Johnson v State of New South Wales (Hunter New England Local Health District)
[2025] NSWPICMP 495
•10 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Johnson v State of New South Wales (Hunter New England Local Health District) [2025] NSWPICMP 495 |
| APPELLANT: | Joy Johnson |
| RESPONDENT: | State of New South Wales (Hunter New England Local Health District) |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Andrew Porteous |
| DATE OF DECISION: | 10 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); Medical Assessor (MA) failed to assess scarring; not included in referral but part of medical dispute between the parties based on Application and material attached; Skates v Hills Industries Ltd applied; scarring assessed by Appeal Panel; deduction pursuant to section 323; MA made deduction of one-third; whether deduction available on the medical evidence; Cole v Wenaline Pty Limited, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq), and Ryder v Sundance Bakehouse discussed; deduction confirmed; Held – MAC revoked, scarring added to assessed impairment. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 April 2025 Ms Johnson (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 March 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).
RELEVANT FACTUAL BACKGROUND
Ms Johnson injured her knee on 27 July 2018, when she was assisting a patient in a wheelchair. She attempted to engage the brake on the chair, when her left foot struck the floor. She felt immediate pain which progressed. She had physiotherapy and some time off work. She later developed pain in the right heel, which she attributed to an altered gait through limping.
In respect of her left knee, she eventually came to a total knee replacement on 19 April 2021, which was complicated by postoperative stiffness. She had an open release on 23 August 2021, and then further arthroscopic debridement on 29 September 2022.
Ms Johnson made a claim for lump sum compensation for the left knee, right heel, and scarring. The matter was referred for assessment before a Medical Assessor with the body parts left and right lower extremity only. Unfortunately, at the time of assessment and when issuing the MAC, the fact that scarring was not referred for assessment, but part of the claim for impairment, was not picked up by the Medical Assessor or parties to the proceedings. This represents one of the grounds for appeal raised by the appellant.
The Medical Assessor assessed the left and right lower extremities only, for a combined assessment of 14% whole person impairment. The appellant brings an appeal against that assessment.
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.
It was noted by the Appeal Panel on preliminary review that scarring under the TEMSKI scale had not been assessed by the Medical Assessor. This is raised as the appellant’s first ground of appeal, being that the Medical Assessor failed to assess all bodily systems claimed. The Appeal Panel will discuss that issue in more detail below. In order to properly determine the issue of scarring as raised, the Appeal Panel called for the production of information under s 324 of the 1998 Act, being:
(a) from the applicant, clear, colour photographs of the scar on her left knee, including the full length of the scar, and
(b) from the respondent the report of A/Prof Waller, dated 1 August 2023, on which the offer of compromise was made on 17 November 2023.
The parties complied with the direction of the Appeal Panel by producing documents as directed on 13 June 2025 and 23 June 2025 respectively. That evidence is “fresh evidence” and is admitted into the proceedings in accordance with s 328(3) of the 1998 Act.
The Appeal Panel is of the view that having admitted the fresh evidence into the proceedings, it is not necessary to conduct a further examination of the worker. There is sufficient evidence contained in the photographs provided by the appellant, as well as the findings on physical examination recorded in the MAC and the independent medical examination of Medical Assessor Dixon, for the Appeal Panel to undertake an assessment of the appellant’s scarring.
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.
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.
In summary, the appellant raises two grounds for appeal:
(a) the Medical Assessor failed to assess all body systems claimed, specifically in respect of scarring/TEMSKI, and
(b) the Medical Assessor failed to properly apply s 323 of the 1998 Act. The finding of a 1/3 deduction is unsupported by the available medical evidence, and there is an absence of radiology prior to the work-related injury. On the face of the evidence, no deduction should be made, or a deduction of one tenth only.
In reply, the respondent submits that:
(a) the Medical Assessor did not err in failing to assess scarring, as it was not part of the referral for assessment and no amendment to the referral was request prior to the assessment, and
(b) the Medical Assessor has appropriately engaged with the relevant considerations for making a deduction, consistent with the relevant case law and medical evidence available in this case.
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. The appeal concerns two issues – the failure of the Medical Assessor to assess scarring, and the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to those issues (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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.
There are two issues in this case that involve quite different questions.
The assessment of scarring
This ground of appeal is framed as a failure to assess all body systems claimed. The applicant notes that the claim for permanent impairment compensation included an assessment of 1% for scarring/TEMSKI, but this did not form part of the referral, and accordingly has not been assessed.
In reply, the respondent submits that the referral did not include scarring as a referred body system and no request for amendment was made prior to the medical assessment. The respondent submits that the Medical Assessor did not make an error as scarring was not referred to him for assessment. Any error in the referral should have been raised earlier and is accordingly not an error. Alternatively, the respondent submits that no impairment arises from scarring on assessment as it is an uncomplicated surgical scar.
In the preliminary review issued by the Appeal Panel on 12 June 2025, reference was made to Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates). Skates concerns the nature of a “medical dispute” in the Commission and the terms of a referral. Whilst the referral is a relevant document, and indeed, an important one, the fundamental legal concept is a dispute (per Leeming JA at [48]):
“The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the “referral” to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.”
The dispute is crystalised by other evidence:
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a “medical dispute” because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.” (Skates at [46])
The infelicity of parts of the referral cannot stand in the way of the fact that the medical dispute which is referred for assessment (Skates at [49]).
The evidence in this case shows that the dispute between the parties included a claim with respect to scarring, to be assessed in accordance with the TEMSKI criteria. This is firstly apparent from the Application to Resolve a Dispute (Application), which lists “TEMSKI/scarring” as a body system claimed. Also included are the left and right lower extremities, for a total whole person impairment of 27%. That figure is not divided into individual assessment components.
Attached to the Application is the evidence on which the applicant relies. This includes:
(a) a claim for 21% whole person impairment (made on 20 October 2023) (which includes 1% for scarring, but does not include the right lower extremity);
(b) an amended claim for 27% whole person impairment (made on 22 July 2024);
(c) report of Dr Dixon dated 5 July 2023, which includes an assessment of 1% for scarring, and
(d) supplementary reports of Dr Dixon dated 13 June 2024.
The respondent made a counter offer of 18% whole person impairment based on the opinion of A/Prof Waller. The report on which the counter offer was made was not before the Appeal Panel, which is why it was called for. In that report, A/Prof Waller does not assess scarring, although does make findings on physical examination which countenance the scars present.
As can be seen from the above, the fundamental legal question, involving a claim made and a counter offer for compensation, included an assessment of scarring. For reasons unknown, that aspect of the medical dispute did not form part of the referral for assessment sent to the Medical Assessor and was accordingly not assessed. Regardless of the error in the referral, it did form part of the medical dispute and should have been assessed. This constitutes a demonstrable error, consistent with Skates, although one where the Medical Assessor is not entirely to blame. Whilst the parties were given an opportunity to comment on the referral and no amendment was sought, that does not undermine the fundamental legal issue in that the medical dispute was not properly assessed.
Accordingly, the appropriate resolution is for the Appeal Panel to assess scarring. The Medical Assessor provides the following findings on physical examination, relevant to the issue:
“On examination, she had a 16cm scar over the right knee and an 18cm scar over the left knee, consistent with approach for total knee replacements.”
Dr Dixon, in his report of 5 July 2023, provides the following:
“That for her arthrotomy scar which is reasonably healed but has required re-operation and has associated sensory changes with some tenderness of the scar, which is painful if bumped, is from TEMSKI Table 14.1, Page 74 of the WorkCover Guides, 1% whole person impairment.”
A/Prof Waller provides the following:
“No swelling. Well-healed midline scar. Well healed surgical scar. With decreased
sensation lateral to the scar in the distribution of the infrapatellar branch of the
saphenous nerve. Stable ligaments.”The appellant provided three photographs in response to our direction. Those photographs show a relatively long linear scar with colour contrast and minimal trophic change.
In the second photograph, the appellant describes an approximately 4cm area within the scar as “numb” associated with the scar over the knee.
The Appeal Panel note that cl 14.6 of the Guidelines provides:
“A scar may be present and rated as 0% WPI.
Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.”The respondent’s alternative submission (having not accepted the primary submission that there was no demonstrable error) is that the scar is an uncomplicated surgical scar. Whilst not all scars will attract an impairment, that does not mean, conversely, that all post-surgical scars can be considered “uncomplicated scars”. In the present case, the Appeal Panel do not accept that Ms Johnson’s scar fits into the criteria in cl 14.6 of the Guidelines.
That requires an assessment in accordance with the TEMSKI criteria in Table 14.1 of the Guidelines. The first thing to note is the scar is large. Ms Johnson has had multiple procedures on her knee involving re-opening of the wound. The images provided show a relatively long linear scar with colour contrast and minimal trophic change. There is evidence of altered sensation associated with the scar. Dr Dixon, in his report of 5 July 2023, provides the following: “That for her arthrotomy scar which is reasonably healed but has required re-operation and has associated sensory changes with some tenderness of the scar, which is painful if bumped.” A/Prof Waller provides the following: “No swelling. Well-healed midline scar. Well healed surgical scar. With decreased sensation lateral to the scar in the distribution of the infrapatellar branch of saphenous nerve.”
In accordance with cl 14.8 of the Guidelines, the TEMSKI criteria are to be used with the principle of “best fit”. Ms Johnson’s scar shows some (albeit minimal) trophic change. There is colour contrast. The scar is relatively large and visible if Ms Johnson is wearing anything other than long pants. The majority of criteria within Table 14.1, for a finding of 1% whole person impairment, are satisfied.
Accordingly, based on the appearance of the scar consistent with Table 14.1, based on the principle of “best fit”, the Appeal Panel are satisfied that an assessment of 1% whole person impairment should be added for scarring. The MAC will accordingly be revoked.
Section 323 of the 1998 Act
The second issue is in respect of s 323 of the 1998 Act. The Medical Assessor made a deduction of 1/3rd in this case. The appellant submits that no deduction should be made, or alternatively a deduction of 1/10th.
The Medical Assessors reasons for the deduction made appear on page 5 of the MAC:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a) In my opinion the worker suffers from the following relevant previous injuries, preexisting conditions or abnormalities:
(i) Osteoarthritis left knee.
(ii) Obesity.
b) The previous injury, pre-existing condition or abnormality directly contributes to the
following matters that were taken into account when assessing the whole person
impairment that results from the injury, being the matters taken into account in 10a,
and in the following ways:
(i) Ms Johnson had established osteoarthritis in the left knee, first recorded in the general practitioner’s records on 14 January 2015 and noted on 22 March 2018, prior to an injury at work on 2 August 2018. In the absence of pre-existing osteoarthritis in the knee, it is unlikely that the injury sustained woiuld have led to any significant impairment in the left knee. Ms Johnson has previousliy had a knee replacement for osteoarthritis in her right knee. Whilst there was a history of injjury to the right knee in the 1980s, this is suggestive of her arthritis being a constituional process rather than the consequence of acute injury. The accepted factors to developing osteoarthritis in the knee are age, being overweight, a history of previous trauma, familyi history, female sex. Published data does not suggest prolonged standing and walking is a contributor, although I note it has not been proposed that the nature of Ms Johnson’s employment have contributed to her osteoarthritis.
c) Whilst the extent of the deduction is difficult or costly to determine the available
evidence is that the deductible proportion is large and a deduction of one tenth is at
odds with the available evidence. In my opinion the deductible proportion is one-third
for the following reasons:
(i) As noted above, Ms Johnson has a history of presentation of osteoarthritis in the
knee back to 2015. She has a number of accepted risk factors for developing osteoarthritis, unrelated to her employment. In the absence of the pre-existing condition, it is unlikely the injury would have led to any significant impairment assessable consequent to injury in the knee.” [sic]Section 323 of the 1998 Act has been the subject of a significant amount of judicial commentary over many years. The parties have made reference to a number of authorities on the point. The section itself provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note—
So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.
(5) (Repealed)
Note—
Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.”
The starting point for considering the application generally of s 323 of the 1998 Act is often the regularly cited Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole), per Schmidt J. This case was referred to in the applicant’s submissions. Cole was followed by Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365 (Elcheikh), in which the three-step test was affirmed and elaborated upon:
“As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
·Firstly, what the extent of the resulting impairment is.
·Secondly, whether the pre-existing condition contributed to the impairment.
·Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.”
In Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder), Campbell J sets out the interpretative history of s 323 through various decisions of the Supreme Court and Court of Appeal from [38]-[45]. His summary of what the section requires is expressed at [45]:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
What is clear, as the appellant submits, is that the decision cannot proceed on the basis of assumption or hypothesis.
There is, in the present case, a degree of medical evidence available to determine s 323. That medical evidence pre-dates the worker’s injury (which, as the Medical Assessor notes), was not a “nature and conditions” type claim, but related to a specific incident that occurred on a specific date (a “frank” injury). The Medical Assessor relies, in part, on two particular clinical notes appearing on 14 January 2015 and noted on 22 March 2018.
The appellant submits that the deduction made is “unsupported by the available evidence” and that it relies solely on “two brief mentions of osteoarthritis” in the clinical records. The appellant goes on to note that there is no radiology from prior to the work injury. The appellant describes the notes as “unhelpful”.
As a starting point, the Appeal Panel would observe that the description of the clinical record as “unhelpful” is not apt. It describes the particular kind of “pre-existing condition or abnormality” that is specifically contemplated by s 323 – that is osteoarthritis, evident in the injured body part, a number of years before the injury occurred. On that basis the appellant’s submission that the conclusion is “not supported by evidence and which necessarily constitutes an assumption” cannot be accepted. In other words, a “no evidence” type argument cannot be successful in the face of those clinical notes.
As is often repeated in Member’s decisions on liability, caution should be taken to the interpretation of clinical records (Davis v Council of the City of Wagga Wagga [2004] NSWCA 34) where a treating doctor’s concern may be different. The fact is that in this case they record a specific issue relevant to the Medical Assessor’s consideration of s 323 of the 1998 Act: the existence of osteoarthritis approximately three years prior to injury, and the existence of osteoarthritis in the other knee.
It also cannot be said that the Medical Assessor failed to deal appropriately with the medical evidence that was available to him. He provides extensive reasons for making a deduction pursuant to s 323, and whilst the clinical records referred to form part of those reasons, that is not the sole basis for the conclusion reached.
As set out above, the application of s 323 is a stepped process. The first step involves determining the current degree of permanent impairment. That step was undertaken and there has not been any dispute about that (other than the unrelated scarring issue).
The second step is “whether the pre-existing condition contributed to the impairment”. That presupposes the existence of a pre-existing condition but is inherent in the application of that step. In one sense, there are two parts to this step – the identification of a pre-existing condition, and the determination of whether that condition contributed to impairment.
In the present case, the Medical Assessor has answered both in the affirmative. He has, in fact, identified to contributing factors, osteoarthritis and obesity. There are circumstances where pre-existing conditions may not contribute to impairment (or contribute to the occurrence of injury, but not make the forgoing degree of impairment worse). The Medical Assessor explained his reasons in clear and specific terms. He makes a finding that in the absence of pre-existing arthritis, it would be “unlikely that the injury sustained would have led to any significant impairment in the left knee”. That is the precise and correct question that he needed to ask himself in applying s 323 (see Ryder). The second step in s 323 is appropriately answered by the Medical Assessor. There is a pre-existing condition and that condition has made the resulting injury worse.
The third step is determining the contribution from the identified pre-existing condition. In the present circumstances, the Medical Assessor has made a deduction of 1/3rd. The appellant has argued that no deduction should be made, but for the above reasons the Appeal Panel have rejected that argument. We are satisfied that it is appropriate to apply s 323. The alternative argument put forward by the appellant is that the deduction should be limited to 1/10th. This was on the basis that such a deduction “is not at odds with the extremely limited medical evidence available”.
The Appeal Panel would firstly observe that whilst the medical evidence, in terms of the clinical records is limited in a numerical sense, in the sense that there are two particular records relied on by the Medical Assessor, that does not mean that the evidence itself is “limited” in a reliability sense. It must be presumed, based on the wording of the appellant’s submission, that they are advocating for the application of s 323(2) of the 1998 Act, which is the default or fallback position in the legislation. Section 323(2) applies where the extent of a deduction will be difficult or costly to determine. That falls squarely within step 3 of the test set out in Cole and El Cheikh.
It should also be noted that whilst s 323(2) is sometimes described as a “default” position, that does not mean that it is the first position one must taken when considering an appropriate deduction. The first consideration is whether a deduction can be made under s 323(1). That does not raise the question of the assumption provided for in s 323(2) and the proviso that it should be applied “unless that assumption is at odds with the available evidence”.
In present circumstances, however, the Medical Assessor has explicitly referred to the assumption being at odds with the available evidence. The Medical Assessor has set out the particulars of that evidence above (the clinical records referred to). The conclusion reached by him was one open to him in accordance with the legislation. His clinical judgment and expertise had a role to play in reaching that conclusion, which was informed by the clinical records, as well as the appellant’s obesity, previous issues in her contralateral knee, age, and being female. All of these factors were considered by the Medical Assessor in reaching that conclusion.
As an expert, it was open to the Medical Assessor to pick a figure within a range. The exercise of that decision is discretionary, provided the Medical Assessor properly applies the steps provided for in s 323. That discretionary decision is informed by the evidence (and in fact, based on s 323(2), promotes it to being paramount). But once acceptance of medical evidence is provided for (see s 323(3)), then the Medical Assessor must apply clinical judgement in determining a figure within the range, from 10-100%. Here the Medical Assessor provided a figure of 1/3rd. The Appeal Panel are satisfied that this was a conclusion open to him on the evidence. Whilst a different assessor on the day may have reached a different conclusion (and in this case, both independent medical experts made a deduction of 1/10th), that does not warrant the intervention of the Appeal Panel.
In those circumstances, the Appeal Panel are not satisfied that the Medical Assessor has made a demonstrable error in his application of s 323 of the 1998 Act. That aspect of the assessment will be confirmed.
Conclusion
The Appeal Panel are satisfied that the first ground of appeal, in respect of scarring, has been made out, and an assessment of 1% is appropriate. The Appeal Panel are not satisfied that the deduction made by the Medical Assessor is in error. The 1% for scarring will be added to the 14% found for the left lower extremity, for a final assessment of 15% whole person impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 March 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 after 1 January 2002
Matter number: | W310/25 |
Applicant: | Joy Johnson |
Respondent: | State of New South Wales (Hunter New England Local Health District) |
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 Rob Kuru 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 lower extremity | 27/7/18 | P21 3.35 | P 547 17.33 | 20% | 1/3 | 13% |
| Right lower extremity | 27/7/18 | P 20 p 3.28 | 1% | 0 | 1% | |
| Scarring (TEMSKI) | 27/7/18 | Chapter 14, Table 14.1 | 1% | 0 | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
7
0