Ho v Luk Fook Jewellery and Goldsmith (Australia) Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Ho v Luk Fook Jewellery and Goldsmith (Australia) Pty Ltd [2025] NSWPICMP 210
APPELLANT:	Wai Fung Ho
RESPONDENT:	Luk Fook Jewellery And Goldsmith (Australia) Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Chris Oates
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	27 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); Medical Assessor (MA) assessed the appellant as DRE lumbar category III with 10% whole person impairment (WPI) of the lumbar spine; MA made no allowance for activities of daily living (ADL); appellant submitted that the MA erred in not applying an additional loading for ADL; MA made no reference to ADL assessment reports of occupational therapists; finding by MA of no diminution in previous recreational and sporting activities inconsistent with the evidence; Held – Appeal Panel satisfied that there was a failure to provide adequate reasons in failing to apply an additional loading for interference with ADL; appellant re-examined; MAC revoked; new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 November 2024 Wai Fung Ho (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin Mitchell, Medical Assessor, who issued Medical Assessment Certificate (MAC) on 15 November 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the 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).

RELEVANT FACTUAL BACKGROUND

The appellant suffered an injury to his lumbar spine, left lower extremity and right upper extremity during his employment with Luk Fook Jewellery And Goldsmith (Australia) Pty Ltd (the respondent) on 10 September 2017.
The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 4 September 2024 in which he claimed an amount of $38,560 in respect of 16% WPI of the lumbar spine and scarring (TEMSKI) as a result of the injury on 10 September 2017.
The Medical Assessor examined the appellant on 29 May 2024 and assessed 10% WPI of the lumbar spine, and 0% WPI of the skin (scarring). Therefore, the total WPI assessed, as a result of the injury on 10 September 2017, was 10%.

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.
The appellant requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel.
The respondent submits that re-examination by a Medical Assessor who is a member of the Appeal Panel is not indicated.
As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and that the appellant should undergo a further medical examination because there was insufficient information upon which to make a determination.

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 March 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. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    Ground 1 - Assessment of Activities of Daily Living (ADL). The Medical Assessor at page 2 stated: “Social activities/ADL: he lives with his wife and their 13 month old child and he claims to carry out no domestic activities in the home, explaining that his wife ‘will not let him’. They have help from both his parents and his wife’s parents, who share the home with them”.
(b)    The Medical Assessor at page 3 of the MAC found and stated: “Mr Ho reports ongoing pain in the lumbar back with intermittent radicular symptoms down the left leg into the 3rd, 4th and 5th toes of the foot following the decompressive surgery carried out to manage the radiologically evident disc at L5/S1.” The Medical Assessor at page 3 of the MAC found the appellant to be consistent in his medical assessment.
(c)    In his IME report, Dr Herald has applied an additional percentage for ADL pre (first injury) and post-surgery (second injury) in accordance with cl 4.36 of the Guidelines. Dr Herald has correctly applied an additional loading for ADL in accordance with the Guidelines for first and second injury.
(d)    In the alternative, the IME report of Associate Professor Miniter has also applied an allowance of “an additional loading of 3%” for ADL.
(e)    Given the information recorded by the Medical Assessor and the findings made, the Medical Assessor has not in the circumstance applied an additional loading for ADL, when it was appropriate to do so.
(f)    The Medical Assessor has also not explained the reason why he did not apply the additional loading for ADL when all medical evidence available before him and that his own recording identified the appellant was not performing ADL and was “consistent throughout” the medical assessment.
(g)    The Medical Assessor failed to consider cl 4.36 of the Guidelines in applying ADL for first (pre-surgery) and second injury (post-surgery).
(h)    The Medical Assessor should assess the claimant as per his instructions whereby he had stated and recorded by the Medical Assessor “ongoing pain in the lumbar back with intermittent radicular symptoms down the left leg into the 3rd, 4th and 5th toes of the foot following the decompressive surgery carried out to manage the radiologically evident disc at L5/S1” and not by recent radiological investigations to make his findings.
(i)    Furthermore, the Medical Assessor stated: “the more recent radiological investigations found no significant nerve impingement”. However, this is incorrect as the Medical Assessor has clearly recorded: - Lumbar spine MRI dated
17 March 2022 found further resolution of post-operative changes at L5/S1 with the small left paracentral annular tear slightly reduced in size. There was a new left extra foraminal disc protrusion with superior extrusion at L4/5 impressing upon the extraspinal component of the L4 nerve root with associated enhancement.
(j)    Given the above, the MAC contains a demonstrable error.
The respondent’s submissions include the following:
(a)    Ground 1 – Assessment of ADL. The criteria set out in paragraph 4.35 is to be considered in the context of the overall discretion given to the Medical Assessor and is not intended to be read as strict criteria but are simply examples to assist the Medical Assessor (Dionysis v Tweedcom Pty Ltd [2020] NSWWCCMA 95).
(b)    There is no suggestion that the appellant does not has capacity to undertake personal care activities such as dressing, washing, toileting and shaving.
(c)    In this case, the decision is between 0% WPI and 2% WPI to be added to the baseline. The Medical Assessor allowed 0% WPI for the effects on the ADLs.
(d)    With respect to sporting or recreational activities, 1% WPI is suggested for individuals who are able to cope with personal care and household activities, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.
(e)     In this regard, the Medical Assessor states: “There is no diminution in his previous recreational or sporting activities, which were minimal apart from scuba diving”.
(f)    In St Mary’s Rugby League Club Ltd v Jarrad William Reardon [2021] NSWWCCMA 35 the Appeal Panel construed paragraph 4.35 of the SIRA Guidelines which refers to “restrictions” on various activities. The Appeal Panel stated: “It does not specify the nature and extent of such restrictions, such that any restriction should be considered”.
(g)    With respect to household activities, 2% WPI is suggested for individuals who are restricted with usual household tasks, such as cooking, vacuuming, and making beds, or tasks with equal magnitude, such as shopping, climbing stairs or walking reasonable distances.
(h)    At paragraph 10(b) the Medical Assessor explains that the appellant’s reasoning for not undertaking domestic activities in the family home was due to his wife ‘not letting him’ rather than him not having capacity to do so, and therefore the Medical Assessor found no additional impairment.
(i)    At paragraph 10(c) of the MAC, the Medical Assessor reiterates: “There was no history of such a diminution in his capacity with respect to his ADLs mentioned at the time of my assessment, and in my opinion, a 0% WPI would be appropriate in that respect”.
(j)    Accordingly, there is no error on the part of the Medical Assessor by not providing an allowance for ADLs, such approach being appropriate having regard to the history provided at the examination.
(k)    The Medical Assessor took an extensive history, reviewed the radiological investigations, and the reports of treating doctors and the independent medical examiners.
(l)    The appellant refers to Associate Professor Miniter making an allowance of 3% for ADL. However, in his most recent report of 4 June 2024 there was no allowance for ADL. The Medical Assessor has determined the same WPI for ADLs as Associate Professor Miniter.
(m)     There was a difference of opinion raised by the doctors qualified by the parties. The Medical Assessor addressed the issue in paragraph 10(c) of the MAC and formed his opinion as to the appropriate assessment.
(n)    A mere difference of opinion is not a proper basis for appeal. Actual error must be identified.
(o)    The Medical Assessor disclosed his path of reasoning to determine 1% WPI (sic) for ADLs, giving adequate reasons for his assessment.
(p)    With respect to the appellant’s submissions regarding paragraph 4.36 of the Guidelines, the submissions are misguided and should be rejected. The appellant sustained injury on 10 September 2017, which is a single injury, requiring the effect of the injury on ADL to be assessed once only. The surgery performed or “post-surgery” is not a second injury within the meaning of paragraph 4.36.
(q)    Dr Herald has not applied an additional loading for ADL in accordance with the Guidelines for first and second injury. With respect to the passage of Dr Herald quoted, the reference to “second” relates to “second level of operation” relevant to the Table 4.2 modifiers, rather than a reference to “second injury”.
(r)    With respect to the appellant’s submissions regarding the Medical Assessor’s reference to “more recent radiological investigations found no significant nerve impingement”, this statement is in the context of an improvement with respect to the persistence of radiculopathy symptoms following surgery, and not relevant to the issue of ADL.
(s)    For these reasons, the Appeal Panel would not be persuaded that the MAC contains a demonstrable error.
(t)    The MAC issued on 15 November 2024 should be confirmed.

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.

Ground 1 – Assessment of Activities of Daily Living (ADL)

The appellant submits that the Medical Assessor has not applied an additional loading for ADL, when it was appropriate to do so. The appellant argues that the Medical Assessor has also not explained the reason why he did not apply the additional loading for ADL when all medical evidence available before him and that his own recording has identified the appellant was not performing ADL and was “consistent throughout” the medical assessment.
The Medical Assessor under “History relating to the injury” notes:
“Mr Ho said that he noticed low back pain and numbness down the left leg from September 2017 which he attributed to the arduous nature of opening and closing heavy roller doors where he was working. He attended for physiotherapy which was not effective and in May 2019 he had decompressive laminectomy and discectomy surgery at L5/S1 for a diagnosed disc protrusion, with a very significant improvement of his leg symptoms subsequently noted. He remained off work for 2 years, and during that time, he subsequently developed further leg symptoms which improved following a spinal injection.
He said that his symptoms were now mild and have now been stable for 2 years.
His acknowledged the functional capacities were being able to sit for up to 15 minutes, stand and walk for up to 10 minutes, and lift up to 15 kg. He no longer drives”.
Under “present symptoms” the Medical Assessor notes that the appellant said that he continues to have pain in the lower lumbar back together with radiation into the left buttock at times with pins and needles into the third, fourth and fifth toes of the left foot.
Under “Social activities/ADL” the Medical Assessor writes:
“He lives with his wife and their 13 month old child and he claims to
carry out no domestic activities in the home, explaining that his wife will not let him. They have help from both his parents and his wife’s parents, who share the home with them”.
Under “findings on physical examination” the Medical Assessor writes:
Movement in the lumbar spine was near normal and of a symmetrical nature, with full flexion and extension and lateral flexion to each side ¾ of normal range. There was no evidence of muscular guarding and straight leg raising was near normal at 80° on each side. Neurological examination including reflexes was normal in each leg. There were no objective clinical signs of radiculopathy.”
Under “Details and dates of special investigation” the Medical Assessor writes:
“Lumbar spine CT dated 13 September 2017 found a large disc protrusion towards the left at L5/S1, with impingement of the left S1 nerve root within the thecal sac and mild compromise of the left L5 nerve root.
Lumbar spine MRI of 21 March 2018 found a very subtle left lateral disc protrusion at L4/5 slightly irritating the exiting left L4 nerve.
Lumbar spine MRI dated 20 January 2021 which found a new or recurrent disc protrusion in the left lateral recess at L5/S1, probably contacting the left S1 nerve root with high signal beneath the annulus, suggesting an annular tear or inflammation. Minor worsening of the appearances of the L4/5 disc was noted.
Lumbar spine MRI dated 17 March 2022 found further resolution of post-operative changes at L5/S1 with the small left paracentral annular tear slightly reduced in size. There was a new left extra foraminal disc protrusion with superior extrusion at L4/5 impressing upon the extraspinalcomponent of the L4 nerve root with associated enhancement”.
The Medical Assessor under “Summary of injuries and diagnoses” writes:
“Mr Ho reports ongoing pain in the lumbar back with intermittent radicular symptoms down the left leg into the 3rd, 4th and 5th toes of the foot following the decompressive surgery carried out to manage the radiologically evident disc at L5/S1.
consistency of presentation
There was consistency throughout.”
The Medical Assessor in explaining his calculations writes:
“The history of surgical spinal decompression to address radiculopathy in Mr Ho constitutes a DRE 3 impairment, and therefore a base level of 10% WPI.
There is no diminution in his previous recreational or sporting activities, which were minimal apart from scuba-diving, and although he said he does not undertake domestic activities in the family home, he explained that was due to his wife not letting him rather than him not having the capacity to do so, and therefore there is no additional impairment with respect to his ADLs”.
In commenting on the other medical opinions and findings, the Medical Assessor notes:
“Dr Jonathan Herald, orthopaedic surgeon, in his report dated 30 November 2023 provided an opinion to Stephen Young lawyers that Mr Ho based on the following rationale:
In regard to his L5/S1 disc prolapse with left sided S1 radiculopathy and surgery having been performed, using the SIRA Guidelines Section 4.34 operations where radiculopathy has resolved are considered a DRE Category 3. However, based on the SIRA Guidelines Section 4.27 he has asymmetric reflexes as well as positive nerve root tension tests and as such he qualifies for recurrent radiculopathy on today's assessment. Those findings were not present at the time of my assessment.
Dr Herald continues in the following manner. Using SIRA Guidelines Section 4.34 as he has difficulty with sport and recreation as well as home care activities and to some degree even self care activities, I have however at this stage elected to give him a 2% Whole Person Impairment to the baseline 10% Whole Person Impairment giving him an overall 12% Whole Person Impairment for his lumbar spine disc prolapse. There was no history of such a diminution in his capacity with respect to his ADLs mentioned at the time of my assessment, and in my opinion a 0% WPI would be appropriate in that respect.
Dr Herald mentioned his opinion that there was residual radiculopathy and as such a 3% Whole Person Impairment has been included for that. There is also a second being involved such as the L5 from the L4/5 disc prolapse which is getting worse and as such a 1% is also added to that. Thus for Table 4.2 he scores a 4% Whole Person Impairment combining the 3 and 1% Whole Person Impairment. However these modifiers as in the summary below the table need to be combined with the impairment for the lumbar spine and when this is done 12% combined with 4% scores a 16% Whole Person Impairment. However, as mentioned above, at the time of my assessment there was no evidence of residual radiculopathy, with no objective clinical sign of loss or asymmetry of reflexes, muscle weakness, or reproducible impairment of sensation as required in section 4.27 of the Guides. Furthermore, his additional 1% for a 2nd level was not subject to surgical intervention.
…
The medical report of Associate Professor P Miniter dated 5 June 2024 assess Mr Ho as having a 10% Whole Person Impairment from his lumbar spine injury, based “on a finding of a DRE 3 impairment, because of the discectomy for radicular disease and a further mentioning “I can see no evidence of ongoing radiculopathy. The base rating is 10% WPI and I would not add a moiety for ADL”. I note that in a previous report dated 18 January 2022 Associate Prof Miniter found “residual radiculopathy which albeit mild is still present. This allows an additional loading of 3% and found a total of 13% WPI.
However, Mr Ho appears to have clinically improved from the time of the assessment and the more recent radiological investigations found no significant nerve impingement. The clinical findings of Associate Prof Miniter are similar to those of mine”.

In his statement dated 6 August 2024, the appellant stated that he currently suffered from disabilities including “Difficulties with household chores, difficulties with heavy lifting, difficulties with standing or sitting in one position, and interference with activities of daily living”.
In a report dated 30 November 2023, Dr Jonathan Herald, consultant orthopaedic surgeon, noted under “Domestic history”:
“He lives in an apartment with his wife. The strata does all the gardening and the yard maintenance. He does have difficulty however with sitting for any period of time and has troubles with driving and even toileting, sometimes sitting on the toilet causes pain. He is unable to do grocery shopping, vacuuming, changing bed sheets, hanging clothes on the line and all of this is done by his wife. He has a 3-month-old child.”
Dr Herald assessed the lumbar spine as DRE III and wrote:
“Using SIRA Guidelines Section 4.34 as he has difficulty with sport and recreation as well as home care activities and to some degree even self care activities, I have however at this stage elected to give him a 2% Whole Person Impairment to the baseline 10% Whole Person Impairment giving him an overall 12% Whole Person Impairment for his lumbar spine disc prolapse. However in regard to the SIRA Guidelines Section 4.2 modifiers for DRE Categories following surgery, he has residual radiculopathy and as such a 3% Whole Person Impairment has been included for that. There is also a second being involved such as the L5 from the L4/5 disc prolapse which is getting worse and as such a 1% is also added to that. Thus for Table 4.2 he scores a 4% Whole Person Impairment combining the 3 and 1% Whole Person Impairment. However these modifiers as in the summary below the table need to be combined with the impairment for the lumbar spine and when this is done 12% combined with 4% scores a 16% Whole Person Impairment.”
In a report dated 18 January 2022, Associate Professor Paul Miniter, consultant orthopaedic surgeon, noted:
“Turning now to the AMA Guides to the Evaluation of Permanent Impairment, Volume 5, I note that he falls into Lumbar Category III. This is a 10% base rating. He has residual radiculopathy which albeit mild is still present. This allows an additional loading of 3%. Apart from this, he has no significant effect on ADLs and I would make no other allowance at this stage. The total therefore is 13% of the whole person. As far as I can determine there has been a laminectomy at only one level.”
In a report dated 5 June 2024, Associate Professor Miniter, noted:
“He falls into DRE 3 as he has undergone a discectomy for radicular disease. I can see no evidence of ongoing radiculopathy. The base rating is 10% WPI and I would not add a moiety for ADL”.
Paragraph 1.25 of the Guidelines requires that an “assessment of the impact of the injury or condition on ADL should be verified, wherever possible, by reference to objective assessments – for example, physiotherapist or occupational therapist functional assessments and other medical reports”.
The interpretation of ADL is set out in paragraphs 4.33, 4.34 and 4.35 of the Guidelines. Paragraph 4.34 provides that the diagram below is to be used as a guide to determine whether 0%, 1%, 2% or 3% should be added to the bottom of the appropriate impairment range.
Paragraph 4.33 provides:
“Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.”
Paragraph 4.34 also provides: “This is only to be added if there is a difference in activity level as recorded and compared to the worker’s status prior to the injury”.
Paragraph 4.35 provides:
“The diagram is to be interpreted as follows: Increase base impairment by:
·3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
·2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances
·1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc”.
The Medical Assessor made no reference to the Activities of Daily Living Assessment Report dated 19 July 2022, in which Ms Chloe Chau, Occupational Therapist, noted that the appellant reported that he was managing with self-care but had difficulties in some domestic tasks. She reported that before the injury, the appellant shared domestic tasks with his wife and since the injury, his wife assists with most domestic tasks including cleaning, cooking, dishwashing, laundry, watering plants and grocery shopping. She noted that he used to wash his car before his injury but could no longer do this.
In the Activities of Daily Living Retraining Report dated 9 November 2022, Ms Chau noted that the appellant had difficulties with domestic tasks such as cleaning windows, cooking, using a dishwasher and washing machine, and often experienced increased pain in the low back after sometimes performing cleaning tasks such as mopping and vacuuming.
In the Initial Needs Assessment Report dated 16 February 2018, Wen Xu, WorkCover Approved Rehabilitation Consultant, noted that the appellant advised that “he was an active person prior to his work related injury when he enjoys regular swimming and exercises in the gym every fortnight”.
The Appeal Panel notes that the appellant was reasonably active before the subject injury with recreational activities that included swimming, gym, diving. The Appeal Panel is also satisfied that that the appellant had shared domestic chores with his wife before the work injury and he was unable to do many of those domestic chores because of the injury to his lumbar spine.
The Appeal Panel considers that the finding of the Medical Assessor of there being no diminution in his previous recreational or sporting activities, which were minimal apart from scuba-diving, was inconsistent with the evidence. Although the Medical Assessor noted that the appellant said he does not undertake domestic activities in the family home, that was due to his wife not letting him. The Medical Assessor concluded that the fact the appellant did not undertake domestic activities was due to the fact his wife did not let him rather than him not having the capacity to do so.
Under the heading “Present symptoms”, the Medical Assessor noted: “he said that he continues to have pain in the lower lumbar back together with radiation into the left buttocks, and at times pins and needles into the third, fourth and fifth toes of the left foot”. The Appeal Panel considers that a person with these symptoms would be expected to at least have some difficulty with household activities and certainly with any recreational activities.
The Appeal Panel considers that the fact the appellant’s wife will not let him do things is not an adequate reason for not assessing the ability to perform ADL. The Appeal Panel is satisfied that the Medical Assessor erred in failing to consider whether the appellant was actually restricted as opposed to not doing activities because his wife would not let him. The Medical Assessor did not question the appellant about equivalent/alternative activities to housework such as walking, negotiating stairs or shopping. The Medical Assessor did note that the appellant “acknowledged the functional capacities were being able to sit for up to 15 minutes, stand and walk for up to 10 minutes, and lift to 15kg. He no longer drives”. Such restrictions in functional capacity would suggest that he would have some difficulty with household activities and certainly with any recreational activities.
The Appeal Panel is satisfied that the Medical Assessor failed to look at earlier Activities of Daily Living Assessment Report reports and Initial Needs Assessment Report referred to above, despite the provisions in cl 1.25 of the Guidelines. These reports were highly relevant to any assessment of ADLs.
The Appeal Panel finds that the Medical Assessor did not provide adequate reasons in failing to apply an additional loading for interference with ADL. This ground of appeal is made out.

Failure to consider clause 4.36 of the Guidelines

The appellant submits that the Medical Assessor failed to consider cl 4.35 of the Guidelines.
Paragraph 4.36 provides:
“For a single injury, where there has been more than one spinal region injured, the effect of the injury on ADL is assessed once only.
For injuries to one spinal region on different dates, the effect of the injury on ADL is assessed for the first injury. If, following the second injury, there is a worsening in the ability to perform ADL, the appropriate adjustments are made within the range. For example, if WPI for ADL is assessed as 1% following the first injury and 3% after the second injury, then WPI for ADL for the second injury is assessed as 2%.
For injuries to different spinal regions on different dates, where there is a worsening of ability to perform ADL after the second injury, additional impairment may be assessed. For example, if ADL for a cervical spine injury is assessed as 1%, and an assessment of a subsequent lumbar spine injury determined 3% WPI for ADL, then WPI for impact on ADLs for the lumbar injury is assessed as 2% WPI”.
The Appeal Panel rejects the appellant’s submissions in regard to cl 4.36 of the Guidelines. The appellant sustained injury on 10 September 2017, which is a single injury, requiring the effect of the injury on ADL to be assessed once only. The surgery performed or “post-surgery” was surgical treatment for the injury on 10 September 2017 and is not a second injury within the meaning of paragraph 4.36.
The appellant submits that Dr Herald has applied an additional percentage for ADL pre (first injury) and post-surgery (second injury) in accordance with cl 4.36 of the Guidelines. However, the Appeal Panel considers that the appellant misunderstood Dr Herald’s methodology as set out in his assessment.
It is clear that Dr Herald did not apply an additional loading for ADL in accordance with the Guidelines for first and second injury. Dr Herald elected to give the appellant 2% for ADL on the basis that he had difficulty with sport and recreation as well as home care activities and to some degree even self care activities in addition to the baseline 10% WPI. Dr Herald then went on to state:
“However in regard to the SIRA Guidelines Section 4.2 modifiers for DRE Categories following surgery, he has residual radiculopathy and as such a 3% Whole Person Impairment has been included for that. There is also a second being involved such as the L5 from the L4/5 disc prolapse which is getting worse and as such a 1% is also added to that. Thus for Table 4.2 he scores a 4% Whole Person Impairment combining the 3 and 1% Whole Person Impairment. However these modifiers as in the summary below the table need to be combined with the impairment for the lumbar spine and when this is done 12% combined with 4% scores a 16% Whole Person Impairment.”
The reference to “second” relates to “second and further level” in the Table 4.2 modifiers, not to “second injury”.
The Appeal Panel finds no error in relation to consideration of cl 4.36 of the Guidelines. This ground of appeal is not made out.

Ground 2 - Radicular Symptoms

The Appeal Panel noted that the appellant submitted that the Medical Assessor should assess the claimant as per his instructions whereby he was recorded by the Medical Assessor as stating he had “ongoing pain in the lumbar back with intermittent radicular symptoms down the left leg into the 3rd, 4th and 5th toes of the foot following the decompressive surgery carried out to manage the radiologically evident disc at L5/S1” and not by recent radiological investigations to make his findings.
It is not clear whether the applicant is submitting that the Medical Assessor should have found that the applicant has radiculopathy following the spinal surgery.
Under Part 1.4a of the Guidelines, a key principle in permanent impairment assessment is:
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information.”
The Medical Assessor’s reference to “more recent radiological investigations found no significant nerve impingement”, should be seen in the context of an improvement with respect to the persistence of radiculopathy symptoms following surgery, and not relevant to the issue of ADL. The Medical Assessor did go on to state that findings made by Dr Herald of asymmetric reflexes as well as positive nerve root tension were not present at the time of the assessment by the Medical Assessor. The Medical Assessor later stated:
“However, as mentioned above, at the time of my assessment there was no evidence of residual radiculopathy, with no objective clinical sign of loss or asymmetry of reflexes, muscle weakness, or reproducible impairment of sensation as required in section 4.27 of the Guides”.
The appellant submits that the Medical Assessor statement that the more recent radiological investigations found no significant nerve impingement is incorrect as the Medical Assessor has clearly recorded: “Lumbar spine MRI dated 17 March 2022 found further resolution of post-operative changes at L5/S1 with the small left paracentral annular tear slightly reduced in size. There was a new left extra foraminal disc protrusion with superior extrusion at L4/5 impressing upon the extraspinal component of the L4 nerve root with associated enhancement.”
A finding of radiculopathy can only be made if two or more of the criteria listed at cl 4.27 of the Guidelines are present including one major criteria. The Medical Assessor did not find that there was a loss of asymmetry of reflexes, muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution or there was reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution. The MRI scan referred to by the appellant was performed in March 2022, some three years ago. Findings on an imaging study consistent with the clinical signs are one of the criteria, but not a major criterion, set out in cl 4.27 and are insufficient to base a finding of radiculopathy.
The Appeal Panel, having found error, concludes that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination in respect of an assessment of ADL.
As noted above Medical Assessor Oates of the Appeal Panel examined the appellant on
13 March 2025. Medical Assessor Oates provided the following report:
“WAI FUNG HO
Date of Birth: 6/5/1987
Date of Accident: 10/9/2017

REASONS
Details of who attended the Assessment
Mr Ho attended for Panel re-examination with Medical Assessor Oates on 13/3/2025 as arranged. Unfortunately, he had transport problems and arrived 25 minutes late for the appointment, which was fortunately able to be completed.
A Cantonese interpreter was in attendance for the duration of the assessment.
He was accompanied to the rooms by his wife, who remained in the waiting room during the assessment.

HISTORY RELATING TO THE INJURY
Brief history of the incident, onset of symptoms and of subsequent related events including treatment
Mr Ho confirmed that he developed low back pain and pain and tingling down the left lower extremity in September 2017. He felt this was due to having to open and close heavy roller doors at the jewellery shop where he worked. Other aspects of the work were also heavy and since he was the only male employee, he had to do the lifting. Vide infra – Work history.
He attended for physiotherapy at first, but this did not help. He was referred to a neurosurgeon and in May 2019, he had laminectomy and discectomy at L5/S1 for a left L5/S1 disc protrusion. He had significant improvement for about 12 months and thereafter the pain returned and has remained since.
He had an epidural injection when the pain returned, with no relief obtained.

Present treatment
He has Voltaren tablets and gel applied daily, and Panadeine most days. He has pregabalin 75mg twice daily.
He has temazepam or melatonin to help with sleep about once or twice a week. He has Endone if he experiences severe pain, and he will take one tablet about every 1-2 weeks.
He attends physiotherapy once a week with benefit in helping tightness and pain for anything between two days and a week, and he says this is paid for by the workers compensation insurer.
Present symptoms and physical tolerances
He continues to have low back pain, central and left-sided, with radiation to the left buttock and shooting electric-type pains down the posterolateral aspect of the left leg, into the toes of the lateral aspect of the left foot with pins and needles.
The pain is worse with bending to either side and also forward, especially with repeated bending, or with sitting longer than 15-25 minutes, standing still longer than 20-30 minutes, or walking longer than 15-20 minutes.
He can’t sleep on his left side and finds he has to sleep on his back with extra cushions for support. He can climb one flight of stairs only but has difficulty walking up steep inclines.
He estimates he can lift about 5kg with the right hand but only 2-3kg with the left hand.
He rarely drives now. His wife does most of the driving and he can tolerate being a passenger for a maximum of 30 minutes, then he has to get out and stretch.
Details of any previous or subsequent accidents, injuries or condition
No previous low back injury or symptoms.
He said he had a tendon sprain in the right hand in about 2022, when he was using a walker to go to the toilet and overbalanced on it and fell on his outstretched arm.
He also had a temporary exacerbation of back symptoms after this fall, however the exacerbation settled and he reverted to his usual level of back symptoms, and his right hand recovered to about 70%.
General health
This is good.

Work history including previous work history if relevant
He first came to Australia from Hong Kong in 2008. He had worked as a general manager in a jewellery and watch shop in Tsim Sha Tsui, Hong Kong.
In Australia, he studied Accounting but changed courses after one year. He then worked in a shop producing advertising signs for one year and then did administration in a real estate office, including some sales to clients, for about two years.
He returned to Hong Kong for some years, where he worked in investment management, and then came back to Australia in 2016 and started working at Lukfook Jewellery doing sales. He also had to lift the stock boxes because he was the only male employee, and he also removed all of the trays of displays and locked them up for security at the end of the day. These trays weighed 20-30kg and there was no trolley supplied.
After his back injury of 2017, he tried to keep working for about two months but then the employer fired him in late November 2017 because he was taking too much time off to go to medical appointments.
He did a 14-month course in English for professionals and then worked in real estate administration 20 – 28 hours per week for about one year, but then his back got more painful after the initial improvement from surgery, so he resigned in about 2021.
He studied accounting for six months and got a certificate in auditing. He then looked for work, but he could only find some casual work as an auditor working from home. He last worked in about 2023.

Going forward, he told me that he does want to work but not in an office, rather from home, because he doesn’t feel an employer would let him have a postural break every 15 minutes when he needs it, and he can’t drive any distance to an office job.
He did some job interviews in 2021 but was unsuccessful then. He currently lives on financial support from his family. He does not receive any government or insurance benefits.
Although he is certified unfit for work on a three-monthly basis by his GP, Dr Angela Lam, he tells me he is informally looking for work for 2-3 days per week from home in auditing, or some other work which doesn’t involve any heavy lifting, with the freedom to have regular postural breaks between sitting and moving about.
Social activities/ADL
He says before the accident he weighed 80kg, as he was “bulked up” from going to the gym regularly and he was studying to become a personal trainer. He also did recreational diving and surfboard and bellyboard riding and snow-skiing. At that time, he and his wife lived in a two bedroom, two bathroom apartment. She was a full-time marketing director in an ice-cream shop.
His wife would do the cooking and dish washing, and he mopped the floors and vacuumed, washed the bathroom and did the laundry. They changed the bed linen and did the shopping together.
Since the back injury, he had to stop all sport because of his back pain, and also the fact that he can’t balance. He does do some fishing off a pier.
He moved to a different unit with three bedrooms and two bathrooms in 2021. His wife became pregnant and halfway through her pregnancy in mid-2023 she changed to a part-time job. Their baby daughter was born in September 2023.
Since that time, his parents and her parents have done alternating visits to Australia from Hong Kong for three months at a time to help out.
He no longer shops or changes the bed linen, or mops and sweeps, because he can’t bend and can’t lift weights. They get the groceries delivered now. He can only manage some light cleaning tasks at waist level and above, and they use a robot vacuum cleaner.
He has no problems with personal care activities of daily living, but does things more slowly.
PHYSICAL EXAMINATION
He sat in discomfort and got up and stretched his back by standing then leaning forward with his outstretched hands on the edge of a table after 20 – 30 minutes of interview.
He weighed 66kg and his height was 173cm. He was of average build.
When coming into the examination room, he used a stick in the right hand, which he says he uses only when he is out of the house. He removed a soft back brace.
He stood erect. Squatting was limited to 50% with complaint of left leg discomfort. He was able to walk on the heels and toes.
There was mild antalgic gait on the left leg.
Lumbar flexion was 50% of normal, limited by left low back pain radiating into the buttock, but extension was full. Lateral flexion was two-thirds of normal bilaterally and rotation was full bilaterally.
There was no guarding. There was some tenderness at L5/S1 centrally and to the left side. There was no trochanteric tenderness.
Reflexes were symmetrical. Power and sensation were normal. Plantar responses were both flexor.
Sitting straight leg raising was 90° on the right with no discomfort, and 80° on the left with complaint of left low back pain. Supine straight leg raising was 60° bilaterally, limited by tight hamstrings, with complaint of left lower back pain radiating to the thigh – equivocal positive test. A positive test would normally include symptoms radiating more distally to the calf.
Thigh girth; right 40cm, left 41cm at 10cm above the superior patellar pole.
Leg girth; right equals left equals 35cm at 15cm, maximal circumference.
There was a short, mid-line, vertical surgical scar in the lower back, which is well healed and not adherent, with no trophic changes. This represents an uncomplicated surgical scar.
Investigations
No additional investigations were brought to this assessment.
DISCUSSION
Injury and diagnosis
Left L5/S1 disc protrusion with impingement of left S1 nerve root and mild compromise of left L5 nerve root. This was treated with laminectomy and L5/S1 discectomy to decompress the disc protrusion at the left lower lumbar nerve roots.
Consistency
He presented in a straightforward manner. He appeared to be in genuine discomfort.
PERMANENT IMPAIRMENT
He has had surgery for lumbar radiculopathy. This places him in DRE Lumbar Category III giving a range of 10-13% whole person impairment.
Because he was not able to return to sports and recreations, and had difficulty with housework and is limited with physical tolerances compared with his status before the injury, I assess 2% loading for the effects on activities of daily living.
This results in 12% whole person impairment arising from the lumbar spine injury.
The uncomplicated surgical scar does not attract any additional permanent impairment.
At today’s examination, there were not sufficient clinical examination criteria (one major and one minor) present to enable a diagnosis of lumbar radiculopathy. There was an equivocal left-sided straight leg raising test result but no reflex asymmetry or loss of motor or sensory function in a nerve root distribution, and no atrophy.
There were no grounds for making a deduction under s.323”.

The Appeal Panel adopts the report and findings of Medical Assessor Oates.
There is no dispute that the appellant is in DRE Category III of the lumbar spine. Medical Assessor Oates obtained a detailed history concerning interference with ADL and, in particular, restriction in the performance of housework and sporting activities. The Appeal Panel therefore assess 2% WPI for ADL which is added to the assessment for the lumbar spine and results in an assessment of 12% WPI for the lumbar spine.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 November 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W25793/24
Applicant:	Wai Fung Ho
Respondent:	Luk Fook Jewellery And Goldsmith (Australia) Pty Ltd

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 Robin Alexander Mitchell 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)
1.Lumbar spine	10 Sept 2027	Sections 4.27 and 4.37, pages 27 and 27	Chapter 3 Table 15.4, page 384	12%	0%	12%
2. Skin Scarring	10 Sept 2017	Table 14.1, page 74	Temski scale	0%	0%	0%
Total % WPI (the Combined Table values of all sub-totals)					12%

[2025] NSWPICMP 210

27 March 2025