Canterbury Bankstown City Council v Turner
[2025] NSWPICMP 534
•22 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Canterbury Bankstown City Council v Turner [2025] NSWPICMP 534 |
| APPELLANT: | Canterbury Bankstown City Council |
| RESPONDENT: | Brett Turner |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | David Gorman |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 22 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); fracture of left calcaneus and consequential condition in right hip; TEMSKI scarring; calculation of impairment in the ankle and subtalar joint; meaning of inconsistency under the Workers Compensation Guidelines for the Evaluation of Permanent Impairment; failure to measure range of motion of contralateral hip; re-examination; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 April 2025 Canterbury Bankstown City Council (the Council) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Drew Dixon, who issued a Medical Assessment Certificate (MAC) on 17 March 2025.
The Council relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. Mr Turner agreed that some of the grounds were made out. Rather than refer those matters back to the Medical Assessor, the delegate referred all of the grounds to us. We conducted a review of the original medical assessment, limited to the grounds 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Turner was employed by the Council as a plumber. On 5 September 2019 he slipped on a kerb and fractured his left calcaneus. He underwent three operations and a prolonged healing process.
In a Certificate of Determination amended on 13 January 2025, a Member of the Personal Injury Commission (Commission) accepted that Mr Turner suffered a consequential condition in his right hip as a result of his left heel injury.
The Medical Assessor was asked to assess Mr Turner’s left lower extremity (ankle/foot), right lower extremity (hip) and scarring, under the Table for the Evaluation of Minor Skin Impairment (TEMSKI).
It is relevant to set out the Medical Assessor’s findings at this point so that the submissions of the parties can be understood. The Medical Assessor said:
“That for the stiffness of the left ankle is 15% lower extremity impairment, that for the stiffness of the subtalar joint, 2% lower extremity impairment for both inversion and eversion, giving 4% lower extremity impairment.
When this is combined it gives a 26% lower extremity impairment which converts to 10% whole person impairment.
That for the scarring at his left ankle where he has an adherent keloid scar, is tender and painful if bumped and he is able to readily localise it and is visible in sandals or thongs, and he remains conscious of the scar is from the TEMSKI scale, Table 14.1 Page 74, of the WorkCover Guidelines, 2% whole person impairment.
That for the post traumatic stiffness of his right hip is from Table 17-9, AMA V, 4% whole person impairment.
That for his ischial tuberosity bursitis is from Table 17-33, AMA V, Page 546, 3% whole person impairment.
This gives a total of 7% whole person impairment for the right hip, less 1/10th for the preexisting arthritis of the right hip giving 6% whole person impairment.
In making that assessment I have taken account of the following matters:-
The history of the injury to his left os calcis and subsequent operative interventions and the findings of post traumatic stiffness of his left subtalar joint and left ankle joint, and surgical scarring following multiple procedures and the consequential aggravation of arthritis in a previously asymptomatic right hip where he also appears to have pain at the ischial tuberosity consistent with ischial tuberosity bursitis which is tender.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, the Council raised five grounds of appeal and said that each was the application of incorrect criteria or a demonstrable error. The grounds are:
1) The Medical Assessor erred in his calculation for the left lower extremity in omitting the assessment for ankle extension from his calculation, and by adding rather than combining components of the assessment. The Council said that the result should have been 25% lower extremity impairment (LEI) and 10% whole person impairment (WPI).
2) The Medical Assessor erred regarding the range of motion method of assessment for Mr Turner’s left lower extremity when his results were inconsistent with those of Dr Smith who examined Mr Turner at the request of the Council.
3) The calculation of WPI in Mr Turner’s right hip did not take account of the range of motion on the contralateral side.
4) The Medical Assessor used two incompatible methods of assessment of Mr Turner’s right hip because he used both the range of motion assessment of the right hip as well as a diagnosis based estimate for ischial tuberosity bursitis.
5) Notwithstanding the previous ground, the Medical Assessor erred in failing to combine all assessments for the right lower extremity before converting to WPI.
The Council provided detailed submissions in respect of the grounds.
In reply, Mr Turner agreed that the Medical Assessor had omitted to record the assessment of ankle extension, which was clearly intended to be included in his assessment of 26% LEI, which converts to 10% (rather than 12%) WPI.
With respect to the range of motion assessment of the ankle and subtalar joint, Mr Turner said that the Medical Assessor was not bound by the evidence of the parties, and that there is only inconsistency as described in AMA 5 where it is observed during an examination.
Mr Turner said that while the Medical Assessor did not set out his findings with respect to the other hip joint, the presumption of regularity applied it should be assumed that he has used the correct criterion, unless there is evidence to the contrary.
With respect to ground 4, Mr Turner said that it was open to the Medical Assessor to combine the range of motion with a diagnosis based assessment to achieve the most accurate impairment rating.
Mr Turner agreed that the Medical Assessor erred in not combining the assessments for the right lower extremity before converting to WPI.
PRELIMINARY REVIEW
We 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, we determined that Mr Turner should undergo a further medical examination because the Medical Assessor did not assess the range of motion of his contralateral left hip, before making an assessment in respect of his right hip.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
Medical Assessor Pillemer of the Appeal Panel conducted an examination of the worker on 23 June 2025 and reported to us. The report forms part of these reasons.
The parts of the MAC that are relevant to the appeal are set out below.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
Assessment of the left lower extremity
The Medical Assessor’s examination findings in respect of Mr Turner’s left lower extremity were:
“There was stiffness of the left ankle with extension 0 degrees, plantar flexion 10 degrees, with stiffness of the subtalar joint with eversion 0 degrees, inversion10 degrees, and there was a bony boss on the os calcis which was tender with an adherent surgical scar which was tender to touch and painful if bumped, impacting on his ADL’s.”
The Council said that the Medical Assessor had not included a value for flexion contracture but the Medical Assessor was not required to do so. Table 17-11 of AMA 5 required him to assess either extension or flexion contracture as alternatives. Flexion contracture is the extent to which a joint is fixed in a flexed position so that there is an inability to extend. The Medical Assessor provided an assessment for extension and there is no error in that part of his assessment.
The Council also submitted that the Medical Assessor was in error to add the figures for impairment of the left ankle and subtalar joints and that these figures should have been combined. That submission is incorrect because the ankle and subtalar joints are an exception to the principle that losses in a region should be combined. AMA 5 says at page 10:
“In general, impairment ratings within the same region are combined before combining the regional impairment rating with that from another region. For example, when there are multiple impairments involving abnormal motion, neurologic loss, and amputation of an extremity part, these impairments first should be combined for a regional extremity impairment. The regional extremity impairment then is combined with an impairment from another region, such as from the respiratory system. Spinal impairments in multiple regions are combined. Exceptions, as detailed in the musculoskeletal chapter, include impairments of the joints of the thumb, which are added, as are the ankle and subtalar joints in the lower extremity: both situations include complex motions.”
The Medical Assessor’s assessment of 26% LEI is correct, and it converts to 10% WPI.
The Medical Assessor observed:
“That for the scarring at his left ankle where he has an adherent keloid scar, is tender and painful if bumped and he is able to readily localise it and is visible in sandals or thongs, and he remains conscious of the scar is from the TEMSKI scale, Table 14.1 Page 74, of the WorkCover Guidelines, 2% whole person impairment.”
We consider that it is likely that the Medical Assessor combined the assessment of scarring with that for the lower extremity to reach 12% WPI. When the figures were transposed to the table of the MAC, the scarring has been double counted.
The correct assessment for Mr Turner’s left ankle, omitting scarring, is 10% WPI.
Left lower extremity – inconsistency in range of motion
The Council submitted that the Medical Assessor was in error to use the range of motion assessment when there were prior inconsistent results “which rendered his findings valid” [sic – invalid] according to part 17.2f of AMA 5. Essentially, the Council submits that the Medical Assessor should not have used the range of motion assessment because the results were inconsistent with those of Dr Smith who observed, on 28 March 2024, that Mr Turner had a normal range of motion of both ankle joints, subtalar and midtarsal joints.
That submission is incorrect and fails to take account of the principles of assessment in the Guidelines.
AMA 5 says in paragraph 17.2f that:
“Lower extremity impairment can be evaluated by assessing the range of motion of its joints, recognizing that pain and motivation may affect the measurements. If it is clear to the evaluator that a restricted range of motion has an organic basis, three measurements should be obtained and the greatest range measured should be used. If multiple evaluations exist, and there is inconsistency of a rating class between the findings of two observers, or in the findings on separate occasions by the same observer, the results are considered invalid…”
The Guidelines provide in paragraph 1.1:
“The Guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5) in most cases. Where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail.”
The Medical Assessor is an administrative decision maker, tasked with providing a binding assessment of permanent impairment, and is required to provide his or her own opinion. His role extends beyond that of an “observer” as described in AMA 5.
The principles of assessment in paragraph 1.6 of the Guidelines include that the Medical Assessor is to assess a worker as he or she presents on the day of assessment, using his or her own clinical judgement.
The Medical Assessor is not required to adopt or choose between the other opinions in the file and is required to form his or her own opinion. In State of New South Wales (NSW Department of Education) v Kaur[3] Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular, it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law’.”
[3] [2016] NSWSC 346.
The Medical Assessor is directed by the standard MAP template to comment on other opinions and provide the reasons why his or her opinion differs. That is so the parties understand how and why a different result was reached, not because the Medical Assessor is required to agree with or choose between the previous assessments. The fact that another assessor made a different observation on a different day should not influence the Medical Assessor’s opinion. Dr Smith’s examination was about a year before that by the Medical Assessor.
The Guidelines quote from AMA 5 about consistency checks at paragraph 1.36:
“AMA5 (p 19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts the assessor must use their entire range of clinical skill and judgement when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.’ This paragraph applies to inconsistent presentation only.”
The presumption of regularity applies to an examination by a Medical Assessor so that it is presumed that the Medical Assessor, as an administrative decisionmaker, has undertaken all appropriate tests and considered whether or not the results observed were consistent.
The Medical Assessor appropriately considered Dr Smith’s opinion and explained why he differed. The Medical Assessor said:
“Dr Anthony Smith in his IME report of February 7, 2022 noted the claimant sustained an extra-articular fracture of the left calcaneus but unfortunately following operative treatment became infected and there is now post operative/post infective deformity which is non correctible. He also diagnosed bilateral hip osteoarthritis which would have been diagnosed radiologically since he was 40 though it was asymptomatic. He gave an 8% whole person impairment regarding the claimant’s right hip using the range of motion method, which is consistent with that found today and he used Table 17-35 with 5% whole person impairment for the claimant’s left heel and his final remark was the calcaneal fracture did not involve the ankle joint in any way. However, on review today, the claimant has marked stiffness of the left ankle following the fracture of the calcaneum, subsequent operative interventions and a prolonged infective episode.”
The Medical Assessor did not err in adopting the range of motion method for assessing Mr Turner’s left ankle and subtalar joint.
Right lower extremity – range of motion on contralateral side
The Medical Assessor was asked to assess Mr Turner’s left lower extremity (ankle/foot), right lower extremity (hip) and scarring. His findings on examination were:
“He walked with a limp on the left due to left ankle and heel pain, and a limp on the right due to right hip pain. He had difficulty with toe walking and heel walking and his squat test was restricted due to ankle stiffness on the left and his Trendelenburg test at his right hip was negative.
There was stiffness of the left ankle with extension 0 degrees, plantar flexion 10 degrees, with stiffness of the subtalar joint with eversion 0 degrees, inversion10 degrees, and there was a bony boss on the os calcis which was tender with an adherent surgical scar which was tender to touch and painful if bumped, impacting on his ADL’s.
There was a full range of motion of his right ankle and right subtalar joint.
There was wasting of his right calf, 38cm on the left and 41cm on the right, and wasting of his right thigh of 1cm, 57cm, 10cm above the superior pole of the patella and 58cm on the left.
There was stiffness of the right hip with flexion 90 degrees and no flexion contracture, internal rotation 10 degrees, and external rotation 20 degrees, abduction 30 degrees, and adduction 20 degrees and there was no adduction contracture.
There was tenderness of the ischial tuberosity bursa and he reports it is painful to sit in a chair on that side and tends to sit on the other side.”
Paragraph 3.17 of the Guidelines reads:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline, and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA5 Section 16.4c, p 454).”
The Medical Assessor did not set out any results of an assessment of Mr Turner’s left hip. He was obliged by the Guidelines to examine the left hip and report his findings as he did with respect to the right ankle and subtalar joint.
The Medical Assessor’s failure to assess Mr Turner’s left hip was a demonstrable error, necessitating re-examination.
Medical Assessor Pillemer set out his findings in the attached report, observing a more restricted range of motion in Mr Turner’s right hip than at the examination by the Medical Assessor, three months before. The requirement to assess Mr Turner as he presented on the day of the re-examination means that we use the higher figure in our assessment.
Medical Assessor Pillemer observed a restricted range of motion of both hips, which is consistent with a diagnosis of constitutional osteoarthritis on both sides, the right side having been aggravated by the need to take more weight on that side.
We adopt Medical Assessor Pillemer’s findings.[4]
[4] Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].
The result is that Mr Turner suffers 30% LEI in respect of his right hip and 15% LEI in respect of his left hip. Paragraph 3.17 requires that the assessment of the left hip should be deducted from that of the right, resulting in 15% LEI for the right hip or 6% WPI.
Incompatible methods of assessment
It is no longer necessary to deal in detail with the Council’s fourth ground of appeal. The Medical Assessor’s error in not assessing Mr Turner’s left hip necessitated re-examination of both hips. At that examination Medical Assessor Pillemer did not observe ischial tuberosity tenderness or bursitis so that it is not appropriate to include that diagnosis based estimate in the assessment of Mr Turner’s right hip.
For completeness, we note that there is no impediment to combining the range of motion with a diagnosis based estimate in appropriate circumstances when different body parts are being assessed. The loss of motion of the hip joint is due to osteoarthritis rather than bursitis.
We also note that the Council’s assumption that the Medical Assessor used the estimate for trochanteric bursitis (chronic) with abnormal gait in Table 17-33 of AMA 5 is probably incorrect. The impairment estimate for ischial bursitis in the part of Table 17-33 relating to the pelvis is identical to that for trochanteric bursitis.
Right lower extremity calculation
The final ground of appeal has also been overtaken by the results of the re-examination. We agree that there was an error in the Medical Assessor’s calculations.
Re-assessment
Mr Turner’s left lower extremity (ankle) is assessed at 10% WPI. There was no appeal with respect to the assessment of scarring under the TEMSKI at 2%. Mr Turner’s right lower extremity (hip) is assessed at 6%. When those figures are combined, Mr Turner suffers 17% WPI.
For these reasons, we have determined that the MAC issued on 17 March 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-W26415/24 |
| Appellant: | Brett Turner |
| Respondent: | Canterbury Bankstown Council |
| Examination Conducted By: | Roger Pillemer |
| Date of Examination: | 23 June 2025 |
The worker’s medical history, where it differs from previous records
Mr Turner was examined by Dr D Dixon (orthopaedic surgeon) on 10 March 2025 and was asked to assess impairment of the right lower extremity (hip), the left lower extremity (ankle/foot), and scarring. The MA has done this, finding 20% WPI for the left lower extremity, 2% for scarring, and 7% for the restricted range of right hip movement, from which he made a deduction of one-tenth, leaving 6% WPI.
I read Mr Turner the history he gave to the MA on 10 March 2025 and he agreed with this.
Additional history since the original Medical Assessment Certificate was performed
Mr Turner understandably has ongoing problems with his left foot and ankle region, with his main concern at the present time seems to be with his right buttock and thigh area where he has constant pain even when he is at rest. He has been told that he has osteoarthritis of his right hip and that he will need a hip replacement carried out. He last saw a treating specialist about a year ago and had x-rays carried out at the time.
On specific questioning he does not complain of any problems with his left hip, but as will be noted, does have significant restriction of left hip movement as well as on the right side.
His left foot and ankle symptoms remain as suggested in the Medical Assessment Certificate carried out three months ago.
Findings on clinical examination
On physical examination Mr Turner once again has a limp on both sides with residual ankle stiffness on the left side, with a range of movement as indicated by his treating specialist.
He has a full range of right ankle and subtalar movements.
There is also wasting of his right calf and right thigh.
Mr Turner does have restricted hip movements on the right side but also on the left side.
Hip Movements
Movement
Right
% Lower Extremity Impairment
Left
% Lower Extremity Impairment
Flexion
90°
5
110°
0
Extension
0°
0
0°
0
Internal rotation
0°
10
10°
5
External rotation
15°
10
20°
5
Abduction
20°
5
25°
5
Adduction
20°
0
25°
0
Total
30%
Total
15%
Please note that the range of movement of the right hip was very much less than that found by the MA, with the examinations having been carried out within 3 months of each other (March and June 2025).
There was no particular ischial tuberosity tenderness noted today.
Results of any additional investigations since the original Medical Assessment Certificate
Mr Turner has not had further investigations carried out.
I note from the MA’s report that there were no x-rays of the hip or pelvis available, but ‘…it is understood that he has been diagnosed with arthritis of his right hip which has become symptomatic while favouring his left ankle and foot’.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W26415/24 |
Applicant: | Brett Turner |
Respondent: | Canterbury Bankstown City Council |
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 Drew Dixon 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-totals % WPI (after any deductions in column 6) |
| Left lower extremity (ankle/foot) | 5.6.2019 | Chapter 3 | Chapter 17, table 17-11, 17-12 | 10% | 0 | 10% |
| Scarring | 5.6.2019 | Chapter 14 | N/A | 2% | 0 | 2% |
| Right lower extremity (hip) | 5.6.2019 | Chapter 3 | Table 17-9 | 6% | 0 | 6% |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0
5
0