Blacktown City Council v Azar

DETERMINATION OF APPEAL PANEL
CITATION:	Blacktown City Council v Azar [2025] NSWPICMP 836
APPELLANT:	Blacktown City Council
RESPONDENT:	Ghanem Azar
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Christopher Oates
MEDICAL ASSESSOR:	Doron Sher
DATE OF DECISION:	29 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); relying only on the ground for appeal provided in section 327(3)(b); the information that the appellant contended was additional relevant information were several reports and films of surveillance of the respondent; Held – this information did not meet the terms of section 327(3)(b); if wrong the information would not result in the Appeal Panel forming a different opinion than that which the Medical Assessor did; application under rule 109 of the Personal Injury Commission Rules the appellant made for the Appeal Panel to receive the information was pointless as the proceedings are panel review proceedings and an Appeal Panel is neither the President nor the Commission; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 August 2025 the Blacktown City Council, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Crocker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 July 2025.
The appellant relies on the ground for appeal listed in s 327(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), being “availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).”
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground for 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

The appellant employs Ghanem Azar as a swimming pool inspector. In the course of his employment on 24 May 2024 the respondent was driving to an aquatic facility to conduct a pool inspection. Whilst stationary in his vehicle he was struck from behind by another vehicle causing him to suffer an injury to his cervical spine, thoracic spine and lumbar spine.
On 5 March 2025 the respondent’s lawyers wrote to the appellant advising it that the respondent claimed compensation for permanent impairment which the respondent contended had resulted from his injury. The respondent’s lawyers enclosed with their correspondence a report from orthopaedic surgeon Associate Professor Brett Courtenay dated 5 February 2025, on which the respondent relied to support his claim, and in which Associate Professor Courtenay advised he had assessed the degree of the respondent’s permanent impairment from his injury is 25% whole person impairment (WPI), that being a combination of 5% WPI relating to the respondent’s cervical spine, 17% WPI relating to the respondent’s thoracic spine and 5% WPI relating to the respondent’s lumbar spine.
To be able to respond to the respondent’s claim, the appellant’s insurer organised for the respondent to be examined by orthopaedic surgeon Dr Mark Ridhalgh on 11 April 2025. In a report dated 14 April 2025, addressed to the appellant’s solicitor, Dr Ridhalgh advised that he assessed the degree of the respondent’s permanent impairment resulting from his injury is 7% WPI, which consisted entirely of a permanent impairment relating to the respondent’s thoracic spine. In other words, Dr Ridhalgh assessed the respondent had 0% WPI relating to both his lumbar spine and cervical spine.
On 6 May 2025 the insurer wrote to the respondent, care of his solicitors, notifying him that it disputed it was liable to pay him compensation for permanent impairment from his injury. It reminded him that it had arranged for him to be examined by Dr Ridhalgh and it advised him that Dr Ridhalgh had assessed the degree of his permanent impairment is 7% WPI, which is under the threshold over which his permanent impairment must exceed for him to be entitled to compensation for permanent impairment. It advised him that it preferred the opinion and reasoning of Dr Ridhalgh to the opinion and assessment that Associate Professor Courtenay had provided.
The respondent then instituted proceedings in the Personal Injury Commission (Commission). On 3 June 2025 a delegate of the President of the Commission issued a referral to the Medical Assessor to assess that medical dispute. The Medical Assessor examined the respondent on 30 June 2025 to conduct his assessment. As said, he issued the MAC on 11 July 2025 in which he certified he assessed the degree of the respondent’s permanent impairment is 21% WPI, being a combination of 17% WPI relating to the respondent’s thoracic spine, 5% WPI relating to the respondent’s lumbar spine and 0% WPI relating to the respondent’s cervical spine.
The Medical Assessor explained in the MAC that he based his assessment on the history he obtained, his findings from his examination of the respondent, and the documentation that the Commission had provided to him with the referral. Within part 10b of the MAC he provided the following explanation for the assessment he made:
“With respect to the region of the cervical spine, Mr Azar currently complains of intermittent discomfort of a more mild type not associated with abnormal clinical findings at the time of the present assessment. As such, a DRE Category I rating is applicable, ie 0%.
With respect to the region of the thoracic spine, it has been indicated that it is my opinion that the clinical and radiological findings are consistent with a left-sided sensory
radiculopathy. On this basis, DRE Category III rating is applicable. Taking into account
negative impacts upon activities of daily living, a 17% whole person impairment has been determined.
In cases where it is considered that a radiculopathy is present, the criteria contained in the NSW Workers’ Compensation Guidelines for the Evaluation of Permanent Impairment (4^th edition) need to be met.
It is considered that the following criteria are satisfied in this case:
• Reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution (major criterion).
• Findings on an imaging study consistent with the clinical signs (minor criterion).
Two or more criteria need to be satisfied with at least one of these being a major criterion (Chapter 4, 4.27, pg 27).
With respect to the region of the lumbar spine, it is considered that non-verifiable radicular complaints are present associated with mild asymmetric limitation with truncal range of motion in the absence of neurological dysfunction/radiculopathy. On this basis, a DRE Category II rating is applicable, ie 5% whole person impairment. In that a weighting for activities of daily living has been ascribed to the region of the thoracic spine, nil similar weighting is appropriate pertaining to this region.
With respect to Mr Azar’s subjective sensory complaints of the left anterior thigh, these
may be as a consequence of a condition of meralgia paraesthetica and not related to the subject incident.”
The findings the Medical Assessor made from his examination of the respondent, to support his assessment, were recorded by him within part 5 of the MAC and were as follows:
“Mr Azar was a cooperative man in nil apparent physical distress while at rest.
He was informed that I would require his full cooperation but that I would cease or modify any manoeuvres that were potentially distressing for him.
His weight was 106kg, lightly clothed, with a height of 178cm in bare feet. According to
Nutrition Australia, the healthy weight range for an Australian of this height is 60-80kg.
There was essentially unrestricted active range of motion with respect to the region of the cervical spine.
Mr Azar did not report tenderness upon palpation pertaining to this region and adjacent areas.
Nil muscular spasm or guarding was evident with palpation overlying the paracervical
musculature.
Girth measurements within the upper limbs were approximately as follows: 39cm (right mid upper arm); 39cm (left mid upper arm); 32cm (maximal right forearm girth); 31cm (maximal left forearm girth).
There was satisfactory symmetric active range of motion with respect to the shoulders,
elbows, wrists and small joints of both hands.
Nil motor or sensory deficits were evident with respect to the upper limbs.
General inspection of the trunk demonstrated mild accentuation of the thoracolumbar curve.
An area of hypoaesthesia was evident with light touch and point pressure sensation to the left lower parathoracic region and in the vicinity overlying the left lower periscapular region.
Tenderness was also reported with palpation to the left infra-mammary region.
There was near normal active truncal range of motion. Some reduction, however, was
apparent with anterior sagittal rotation (forward flexion) such that Mr Azar could just reach to the level of the lower tibial thirds with his fingertips while standing.
Tenderness was reported with palpation to the region overlying the right sacroiliac joint.
Nil muscular spasm or guarding was evident with palpation overlying the parathoracic and lumbar musculature.
Mr Azar exhibited a normal gait when observed walking within the confines of my office.
Active straight leg raising was to approximately 60° bilaterally.
Girth measurements within the lower limbs were approximately as follows: 53.5cm (right thigh); 53cm (left thigh); 42.5cm (right calf); 41.5cm (left calf).
Motor system examination within the lower limbs was non-contributory.
Mr Azar reported subjective hypoaesthesia of the left anterior thigh with light touch and point pressure sensation that also extended more inferiorly.
The Babinski responses were normal with both toes downgoing.”
In the history the Medical Assessor detailed in the MAC he noted that the respondent had reported that he suffers constant pain and numbness in an area adjacent to his thoracic spine on the left side and in the left infra-scapular region, with stronger pain arising to the left infra-mammary region. The Medical Assessor noted that the respondent described feeling pins and needles in his back region and experienced frequent pain in his right lower lumbar region that might persist for days. The Medical Assessor noted the respondent reported that the pain he experiences can extend to his right buttock and to the right lateral thigh. The Medical Assessor noted that the respondent reported he has occasional discomfort in the region of the third and fourth toes on his right foot and that he has been conscious of a numb feeling in his left anterior thigh which may extend inferiorly.
The Medical Assessor recorded that the respondent reported that he has some sleep disruption due to pain and negative psychological impacts. The Medical Assessor recorded that the respondent reported that he needs to vary his seated and standing postures but had no difficulty with usual walking and was able to negotiate stairs. The Medical Assessor recorded that the respondent’s wife attends to the household chores but the respondent mows his lawn, which he does in stages over approximately four days. The Medical Assessor recorded that the respondent avoids extended driving. The Medical Assessor recorded that the respondent is independent in relation to his personal care.

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 Appeal Panel came to the view that the appellant had not established the ground for appeal on which it relied, and consequently the Appeal Panel had no reason or power to examine the respondent.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

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.
The appellant’s submissions were to the effect that additional relevant information had become available that was inconsistent with both the respondent’s presentation at the examination the Medical Assessor conducted and his reports of symptoms to the Medical Assessor. The appellant submitted that the additional information “demonstrates that many of the assumptions made by the [Medical Assessor] are incorrect.”
The Appeal Panel notes that the information that the appellant contends is additional relevant information consists of reports that Sten Jensen of Lee Kelly & Associates Pty Ltd provided the appellant’s solicitors on 26 June 2025, 3 July 2025 and 30 July 2025 that provide details of surveillance he conducted of the respondent over several days, and the video films on which that surveillance was recorded. The report of Sten Jenson dated 26 June 2025 related to surveillance he undertook of the respondent on 13 June 2025 and 20 June 2025. His report of 3 July 2025 related to surveillance he conducted of the respondent on
27 June 2025, 30 June 2025 and 1 July 2025. His report of 30 July 2025 related to surveillance he undertook of the respondent on 18 July 2025, 21 July 2025, 22 July 2025,
23 July 2025, 24 July 2025 and 25 July 2025.
In reply, the respondent submitted that the material that the appellant seeks the Appeal Panel consider contains nothing inconsistent with his evidence within statements he signed on 20 June 2023 and 7 April 2025 or the evidence in the form of the reports of Associate Professor Courtenay and Dr Ridhalgh or the MAC. The respondent submitted that what is contained in the material would not change the outcome.
The respondent sought that the Appeal Panel take into consideration a statement he signed on 13 August 2025 in which he addressed an activity in which he engaged on 30 June 2025, that was captured on video of the surveillance that Sten Jensen undertook of him on
30 June 2025.

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.
Section 327(3)(b) of the 1998 Act provides a ground for appeal against a medical assessment if additional relevant information is available. That information must be qualitatively different from that which the Medical Assessor considered.[2] Further, in accordance with the terms of s 327(3)(b), it must not have been available to or could not reasonably have been obtained by the appellant before the medical assessment.
[2] State of New South Wales v Ali [2018] NSWSC 1783 at [32]; CSR Limited v Ewins [2020] NSWSC 511 at [47].
The Appeal Panel notes that the video evidence to which that the report of Mr Jensen of
26 June 2025 relates, was shot on 13 June 2025 and 20 June 2025. This report and the video footage existed both before the date on which the Medical Assessor commenced the assessment process, which was the date on which he interviewed and examined the respondent on 30 June 2025, and the date of the MAC. The report detailed that the appellant’s solicitors’ instructions were “to maintain a period of observation”. Their instructions were provided on 14 May 2022.
Mr Jenson’s second report of 3 July 2025 related to surveillance done on 30 June 2025, which was the day the Medical Assessor commenced the process of assessing the matters referred for assessment, and surveillance done on 1 July 2025, which was the day after, but well before the date of the MAC. The instructions to him were the same, that is “to maintain a period of observation”.
Mr Jenson’s third report of 30 July 2025 and the video film recording the surveillance to which the report related all came into existence after the MAC. The instructions for this report were provided on 18 July 2025, and again they were the same: “to maintain a period of observation.”
In the Appeal Panel’s view the date on which a medical assessment is made must be the date upon which a Medical Assessor gives a certificate in accordance with s 325(1) of the 1998 Act in response to the matters that were referred for assessment. It is only at that point that a Medical Assessor concludes his or her medical assessment. The date cannot be the date upon which a Medical Assessor examines a worker. It cannot be the date upon which a Medical Assessor conducts a clinical interview with the worker for the purpose of composing a relevant clinical history. Whilst those processes are important to a Medical Assessor, much more needs to be done before a Medical Assessor can assess the medical disputes and certify his or her assessment. For example, and to state the obvious, a Medical Assessor, having examined a worker and composed a clinical history, must then consider his or her findings and the history and the relevant clinical information contained in documents, and compose his or her thoughts so as to explain his or her reasons for the assessment. The Medical Assessor will obviously need to draft his or her reasons for assessment, and proof that, before concluding his or her assessment.
So, and again to state the obvious, part of the process of making a medical assessment necessarily occurs after the examination. In the case to hand the Medical Assessor interviewed and examined the respondent on 30 June 2025 and issued the MAC on
11 July 2025. As said, it was only on 11 July 2025, that is upon the Medical Assessor issuing the MAC, that he made the medical assessment of the matters that were referred to him for assessment.
Mr Jensen’s first two the reports and several video films to which they relate, pre-date the date of the MAC. Necessarily therefore that was information that was available to the appellant before the medical assessment and consequently that is not additional relevant information that meets the terms of s 327(3)(b), and consequently cannot substantiate the ground for appeal provided in s 327(3)(b).
In arguendo, even if the Appeal Panel is wrong on that point, that is that the medical assessment is made at the date the assessment process begins, which would be the date on which a Medical Assessor conducts an examination and interview of a worker, the Appeal Panel considers that all of the evidence on which the appellant relies to support the ground for appeal provided under s 327(3)(b) was available to the appellant.

The respondent notified the appellant of his claim on 5 March 2025. At any time thereafter it was open to the appellant to instruct a surveillance operator “to maintain a period of observation” of the respondent with a view to ascertaining what activity the respondent could perform. In other words, the nature of the evidence contained in what the appellant contends is additional relevant information could have been obtained well prior to the medical assessment, whatever be the date on which that was made, that is whether it be
30 June 2025 or 11 July 2025.
With respect to the reports of Mr Jensen dated 26 June 2025 and 3 July 2025 and the video films to which those reports relate, being the video shot on 13 June 2025, 20 June 2025 and
30 June 2025 and 1 July 2025, that all existed prior to the MAC being issued. That would negate any contention of the appellant (if the appellant be contending this), that it did not know what the respondent might report to the Medical Assessor regarding his symptoms and function and there was no necessity for it to obtain “a period of observation” of the respondent until then. That is, the appellant’s purpose in obtaining these reports was not to correct matters the respondent reported to the Medical Assessor. The Appeal Panel infers that the appellant’s purpose was to ascertain the respondent’s function and capacity, and to repeat it was reasonably open to the appellant to gather that information any time after he made his claim for compensation.
With respect to the report dated 30 July 2022 and the video film to which that report relates, being that shot over several days between and including 1 July 2025 and 25 July 2025, that document and that video post-dates the MAC, but the Appeal Panel also considers that that evidence was also available or could reasonably have been obtained by the appellant prior to the medical assessment. Again, this is because at any time after the respondent made his claim the appellant could have gathered surveillance of the respondent to establish what function and capacity he had.
In any event, even if the Appeal Panel is wrong with respect to whether the report of
[3] Lancaster v Foxtell Management Pty Ltd [2022] NSWSC 129 at [13].
30 July 2025 and the video film to which it relates was not available to or could not reasonably have been obtained by the respondent before the medical assessment was made, then that material still does not substantiate the ground provided in s 327(3)(b) of the 1998 Act. This is because the question an Appeal Panel must ask itself when considering whether the ground for appeal provided in s 327(3)(b) is established is whether the additional information would lead the Appeal Panel to a different conclusion from that reached by the Medical Assessor.[3] What is contained in the report of 30 July 2025 and the video to which it relates reveals nothing that would lead the Appeal Panel to a different conclusion from that reached by the Medical Assessor. The Medical Assessor’s rating of the respondent’s permanent impairment relating to his thoracic spine and his lumbar spine, other than an addition of 2% WPI impairment for the impact of the respondent’s thoracic spine injury on his activities of daily living, was done by reference to Medical Assessor’s clinical findings from his examination of the respondent. That is, it was done by reference to signs the respondent exhibited during testing the Medical Assessor conducted during examination. The activity that the respondent is seen to be doing in the surveillance does not affect how the Medical Assessor examined the respondent or his findings from that examination.
Further, in terms of the additional rating the Medical Assessor made for the impact of the respondent’s injury to his thoracic spine has on his activities of daily living, the activity the respondent is shown to be doing in the video films the subject of the 30 July 2025 report, is consistent with the history the Medical Assessor obtained and relied on to assess this element of the respondent’s impairment. The films reveal him carrying a plastic bag that appears to be of light weight, walking, driving, holding phone and pulling what appears to be empty waste bins. As said, that accords with the history the Medical Assessor obtained.
In arguendo again, if the Appeal Panel is incorrect regarding its conclusion on the date of which the medical assessment is made, such that the report of 3 July 2025 and the video to which it relates was not available or could not reasonably have been obtained by the appellant before the medical assessment was made, then the Appeal Panel also considers that that material would not lead it to a different conclusion. The activity in which the respondent is seen to be engaged in the surveillance done on 30 June 2025 reveals that over the course of approximately nine minutes he is shovelling soil into a waste bin and pulling that waste bin backwards uphill with the soil loaded in it. The respondent does not engage in the activity of shovelling soil for a long period of time and it does not appear as though he has to deploy much effort to move the bin into which he shovelled the soil. The Medical Assessor noted that the respondent reported that he was able to mow his lawn over a period of days. The respondent in his statement of 13 August 2025 said that he has been engaged in a project for 12 months to remove grass and earth from one side of his driveway to the other and that what he was doing on 30 June 2025 was part of that process. He said that he engages in that activity once a week or once a fortnight and that it involves him shovelling for 5 to 10 minutes and then moving the waste bin.
The Appeal Panel considers that this activity is not inconsistent with the history the Medical Assessor obtained regarding the respondent’s ability to attend to his outside chore of mowing his lawn. As said, the Appeal Panel considers that this material would not lead it to a different conclusion from that which the Medical Assessor reached.
There is nothing within the report of 26 June 2025 and the video films to which that related that would lead the Appeal Panel to a different conclusion from that reached by the Medical Assessor.
In summary then, the Appeal Panel considers that the material on which the appellant relies to support the ground for appeal provided in s 327(3)(b) of the 1998 Act was either available to it or could reasonably have been obtained by it before the medical assessment was made and hence does not establish the ground for appeal, but even if the Appeal Panel is wrong on that, none of the material would lead the Appeal Panel to a different conclusion from that reached by the Medical Assessor.
For completeness, the Appeal Panel notes that attached to the appellant’s application for appeal were submissions the appellant made on an application pursuant to rule 109 of the PIC Rules. That application, insofar as the appeal the Appeal Panel is determining, is otiose. This is because the Appeal Panel is engaged in panel review proceedings, as defined in
rule 5 of the PIC Rules, and not medical assessment proceedings, and further, and of course, an Appeal Panel is not the Commission or the President of the Commission.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 July 2025 should be confirmed.

[2025] NSWPICMP 836

29 October 2025