impairment, the report of Dr Bodel dated 11 January 2023 attached to that, the report of Dr Bodel dated 14 November 2024, the correspondence from the insurer to the respondent disputing his claim for compensation, and the report of Dr Rowe dated 29 August 2024 upon which it relied to supports its position. Further, the documents also included numerous reports from clinicians who had treated the respondent, the reports on radiological investigations the respondent had undergone, the clinical records of institutions at which he had sought treatment, and the clinical records of Dr Darwish, an orthopaedic surgeon from whom he had received treatment. None of that material identified that the respondent had sustained an injury to his supraclavicular nerve on the left side or had sought treatment for that.
The report of Dr Bodel dated 11 January 2023 on which the respondent relied to support his claim for compensation did not identify an injury to the respondent’s supraclavicular nerve. Dr Bodel in both that report and his subsequent report identified injuries only to the respondent’s neck, ribcage and lower back, which injuries Dr Bodel assessed had resulted in an impairment of his cervical spine and lumbar spine.
Similarly, the report of Dr Rowe on which the appellant relied to oppose the respondent’s claim did not identify any injury to the respondent’s supraclavicular nerve. The impairment that Dr Rowe assessed the respondent had from his injury did not involve any impairment of that nerve and was limited to impairment the respondent had relating to his cervical spine and lumbar spine.
The medical dispute that arose between the parties that the Medical Assessor was consequently required to assess was, in substance, limited to the degree of permanent impairment the respondent had relating to the injuries to his cervical spine and lumbar spine. Chapter 4 of the Guidelines regulates the manner in which a Medical Assessor must assess the permanent impairment of a worker’s spine. Paragraph 4.1 of the Guidelines requires a Medical Assessor to evaluate the impairment of the spine using diagnoses-related estimates (DREs). With respect to the lumbar spine that is done by reference to the instructions in s15.4 of AMA5, which is substance requires a Medical Assessor to correlate a worker’s signs and symptoms with the criteria of one the DRE Lumbar categories in Table 15-3. With respect to the cervical spine the assessment is done in accordance with s 15.6 of AMA5 which again requires a Medical Assessor to correlate the signs exhibited and the symptoms of a worker with the criteria of one of the categories in Table 15-5 of AMA5.
The Guidelines do not permit a Medical Assessor to rate an impairment of a worker’s cervical spine by reference to chapter 2 of the Guidelines or chapter 16 of AMA5. That is what the Medical Assessor did here, and by so doing he erred with respect to his assessment and also based his assessment on incorrect criteria. Contrary to what the Medical Assessor reasoned, paragraph 1.23 of the Guidelines had no application in this matter. That paragraph reads as follows:
“AMA5 (p 11) states: ‘Given the range, evolution and discovery of new medical conditions, these Guidelines cannot provide an impairment rating for all impairments… In situations where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.’ The assessor must stay within the body part/region when using analogy.
‘The assessor’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guidelines criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment.’ “
The Guidelines do provide a method by which a rating of impairment can be made for damage of the supraclavicular nerve, and that is by reference to the criteria of chapter 2 of the Guidelines, and specifically paragraph 2.9 of the Guidelines. The situation here is that rather than the Guidelines being silent on how to rate any impairment the respondent may have due to damage to his supraclavicular nerve, the medical dispute between him and the appellant did not extend to whether he had damaged the nerve or whether he had any impairment relating to that nerve. The documents that were exchanged between the parties did not identify that as being an issue and hence it was not the subject of the medical dispute between the parties.
Further, and contrary to what the Medical Assessor concluded, the supraclavicular nerve is not part of the cervical spine.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 April 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W1322/25
Applicant:	Nour Issawi
Respondent:	Advanced Recruitment Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Roger Pillemer and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Cervical spine	7/02/2022	Chapter 4	Table 15-5	5%	-	5%
Lumbar spine	7/02/2022	Chapter 4	Table 15-3	7%	-	7%
Total % WPI (the Combined Table values of all sub-totals)					12%

[2025] NSWPICMP 529

18 July 2025