Rezayee v P&M Quality Smallgoods Pty Ltd
[2025] NSWPICMP 814
•21 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Rezayee v P&M Quality Smallgoods Pty Ltd [2025] NSWPICMP 814 |
| APPELLANT: | Mohammad Rezayee |
| RESPONDENT: | P&M Quality Smallgoods Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 21 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of permanent impairment arising from Lisfranc fracture in the right foot; Medical Assessor assessed by reference to gait derangement and declined to assess scarring; prohibitions in American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) and the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) against use of gait derangement other than as last resort; difference between skin loss in AMA 5 Table 17-36 and scarring; re-examination; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 June 2025 Mohammad Rezayee lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor John Garvey, who issued a Medical Assessment Certificate (MAC) on 16 May 2025.
Mr Rezayee relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d), with respect to the Medical Assessor’s assessment of scarring. We conducted a review of the original medical assessment, limited to the grounds 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 Rezayee was employed by P&M Quality Smallgoods Pty Ltd (P&M) as a packer/machine operator when he suffered an injury on 13 September 2012. He lost control of an electronic pallet jack on a wet floor and the pallet jack crushed his right foot. He suffered a right Lisfranc injury and on 27 September 2012, Dr Herald undertook open reduction and internal fixation of the fracture dislocations of the first, second, third and fourth metatarsals.
Mr Rezayee and P&M agreed that the Medical Assessor should assess whole person impairment (WPI) in respect of his right lower extremity (foot and ankle) and scarring under the Table for the Evaluation of Minor Skin Impairments (TEMSKI).
The Medical Assessor assessed 7% WPI in respect of gait derangement. He did not assess any impairment in respect of Mr Rezayee’s right ankle or scarring.
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 the Medical Assessor erred in assessing Mr Rezayee’s WPI by reference to gait derangement and in his assessment of scarring.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
Medical Assessor Bodel of the Appeal Panel conducted an examination of the worker on 10 October 2025 and reported to the Appeal Panel. His report forms part of these reasons.
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 we have considered them.
In summary, Mr Rezayee submitted that the Medical Assessor was in error to use gait derangement to assess the impairment arising from fracture dislocations of his right forefoot, on the basis that diagnostic imaging showed that the fractures had healed. He said that AMA 5 provides that gait derangement should be used as the method of last resort and that Dr Guirgis, who assessed him at the request of his solicitors, and Dr Marshall, who assessed him at the request of P&M, used range of motion assessments. Mr Rezayee also noted that AMA 5 says[1] that if more than one method of assessment can be used, that which provides the higher rating should be adopted.
[1] At p 527.
Mr Rezayee also submitted that the Medical Assessor erred in failing to assess scarring and that he misunderstood paragraph 14.6 of the Guidelines which provides that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment. Mr Rezayee said that the Medical Assessor’s own description of the scar warranted assessment and that the Medical Assessor was also in error to say that scarring cannot be combined with gait derangement.
In reply, the P&M submitted that the Medical Assessor did not err by assessing Mr Rez’s impairment by reference to gait derangement and quoted paragraph 1.9 of the Guidelines:
“The Guidelines may specify more than one method that assessors can use to establish the degree of a claimant’s permanent impairment. In that case, assessors should use the method that yields the highest degree of permanent impairment. (This does not apply to gait derangement – see paragraphs 3.5 and 3.10 in the Guidelines).”
P&M said that the Medical Assessor did not err in the assessment of scarring and that he appropriately determined that Mr Rez had no scarring which was to be combined with the impairment of gait derangement.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[3] [2021] NSWCA 304 at [26].
The MAC
The Medical Assessor began by summarising the material in the file and setting out the history Mr Rezayee gave. He set out his findings on examination. Relevantly, he said:
“There was a 4 cm scar on the dorsum of his right foot and a 2 cm scar on the instep of his right foot, …
… there was hypoaesthesia demonstrable to pinprick sensation in the territory of the superficial peroneal nerve on the dorsum of the foot.
Both thigh circumferences measured 40 cm, both calf circumferences measured 32.5 cm (no calf atrophy).
Plantar flexion was 30° on the right and dorsiflexion was 20° on the right (both normal). Inversion of the right ankle was 30° on the right and eversion was 20° on the right (both normal). Dorsalis pedis and posterior tibial pulses were present and normal on each side. There was weakness of dorsiflexion and plantar flexion of the right ankle (4/5) inversion and eversion (4/5) and hallux flexion and extension (4/5).”
Summarising the injuries and his diagnoses the Medical Assessor said:
“Lisfranc injury right foot and ankle requiring open reduction and internal fixation of 1st metatarsal, displaced fracture of the 2nd metatarsal, fractured 3rd metatarsal, comminuted fracture 4th metatarsal and comminuted fracture of the lateral cuneiform bone.
Neuralgia of superficial peroneal nerve of his right foot
Scarring.”
The Medical Assessor assessed 7% WPI and said:
“The Claimant suffered a crush fracture to his right foot sustaining a right-sided Lisfranc fracture with loss of weight transfer requiring open reduction and internal fixation of 4 metatarsal bones. This injury has healed according to the right foot X-ray on January 20, 2015. But the Claimant has been left with metatarsalgia on the dorsum of his right foot. There is impaired sensation in the distribution of the superficial peroneal nerve on the dorsum of his right foot, related to the surgery undertaken.
The range of motion of the ankle and hindfoot is normal on today’s measurements and the ankle X-ray on 20 March 2024 was normal, so there is no separate impairment assessable for the ankle.
There was no atrophy of the calf muscle of the right lower extremity, so no impairment is assessable for muscle wasting.
There is no assessable impairment for scarring of the right foot because scarring as a result of a standard surgical procedure has no rateable impairment (SIRA guides Clause 14.6, page 73) and cannot be combined with gait derangement.”
The Medical Assessor explained his calculations:
“The Claimant has 16% lower extremity impairment assessable for the fracture dislocations of his right forefoot, but these injuries have healed according to the diagnostic imaging provided. But the Claimant is still left with metatarsalgia and walks with a limp favouring his right lower extremity. So, in my view the most appropriate method of assessment is by gait derangement being 7% WPI for antalgic limp with shortened stance phase and documented moderate arthritic changes of the forefoot.”
Medico-legal reports
Dr Guirgis examined Mr Rezayee and reported on 29 May 2019. He assessed the fractures under Table 17-33 of AMA 5, referring to the diagnosis based estimate for a forefoot deformity resulting from a metatarsal fracture with loss of weight transfer. He also assessed the loss of the range of motion of the metatarsophalangeal joints in respect of loss of dorsiflexion of his great, second and third toes. He assessed loss of the range of motion of Mr Rezayee’s right ankle under Table 17-11, resulting in a total assessment of 36% lower extremity impairment (LEI) or 14% WPI. He assessed 4% for scarring under the TEMSKI. His combined assessments was 17% WPI.
Dr Guirgis re-examined Mr Rezayee and reported on 1 August 2024. He used the same methods of assessment and reached the same result.
Dr Marshall assessed Mr Rezayee and reported to P&M’s solicitors on 21 October 2020. He used the diagnosis based estimates in Table 17-33 and reached the same result as Dr Guirgis of 12% LEI. He did not assess metatarsophalangeal joint motion on the basis that “this injury does not affect metatarso-phalangeal movement”. He assessed loss of ankle motion. Dr Marshall’s total assessment was 22% LEI or 9% WPI. He added 1% under the TEMSKI, resulting in 10% WPI.
Consideration
The Medical Assessor was in error to use gait derangement to assess the WPI arising from the injury to Mr Rezayee’s foot. AMA 5 says:
“Gait derangement is present with many different types of lower extremity impairment and is always secondary to another condition.”[4]
[4] At p 529
That is the reason why AMA 5 advises that “[w]henever possible, the evaluator should use a more specific method”. The Guidelines, which prevail over AMA 5 to the extent of any deviation,[5] are more prescriptive. Paragraph 1.9 provides:
“The Guidelines may specify more than one method that assessors can use to establish the degree of a claimant’s permanent impairment. In that case, assessors should use the method that yields the highest degree of permanent impairment. (This does not apply to gait derangement – see paragraphs 3.5 and 3.10 in the Guidelines).”
[5] Guidelines paragraph 1.1.
P&M relied on paragraph 1.9 in support of its argument that the Medical Assessor was correct to use gait derangement but P&M did not refer to paragraphs 3.5 and 3.10 in the chapter of the Guidelines dealing with the lower extremity. Paragraph 3.5 says:
“In the assessment process, the evaluation giving the highest impairment rating is selected. That may be a combined impairment in some cases, in accordance with the AMA5 Table 17-2 ‘Guide to the appropriate combination of evaluation methods’, using the Combined Values Chart on pp 604–06 of AMA5.”
Paragraph 3.10 reads:
“Assessment of gait derangement is only to be used as a method of last resort. Methods of impairment assessment most fitting the nature of the disorder should always be used in preference. If gait derangement (AMA5 Section 17.2c, p 529) is used, it cannot be combined with any other evaluation in the lower extremity section of AMA5.”
Read together, those paragraphs have the effect that the method of assessment that gives the highest assessment should be used, unless that method is gait derangement because gait derangement should be used only as a last resort, it always being secondary to another condition. There were other methods of assessment available to the Medical Assessor and his error in using gait derangement led to the need for re-examination.
Scarring
The Medical Assessor was in error to say that scarring cannot be combined with gait derangement. Table 17-2 of AMA 5 says that gait derangement cannot be combined with skin loss but skin loss, assessed under Table 17-36 of AMA 5, is not the same as scarring.
The introduction to Table 17-36 highlights that “[f]ull thickness skin loss in certain areas of the lower extremity results in significant impairment … even where the areas are successfully covered with an appropriate type of skin graft”. It appears in the lower extremity chapter of AMA 5, not in that related to the skin.
Paragraph 3.31 of the Guidelines permits skin loss to be assessed in the circumstances set out in Table 17-36 (for example, where it impacts on a worker’s ability to stand and walk).
Mr Rezayee does not suffer relevant skin loss. There is no impediment to his scarring being assessed under the TEMSKI (whether or not his impairment results from gait derangement).
Paragraph 14.6 of the Guidelines reads:
“A scar may be present and rated as 0% WPI.
Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.”
Paragraph 14.7 of the Guidelines explains that the TEMSKI is an extension of Table 8-2 of AMA 5, dividing class 1 of that table into five categories of impairment. It says:
“The TEMSKI may be used by trained assessors (who are not trained in the skin body system), for determining impairment from 0–4% in the class 1 category, that has been caused by minor scarring following surgery. Impairment greater than 4% must be assessed by a specialist who has undertaken the requisite training in the assessment of the skin body system.”
The TEMSKI is an exception to the requirement that an assessor have specialist training as a plastic surgeon or dermatologist, and to the requirement for training in the use of the Guidelines relevant to the assessment of the skin.
The TEMSKI requires the Medical Assessor to assess scarring by the principle of “best fit”. The Medical Assessor was required to assess scarring using five broad criteria:
· description of the scar (shape, texture, colour);
· location;
· contour;
· ADL/treatment, and
· adherence to underlying structures.
The notes at the bottom of the TEMSKI points out that the principle of best fit required the Medical Assessor to assess the impairment and then, using his own clinical judgement, to determine which impairment category best fit or described the impairment.
Paragraph 14.6 alerts an assessor to the fact that a scar will not always result in an assessment of WPI and that it may fall within the first class of the TEMSKI, for which 0% is appropriate. A Medical Assessor is always required to consider the five broad criteria set out above. Examples of scars which fall within paragraph 14.6 are scars from arthroscopy portals or a well healed lumbar laminectomy scar. Importantly, not every surgical scar falls within paragraph 14.6.
The extensive open reduction surgery that Mr Rezayee underwent required the Medical Assessor to carefully consider the application of the TEMSKI. The Medical Assessor’s failure to do so also required re-examination.
Reassessment
Medical Assessor Bodel re-examined Mr Rezayee on behalf of the Appeal Panel. We adopt his report and his assessment. There is no utility in repeating the matters set out in it, noting the statement Ward P with whom the other members of the Court of Appeal agreed, in Coca-Cola Europacific Partners API Pty Ltd v Pombinho:[6]
“The statutory provisions assume power on the part of a medical member of the Appeal Panel to carry out a re-examination and assessment of the worker. It may be inferred that the Appeal Panel, in adopting the report and findings, was endorsing the reasoning in that report since that is where the reasons are to be found. I do not accept that the Appeal Panel was required to deliver separate or distinct reasons as to why the Appeal Panel (or two of the three members of it, perhaps) accepted [the Medical Assessor]’s assessment in preference to the assessment of, say, the Medical Assessor. In my opinion, it was sufficient for the Appeal Panel to adopt [the Medical Assessor]’s assessment (for the reasons contained therein).”
[6] [2024] NSWCA 191 at [88].
For these reasons, the Appeal Panel has determined that the MAC issued on 16 May 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W2123/25 |
Appellant: | Mohammad Rezayee |
Respondent: | P&M Quality Smallgoods Pty Ltd |
Examination Conducted By: | James Bodel |
Date of Examination: | 10 October 2025 |
The workers medical history, where it differs from previous records
Mr Rezayee confirms that he had a crush injury to his right foot and ankle at work at P&M Quality Smallgoods Pty Ltd (trading as Primo Smallgoods) at 9:30pm on 13 September 2012.
The injury occurred when he was using an electric pallet jack. The area where he was working was wet. He had two large tubs of meat on the pallet jack and he slipped, lost control of the pallet jack, and it ran over his right foot. This is the essence of the history recorded by the Medical Assessor.
He had treatment under the care of Dr Jonathan Herald with an open reduction and internal fixation of a “Lisfranc fracture dislocation of the mid foot, particularly involving the second, third and fourth metatarsal and the associated cuneiforms.” He had stabilisation using Kirschner wires and screws.
Post-operatively, he was immobilised in a cast and then a boot. The metallic implants were removed on 4 April 2013, by Dr Herald.
Progress X-rays following that have shown that there has been some development of arthritic change in the tarsometatarsal joint (in the area of the Lisfranc fracture/dislocation). There is, however, no report of anatomical derangement of that area and the fractures have healed, but there is early arthritic change.
Finally, I would confirm that in regards to work, he has since that time worked in various activities and has lived in various places around Australia. He later did some light rendering work, then working with a plastering company (Couzens Plaster) and also “construction, farming, picking and packing and warehousing.”
At the time of the assessment, he was not working and he indicates to me today that he last worked about a month ago doing construction labouring work and he now has no income support.
Additional history since the original Medical Assessment Certificate was performed
He reports no change in his clinical circumstance in regard to his right foot and ankle, and no specific treatment has been offered.
Findings on clinical examination
Mr Rezayee is 40 years of age. He is comfortable when sitting and rises from the chair slowly. He walks with a flat-footed gait pattern on the right-hand side, but I note that he electively walks on the outer border of his foot and does not transfer his body weight through the big toe or the second toe of that foot during the stance phase or during push off.
Inspection of the foot shows that there is more callosity on the outer border of the foot and callosities under the head of the first and second metatarsals. This is when compared to the opposite foot, where there is a more balanced pattern of callosities from weight-bearing.
He has a good range of hip and knee movement.
He has a very slight restriction of ankle movement on the right and the range of movement is as follows:
Ankle Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Dorsiflexion
5°
15°
Plantarflexion
30°
30°
Inversion
30°
30°
Eversion
20°
20°
He has active dorsiflexion and plantar flexion of the toes. There is no rateable impairment in the restriction of the movement of the toes, which is only very slight and is less than the minimal rating in Table 17-40 on page 537.
There are no signs of CRPS. There is some irritation of the scar with mild sensitivity, which would amount to light touch allodynia, but that is the only sign present in Table 17-1, which is required for the diagnosis of CRPS which is not present in this circumstance.
There is no sign of temperature differential and no abnormal sweating. There is no swelling visible on clinical observation here today and there is only very slight wasting in the right calf, which is 0.5cm smaller than the left.
I rate the scar, as a 1% WPI under the TEMSKI scale for the reasons outlined above.
Results of any additional investigations since the original Medical Assessment Certificate
No new X-rays or other tests have been undertaken to investigate this injury.
No further active treatment has been proposed.
Opinion
The claimant has suffered a crush injury to the right foot, which occurred 12 years ago in a workplace accident at Primo Smallgoods on 14 September 2012.
The clinical findings today support the use of Table 17-33 on page 547 under the sub-section of Table 17-33, known as ‘Forefoot deformity. This talks about metatarsal fracture with loss of weight transfer following the first metatarsal, fifth metatarsal and other metatarsals, and the fact that he walks on the outer border of his right foot, taking minimal weight over the right great toe or the second toe is the reason why that is the appropriate way of assessing this foot injury.
The gait derangement table should be rarely used in accordance with the instruction in AMA5 on page 529, indicating, “Wherever possible, the evaluator should use a more specific method” than the gait derangement. That is the case here. There is clear evidence of poor weight transference to the right foot because he walks on the outer border of the foot and takes minimal, if any, weight through the big toe or the second toe of that foot.
He certainly can stand on that foot, but he dislikes doing so, and when walking in a natural sense, he walks on the outer border of the foot. There are increased callosities on the outer border of the foot when compared to the right foot, which indicates that this is not just a performance for the examination here today, but is part of his natural walking pattern. His footwear is fairly new and unfortunately it hasn’t had time to develop any particular wear pattern, which would also confirm that finding.
The assessable impairment, therefore, is as follows:
- There is 7% Lower Extremity Impairment for the restricted range of ankle dorsiflexion (5° of dorsiflexion).
- There is 0% Lower Extremity Impairment for the normal range of subtalar movement in the right foot.
The weight transference assessment is taken from Table 17-33 on page 547 under the heading ‘Forefoot deformity’ and there is a 10% Lower Extremity Impairment for the weight transference loss under the head of the first metatarsal, and a 2% Lower Extremity Impairment for the loss of the weight transference under the head of the second metatarsal. This gives a 12% Lower Extremity Impairment for the toes.
Table 17-2 on page 526 does not normally allow a diagnosis-based estimate, which is the rating for the loss of weight transfer, to be combined with a range of motion assessment (the rating for the ankle).
I am satisfied that they should be combined however in this circumstance because they relate to different joints and the rules apply individually to the joints, in my view.
I therefore indicate that the claimant has a 12% Lower Extremity Impairment for loss of weight transference in the first and second toes, and a 7% Lower Extremity Impairment due to range of ankle dorsiflexion (extension).
The 12% combined with 7% gives an 18% Lower Extremity Impairment, and using Table 17-3 on page 527, this gives a 7% WPI for the Right Lower Extremity.
That 7% is then combined with the 1% for the scarring to give an 8% WPI overall for this injury.
It is noteworthy that in the medical documentation associated with this matter, the scars are rated by several assessors as 1% WPI, and the only person observing a 4% WPI is Dr Guirgis in his initial report in 2009 and his more recent report in 2024.
I cannot justify any other rating, apart from the 1% WPI which I have given in this circumstance.
I have graded each of the sub-sections of the TEMSKI scale to clarify the reason for the 1% WPI.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2123/25 |
Applicant: | Mohammad Rezayee |
Respondent: | P&M Quality Smallgoods Pty Ltd |
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 John Garvey 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) |
| Right lower extremity (foot & ankle) | 13.9.2012 | Chapter 3 | Chapter 17 | 7 | 0 | 7% |
| Scarring (TEMSKI) | 13.9.2012 | Chapter 14 | 1 | 0 | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
0
3
0