Rayner v Shellharbour City Council

DETERMINATION OF APPEAL PANEL
CITATION:	Rayner v Shellharbour City Council [2025] NSWPICMP 304
APPELLANT:	James Rayner
RESPONDENT:	Shellharbour City Council
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Tommasino Mastroianni
DATE OF DECISION:	2 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether the examination the Medical Assessor (MA) conducted was sufficient to establish if the appellant had radiculopathy; whether MA provided adequate reasons for his rating of the appellant’s whole person impairment (WPI) due to the effect of the appellant’s injury on his activities of daily living; Held – MA’s findings from examination were not sufficient to determine whether appellant met all of the criteria for radiculopathy which is an error; MA did not provide sufficient reasons for his assessment of WPI relating to the effect the appellant’s injury had on his activities of daily living; appellant re-examined; MAC revoked and new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 November 2024 James Rayner, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
5 November 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

Shellharbour City Council, the respondent, employed the appellant as a labourer, commencing in June 2018. On 22 April 2021 the appellant was lifting buckets that contained up to 25kg of road base. He suffered an injury to his lumbar spine as a consequence of that activity. Neurosurgeon spinal surgeon Associate Professor Matthais Jaeger operated on the appellant on 4 March 2022 performing a L4/5 lateral recess decompression.
The appellant did exercise physiology as part of his rehabilitation from that surgery. In November 2022, whilst he was performing a squat as part of his exercise physiology, he suffered a tear of his medial meniscus of his right knee. On 5 March 2023 orthopaedic surgeon Dr Gregory Stackpool undertook an arthroscopy of the appellant’s right knee at which time he performed a partial medial and lateral meniscectomy and chondroplasty.
The appellant’s solicitors organised for orthopaedic surgeon and Associate Professor Brett Courtenay to examine the appellant on 2 February 2024. In a report dated 7 February 2024 Associate Professor Courtenay provided the following diagnosis of the appellant’s injury:
“L5/S1 disc rupture on the background of significant degree of facet arthritis at that
level treated by a single level discectomy.
A direct consequence of rehabilitation is a medial meniscal tear of the right knee treated by arthroscopic assessment.”
Associate Professor Courtenay also advised that he assessed the degree of the appellant’s permanent impairment from his injury was 16% whole person impairment (WPI), being a combination of 14% WPI relating to the appellant’s lumbar spine, 1% WPI relating to the appellant’s right lower extremity, and 1% WPI relating to the appellant’s scarring from surgery.
On 26 February 2024 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation from it for 16% WPI from his injury. It provided the insurer a copy of Associate Professor Courtenay’s report with its correspondence and also a permanent impairment claim form that the appellant had signed.
The insurer then organised for orthopaedic surgeon Dr Stephen Rimmer to examine the appellant on 20 May 2024. In a report dated 1 July 2024 Dr Rimmer advised that he assessed the degree of the appellant’s permanent impairment from his injury is 11% WPI being a combination of 10% WPI relating to the appellant’s lumbar spine and 1% WPI relating to the right knee.
On 19 July 2024 the respondent’s solicitors wrote to the appellant’s solicitors advising it that their client had instructed them to reject the appellant’s claim for compensation for 16% WPI and instead to make a counter offer to pay the appellant compensation under s 66 of the Workers Compensation Act 1987 for 11% WPI resulting from his injury.
Thereafter the appellant initiated proceedings in the Personal Injury Commission (Commission) by filing with it an Application to Resolve a Dispute dated 1 August 2024. Subsequent to the respondent filing a reply to that application, a delegate of the President of the Commission issued a referral to the Medical Assessor to assess various medical disputes relating to the appellant’s claim.
The Medical Assessor examined the appellant on 31 October 2024 to conduct the assessment. As said, he issued the MAC on 5 November 2024. In that he certified he assessed the degree of the appellant’s permanent impairment from his injury was 12% WPI, being a combination of 10% WPI relating to the appellant’s lumbar spine, 1% WPI relating to the appellant’s left lower extremity and 1% WPI relating to the appellant’s scarring from his surgery. The Medical Assessor’s assessment of the degree of the appellant’s permanent impairment of his lumbar spine was the net result of his assessing the overall degree of the appellant’s permanent impairment of his lumbar spine as 11% WPI less a deduction of one-tenth he made under s 323(1) of the 1998 Act for a proportion of the appellant’s permanent impairment that he assessed related to a pre-existing condition of facet joint arthritis and degeneration in the appellant’s lumbar spine.
The appellant takes no issue in his appeal against the medical assessment with the deduction the Medical Assessor made under s 323(1), or with the Medical Assessor’s assessment of the degree of permanent impairment he has relating to his right lower extremity or from scarring. In other words, the issue the appellant raises in his appeal against the medical assessment relates to the Medical Assessor’s assessment of the overall degree of his permanent impairment from his injury relating to his lumbar spine.
Relevant to the Medical Assessor’s assessment of that matter, the Medical Assessor recorded the making the following findings from his examination of the appellant’s lumbar spine:
“Back movement was very restricted forward flexion finger can only touch the knee joint, nearly no extension and sideward bending. Obviously, a lot of that was due to the significant truncal obesity. Straight leg raising in a sitting position is about 60⁰, lying down is 40⁰ symmetrical due to the tight hamstring but there is no sciatica, no reflex or motor power difference although the patient complain (sic) of numbness on the lateral side of the foot which will be S1 dermatome.”
Within the MAC the Medical Assessor also noted the spinal surgery the appellant had on
4 March 2022. He recorded the appellant still suffers back pain and complains of a burning sensation on the lateral side of his left thigh and a loss of sensation in his left lateral calf. He recorded the appellant also experiences numbness on the lateral side of his right foot on both dorsal and ventral side, but with no pain shooting down his leg.
The Medical Assessor briefly noted the results of reports on MRI scans of the appellant’s lumbar sacral spine that were done on 26 May 2022, 25 February 2022 and 28 June 2022.
The Medical Assessor within that part of the standard form of the MAC that requires a Medical Assessor to provide a summary of injuries and diagnoses said the following:
“James Rayner had a lifting injury and end up with low back pain and left sciatica and failed to improve with conservative treatments and ended up with operation. Operation gave partial relief but he is still left with residual problem mainly in the back with associated numbness in the left foot and also in the rehabilitations strained the right knee and end up with medial meniscal tear managed by arthroscopy with good outcome.”
The Medical Assessor within part 10b of the MAC provided the following explanation for why he assessed the overall degree of the appellant’s permanent impairment is 11% WPI:
“To assess the whole person impairment for the low back using AMA Guide 5th Edition
Table 15-3 this is a case of DRE lumbar category 3 with motor power and reflex jerks
remain perfect and symmetrical to the other side although he complains of numbness.
There is no radiological investigations pre-operative or post operatively, including
neurophysiological study, conclude any radiculopathy so I do not think he has radiculopathy despite residual numbness.”
The Medical Assessor recorded that the appellant can walk around 500m. He also recorded that the appellant has trouble doing anything “too physical” and that he is unable to do anything requiring the low level of his spine because his spine is stiff.
The Medical Assessor said that he agrees “with Dr Rimmer clinically” because “we cannot find any features of radiculopathy”. He said that “this is confirmed by the radiological investigations which is a point we both cannot agree with Dr Courtenay”.

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. This is because the Appeal Panel found, for reasons explained below, that the MAC contains a demonstrable error, which the Appeal Panel would need to correct. To correct that error the Appeal Panel considered it would need further clinical data which it could only obtain from further examination of the appellant. The Appeal Panel appointed one of its members, namely Medical Assessor Bodel, to conduct that examination. His report on it is set out below.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the evidence before the Medical Assessor revealed he has symptoms from his lumbar spine radiating down his left extremity. That evidence consisted of firstly, the Medical Assessor’s report within the MAC of the symptoms the appellant experiences consisting of burning sensations on the lateral side of his left thigh and in his lateral calf and on the lateral side of his left leg, secondly, his statement he signed on 24 September 2024 wherein he described experiencing ongoing pain affecting his lower back and going down his left leg, thirdly, a report of Dr Paul Jarman dated 24 October 2023 in which Dr Jarman reported that the appellant has persistent pain in his left leg, persistent numbness in his foot and burning sensation on the outside of his left leg, fourthly, reports of Dr Jaeger in which Dr Jaeger referred the appellant continues to have pain and symptoms affecting his left leg, and lastly, Association Professor Courtenay’s report in which Associate Professor Courtenay described the appellant suffering residual radiculopathy of his left leg.
The Appeal Panel notes that Dr Jarman is an orthopaedic surgeon that the appellant consulted for management and treatment.
The appellant submitted that that evidence revealed “a failure on the part of Medical Assessor Ho to properly apply the modifier in relation to post operative radiculopathy”. The Appeal Panel notes that although the appellant did not specify in his submissions the modifier to which he refers, the modifier is that in the first row of Table 4.2 of the Guidelines.
The appellant submitted that the Medical Assessor did not address “whether or not two or more of the relevant criteria for radiculopathy are present”. The Appeal Panel again observes that the appellant did not specify in his submissions the “relevant criteria”, but they are those contained within paragraph 4.27 of the Guidelines.
The appellant submitted that the evidence before the Medical Assessor is such that the Medical Assessor ought to have added 2% WPI for the effect of his injury on his activities of daily living. This is because, according to the appellant, the evidence demonstrates that he is restricted to usual household tasks and with walking reasonable distances.
In reply, the respondent submitted that the Medical Assessor did not find two or more of the requisite criteria specified in paragraph 4.27 of the Guidelines to enable a finding that the appellant has radiculopathy and could not therefore add the modifier allowed by the first row of Table 4.2 when assessing the degree of the appellant’s permanent impairment from his injury. The respondent submitted that a complaint of numbness of itself is not sufficient to enable a finding of radiculopathy. The respondent submitted that the appellant only met one of the criteria specified in paragraph 4.27 and consequently the Medical Assessor could not, based on his findings from his examination of the appellant, make a finding that the appellant had radiculopathy.
With regard to the Medical Assessor’s addition of 1% WPI for the effect the appellant’s injury to his lumbar spine has on his activities of daily living, the respondent submitted that regard must be had to the fact that the appellant also had a condition of his left knee. The respondent submitted that the appellant in his statement noted that his knee remains painful and unstable and that he can drive for up to an hour and finds sitting or standing aggravating his symptoms in his knee and finds it difficult negotiating stairs or uneven ground. It is implicit that the respondent is submitting that given the context in which the appellant describes these difficulties, his restrictions on his activities of daily living are due to his knee rather than his lumbar spine. The respondent submitted for the appellant “to now assert, in hindsight, following the outcome of the Medical Assessment Certificate that all limitations mentioned are now attributable to the lumbar spine as self-serving”. The respondent noted that the Medical Assessor’s assessment that the effect of the appellant’s lumbar spine injury on his activities of daily living is 1% WPI is consistent with the assessment Dr Rimmer 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.
The Medical Assessor’s findings from his examination of the appellant and also what the Medical Assessor reported in the MAC relating to the appellant’s complaint of symptoms revealed that the Medical Assessor was aware that the appellant complained of impaired sensation down his left lower extremity within the distribution of the S1 dermatome. However, the Medical Assessor did not detail in the MAC that his examination of the appellant included a test for impaired sensation and, indeed, the Medical Assessor did not record in the MAC that he found from his examination of the appellant that the appellant had impaired sensation. The Medical Assessor merely noted that the appellant complained of that. Further, there is nothing within the MAC that indicated the Medical Assessor’s examination of the appellant included examining the appellant for muscle wasting of his lower extremities.
Given that, the Appeal Panel agrees with the appellant’s submission to the effect that the Medical Assessor did not correctly address the criteria of paragraph 4.27 of the Guidelines to determine whether the appellant had radiculopathy. The MAC simply does not reveal whether the Medical Assessor examined the appellant for reproducible impairment of sensation or for muscle wasting, and consequently it cannot be definitively known whether or not the appellant exhibited either of those signs at examination. If the appellant had exhibited both of those signs at examination, then a finding of radiculopathy should be made, which if it were, would affect the outcome.
Hence, the Medical Assessor’s failure to record in the MAC whether his examination of the appellant included examining the appellant for muscle wasting or reproducible impairment of sensation, or alternatively if the Medical Assessor did carry out that examination the Medical Assessor’s failure to record his findings is an error, such that the MAC contains a demonstrable error.
The Appeal Panel also considers that the Medical Assessor did not set out sufficient in the MAC to explain why he assessed the appellant had 1% WPI for the effect of the appellant’s lumbar spine injury on his activities of daily living. All the Medical Assessor noted was that the appellant can walk 500m, has a stiff back which prevents him doing low level activity, and has difficulty doing anything physical. The Medical Assessor did not detail to what extent, if at all, those symptoms affect the appellant with his self-care or yard activities, or his ability to garden, or engage in sport or recreational activities. The Appeal Panel considers that that also was a failure on the part of the Medical Assessor, such that the MAC contains a demonstrable error.
Given the MAC contains demonstrable errors, the Appeal Panel must correct those errors. As said above, the Appeal Panel considered that it required further clinical data to do that and would need to examine the appellant to get that clinical data. Medical Assessor Bodel examined the appellant on 12 March 2025 and following that provided the Appeal Panel with the following report on his examination:
“PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W24466/24
Appellant:	James Rayner
Respondent:	Shellharbour City Council
Date of Determination:	12 March 2025

Examination Conducted By:	James Bodel
Date of Examination:	12 March 2025

1.The workers medical history, where it differs from previous records
The history of the injury is accurately recorded in the Medical Assessment Certificate issued by Dr Yiu-Key Ho. It is confirmed that he was “lifting heavy buckets of gravel and he noticed an onset of lower back pain and left leg pain.”
It is correct to indicate that an MRI scan was done on 26 May 2021. The injury occurred on 24 April 2021 and the MRI scan showed facet joint arthritis at L4/5 and L5/S1. He was treated conservatively.

He wasn’t settling and therefore surgery was done on 4 March 2022 by Professor Yaeger. This was a laminectomy and decompression but not a fusion.
This operation improved the left leg function by about 70%. It has never completely recovered, however. He still has some numbness and tingling into the lateral border of the left foot.
He also injured the right knee and that occurred during the rehabilitation process when he was asked to a squat. That caused a tear of the medial meniscus for which he has had surgery done by Dr Stackpool. That is consistent with the history reported.
2.Additional history since the original Medical Assessment Certificate was performed
Nil.
3.Findings on clinical examination
Mr Rayner is 61 years of age.
He has the healed mid-line scar as previously recorded. He has tenderness in the scar. There is some pigmentation of the scar and some loss of subcutaneous tissue, but no tethering or adherence to underlying deep structures.
He reaches forward in flexion with his hands to the knees. He has backache at this point and also on extension, with a restricted range of lateral bending to the right.
Straight leg raise is 70° on each side and there is hamstring tightness. There are no positive nerve tension signs in either leg. The left thigh and left calf were 0.5cm smaller than the right.
There is a good range of hip movement. He has a slight restriction of knee movement on the right and the range of movement in each knee is recorded as follows:

Knee Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

120°

110°

Extension

-5°

5°

He has an unrelated injury to the left knee. He was wearing a knee guard on the left knee but not the right. There is barely perceptible healed scarring in the region of the right knee from the arthroscopy.
There is no restriction of ankle or subtalar movement. He has sensory loss in a non-dermatomal distribution. The reflexes are present and equal in both knees and both ankles.
The medial hamstring reflex is also present on the left-hand side and the right, and there is no weakness of extension in the right or left great toes.
4.Results of any additional investigations since the original Medical Assessment Certificate
There are no new x-rays or other tests available for review.
5.Opinion
The claimant has had surgery for the disc injury in the lumbosacral region. The scar is a 1% Whole Person Impairment as assessed by the Medical Assessor.
There is asymmetry of back movement but no residual sign of radiculopathy, although there are non-verifiable radicular complaints in the left leg.
Clinically, I would rate his activities of daily living as a 2% Whole Person Impairment and not 1%. He has interference with sport and leisure activities and also household maintenance and cleaning activities.
The final level of Whole Person Impairment in my view is 12% Whole Person Impairment for the lumbar spine for a DRE Lumbar Category III level of assessable impairment in accordance with the description in Table 15-3 on page 384 of AMA5. He has had surgery for radiculopathy and has a 2% loading for interference in activities of daily living in accordance with Item 4.34 and Item 4.35 on page 28 of the 4^th Edition Guidelines.
He has no persisting signs of radiculopathy.
In regards to the Section 323 deduction that has been made in the Medical Assessment Certificate, I would indicate that he has worked at Council since 2018.
He has degenerative change in the lumbar spine which is contributing to the overall level of impairment, but it is too difficult to determine a clear level of that contribution and a one-tenth deduction is appropriate, leaving a 10.8% Whole Person Impairment and after rounding, an 11% Whole Person Impairment in this case.
Dr James G Bodel”

The Appeal Panel considers that Medical Assessor Bodel conducted a thorough examination of the appellant and consequently the Appeal Panel can accept his findings from his examination.
The findings from Medical Assessor Bodel’s examination of the appellant reveal that the appellant does not have any loss of reflexes of his lower extremities, does not exhibit any muscle weakness in a dermatomal distribution (noting that the appellant exhibited no weakness on extension of his right or left great toes), did not have impaired sensation in a dermatomal distribution (although did have sensory loss is a non-dermatomal distribution), did not exhibit positive nerve tension signs in either leg, and did not have muscle wasting. The Appeal Panel notes that the difference that Medical Assessor Bodel found of .5cm between the appellant’s left thigh and calf and his right thigh and calf is not muscle wasting. Consequently, the appellant did not present with two or more of the criteria listed in paragraph 4.27 of the Guidelines and hence, a finding of radiculopathy cannot be made. That in turn means that Table 4.2 is not engaged.
The Appeal Panel also accepts Medical Assessor Bodel’s opinion relating to the effect the appellant’s injury to his lumbar spine has on his activities of daily living. Medical Assessor Bodel was able to ascertain from the appellant that the signs and symptoms the appellant has relating to his lumbar spine interfere with his sporting and leisure activities and also interfere with his ability to carry out household maintenance and cleaning activities, which in the Appeal Panel’s view warrants an additional 2% WPI pursuant to paragraph 4.33 of the Guidelines.
The Appeal Panel also accepts Medical Assessor Bodel’s opinion regarding the deduction to be made pursuant to s 323(1) of the 1998 Act. The MRI scan that was done of the appellant’s lumbar spine on 26 May 2022 reveals degeneration in the appellant’s lumbar spine that would have been present at the time the appellant suffered injury on 22 April 2021. The Appeal Panel observes that the appellant, in any event, did not contest the Medical Assessor’s assessment that he had a pre-existing condition in his lumbar spine. The spinal surgery the appellant had results in the appellant’s impairment relating to his lumbar spine being assessed as DRE Category 3 in accordance with paragraph 4.37 of the Guidelines. The pre-existing degeneration in the appellant’s lumbar spine was a material factor in the need for that surgery. In other words, it was both the appellant’s injury he suffered in the form of the aggravation of that underlying and pre-existing degeneration, and the degeneration itself, that necessitated the surgery by reference to which the appellant’s impairment has been rated. His pre-existing degeneration accordingly contributes to his current permanent impairment. As Medical Assessor Bodel opined it is difficult to determine precisely what contribution the pre-existing condition makes and hence, in accordance with s 323(2) of the 1998 Act the deductible proportion is assumed to be 10%.
For these reasons, the Appeal Panel has determined that the MAC issued on
5 November 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:	W24466/24
Applicant:	James Rayner
Respondent:	Shellharbour City Council

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 Yiu-Key Ho 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)
Lumbar spine	22/04/2021	Chapter 4	Table 15-3	12%	1/10	11%
Right lower extremity		Chapter 3	Table 17-33	1%	-	1%
Scarring		Table 14.2	1%	-	1%
Total % WPI (the Combined Table values of all sub-totals)					13%

[2025] NSWPICMP 304

2 May 2025