Kids @ Play Pty Ltd v Mahir

DETERMINATION OF APPEAL PANEL
CITATION:	Kids @ Play Pty Ltd v Mahir [2025] NSWPICMP 51
APPELLANT:	KIDS @ PLAY PTY LIMITED
RESPONDENT:	Irma Mahir
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Andrew Porteous
DATE OF DECISION:	29 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of lumbar spine, left lower extremity, right lower extremity and scarring; appellant submitted that Medical Assessor (MA) failed to consider the evidence before him and make a deduction pursuant to section 323 for a pre-existing condition in the right knee, made an incorrect assessment of the lumbar spine and erred in assessing sensory loss in the left upper extremity; Appeal Panel satisfied that MA had considered the evidence before him and found no error in not making a deduction pursuant to section 323 for a pre-existing condition in the right knee and no error in assessment of the lumbar spine and left upper extremity; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 November 2024 KIDS@PLAY Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer (Medical Assessor), who issued Medical Assessment Certificate (MAC) on 16 October 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 assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The respondent to the appeal, Irma Mahir (Ms Mahir), suffered an injury to her right lower extremity, left upper extremity, and lumbar spine during her employment as a centre manager with the appellant on 30 November 2017.
Ms Mahir lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 6 December 2022 in which she claimed an amount of $65,521.84 in respect of 25% whole person impairment (WPI) of the lumbar spine, right lower extremity, left upper extremity and “TEMSKI/scarring” as a result of the injury on 30 November 2017.
On 21 March 2024 Ms Mahir’s claim for WPI was referred to Medical Assessor Kuru for assessment. In the telephone conference on 21 March 2024, Member Beilby directed that the TikTok videos were not to be provided to the Medical Assessor. However, the TikToc videos were sent to Medical Assessor Kuru.
The matter was listed before Member Beilby on 8 August 2024 and she declared that the MAC of Medical Assessor Kuru was a nullity.
The matter was then referred to Medical Assessor Pillemer on 18 September 2024. An amended Referral for Assessment of Permanent Impairment to Medical Assessor was issued on 27 September 2024. The body parts referred were recorded as: “Right lower extremity (knee, lateral sural cutaneous nerve/peripheral nerve), left upper extremity (shoulder), lumbar spine, TEMSKI scarring”.
The Medical Assessor examined the appellant on 30 September 2024 and assessed 8% WPI of the right lower extremity (knee), 11% WPI of the lumbar spine, 4% WPI of the left upper extremity and 2% for scarring. This combined to result in a total of 23% WPI as a result of the injury on 30 November 2017.

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 Ms Mahir be re-examined by a medical assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Mahir to undergo a further medical examination because there was sufficient 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.

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 one: failure to give appropriate weight to Ms Mahir’s pre-existing condition and appropriately address s 323 of the 1998 Act. The evidence before the Commission establishes Ms Mahir suffered from a pre-existing condition in her right knee, which would warrant a s 323 deduction.
(b)    The Medical Assessor failed to make a deduction pursuant to s 323 of the 1998 Act. In those circumstances, the assessment was made on the basis of incorrect criteria and contained a demonstrable error.
(c)    The Medical Assessor erred as he appears not to have given consideration to the medical evidence before him that dealt with Ms Mahir’s pre-existing right knee injury including the report of Dr Matthew Giblin dated 13 December 2017, the report of Dr Tim O’Carrigan dated 2 September 2021, the report of Dr Drew Dixon dated 20 December 2022, and the report of Dr Todd Gothelf dated 6 June 2023. Despite the evidence before him addressing the pre-existing condition in the right knee, the Medical Assessor states on page 8 at Part 11 in relation to “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality” - “Not applicable”.
(d)    The Medical Assessor’s reasoning is inadequate to explain the absence of deduction for the right knee in light of the evidence referred to above. The conclusion reached by the Medical Assessor is at odds with the available evidence before him. It is clear on the evidence that Ms Mahir had pre-existing condition in her right knee, and as such a deduction under s 323 of the 1998 Act should have been made by the Medical Assessor relating to the right knee injury.
(e)    In the recent Supreme Court decision of Secretary, Department of Communities and Justice v Virtue [2024] NSWSC 1380, Bastin J in obiter, considered that the s 323 deduction applied to a primary injury should flow to through to any consequential impairments. Therefore, any deduction to Ms Mahir’s primary right knee injury should also be applied to the consequential lumbar spine and left shoulder condition.
(f)    There is extensive evidence as outlined above which establishes Ms Mahir suffered from a pre-existing condition in her right knee which would warrant a s 323 deduction of greater than one-tenth.
(g)    Ground two: Incorrect assessment of WPI with respect to the lumbar spine. The Medical Assessor assessed 11% WPI in respect of the lumbar spine, made up of 10% WPI for DRE III and 1% for interference with activities of daily living. The Medical Assessor erred in assessing Diagnosis-Related Estimate (DRE) III and this is a demonstrable error.
(h)    The Medical Assessor on page 5 of the MAC stated: “…her main discomfort was to palpation in the right buttock area rather than in her lumbar spine, and in my opinion, her symptoms are best explained on the basis of sciatic nerve damage rather than L5 and/or S1 radiculopathy”.
(i)    In his report dated 20 December 2022, Dr Dixon considered that the buttock pain was sciatica arising from the back. Dr Dixon assessed Ms Mahir as DRE Lumbar Category II, with impact on activities of daily living (ADL’s) and assessed 8% WPI in the lumbar spine.
(j)    An MRI of the right hip dated 6 September 2022 showed the sciatic nerve and neurovascular bundles were normal. A medical report of Dr Geoffrey Rosenberg dated 13 September 2022 noted that Ms Mahir reported pain in particular down to the right buttock and thigh with occasional groin pain. Dr Rosenberg reported her neurology as such was normal. There is a lack of contemporaneous evidence on file to support the hypothesised diagnosis of right buttock sciatica by Dr Dixon.
(k)    Dr Gothelf, in his more recent report dated 14 December 2023, stated: “The physical examination revealed no guarding, no asymmetrical loss of motion and no radicular signs or symptoms”. He assessed Ms Mahir as DRE Lumbar Category I with 0% WPI.
(l)    The Medical Assessor’s assessment of the lumbar spine is rather contradictory as he reported that her main discomfort was to palpation in the right buttock rather than in her lumbar spine. He conversely diagnosed sciatic nerve damage rather than L5 and/or S1 radiculopathy.
(m)     The Medical Assessor’s diagnosis is not supported by the imaging. Further there is a lack of treating medical evidence that indicate any reference on any involvement of the sciatica or sciatic nerve.
(n)    Paragraph 4.27 of the Guidelines provide that in order to conclude radiculopathy is present, two or more of the criteria should be found, one of which must be major. The Medical Assessor does not provide a detailed explanation of his assessment of radiculopathy. Therefore, the Medical Assessor assessed radiculopathy in circumstances where Ms Mahir did not meet the criteria for radiculopathy pursuant to Paragraph 4.27 of the Guidelines.
(o)    The Medical Assessor has incorrectly assessed Ms Mahir as DRE Lumbar Category III, as her symptoms do not fit the criteria for the rating impairment. The Medical Assessor does not report that Ms Mahir presented with any significant signs of radiculopathy, loss of reflexes, loss of muscle strength or unilateral atrophy. Given such, the assessment of Ms Mahir’s lumbar spine contains a demonstrable error and was based on incorrect criteria.
(p)    Ground three: incorrect assessment of WPI with respect to the left shoulder. The Medical Assessor assessed 4% WPI in respect of the left upper extremity (shoulder) made up of range of motion assessment and impairment of the supraclavicular nerve.
(q)    The Medical Assessor stated on page 4 of the MAC under Part 5 “Findings on Physical Examination” – Ms Mahir “does have mild discomfort in the lower lumbar region, but her main discomfort was to palpitation of the sciatic nerve as it exists the pelvis”. The Medical Assessor further stated on page 5 of the MAC – Ms Mahir “has hypoaesthesia to pinprick over the shoulder cowl, extending from the base of her neck towards the acromion and anteriorly and posteriorly over the top of the shoulder in the distribution of the supraclavicular nerve”.
(r)    Neither Dr Dixon nor Dr Bosanquet [sic] assesses sensory loss in respect of permanent impairment of the right shoulder. Further, there is a lack of treating medical evidence that elicit findings consistent with involvement of the supraclavicular nerve.
(s)    The assessment of Ms Mahir’s left upper extremity (shoulder) contains a demonstrable error and was based on incorrect criteria.
(t)    The MAC should be revoked.
The respondent’s submissions include the following:
(a)    Ground one: failure to give appropriate weight to the worker's preexisting condition and failure to appropriately address s 323 of the 1998 Act. There is no evidence of any pre-existing condition causing permanent impairment here to bear any weight, and thus, there is no weight to be assigned. appropriate or otherwise.
(b)    The Medical Assessor, to the question: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?" states “No”. The Medical Assessor expresses with reference to the current impairment "Ms Mahir had none of the above problems prior to her injury in November 2017”.
(c)    Furthermore, as noted by Dr Dixon in his report dated 12 September 2022. Ms Mahir was, prior to the impairment in 2017, “running 7km," "playing OzTag," and “being very active in the gym." all activities she can no longer participate in due to her current condition causing impairment. None of these activities suggest the presence of a pre-existing condition and there is no evidence to the contrary. Dr Dixon further confirms that Ms Mahir’s prior knee injury had “settled completely”, meaning that all symptoms and effects of the injury had resolved. Essentially, there were no remaining signs of the injury and none that caused impairment.
(d)    The available evidence at most suggests the possibility of susceptibility to injury. Even this is disputed. However, even that is not sufficient to ground a finding of impairment. The Medical Assessor has taken steps to ascertain whether any pre-existing impairment existed. Such has revealed a lack of pre-existing impairment evidence. The Medical Assessor’s process in appropriately addressing s 323 of the 1998 Act is consistent with the statement in Ibrahim v Seilers Fabrics Pty Ltd [2023] NSWSC 1320: “Section 323 does not permit a deduction based on predispositions or susceptibilities."
(e)    Paragraph 11 of the Application to Appeal against Decision of Medical Assessor states that “it does not matter if the pre-existing condition was asymptomatic. rather if the loss is to some extent due to the pre-existing condition. there must be a deduction of the deductible proportion for that loss” (referring to Government Cleaning Service v Ellul (1996) 13 NSW CCR 344 at 349). Given that, from the Medical Assessor’s judgement, current impairment is not to any extent due to a pre-existing condition, the consideration of an asymptomatic pre-existing condition has no application and is speculative only.
(f)    Paragraph 12 of the Application to Appeal against Decision of Medical Assessor refers to the matter of Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13] and states that the Medical Assessor is required to establish whether the pre-existing condition caused or contributed to the impairment “where there is evidence of “actual consequences’ of the earlier injury on the later impairment”. As clarified by the Medical Assessor, there is no evidence of ‘actual consequences’ of the earlier injury on the later impairment.
(g)    Ground two: incorrect assessment of WPI with respect to the lumbar spine. The Medical Assessor is a highly experienced surgeon whose professional assessment aligns with the findings in the radiology report of Dr Houang on the 16 October 2023.
(h)    The radiology notes disc protrusion at C4/5, indenting the theca with significant annular tears and sensory loss and disc protrusion at L5/S1 displacing the R S1 nerve root, consistent with the Medical Assessor’s findings of radiculopathy.
(i)    The Medical Assessor stated: “…while in my opinion her symptoms are arising from the sciatic nerve, the involvement of the L5 and S1 nerve roots is equivalent of DRE III of the lumbar spine being considered as radiculopathy with 10% WPI”. Sciatica and radiculopathy represent overlapping conditions, with radiculopathy being the most common underlying cause of sciatica. When the Medical Assessor uses the term "equivalent" meaning "the same as”, it is a medically accurate statement, as the involvement of the L5 and S1 nerve roots in this case aligns with the clinical criteria for radiculopathy, specifically as described in DRE III of the lumbar spine resulting in a 10% WPI. Ms Mahir’s condition corresponds with multiple lumbar nerve symptoms, however, R S1 radiculopathy is found.
(j)    It is apparent on physical examination that the Medical Assessor found two key symptoms of radiculopathy as outlined in the AMA 5 and the Guidelines.
(k)    Ground three: incorrect assessment of WPI concerning the left shoulder. There is evidence supported by Dr Ivan Popoff’s in his report dated 24 October 2022, which confirms the presence of paraesthesia arising from the injury to the left shoulder, consistent with the MAC.
(l)    The Medical Assessor states:
“With regard to her left shoulder, in my opinion, her symptoms are due to involvement of the supraclavicular nerve on the left side as evidenced by the very distinct sensory loss in the distribution of this nerve as well as reproduction of her symptoms by percussing the nerve as it enters the posterior triangle of the neck behind the posterior border of sternomastoid (positive Tinel's sign)”
Additionally, a range of motion assessment is performed in his MAC.
(m)     The Medical Assessor as a highly experienced orthopaedic specialist has determined the involvement of the supraclavicular nerve per 1.23 of the Guidelines as well as the AMA 5 (p 11):
“…in situations where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgement, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily life”.
The Medical Assessor has, within his professional assessment and judgement, determined such an equivalent or analogous condition as is required of him. This is neither controversial nor reviewable.

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 one – failure to give appropriate weight to the worker's pre-existing condition and failure to appropriately address s 323 of the 1998 Act

The appellant submits that the Medical Assessor failed to appropriately consider and apply s 323 of the 1998 Act in respect of the deduction to be applied for Ms Mahir’s pre-existing condition in her right knee.
The Medical Assessor noted under “History relating to the injury” that Ms Mahir said that she injured her right knee in 2017 and has had ongoing problems with her right knee ever since then. She said that she subsequently developed problems with her left knee, her lumbar spine and her left shoulder region. The Medical Assessor noted that Ms Mahir has had three operations on her right knee as well as extensive physiotherapy, taken tablets and had injections in her left shoulder region, which she has on a regular basis. She said that she also has PRP injections, sees a pain specialist, wears orthotics in her shoe and occasionally wears a knee brace.
The Medical Assessor noted that the first operation on 20 February 2018 was an arthroscopy and a debridement as well as a lateral release and she was shown to have Grade IV patellofemoral involvement. He noted that the second operation was on 23 June 2020 being a tibial tubercle transfer and lateral release and that it was after the second operation that she developed the secondary problems in her shoulder, her back and her left knee, noting that she was on crutches for a considerable period. The Medical Assessor noted that the last operation was in mid-January 2023 where she had an operation on the infrapatellar branch of her saphenous nerve being a radio-frequency neurotomy.

Under “past history”, the Medical Assessor wrote: “Ms Mahir had none of the above problems prior to her injury in November 2017”.
Under “Details of any previous or subsequent accidents, injuries or condition”, the Medical Assessor wrote: “Ms Mahir had a right knee injury in 2004 for which she had an arthroscopy, and those symptoms settled completely”.
Under “Findings on physical examination” the Medical Assessor wrote:
“Ms Mahir was a slimly built adult female in no obvious discomfort who dressed and undressed without a problem and walks with a slight limp on the right side, keeping her right knee slightly flexed.
…
She always has significant wasting of her right lower limb with the left thigh being 3 cm less than the right as measured 10 cm above her kneecaps and her right calf being 1 cm less than the left side. The thigh muscle wasting is almost certainly due to her ongoing knee problems.
Ms Mahir does have a satisfactory range of hip movements and has a full range of left knee movements today, but on the right side, she had a range of movement 15-120°, and the knee itself was stable and there was no fluid in the joint today. There was significant discomfort to stressing her patellofemoral joint as well as the presence of crepitus.”
Under “Summary of injuries and diagnoses”, the Medical Assessor wrote:
“Right Knee
Ms Mahir initially developed symptoms in her right knee following her injury on 30 November 2017 and has had ongoing problems since then. As noted, symptoms are mainly related to her patellofemoral joint, which she has had three surgical procedures carried out, and I note that a patellofemoral joint replacement had been considered and I imagine is still being considered at the present time; although, Ms Mahir is very young to consider replacement surgery of her knee.”
At Part 8 of the MAC, the Medical Assessor wrote:
“e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No.
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. No.”
Under “Reasons for Assessment” the Medical Assessor wrote:
“Right Lower Extremity
As noted, Ms Mahir has loss of 15° of full extension of her right knee, which equates with 20% Lower Extremity Impairment. She also has significant thigh wasting as noted, which would equate with 12% Lower Extremity Impairment. Please note, however, that these figures cannot be combined”.
The Medical Assessor in commenting on the other medical opinions wrote:
“I note the reports of Dr D Dixon of 20 December 2022 suggesting 5% WPI for the left upper extremity, which are figures similar to my own, but for different reasons. He also suggests 8% WPI for the right lower extremity (he and I have agreed with this).
He has also suggested 2% for scarring and I have agreed with that. He has suggested 8% WPI in relation to the lumbar spine but for very different reasons from my own. He has also suggested 3% WPI for right trochanteric bursitis, which I did not find to be present today. Dr Dixon suggests a final figure of 25% WPI, which is similar to the figure I have suggested.
The report of Dr T Gothelf of 6 June 2023 finding 8% WPI for the right lower extremity and adding 2% for neurological involvement, which I have added to the scarring as noted. He suggested no residual impairment in relation to the left shoulder or the lumbar spine and gives a final figure of 9% WPI. As noted, I disagreed with these assessments.
There are reports of numerous other specialists but not suggesting figures of impairment”
At Part 11 of the MAC, the Medical Assessor wrote:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
Not applicable”.
The Appeal Panel reviewed the evidence in the matter.
In a report dated 20 December 2022, Dr Drew Dixon, consultant orthopaedic surgeon, noted: “She did have an athletic injury to her right knee in 2004 which required arthroscopic review and the knee settled down and was asymptomatic at the time of the subject slip and fall.”
In a report dated 10 October 2023, Dr Dixon, assessed 25% WPI and wrote: “There were no symptomatic pre-existing conditions”. He made no deduction pursuant to s 323 for pre-existing injury, pre-existing condition or abnormality.
In a report dated 6 June 2023, Dr Todd Gothelf, consultant orthopaedic surgeon, under “past Medical History” wrote:
“Ms Mahir stated she had a right knee arthroscopy at the age of 12. She was
playing sports at the time. At the time she noticed knee pain and ended up having an arthroscopy. Ms Mahir tated [sic\ that after the arthroscopy and she never had any pain, she played sport again and went to the gym never had pain or problems with the knee. Ms Mahir was asked about a kneecap ‘popping in and out’ and she explained that it never popped out completely but possibly shifted around. Irma denied any previous work-related injuries and denied any major motor accidents resulting in injury. She denied any recent symptoms with the right knee prior to the subject injury 29 November 2017”.
Dr Gothelf made the following diagnosis:
“Right knee strain, patellar dislocation, aggravation of pre-existing condition of previous patellar dislocation with subsequent pre-existing patellofemoral arthritis. An MRI 7 December 2017 revealed significant patellofemoral compartment chondromalacia with areas of retropatellar and femoral trochlear full thickness chondral loss and reactive bony changes, with a markedly shallow trochlear groove due to trochlear dysplasia with associated lateral patellar subluxation. Ms Mahir underwent surgery by Dr Giblin 20 February 2018 for a right knee arthroscopy and lateral release. Ms Mahir underwent a second surgery 23 June 2020 for a right knee lateral release and a medial tibial tubercle shift. A third surgery was performed January 2023 by Dr Nicholls for hardware removal. Ms Mahir reported persistent right knee pain and a sensation of instability of the patella. There was discussion of further surgery in the future of a patellofemoral replacement but no current plans for surgery. The physical examination revealed muscle atrophy of the thigh and calf, a loss of full extension of the right knee, painful patellar crepitus, and numbness along the lateral calf consistent with dysfunction of the lateral saphenous nerve.
Radiographs 8 September 2022 of the right knee that I reviewed revealed 3mm patellofemoral cartilage interval”.
Under “Deductions” Dr Gothelf wrote:
“There was evidence of a pre-existing right knee condition which was asymptomatic prior to the workplace injury. The presence of a pre-existing right knee patellar dislocation and patellofemoral arthritis contributed to the ongoing condition and need for surgical treatment. I consider a 1/10th deduction is reasonable. 9% - 0.9% = 8.1% which rounds to 8% WPI.”
In a report dated 13 December 2017, Dr Matthew Giblin, treating orthopaedic surgeon, noted that Ms Mahir had an episode of patella dislocation thirteen years ago, at which time she underwent an arthroscopy. Dr Giblin wrote:
“Clinically, she has had a subluxalion of the patella. In view of the fact that this is a long standing problem which has been aggravated by the incident described, I think its best that she be managed at this stage with some early physiotherapy, work on her VMO's and continue with her supportive brace”.
In a report dated 20 February 2018, Dr Giblin
“I arthroscoped Irma's right knee today and she had a good looking lateral compartment and medial compartment. On the retropatella surface she had a significant lesion which looks like either a chondral flap or a large piece of scar tissue. Either way, it was impinging and just needed to be removed. She had significant grade (4) changes on the retropatella surface and the trochlear groove and the groove itself was very shallow”.
In a report dated 2 September 2021, Dr Tim O’Carrigan, treating orthopaedic surgeon, noted that Ms Mahir had dislocated “…her right patella at the age of 13 and actually did well after that until 2017 when she rolled her right ankle at work and dislocated her patella”.
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said:
“29    ...The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30     Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31     ...That is a matter of fact to be assessed on the evidence led in each case”.
At [38] of Cole, Schmidt said:
“38. What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
In Elcheikh v Diamond Formwork (NSW) Pty Ltd [2013] NSWSC 365Schmidt J referred to her decision in Cole, stating:
“88. Section 323 requires that once the level of impairment which results from a work injury has been established, that a medical specialist must make 'a deduction for any proportion of the impairment that is due to any previous injury'. As discussed in Cole v Wenaline Pty Limited at [29] that requires a conclusion: ‘on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment'.”
The process for determining impairment and any appropriate s 323 deduction was set out by Garling J in Pereira v Siemens Ltd [2015] NSWSC 1133 at [83]-[90] in a three-stage process being:
“The first step requires a finding of fact that the worker has suffered an injury at work which has resulted in a degree of permanent impairment which has been assessed pursuant to s 322 of the 1998 Act: see Elcheikh at [125].
The second step which needs to be addressed is, assuming such an injury has been sustained and impairment has resulted, what is the extent of that impairment expressed as a percentage of the whole person: see Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [38]; Elcheikh at [126].
The third matter to be addressed is whether the worker had any previous injury, or any pre-existing condition or abnormality. The previous injury does not have to be one in respect of which compensation is payable under the 1998 Act. If the phrase ‘pre-existing condition or abnormality’ is to be relied upon, then such condition or abnormality must be a diagnosable or established clinical entity: Fire & Rescue NSW v Clinen [2013] NSWSC 629.
A finding of the existence of a previous injury can be made without the presence of symptoms, but there must be evidence which demonstrates the existence of that pre-existing condition: Mathew Hall at [31]-[32].
The pre-existing injury or condition must, on the available evidence, have caused or contributed to the assessed whole person impairment: see Matthew Hall at [32]; Cole at [29]-[31]; Elcheikh at [88] and Ryder at [42].
It cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment: Clinen at [32]; Cole at [30]; Elcheikh at [91]. What must occur is that there must be an enquiry into whether there are other causes of the whole person impairment which reflect a difference in the degree of impairment: Ryder at [45].”
The Appeal Panel accepts that s 323 of the 1998 Act requires that a deduction be made for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality.
The Appeal Panel reviewed the evidence in the matter.
The appellant submits that the Medical Assessor appeared not to have given consideration to the “various medical evidence” before him that deal with Ms Mahir’s pre-existing right knee injury. The Appeal Panel rejects this submission as the Medical Assessor referred specifically to the report of Dr Gothelf dated 6 June 2023 in which Dr Gothelf expressed the opinion that there was evidence of a of a pre-existing right knee condition which was asymptomatic prior to the workplace injury. Dr Gothelf was of the view that the presence of a pre-existing right knee patellar dislocation and patellofemoral arthritis contributed to the ongoing condition and need for surgical treatment. He considered that a one-tenth deduction was reasonable.
The Appeal Panel noted that Dr Gothelf reviewed the medical evidence available in some detail in his report, including the report of Dr Giblin dated 13 December 2027, in which the arthroscopy 13 years ago was referred to as well as Dr Giblin’s opinion that Ms Mahir had a long standing problem which had been aggravated in the work incident.
The Appeal Panel accept that the Medical Assessor did not refer in any detail to the reports of the treating specialists, but he noted that such reports did not suggest figures of impairment. However, the fact that the Medical Assessor did not refer specifically to the other reports does not mean that he did not mean that he had not considered the reports. There is no requirement that every report be referred to in the MAC. Harrison J in Prasad v Workers Compensation Commission [2010] NSWSC 418 said:
“On the other hand, there is support for the proposition that not every matter or thing that is germane or critical to an administrative decision must, or even can, be expected to find a place in the expressed reasons of the tribunal. Nor should too close an examination of those reasons be undertaken in the hope of locating putative error. This might be thought to be all the more forceful in the scheme of legislation such as the Act where the question for consideration has been referred to a specialist tribunal with knowledge and experience of medical matters, which one might expect will relevantly have been brought to account in its deliberations and ultimate consideration of the degree of whole person impairment.”
The Appeal Panel is satisfied that the Medical Assessor read and considered the evidence provided to him in this matter.
The Medical Assessor took a history of a right knee injury in 2004 for which Ms Mahir had an arthroscopy. He reported that those symptoms settled completely. It is therefore clear that the Medical Assessor found that Ms Mahir had a pre-existing injury, however, he was satisfied that no proportion of the whole person impairment was due to the previous injury or pre-existing condition. It follows that the question of what deduction should be made pursuant to s 323 of the 1998 Act did not arise.
The Appeal Panel is satisfied that the Medical Assessor did consider and apply s 323 of the 1998 Act. Ms Mahir was asymptomatic prior to the injury on 30 November 2027. The Medical Assessor noted that Ms Mahir had none of the problems that she described to him before the injury on 30 November 2017. Dr Gothelf reported that her work had involved walking around, lifting children, nappy changing, cleaning after children, bending, kneeling and sitting on the floor. Dr Gothelf was of the view that after the injury on 30 November 2017 Ms Mahir was unable to return to her pre-injury duties. Dr Gothelf noted that after Ms Mahir had the arthroscopy at the age of 12 she played sport again and went to the gym and never had pain or problems with the knee. He noted that Ms Mahir was unable to now go to the gym and was unable to perform a number of domestic duties.
Ms Mahir referred to a report of Dr Dixon dated 12 September 2022, however, no report of that date was filed with the ARD although the Appeal Panel noted that Dr Dixon had examined Ms Mahir on 5 September 2022. In his report of 20 December 2022, Dr Dixon noted Ms Mahir had difficulty performing heavy household chores and had not been able to return to sport such as “ladies soccer”.
The Appeal Panel consider that the activities which Ms Mahir engaged in prior to the work injury are evidence that the pre-existing injury to the right knee did not cause any of the impairment assessed by the Medical Assessor.
The Appeal Panel accepts that the Dr Ramesh Cuganesan, radiologist, in the report of MRI scan dated 7 December 2027 found significant patellofemoral compartment chondromalacia with areas of retropatellar and femoral trochlear full thickness chondral loss and reactive bony changes, with a markedly shallow trochlear groove due to trochlear dysplasia with associated lateral patellar subluxation/tilting.
The Appeal Panel were of the view that prior to the work injury, Ms Mahir’s patella did not restrict her activities. The Appeal Panel considered that Ms Mahir, before the work injury, was a physically active lady who played sport, went to the gym and looked after children, which can be physically demanding. The MRI scan dated 7 December 2027 is evidence of degenerative change but Ms Mahir was asymptomatic and functioning well until the injury on 30 November 2027. The Appeal Panel agrees with the Medical Assessor that there was no evidence of actual impairment caused by the injury in 2004 which contributed to the assessed WPI.
The appellant submitted that the Medical Assessor’s reasoning was inadequate to explain the absence of deduction for the right knee in light of the evidence. The Appeal Panel does not accept that submission and considers that the Medical Assessor provided adequate reasons for not making a deduction pursuant to s 323 of the 1998 Act. The Medical Assessor noted a history of a right knee injury in 2004 for which Ms Mahir had an arthroscopy. He reported that those symptoms settled completely. The Medical Assessor noted that Ms Mahir had none of the problems that she described to him before the injury on 30 November 2017.
The Medical Assessor was satisfied that no proportion of the WPI was due to the previous injury or pre-existing condition. It follows that the question of what deduction should be made pursuant to s 323 of the 1998 Act did not arise.
The Appeal Panel is satisfied that the Medical Assessor did consider and apply s 323 of the 1998 Act. Ms Mahir was asymptomatic prior to the injury on 30 November 2027. The Medical Assessor noted that Ms Mahir had none of the problems that she described to him before the injury on 30 November 2017.
The appellant submitted that the conclusion reached by the Medical Assessor is at odds with the available evidence before him. For the reasons set out above, the Appeal Panel rejects that submission.

The Appeal Panel is satisfied that ground 1 is not made out.

Ground two – incorrect assessment of WPI with respect to the lumbar spine

The appellant submitted that the Medical Assessor incorrectly awarded 11% WPI in respect to DRE Category III in his assessment of WPI of the lumbar spine.
The Medical Assessor wrote under “Findings on physical examination”:
“She had some difficulty walking on heels and toes on the right side and had fairly significant restriction of back movement today, only getting her fingertips slightly below her knees in flexion and lateral flexion to the left was more restricted than to the right.
Straight leg raising was present to 80° on the left and became uncomfortable at 60° on the right. Knee reflexes were present and equal and her right ankle reflex is depressed compared to the left side. Motor power was satisfactory, but she does have weak eversion of her right foot.
Ms Mahir does have very distinctive sensory changes with hypoaesthesia to pinprick on the dorsum of her right foot, extending over the lateral aspect of the right foot and into the lateral aspect of the sole and also extending all the way up the posterior aspect of her right leg on the lateral aspect as far as the upper thigh. The sensory loss is distinct and present with repeated testing.
Ms Mahir does have mild discomfort in the lower lumbar region, but her main discomfort was to palpation of the sciatic nerve as it exits the pelvis. This tended to reproduce her pain in her back and down her leg.”
Under “Summary of injuries and diagnoses” The Medical Assessor wrote:
“Lumbar Spine
As far as her lumbar spine is concerned, as noted, she does have evidence of L5 nerve root involvement with sensory loss in the dorsum of her right foot and very distinct and more marked S1 nerve root involvement in the lateral border and sole of her foot extending up the lateral and posterior aspect of her right leg to the upper thigh region. As noted, her main discomfort was to palpation in the right buttock area rather than in her lumbar spine, and in my opinion, her symptoms are best explained on the basis of sciatic nerve damage rather than L5 and/or S1 radiculopathy. As noted, she was very reluctant to sit on her right cheek today, which would certainly be in keeping with sciatic nerve involvement.”
The Medical Assessor under “Reasons for Assessment” wrote:
“As far as the lumbar spine is concerned, while in my opinion her symptoms are arising from the sciatic nerve, the involvement of the L5 and S1 nerve roots is the equivalent of DRE III of the lumbar spine being considered as radiculopathy with 10% WPI, to which I would add an additional 1% for interference with activities of daily living, giving a total of 11% WPI.
Assessed in terms of sciatic nerve damage, should give a maximum of 75% Lower Extremity Impairment for motor loss and 17% for sensory loss 4 and I would place Ms Mahir in Grade IV marked with 25% motor deficit, which would equate with 19% Lower Extremity Impairment.
I would place Ms Mahir in Grade III with 60% sensory deficit, which you would equate with 10.2, which rounds to 10% Lower Extremity Impairment. Combining these figures, gives 27% Lower Extremity Impairment and 11% WPI. Therefore, assessed by either method, would give the same level of impairment”.
The Appeal Panel reviewed the evidence.
In his report dated 20 December 2022, Dr Dixon noted under his findings on examination:
“Her straight leg raise was 60 degrees on the right and associated with buttock sciatica and low back pain.
…
There was stiffness of her lumbar segment with flexion decreased by one third with slow and jerky recovery with pain on back extension which was decreased by one half and lateral flexion to the left decreased by one third due to pain in the right paralumbar area and that to the right decreased by one quarter.
She reported no sensory changes in either lower extremity and when she saw the neurosurgeon on 28 May 2021, there was normal neurology in the lower limbs and it was apparent to the spinal surgeon that the left knee and spinal problems were due to her altered gait pattern and limping on the right and suggested consideration of PRP injections, as well as quadriceps strengthening and hamstring stretches and low impact exercises such as an exercise bike, which the claimant is doing”.
In respect of the lumbar spine, Dr Dixon made a diagnosis of “consequential pain in her lower back with an annular tear at L4/5 and disc bulge at L5/S1 with left buttock sciatica.”
In a further report 10 October 2023, Dr Dixon reported Ms Mahir had “low back pain with lumbar stiffness and right buttock sciatica with L4/5 and L5/S1 disc protrusions with dysmetria, and erector spinae muscle spasm”. He assessed Ms Mahir as DRE Lumbar Category II, with impact on ADL’s including foot care resulting in an assessment of 8% in the lumbar spine.
Dr Gothelf in his report dated 14 December 2023 under “Examination of the back” wrote:
“There was a fraction of normal active thoracic motion of full flexion, full extension, full left rotation and full right rotation. There was a fraction of normal active lumbar motion of full flexion, full extension, full left lateral flexion and full right lateral flexion.
There was no asymmetrical loss of motion.
There was normal alignment, curvature, and pelvic symmetry. There was positive reported tenderness to palpation along the spine. There was no observed muscle guarding or spasm.”
Dr Gothelf wrote: “The physical examination revealed no guarding, no asymmetrical loss of motion and no radicular signs or symptoms”. Dr Gothelf assessed Ms Mahir as DRE Lumbar Category I with 0% WPI.
Dr Geoffrey Rosenberg, in a report dated 13 September 2022, noted that Ms Mahir reported pain in particular down to the right buttock and thigh with occasional groin pain. He noted that she had marked discomfort over the anterior spine which he was able to palpate. Dr Rosenberg reported “her neurology as such is normal”.
Dr Michael Huang, radiologist, in an MRI report of the right hip dated 8 September 2022, wrote: “Sciatic nerve and the neurovascular bundles are normal”.
The appellant submits that the Medical Assessor’s diagnosis is not supported by the imaging. Further there is a lack of treating medical evidence that indicate any reference on any involvement of the sciatica or sciatica nerve.
Dr Michael Huang, radiologist, in an MRI report of the lumbar spine dated 16 October 2023, noted that comparing the results with the 2022 MRI, there was a further annular tear at L4/5 to the right side in addition to the left with broad based protrusion and that the L5/S1 protrusion had progressed, mildly displacing the R S1 nerve root in the lateral recess and the annular tear is unchanged.”
Dr Dixon, in his report of 20 December 2022, wrote:
“MRI of the lumbar spine on 2 August 20-22 had shown osteophyte anteriorly at L2/3 and L3/4 with posterolateral annular tear on the left at L4/5 and central disc protrusion mildly indenting the sac. At L5/S1 there is a broad based disc protrusion towards the right of the mid line, indenting the sac. These findings are consistent with low back pain and lumbar stiffness and right buttock sciatica.”
The appellant submits there is a lack of contemporaneous evidence on file to support the hypothesised diagnosis of right buttock sciatica by Dr Dixon.
The Appeal Panel considers that there is evidence that supported the diagnosis of right buttock sciatica including Dr Rosenberg’s report of 13 September 2022 in which he noted pain down to the right buttock and thigh. It is clear from the MRI scan report dated 16 October 2023 that there has been a deterioration in Ms Mahir’s condition in the lumbar spine.
The appellant submits that the Medical Assessor’s assessment of the lumbar spine is rather contradictory as he reported that her main discomfort was to palpation in the right buttock rather than in her lumbar spine and he diagnosed sciatic nerve damage rather than L5 and/or S1 radiculopathy.
The Appeal Panel considered that the appellant misunderstood the MAC. Although the Medical Assessor expressed the view that there was sciatic nerve involvement, he also found that his findings met the criteria for radiculopathy and the impairment “is the equivalent of DRE III of the lumbar spine being considered as radiculopathy with 10% WPI”. In short, the Medical Assessor found that while some of her symptoms arise from the sciatic nerve, there was evidence of radiculopathy of the right S1 nerve root.
The Medical Assessor’s assessment aligns with the findings in the radiology report of Dr Houang on the 16 October 2023. The radiology notes disc protrusion at L4/5, indenting the theca with significant annular tears and disc protrusion at L5/S1 displacing the R S1 nerve root and indenting the sac, consistent with the Medical Assessor’s findings of radiculopathy.
Ms Mahir submitted that sciatica and radiculopathy represent overlapping conditions, with radiculopathy being the most common underlying cause of sciatica. The Appeal Panel agrees with that submission. When the Medical Assessor used the term "equivalent." meaning "the same as”, it is a medically accurate statement, as the involvement of the L5 and S1 nerve roots in this case aligns with the clinical criteria for radiculopathy, specifically as described in DRE III of the lumbar spine. resulting in a 10% whole person WPI.
Although the Medical Assessor might have expressed his opinion more clearly, the Appeal Panel do not accept that he made a demonstrable error is assessing the lumbar spine as DRE III, nor did he apply incorrect criteria. The Medical Assessor used two methods to assess the lumbar spine condition, one based on a finding of radiculopathy in the lumbar spine and the other based on a sciatic nerve injury. The assessments resulted in the same level of WPI, that is, 11% WPI.
The Appeal Panel reviewed the Guidelines, in particular, Paragraph 4.27, which sets out the criteria that should be found in order to conclude that radiculopathy is present. It is apparent from the findings on physical examination that the Medical Assessor found two key symptoms of radiculopathy as outlined in the Guidelines. The Medical Assessor found that there was muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, that is, L5/S1 and reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution, that is, L5/S1. The Appeal Panel also considered that the findings on the imaging study of 16 October 2023, which showed disc pathology at L4/5 and L5/S1, were consistent with the clinical signs. The findings on examination by the Medical Assessor satisfy the criterion required to conclude that radiculopathy is present.
The Medical Assessor carried out a detailed and thorough examination and the Appeal Panel finds no error in the examination and accepts the findings on examination.

Ground three – incorrect assessment of WPI concerning the left shoulder

The appellant submitted that in regard to the assessment of WPI of Ms Mahir’s left shoulder, the Medical Assessor incorrectly awarded 4% WPI in respect to sensory loss.
The Medical Assessor assessed 4% WPI in respect of the left upper extremity (shoulder) made up of range of motion assessment and impairment of the supraclavicular nerve. The Appeal Panel notes that the referral to the Medical Assessor included assessment of the left upper extremity.
On examination, the Medical Assessor noted:
“Ms Mahir has a full range of cervical movement and a full range of right shoulder movement but does have some residual restriction of left shoulder movement.
Shoulder Range of Range of Movement Percentage Impairment
Movement
Flexion 160° 1%
Extension 50° 0%
Abduction 140° 2%
Adduction 50° 0%
Internal rotation 80° 0%
External rotation 80° 0%
Total 3%
Importantly, Ms Mahir has hypoaesthesia to pinprick over the shoulder cowl, extending from the base of her neck towards the acromion and anteriorly and posteriorly over the top of the shoulder in the distribution of the supraclavicular nerve. This sensory loss is distinct and present with repeated testing.
In addition, percussion of the supraclavicular nerve where it enters the posterior triangle of the neck reproduces her symptoms radiating out towards the lateral shoulder region.”
The Medical Assessor stated on pages 4-5 of the MAC that:
“Importantly, Ms Mahir has hypoaesthesia to pinprick over the shoulder cowl, extending from the base of her neck towards the acromion and anteriorly and posteriorly over the top of the shoulder in the distribution of the supraclavicular nerve. This sensory loss is distinct and present with repeated testing.
In addition, percussion of the supraclavicular nerve when it enters the posterior triangle of the neck reproduces the symptoms radiating out towards the lateral shoulder region”.
Under “Summary of injuries and diagnoses” the Medical Assessor wrote:
“With regard to her left shoulder, in my opinion, her symptoms are due to involvement of the supraclavicular nerve on the left side as evidenced by the very distinct sensory loss in the distribution of this nerve as well as reproduction of her symptoms by percussing the nerve as it enters the posterior triangle of the neck behind the posterior border of sternomastoid (positive Tinel's sign)”
The Medical Assessor performed an examination of the left shoulder and noted some restriction in left shoulder movement. In his reasons for assessment, the Medical Assessor wrote:
“As far as Ms Mahir’s left shoulder is concerned, AMA 5 and the WorkCover Guides did not suggest figures of impairment for the supraclavicular nerve and therefore an analogous or equivalent condition needs to be used, which would be the axillary nerve which gives a maximum of 5% Upper Extremity Impairment 5. I would place Ms Mahir in Grade III with 50% sensory deficit, which gives 2.5% and rounds to 3% Upper Extremity Impairment. In addition, in my opinion, she would be entitled to a further 3% Upper Extremity Impairment for the reduced range of shoulder movement as noted giving a combined total of 6% Upper Extremity Impairment, which equates with 4% WPI”.
The appellant submitted that neither Dr Dixon nor Dr Bosanquet [sic] assesses sensory loss in respect of permanent impairment of the right [sic] shoulder. The Appeal Panel notes that there was no report by Dr Bosenquet in the material filed by the parties. However, the Appeal Panel accepts that neither Dr Dixon nor Dr Gothelf assessed sensory loss in the left shoulder.
Dr Dixon made an assessment of 5% WPI based on restriction in the range of movement in the left shoulder. Dr Dixon reported that Ms Mahir noted some paraesthesia in her arm in the deep deltoid area.
Dr Gothelf reported that his physical examination revealed a normal range of motion in the left shoulder and assessed 0% WPI. In his examination he noted that power, sensation, reflexes, circulation, sweat cover, colour and temperature of both upper limbs were normal and equal. However, Dr Gothelf noted that Ms Mahir reported persistent symptoms in the left shoulder and that the injury to the left shoulder had not resolved.
Dr Ivan Popoff, treating orthopaedic specialist, in a report dated 26 October 2022, noted
“She tells me she’s been on crutches off and on for the last 12 months at least and then has subsequently developed pain in her left shoulder associated with paraesthesia radiating down her entire arm.
The paraesthesia is relieved by elevating the arm above shoulder height but recurs when she puts it back down.”
The Appeal Panel notes that the paraesthesia described by Dr Popoff is in a different area to the area identified by the Medical Assessor.
The appellant submitted that there is a lack of treating medical evidence that elicit findings consistent with involvement of the supraclavicular nerve. The Appeal Panel accepts that no other doctor made findings consistent with involvement of the supraclavicular nerve. However, that does not preclude the Medical Assessor from making such a finding on examination.
There is no dispute that Ms Mahir developed a consequential condition in her left upper extremity. In order to resolve the medical dispute, the Medical Assessor was required to assess the degree of impairment Ms Mahir had suffered to her left upper extremity as the result of her fall on 30 November 2017 and all the injury which it caused to her shoulder, in accordance with the applicable Guidelines, on the day of his examination.
The neurological consequences of the injuries the subject of the dispute are assessable if they result in permanent impairment (Needham v Wollongong City Council [2024] NSWSC 575).
The examination findings show that the Medical Assessor was alert to testing for the neurological consequences of the injury.
The fact that the Medical Assessor came to different conclusions (to those of Dr Dixon and Dr Gothelf) given what he found on his testing, and which resulted in a clinical diagnosis the other doctors had not arrived at, does not establish error.
The Medical Assessor was required to assess Ms Mahir as she presented on the day of the examination and what he observed on that day may be different to the observations of other assessors on different days. Dr Dixon’s examination took place in via video link in December 2022, some 22 months before that by the Medical Assessor. The Appeal Panel considers that examination by video link is not an adequate means of examination for this type of nerve injury. Dr Gothelf’s examination took place in December 2023, about 10 months before the examination by the Medical Assessor.
The Appeal Panel is satisfied that this ground of appeal is not made out.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 October 2024 should be confirmed.

[2025] NSWPICMP 51

29 January 2025