Fisher v Able Roadwork Traffic Analysis Pty Ltd
[2025] NSWPICMP 757
•1 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Fisher v Able Roadwork Traffic Analysis Pty Ltd [2025] NSWPICMP 757 |
| APPELLANT: | Craig Alan Fisher |
| RESPONDENT: | Able Roadwork Traffic Analysis Pty Limited |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 1 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal from assessment pursuant to the Table of Disabilities; whether adequate reasons given for findings; Held – Medical Assessor’s reasoning difficult to comprehend; claimant re-examined; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 April 2025, Craig Alan Fisher, appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Donald Cawthorne, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
1 April 2025.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5 Guides). “WPI” is reference to whole person impairment. “Baseline WPI” is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.
RELEVANT FACTUAL BACKGROUND
On 4 February 2025 this matter was referred to the Medical Assessor for an assessment pursuant to the Table of Disabilities as follows:
· permanent impairment of the neck;
· permanent impairment of the back;
· right arm at or above the elbow, and
· left arm at or above the elbow.
These injuries were agreed to have occurred on 6 February 1998. The referral document referred to previous awards made by way of a s 66A agreement on 8 January 2001 in respect of 20% permanent impairment of the neck and 20% permanent impairment of the back.
The Medical Assessor accurately reproduced the terms of the referral at [1] of the MAC.
Mr Fisher was employed as a Traffic Controller when on 6 February 1998 he was assaulted severely. He was repeatedly punched and kicked, picked up and bounced on his head, and kicked in the face. He lost consciousness.
His medical history since then has included surgery for his nasal fracture and multiple reviews and treatments.
He came to surgery with Dr Hsu on 16 July 2021 where a C5/6 and C6/7 anterior cervical discectomy and fusion was carried out at Westmead Private Hospital. This however was not successful.
He was told on 19 May 2022 that an MRI scan demonstrated that the fusion “had not taken”.
The Medical Assessor awarded:
· 30% permanent impairment of neck;
· 5% permanent impairment of back;
· 0% left arm at or above the elbow, and
· 0% right arm at or above the elbow.
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 the worker should undergo a further medical examination because the Medical Assessor has fallen into error and a reassessment of the loss of use to both upper extremities are accordingly required.
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
Medical Assessor Chris Oates of the Appeal Panel conducted an examination of the worker on 13 August 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 below 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
In recording Mr Fisher's present complaints the Medical Assessor noted:[1]
“● Pain radiating down both arms
· Pins and needles/numbness in the fingertips of the left hand, mainly the index and middle fingers. Mr Fisher states that this is likely arterial damage from a cannula insertion.”
[1] Appeal papers page 24.
On examination the Medical Assessor made the following findings:[2]
“Upper limbs:
·Biceps reflex 1 + symmetrical
·Triceps reflex 1 + symmetrical
·Hoffman’s sign negative
·Subjective altered sensation to all fingers of left hand. Difficulty to describe difference
·Power grade 5 from C5 to T1 myotomes symmetrical.”
[2] Appeal papers page 25.
In his summary at [7] of the MAC the Medical Assessor repeated the history of the injury, noting that Mr Fisher, in addition to the neck injuries and the nasal fracture, suffered “ongoing neck pain with radiation to the upper limbs…” He said:
“Mr Fisher continues to suffer from constant neck pain intermittently radiating to the shoulders and down the arms. …”
The Medical Assessor stated that he could not identify any inconsistency with regard to
Mr Fisher's presentation.At [9] of the MAC the following appeared:
“The fact on which I have based my assessment of whole person impairment are:
A thorough history, a comprehensive physical examination, a review of the documentation made available by the Personal Injury Commission with reference to SIRE Guidelines (2021) and AMA-5.”
At [10b] the Medical Assessor said:
“An explanation of my calculation (if applicable):
Calculation are based on review of all relevant material and my detailed examination of the patient today in comparison to most extreme case of impairment.”
At [10c] the Medical Assessor made some comments as to his findings. He compared the findings of the experts retained in the case for each party:
“Dr Sharp 24/8/2020: Using AMA-5: 7% WPI for Neck and Lumbar Spine
Dr Sharp 20/5/2021: Using Table of Maims: 10% impairment neck
Dr Doig 19/7/2022: Using AMA-5: WPI 31% - 27% C-spine and 5% L spine (Table of Mains 30% neck, 5% Right Arm, 10% left arm, 30% Lumbar spine)
Dr Doig 15/01/2021: AMA-5 11%: C-Spine 6%, Lumbar Spine 5%.”
The Medical Assessor said:
“My findings are similar to that of Dr Doig on review today with discrepancy in extrapolation/interpretation to the Table of Disabilities.”
The Medical Assessor's Table 1 Assessment Certificate was in the appropriate form for an assessment of the Table of Disabilities.
SUBMISSIONS
Mr Fisher relied on the advice given by his expert Dr Graeme Doig on 19 July 2022. Dr Doig relevantly found there to be a 5% permanent loss of efficient use of the right arm and
10% permanent loss of efficient use of the left arm.Mr Fisher related the history of his injury and noted that he entered into a s 66A Complying Agreement on 8 January 2001 regarding the assessment of permanent impairment to the neck and the back.
Mr Fisher noted further that an application was made to the then Workers Compensation Commission in 2018 regarding a threshold dispute in matter number W3083/18.
The Approved Medical Specialist (as Medical Assessors were then known) certified on
17 July 2018 that Mr Fisher had not yet reached maxim medical improvement because he was waiting to undergo his cervical fusion.In July 2022 he was referred to a Medical Assessor Kuru for the same purpose and Medical Assessor Kuru assessed relevantly a 25% WPI for the cervical spine, thus deciding the threshold question raised by the referral.
Mr Fisher submitted that the findings by the Medical Assessor showed:
· radiating pain down through the neck shoulders and right arm;
· radiating pain down through the neck shoulders and left arm;
· diminished reflexes, and
· altered sensation in the fingers of the left hand being a sensation of pins and needles.
It was submitted that these findings were incompatible with an assessment of 0% loss of use of the left hand, as the Medical Assessor himself had found radiating pain down both arms diminished reflexes in the bicep and tricep and the loss of sensation in the left hand.
Mr Fisher referred to the explanation at [10b] that the Medical Assessor had reviewed all the relevant material, examined Mr Fisher and compared his condition to a most extreme case of impairment.
He submitted that this explanation fell short of providing any reasons for why 0% in respect of each arm had been found. The failure to provide reasons itself it submitted was also a demonstrable error.
Respondent
The respondent submitted that sufficient reasons had been given for the nil findings in relation to each arm.
The respondent referred to the examination findings of the Medical Assessor, noting that there was no inhibition of range of motion recorded at the shoulders and that the reflexes were within the range that were generally considered normal. The respondent submitted that the submission as to the reflexes being diminished was erroneous.
We were referred to a negative Hoffman sign which, it was submitted, indicated a normal finding regarding the nerve pathways associated with the reflex.
There was also a muscle power grade of five in the myotomes C5 through T1, which were symmetrical and indicated normal muscle strength and function.
These observations, it was submitted, were in accordance with the function described by Campbell J in State of New South Wales (NSW Department of Education) v Kaur.[3] We also referred to Glen William Parker v Select Civil Pty Limited[4] in furtherance of the well accepted proposition that a Medical Assessor is not obliged to accept the medical opinion of other specialists.
[3] [2016] NSWS 346.
[4] [2018] NSWS 140.
We also referred to the provisions of Chapter 1.6 of the AMA Guides, which require that a claimant be assessed as he presents on the day of assessment and that a Medical Assessor take into account the matters therein referred to. This it was submitted, is what the Medical Assessor did.
We were referred to Vegan, which we have mentioned above, as to the adequacy of the reasons that needed to be given.
The respondent submitted that Mr Fisher's assertions involved a “hypocritical assessment of the MAC” and we were referred to Bojko v ICM Property Service Pty Limited & Ors.[5]
[5] [2009] NSWCA 175.
There was accordingly, it was submitted, a sufficient explanation as to the findings of 0% loss of use of either the right or the left arm.
The respondent submitted that it was incorrect to assert that the Medical Assessor had applied the wrong principles in the assessment, as he referred to Mr Fisher's subjective symptoms and relied on his examination to form his assessments.
The submission from Mr Fisher were no more than expressions of a difference in opinion on which reasonable minds might differ, it was submitted.
It was submitted further that Dr Doig's findings were dated, as they had been conducted on 17 May 2022. It may be that Mr Fisher’s condition had improved since then, it was argued. [although that would have happened in the last two years when there has been no improvement since 2018. It was not a subject that was broached by the respondent].
CONSIDERATION
Dr Doig's report of 17 July 2022 was prepared for two reasons. One was to obtain an assessment under the Table of Disabilities and the other was to obtain a WPI assessment for the purposes of threshold findings.
We were unable after examining Dr Doig's report to fully comprehend the finding by the Medical Assessor that his findings were similar to that of Dr Doig “with discrepancy and extra extrapolation/interpretation to the Table of Disabilities”.
Whilst the respondent’s submissions attempted to give an explanation as to what it thought the Medical Assessor might have been relying on, we remain uncertain as to the meaning of that finding. It does not assist us to understand why he found that there was nil loss of use to both arms, when the test for the Table of Disabilities is subjective and not subject to the controls of the WPI regime.
Moreover, his report that Mr Fisher continued to suffer from constant neck pain intermittently radiating to the shoulders and down the arms on its face implies that there probably was such a loss, and we were unable to follow why no impairment had been found.
A demonstrable error has thereby occurred, due to the failure by the Medical Assessor to adequately explain his findings.
We accordingly determined that Mr Fisher should be re-examined. Medical Assessor Oate’s report follows:
“Method of Assessment: Table of Disabilities
Date of Examination:
The worker was re-examined on behalf of the Medical Appeals Panel by Medical Assessor Oates at the PIC Medical Suites on 13/8/2025 as arranged.
His wife accompanied him to the medical suites but he was assessed alone.
At a later point in the history taking, I asked whether Mr Fisher wanted his wife to come into the examination room and he declined.
I explained the process to the worker and that I was unable to advise him regarding any aspects of his condition, because I was assessing him as an independent decision maker. I asked him if he had any questions about the process, and he pointedly asked if the purpose of this assessment was to keep him out of the court, which is, he alleges, what the original Medical Assessor told him.
HISTORY RELATING TO THE INJURY
Right hand dominant. The worker said on 6/2/1998 at about 11.30am, whilst working as a traffic controller at the Olympic Park Rail Station construction site, he was assaulted. He had asked two men to move their truck, as it was in a no parking zone, and they both attacked him.
He was repeatedly punched and kicked, and the larger of the two men picked him up bodily and slammed his head into the ground. He was also kicked in the face and he lost consciousness. He sustained laceration to the scalp, fractured nose, injuries to the neck and low back.
He saw a nearby GP, Dr Lim, at Villawood who organised investigations. He drove home and then saw his own GP, Dr Drew, at Dora Creek.
After the accident, he had pain in the cervical spine radiating down both upper extremities, with tingling into the hands and low back pain.
He was referred to an ENT surgeon who operated on his nasal fracture at Bigg Street Private Hospital in Liverpool.
He then had ongoing treatment for his injuries. He attempted to return to work about six months after the accident, but only lasted one day. He presented a certificate for suitable duties but was told by the employer that no light duties were available and he was sent home.
He had various treatments including medications, physiotherapy and use of a TENS machine, hydrotherapy and remedial massage. He also saw a psychiatrist.
He lost his home and had to move back in with his parents and the psychiatrist whom he saw was near their place at Taree.
He later tried work as a shelf filler and a supervisor at the workplace noticed he was having problems and told him to bring a certificate of full fitness, which Dr Drew declined to give him.
He was referred to Dr Hsu, spinal orthopaedic surgeon, in September 2011 with complaints of continuing cervical spine pain radiating into both upper extremities. He had an MRI scan of the cervical spine and EMG nerve conduction study.
He then underwent CT-guided left C5/6 and C6/7 foraminal injections in approximately January 2013 and obtained a couple of weeks relief.
He was further reviewed by Dr Hsu who recommended C5/6 and C6/7 anterior cervical discectomy and fusion. Whilst he was waiting for approval, he saw pain physician,
Dr Russo. He continued conservative treatment in the meantime and did not attend a multi-disciplinary pain program.On 16/7/2021, Dr Hsu performed the surgery on the cervical spine at Westmead Private Hospital and this was funded by the insurer.
Unfortunately, surgery was not successful and he had continuing pain in the cervical spine radiating down into both upper extremities. He had post-operative MRI scans and nerve conduction studies.
The symptoms in the arms and neck were worse than they had been pre-operatively. The right arm had more intense symptoms than the left arm.
A post-operative MRI scan was reviewed with Dr Hsu on 19/5/2022 showing the fusion had not taken up.
A left C5/6 level injection was performed providing some temporary relief only.
He had a bone scan and revision posterior cervical fusion surgery was recommended at review in 2022. He did not undergo the revision surgery, as there was no guarantee it would be successful.
He was unsure if he saw Dr Hsu again after that.
At this point, I asked him whether he wanted his wife to assist in recalling details of the history, but he declined this and she remained in the waiting area.
There was no further treatment thereafter.
Present treatment
He takes Palexia when required for more severe pain once or twice a week. He has Panadol most days, between two and six tablets per day.
He had previously been taking Mersyndol Forte but had become habituated to them.
He also has three or four beers a day, which he feels relieves some of the pain.
For about the last 20 years now, his GP has Dr Darji, Halakalane. He sees the GP about every three months for a certificate of unfitness to continue his payments under workers compensation.
He did see a psychiatrist, Dr Carl Coller, Mayo Clinic in Taree, for about 10 years until ongoing liability was cancelled by the insurer.
Present symptoms
He has central neck pain which radiates to the trapezii bilaterally and also up to the occiput. He can’t get his neck and upper back comfortable to lie down. His sleep is disturbed and he has tried various pillows without result.
He has a pressure feeling in the neck and frontal headaches, and had investigations showing a right frontal sinus cyst. He had ‘clean-up surgery’ for this in 2020 which was helpful for about 12 months or more, but then the symptoms gradually returned of frontal headaches.
Neck pain travels down the lateral right upper arm to the proximal one-third of the forearm, with pins and needles in the right forearm to the index, middle and ring fingers, and numbness in the right little finger which comes on with extended position of the upper back and neck. The little finger numbness is permanent.
He has pain from the neck down the left lateral upper arm as far as the elbow and overall the symptoms in the left upper extremity are less severe than the right side. There is constant numbness just in the tips of the left thumb, index and middle finger, and this was noted straight after the neck surgery. He relates this to possible traumatic insertion of the anaesthetic canula. There is occasional tingling in the left ring and little fingers.
His low back is ‘stuck’. He has pain across the lower back and can’t pick up his two-year-old granddaughter. There is radiation to both buttocks and the back pain is worse with prolonged sitting and driving. He gets pain across the interscapular region, which is worse with prolonged sitting.
Overall, his neck symptoms are worse than the lower back.
Driving causing increased low back pain and upper thoracic pain and his sleep is disturbed by right arm pain and numbness.
Details of any previous or subsequent accidents, injuries or condition
Nil relevant.
General health
He has asthma and uses Symbicort and Ventolin, and takes Diabex for pre-diabetes. He also has Montelukast as an asthma prophylactic.
Work history including previous work history if relevant
He worked as a merchandiser/storeman at Pfizer, labourer and courier.
Social activities/ADL
Before the assault incident, he was very active showing and breeding Bull Terriers and fishing. He was not able to renew his dog club membership because of financial straits and not able to continue showing or breeding dogs, and this upset him.
He has not been fishing for months because of his right arm symptoms.
He lives in a house with his wife. She works casual but on a full-time hours basis and his stepdaughter lives with them and the stepdaughter’s partner.
His wife does most of the housework. The stepdaughter and her partner do the yard work.
He can manage activities of daily living of personal care, but is scared of slipping in the shower so he does not shower daily. He does not use a shower chair and there are no grab rails installed.
FINDINGS ON PHYSICAL EXAMINATION
The applicant was hostile and confrontational from the beginning of the assessment. He expressed considerable animus towards the insurance company at the outcome of his workers compensation journey so far.
He sat without visible discomfort whilst relating the history and could transfer freely and move about the room freely.
He was solid build with height 168cm and weight 85kg.
Cervical spine
Flexion one-half normal range, extension one-third, lateral flexion one-half bilaterally, rotation to the right two-thirds and to the left one-half.
Tenderness in the upper cervical spine mid-line and bilateral lower paracervical area.
Reflexes were all of low amplitude but present with reinforcement. Power right equals left. Sensation was reduced in the palmar aspect of both hands, but not on the dorsal aspect in a non-dermatomal distribution.
Upper arm girth; right 30.5cm, left 31cm at 10cm above the elbow.
Forearm girth; right equals left equals 29cm at 5cm below the elbow.
No spasm or guarding.
Lumbar spine
Tenderness at the L5/S1 level centrally.
Flexion one-half, extension two-thirds of normal range, lateral flexion three-quarters bilaterally and rotation was two-thirds bilaterally. There was no spasm or tenderness.
Reflexes were symmetrical and of low amplitude. Plantar responses were flexor. Power and sensation were intact in the lower limbs.
Upper extremities
Measurement
RIGHT
Measurement
LEFT
Flexion
110°
130°
Extension
30°
40°
Adduction
20°
40°
Abduction
80°
110°
Internal Rotation
30°
60°
External Rotation
40°
70°
Adduction, external and internal rotation were said to be limited by shoulder pain and biceps pain.
Consistency of presentation
Despite his evident anger about the compensation and dispute process, he was
co-operative and consistent in his physical presentation.IMAGING
No imaging was brought to the examination.
IMPRESSION
Examination findings in the upper limbs confirmed loss of active range of movement in both shoulders, moreso on the right side, and continuing symptoms radiating from the cervical spine into both upper limbs, resulting in restriction with use of the limbs and spine in activities of daily living, particularly heavy to moderate activities.
Unfortunately, the previously performed cervical spine fusion has been unsuccessful. He has had guided CT injections in the peri radicular areas since, resulting in temporary relief of symptoms, indicating that symptoms affecting the arms are originating in the cervical spine.
Under the Table of Maims, an assessment of 10% loss of efficient use of the right arm at or above the elbow and including below the elbow, and 5% loss of efficient use of the left arm at or above the elbow and including below the elbow is appropriate.”
We adopt Medical Assessor Oate’s report.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 April 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received before 1 January 2002
Matter Number: | W23/25 |
Applicant: | Craig Alan Fisher |
Respondent: | Able Roadwork Traffic Analysis Pty Limited |
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 Donald Cawthorne and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Assessment in accordance with the Table of Disabilities for injuries received before
1 January 2002
| Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee | Date of injury | Total amount of permanent% loss of efficient use or impairment | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.) |
| Permanent impairment of the neck | 6/2/1998 | 30% | 0 | 30% |
| Permanent impairment of the back | 6/2/1998 | 5% | 0 | 5% |
| Right arm at or above the elbow | 6/2/1998 | 10% | 0 | 10% |
| Left arm at or above the Elbow | 6/2/1998 | 5% | 0 | 5% |
0
2
0