BUO v State of New South Wales (NSW Police Force)
[2025] NSWPICMP 512
•15 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | BUO v State of New South Wales (NSW Police Force) [2025] NSWPICMP 512 |
| APPELLANT: | BUO |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Todd Gothelf |
| DATE OF DECISION: | 15 July 2025 |
| DATE OF AMENDMENT: | 13 August 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by claimant against 14% whole person impairment (WPI); error conceded in Medical Assessor (MA) miscalculating WPI; whether MA erred in finding 1% for activities of daily living (ADLs) regarding the lumbar spine; whether the MA erred in finding cervical DRE 1; Held – MA failed to give adequate reasons as to classification of cervical assessment; re-examination conducted; MA failed to take into account restrictions in activities of domestic duties; non-verifiable radiculopathy present in cervical spine; MAC revoked; 15% WPI found. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 January 2025 [BUO], the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
17 December 2024.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, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 18 September 2024, this matter was referred to the Medical Assessor for an assessment of WPI caused by injury to the cervical spine, thoracic spine, lumbar spine and left upper extremity (shoulder) which occurred on 11 April 2021.
[BUO] sustained the above injuries on that date in his employment as a police officer.
He has been off work since 6 October 2021 with post-traumatic stress disorder.
He has declined surgery on the cervical and lumbar spines, and continues with conservative treatment.
The Medical Assessor assessed 14% WPI.
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 necessary for the worker to undergo a further medical examination, as the examination findings and reasons were not adequately explained by the Medical Assessor.
EVIDENCE
Documentary 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.
Further medical examination
Dr Alan Home of the Appeal Panel conducted an examination of the worker on 30 May 2025 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
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. 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.
The MAC
The Medical Assessor recorded [BUO]'s present symptoms as follows[1]:
“He has neck pain that goes down to his left arm, burning. He notices that positions of his neck particularly turning to the left result in tingling and symptoms that require sometimes up to a week to settle. He has problems with sleep. He finds driving difficult because his left arm has to be held in particular positions to avoid irritation.
He has low back pain with shooting pain that goes into his left buttock. His left leg has pins and needles, and he feels that his whole back pops out of alignment.”
[1] Appeal papers page 28.
The Medical Assessor made the following findings as to social activities/ADL[2]:
“He is married with 2 children aged 8 and 6 years. His wife works so he does some child minding, getting kids to and from school and spends time with them. He says he does some home maintenance but in the main finds he cannot use a mower and uses a whipper snipper.
Leisure activities was regular fishing, and he has his own boat. He finds that it is very difficult to manage a boat and so this is greatly diminished. He was physically active running and exercising before the injury and now says that most of these activities have stopped. A lot of what stops him he says is motivation to get out and do things which is related probably to the PTSD.
He has a house cleaner come in about once a fortnight and only does a certain amount of light work as he finds other aggravates his back.”
[2] Appeal papers page 29.
On physical examination Medical Assessor made the following comments:
“On examination, he is well built. He stood and sat through the interview consistently. He was without pain behaviours but his speech and his gaze suggested some difficulty with communicating. Speech was in short sentences.
Examination of the cervical spine showed normal curvatures, however movement of the neck in all directions was extremely limited but observed to be equal. I uncovered no muscle spasm.
Examination of the mid back showed no muscle spasm and normal kyphosis.
Examination of the lumbar spine showed normal lumbar curves. Movement of flexion and extension was full but he moved less to the left. There was no spasm.”
The Medical Assessor noted the radiological conclusions regarding the two MRI scans. He also noted that neither Dr Hopcroft on 15 November 2023, nor Dr Haig on 28 February 2024 found radiculopathy.
In his summary, the Medical Assessor noted complaints of ongoing pain in the neck with degenerative changes in the cervical spine. He said:
"There were no objective findings to supports (sic) radiculopathy, although he has ongoing symptoms."
The Medical Assessor made the same comments regarding the lumbar spine.
The Medical Assessor gave the following reasons for his assessment:[3]
“The lumbar spine is assessed by the DRE method, as set out in T15-3 p 384. He has ongoing pain. He has dysmetria. This is DRE category 2 with 10% WPI.
The thoracic spine is assessed by the DRE method, as set out in T15-4 p 389. He has ongoing pain, but no findings. This is DRE category 1 with 0% WPI.
The cervical spine is assessed by the DRE method, as set out in T15-5 p 392. He has ongoing pain, but no findings. This is DRE category 1 with 0% WPI.
A further rating is added from interruptions to ADLs as per 4.34 P 28 NSW guides. He has lost recreational activities and yard care ability, which adds 1% WPI.
The left shoulder is assessed by loss of ROM, as set out in the table below. This is 5% UEI, which converts to 3% WPI.”
[3] Appeal papers page 31-32.
As to the comments by the medico-legal experts, the Medical Assessor said[4]:
“Dr Hopcroft had an earlier examination in which he found more physical finding about the spine.
Dr Haig did not find these. Both found no evidence of radiculopathy.
I agree with this.”
SUBMISSIONS
[4] Appeal papers page 32.
The appellant
[BUO] submitted firstly that the Medical Assessor had fallen into error both by applying incorrect criteria and making a demonstrable error. We were referred to the well-known authorities regarding both those concepts.
Lumbar spine
[BUO] submitted that the Medical Assessor had made an error in ascribing a WPI value of 10% to a finding of lumbar DRE category II, an error with which the respondent readily agreed.
[BUO] then submitted that in any event the DRE lumbar category II was itself erroneous because the Medical Assessor did not provide reasons for finding that [BUO] did not have radiculopathy.
We were referred to chapter 4.27 of the Guides, which defines radiculopathy.
It was submitted that a Medical Assessor was “required to carry out clinical examinations of and provide specific reasoning for” each criterion that is set out in the above guides.
[BUO] noted that the Medical Assessor had found that there was loss of sensation down his left leg but had failed to provide findings in respect of any of the other required criteria. It was suggested that accordingly the Medical Assessor had either found that [BUO] was suffering from non-verifiable radicular complaints or that the Medical Assessor did not carry out a proper examination.
We were referred to an assessment by the medico-legal expert retained by the respondent, Dr Haig, who had found that there was left side wasting of one centimetre caused by an injury to the left knee.
[BUO] observed that the Medical Assessor did not record whether he found any muscle wasting "and whether he attributes this also to the left knee injury or resulting from injury in the lumbar spine."
[BUO] alleged that the Medical Assessor did not "appear to have considered," the report dated 1 August 2024 from [BUO]'s treating neurosurgeon, Dr Peter Spittaler. Dr Spittaler had recommended a L5/S1 fusion as a, as a treatment option in view of the severe degeneration seen on a June 2024 MRI.
Activities of daily living
[BUO] argued that in calculating an allocation of WPI in relation to his restrictions in the activities of daily living that the Medical Assessor had not taken a proper history. This was so particularly in terms of home care and personal care activities, and those items had not been considered when the Medical Assessor assessed 1% WPI.
We referred to the facts as found by the Medical Assessor which we have reproduced above.
[BUO] referred to chapters 4.34 and 4.35 of the Guides and the allocation therein to the three levels of WPI that are available, depending on the level of restriction found.
[BUO] submitted that the Medical Assessor did not conduct a detailed examination of his ability in those activities and that the 1% WPI allocation should be altered to 2%.
Cervical spine
The 0% WPI allocation by the Medical Assessor for the cervical spine was erroneous, it was submitted.
The Medical Assessor had failed to provide adequate reasons for concluding that [BUO] did not have radiculopathy.
It was submitted that the Medical Assessor's findings included "Extremely limited movement in all directions of the cervical spine." which contradicted the criteria relevant to a DRE I finding. The clinical history included a neck injury during a physical confrontation, it was submitted. When combined with [BUO]'s current symptoms, the appropriate DRE category would be II or even III for the cervical spine, [BUO] said, as symptoms of pain and tingling particularly in the left arm were indicative of radiculopathy. These symptoms were recorded by the Medical Assessor who noted "Burning pain that extends to the left arm and a tingling when turning the neck to the left, which sometimes takes a week to settle," [BUO] submitted. A rating of, of DRE II would account for the clinically significant radiculopathy, he submitted, which had been verified by an imaging study that showed a herniated disc at a level and position that would be “expected from objective clinical findings with radiculopathy”.
We were referred to the MRI scan of 14 July 2021 and a more recent MRI of 3 June 2024.
[BUO] thought that the MRI scan confirmed narrowing at worst on the right, but also some narrowing on the left.
It was alleged that the Medical Assessor had not considered those studies which, [BUO] said, suggested nerve root impingement at C5/C6.
[BUO] submitted those findings were not considered or factored into any determination regarding the absence of radiculopathy.
We were referred again to the report of Dr Spittaler and his findings regarding the MRI results and his recommendation that there should be C4/5 and C5/6 arthroplasties as a treatment option.
He then referred to Dr Hopcroft's report in September, 2023 and again the report of Dr Haig in January, 2024. Both reports gave a history of radicular symptoms in the right arm, it was submitted.
On the other hand, [BUO] submitted, the Medical Assessor in November 2024 and Dr Spittaler in August 2024 reported symptoms in the left arm. There was no history indicating that there had been a resolution of radiculopathy in the right arm following conservative treatment and the Medical Assessor's failed to report on or provide reasons for any other objective findings to support the criteria for radiculopathy, although he noted ongoing symptoms. That suggested, [BUO] said, that the Medical Assessor either found non-verifiable radicular complaints or that he did not carry out a proper examination.
[BUO] submitted that the Medical Assessor was required to carry out a clinical examination and provide "specific reasoning for his findings in relation to each of the six radiculopathy criteria."
In the absence of such a detailed explanation, the Medical Assessor's reasoning lacked the necessary justification for ruling out radiculopathy. A reassessment was accordingly requested.
We were referred to the symptoms complained of by [BUO] which aligned with a DRE cervical category II rating, which were findings of reduced range of movement in the cervical spine and symptoms of pain and tingling in the left arm. These symptoms were more consistent with a DRE II or a DRE III category for the cervical assessment it was submitted,
[BUO] noted that an assessor was required to choose the higher of two categories if he was unable to distinguish between them.
The Medical Assessor had not provided his reasons for not considering the other DRE cervical categories that were submitted, in circumstances where the limited movement and radicular complaints suggested either a DRE II or DRE III finding.
[BUO] submitted that a re-examination should accordingly take place.
The respondent
The respondent submitted globally that [BUO] had not made out any of the grounds of appeal. It reported that it had written to [BUO]'s solicitors noting the error in the MAC and suggesting that the proper finding should have been 5% for the DRE II rating and another 1%, WPI for the restriction in the activities of daily living.
The respondent invited [BUO] to approach the Personal Injury Commission (Commission) by consent, but received no response.
The respondent submitted that this was simply an obvious error that could have been administratively regularised should the matter be referred to a panel. However the respondent's submissions then addressed the appellant's submissions.
Lumbar spine
As to the criticism that the Medical Assessor was required to rule out radiculopathy, the respondent replied that the finding of dysmetria was sufficient to justify such a categorisation and it was unnecessary therefore to comment on radiculopathy.
The respondent said that in any event, the Medical Assessor did consider the question of radiculopathy and found no objective signs to support radiculopathy.
We referred to Chapter 4.18 and 4.19 of the Guides as to the extent to which reasons had to be given for categorisation. Unsurprisingly, the respondent agreed that the assessment should be reduced from 10% to 5% to correct the obvious error made by the Medical Assessor.
ADLs
The respondent submitted that there was no merit in [BUO]'s submissions.
It referred to the requirement that the additional impairment is only to be calculated where there is a difference in activity level compared to a worker's pre-injury state. There was no evidence of prior activity apart from the histories given to the medical specialists and the Medical Assessor, it was submitted. That evidence, confirmed, it was submitted, that a 1% WPI was applicable.
Cervical spine
The respondent submitted that for the reasons it had already argued, there was no requirement that radiculopathy be specifically ruled out in order to assess a DRE I category rating.
We were referred to the findings by the Medical Assessor and the respondent noted that there was some difficulty in communication because of [BUO]'s psychological condition.
DECISION
It is common ground that the MAC must be revoked due to the miscalculation by the Medical Assessor of the lumbar spine entitlement.
However, there are other difficulties that have also been identified. The allowance of 1% WPI for restrictions caused to the activities of daily living was said by the Medical Assessor to relate to the loss of recreational activities and yard care ability, but it was not clear in the body of the report as to the basis for that allowance. The Guides provide at chapter 4.35 that an allowance of between 1% and 3% may be made, as follows:
“Increase base impairment by:
•• 3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
•• 2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or
walking reasonable distances
•• 1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
The Medical Assessor found that [BUO] had a house cleaner come in once a fortnight and that [BUO] only did “a certain amount of light work as he finds other aggravates his back.” This finding appears to also implicate the criteria necessary for a 2% WPI finding. We note the respondent’s submission concerning the level of pre-injury activity, but would observe that the Medical Assessor did record that [BUO], prior to his injury, was a regular fisherman, with his own boat and that he was then physically active running and exercising. The effect of his injury has been that these activities have either diminished, or stopped.
Further, we are uncertain as to whether the cervical spine categorisation is accurate. The relevant criteria are contained in Table 15.6 of AMA 5, page 392:
DRE Cervical Category I 0% Impairment of
the Whole Person
DRE Cervical Category II 5%-8% Impairment of the Whole Person No significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity, and no other indication of impairment related to injury or illness; no fractures Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, asymmetric loss of range of motion or non verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity
or
individual had clinically significant radiculopathy and an imaging study that demonstrated a herniated disk at the level and on the side that would be expected based on the radiculopathy, but has improved following nonoperative treatment
or
fractures: (1) less than 25% compression of one vertebral body; (2) posterior element fracture with- out dislocation that has healed without loss of structural integrity or radiculopathy; (3) a spinous or transverse process fracture with displacement
It can be seen that one of the criteria in the first of the three alternatives is “non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings.” The Medical Assessor noted a complaint by [BUO] that he had neck pain that went down to his left arm. In his examination he found there was extremely limited movement in the neck, but that the limitation was equal, and he found no muscle spasm. We have noted that in his summary at [7] of the MAC he stated:
“… There were no objective findings to support[s] radiculopathy though he has ongoing symptoms.”
There were no reasons advanced as to why the Medical Assessor did not find non-verifiable radiculopathy, which the combination of [BUO]’s complaints and the Medical Assessor’s summary suggested was present.
A re-examination was accordingly organised, and Medical Assessor Home’s report follows:
“[BUO] was accompanied to the assessment by his wife, Mrs Kia Wall. The history was obtained directly from the worker.
HISTORY of INJURY
[BUO] states that he sustained injuries during the course of his work as a Police Officer, working as a Senior Constable, general duties police officer out of Forster, New South Wales.
On or about 11 April 2021, he says that he was involved in a violent arrest incorporating the use of tasers. There was violent wrestling involved.
He recalls the onset of neck and back pain immediately after the event. Symptoms increased, such that he eventually sought medical attention from his general practitioner, Dr Arreza in Forster.
He confirms that he experienced symptoms of neck pain, upper back pain, lower back pain and left shoulder pain. There were early symptoms of referred pain to the right arm.
He reports more recent symptoms of burning pain and paraesthesia in the left upper extremity.
After medical imaging was performed, he was referred for physical therapy.
Imaging included CT scan of the cervical spine on 8 May 2021. MRI scans of the cervical spine were performed on 14 July 2021.
[BUO] confirmed treatment under the care of Dr Robert Kuru, orthopaedic spinal surgeon from 24 August 2021. He confirms that although he was offered cervical and lumbar spine fusion surgery, he declined that path of treatment.
He also received a further opinion from Dr Peter Spittaler, neurosurgeon.
He confirms a period of treatment under the care of Dr Simon Tame, pain specialist commencing in September 2021 and adjustments were made to his medication. He also received advice regarding management of his mental health concerns.
He received a period of supervised exercise under the supervision of an exercise physiologist.
With regards to his left shoulder condition, he had previously undergone treatment under the care of Dre Ed Bateman, orthopaedic surgeon. He also suffered a left shoulder injury in June 2019 whilst tackling an offender, falling onto his outstretched arm.
Subsequently, he underwent surgical management under the care of Dr Stewart Kennedy at Port Macquarie Private Hospital on 7 August 2019 consisting of a left shoulder labral repair and rotator cuff repair and biceps tenodesis. There was partial recovery from his injuries, and he recalls persisting mild left shoulder stiffness.
In the subject accident he suffered an aggravation of his left shoulder condition. However, there has been no further surgical management. He received a period of physical treatment directed towards this left shoulder condition.
He is currently taking the following medications:
· Duloxetine 120 milligrams daily
· Topiramate 1 tablet daily
· Prazosin 1 tablet daily
· Diazepam 5 milligrams nocte
· Mobic 1 tablet daily – thrice weekly on a periodic basis
[BUO] attends a chiropractor at fortnightly intervals. He receives massage treatment between 4 and 6-week intervals.
CURRENT SYMPTOMS
[BUO] reports current symptoms of constant neck pain, average intensity 6-7 out of 10 on a VAS. Pain is more severe on the left side. He describes greater stiffness with left-sided motion.
There is associated left-sided occipoto-frontal headache occurring several days weekly. This can be associated with nausea and photophobia.
In the left upper limb, he described intermittent burning pain occurring for several minutes, once or twice weekly. There is intermittent tingling in the thumb and index fingers of his left hand that occurs up to half a day once or twice weekly.
There is intermittent sharp pain in the interscapular region. He is aware of upper back stiffness.
There is sometimes pain with coughing and sneezing.
He reports constant low back pain, of average intensity 8-9 out of 10 on a VAS. Pain is worse on the left side. There is sometimes associated sharp pain in the buttock and intermittent pain in the back of the left thigh.
He reports intermittent numbness in the anterior left thigh. There is sometimes paraesthesia in the left foot.
There is no bladder or bowel dysfunction.
He reports activity-related pain at the left shoulder exacerbated by attempted overhead reaching and loading of the left arm.
He cannot sleep comfortably over his left side at night.
He limits lifting to a small bag with his left hand. Between two hands, he is able to lift up to 10 kilograms.
He reports a sitting tolerance of up to 30 minutes, a similar tolerance for driving. He limits walking for 15 minutes due to back pain.
There is difficulty with deep forward bending at the waist, and he avoids repetitive deep forward bending.
There is no major difficulty with crouching, kneeling or stair climbing.
His sleep pattern is disturbed.
He is independent for self-care activities.
SOCIAL HISTORY
[BUO] is married with children aged 6 and 8 years.
His wife performs most of the domestic chores presently.
He sometimes helps out with bench height cleaning. He cannot cope with the heavier chores himself.
They also have the services of a cleaner who attends 3 hours fortnightly.
Gardening is performed by an external provider.
He primarily performs click and collect grocery shopping.
He has not resumed previous active hobbies of fishing, 4WD driving and camping.
PAST HISTORY
He suffered a car accident in 2014 causing injury to the left shoulder. He suffered further injuries to the left shoulder. He has previously undergone a left shoulder cuff repair in 2019.
In 2014, he required arthroscopy to his knee.
VOCATIONAL HISTORY
[redacted]
EXAMINATION FINDINGS
General presentation
[redacted]
Cervical spine (cervicothoracic)
Examination reveals normal spinal curvature without muscle spasm. Cervical spine flexion is performed to half normal range, extension half normal range. Right rotation three quarters normal range, left rotation half normal range. Right and left lateral flexion symmetrically performed to one third normal range. Pain is declared during extreme left-sided roation.
Neurological examination of the upper extremities reveals normal moyotmal power in all muscle groups with reinforcement. There is no muscle wasting. There is normal sensibility declared in the right uper extremity.
In the left upper extremity there is reduced sensibility along the radial border of the left forearm extending to the thumb and index fingers conforming to a C6 dermatomal pattern. The deep tendon reflexes are symmetrically preserved. Spurling’s test is negative.
Lumbar spine (lumbosacral)
There is normal spinal curvature. There is no muscle spasm. Active lumbar flexion is performed to two thirds normal range. Lateral flexion to the right is full, Left lateral flexion is three quarters normal range with reported left-sided low back pain. Extension is performed to two thirds normal range. Lateral flexion is symmetrically performed to three quarters normal range. There is no muscle guarding evident. Straight leg raise is performed to 60 degrees bilaterally.
Neurological examination of the lower extremities reveals normal lower limb power in all muscle groups. There is non-dermatomal reduced sensibility declared from the left hip to the toes of the left foot in a non-dermatomal pattern. The deep tendon reflexes are symmetrically preserved. There is no calf muscle wasting.
The circumference of the calves are 39 centimetres bilaterally.
Diagnosis and Causation
The claimant, [BUO] was involved in a workplace assault after which he suffered aggravation of a pre-existing left shoulder condition. This was in addition to injury to the cervical spine.
The facts on which I have based the whole person impairment:
· A thorough history
· Comprehensive physical examination
· Review of documentation
IMPAIRMENT ASSESSMENT
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5TH Edition) and the Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th Edition, as follows:
Cervical spine:
The clincial presentation is consistent with a DRE Cervical Spine Category 2 impairment rating in accordance with Table 15-5, AMA5 Page 392.
There are non-verifiable radicular complaints in a C6 dermatomal pattern in the left upper extremity. There are symptoms of burning and intermittent paraesthesia in the left hand.
The clinical findings required for a diagnosis of cervical radiculopathy in accordance with Section 4.27 of the Workers Compensation Guidelines are not met.
Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
• loss or asymmetry of reflexes
• muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
• reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
• positive nerve root tension (AMA5 Box 15-1, p 382)
• muscle wasting – atrophy (AMA5 Box 15-1, p 382)
• findings on an imaging study consistent with the clinical signs (AMA5, p 382).
There is a reduction of sensibility in the left C6 dermatomal pattern. No other criteria required for a diagnosis of radiculopathy are met.
Whilst the previous MRI scan demonstrated possible right C6 root impingement, there were no corresponding findings on the left side. The deep tendon reflexes are symmetrical. There is no muscle wasting. There is no moyotomal weakness. A positive nerve root tension sign is absent.
A 5% WPI rating arises.
Lumbar spine:
The clincial presentation is consistent with a DRE Lumbar Spine Category 2 impairment rating in accordance with Table 15-3, AMA5 Page 384.
There is spinal dysmetria. A 5% WPI rating impairment arises.
The clinical findings required for a diagnosis of lumbar radiculopathy in accordance with Section 4.27 of the Workers’ Compensation Guidelines are not met.
I have assessed additional lumbar spine impairment due to the impact of the workers injuries upon his capacity for activities for daily living.
I find that a 2% WPI impairment rating arises in accordance with Sections 4.33 to 4.35 of the NSW Guidelines.
His capacity for heavy domestic chores, gardening activities, sporting and recreational activities are curtailed. The worker is independent for activities of personal care.
The total whole person impairment rating for the lumbar spine conditon is 7%.
There is no evidence of a pre-existing lumbar spine condition. Therefore no deduction is made.
COMBINED WHOLE PERSON IMPAIRMENT
The combined whole person impairment rating is 7% WPI (lumbar spine), combined with 5% WPI (cervical spine), combined with 3% WPI (left shoulder) providing a Combined Whole Person Impairment Rating which equals 15%.”
The Medical Panel adopts the report of Medical Assessor Home. We accordingly revoke the MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 December 2024 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
This Certificate is issued pursuant to section 325 of the Workplace Injury Management and Workers Compensation Act 1998.
| Matter Number: | W25654/24 |
| Appellant: | [BUO] |
| Respondent: | State of New South Wales (NSW Police Force) |
Table 2 - Assessment in accordance with AMA5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002
| 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 AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 11 April 2021 | Chapter 4 | Chapter 15, Table 15-5 Page 392 | 5 | Nil | 5 |
| Lumbar spine | 11 April 2021 | Chapter 4 | Chapter 15, Table 15-3, Page 384 | 7 | Nil | 7 |
| Left shoulder | 11 April 2021 | Chapter 2 | Chapter 16, Figs 16-40, 16-43, 16-46, Pages 476-479 | 3 | Nil | 3 |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
John Wynyard
Member
Alan Home
Medical Assessor
Todd Gothelf
Medical Assessor
15 July 2025
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