Qantas Airways Ltd v Gili

DETERMINATION OF APPEAL PANEL
CITATION:	Qantas Airways Ltd v Gili [2025] NSWPICMP 492
APPELLANT:	Qantas Airways Limited
RESPONDENT:	Marcelle Gili
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Andrew Porteous
DATE OF DECISION:	9 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant submits that the Medical Assessor (MA) erred in in his assessment of the right knee and his reference to “extension” of the knee rather than “flexion” in his examination; failing of MA to make a deduction pursuant to section 323 in his assessments of the lumbar spine and knee given the separate injury dates; Held – re-examination required; Appeal Panel found error regarding right knee but confirmed assessment of the lumbar spine; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 18 February 2025 Qantas Airways Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr James Bodel, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
21 January 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 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).

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 the worker should undergo a further medical examination because of the issues raised by the appellant, in particular, the issue surrounding flexion and extension of the right knee.

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.

Further medical examination

Medical Assessor Roger Pillemer of the Appeal Panel conducted an examination of the worker on 3 July 2025 and reported to the Appeal Panel.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in a number of respects as follows:
(a)    firstly, in his assessment of the right knee and his reference to “extension” of the knee rather than “flexion” in his examination;
(b)    secondly, made a demonstrable error in assessing impairment without regard to the medical dispute before him, and then failing to explain how the assessed impairment was as a result of the injury;
(c)    thirdly, in failing to comment on how a flexion contracture might now be apparent some five years after the most recent injury when it was not previously observed by experts assessing range of motion of the right knee, and
(d)    fourthly, by failing to make a deduction pursuant to s 323 of the 1998 Act after identifying that the respondent’s bilateral knee and lumbar spine injuries were of the nature of the aggravation of the disease process. The Medical Assessor did not identify any acute pathology. The medical dispute before the Medical Assessor was whether the respondent’s impairment of the right knee and lumbar spine was solely due to the subject injury, or whether there was no contribution to the impairment of the right knee and lumbar back as a result of the injury as it was wholly due to degenerative disease.
In reply, the respondent submits that no errors were made.

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.
The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) as follows:
(a) left lower extremity (left knee) resulting from an injury on 14 April 2014, and
(b) right lower extremity (right knee) and lumbar spine resulting from injuries on
15 March 2017 and 2 December 2019.
The Medical Assessor obtained the following history:
“Ms Gili first suffered an injury during the course of her work on 14 April 2014. I note that there is some discrepancy about the date of injury. The referral letter indicates 14 April 2014, but the Application to Resolve a Dispute indicates that it may have been 22 April 2014.
The handwritten Claim Form records the date as 22 April 2024 at 4.00pm, while running to work approaching the terminal while on the phone, twisted knee and missed step in carpark.
The referral lists the date of injury as 14 April 2014 and I will respect that as being the date of injury in this circumstance.
The incident had occurred in the manner described. By the end of the day, the leg was beginning to become sore and the knee was swollen.
She attended her GP, Dr Girgis, and was treated conservatively. She was referred to Dr Stephen Rimmer, an Orthopaedic Surgeon, who diagnosed a torn meniscus in the region of the knee. She had an arthroscopy done by Dr Rimmer on 28 August 2014 and there was evidence of a torn meniscus, which was trimmed arthroscopically. The torn meniscus was identified on an MRI scan.
She was cleared to return to work on light duties in October 2014 and slowly upgraded her activities, returning to normal work by early 2015.
The second episode of injury was on 15 March 2017. This is an injury to the right knee. I am instructed in the letter of referral from the PIC to also include the incident on 2 December 2019 as a consequential injury to the lower part of the back that is causally related to the injury on 15 March 2017.
This episode on 15 March 2017 occurred when Ms Gili observed that a passenger had disembarked the plane but had left a laptop at their seat. She quickly picked up the computer bag and rushed from the aircraft into the terminal to try and find him and in the process stumbled and fell, landing hard on her right knee.
In her Statement, she goes on to indicate that she needed help to get up and could not walk. She was put in a wheelchair and taken to the crew room.
The next day she reports severe pain and swelling. Qantas Medical Services contacted her and she was instructed to go and see her doctor, Dr Girgis.
The local doctor recommended a MRI scan but apparently that couldn’t be organised until she was assessed by a Qantas approved doctor.
She was away from work for a week. She then tried to return to work but she was still limping. During that period of time, she had also developed consequential pain in her lower back because of the abnormal gait pattern. Moving ahead however, the cause of the back pain was the aggravation, acceleration, exacerbation and deterioration to some degenerative change later found to be present in that region, and that is quite logical.
She returned to Dr Rimmer. MRI scans were done confirming the pathology. A right knee arthroscopy was then done on 7 September 2017 at St George Private Hospital.
He assessed her on 18 July 2017 for the injury that occurred on 17 March 2017. He confirmed the mechanism of injury, injuring the right knee. His plan of management was to recommend the arthroscopy because at that time she had had extensive conservative management for a period of about four months without any improvement in clinical circumstance. He discussed the proposed arthroscopy and he wrote to the insurer to seek approval for this to be done.
I understand that the surgery identified a meniscal tear and a PCL rupture or strain. Postoperatively, there was physiotherapy which was protracted and the recovery was slow. Throughout this period, she continued to limp and continued to aggravate her back.
Later in May 2020, some three years after this event, she was reviewed by Dr Anthony Leong, another Orthopaedic Surgeon, who identified that her symptoms are secondary to her post-traumatic arthritis of the knees and the lumbar spine. This is best treated nonoperatively, including activity modification, low impact exercise programs, and natural supplements. There is no role for surgery at this point. In the very long term, she may require a joint replacement, although I suspect that this is many years away.
Over time, her left knee also slowly deteriorated again because of the abnormal gait pattern and the strain on the right knee and lower back. Prolonged standing aggravated both knees and the back.
On 2 December 2019, she further aggravated the right knee when she stumbled and tripped whilst on an aircraft. She states in her Statement that ,’I was on a night flight from Perth, and the cabin was completely dark. I tripped on a headset cord in the aisle. I was not supposed to be performing long flights on the advice of Dr Girgis. She states that at that time, she was supposed to be doing shorter flights only.
She states that Qantas had rostered her on for that shift that day. She reports that industrial issues then flowed from that and she perceived that she was ‘threatened with dismissal.’ She reports ongoing lumbar pain and bilateral knee pain, and the areas of discomfort were not getting any better.
After the episode in December 2019, she was unable to return to sport or work.
On 18 April 2020, she received a letter from Qantas and was stood down due to the COVID 19 pandemic. She states that she was on 17 January 2021 Concurrently, she did have a certificate indicating no capacity for work because of these injuries and was in receipt of weekly benefits.
She states that she wanted to continue. When the airline got going again in 2020, she did apply but was not accepted.
She has continued to have some physiotherapy and she has subsequently sought further assessment and treatment from Dr Makdessi, another Orthopaedic Surgeon. I understand that the right knee has deteriorated to the point that she is considering a knee replacement on the right side.”
The Medical Assessor then set out details of Ms Gili’s present treatment, symptoms and the impact of her injuries on her social activities and activities of daily living (ADL’s).
Findings on examination were reported as follows:
“Ms Gili is of 68 years of age.
She is comfortable when sitting on a chair. She rises slowly and walks with a broad-based and somewhat unsteady gait pattern. When standing, she cannot fully extend either knee. There is no measurable leg length inequality.
She complains of tenderness on palpation of the lumbosacral junction, particularly over the top of the right buttock, and there is guarding in that area. She reaches forward in flexion with her hands to the knees. There is backache at this point and also on extension, with a restricted range of lateral bending to the left.
Straight leg raising is 70° on each side and there is no evidence of nerve root irritability. There are no signs of reflex abnormality or sensory impairment in a dermatomal distribution. The reflexes are present and equal. There is no clinical sign of radiculopathy in either leg.
There is a good range of hip movement, but there is a restricted range of knee movement in both knees and there is painful crepitus on knee flexion and extension. There is no patellar maltracking.
The range of movement in each knees is as follows:
Right knee: Flexion -5° Extension 120°
Left knee: -5° 120°
There is a small effusion in the right knee but not the left. There is no demonstrable ligamentous laxity that I can detect here today. I am aware that there has been mention of a PCL injury in the left knee but I am unable to confirm that on clinical testing here today.”
He added:
“No x-rays or other tests are available for review, but I have seen the reports of these investigations in the documentation provided.”
He then summarised the injuries and diagnoses as follows:
“The claimant has suffered an injury to her left knee, initially on 14 April 2014, and her right knee on 15 March 2017. She re-injured the right knee and also her back as a consequence of that injury on 15 March 2017, and that aggravation event was on 2 December 2019.”
The Medical Assessor made the following assessments:
“[In] my opinion, the claimant has a 4% Whole Person Impairment for the injury on 14 April 2014 for the injury to the left knee.
There is an 11% Whole Person Impairment for the second injury of 15 March 2017 and 2 December 2019 involving the right lower extremity (right knee) and the lumbar spine, as directed in the referral for the assessment of the degree of Whole Person Impairment.
There is no indication clinically of any pre-existing abnormality or condition, and no deduction for pre-existing impairment for either date of injury.”
He explained his calculations as follows:
“The instruction in the Certificate of Determination and the referral for the assessment of the level of Whole Person Impairment indicates two separate dates of injury.
The 4% Whole Person Impairment for the right lower extremity is because of the restricted range of knee movement identified in the left knee and that attracts a 4% Whole Person Impairment in accordance with Table 17-10 on page 537. This is for the injury on 14 April 2014.
For the second date of injury (15 March 2017 and 2 December 2019), for the right lower extremity (right knee) and the lumbar spine, there is a 7% Whole Person Impairment for the lumbar spine in accordance with Table 15-3 on page 384 of AMA5 with a base rating of 5% Whole Person Impairment because of the asymmetry of movement and guarding, but no clinical sign of radiculopathy, and a 2% loading for interference in activities of daily living because of interference with sport and leisure activities, and household maintenance and cleaning activities using Item 4.34 and Item 4.35 on page 28 of the Guidelines.
For the right lower extremity, there was also the restricted range of knee movement. This attracts a 4% Whole Person Impairment as indicated above using Table 17-10 on page 537.
There is some retropatellar crepitus in both knees. There is no patellar maltracking. There is no separate rating for the patellar crepitus in this circumstance and if there were, it cannot be combined with the restricted range of movement, which is the highest rating assessment and that is the one that applies.
There is, therefore, 7% for the lumbar spine and 4% for the right lower extremity, which becomes an 11% Whole Person Impairment overall using the Combined Value Charts on page 604 of AMA5.”
He then turned to consider the other medical opinions and evidence before him. He summarised this in considerable detail and we do not intend to repeat his comments here, but will refer to them where appropriate in our determination.

Discussion

To begin with, the appellant concedes that:
“The MA probably did intend to refer to flexion contracture noting that he has recorded that, on examination, the respondent ‘cannot fully extend either knee’ (although the appellant again notes that the MA referred to ‘extension’ as being to 120o).”
It was clear to us that the Medical Assessor’s findings and reasons in respect of this issue were inconsistent to say the least, such that it was not clear whether the errors identified by the appellant were merely clerical errors or examination errors.
Medical Assessor Pillemer of the Panel re-examined Ms Gili on 3 July 2025 and reported to us as follows:
“1.The workers medical history, where it differs from previous records
I note that Ms Gili was examined by Dr J Bodel (orthopaedic surgeon) on 1 November 2024 and a MAC was carried out suggesting 4% WPI for the left lower extremity (left knee) and 11% WPI for the right lower extremity and lumbar spine.
I read Ms Gili the history taken by Dr Bodel some 8 months ago, and she felt this was accurate, and there was nothing that she needed to add.
2.Additional history since the original Medical Assessment Certificate was performed
Ms Gili feels that both of her knees are still painful and are in fact getting worse with time. She can be reasonably comfortable when she is simply at rest but then symptoms can go as high as 7-8/10. Her knee symptoms are aggravated by walking and particularly with negotiating stairs, which she attempts to avoid. She does get a lot of relief by simply resting and taking Panadol and Paracetamol. She also uses heat and cold pack which tend to help.
She is now wearing a brace on her right knee and she wears this whenever she goes out walking.
She is no longer having physiotherapy as this was stopped by the insurance company and she had to pay for itself her, but her private fund has now run out.
As far as her back is concerned, Ms Gili indicates discomfort in the lower lumbar region which is fairly constantly present, but she does say that when she is simply lying down and resting she can be reasonably comfortable. Symptoms can still go as high as 7-8/10. They are aggravated by walking and doing any cleaning or shopping, and she does get some relief as mentioned by resting and lying down.
Ms Gili says yesterday was a very bad day for her back and she had to take a lot of Panadol.
Ms Gili has also become very depressed and became very tearful during the consultation.
With regard to her limitations, she feels that her back is as equally restricting as her knees, and even if she did not have problems with her knees, and only had problems with her back, her housework would take her twice as long.
3.Findings on clinical examination
Ms Gili was an adult female who undresses and dresses without any particular problem, and was able to walk on heels and toes. She showed marked restriction of back movement, only reaching as far as her knees, and other movements were all restricted.
Straight leg raising is uncomfortable at 60° bilaterally, reflexes were present and equal, and sensation was intact. There was generalised motor weakness against resistance. There was no wasting.
Ms Gili has a good range of hip movements.
As far as the knees were concerned, Ms Gili has full extension of both knees but was reluctant to flex beyond 60° today because of discomfort in her knees. This significant restriction of movement was not confirmed on indirect examination.
4.Results of any additional investigations since the original Medical Assessment Certificate
Ms Gili has not had any further investigations carried out.”

Medical Assessor Pillemer also made the following observations:
“Ms Gili’s presentation today showed gross exaggeration of her physical signs. For example, she would only allow me to flex her knees to about 60° because of pain in the knees, and yet when she sat with her legs over the end of the examining couch with her knees flexed to 90°, I could easily flex and extend both knees without any discomfort.
Similarly while putting on her trousers, she was able to flex both knees to over 100° in order to do this, without obvious discomfort.
When examining her left knee with attention removed from her right knee, full extension of her right knee was noted to be present.
In my opinion then, Ms Gili would not be entitled to the additional 4% suggested by the MA with regard to the loss of extension of her right knee.”
The Panel was then asked to consider any error by the Medical Assessor in awarding 2% for ADLs because the appellant submitted that her restrictions were mainly because of her knees.
As Medical Assessor Pillemer noted:
“Her back is causing her significant problems and on direct questioning, even if she had no problems with her knees, her housework would still take twice as long because of her back pain, and she is still very restricted with housework activities. In my opinion then she is entitled to an additional 2% for ADLs.”
This would then give a total of 7% WPI in relation to the second accidents on 15 March 2017 and 2 December 2019.
The Appeal Panel agrees with the detailed examination report and the findings and assessments of Medical Assessor Pillemer.
His examination revealed gross inconsistencies in Ms Gili’s presentation.
Clause 1.6 of the Guidelines notes that the task of a Medical Assessor is to assess a claimant as they present on the day of the assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 January 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W23394/24
Applicant:	Marcelle Gili
Respondent:	Qantas Airways Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor James Bodel and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

Body part	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality	Sub-total/s % WPI (after any deductions in column 6)
Left lower extremity (left knee)	14/04/2014	Chapter 3 Pages 13-23	Chapter 17 Pages 523 to 564	4%	nil	4%
Total % WPI (the Combined Table values of all sub-totals)					4%
Right lower extremity	15/03/2017 and 2/12/2019	Chapter 3 Pages 13-23	Chapter 17 Pages 523 to 564	0%	Not applicable	0%
Lumbar spine	15/03/2017 and 2/12/2019	Chapter 4 Page 24-29	Chapter 15 Page 384 Table 15-3	7%	nil	7%
Total % WPI (the Combined Table values of all sub-totals)					7%

[2025] NSWPICMP 492

9 July 2025