Kari v David Jones Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Kari v David Jones Ltd [2025] NSWPICMP 494
APPELLANT:	Mary Rose Kari
RESPONDENT:	David Jones Limited
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Ross Mellick
MEDICAL ASSESSOR:	Tim Anderson
DATE OF DECISION:	9 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); application under section 378 (as preserved) for reconsideration; appellant re-examined; evidence established the appellant’s condition had deteriorated and that her permanent impairment had worsened; Appeal Panel exercised its discretion to reconsider; Held – MAC revoked.

BACKGROUND TO THE APPLICATION FOR RECONSIDERATION

On 14 January 2016, an Appeal Panel constituted by Approved Medical Specialists Phillipa Harvey and John Ashwell and Arbitrator Ross Bell confirmed a medical assessment certificate Approved Medical Specialist Paul Myers (the AMS) issued on 21 August 2015 (the MAC). The MAC the AMS issued contained his certification of medical disputes the Workers Compensation Commission (the WCC) had referred to him relating to two injuries, Mary Rose Kari, the appellant, had suffered whilst employed with David Jones Limited, the respondent, the first of those injuries occurring on 26 August 2008 and the second on 11 June 2010.
The AMS assessed the appellant had 7% whole person impairment (WPI) from her earliest injury, which involved the appellant’s left shoulder and cervical spine, and assessed she had 2% WPI from her later injury, which involved her lumbar spine, scarring and her digestive system (pelvis).
Following the decision of that Appeal Panel, the WCC issued a certificate of determination on 16 February 2016 (the COD) recording determinations that Deputy Registrar and Arbitrator Ms Annette Farrell made that reflected the assessments of the AMS.
On 6 February 2020 the appellant had spinal surgery when a L3-L5 decompression and fusion was done. On 5 August 2024 the appellant applied to the Personal Injury Commission (Commission) seeking the Commission reconsider the MAC. Subsequently, she amended her application to seek reconsideration of the decision of the Appeal Panel dated 14 January 2016.
Before that could occur, it was necessary that the COD be rescinded. The matter was referred to Member John Wynyard and, as Member Wynyard explained in a statement of reasons he published on 29 January 2025[1], for the COD to be rescinded it was necessary, firstly, that immediately before 21 March 2021 the appellant had an unexercised right to seek reconsideration under s 378 (as preserved) of the Workplace Injury Management and Workers Compensation Act 1988 (the 1998 Act) of the decision of the Appeal Panel dated 14 January 2016 and secondly, that he exercise his discretion to reconsider and rescind the COD.
[1] Kari v David Jones Ltd [2025] NSWPIC 26.
Member Wynyard made the following findings and orders:
“[Findings]
1.      The applicant has an unexercised right to re-assessment by a Medical Panel due to the deterioration in her condition since the Medical Appeal Panel determination of 14 January 2016, as evidenced by the fusion surgery she underwent on 6 November 2020.
2.     The interests of justice are such that I should exercise my discretion in the applicant’s favour.
[Orders]
1.     The Certificate of Determination issued by the Workers Compensation Commission dated 19 February 2016 is rescinded.
2. I direct the President (who now performs the functions of the Registrar) pursuant to s 378(1) as preserved, to refer this matter to a Medical Appeal Panel for re-consideration. I note the provisions of cl 14B(b)(2)(b) of Schedule 1 of the Personal Injury Commission Act 2020 in that regard.”
Member Bell and Dr Ashwell have retired from the Commission and Dr Harvey Sutton is no longer employed with the Commission. On 20 February 2025 a delegate of the President of the Personal Injury Commission, in accordance with the second order Member Wynyard made on 29 January 2025, constituted this Appeal Panel to deal with the appellant’s application for reconsideration of the Appeal Panel’s decision dated 14 January 2016.

RE-EXAMINATION

This Appeal Panel convened on 12 March 2025 and decided that the appellant should be re-examined by one of its medical assessor members, namely Dr Ross Mellick, to provide clinical information that would assist it, firstly, with its decision on whether it should exercise its discretion to reconsider the Appeal Panel’s decision dated 14 January 2016 and, secondly, if it were to exercise its discretion, what assessment it should make. Medical Assessor Mellick conducted his examination on 22 May 2025 and his report to this Appeal Panel on his examination is this:
“PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-3823/15
Appellant:	Mary Rose KARI
Respondent:	David Jones Limited
Date of Determination:	22 May 2025

Examination conducted by:	Dr Ross Mellick
Date of Examination:	22 May 2025

Member John Wynyard rescinded a previous MAC concerning Ms Kari prepared by Dr Paul Myers on 21 August 2015 involving lumbar spine, scarring and the digestive system.
1.     The worker's medical history, where it differs from previous records
Ms Kari attended my rooms on 22 May 2025 accompanied by her husband.
Regrettably, yet understandably, Ms Kari indicated that her memory of past events is poor, as is her recollection of the detailed development of the present symptoms, a considerable time having elapsed since the injury in question. It is also necessary to take into account Ms Kari’s age. I have therefore utilised selected documentation received in order to expand relevant history.
The injury in question occurred on 11 June 2010 when she was working as a sales assistant and developed lumbar back pain when she bent over to pull a garment from under a heavy rail supporting a large number of other clothes. Back pain has been constantly present with an increase in intensity since that time.
The main continuing symptom is low back pain and bilateral leg pain extending from the inguinal regions distally, more marked on the left side but involving the entirety of both legs.
I have reports from Dr Geoffrey Rosenberg, Orthopaedic Surgeon, who has had very long therapeutic contact with Ms Kari and I make reference to those documents. One dated 11 June 2020 makes reference to worsening back pain radiating into both legs as far as her calves, as well as proximally up to the groins. He wrote non-operative approaches, including physiotherapy, have not reduced the pain. The doctor made reference to a previous clinical assessment of Ms Kari nine years previously when he referred to symptoms involving low back pain and leg pain which was then associated with ‘dynamic weakness and had significant tremors as a way of dealing with her pain’. He also referred to radiology revealing spondylolisthesis at the L3/4 and L4/5 levels and also to an MRI scan reported as follows, ‘…MRI showed similar findings with significant facet joint disease and foraminal narrowing.’ He felt that given the severity of symptoms, it was reasonable to offer surgery.
Dr Rosenberg then wrote that surgery would involve a combination of decompression and fusion to be performed from L3 to L5 levels. He wrote that this would improve but not cure her symptoms and towards the end of the final page he expressed his belief that the work-related accident was not causative of all of the radiological findings, but nevertheless would have ‘… certainly rendered her symptomatic and hastened and contributed to the necessity for surgery’.
Another report from Dr Rosenberg dated 10 July 2019 referred to his review of MRI scans and emphasised ‘… the biggest problem is her poor mobility due to back and leg pain’. He indicated the need for an L3 to L5 fusion.
A third report from Dr Rosenberg dated 6 November 2020 documented surgery having been performed at St. George Private Hospital on 6 November 2020 involving the L3 to L5 distribution and a fusion via posterior interbody and pedicle screw techniques.
Another report from him dated 4 April 2022 referred to additional surgery having been performed on 1 April 2022. He wrote ‘… attempted a revision of the L4/5 fusion’. He described the L4/5 interbody space was approached and the right-sided cage was identified to have been ‘loose’. He described the technique then applied, also indicating, ‘pleasingly there was no further trauma to the common iliac vessels’. He added ‘the largest interbody cage I had available was used’. He also referred to other cages being ‘relatively loose’ and wrote ‘…no choice but to remove them. I then filled the disc spaces with excised bone and cancellous crunch and fibre’. He also indicated that he put into position extra cross link below the L5 screws to increase the ‘strength of the posterior fusion’. Additional reference was made to the procedure in these terms, ‘certainly, radiologically, the L4/5 screws appeared more compressed than previously, particularly when having increased the bend in the rod. I am hopeful that we will get away with this. I will mobilise her slowly.’
Ms Kari informed me that the back pain is now much more severe than it had been when it began in June 2010. Each surgical procedure was followed by a considerable increase in back pain and leg pain. She informed me that she was in a wheelchair after the last procedure for approximately 12 months because of the increase in severity of the back pain and leg pain. She was, however, able to put the wheelchair aside ‘sometime during 2024’.
The improvement reported was in acute postoperative pain. The pain then stabilised again at an increased level when compared with the preoperative severity.
Pain is the dominant complaint and there is no comprehensive description of the findings on physical examination.
The surgery recommended was fusion from L3 to L5 to correct the abnormal mobility of the vertebral bodies.
Dr Rosenberg reported an abnormal finding on physical examination prior to the fusion procedure as follows, ‘clinically she has a palpable step in the lumbar spine which is very tender’.
The step is an indication that there is movement of the vertebra resulting in loss of smooth continuity of the lumbar curvature.
The information provided by Dr Rosenberg refers to the difficulties he experienced during the operation. He wrote ‘an attempted revision of the L4/5 fusion indicated that the right-sided cage was loose and that there was in fact no further trauma to the common iliac vessels’. The right-sided cage being loose indicates that the cage was not effective in establishing stability of the spine between L3 and L5.
He made additional comment that he used the largest interbody cage ‘that I had available’. He commented that ‘other cages were relatively loose’ and that he ‘had no choice but to remove them’. The introduction of an extra cross link implies the need for additional metal prosthetic support in an attempt to stabilise the abnormal spinal movement. He reported that the L4/5 screws appeared more compressed and there was a bend in the metallic rod. His final comment that he was hopeful ‘to get away with this’ implies a guarded prognosis.
Those various comments are consonant with the history provided to me by Ms Kari that the pain in her back and legs was increased by both of the surgical procedures performed. Clearly, there were significant technical difficulties facing the surgeon. She also reported that the pain she was experiencing at the time of my clinical assessment, although less than the postoperative pain was more severe than it had been in June 2010 involving both legs from the inguinal region distally. The pain now is greater than it had been prior to the surgical procedures.
At the time of her visit to my rooms, the intensity of her pain had stabilised. She is now able to manage her personal needs, activities of daily living including dressing, toileting and showering, and is able to mobilise short distances in and near to the house. She is unable to do any housework because of the persisting pain.
On direct enquiry, there is no disorder of bladder or bowel sensation or control.
There is remote past history of surgical procedures involving the inguinal regions because of herniae associated with bilateral, proximal, anteriorly situated pain caused by an injury in 2008. One of the possible complications of inguinal surgery is trauma to cutaneous nerves in proximity to the site of surgery. Ms Kali made no reference to me about specific inguinal pain. It would seem that she has conflated past pain associated with the injury in 2008 with the pain that appeared in 2010.
The MAC prepared by Dr Paul Myers directed him to two separate injuries, the second involving the lumbar spine, the digestive system and scarring in relation the injury on 11 June 2010. Dr Myers writes in his summary ‘it has now determined by the Arbitrator that the claimant, Mrs Kari, has an injury to the lumbosacral spine from June 2010 and also to the digestive system (pelvis) together with scarring’.
It is likely that there has also been progression of age-related degenerative disease since the injury in 2010. This is likely to be what Dr Rosenberg refers to in the second paragraph on page 2 of this report.
The history from Ms Kari establishes enhanced back pain and leg pain following the surgical procedures, with subsequent improvement and achievement of the present level of back pain and leg pain which has reached a state of stability. It is likely, therefore, that a state of stability of the L3/4 and L4/5 spondylolisthesis has been achieved. Happily, there has been no extension of the spinal condition to involve the cauda equina.
2.     Additional history since the original Medical Assessment Certificate was performed
There is persisting pain in the lower lumbar region and in both legs from the inguinal regions down. There has been no additional symptom other than the pain and no evidence in my up-to-date history taking suggesting or indicating radiculopathy.
I have also taken into account the many documents I have received from diverse authors with differing opinions.
3.     Findings on clinical examination
On examination, Ms Kari was alert and cooperative.
She walked with a slow antalgic gait, complaining of additional pain in the lumbar region when rising from the chair and on assuming the seated position. She did not require assistance and was not using a walking aid. There was unimpaired ankle dorsiflexion and plantar flexion during ambulation bilaterally.
In the standing position, there was asymmetrical impairment of forward flexion to less than 50% and bilateral symmetrical lateral flexion of the lumbar spine to 50% of the estimated normal range. Lumbar extension was limited to more than 50% of the estimated normal range and rotation bilaterally was also estimated to be approximately 50% of the estimated range. There was muscle guarding on lateral flexion of the lumbar spine to the left and right.
She was unable to sit on the examination couch with hips flexed and knees extended because of lumbar pain.
Straight leg raising was limited to 30° on the right and less than 10° on the left because of back pain. There was no wasting of any muscle group in either lower extremity. However, there was variable impairment of the power of ankle dorsiflexion and plantar flexion and a prompt giving-way phenomenon bilaterally.
The superficial and deep modalities of sensation were tested and a no impairment of light touch, temperature or prick sensation was present on either side. The deep modalities of sensation, proprioception and vibration were present and unimpaired.
The knee and ankle jerks were reduced bilaterally without improvement on reinforcement.
There was no abnormality of skin colour, temperature or texture in either lower extremity.
The midline lumbar surgical scars were superimposed, non-pigmented, non-tender, difficult to locate and non-disfiguring.
I could not identify a lumbar spinal step as described above by Dr Rosenberg.
4.     Results of any additional investigations since the original Medical Assessment Certificate
I have made reference to documentation concerning additional investigations since the original Medical Assessment Certificate and additional history taking where possible, and a fully up-to-date neurological examination of the lower extremities and lumbar spine.
My neurological findings today do not include symptoms or abnormal physical signs establishing radiculopathy involving the lower extremities. The main existing symptom is low back pain and the history indicates that it began at the time of the injury on 11 June 2010. The dominant symptom from that time is unquestionably low back pain and bilateral lower extremity pain unaccompanied by radiculopathy. The physical examination reported above is unassociated with abnormalities conforming to the directives in AMA5 and the SIRA Guides 4^th Edition necessary to apply a diagnosis of radiculopathy.”

EVIDENCE

The Appeal Panel has before it all the documents that the appellant filed with her application for reconsideration, the documents the respondent filed in response to that, the COD, the Application to Resolve a Dispute the appellant registered with the WCC on 3 July 2015, and the respondent’s reply to that, which was received by the WCC on 23 July 2015.

SUBMISSIONS

Following receipt by the Appeal Panel of Medical Assessor Mellick’s report, the Appeal Panel, on 10 June 2025, directed the appellant file with the Commission and serve on the respondent by 17 June 2025 written submissions on whether the Appeal Panel should exercise its discretion under s 378(1) of the 1988 Act to reconsider the decision of the Appeal Panel dated 14 January 2016. The Appeal Panel further directed the respondent file and serve by 24 June 2025 written submissions in reply. The Appeal Panel also instructed the parties firstly, not to repeat any submission already made to the Commission, which were in the main directed to whether the Commission should exercise its discretion to reconsider the COD, and secondly, not to make any submission on what the Appeal Panel’s assessment of the appellant’s permanent impairment should be in the event that the Appeal Panel were to exercise its discretion and reconsider the decision of the Appeal Panel dated 14 January 2016.
The appellant’s submissions are dated 17 June 2025. Paraphrasing them, so as to provide a summary of them, they are that the power of an Appeal Panel contained within s 378(1) is unfettered, such that an Appeal Panel has the discretion to reconsider any matter that had been dealt with by an Appeal Panel. The appellant submitted that the “principles of judicial comity dictate that the Appeal Panel should conform” with the decision of Member Wynyard on 29 January 2025.
The appellant also referred to its submissions in paragraphs 35-41 of her submissions dated 11 November 2024 made in support of her application before Member Wynyard to reconsider and rescind the COD. Therein the appellant referred to the decision of Samuel v Siebel Furniture Ltd[2] where Roche ADP (as he then was) set out the relevant principles applicable to an application under the former s 350 of the 1998 Act for reconsideration of a decision of the WCC. In these paragraphs the appellant noted that she had undergone surgery following the decision of the Appeal Panel dated 14 January 2016, an outcome of which was a deterioration of her condition. The appellant submitted that the Commission, and by extension this Appeal Panel given that she relies on these submissions now, must do justice between the parties which dictates that it reconsiders the decision of the Appeal Panel dated 14 January 2016. She submitted that not doing so would prevent her the opportunity of making a work injury damages claim and preventing her from prosecuting a threshold dispute in the Commission. She submitted that her delay in applying for reconsideration of the decision should not prevent the exercise of discretion as she “underwent a series of [sic] before being assessed in a medical context and bringing this application”. She submitted that the respondent would not be unfairly prejudiced by the exercise of the discretion.
[2] [2006] NSWWCPD 141.

In her written submissions of 17 June 2025, the appellant also said that she adopted the reasoning of Member Wynyard at [92] to [97] in his statement of reasons. Therein Member Wynyard stated that he was satisfied that the appellant had suffered a deterioration and had satisfied the question of whether an unexercised right was available to her. He said that “the permanent impairment caused by the fusion surgery qualified for at least 20% WPI” and that there has been a deterioration of the appellant since the decision of the Medical Appeal Panel dated 14 January 2016. He expressed his satisfaction that the appellant’s application for reconsideration of the COD should be granted and that the “public interest factor is not satisfied by this application, as further litigation must occur as a result of these findings”. He expressed his view that the legislature intends that persons who qualified to invoke
ss 350 and 378 should have the full entitlement that would come with a successful reconsideration by an Appeal Panel. He noted that the delay from the appellant’s accrual of her entitlement following her fusion surgery had not been the subject of specific submissions although he also noted that the appellant’s counsel omitted a point he was trying to make in the submission which the Appeal Panel has copied in the penultimate sentence in the paragraph above.
Paraphrasing the respondent’s submissions in reply, they are that the reasoning of Member Wynyard failed to address a number of relevant and necessary contributing factors relating to whether there was a deterioration of the appellant’s impairment.
The respondent submitted that Member Wynyard appeared to have accepted the appellant’s submissions regarding the application of Dimos v Gordian Runoff Ltd[3] (Dimos), those submissions being, according to the respondent, that a decision of a Medical Appeal Panel could be reconsidered on the grounds of deterioration or that other relevant information had become available. The respondent highlighted in its submissions to the Appeal Panel that Dimos concerned an application under the former Motor Accident Compensation Act 1999 (NSW). The respondent submitted that Member Wynyard appears to have accepted the reasoning in Dimos to the effect that exercising a discretion for reconsideration is done on the basis of whether there had been a deterioration in the appellant’s lumbar spine condition. The respondent submitted s 378 is not so limited. Other factors need to be considered.
[3] [2023] NSWSC 1151.
The respondent submitted that the appellant did not rely on any expert medical evidence to establish that the deterioration of her lumbar spine condition was due to the injury to her lumbar spine, but rather the appellant sought to rely on an inference based on the determination of Arbitrator Homan who had determined in earlier proceedings in the WCC[4] that the appellant’s proposed surgery was reasonably necessary as a result of her injury.
[4] WCC Matter No. 3640/20.
The respondent submitted that it is necessary that an Appeal Panel when considering whether to exercise its discretion under s 378 not limit its consideration to whether the appellant’s spinal surgery resulted from her injury and whether a deterioration of her lumbar spine condition resulted from her spinal surgery because to so limit its consideration to such factors would not do justice between the parties.
The respondent further submitted that Arbitrator Homan found that the appellant’s lumbar spine injury materially contributed to the need for her surgery. The respondent submitted that Member Wynyard appeared to conflate the finding of Arbitrator Homan with the question of whether the evidence demonstrated the surgery had led to a deterioration in the appellant’s lumbar spine condition. The respondent submitted it is not sufficient to equate the determination of Arbitrator Homan that the appellant’s lumbar spine surgery was reasonably necessary as the result of her injury with the question of whether the appellant has an unexercised right to apply for a further determination of the degree of permanent impairment of her lumbar spine because of the deterioration of her condition.
The respondent also noted that the decision of Member Wynyard to exercise his discretion to reconsider the COD and rescind it would have the effect of prolonging litigation in this matter for some considerable period. The respondent submitted that other than identifying that as an issue, Member Wynyard gave it no further consideration and did not provide reasons why he gave it no weight.
The respondent submitted that “it is difficult to see how the Member’s determination is not in direct opposition to the criteria of Samuel and the public interest that litigation should not proceed indefinitely”.

FINDINGS AND REASONS

The appellant suffered an injury to her lumbar spine on 11 June 2010 while she was attempting to free garments that had caught beneath the wheels of a heavy trolley. She came under the care of orthopaedic surgeon Dr Ian Meakin, whom she initially consulted on 29 June 2010 regarding her injury, and whom she had previously consulted “a decade ago” regarding an injury to her cervical spine and bilateral carpal tunnel decompression.
Dr Meakin in a letter dated 29 June 2010 addressed to the appellant’s general practitioner noted that a normal CT scan of her lumbar spine had been performed 10 years ago. In his letter, Dr Meakin indicated that 10 years ago the appellant was experiencing back pain which had totally settled. Dr Meakin noted that a “current CT scan of the lumbar spine demonstrated moderate degenerative facet joint change at L3/4l and L5/S1 bilaterally and also at L4/5 which is the most extensive level”. Dr Meakin noted that the CT scan also revealed “a very mild postero-central disc bulge at L4/5 but no evidence of significant compression of the thecal sac and no evidence of canal stenosis”.
Arbitrator Homan at [23] of her statement of reasons for the determination she made on 25 September 2020 noted that the appellant consulted neurosurgeon Associate Professor Timothy Steel on 12 April 2012, who referred the appellant for an MRI of her lumbar spine. This was done on 20 April 2012. This showed minimal L4/5 degenerative spondylolisthesis and an annular bulge at L4/5 and no focal disc protrusion.
Arbitrator Homan also noted that an MRI scan of the appellant’s lumbar spine was done on 8 March 2013. She noted the report on that detailed the appellant had a clinical history of pain and numbness in her left leg. Arbitrator Homan noted that the report revealed minimal spondylolisthesis at L3/4 and L4/5, a small left foraminal disc protrusion at L3/4 with mild impingement of the left L3 nerve root, a small left sided disc protrusion at L4/5 abutting the left L5 nerve root.[5]
[5] The report of the MRI is not before the Appeal Panel.
Degeneration in the appellant’s lumbar spine was also revealed a whole body spect scan done on 31 May 2013.
On 24 May 2014 a MRI scan was done of the appellant’s lumbar spine at the request of Associate Professor Steel. The history noted in a report on that scan was “low back pain, left leg symptoms, spondylolisthesis”. The reporting radiologist concluded that the scan revealed “severe bilateral facet arthrosis at L3/4 and L4/5 associated with grade 1 anterolisthesis”. The radiologist concluded that there was no focal disc protrusion or associated neural impingement.
The appellant again consulted Associate Professor Steel on 10 June 2014 who, in a letter to the appellant’s general practitioner dated 10 June 2014, noted the results of the MRI done on 24 May 2014 and detailed his recommendations regarding the appellant’s future management. He said that the appellant did not require urgent surgical intervention and that her situation was difficult because of the sensory disturbance from hernia surgery the appellant had previously undergone. Associate Professor Steel advised that “in the absence of high-grade nerve compression on the MRI scan I am not sure that surgery has a lot to offer in the management of her lumbar spine”.
The appellant consulted Associate Professor Steel again on 5 August 2014. In his report on that consultation to the appellant’s general practitioner Associate Professor Steel said that he had “reassured her that I could not see any role for surgical intervention in the management of the multiple symptomologies”. He said that “her lumbar spondylolisthesis is thecal and does not require surgical intervention at present”.
On 19 March 2015 the appellant had an MRI scan of her whole spine. With respect to her lumbar spine, the reporting radiologist advised that there was mild grade 1 spondylolisthesis at L3/4 and L4/5, a minor spondylitic change at L2/3, mild disc desiccation with a mild concentric disc bulge at L3/4 and flaval hypertrophy and facet joint arthropathy, moderate disc desiccation with mild posterior anal bulging and flaval hypertrophy and prominent facet joint arthropathy at L4/5, an intact disc at L5/S1 with mild facet joint arthropathy.
The AMS examined the appellant on 14 August 2015 to conduct his assessment. He noted in the MAC that the appellant had undergone numerous radiological investigations. It is not apparent from what the AMS detailed in the MAC relating to the investigations the appellant had done on her lumbar spine until the date of his examination of her, that all of the reports on those investigations were before him. Based on the documents that were attached to the appellant’s ARD registered with the WCC on 3 July 2015 and the respondent’s reply to that, it would seem that not all were before him. Nevertheless, based on what the Medical Assessor detailed in the MAC relating to the investigations that the appellant had done of her lumbar spine, the Medical Assessor was aware of the degeneration in the appellant’s lumbar spine as at the time he examined her.
The findings from the Medical Assessor of his examination of the appellant relevant to her lumbar spine were as follows:
“Lateral bending as actively demonstrated by her was decreased by four fifths but equally so in both directions.
Rotation was decreased by four fifths but equally so in both directions.
Flexion and extension were both decreased by five eighths.
On specific questioning, Mrs Kari said this was due to pain that limited her movements.
The reflexes in the upper and lower limbs, being the triceps, biceps, supinator, knee, medial hamstring, ankle jerks and the Babinski reflexes in the toes, were all normal and equal on both sides.
The circumference of the mid-upper and forearms, of the thighs at 10cm above the patella and the calves at maximum diameter were measured with the tape measure.”
The Medical Assessor assessed the appellant’s permanent impairment relating to her lumbar spine by reference to Table 15-1 of AMA 5 on the basis that the appellant demonstrated restricted movement in all directions but had no asymmetry of movement, had no abnormality of reflexes or sensation and no muscle weakness or atrophy, had no muscle spasm or guarding, exhibited no matter that would allow a diagnosis of a radicular complaint, and had no matter of any non-verifiable radicular root pain.
The Medical Assessor assessed the appellant had 2% WPI of her digestive system (pelvis) and 0% WPI relating to scarring. Those assessments related to the hernias that the appellant had suffered and surgeries relating to those hernias.
Hence, the AMS assessed the degree of the appellant’s permanent impairment resulting from her injury on 11 June 2010 was 2% WPI.
On 15 September 2015 the appellant appealed against that medical assessment. Neither party has placed before this Appeal Panel the appellant’s application that she lodged with the WCC to initiate that appeal or the respondent’s reply to that. However, it is apparent from the reasons the Appeal Panel published for its decision of 14 January 2016 that the appellant’s appeal against the MAC, insofar as it related to the medical assessment of the degree of her permanent impairment from her lumbar spine, was based on her contention that the AMS erred by not correlating her impairment with diagnosis-related estimate (DRE) Category II given the symptoms she described to the AMS and given the opinions expressed by Dr Berry and Dr Khan, whom the appellant and the respondent had respectively qualified to provide opinions on various matters relating to the appellant’s injury of 11 June 2010, including the degree of the appellant’s permanent impairment from that injury. The appellant also contended that the Medical Assessor had erred with respect to his assessment relating to the degree of her permanent impairment relating to her digestive tract (pelvis) because the AMS’s assessment differed from the respective assessments that Dr Berry and Dr Khan had made. The appellant further contended that the AMS should have found the degree of her permanent impairment relating to scarring was 1 or 2% WPI because she is conscious of the scarring and also because of the findings the Medical Assessor recorded relating to her scarring.
In the MAC, in answer to a standard question within the templated form, specifically “have all body parts stabilised/reached maximum medical improvement?”, the AMS responded “it is my opinion that they have done so”. Paragraph 1.15 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment stipulates that assessments of permanent impairment are only to be conducted when the Medical Assessor considers the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement, which is considered to have occurred when the worker’s condition is well stabilised and unlikely to change substantially in the next year with or without medical treatment. Section 322(4) in the form enacted at the time the AMS conducted his assessment, stipulated that an AMS could decline to assess the degree of permanent impairment of an injured worked until the AMS was satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.
The Medical Assessor’s answers to these standard questions in the templated form of the MAC reveal that at the time he conducted his assessment he was satisfied that the degree of the appellant’s permanent impairment was then fully ascertainable. No issue was raised by the appellant in her appeal against the MAC regarding that.
The appellant in her appeal relied upon the grounds for appeal listed at s 327(3)(c) and (d) of the 1998 Act. The Appeal Panel found that neither ground had been established. The Appeal Panel held that the AMS was not bound by the opinions of other assessors and his findings from examination did not reveal any findings that would place the appellant within DRE Category II and that his findings were consistent with DRE Category I. The Appeal Panel held that with respect to the appellant’s complaint about the AMS’s assessment of her permanent impairment relating to her digestive tract (pelvis) the grounds advanced by the appellant “should be rejected as lacking any basis”. The Appeal Panel also held that with respect to the AMS’s assessment of the appellant’s permanent impairment relating to scarring the AMS addressed the relevant criteria comprehensively and it was open to the AMS to determine that the appellant had 0% WPI using the principle of “best fit”.
The evidence before the Appeal Panel, and indeed the report Medical Assessor Mellick provided to this Appeal Panel, reveals that after the decision of the Appeal Panel dated 14 January 2016, there has been a deterioration in the appellant’s lumbar spine condition.
Subsequent to that decision the appellant came under the care of orthopaedic surgeon Dr Geoffrey Rosenberg, whom she initially saw on 1 May 2019 and again on 10 July 2019. Dr Rosenberg noted that the appellant was suffering from severe back and leg pain and that given the severity of her symptoms it was reasonable for the appellant to have surgery in the form of a decompression and fusion from L3 to L5 which would improve her symptoms although not cure them. Dr Rosenberg performed that surgery on 6 November 2020. He undertook a fusion extension to S1 on 6 August 2021 and performed a revision of a fusion on 1 April 2022.
The disputed claim between the parties that was before Arbitrator Homan to determine was, in substance, whether the L3 to L5 decompression and fusion is reasonably necessary as a result of the appellant’s injury on 11 June 2010. At the time the matter came before Arbitrator Homan, this was then treatment Dr Rosenberg was proposing for the appellant.
Arbitrator Homan noted at [90] of the reasons she published for her decision that there was “broad consensus” between the parties that the appellant’s “injury involved an aggravation of pre-existing degenerative pathology in [the appellant’s] lumbar spine”. Arbitrator Homan found that there had been some natural deterioration or progression of the appellant’s pre-existing degenerative pathology in the ten years since her injury[6] and that the surgery Dr Rosenberg had proposed would treat that degenerative pathology. Arbitrator Homan also found that the appellant’s injury caused an ongoing aggravation of her degenerative pathology which steadily worsened her symptoms of pain and weakness.[7] Arbitrator Homan found that the surgery Dr Rosenberg proposed was reasonably necessary as a result of her injury on 11 June 2010.
[6] [112] of the statement of reasons.
[7] [112] and [116] of the statement of reasons.
Campbell JA stated at [94] (Hodgson JA and Handley AJA at Green at [1] and [115]) in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission[8] that deterioration is an inherently relational concept that involves a condition becoming worse than it previously was at some particular point in time. Noting from the MAC the symptoms the appellant reported to the AMS at the time of the AMS’s examination of her and her condition when she subsequently consulted Dr Rosenberg, it is clear that the appellant’s lumber spine condition deteriorated after the date on which the MAC was issued such that it became reasonably necessary for her to have an L3/L5 decompression and fusion. After that she had two further procedures one in which a further level of her spine fused and in the other a revision of the fusion.
[8] [2007] NSWCA 149.
The appellant’s current permanent impairment, relating solely to her lumbar spine, is 26% WPI. That is on the basis that, in accordance with paragraph 4.37 of the Guidelines, her impairment relating to her lumbar spine is to be assessed by reference to DRE Lumbar Category IV, for which the base rating is 20% WPI. Two percent WPI should be added for the effect her injury has on her activities of daily living noting that Medical Assessor Mellick found that the appellant could manage her personal needs but is unable to mobilise short distances in or near her house and is unable to do housework. That brings her WPI to 22%, to which in accordance with Table 4.2 of the Guidelines should be combined with 2% WPI for a second surgical procedure, 1% WPI for a third surgical procedure and 2% WPI for surgery on second and third levels. That brings her total WPI to 26%.
The upshot of that is that there has been an increase in the appellant’s permanent impairment from her injury to her lumbar spine consequent upon the deterioration of her lumbar spine condition.
Her current permanent impairment from her injury to her lumbar spine is assessed based on her having had lumbar spine surgery. The surgery was the consequence of both an underlying pre-existing degeneration in her lumbar spine and her injury which had aggravated that degeneration. Necessarily therefore her current permanent impairment results from her injury.
In Sleiman v Gadalla Pty Ltd[9] Leeming JA, with whom Gleeson JA and Payne JA agreed, noted that the decisions relating to the principles of reconsideration that were discussed in Martinovic v Workers Compensation Commission of NSW[10] at [94] extend to an Appeal Panel reconsidering its decision under s 378. An Appeal Panel must consequently consider, to the extent they apply, the matters that Roach ADP identified in Samuel at [58] when deciding to exercise its discretion to reconsider a decision of an Appeal Panel.
[9] [2021] NSWCA 236.
[10] [2019] NSWSC 1532.

Leeming J in Sleiman also said the following at [78]-[82]:
“It is true that the right to apply for reconsideration is not available as of right but instead is discretionary, and that may be disadvantageous to the worker. However, there is a sound basis in the legal system generally for there to be a single appeal as of right, with any further appeal being discretionary. That is seen in a wide variety of situations, most obviously by the avenue of further appeals by way of special leave to the High Court from this Court. Double appeals have long been perceived to be an evil, as was noted in this Court in Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89 at [27].
It is helpful to return to the following fundamental considerations.
1.Generally, it makes sense for medical assessments to occur at a time when the worker’s condition is likely to have stabilised; how else, after all, is permanent impairment properly to be assessed? Section 322A discourages medical assessments being performed too early.
2.In cases where there is further deterioration, the earlier approved medical specialist or Appeal Panel will be shown to have been wrong to have concluded that the degree of permanent impairment suffered by the worker is as was assessed. It is open to the approved medical specialist to decline to make an assessment of permanent impairment “until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable”: s 322(4).
Now of course there may be cases where the approved medical specialist wrongly reaches the view that the degree of permanent impairment is fully ascertainable, and thereafter the Appeal Panel likewise wrongly reaches the view that the degree of permanent impairment is ascertainable, only for the worker’s condition to deteriorate. But it is to be hoped and expected that such cases are rare.
The foregoing tends to call into question the premise underlying Mr Sleiman’s construction. If it be assumed that the original decision is wrong, and the appeal from that decision is wrong, then it may readily be contended that a limit of a single appeal can operate harshly. But in substance such an argument assumes its own result.
The answer to the submissions based on harshness is that there should only be an assessment of permanent impairment when the specialist bodies involved are satisfied that an assessment can appropriately be made, the right of appeal on the ground of deterioration addresses errors that have occurred, and if there is further deterioration after an assessment of permanent impairment by the Appeal Panel, then those cases would, at least under the regime which obtained in 2019, be cases where a relatively powerful case for reconsideration would be available.”
Given these observations of Leeming JA, a relevant consideration for an Appeal Panel to consider when determining whether it ought to exercise its discretion under s 378(1) of the 1998 Act is if it can be shown that an assessment of an AMS or an Appeal Panel was wrong regarding the issue of whether the degree of a worker’s permanent impairment is fully ascertainable. That is, in this case, this Appeal Panel must consider whether the AMS or the earlier Appeal Panel was wrong to have found that the degree of permanent impairment of the appellant is fully ascertainable and whether either was consequently wrong by not declining to make an assessment of the degree of permanent impairment of the appellant.
Ultimately the end purpose of this Appeal Panel in deciding whether to exercise its discretion under the preserved s 378(1) is to ensure that justice is done between the parties based on the substantial merits of the case.
As matters transpired in this case the appellant’s lumbar spine condition worsened after the examination the AMS conducted on 14 August 2015. This is evident from the reports that Dr Rosenberg wrote both to the appellant’s general practitioner on 1 May 2019 and to the appellant’s solicitors on 11 June 2020. The worsening of her condition resulted in her having an L3-5 decompression and fusion, which was subsequently extended to S1 and subsequently revised. That resulted in a worsening of the degree of her permanent impairment subsequent to the medical assessment the AMS undertook and certified in the MAC of 21 August 2015.
It seems to the Appeal Panel that as at August 2015 it was likely to be the case that the appellant’s symptoms would steadily worsen because of the degeneration she had in her spine at the date of injury and also as a consequence of that being aggravated by her injury. Hence, although not raised by either party in their respective submissions with respect to the appeal the appellant lodged against the MAC, the AMS’s conclusion that the appellant had reached maximum medical improvement and his not invoking his discretion under s 322(4) of the 1998 Act to decline to assess the degree of the appellant’s permanent impairment, was questionable at best.
A likely reason why the issue of whether the appellant had reached maximum medical improvement with respect to her lumbar spine was not addressed in the appellant’s appeal against the MAC is that it was not addressed by Dr Neil Berry, on whose reports the appellant relied to support her claim for permanent impairment. Dr Berry in his report of 7 July 2014 said that he considered the appellant had reached maximum medical improvement with respect to her neck and upper limb and also with respect to her left groin. He did not express that view with respect to the appellant’s back pain.
Dr Sikander Khan said in a report of 7 May 2015, on which the respondent relied to dispute the appellant’s claim, that the appellant’s “condition” had reached maximum medical improvement, and it seems that his reference to condition related to the appellant’s injury to her lumbar spine and the appellant’s left inguinal hernia and left upper limb. Dr Khan however did not provide any explanation for reaching this conclusion nor did he consider the likelihood that the appellant would at some point need surgery of her lumbar spine.
The Appeal Panel takes into account the public interest that litigation should not proceed indefinitely. The Appeal Panel acknowledges that were it to exercise its discretion to reconsider the MAC and revoke it and thereupon to reassess the medical dispute the outcome would be the assessment of the degree of the appellant’s permanent impairment from her injury would significantly increase such that it would cross thresholds that potentially would entitle her to further compensation and potentially work injury damages. There is however no evidence before the Appeal Panel nor any submission made by the respondent that indicates it would be prejudiced in the sense of being unable to defend or reply to any further claims in any future litigation the appellant may prosecute. Potentially, it may suffer some financial hardship if the appellant were to be successful in such litigation.
In the Appeal Panel’s view evidence regarding the likelihood of the appellant needing the surgery she ultimately came to have when under the care of Dr Rosenberg could have been obtained before the medical assessment that the AMS conducted on 14 August 2015. This is something the Appeal Panel weighs in deciding whether to exercise this discretion to reconsider.
The appellant had initial surgery on 25 September 2020 when the procedure of an L3 to L5 fusion was done. She had subsequent surgery on 6 August 2021 when the fusion was extended to S1 and further surgery on 1 April 2022 when there was a revision of the fusion. The appellant obtained a report on 27 April 2023 from Associate Professor John Ireland regarding the degree of her permanent impairment following her surgery. On 5 August 2024 the appellant, through her solicitors, applied to the Commission for reconsideration of the MAC. Her solicitors also notified the respondent’s insurer on that date that she was doing so. When the matter ultimately came before Member Wynyard, she amended her application such that she sought a reconsideration of the decision of the Appeal Panel dated 14 January 2016.
The Appeal Panel considers that the delay between the appellant’s final surgery to her lumbar spine and her applying for reconsideration of the Appeal Panel’s decision is of relatively short duration.
Weighing all those matters the Appeal Panel considers that the interest of justice between the parties is such that the Appeal Panel ought to exercise its discretion and reconsider the decision of the Appeal Panel dated 14 January 2016. Its reconsideration is that the decision of the Appeal Panel should be revoked and that this Appeal Panel should reassess the medical dispute between the parties insofar as it relates to the degree of permanent impairment the appellant has resulting from the injury to her lumbar spine.
Based on the findings of Medical Assessor Mellick the appellant does not meet the criteria of paragraph 4.27 of the Guidelines in order that the Appeal Panel can make a finding that the appellant has radiculopathy. Medical Assessor Mellick’s examination revealed that the appellant did not have any loss or asymmetry of reflexes, or wasting of muscles in her lower limbs, or reproducible impairment of sensation, or muscle weakness that was anatomically localised to an appropriate spinal nerve root distribution. His findings reveal variable impairment of power of the appellant’s ankle, dorsal flexion and plantar flexion and a prompt giving way phenomena bilaterally, but that was not in the distribution of a spinal nerve root.
As detailed earlier, because the appellant has had a fusion of her lumbar vertebra from L3 to S1 her impairment is to be rated, in accordance with paragraph 4.37 of the Guidelines, by reference to DRE Lumbar Category IV. That allows for a base rating of 20% WPI. To that the Appeal Panel adds 2% WPI pursuant to [4.33] of the Guidelines for the effect of the appellant’s lumbar spine injury on her activities of daily living, which brings her rating to 22% WPI, to which, in accordance with Table 4.2 of the Guidelines is combined 2% WPI for her second surgical procedure, 1% WPI for her third surgical procedure and 2% WPI for surgery on the second and third levels. That brings her total degree of permanent impairment to 26% WPI.
The Appeal Panel considers that there should be a deduction to that under s 323(1) because the pre-existing degeneration the appellant had in her lumbar spine contributes to the degree of her permanent impairment. This is because her permanent impairment is assessed by reference to the fact that the appellant has had surgery from L3 to S1. Her surgery is both the consequence of the pre-existing degeneration and the aggravation of that pre-existing degeneration that occurred as a consequence of her injury. In other words, the surgery by reference to which her impairment has been assessed is due to both matters and hence necessarily the appellant’s pre-existing condition has contributed to her permanent impairment from her injury.
The Appeal Panel assumes in accordance with s 323(2) that the deduction to be made under s 323(1) is 10%. This is because it is difficult to determine the exact contribution her pre-existing degeneration makes to her current permanent impairment. The appellant was asymptomatic for a long period prior her injury, notwithstanding the degeneration she had in her lumbar spine. It is likely that at some point in time the appellant would have needed surgery to treat the pre-existing degeneration in her spine, but the need for that surgery was brought on much earlier as a consequence of her injury. As to when the surgery was likely to have occurred if she did not have her injury is unknown. Making the assumption that a deduction should be 10% is not at odds with that evidence, that evidence being that the appellant was asymptomatic at the time of her injury and her injury brought on the need for surgery at a much earlier time than she would have otherwise been likely to have had.
The Appeal Panel does not accept the appellant’s submission to the effect that the principle of comity has application in this case such that it must exercise its discretion to reconsider the prior Appeal Panel’s decision because Member Wynyard exercised his discretion to reconsider the COD. The two matters, although related, are different. Further, following a decision of another decision maker, as a matter of comity, is limited to questions of law and statutory interpretation.[11] Neither is involved in this case.
[11] Comino v Kremetis [2023] NSWSC 32 at [63].
Lastly, the issues the respondent contends reveal error with respect to Member Wynyard’s exercise of his discretion are of no concern to the Appeal Panel. The avenue for the respondent regarding that is provided by s 352 of the 1998 Act.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	3823/15
Applicant:	Mary Rose Kari
Respondent:	David Jones 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 Approved Medical Specialist Paul Myers 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)
Cervical spine	26/08/2008	Chapter 4	Table 15-1 Table 15-5	0%	-	0%
Left upper extremity (shoulder)	26/08/2008	Chapter 2	Figures 16-40, 43 & 46 Table 16-3	7%	-	7%
Lumbar spine	11/06/2010	Chapter 4	Table 15-3	26%	1/10	23%
Digestive system (pelvis)		Chapter 16 Paragraph 1.59 Paragraphs 1.53 & 1.54	Table 17-33 Table 6-9	2%	-	2%
Scarring		Table 14.1	-	0%	-	0%
Total % WPI (the Combined Table values of all sub-totals)					First injury 7%
					Second injury 25%

[2025] NSWPICMP 494

9 July 2025