Exton v Suttons Motors Waitara Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Exton v Suttons Motors Waitara Pty Ltd [2025] NSWPICMP 255
APPELLANT:	Chris Exton
RESPONDENT:	Suttons Motors Waitara Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Gerard Testa
MEDICAL ASSESSOR:	Siddarth Sethi
DATE OF DECISION:	11 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor (MA) found appellant had not suffered an injury contrary to the parties’ agreement; whether MA correctly applied the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines); Held – MA accepted the appellant had suffered an injury but assessed the appellant had no permanent impairment from that injury; if the MA did find the appellant did not suffer an injury then the MA would have made an error; that error would not change the result as the appellant did not have a rateable impairment; Appeal Panel found that the MA correctly applied the Guidelines; appellant’s permanent impairment assessed at 0%; MAC revoked and new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

Chris Exton, the appellant, worked as a motor mechanic for Suttons Motors Waitara P/L, the respondent. On 2 November 2016, while changing a front wheel on a jeep, he suffered an injury to his left and right groins.
He came under the care of general surgeon Dr Jamal Merei who diagnosed bilateral groin hernias. Dr Merei performed a laparoscopic bilateral inguinal hernial repair on the appellant at North Shore Private Hospital on 11 April 2017. Notwithstanding the surgery the appellant continues to suffer significant symptoms.
The appellant claimed compensation from the respondent’s insurer for permanent impairment from his injury, which he said was of the order of 39% whole person impairment (WPI). He relied on a report of general and diagnostic surgeon Dr John Garvey dated
19 November 2021, who found the appellant had impairments from his injury on
2 November 2016 due to the appellant’s left and right inguinal hernias, his urinary and reproductive system/impotence, his bladder and his left calf.
The respondent’s insurer rejected the appellant’s claim for compensation. In a notice it issued to him on 29 April 2022, pursuant to s78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), it explained to him that whilst it accepted he had suffered bilateral inguinal hernias, it did not accept he had suffered any digestive, urinary (bladder), reproductive system, impotence or left calf muscle wasting as a consequence of his inguinal hernias injury. On this issue, it advised him that it relied on a report of general and vascular surgeon Associate Professor Paul Myers dated 12 January 2022 and a report of urologist Dr Michael Rochford dated 1 March 2022. Regarding the degree of his permanent impairment due to his inguinal hernias injury, it advised him that it considered he had 0% WPI and that, on this issue, it relied on A/Prof Myers’s report.
The appellant then commenced proceedings in the Personal Injury Commission (Commission) by filing with it an Application to Resolve a Dispute dated 24 January 2024, by which he sought the Commission to determine his claim for compensation. The matter was referred to one of the Commission’s Members, namely Ms Anne Gracie, who with the consent of the parties, noted on 26 March 2024 that the appellant withdrew his allegation that he had a left calf muscle wasting condition as a consequence of his injury and remitted the matter to the President of the Commission so that it could be referred to a Medical Assessor to assess the degree of the appellant’s permanent impairment from his injury. Member Gracie stipulated, again with the consent of the parties, that the body parts to be assessed were “left inguinal hernia, right inguinal hernia, urinary and reproductive systems, impotence and bladder”.
On 5 June 2024 a delegate of the President of the Commission issued referrals to Medical Assessors Peter Heathcote and Phillip Truskett. The medical dispute relating to the appellant’s permanent impairment due to his urinary and reproductive systems, impotence and bladder was referred to Medical Assessor Heathcote to assess. The medical dispute relating to the appellant’s permanent impairment due to his left inguinal hernia and right inguinal hernia was referred to Medical Assessor Truskett to assess. Medical Assessor Truskett was also appointed as the lead assessor to consolidate his assessment with Medical Assessor Heathcote’s assessment.
Medical Assessor Heathcote issued a Medical Assessment Certificate (MAC) on
14 August 2024 certifying that the appellant’s permanent impairment from his injury on
2 November 2016 due to his urinary and reproductive (right testicle) systems, his impotence and his bladder system was “N/A”. Medical Assessor Truskett issued a consolidated MAC on 4 September 2024 in which he certified he assessed the appellant had 0% WPI relating to his left inguinal hernia and 0% WPI relating to his right inguinal hernia, which when combined with the “N/A” assessment Medical Assessor Heathcote made, resulted in the appellant being assessed with 0% WPI from his injury.
The appellant has appealed against the assessments both Medical Assessor Heathcote and Medical Assessor Truskett made. He relies on the following grounds for appeal under s 327(3) of 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).

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 appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for it 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.

THE MEDICAL ASSESSMENT CERTIFICATES

Medical Assessor Heathcote

Medical Assessor Heathcote noted in the MAC he issued that the appellant had been referred to him to assess the degree of his permanent impairment relating to his urinary and reproductive systems, impotence and his bladder. Medical Assessor Heathcote noted that following the appellant’s laparoscopic hernia repair the appellant described experiencing urinary and right testicle symptoms, impotence and bladder symptoms.
The symptom the appellant described experiencing in his right testicle was persistent pain. Medical Assessor Heathcote noted that the appellant takes Endep regularly and CB oil regularly for relief of this symptom. Medical Assessor Heathcote also noted that the appellant has bilateral radio-frequency nerve ablations every six months, also to provide relief of this symptom.
Medical Assessor Heathcote noted that the appellant is able to achieve a normal erection but due to his pain he suffers detumescence. The Medical Assessor noted that the appellant last completed intercourse shortly after his surgery on 11 April 2017.
Medical Assessor Heathcote noted that the appellant experiences a good urinary stream when he has a good volume of urine stored in his bladder, but if he delays micturition, he experiences left iliac fossa discomfort and urgency incontinence of urine. Medical Assessor Heathcote noted that this happens two to four times a week. Medical Assessor Heathcote also noted that the appellant sometimes notices leaks of urine onto his under garments but does not wear incontinence pads.
Medical Assessor Heathcote recorded the following findings from his examination of the appellant:
“The worker walked with a crouching, stumbling gait and sat uncomfortably throughout the consultation. In the latter half of the consultation, he asked to lie down on the examination couch. Any movement was accompanied by groaning and huffing and puffing.
After description of the physical examination the worker gave verbal consent.
The worker displayed normal secondary sexual characteristics.
Abdominal examination revealed a healed right inguinal scar from an infantile hernia repair.
There was no tenderness and no scarring on palpation of the penis.
Palpation of the scrotum and the contents was again within normal limits. Both testicles were of good volume. There was no specific tenderness of either testicle, epididymis or cord structures. The right testicle was retractile, but mobile and easily placed within the scrotum.
After explanation, verbal consent was given for a rectal examination.
Anal tone was normal.
There was a brisk, normal bulbocavernosus reflex.
The prostate was small, soft and non-tender.”
Medical Assessor Heathcote also noted that Dr Garvey had assessed the appellant had impairment but urologists Dr Korbel and Dr Rochford had not. The Appeal Panel notes that there was not in the evidence before Medical Assessor Heathcote, and also not in the evidence before it, any report of Dr Korbel, but Dr Garvey in his report of 19 November 2021 and in a subsequent report dated 24 November 2023 made reference to a report of Dr Korbel dated 19 March 2021.
Medical Assessor Heathcote expressed the view, based on the history he obtained and his findings from his examination of the appellant and the information in the documents the Commission had provided him, that the appellant’s symptoms relating to his urinary and reproductive systems, his bladder and his impotence were due to a pain syndrome and were not impairments. He said “as such, it is my opinion that there is no evaluation of permanent impairment available to the worker”.

Medical Assessor Truskett

In the MAC he issued, Medical Assessor Truskett detailed the manner in which the appellant’s injury occurred and the medical attention the appellant received after that including the bilateral inguinal hernia repair that Dr Merei performed on 11 April 2017. Medical Assessor Truskett noted that a “Bard 3D max mesh”, was used and was secured with a secure strap.
Medical Assessor Truskett noted that the appellant experienced worsening pain following surgery. Medical Assessor Truskett also detailed the medical care the appellant had been provided thereafter including several investigations the appellant had undergone.
Medical Assessor Truskett recorded in the MAC that the appellant reported he currently suffered the following symptoms relating to his groins:
“Right groin he has pain in his right groin which is present all the time. Pain is in the region of his pubic tubercle and would score 6/10 all of the time. Pain radiates up his
abdominal wall and extends to his rib cage and right flank. He would score 9/10 and is
made worse with activity and coughing. Exacerbations may last up to 3 days. Pain radiates also in the inner aspect of his right thigh and to his testes. Pain is also aggravated by standing and lying flat or on his side. He feels a constant pressure in his right testes and also radiates down the front of his leg to his knee. He would score the leg pain as 5/10 and is also made worse with activity. He stated before surgery he had a pressure feeling only.
Left groin he experiences the same extent of pain in the left groin with the same radiation to the rib cage and down the front of his left leg with same precipitating factors and intensity. Pain also radiates down the back of his left thigh to below his knee. He also experiences the same aggravating factors.
He also added that he could feel the mesh extending up to under his rib cage and could feel this by running his fingers over the skin.
…
Bowel symptoms he states that his bowels tend to dry up and he will experience abdominal spasm. When he eats he feels food passing through his bowel “like razor
blades’. He will open his bowels three times per day and it fluctuates between being hard and liquid in nature. He opens his bowels twice at night. He said he will soil himself most days but does not wear a pad. He avoids eating bread, nuts and rice as this may upset his bowels. It also causes pain. His weight fluctuates between 60 to 80 kgs although he has weighed up to 100 kgs. He states that when he puts on weight his mesh feels as if it’s not coping. He states most mornings he will dry retch and occasionally vomit using constant need to know where toilets are. This limits his mobility.”
Medical Assessor Truskett noted that the appellant invited him to feel the mesh under his rib cage, which Medical Assessor Truscott indicated he attempted to do but “could not appreciate any such abnormality”. Medical Assessor Truskett commented that:
“Dr Merei has not described the mesh size that he used. The maximum mesh size in the Bard 3D product is 18 cm. If the mesh was placed in the usual position, it would not extend more than 2 hand breadths above the pubic tubercle. It would clearly not extend to the lower rib cage as appreciated by Mr Exton.”
Medical Assessor Truskett recorded making the following findings from his examination of the appellant:
“He was a co-operative man. He walked with a limp involving his left leg. He had a walking stick in his left hand and used the walking stick in lock step with his left leg. He was cooperative. He wore a beard. He had a very flat affect. He is 175 cm tall and weighs 70 kgs. This provides him with a body mass index of 23.9 kg/m2 . He had brownish red hair. He smokes ten cigarettes per day and does not drink alcohol. He sat throughout the interview. He stood slowly when asked to be examined. He climbed on and off the examination couch without assistance. His clothing could be adjusted to perform his relevant examination. It was not necessary for him to disrobe.
On examining his abdomen there was a 7 cm scar in the right groin which was well healed. This was in keeping with a herniotomy performed as a child. There was also a sub-umbilical incision and some midline incisions that were well-healed consistent with laparoscopic surgery. There was no evidence of abdominal wall herniation. There was no evidence of recurrent inguinal for femoral hernias. There was no organomegaly or palpable masses. There was no ascites. There were unusual and unexplainable sensory changes on his abdominal wall. He said he had increased sensation over the entire abdominal wall extending from the rib cage to the groin. The right arm sensation was taken at 5/10 as a standard.
His abdominal wall sensation from his rib case to the umbilicus scored 8/10 and from the umbilicus to the groin scored 10/10 indicating twice normal sensation. This however did not dysaesthesia of any known abdominal wall nerves. Sensation was present over the distribution of the ilioinguinal and ilio hypogastric nerves. Sensation of the thighs below the inguinal crease was 5/10 which he would designate as normal. There was a full range of movement of both hips.”
Medical Assessor Truskett recorded that there were inconsistencies in the appellant’s presentation. Firstly, the distribution of the pain the appellant described was not in keeping with any known anatomical distribution relating to his inguinal hernia surgery. Secondly, given the size of the mesh used in the surgery to repair his hernias it was not possible for that to extend to his rib cage. Thirdly, there were inconsistencies between what was recorded in the documents provided to the Medical Assessor and the appellant’s recollection of his clinical history, which the Medical Assessor suggested may have been “an issue of memory”. The Medical Assessor also expressed concern that the reports of the imaging the appellant had undergone did not include any revealing evidence of inguinal hernias.
Medical Assessor Truskett noted that an ultrasound done on 15 October 2016, on which
Dr Toos Sachinwalla reported, concluded that there was no ultrasound evidence to suggest any inguinal hernia and that there was the possibility of a recent muscle strain. The Medical Assessor noted that the appellant had stated to him that a subsequent ultrasound was arranged by his general practitioner that revealed bilateral inguinal hernias but the report on that had not been provided to him.
Medical Assessor Truskett, under a sub-heading summary of injuries and diagnoses, said “unexplained persisting abdominal wall pain with no evidence of a left or right inguinal hernia with no demonstrable peripheral nerve lesion”.
With respect to his assessment that the appellant had 0% WPI relating to his bilateral inguinal hernias, Medical Assessor Truskett noted that the appellant had no palpable defect in the supporting structure of his abdominal wall. Consequently, the appellant could not be rated as having an impairment pursuant to Table 6-9 of AMA5. Medical Assessor Truskett further noted that a rating of the appellant’s impairment could not be made by reference to the criteria of paragraphs 16.2 – 16.4 of the Guidelines. He explained this was because the appellant’s hyperaesthesia extended from the inguinal ligament to the costal margin, which was not in the distribution of the inguinal nerve. Medical Assessor Truskett said that the hyperaesthesia the appellant was experiencing could not be related to the repair of his left inguinal hernia.
The Appeal Panel notes Medical Assessor Truskett’s findings from his examination of the appellant included that the appellant’s scarring from his surgery had healed well and that there was no evidence of abdominal wall herniation, ascites or organomegaly. Although the Medical Assessor did not explicitly state so, this indicates that the appellant had no residual persistent excessive induration at the site of his surgery. This would explain why the Medical Assessor considered he could not make a rating of the appellant’s permanent impairment under paragraph 16.4 of the Guidelines.
The Medical Assessor noted that surgeon Dr Neil Berry in a report dated 6 November 2020 had advised that he assessed the appellant had 5% WPI of his left groin on the basis that the appellant had an incarcerated left inguinal hernia. Medical Assessor Truskett noted that
Dr Berry did not detail the evidence upon which he came to that conclusion. Medical Assessor Truskett indicated that based on the clinical signs the appellant described at his examination an incarcerated hernia “is not present today”.
Medical Assessor Truskett also detailed in the MAC the assessment Dr Garvey made relating to the appellant’s left and right inguinal hernias. Medical Assessor Truskett said that the findings by reference to which Dr Garvey made his assessment “were not present today” and that Dr Garvey’s assessments did “not account for the generalised hyperaesthesia of the abdominal wall”.

Medical Assessor Truskett provided the following summary:
“In summary my assessment today describes a significant hyperaesthesia over the entire abdominal wall which cannot be explained by anatomical neural injury and a strange somatisation of the impression that he can feel a mesh extending from his groin to his rib cage both sides. This is clearly not factual as based on the maximum sized mesh that could have been provided to him as discussed above. I can find no convincing evidence of a recognisable organic pathology.”

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

Medical Assessor Heathcote

In summary, the appellant submitted with respect to Medical Assessor Heathcote’s assessment that the Medical Assessor ignored the parties had agreed that he sustained injuries to his urinary and reproductive system, bladder and had an impotence from his injury. The appellant submitted that it was not Medical Assessor Heathcote’s role to question whether he had suffered such an injury and he was required to assess the degree of his permanent impairment from those injuries.
The appellant submitted that Medical Assessor Heathcote failed to assess his permanent impairment at all.
The appellant submitted that there can be multiple causes of an impairment and so long as his injury materially contributed to his impairment Medical Assessor Heathcote was required to assess the degree of his permanent impairment from his injury.
The appellant submitted that Medical Assessor Heathcote was required to assess his impairment even if other injuries, that were not the subject of the assessment, may have contributed to his impairment. The appellant relied on Bukorovic v The Registrar of the WCC[1] and Huni v Allianz Australia InsuranceLtd[2] as authorities to support this submission.
[1] [2010] NSWSC 507.
[2] [2014] NSWSC 1,587.
The appellant submitted that Medical Assessor Heathcote did not consider “the substance of the evidence of Dr Garvey”, and ignored Dr Garvey’s comments regarding causation.
In reply, the respondent submitted that Medical Assessor Heathcote obtained a clear history from the appellant that he could achieve a normal erection and hence there was no assessable impairment with respect to that. The respondent further submitted that Medical Assessor Heathcote’s finding that the appellant had no assessable impairment with respect to bladder dysfunction was inconsistent with the clinical history and Medical Assessor Heathcote’s findings from his examination of the appellant.

Medical Assessor Truskett

In summary, the appellant submitted with respect to Medical Assessor Truskett’s assessment that Medical Assessor Truskett ignored he had sustained inguinal hernia injuries which had resulted in his having an impairment. The appellant submitted that Medical Assessor Truskett was wrong to conclude that there was “no evidence of a left or right inguinal hernia”.
The appellant submitted that the Medical Assessor erred with respect to his application of paragraph 16.3 of the Guidelines because it was beside the point that the Medical Assessor considered his report of symptoms to be excessive. The appellant submitted that the Medical Assessor was required to assess him as he found him.
The appellant submitted that Medical Assessor Truskett focused on perceived inconsistencies rather than admitted facts and known matters and as an example referred to his symptoms from the mesh that Dr Merei had placed during surgery. The appellant submitted that Medical Assessor Truskett rather than ascertaining the actual manner in which this surgery was performed made his assessment based on his own hypothesis regarding that. The appellant submitted that the fact that he reported experiencing symptoms in his rib cage did not necessarily mean that the mesh itself was situated at his rib cage.
The appellant submitted that Medical Assessor Truskett did not afford him procedural fairness because Medical Assessor Truskett did not raise with him the inconsistencies in his presentation. The appellant submitted that this denied him an opportunity to respond to those inconsistencies.
In reply, the respondent submitted that Medical Assessor Truskett did not find that the appellant did not suffer an injury of bilateral inguinal hernias, rather Medical Assessor Truskett concluded that based on his examination there was no evidence of recurring bilateral inguinal hernias at the time of assessment. The respondent submitted that it was open to Medical Assessor Truskett to make that finding.
The respondent submitted that Medical Assessor Truskett was clear that there were no relevant clinical findings that would allow him to make an assessment of the appellant’s permanent impairment by reference to Table 6-9 of the Guidelines.

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.

Medical Assessor Heathcote

The appellant’s case is not that he suffered a direct injury to his urinary and reproductive systems or to his bladder or that he suffered impotence in the incident on 2 November 2016 when he suffered an injury in the form of bilateral inguinal hernias. Rather, his case is that, as detailed in the ARD, that in the incident he suffered an injury to his groins and bilateral inguinal hernias and developed, as a consequence of that and the surgery for that injury, conditions in the form of a urinary and reproductive system incompetence and a condition in his bladder and impotence.
The Appeal Panel considers that when the MAC of Medical Assessor Heathcote is read as a whole, Medical Assessor Heathcote conducted his assessment of the appellant’s permanent impairment relating to the body parts and systems that had been referred to him to assess on that basis. That is, Medical Assessor Heathcote accepted that the appellant, as a consequence of his bilateral inguinal hernia injury and his surgery for that, developed urinary and bladder symptoms and impotence. In other words, the Appeal Panel does not accept the appellant’s submission to the effect that Medical Assessor Heathcote did not proceed on the basis that the injury the appellant suffered on 2 November 2016 included the symptoms that the appellant developed in his urinary system and bladder and his impotence.
Although Medical Assessor Heathcote in the MAC he issued said there is “no evaluation of permanent impairment available to the worker”, and recorded in the table he included in the MAC, that the appellant’s permanent impairment with respect to the body systems referred to him to assess was N/A, it is apparent that he assessed the degree of the appellant’s permanent impairment due to the urinary and reproductive systems, his impotence and his bladder was 0%. In the Table in the MAC, he ought to have specified it was 0% rather than “N/A”.
If the Appeal Panel is wrong with respect to its conclusion that Medical Assessor Heathcote proceeded with his assessment of the appellant’s permanent impairment on the basis that the symptoms the appellant was experiencing in his urinary and reproductive systems, bladder and his impotence was a consequence of his injury, and it is the case, as the appellant has submitted, that Medical Assessor Heathcote proceeded on the basis that the conditions he has in his urinary and reproductive systems and his bladder and his impotence are unrelated to his injury on 2 November 2016, then the same result would be achieved, that is a 0% assessment. In other words, in this hypothetical situation, if the Medical Assessor did make the error that the appellant has contended the Medical Assessor made, (and to stress this is not what the Appeal Panel is finding but is exploring this in arguendo), then it would fall upon the Appeal Panel to correct that error and in so doing the Appeal Panel would assess the degree of the appellant’s permanent impairment with respect to his urinary and reproductive systems, impotence and bladder is 0% WPI.
The Medical Assessor’s examination of the appellant was thorough with respect to the matters that had been referred to him to assess. That is, everything that he needed to examine to ascertain whether he could rate the appellant’s impairment with respect to the body parts and systems that had been referred to him for assessment, he examined. The Appeal Panel can consequently accept and adopt the Medical Assessor’s findings. Based on his findings, and the appellant’s description of his present symptoms, there is no basis upon which the appellant can be rated for impairment.
There is not within the evidence that was before the Medical Assessor and is before the Appeal Panel any recording of the appellant’s creatinine clearance. The appellant does not have both symptoms and signs of upper urinary tract dysfunction. Both his kidneys are functioning. Hence there is no basis upon which the appellant could be rated for impairment by reference to Table 7-1 of AMA5.
There is no evidence of the appellant having a urinary diversion disorder such that an impairment could be rated by reference to Table 7.1 within paragraph 7.4 of the Guidelines.
Further, whilst the appellant has symptoms of a bladder disorder, in that two to four times a week he experiences iliac fossa discomfort and notices leaks of urine into his under garments but not sufficient to warrant incontinence pads, there is nothing within Medical Assessor Heathcote’s findings from his examination of the appellant that demonstrates the appellant exhibits signs of bladder disorder. Further, no urodynamic analyses have been done, and hence there is no investigation that reveals any disease or disorder of his bladder.
Similarly, the appellant does not have both symptoms and signs of urethral disorder such that a rating of impairment could be made by reference to Table 7.3 within paragraph 7.7 of the Guidelines. The appellant has symptoms of urethral disorder in that he occasionally experiences urine incontinence but there is no study that has been done to indicate that he exhibits signs of urethral disorder and nor did Medical Assessor Heathcote find from his examination that the appellant exhibits any signs of urethral disorder.
There is nothing within the evidence that was before the Medical Assessor and that is before the Appeal Panel that reveals the appellant has an identifiable pathology that explains his sexual dysfunction. The Medical Assessor noted that he found the appellant had normal secondary sexual characteristics. The appellant reported that he can achieve an erection although suffers detumescence due to pain. Because there is no identifiable pathology, then consistent with paragraph 7.2 of the Guidelines, an assessment of impairment for impotence can not be made.
The Appeal Panel considers that, whilst the explanation Medical Assessor Heathcote provided for his assessment of the appellant’s permanent impairment relating to his bladder, his impotence and his urinary and reproductive systems was sparse, based on the appellant’s description of symptoms to Medical Assessor Heathcote, and Medical Assessor Heathcote’s findings from his examination of the appellant, Medical Assessor Heathcote was correct to assess the appellant as having no permanent impairment due to those matters. This is because, for the reasons the Appeal Panel has just set out in [55]-[59] for how it would have rated the appellant’s impairment, the evidence before Medical Assessor Heathcote and his findings from examination and the appellant’s report of symptoms, only allowed a rating of 0% WPI to be made. In accordance with paragraph 1.6a of the Guidelines, Medical Assessor Heathcote was required to assess the appellant’s permanent impairment as the appellant presented at the time of assessment. Medical Assessor Heathcote was entitled to rely on his clinical observations to conduct his assessment of the appellant’s impairment, rather than the observations or findings of other clinicians.[3] That is what Medical Assessor Heathcote did in this case and, as the Appeal Panel has said, based on his findings and the symptoms the appellant reported to him the Medical Assessor was correct not to assess the appellant as having any permanent impairment with respect to those body parts and functions that were referred to him to assess.
[3] Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [52]-[54]; Ferguson v State ofNew South Wales [2017] NSWSC 887 at [23]-[24]; Cheers v Mid Coast Council [2024] NSWSC 1553 at [29]-[31].
The Appeal Panel does not accept the appellant’s submission that Medical Assessor Heathcote did not have regard to the contents of Dr Garvey’s report. Medical Assessor Heathcote said he noted Dr Garvey’s report. Medical Assessor Heathcote has consequently taken into account the content of Dr Garvey’s report, but as said Medical Assessor Heathcote was entitled to rely upon his clinical observations and findings, rather than the findings of Dr Garvey, when assessing the degree of the appellant’s permanent impairment.
It is true, as the appellant submitted, that an impairment a worker suffers may have multiple causes and, so long as the work injury materially contributes to the worker’s impairment, the impairment of the worker is to be attributed to the work injury (with the exception of course if the non-work cause preceded the work injury in which case a deduction may be required in accordance with s 323 of the 1998 Act). In this case however, based on the appellant’s presentation at assessment the appellant has no impairment with respect to the body systems and functions that were referred to Medical Assessor Heathcote to assess. Nothing can contribute to something that does not exist.

Medical Assessor Truskett

The Appeal Panel does not accept the appellant’s submission to the effect that Medical Assessor Truskett “ignored” the appellant suffered bilateral inguinal hernias in the incident on 2 November 2016. When the MAC is read as a whole the Appeal Panel considers that, as the respondent has submitted, what the Medical Assessor found is that there was no evidence of recurring hernias at the time of assessment. Medical Assessor Truskett did not find at the time of his examination of the appellant that the appellant had a palpable defect in the supporting structures of the abdominal wall and hence a diagnosis could not be made that at the time the appellant had hernias. The fact that there was no evidence of recurring hernias would be due to the appellant having had surgery to repair his inguinal hernias and the mesh that was inserted during surgery preventing further herniation. That is, notwithstanding the appellant has suffered symptoms after his surgery, the surgery was successful in repairing the hernias and preventing further hernias.
Based on Medical Assessor Truskett’s findings from his examination of the appellant and the symptoms that the appellant reported to Medical Assessor Truskett, Medical Assessor Truskett was correct to assess the appellant’s permanent impairment from the bilateral inguinal hernias the appellant suffered in the incident of 2 November 2016 as being 0%. As discussed above, a Medical Assessor is required to assess the degree of a worker’s permanent impairment based upon how the worker presents at the time of assessment and the Medical Assessor is entitled to rely on his or her own clinical observations and findings of the worker to make the assessment.
The findings Medical Assessor Truskett made from his examination of the appellant were such that a rating of impairment could not be made by reference to paragraph 16.2 – 16.4 of the Guidelines for the following reasons.
Firstly, the loss of sensation the appellant described to Medical Assessor Truskett was not within the distribution of any nerve. Consequently, a rating of impairment cannot be made by reference to paragraph 16.2 and 16.3 of the Guidelines. Whilst the appellant had invasive treatment to repair his hernias that could potentially affect the ilioinguinal, genitofemoral, iliohypogastric nerves, at the time Medical Assessor Truskett examined the appellant the dysaesthesia he was experiencing was not in the distribution of those nerves. Hence, and as said, no rating of impairment could consequently be made.
Secondly, the Medical Assessor’s description of his findings from his examination of the appellant’s abdomen are such that the appellant did not have any induration at the site of his surgery. Consequently, a rating of impairment could not be made by reference to paragraph 16.4 of the Guidelines.
It is the case, as the appellant submitted, that a Medical Assessor when conducting an assessment of a worker must afford the worker procedural fairness.[4] The Appeal Panel is of the view however that the obligation on Medical Assessor Truskett to afford the appellant procedural fairness did not require Medical Assessor Truskett to put to the appellant at the time of the assessment the inconsistencies he found in the appellant’s presentation, for the following reasons.
[4] Frost v Kourouche [2014] NSWCA 39 at [32], [35]; Hutchison v Wyong Race Club Ltd [2020] NSWSC1592 at [74]-[78] and cases discussed therein.
The appellant’s perception of a palpable mesh extending to his rib cage was checked by Medical Assessor Truskett during his examination of the appellant and based on his examination and also his knowledge of the size of the mesh used he concluded, essentially, that the appellant’s perception of symptoms from that mesh did not correlate with what was the actual case. That is, the symptom the appellant perceived he was experiencing was not due to the placement of the mesh. The medical experts on the Appeal Panel concur with Medical Assessor Truskett’s statement regarding the size of the mesh that was implanted into the appellant. Given the size of the mesh, the anatomical site of the hernias, and the fact that Medical Assessor Truskett could not on examination find a palpable mesh extending to the appellant’s rib cage, the Appeal Panel considers that Medical Assessor Truskett’s finding to the effect that the appellant’s perception of the symptoms extending to his rib cage were not a consequence of the mesh is correct.
In the Appeal Panel’s view Medical Assessor Truskett afforded the appellant procedural fairness with respect to this issue by listening to the appellant with respect to the symptoms he experiences and then ascertaining during his examination whether the mesh could be felt at his rib cage.
The inconsistency that the Medical Assessor recorded of the appellant’s description of his distribution of pain not being within an anatomical distribution relating to the nerves that could be affected by inguinal hernia surgery was a matter within the expertise of the Medical Assessor. This was merely a finding that Medical Assessor Truskett made in accordance with his clinical expertise and skill. The obligation of Medical Assessor Truskett to afford the appellant procedural fairness did not require him to put that finding to the appellant during assessment. Essentially that was part of the reasoning of Medical Assessor Truskett in concluding that the appellant did not have any ratable impairment by reference to paragraphs 16.2 and 16.3 of the Guidelines. The obligation to afford a worker procedural fairness does not require a Medical Assessor to expose his or her reasoning to a worker.
Medical Assessor Truskett’s observation that there were inconsistencies between the clinical history the appellant provided and the documentation was merely an observation that played no part in Medical Assessor Truskett’s reasoning for the assessment he made. Frequently, there is discrepancy between a worker or patient’s recollection of what has occurred and what a treating clinician has contemporaneously entered in the records the treating clinician keeps. The greater the passage of time between providing the worker or patient providing the recollection and the clinician recording the data, the more likely it is the discrepancy will occur. This is just the consequence of the frailty of human memory. It seems to the Appeal Panel that when read in context, Medical Assessor Truskett noting that there was this discrepancy in this case, was done for the sake of completeness, and as said, the Appeal Panel does not consider it played any part in t Medical Assessor Truskett’s assessment of the appellant’s impairment.

With respect to the Medical Assessor’s remark that no imaging studies had been provided that revealed the appellant’s hernias, it seems to the Appeal Panel that, when the MAC is read as a whole, the Medical Assessor did discuss with the appellant what ultrasounds had been done. This is because when Medical Assessor Truskett detailed within the history he set out in the MAC the results of the ultrasound done on 15 October 2016 he noted that the appellant said that an ultrasound had been performed that showed bilateral inguinal hernias. The inference from that being that Medical Assessor Truskett asked the appellant about what investigations had been done. In any event, as noted earlier, the Appeal Panel is of the view that the Medical Assessor conducted his assessment of the degree of the appellant’s permanent impairment on the basis that the appellant in the event of 2 November 2016 did suffer bilateral inguinal hernias but they had not recurred subsequent to his surgery and there was no evidence of the presence of bilateral inguinal hernias at the time of assessment.
On that issue of the Medical Assessor accepting that the appellant did suffer bilateral inguinal hernias from the event on 2 November 2016, if the Appeal Panel is incorrect with its conclusion that Medical Assessor Truskett did so, the task would fall to the Appeal Panel to correct that error of Medical Assessor Truskett. That is, in arguendo, had Medical Assessor Truskett concluded that the appellant did not suffer an injury in the form of inguinal hernias in the incident of 2 November 2016, then he made an error, because there was no dispute between the parties that the appellant had suffered such an injury. The Appeal Panel, in such a hypothetical, would then need to correct that error, that assess the appellant’s permanent impairment from his injury of bilateral inguinal hernias. The result would still be the same, that is a 0% assessment. This is because the Appeal Panel considers that Medical Assessor Truskett’s examination of the appellant was thorough and his findings from his examination are sound such that the Appeal Panel could use them to assess the degree of the appellant’s permanent impairment. Based on those findings, and as has been discussed above, no rating of impairment could be made.
In summary, the Appeal Panel finds that Medical Assessor Truskett and also Medical Assessor Heathcote were correct in assessing that the appellant did not have any impairment from the matters that were respectively referred to them to assess. As also indicated above, Medical Assessor Heathcote rather than assessing the appellant’s permanent impairment as “N/A” ought to have assessed his impairment as 0%. To correct that particular issue the Appeal Panel shall revoke the MAC Medical Assessor Heathcote issued on 14 August 2024 and the consolidated MAC that Medical Assessor Truskett issued on 4 September 2024 and issued a new consolidated MAC. 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:	W642/24
Applicant:	Chris Exton
Respondent:	SUTTONS MOTORS WAITARA P/L

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 Heathcote and the Consolidated Medical Assessment Certificate of Medical Assessor Truskett 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)
Left inguinal hernia	2.11.2016	Paragraphs 16.2-16.4	Section 6.6	0%	-	0%
Right inguinal hernia		Paragraphs 16.2-16.4	Section 6.6	0%	-	0%
Urinary and reproductive system		Paragraphs 7.1-7.8	Chapter 7	0%	-	0%
Impotence		Paragraph 7.2	Chapter 7	0%	-	0%
Bladder		Paragraphs 7.1-7.8	Chapter 7	0%	-	0%
Total % WPI (the Combined Table values of all sub-totals)					0%

[2025] NSWPICMP 255

11 April 2025