Nicolaou v Scarborough Park Auto Care

DETERMINATION OF APPEAL PANEL
CITATION:	Nicolaou v Scarborough Park Auto Care [2025] NSWPICMP 160
APPELLANT:	Theodoros Nicolaou
RESPONDENT:	Scarborough Park Auto Care
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Sophia Lahz
MEDICAL ASSESSOR:	Michael Davies
DATE OF DECISION:	13 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by making a deduction under section 323(1); whether MA erred by rating the appellant’s impairment as Class 1 rather than Class 2 under Table 13-11 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5); whether MA ought to have had regard to the appellant’s capacity to work when considering the effect the appellant’s injury had on his activities of daily living; Held – MA did not err by not having regard to the appellant’s capacity to work because part 1.2a of the AMA 5 instructs to the contrary; Appeal Panel held the MA did not err by rating the appellant’s impairment as Class 1 under Table 13-11 of the AMA 5 because he found the appellant’s symptoms were mild; Appeal Panel held MA erred by making a deduction under section 323(1) because the appellant did not have a pre-existing condition; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 January 2025 Theodoros Nicolaou, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 July 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 appellant commenced employment in 2016 as a vehicle inspector and motor mechanic with Scarborough Park Auto Care, the respondent. His employment ceased in March 2020 due to issues relating to the COVID-19 pandemic.
On 19 May 2018 while working for the respondent the appellant suffered a blow to the left side to his head. He experienced pain and dizziness and tingling on the left side of his face. He attended St George Private Hospital and subsequently his general practitioner (GP). His symptoms persisted and his GP referred him to neurologist Dr James Kokkinos and also to pain specialist Dr James Yu, both of whom the appellant consulted on many occasions.
On 4 December 2019 the appellant struck the right side of his head whilst working for the respondent causing him pain and tingling on the right side of his face.
The appellant ultimately came under the care of neurologist Dr Paul Darveniza and subsequently neurologist Dr James Colebatch, and neurosurgeon and spinal surgeon
Dr Mark Davies.
On 14 July 2023 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation from it under s 66 of the Workers Compensation Act1987 (the 1987 Act), for permanent impairment that the appellant said resulted from an injury for which the date was specified to be 18 May 2022. The appellant’s solicitors indicated in their correspondence the degree of the appellant’s permanent impairment from his injury was 30% whole person impairment (WPI) and that the appellant relied on a report of
Dr Darveniza dated 23 March 2023 to support his claim. They provided the insurer with a copy of Dr Darveniza’s report, and also a report of a psychiatrist Dr Frank Chow.
In his report of 23 March 2023 Dr Darveniza described the incident in which the appellant struck his forehead on 19 May 2018 and the symptoms the appellant suffered as a consequence of that. Dr Darveniza also noted that “at Christmas 2019, whilst at work, he stood up and hit the right side of the frontal region, followed by the development of same symptoms, but milder”.
Dr Darveniza diagnosed the appellant suffered “from work related, post-traumatic atypical trigeminal neuralgia with intolerable burning dysaesthesia”. Dr Darveniza advised he assessed the appellant had 30% WPI of the trigeminal nerves. He noted he made his assessment by reference to the criteria of Table 13-11 of AMA5 and that he considered the appellant had a Class 3 impairment, for which Table 13-11 allows a 25-35% WPI rating.
The respondent’s solicitors organised for the appellant to be examined on
23 October 2023 by neurologist Dr Ron Granot. In a report of that date Dr Granot noted that:
“The majority of symptoms were onset after the initial injury but worsened approximately 12 months after the second injury. Therefore, from a temporal perspective, the symptoms were seemingly initiated after the 2018 injury but further exacerbated overtime, possibly by the 2019 head injury as well.”
Dr Granot said, “therefore, from a temporal perspective, the symptoms were seemingly initiated after the 2018 injury but further exacerbated over time possibly by the 2019 head injury as well”.
However, for reasons Dr Granot explained in his report, he considered the symptoms the appellant suffered, although in a trigeminal distribution, were atypical and had a “weak mechanistic link to the injury”. Dr Granot provided a diagnosis of “atypical trigeminal neuralgia, presumed idiopathic (vascular conflict)”.
Dr Granot also said that he considered the appellant had not reached maximum medical improvement.
On 21 December 2023 the respondent’s lawyers wrote to the appellant’s lawyers advising them that they have been instructed to reject the appellant’s claim for compensation for permanent impairment and to, “convey a nil offer in respect to his physical injuries, on the basis that he has not yet reached maximum medical improvement sufficient for permanent impairment assessment”. They advised they relied upon the report of Dr Granot dated
23 October 2023 and provided a copy of Dr Granot’s report to the appellant’s solicitors.
Thereupon the appellant initiated proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute dated 8 May 2024 (ARD), by which the appellant sought the Commission determine his claim for compensation. He detailed in the date of his injury in the ARD as “19/05/2018” and he described his injury as being “blow to head during course employment.”
Following the respondent lodging a reply to the ARD with the Commission, a delegate of the President of the Commission referred various medical disputes relating the appellant’s claim: to the Medical Assessor to assess. The documents the Medical Assessor was provided with the referral included the ARD and the numerous documents attached to that, which included the reports of Dr Darveniza dated 23 March 2023 and Dr Granot dated 23 October 2023, and the documents that the respondent had attached to its reply which consisted of brief reports of the appellant’s GP dated 11 July 2022 and 24 March 2024.
The Medical Assessor examined the appellant on 19 June 2024 to conduct his assessment of the referred medical disputes. As said, he issued the MAC on 2 July 2024.
The history the Medical Assessor recorded in the MAC included the circumstances relating to the appellant striking the upper left side of his forehead on 19 May 2018 and striking the right side of his head on 4 December 2019. The Medical Assessor also detailed the symptoms the appellant suffered from these incidents. With respect to the second incident, the Medical Assessor noted that this caused the appellant to suffer tingling and pain in a similar distribution to what he experienced with the left side. The Medical Assessor noted that “the appellant also experienced an increase in severity in his left sided symptoms”. The Medical Assessor noted that despite the appellant’s symptoms, the appellant continued to work until March 2020 and that he ceased his employment due “primarily” to a slow down in the business as a consequence of COVID-19.
The Medical Assessor noted that that the appellant experiences a constant burning pain and tingling bilaterally involving the upper part of the forehead bilaterally with extension down into the left and right cheeks, without pain being more severe on the left than the right. The Medical Assessor also recorded that around April 2023 the appellant experienced a sharp stab of pain involving the left side of his face extending from the site of the impact on
19 May 2018 down to his left cheek region, which was of a short duration of a second or two. The Medical Assessor noted that since then the appellant has experienced episodic pain of similar intensity bilaterally, although more severely on the left. The Medical Assessor noted that the appellant experiences this pain two to three times a month.
The Medical Assessor also recorded that the appellant “is responsible for all of his personal needs, although his wife lays out his clothes”. The Medical Assessor noted that the appellant’s wife has to prompt him to shower because he lacks focus and motivation.
The Medical Assessor recorded the following findings from his examination of the appellant:
“Examination of the cranial nerves revealed no sensory abnormalities on testing superficial and deep sensation within the territories of the trigeminal nerves bilaterally. The corneal reflexes were normal and there was no evidence of abnormality of the motor 5^th bilaterally.
No sensory abnormality was noted in the posterior scalp or paracervical region. Olfaction was tested, it and the remainder of the cranial nerves were all normal.
There was no disorder of contour, posture, tone, power production, coordination or sensation in the upper or lower extremities. The deep tendon reflexes were symmetrical and normally brisk and the plantar responses were flexor.
Spinal movements were all performed normally.
Rombergism was absent.”
The Medical Assessor also observed that he had, several MRIs and CT scans done to which the Medical Assessor said he considered the most significant is an MRI scan done on
10 October 2020. He noted that his was reported by Dr Pascal Bow-Haidar and showed “bilateral neurovascular conflict of the trigeminal nerves at root entry zones where the right superior cerebellar appears to be contact with the right superior cerebellar artery medially at the level of the porus trigeminus”.
The Medical Assessor under the subheading “Summary of Injuries and Diagnosis” said the following:
“The main existing symptoms are described above and involve bilateral burning pain associated with dysesthesia within the territories of the 1^st and 2^nd divisions of the trigeminal nerve bilaterally without evidence of corneal reflex abnormality or objective sensory impairment. The symptoms developed in temporal relationship with two head injuries, the first of which was on 19 May 2018, that injury having been made worse as a result of the second injury. The symptoms are worse on the left side.”
The Medical Assessor noted that there were a number of relevant reports in the material that had been provided to him and he said he would not comment on each. He did however comment on the reports of Dr Darveniza dated 23 March 2023 and 31 August 2023, noting that Dr Darveniza had recorded normal neurological examination and had made a diagnosis of “atypical trigeminal neuralgia provoked by two head injuries” and that Dr Darveniza in his summary had referred to “neurovascular conflict in both trigeminal nerves from blood vessels on both sides of the brain stem”. The Medical Assessor noted that Dr Darveniza said the appellant suffered burning pain involving both sides of his face in addition to shooting pain over his cheeks and the Medical Assessor observed that those symptoms were in accordance with the symptoms the appellant had reported to him. The Medical Assessor also noted that Dr Darveniza in his report of 31 August 2023 made a diagnosis of “post-traumatic causalgia of first division of the left and right trigeminal nerves” which the Medical Assessor said was in accordance with his conclusions. The Medical Assessor said he considered the second division of the right trigeminal nerve was also involved because the appellant described symptoms involving part of his forehead on the right side including the right cheek.
The Medical Assessor referred to reports of Dr Granot and the findings Dr Granot made from his examination of the appellant. The Medical Assessor noted that his opinion coincided with Dr Granot's opinion insofar as Dr Granot did not identify any objective signs of the cranial nerves when he assessed the appellant on 29 July 2022.
The Medical Assessor certified in the MAC that he assessed the appellant’s impairment is permanent and that the degree of his permanent impairment is fully ascertainable.
In the table to the MAC, the Medical Assessor detailed that he assessed the overall degree of the appellant’s permanent impairment relating to the “nervous system (trigeminal nerve)” was 4% WPI for the first division of the trigeminal nerve and 4% WPI for the second division of the trigeminal nerve. The Appeal Panel notes that these ratings combine to 8% WPI, in accordance with the combined values chart of AMA5.
The Medical Assessor also said within part 11 of the MAC “there is a 1/10 deduction” for a proportion for the appellant’s impairment that is due to a previous injury or pre-existing condition or abnormality. When he made that deduction the result was 7% WPI which he certified was what he assessed the degree of the appellant’s permanent impairment was from his injury. In terms of explaining his deduction, the Medial Assessor said the following within part 10a of the MAC:
“The up-to-date history I provide clearly establishes a second injury to have occurred resulting in the production of right-sided symptoms with an enhancement in the pain involving the left side of the face provoked by the injury on 19 May 2018.
I am clearly directed to address the injury that occurred on 19 May 2018 and I follow that directive, but take into account the effect of the second injury on 4 December 2019 on the left-sided symptoms. I therefore make a 1/10^th deduction because of the increase in left sided symptoms resulting from the later right sided injury.
The distribution of the symptoms described by Mr Nicolaou includes the territory of the 1^st division of the 5^th nerve with sparing of the cornea, an enhanced proportion is not therefore indicated for the 1^st division of the 5^th nerve because of sparing of the cornea.
The distribution of symptoms does not include the territory of the greater or the lesser occipital nerve or the pre-auricular nerve.
In making that assessment I have taken account of the following matters:-
The history obtained by me, my findings on physical examination and a consideration of the results of investigations and other documentary evidence sent to me.”

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 appellant to undergo a further medical examination. This is because the Appeal Panel considers the information in the material before it sufficient to determine the appeal.
At its preliminary review the Appeal Panel also considered whether it should receive into evidence a report dated 24 June 2024 from Dr Davies to the appellant’s GP.
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 date of Dr Davies’ report is later than the date on which the Medical Assessor examined the appellant but precedes the date of the MAC by approximately a week. The Appeal Panel considers, given that, that Dr Davies’ report was not evidence that the appellant could reasonably have obtained before the medical assessment and accordingly the report could not reasonably have been obtained by him before the assessment.
It is important to note that even though the evidence may meet the threshold of s 328(3) the Appeal Panel is not required to accept the evidence if it is irrelevant.[1] The appellant submitted that the report relates to whether he had achieved maximum medical improvement. The Medical Assessor certified the appellant had. The appellant does not contend to the contrary in his appeal, nor does the respondent agitate this as an issue in the appeal, notwithstanding it had refused the appellant’s claim on the basis that Dr Granot considered the appellant had not. Consequently, given this is not a live issue before the Appeal Panel, Dr Davies’ opinion is irrelevant on this point. Nevertheless, Dr Davies is a neurosurgeon whom the appellant consults for treatment and his report is addressed to the appellant’s GP and relates to the appellant’s condition. It is a report that, for thoroughness, the Appeal Panel would have sought to be produced pursuant to s 324(1) of the 1998 Act, and given that, the Appeal Panel receives it into evidence.

EVIDENCE
[1]Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA1112 at [102].

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Paraphrasing the appellant’s submissions, to provide a summary of them, they are that the Medical Assessor, by excluding the impairment the appellant has arising from right sided symptoms that were the consequence of the incident on 4 December 2019, misunderstood the medical dispute that has been referred to him to assess. That is, the medical dispute regarding the degree of his permanent impairment from his injury, included any impairment he had consequent upon the second incident that occurred 4 December 2019. The appellant submitted that there was no dispute between the parties that “the injury in the sense of the pathology” was due to the two events that occurred on 19 May 2018 and 4 December 2019 and his claim for compensation, which is based on the medical evidence, was framed accordingly. The appellant noted that the insurer only disputed his claim on the basis that he had not achieved maximum medical improvement.
The appellant submitted that the Medical Assessor erred by making a deduction under
s 323(1) of the 1998 Act.
The appellant submitted that his treating doctors and Dr Granot considered his symptoms prevented him from being able to work. The appellant submitted that evidence demonstrated that due to his trigeminal nerve injury he has been unable to work since March 2020.

The appellant submitted that the Medical Assessor made no reference to relevant evidence including his statement and the clinical records from his treating doctors.
The appellant submitted that the Medical Assessor failed to place sufficient weight on the results of the MRI scan on 13 October 2020 and placed greater weight on the MRI scan done in November 2018. The appellant further submitted that the Medical Assessor failed to consider the symptoms he experiences, comprising chronic low level pain in his left cheek and his right cheek and episodic flare ups, and failed to consider these prevent him from working or walking more than 15m. The appellant contended that this is an interference with his activities of daily living and the Medical Assessor ought to have rated his impairment by reference to criteria for a Class 2 in impairment Table 13-11 of AMA5. The appellant referred to a decision of a different constituted Medical Appeal Panel in the matter of De La Rosa v Dominion Global Pty Ltd ATF Dominion Global Trust,[2] contending that the circumstances of that case are analogous to his case, and in which the Medical Appeal Panel found the worker’s impairment correlated with the criteria of Class 2 of the Table 13-11.
[2] [2024] NSWPICMP206 (Rosa).
Paraphrasing the respondent’s submissions, also to provide a summary on them, they are that the Medical Assessor, by excluding from his assessment the effects of the incident that occurred on 4 December 2019, complied with the referral which was to assess the WPI resulting from the subject injury.
The respondent further submitted that the Medical Assessor made his assessment based on the correct criteria by assessing the appellant’s impairment by reference to Table 13-11 of AMA5. The respondent submitted that the Medical Assessor was required to make his assessment based on how the appellant presented on the day of examination and not how he may have presented to other assessors.
The respondent submitted the Medical Assessor gave weight to the MRI scan of
10 October 2020, in that he specifically said that he had done so.

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.
The medical disputes between the parties that were to be assessed by the Medical Assessor, and the scope of those disputes, are identified by reference to the documents that were exchanged between the parties and the documents they filed with the Commission. Importantly, in this matter, they included the appellant’s solicitors letter of 14 July 2023 to the respondent’s insurer, Dr Darveniza’s report dated 23 March 2023 that was attached to that correspondence, and Dr Granot’s report of 23 October 2023 that was attached to the respondent’s solicitors letter of 21 December 2023.
In substance, Dr Darveniza in his report expressed the view that the appellant suffered a singular impairment from the incident that occurred on 19 May 2018, which was worsened by the incident on 4 December 2019. That is Dr Darveniza diagnosed the appellant as suffering atypical trigeminal neuralgia which was initiated by the incident on 19 May 2018 and worsened by the incident on 4 December 2019, and all of the appellant’s impairment flowed from that condition. That was basis of the appellant’s claim for compensation under s 66 under the 1987 Act.
To respond to the appellant’s claim the respondent’s solicitors organised for the appellant to be examined by Dr Granot who in his report of 23 October 2023 diagnosed the appellant had atypical trigeminal neuralgia. Dr Granot has said that he is “not convinced that the current symptoms do or did relate to the head injury”, and considered that the appellant’s symptoms related to a “pre-existing vascular contact.”
In its letter to the appellant’s solicitors the respondent’s solicitors advised that they were rejecting the appellant’s claim for compensation on the basis that he had not reached maximum medical improvements sufficient for permanent impairment assessment, which was the view of Dr Granot. The respondent did not in its correspondents or in its reply to the ARD, raise an issue that it was not liable to meet the appellant’s claim on the basis that any symptoms or impairment the appellant had resulting from the incident on 4 December 2019 were unrelated to the incident on 19 May 2018.
Given that the appellant had framed his claim on the basis that he had a single condition from which he had an impairment, that condition being initiated by the incident on
19 May 2018 and worsened by the second on 4 December 2019, and that fact that this aspect of his claim was not expressly challenged by the respondent, means, in the Appeal Panel’s view, that the medical dispute between the parties and the scope of it involved the degree of the permanent impairment the appellant had from bilateral trigeminal nerve symptoms.
The Medical Assessor was consequently wrong to exclude any component of the appellant’s impairment that he considered was the consequence of the second incident on
4 December 2019. Further, he was wrong to make a deduction under s 323(1) on account of the 4 December 2019 incident, or any other matter, because prior to the incident on
19 May 2018, the appellant did not have a pre-existing condition or abnormality.
That error on behalf of the Medical Assessor is such that the MAC contains a demonstrable error.
The Appeal Panel does not consider that the MAC contains the other errors that the appellant contends are within the MAC.
The Appeal Panel’s view is that it is apparent from the MAC that the Medical Assessor had regard to all relevant documents including the reports of the appellant’s treating doctors, the reports of Dr Granot and also the clinical data contained in the records of the appellant’s treating doctors that were within the evidence. This is apparent firstly, because the Medical Assessor said this in the MAC and also it is apparent from the content of the MAC that the Medical Assessor was guided by these documents in obtaining a clinical history relating to the appellant’s injury. Simply put it seems to the Appeal Panel that when the MAC is read as a whole that it is obvious the Medical Assessor has considered all the material that was provided to him and has had regard to what of that material he considered was clinically relevant to the assessment of the degree of the appellant’s permanent impairment.
The Appeal Panel also does not accept the appellant’s submission that the Medical Assessor failed to consider the symptoms he suffers. The Medical Assessor detailed in the MAC that the appellant’s symptoms currently consist of constant burning pain and tingling bilaterally involving the upper part of the forehead bilaterally with extension down into the left and right cheeks with that being more severe on the left than the right, and also episodic sharp stabs of pain in a similar distribution lasting for only a second or two. That description of the appellant’s symptoms, which the Medical Assessor detailed in the MAC, coincides with the description that Dr Granot provided, that Dr Darveniza provided, that Dr Needham provided, and that Dr Davies provided in their most recent respective reports that are in evidence.
Further, contrary to the appellant’s submission it is apparent from the MAC that the Medical Assessor had regard to the report of the MRI scan that was done on 10 October 2020. He extracted part of that report within the MAC. He further noted the finding from that within part 10c of the MAC.
The introductory paragraph of Chapter 5 of the Guidelines stipulates that AMA5 Chapter 13 applies to the assessment of permanent impairment of a worker’s nervous system, subject to the modifications set out within Chapter 5 of the Guidelines. This paragraph further stipulates that an assessor must be familiar with Chapters 1 and 2 of AMA5.
Paragraph 5.13 of the Guidelines reads as follows:
“Trigeminal nerve assessment (AMA5, p 331): Sensory impairments of the trigeminal nerve should be assessed with reference to AMA5 Table 13-11 (p 331). The words ‘sensory loss or dysaesthesia’ should be added to the table after the words ‘neuralgic pain’ in each instance. Lesions of the ophthalmic division of the trigeminal nerve with impairment of corneal sensation should be apportioned with extra weighting.
If present, motor loss for the trigeminal nerve should be assessed in terms of its impact on mastication and deglutition (AMA5, p 262).
For bilateral injury to the trigeminal nerves, assess each side separately and combine the assessed WPIs.”
The criteria for a Class 1 impairment specified in Table 13-11, with which the Medical Assessor correlated the appellant’s impairment, is, as modified by paragraph 5.13 of the Guidelines, “mild uncontrolled facial neuralgic pain, sensory loss or dysaesthesia, that may interfere with activities of daily living”. The criteria for a Class 2 impairment, which is what the appellant contends his impairment should be rated, are, again as modified by paragraph 5.13, “moderately severe, uncontrolled facial neuralgic pain, sensory loss or dysaesthesia, that interferes with activities of daily living”.
The MAC must be read as a whole to ascertain the Medical Assessor’s reasons for correlating the appellants with the criteria of Class 1 of Table 13-11 and also for rating the appellant's impairment as 4% WPI within the range provided in for a Class 1 impairment for both the right and left trigeminal nerves.
The Medical Assessor noted that the appellant’s symptoms were constant burning and tingling pain bilaterally extending from the forehead to the left and right cheeks and episodic sharp stabs of pain that lasted for a second or two. The Medical Assessor’s finding from his examination of the appellant revealed no sensory abnormality. It is apparent from the MAC that the Medical Assessor considered that the appellant’s symptoms were mild. In the Appeal Panel’s view there is no error by the Medical Assessor, in exercise of his clinical judgement, in coming to that conclusion. The symptoms that the appellant experiences do not meet the threshold of “moderately severe facial neuralgic pain” so as it to enable the appellant’s impairment to be rated as Class 2. In any event, given that it was open to the Medical Assessor to conclude, based on his description of the appellant’s symptoms in the MAC and his findings from his clinical examination, that the appellant’s symptoms fall into the description of the “mild uncontrolled facial neuralgic pain”, even if the Appeal Panel were to be of the view that the appellant’s symptoms fall into the description of “moderate severe” then that would only be a difference of opinion, between the Appeal Panel and the Medical Assessor, which does not amount to an error.
In any event, the Medical Assessors members of the Appeal Panel concur with the conclusion of the Medical Assessor that the appellant’s symptoms are not moderate and are best described as mild.
Further, s 1.2a of AMA5, which provides guidance to a Medical Assessor on how a Medical Assessor should assess the extent to which neuralgic pain interferes with a worker’s activities of daily living, instructs that a worker’s ability to undertake work is not a relevant factor to take into account.
The Medical Assessor noted that the appellant is able to undertake all his personal needs other than that he may need his wife’s assistance to lay out his clothes and to prompt him to shower. That indicates that the appellant’s symptoms “may interfere with activities of daily living”, which accords with a Class 1 impairment.
Further, the Medical Assessors members of the Appeal Panel do not consider that the appellant’s symptoms of constant burning and tingling from his forehead to cheeks and more severe but fleeting episodic pain, are such that they would prevent him from working. So, even if it were the case that, contrary to s 1.2a of AMA 5 the effect of the appellant’s symptoms on his ability to work were a matter to which regard must be had when considering whether the appellant’s symptoms affect his activities of daily living, the result would still be that they have minimal effect, that is that they “may interfere”. Hence, even if the appellant’s symptoms should be described as moderate (and to emphasise, this is not the Appeal Panel’s finding), they would still not correlate with a class 2 impairment.
Rosa, although involving a worker with a trigeminal neuralgia, was fact specific. The issue raised in the medical assessment that was done in that case related to the Medical Assessor’s assessment that the worker’s permanent impairment was not fully ascertainable. The Appeal Panel in that case held that the Medical Assessor’s assessment of that particular medical dispute involved error. The Appeal Panel in correcting that error had to assess the worker’s permanent impairment and correlated the worker’s impairment with the criteria for Class 2 of Table 13-11, on the basis that the worker’s pain was “moderately severe and uncontrolled” and that the worker’s symptoms interfered with the activities of daily living because the flares of pain preventing him from working. It is not apparent that the Appeal Panel in that case had regard to s 1.2a of AMA5.
In any event, the Appeal Panel in this case considers that the Medical Assessor did not err in his conclusion that the appellant’s symptoms fall within the description of mild uncontrolled facial neuralgic pain. That is, they are not moderately severe, as the Appeal Panel found they were in the case of Rosa.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 July 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W3664/24
Applicant:	Theodoros Nicolaou
Respondent:	Scarborough Park Auto Care

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Ross Mellick 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)

Nervous system

19.5.18

Chapter 5, paragraphs 5.13 & 5.16

Chapter 1,

Chapter 13 Table 13-11

Total % WPI (the Combined Table values of all sub-totals)

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2025] NSWPICMP 160

13 March 2025