Roode v Endeavour Group Ltd
[2025] NSWPICMP 758
•2 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Roode v Endeavour Group Ltd [2025] NSWPICMP 758 |
| APPELLANT: | Kelly Roode |
| RESPONDENT: | Endeavour Group Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Tim Anderson |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 2 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of scarring under Chapter 14 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and Table for the assessment of minor skin impairments as a result of lumbar spine surgery; paragraph 14.6 of the Guidelines; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 July 2025 Kelly Roode lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor David Crocker, who issued a Medical Assessment Certificate (MAC) on 30 May 2025.
Ms Roode 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 scarring. She was also satisfied that the time for lodging the appeal should be extended. 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
Ms Roode was employed by Endeavour Group Limited t/as Dan Murphy’s (Dan Murphy’s) as a duty manager. She suffered a back injury in the course of her employment and ceased work on 10 March 2022. Dr Cherukuri undertook surgery on 20 July 2023 in the form of L4/5 laminotomy, microdiscectomy and rhizolysis.
Ms Roode made a claim for permanent impairment compensation based on the report of Dr Mastroianni who assessed 17% whole person impairment (WPI), comprised of 16% in respect of her lumbar spine and 1% for scarring under the Table for the Evaluation of Minor Skin Impairments (TEMSKI).
The Medical Assessor was asked to assess Ms Roode’s lumbar spine and scarring. He assessed 16% WPI for her lumbar spine from which he deducted one-tenth under s 323 of the 1998 Act. He assessed 0% for scarring.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Roode to undergo a further medical examination because the MAC does not disclose error with respect to the 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.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In submissions prepared by Mr Moffet of counsel, Ms Roode submitted, first, that the Medical Assessor wrongly applied paragraph 14.6 of the Guidelines as the lead provision, wrongly taking it to give a broad discretion to find 0% impairment without reference to the other parts of the Guidelines. Ms Roode said that the Medical Assessor was required to apply the criteria in the TEMSKI.
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.”Second, Ms Roode submitted that the Medical Assessor misunderstood the “notation” and gave undue credence to it, misunderstanding the meaning of “of themselves” which merely guides a Medical Assessor to the proposition that a finding of 0% was not automatic. She said that the Medical Assessor “treated the notation as a means to subvert the Guidelines”. Third, Ms Roode submitted that the Medical Assessor erred in finding that the note was relevant at all. “Uncomplicated” is not defined and the Medical Assessor did not “make adequate factual findings” to support the implied finding that the scar was uncomplicated.
Fourth, Ms Roode submitted that the Medical Assessor failed to consider relevant evidence. Dr Mastroianni noted obvious trophic changes and visible suture marks, though the Medical Assessor made no reference to those features and failed to engage with the findings of Dr Mastroianni, who saw her at the request of her solicitors. He also failed to support his own opinion based on the best fit.
Ms Roode’s fifth submission was that the Medical Assessor failed to give adequate reasons, noting that his observation that she did not report concern about the scar which she was unable to see was inconsistent with her statement. She said that the Medical Assessor’s reference to a mild alteration in colour required an assessment of 1% or 2%.
Ms Roode submitted that the Medical Assessor was required by paragraph 1.47 of the Guidelines to “contain factual information based on all available medical information and the results of investigations, the assessor’s own history taking and clinical information” so that he was required to address the suture marks and trophic changes. She said that by not properly referring to the TEMSKI, he breached paragraph 1.48 which required “a comparison of the key findings of the evaluation with the impairment criteria in the Guidelines”.
Ms Roode’s sixth submission was that the Medical Assessor had made a “Vannini (per Meagher JA at [84]) demonstrable error which was relevant to the proper application of Table 14.1” referring to Vannini v Worldwide Demolitions Pty Ltd[1] (Vannini).
[1] [2018] NSWCA 324 at [84].
In the Appeal Against a Decision of Medical Assessor form, Ms Roode checked the box indicating that she sought re-examination but in the submissions sought that the MAC be set aside and a finding of 15% WPI be substituted, requesting re-examination only in the alternative.
In reply, Dan Murphy’s observed that the findings in Dr Mastroianni’s report to support his assessment of 1% WPI for scarring were limited. Dr Rimmer examined Ms Roode at the request of Dan Murphy’s and his findings were similarly brief. Dan Murphy’s set out all of the statements with respect to scarring in the MAC and said it was clear that the Medical Assessor was aware of the need to carefully determine if an assessment for scarring should be made.
Dan Murphy’s said that the Medical Assessor was required to make an assessment on the day of the examination. On that day, Ms Roode did not report any concern about the scar, which she is unable to see. Those words conveyed that the Medical Assessor asked Ms Roode about the scarring and recorded her response. Dan Murphy’s submitted that the criticisms directed at the MAC could also be made of Dr Mastroanni’s report.
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 set out the history Ms Roode provided to him, her present treatment and present symptoms. He said:
“She did not report concern in relation to the surgical scar which she is unable to see.”
Setting out his findings on examination the Medical Assessor said:
“A flat healed longitudinal surgical scar was noted to overlie the lower lumbar spine. There was mild alteration in colour compared to adjacent skin.”
The Medical Assessor said:
“Ms Roode presented with a straightforward and undemonstrative manner. There were nil overt features of embellishment upon history taking or augmentation on the physical examination. As such, it is considered that consistency was present.”
The Medical Assessor assessed Ms Roode in DRE category III resulting in 10% WPI. He allowed 3% for the impact of the injury on the activities of daily living and 3% for persisting radiculopathy, recording the criteria from paragraph 4.27 of the Guidelines which allowed him to make that finding. The resulting total was 16% WPI. The Medical Assessor made a deduction of one-tenth under s 323 of the 1998 Act, reducing the assessment to 14% WPI. He said:
“In relation to the surgical scarring, reference is required to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Chapter 14, 14.6, pg 73). This outlines the following:
‘Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.’
Taking the above into account, it is considered that there is a 0% whole person impairment pertaining to skin/scarring.”
The Medical Assessor commented on the reports of Dr Mastroianni and Dr Rimmer, noting that Dr Mastroianni had assessed 1% for scarring and Dr Rimmer did not consider there were any grounds for a rateable impairment for scarring. In the table at the end of the MAC, the Medical Assessor said he had assessed scarring by reference to Chapter 14 and Table 14.1 of the Guidelines and Chapter 8, paragraph 8.7 and Table 8-2 of AMA 5.
Evidence in the file
Ms Roode’s statement dated 17 March 2025 was prepared after the examinations by Dr Mastroianni and Dr Rimmer. She critiqued Dr Rimmer’s report in her statement, saying;
“Dr Rimmer did not award any impairment percentage for scarring. I have about an 8cm scar over my lumbar spine. There are clear colour changes which I am conscious of and some suture marks.”
The only reference to the scar in Ms Roode’s general practitioner’s notes is that the wound was “looking good” when the dressing was removed on 7 August 2024. She did not make any complaints about the scar to her general practitioner and was referred to both physiotherapy and hydrotherapy.
In his report to Ms Roode’s general practitioner dated 29 July 2024, Dr Cherukuri said that Ms Roode’s scar was well-healed.
Dr Mastroianni assessed 1% for scarring in his report dated 12 September 2024. In the section of his report describing his examination he said:
“There is an 8cm scar over the lower lumbar segment. There are obvious trophic changes in the scar. The scar is pale and there is colour contrast with the surrounding skin. Some suture marks are visible.”
When setting out his impairment assessment, Dr Mastroianni said:
“Under the best fit principle of TEMSKI classification I assess 1% WPI for scarring.”
Dr Rimmer did not assess permanent impairment arising from Ms Roode’s scar. He observed:
“Well healed surgical scar consistent with known surgery. non-tender to firm palpation throughout.”
Error under s 327(3)(c) and (d)
In Masters v Healthshare NSW[4] (Masters), Griffiths AJ said:
“The meaning of ‘incorrect criteria’ in s 327(3)(c) has been considered by the Court of Appeal in cases such as Campbelltown City Councilv Vegan(2006) 67 NSWLR 372; [2006] NSWCA 284 and Pitsonis v Registrar of the Workers Compensation Commission (2008) 73 NSWLR 366; [2008] NSWCA 88. In the latter case, Mason P (with whom McColl and Bell JJA agreed) observed at [40]-[42]:
‘The expression “incorrect criteria” is undefined in the Act. In Campbelltown City Council v Vegan [2004] NSWSC 1129 at [58], Wood CJ at CL referred to a statement in the minister's Second Reading speech to the effect that s 327(3)(c) was designed to cover circumstances where the WorkCover Guides themselves had been incorrectly applied. His Honour observed (at [59]) that this tended to suggest that the “criteria” upon which assessment is to be based are to be found in any relevant guides including guides issued by WorkCover. His Honour observed (at [60]) that this view drew support from the requirement in s 322(1) that the assessment is to be made “in accordance with the WorkCover Guidelines”.
The Chief Judge's decision went on appeal to this Court (Campbelltown City Council v Vegan (2006) 67 NSWLR 372). Basten JA, with whose reasons McColl JA agreed said (at 391 [95]) that, while it was arguable that factual errors made by an approved medical specialist, as recorded in the Certificate, may be “demonstrable errors” within s 327(3)(d), they would not usually satisfy the “incorrect criteria” ground. His Honour observed there that the latter ground “must refer to such matters as the tests set out in the Guidelines, where they are applicable”.
I agree.’ ”
[4] [2025] NSWSC 821 at [25].
The Medical Assessor applied Chapter 14 of the Guidelines and the TEMSKI to assess Ms Roode’s scarring. He did not apply incorrect criteria.
A demonstrable error is an error which is clear from an examination of the MAC.[5] The reference to a statement by Meagher JA in Vannini in Ms Roode’s submissions is incorrect. His Honour was not a member of the Court in Vannini. Gleeson JA, with whom Macfarlane JA and Barrett AJA agreed, said:[6]
“That a demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist, is consistent with the tentative remarks of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales:
‘The concept of “demonstrable error” is not defined, and may be open to various interpretations, ranging from the broad to the narrow. At the narrowest end of the spectrum, it may be thought that the error must be apparent from reading the certificate itself, thus equating the error with error “on the face of the record” for the unrelated purpose of relief in the nature of certiorari. There is no obvious reason why such a construction should be adopted when the purpose is review on the merits, rather than review for legal error. The word “demonstrable” does not in any event import such a constraint. As noted at [37] above, the example given in the second reading speech suggested that the error must be a manifest error.’”
[5] Pitsonis v Registrar of the Workers Compensation Commission [2008] NCWCA at [49].
[6] At [86].
Ms Roode’s first ground of appeal was that the Medical Assessor did not consider all of the paragraphs of Chapter 14 of the Guidelines. For the reasons which follow, we do not accept that submission nor that the Medical Assessor erred. A Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko v ICM Property Service Pty Ltd [7] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
[7] At [36].
The submissions made on behalf of Ms Roode do not take sufficient account of that principle.
Assessment under the Guidelines
Paragraph 1.40 of the Guidelines says that an assessor (which includes a Medical Assessor) is a registered medical practitioner recognised as a specialist who has qualifications, training and experience relevant to the body system being assessed and has undergone training in the use of the Guidelines for the body systems they assess.
Skin is assessed under Chapter 14 of the Guidelines. The matters in the introduction explain how it is to be assessed and says in paragraph 14.4 that Table 8-2 of AMA 5 provides the method of calculation. Paragraph 14.6 appears in the introduction and is relevant to all assessments of the skin, whether or not the TEMSKI applies. Contrary to Ms Roode’s second submission, it is a “lead” provision. It reminds every Medical Assessor assessing skin that not every surgical scar warrants an assessment of permanent 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
· 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 fits or describes the impairment.
The first criterion required the Medical Assessor to consider the extent to which Ms Roode was conscious of the scar, the colour match, whether she could easily locate the scar, the presence of trophic changes and the visibility of staple or suture marks.
The relevance of the location of the scar is measured by considering if it is visible with a worker’s usual clothing or hairstyle. In Ms Roode’s case, her scar would not be visible with usual clothing. There is no suggestion in the evidence that the scar itself has any impact on Ms Roode’s activities of daily living nor that the scar requires treatment. No assessor has suggested that the scar is adherent.
Ms Roode’s third submission was that the Medical Assessor did not make sufficient factual findings to support his implied determination that the scar was uncomplicated. That submission also involves a hyper-critical approach to the MAC.
The Medical Assessor described the scar in his examination findings, saying that it was flat and that there was mild alteration in colour. That is sufficient to describe the scar as uncomplicated. It follows from the description that the scar was flat and well healed, that he did not consider there were trophic changes. We do not accept Ms Rood’s fourth submission that the description of the scar was “conspicuously deficient”.
Ms Roode’s fifth submission was that the Medical Assessor gave inadequate reasons. We do not agree. The Medical Assessor was required to assess Ms Roode as she presented on the day of the examination.[8] He set the out history that she gave on that day. He was entitled to rely on that contemporaneous information even though it is different to what is in her statement. A fair reading of the MAC is that Ms Roode told the Medical Assessor that the scar does not trouble her. Given the position of the scar from the surgery which was undertaken, what the Medical Assessor recorded – that Ms Roode cannot see the scar – rings true.
[8] Guidelines paragraph 1.6.
The Medical Assessor is directed by the standard MAP template to comment on other opinions and provide the reasons why his or her opinion differs. That is so the parties understand how and why a different result was reached, not because the Medical Assessor is required to agree with or choose between the previous assessments. The fact that another assessor made a different observation on a different day should not influence the Medical Assessor’s opinion.
In Tradieh v LM Hayter & Sons Pty Limited,[9] Stern JA said that the medical dispute between the parties was not a dispute between the assessments made by their independent medical examiners. Her Honour said:[10]
“Ultimately, as is clear from Wingfoot v Kocak and IAG v Keen, both of which arose in the context of (for this purpose) relevantly analogous legislative schemes, [the Medical Assessor] was required to make an assessment of the factual or evaluative question referred under s 319(c) of the 1998 Act, being the degree of the plaintiff’s permanent impairment as a result of the Injuries. Notwithstanding that s 321 of the 1998 Act provides for a medical dispute to be referred for assessment, the role of the medical assessor is not to adjudicate between or to resolve the competing positions of the parties. A medical assessor must plainly consider the material before him or her, and that material will likely include expert assessments of WPI relied upon by a claimant and an employer where the dispute is as to the degree of the claimant’s WPI, but no higher level of ‘engagement’ is required under the 1998 Act.”
[9] [2025] NSWSC 840.
[10] At [37].
The Medical Assessor did what was required of him and explained why he differed from Dr Mastroianni’s assessment. We note that Dr Mastroianni’s references to scarring in his report are limited to the two brief statements set out at [35] and [36] above.
The incorrect citation noted at [40] above makes Ms Roode’s sixth submission difficult to follow. Vannini is a case about the powers of an Appeal Panel rather than the obligations of a Medical Assessor. We presume from the context that “a Vannini … demonstrable error” is intended to mean that the Medical Assessor erred because he made a finding inconsistent with some of the material in the file - in this case Ms Roode’s statement. We do not agree that the Medical Assessor made an error of that kind for the reasons set out above nor that a Medical Assessor will make a demonstrable error if the history taken at the examination is different to some of the material in the file, particularly a statement prepared some months earlier.
The Medical Assessor was required to exercise his clinical judgement in determining whether Ms Roode’s scarring was assessable under the TEMSKI. He determined that the appropriate assessment was 0%.
Ms Roode did not press for a re-examination in the submissions, except in the alternative. An Appeal Panel is only permitted to re-examine a worker if it has determined that the Medical Assessor has made a demonstrable error or applied incorrect criteria. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales Davies J said:[11]
“…if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.”
[11] [2013] NSWSC 1792 at [33].
An Appeal Panel cannot re-examine to determine if there is an error or to determine if a different result would be obtained on a different day. We do not consider that the Medical Assessor applied incorrect criteria or made a demonstrable error.
For these reasons, we have determined that the MAC issued on 30 May 2025 should be confirmed.
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