Murr v Koudsy Body Works Pty Ltd atf Koudsy Body Works
[2025] NSWPICMP 806
•20 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Murr v Koudsy Body Works Pty Ltd atf Koudsy Body Works [2025] NSWPICMP 806 |
| APPELLANT: | Stephen Mario El Murr |
| RESPONDENT: | Koudsy Body Works Pty Ltd ATF Koudsy Body Works |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 20 October 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); deterioration, incorrect criteria, and demonstrable error relied upon; assessment of the cervical spine and both knees; deterioration requires evidence of increase in degree of permanent impairment; Riverina Wines v Workers Compensation Commission of New South Wales relied upon; worker assessed with full range of motion in both knees; impairment of cervical spine consistent with all other assessors with no evidence of radiculopathy; grounds of appeal not made out; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 June 2025, Mr El Murr, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by David Gorman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 May 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr El Murr was employed by the respondent as a panel beater, which involved heavy physical work. On 28 June 2021, Mr El Murr was operating a heavy sliding hammer, when he felt severe pain in his lower back and lower legs. He has been unable to return to work since that time.
He made a claim for lump sum compensation that was disputed on the basis of the degree of permanent impairment. The matter was referred to a Medical Assessor who assessed 7% whole person impairment in the lumbar spine, and no impairment in both lower extremities.
The appellant appeals against the assessment alleging both that his condition has deteriorated and there are errors in the assessment of the lumbar spine.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the MAC contains sufficient information to allow the Appeal Panel to determine the appeal, and as will be seen, the Appeal Panel were not satisfied that the MAC contained any errors. Further, the additional relevant information would not change the outcome of the assessment and is not demonstrative of any deterioration in the appellant’s condition.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) report of an MRI of the left knee dated 27 May 2025.
The appellant submits that the evidence demonstrates deterioration in Mr El Murr’s left knee, and that the report confirms a medical diagnosis for the injured left knee, which is ratable for assessment. The appellant submits that the material could not reasonably have been obtained by the appellant before the medical assessment (although does not explain why that is the case).
In reply, the respondent submits that whilst the evidence satisfies the criteria in s 327(3)(b), being evidence that was not available at the time of the assessment (without addressing whether the material could have been reasonably obtained before the assessment), the report does not demonstrate a deterioration of the appellant’s condition.
Although the submissions made by the appellant are not particularly persuasive, given the concession made by the respondent the Appeal Panel determined that the material would be admitted into the proceedings, but consideration given as to the weight that would be given to that material.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant refers to various aspects of the Guidelines, submitting that the Medical Assessor assessed on the basis of incorrect criteria when considering the left and right knees, as well as the lumbar spine. The appellant submits that when he determined that Mr El Murr did not suffer from radiculopathy, he failed to refer to the Guidelines or medical evidence relied on by the appellant. The appellant submits that there are inconsistencies between observations of the Medical Assessor and the assessment of permanent impairment. The Medical Assessor questions certain findings but did not seek any clarification. The appellant submits that if he had considered the medical evidence, and assessment of at least 11% would have been made.
The appellant also submits that the additional relevant information demonstrates deterioration in the left knee.
In reply, the respondent opposes the appeal, submitting that it is now explained how the findings made by the Medical Assessor are inconsistent with the Guidelines. The appellant’s submissions are mere disagreement with the opinion of the Medical Assessor. The respondent also submits that the most recent MRI does not demonstrate any deterioration as contemplated in Riverina Wines v Workers Compensation Commission of New South Wales [2007] NSWCA 149 (Riverina Wines).
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The appeal raises all four grounds for appeal and challenges all body parts assessed by the Medical Assessor (although in oblique ways) but the consideration of the appeal is limited to the issues as set out in the appellant’s submissions (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made.”
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The Appeal Panel will deal with the appellant’s grounds as they appear in the 1998 Act (not in the order of submissions given). As discussed above, the additional relevant information (fresh evidence) relied upon by the appellant has been admitted pursuant to s 328(3) of the 1998 Act.
Deterioration
The appellant relies on the MRI report of 28 May 2025 to support their submission that there has been a deterioration of the appellant’s left knee. Deterioration is provided for in s 327(3)(a), which provides the ground of appeal of “deterioration of the worker’s condition that results in an increase in the degree of permanent impairment”. The respondent refers to Riverina Wines in their notice of opposition, which is the leading authority on what constitutes a “deterioration” under this ground of appeal. Campbell JA described the ground as:
“’Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.”
Handley JA agreed with that construction, providing a temporal element:
“As Campbell JA says (para [89]) deterioration of a person’s condition ‘is an inherently relational concept’. It requires a comparison between the worker’s condition at an earlier date and his or her condition at a later date. In this context, as Campbell JA holds, the earlier date is the date of the certificate of Dr Cummine. The later date is when the Registrar or his of her delegate came to consider (s327(4)) whether this ground of appeal ‘exists’.”
Based on the above it is fairly straightforward to determine this ground. The fresh evidence relied upon by the appellant does not contain an assessment of impairment, which based upon Riverina Wines, would appear to be a necessary component of reliance upon this ground. It is difficult to demonstrate an “increase in the degree of permanent impairment” without an assessment of impairment. In general terms, there may be circumstances where evidence other than an assessment of impairment would of necessity demonstrate an increase of impairment (such as an amputation of a limb, to use an extreme example).
In circumstances where Mr El Murr’s claim in the left knee was based on restricted range of motion, and was disputed and then assessed (as nil) by the Medical Assessor on that basis, it would seem a necessary component of any such appeal to include an assessment of range of motion, of a greater restriction than exists in the MAC. That does not exist here.
Regardless of the absence of evidence of a greater degree of impairment, it is the Appeal Panel’s view that the evidence in the MRI does not demonstrate any deterioration as contemplated in the legislation. The MRI report demonstrates a meniscal tear. Unless that proceeds to a meniscectomy, a tear itself does not attract any impairment (see Table 17-33 of AMA 5).
The references in the report to “deteriorating pain” and “degeneration in the ACL”, which are highlighted by the appellant, may use the same or similar words as deterioration, but do not encapsulate the same concept as outlined in s 327(3)(a) of the 1998 Act. The Appeal Panel are not satisfied that the appellant’s condition has deteriorated resulting in a greater degree of permanent impairment, and accordingly this ground of appeal is not made out.
The “error” grounds
The appellant’s submissions are, as indicated above, oblique and imprecise. The appellant appears to challenge the Medical Assessor’s assessment in both lower extremities and the lumbar spine. The appeal is structured with reference to incorrect criteria and demonstrable error, but as the respondent submits, the appellant has not explained how the findings made by the Medical Assessor are inconsistent with the Guidelines referenced.
Incorrect criteria
In respect of this ground, the appellant refers to cl 4.4 of the Guidelines (concerning the assessment of the spine), cl 1.36 of the Guidelines (concerning consistency), and submits that the Medical Assessor applied incorrect criteria when “medically examining, diagnosing and assessing the appellant’s injuries to his left and right lower extremities (left and right knees)”.
Firstly, it is not clear how cl 4.4 has relevance to the Medical Assessor’s assessment of the knees. Secondly, the assessment of impairment (as conducted by all experts who have assessed Mr El Murr, including Dr Dias and Dr Riley) has always been based on range of motion. The Medical Assessor, on page 3 of the MAC, sets out his findings on physical examination, including, in particular, the findings of range of motion:
“The ranges of motion of the hips, knees and ankles/hindfeet were all normal and equal on the right and left.
In the knee in particular, there was no swelling. The ranges of motion was from 0-130
degrees. There was no ligamentous instability.”The Medical Assessor also recorded calf and thigh circumferences, which showed an unusual discrepancy (greater calf bulk on the right, greater thigh bulk on the left). Neurological examination of the limbs was normal.
The appellant’s submissions concerning the examination of the lower limbs are so obtuse as to not identify an actual ground of appeal or issue with the assessment made. The Medical Assessor recorded a full (normal) range of motion in both knees. To be entitled to any impairment due to loss of range of motion, Mr El Murr would need to be assessed with less than 110° for flexion and at least 5° for flexion contracture. His range of motion, measured on the day of assessment (consistent with cl 1.6 of the Guidelines) was in excess of those figures. Accordingly, Mr El Murr was assessed with nil impairment for both knees.
The methodology adopted by the Medical Assessor, his application of the Guidelines, and the reasons he provided were correct and in accordance with his role as a Medical Assessor. The appellant has not demonstrated any application of incorrect criteria.
The appellant goes on to identify “another example” of a failure to apply the Guidelines correctly in the assessment of the lumbar spine. The appellant refers to the assessment of radiculopathy under cl 4.27 of the Guidelines, emphasising the finding of the Medical Assessor of “lumbar musculoligamentous strain – no radiculopathy”. The appellant submits that the Medical Assessor failed to refer to the Guidelines or the medical evidence available.
It is first worthwhile to note that in the medical evidence before the Appeal Panel, which is the same material placed before the Medical Assessor, there has been no assessment of impairment that includes radiculopathy. Both the appellant and respondent’s independent medical experts assessed Mr El Murr as DRE Category II, that is in the absence of radiculopathy.
The Guidelines at cl 4.27 set out the criteria for radiculopathy, which requires the presence of two or more criteria, including one of which must be major. The Medical Assessor’s findings on physical examination of the lumbar spine are set out on page 3 of the MAC. There are no major criteria identified in the assessment: “in the lower limbs, power, sensation and reflexes were normal”. That finding, on its own, removes any possibility that an assessment of radiculopathy could be made. Accordingly, the Medical Assessor’s conclusion of a musculoligamentous strain (which is noted is a diagnosis) without radiculopathy is entirely consistent with the physical findings made and in accordance with the Guidelines. These submissions do not demonstrate the application of incorrect criteria.
Demonstrable error
The appellant submits that there are inconsistencies between the observations of the Medical Assessor and his assessment of permanent impairment. The appellant refers to 15.1a of AMA 5 which suggests “it is not appropriate to question the individual’s integrity” and that an assessor should “report and comment on the inconsistencies” present on examination. The appellant submits that the assessment of 7% whole person impairment does not align with observations and reference made in the MAC (with reference to certain findings about pain, feelings of “fluid” in the knee, pain behaviour during examination, and guarding in the spine, amongst others).
The submission is again unclear and uncertain as to how the findings referred to are inconsistent with the impairment assessed. The Medical Assessor has assessed the lumbar spine in accordance with the Guidelines (at DRE category II, consistent with other assessments). He assessed the left and right knees based on range of motion (consistent with other methods of assessment, although finding no restriction compared with Dr Dias).
The appellant goes on to refer to the findings on measurement of circumference in the legs and Mr El Murr’s unusual gait. He provides the following comment on the consistency of presentation:
“He had marked pain behaviours and some clinical findings were not consistent with any known pathology his gait for example was very unusual.”
The Medical Assessor explains his reasons for assessment:
“There is no assessable impairment in either the left or right lower extremities. He has an abnormal gait and symptoms in his knees but no abnormal findings on specific
examination of the lower limb neurologically or orthopedically.”Importantly, with reference to the observations made about pain behaviour and gait, the Medical Assessor has not modified the impairment rating he observed (as is required, in some circumstances, in accordance with cl 1.36 of the Guidelines). He proceeded to assess the appellant as he found him on the day of examination, in accordance with the Guidelines. The observations made in no way affected or compromised that assessment. Certainly not to the extent that a “higher assessment of whole person impairment of at least 11%” should have been made. This ground of appeal has not been made out.
Summary
For the reasons given above, the Appeal Panel has determined that the MAC issued on 14 May 2025 should be confirmed.
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