Spokes v Mark Anthony Bristow Painting Services

DETERMINATION OF APPEAL PANEL
CITATION:	Spokes v Mark Anthony Bristow Painting Services [2025] NSWPICMP 689
APPELLANT:	Craig Spokes
RESPONDENT:	Mark Anthony Bristow Painting Services
APPEAL PANEL
MEMBER:	Mitchell Strachan
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	9 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal from assessment of Medical Assessor; deterioration; availability of additional relevant information; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales; extent of jurisdiction of Appeal Panel with respect to appeal; O’Callaghan v Energy World Corporation Ltd, and Skates v Hill Industries Ltd considered and applied; Held – deterioration established; MAC revoked; new MAC issued limited to extent of medical dispute initially referred.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 March 2025, Craig Spokes, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Meakin, an Approved Medical Assessor (as they were known in the former Workers Compensation Commission), who issued a Medical Assessment Certificate (MAC) on 27 August 2019.
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):
(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment, and
(b) availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant was employed by the respondent as a painter. On 29 May 2017 he fell from a scaffold structure from a height and sustained various injuries. The Application to Resolve a dispute dated 18 July 2019 describes injury to the right shoulder, left knee, right knee, left hip, left leg and lumbar spine.
By way of correspondence dated 18 April 2019 the appellant made a claim for lump sum compensation pursuant to s 66 of the 1987 Act on the respondent’s insurer. The claim was said to be with respect to 16% whole person impairment (WPI) in relation to injury to the lumbar spine, right lower extremity, left upper extremity and scarring. The claim was supported by a report of Dr Bodel dated 29 March 2019.
The respondent’s insurer responded to the claim on 13 June 2019 by issuing a notice pursuant to s 78 of the 1998 Act. The notice referred to a report of Dr Doig (who had examined the appellant at the request of the insurer) and asserted that the appellant was not entitled to lump sum compensation as the injury had not resulted in more than 10% WPI as required by s 66(1) of the 1987 Act.
On or about 18 July 2019 the appellant commenced proceedings in the former Workers Compensation Commission (WCC) seeking lump sum compensation with respect to injury on 29 May 2017 to the lumbar spine, right lower extremity, left upper extremity and scarring.
The respondent filed a Reply dated 7 August 2019.
On 12 August 2019, the matter was referred to an Approved Medical Specialist (AMS), Dr Ian Meakin in accordance with s 319 of the 1998 Act. The referral directed the AMS to assess the lumbar spine, right lower extremity, left upper extremity and scarring (TEMSKI).
The AMS issued a Medical Assessment Certificate dated 27 August 2019 which assessed the appellant with 11% WPI resulting from injury to the lumbar spine, left upper extremity (shoulder), right lower extremity and scarring (TEMSKI) for injury on 29 May 2017.
On 30 September 2019 the WCC issued a Certificate of Determination (COD) providing for the payment of lump sum compensation with respect to 11% WPI.
On 27 August 2024, the appellant sought the Personal Injury Commission exercise discretion under s 57 of the Personal Injury Commission Act 2020 to rescind the 30 September 2019 COD to allow an appeal of the MAC.
On 24 August 2025 the Commission issued a further COD rescinding the COD of
30 September 2019 and granting the appellant leave to file an appeal under s 327(3)(a) and/or (b) of the 1998 Act against the MAC of 27 August 2019.
It is this appeal, lodged on 21 March 2025, which is now before the Appeal Panel.

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 an initial preliminary review, the Appeal Panel was satisfied from the material before it that there was prima facie evidence of deterioration. Deterioration was conceded by the respondent in its submissions. However, from the material it was evident that further surgery had been recommended to the appellant. If the appellant had recently or was intending, in the near future, to undergo surgery, it would have been necessary for the Appeal Panel to consider the respondent’s submission that the appellant had not reached maximum medical improvement and whether it would be appropriate to undertake a further examination at this time.
The Appeal Panel sought further material from the appellant as to whether the further surgery was being contemplated by the appellant.
Upon receipt of the further material, the Appeal Panel determined that further surgery was not contemplated by the appellant and that the appellant should undergo a further medical examination to assess the extent of any deterioration.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a)    statement of the appellant dated 15 May 2024;
(b)    medical report of Dr Bodel dated 23 November 2023;
(c)    medical reports of Dr Abraham of various dates between 27 August 2019 and 17 July 2023;
(d)    medical reports of Dr Gupta dated 3 September 2020, 22 November 2021 and 23 November 2021;
(e)    medical reports of Dr Kup of various dates between 29 November 2021 and
8 March 2022;
(f)    medical report of Dr Sunny Randhawa dated 22 February 2022;
(g)    medical reports of Associate Professor Seex of various dates between
1 April 2020 and 28 May 2024;
(h)    medical reports of Dr Fernando of various dates between 11 April 2022 and
17 April 2023, and
(i)    various radiology and imaging reports between 7 August 2020 and
23 May 2024.
It can be noted that all of the additional material post-dates the referral to the AMS on
12 August 2019.
The appellant submits that the evidence is relevant to the further assessment of permanent impairment and was brought into existence after the AMS issued the MAC and was not available and could not reasonably have been obtained by the appellant before the MAC.
The respondent appropriately concedes that the “additional information and/or evidence supporting the deterioration in the appellant’s condition was not available to the Medical Assessor at the time of the original assessment”. The Appeal Panel does not read the respondent’s submissions as opposing the introduction of the further material relied on by the appellant.
The respondent also seeks to put before the Appeal Panel a further treatment report of Dr Seex dated 18 February 2025.
The Appeal Panel is satisfied that the further evidence could not have been obtained prior the referral to the AMS as it details the trajectory of the appellant’s condition in the time period after the AMS assessment.
Given the nature of the appeal and having found that it is necessary to re-examine the appellant to determine the extent of the deterioration, the Appeal Panel determines that the additional evidence relied on by the appellant as set out above and the report of Dr Seex of 18 February 2025 relied on by the respondent ought to be received on the appeal.

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 as well as the additional material which has been received on the appeal.

Further medical examination

Medical Assessor Drew Dixon of the Appeal Panel conducted an examination of the appellant on 21 July 2025 and reported to the Appeal Panel.

Medical Assessment Certificate

The parts of the medical certificate given by the AMS that are relevant to the appeal are set out, where relevant, in the body of this decision.
However, given the nature of the appeal, it can be noted that the AMS assessed a medical dispute with respect to the degree of permanent impairment to the lumbar spine, right lower extremity, left upper extremity and scarring (TEMSKI) and assessment permanent impairment as follows:
(a)    Lumbar spine   4% WPI
(b)    Lefter upper extremity (shoulder)            2% WPI
(c)    Right lower extremity   2% WPI
(d)    Scarring (TEMSKI)   1% WPI
Combined total   11% WPI

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:
(a)    he seeks to rely on additional documents annexed to the submissions and makes submissions as to why it should be considered by the Appeal Panel;
(b)    the referral to the AMS dated 12 July 2019 listed the lumbar spine, right lower extremity, left upper extremity and scarring;
(c)    Since the assessment by the AMS the appellant has undergone surgery to the left shoulder, right hip and the lumbar spine;
(d)    refers to what was said by Campbell JA at [94] in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales [2007] NSWCA 149 with respect to deterioration and what is required with respect to an appeal under s 327(3)(a) of the 1998 Act and that the Appeal Panel would be satisfied of an increase in impairment to the lumbar spine and left upper extremity, and
(e)    seeks that the Appeal Panel revoke the MAP, re-examine the appellant and replace the MAC with new findings.
In reply, the respondent:
(a)    appropriately concedes that there has been a deterioration in the appellant’s condition after the MAC and original COD and that the additional information and evidence supporting the deterioration was not available to the AMS at the time of the original assessment;
(b)    submits that the appellant has not reached maximum medical improvement, and
(c)    submits that any further assessment by a Medical Assessor member of the Appeal Panel ought to be done with strict compliance to the original referral referring to the decision of Skates v Hill Industries Ltd [2021] NSWCA 142 and that this would limit the re-examination to the lumbar spine, right lower extremity, left upper extremity and scarring (TEMSKI) and that the referral to the right lower extremity was for the right knee only and not the right hip.

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 appeals on the basis that his condition has deteriorated in the time since the assessment by the AMS resulting in the MAC of 27 August 2019.
In Riverina Wines v Workers Compensation Commission of New South Wales [2007] NSWCA 149 (Riverina Wines) Campbell JA described deterioration as follows:
“’Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.”
Handley JA agreed:
“As Campbell JA says (para [89]) deterioration of a person’s condition ‘is an inherently relational concept’. It requires a comparison between the worker’s condition at an earlier date and his or her condition at a later date. In this context, as Campbell JA holds, the earlier date is the date of the certificate of Dr Cummine. The later date is when the Registrar or his of her delegate came to consider (s327(4)) whether this ground of appeal ‘exists’.”
Following the 2019 examination by the AMS and issuing of the MAC, the appellant has undergone two further surgeries to his left shoulder and surgery to his lumbar spine (as well as surgery to his right hip). For the reasons set out below, the right hip is to be put to one side.
However, having regard to the available evidence from the appellant’s treatment providers and the submissions made by both parties the Appeal Panel is satisfied there is evidence of deterioration. As such, the appellant was directed to attend a re-examination with Medical Assessor Dixon who reported to the Appeal Panel.
However, before considering the findings on re-examination, it is necessary to consider the extent of the re-examination permitted by the jurisdiction of the Appeal Panel on appeal.
The appellant’s submissions do not directly address the extent of the re-examination sought although with respect to deterioration the appellant submits “there can be little doubt that here [sic] has been an increase in the level of impairment to the lumbar spine and left upper extremity”.
The respondent submits that the re-examination must be done with strict compliance with the original referral which was only with respect to the lumbar spine, right lower extremity (limited to the knee), left upper extremity (shoulder) and scarring (TEMSKI).
The respondent refers to the decision of Acting President Roche in O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1 and submitted that an appeal is not allowed in respect of all the consequences of a work injury but rather confined to the terms of
s 327(3)(a) of the 1998 Act.
For the reasons that follow, the Appeal Panel accepts the respondent’s submission in this regard.
The appeal is limited to an appeal of the medical dispute that was referred to, in this case, the Approved Medical Specialist. This is consistent with what was said by the Acting President in O’Callaghan at [90]-[92]:
“Contrary to Mr McManamey’s submissions, s 327(3)(a) does not allow an appeal in respect of all of the consequences of the work injury. It is confined to its terms and has been the subject of binding judicial scrutiny in Aircons and Riverina Wines. Those decisions make Mr McManamey’s submissions untenable.
The interpretation urged by Mr McManamey is not consistent with s 263(1). That provision provides that all claims for permanent impairment compensation in respect of an injury must, as far as practicable, be made at the same time. That is consistent with the intention manifested in s 66(1A) of the 1987 Act, namely, that workers are restricted to one claim for whole person impairment compensation in respect of the permanent impairment that results from “an injury”. The words “as far as practicable” make no difference to the clear meaning of s 66(1A) and still have work to do in cases involving claims for permanent impairment compensation where a worker has received a primary psychological injury and a physical injury in the same incident (s 65A of the 1987 Act; Tokich v Tokich Holdings Pty Ltd [2015] NSWWCCPD 72 (Tokich)).
It follows that I do not accept that a proper reading of s 327(3)(a) means that there is an appeal so long as there has been a deterioration in the worker’s overall medical condition. That approach is contrary to the binding authorities applied by the Arbitrator, in particular Riverina Wines, and contrary to the language of the section…”
The scope of the medical appeal referred for assessment was further considered by Lemming JA in Skates at [46]-[48]:
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a “medical dispute” because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.
Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences “Referral of medical dispute” and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate.
The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the “referral” to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.”

In accordance with Skates and O’Callaghan it is the dispute which was referred to the AMS which limits the scope of the appeal to the Appeal Panel.
The letter of claim addressed to the respondent’s insurer dated 18 April 2019 makes a claim with respect to 16% WPI “in relation to the worker’s lumbar spine, right lower extremity, left upper extremity and scarring” and is based on the report of Dr Bodel dated 29 March 2019.
In the 29 March 2019 report, Dr Bodel provides an assessment of permanent impairment with respect to the cervical spine (0%), lumbar spine (7%), left upper extremity being the shoulder only (6%), right lower extremity being the knee only (2%) and scarring (1%).
Dr Bodel noted there was no separate rateable impairment in the pelvis.
On 13 June 2019 the respondent’s insurer issued a notice pursuant to s 78 of the 1998 Act disputing liability for lump sum compensation on the basis the appellant’s degree WPI with respect to the cervical spine, lumbar spine, left shoulder, right knee and scarring was less than 10%.
It was at this point that the medical dispute between the parties, which was later referred to the AMS crystalised as a dispute with respect to the degree of permanent impairment for injury to the lumbar spine, left shoulder, right knee and scarring. It is evident from the Application to Resolve a Dispute filled by the appellant that a dispute with respect to the cervical spine was not pressed as it was not claimed in the pleadings. No claim was made with respect to the pelvis and it did not form part of the medical dispute referred to the AMS for assessment.
As this was the limit of the dispute referred to the AMS, applying the principles in O’Callaghan the appeal before the Appeal Panel with respect to deterioration must also be limited to deterioration with respect to the lumbar spine, left shoulder, right knee and scarring.
The Appeal Panel has considered whether impairment of the sacroiliac joint falls within the prior dispute with respect to the lumbar spine. The sacroiliac joint is part of the pelvis and assessed under table 4.3 (page 30) of the Guidelines and in chapter 15 of the AMA5 under its own subsection at 15.14 (page 427). The diagram on page 427 of the AMA5 demonstrates that the spinal column is made up of the cervical spine, thoracic spine, lumbar spine, sacrum and coccyx. It follows that for the purpose of the assessment of permanent impairment that the pelvis is a separate body system to the lumbar spine. The dispute in 2019 with respect to impairment of the lumbar spine cannot be said to have encompassed a dispute with respect to the sacroiliac joint.
Further, it is evident from the correspondence between the parties and the terms of the referral that the left and right hips did not form part of the medical dispute which was referred to the medical assessor.
As such, the Appeal Panel is unable to consider impairment at the sacroiliac joint/pelvis or the left and right hips when considering any further impairment following deterioration and on the subsequent re-examination.
Medical Assessor Dixon reported to the panel as follows:
“This 37 year old claimant who had previously been assessed for injuries at work, has applied for deterioration in the body parts as referred namely:
(a)    Lumbar spine;
(b)    Right lower extremity (right knee);
(c)    Left upper extremity (left shoulder);
(d)    Scarring (TEMSKI).
As assessed by Ian Meakin when he examined the claimant back on 20 August 2019.
Occupational history
At the time of the subject injury on 29 May 2017 he was working with Mark Bristow Painting doing mainly residential but some commercial work at times. He worked full time.
Accident Details
He was working on a building site in Cremorne in Sydney on 29 May 2017 when he had to walk onto a wooden plank that extended from one scaffolding edge of the residential building to another and while painting, he slipped and fell some 4 metres, landing heavily on the ground. He apparently did not hit scaffolding on the way down.
He sustained a laceration of his anterior right knee and a laceration of the right pre tibial region and had a large haematoma in that area. He injured the lower back and was unable to continue with work.
He was taken to a medical centre in Chatswood where his wounds were dressed and he subsequently had a CT scan of his lower back which showed lower lumbar spondylosis and a CT guided epidural cortisone injection was suggested for impingement of the L5 nerve roots in the lateral recesses.
He subsequently had L4/5 epidural injection on 24 April 2019 and he was advised by a sports injury physician, Dr David Abraham, to subsequently have left sided sacroiliac cortisone injection performed.
An MRI scan of his lumbar spine arranged by a sports injury physician on 6 February 2019 had shown annular tear at L3/4 and L4/5 and at L5/S1 with some disc bulge in close proximity to the right S1 nerve root.
He subsequently had three PRP injections for his right sacroiliac joint. He had an L4/5 transforaminal cortisone injection on 7 February 2023 by a pain specialist with good effect.
He subsequently had review by a neurosurgeon, Associate Professor Kevin Seex, who felt that some of the back pain was arising from the left sacroiliac joint and he was offered fusion of that joint which was then performed and had been of some benefit. He had the left sacroiliac joint fusion on 20 November 2020 followed by PRP injections on 10 august 2022 and on 5 October 2021.
He had subsequent decompression laminectomy at L3/4 and L4/5 with microdiscectomy.
He had increasing pain and stiffness in his left shoulder where an ultrasound on
6 March 2019 had shown supraspinatus tendonitis and subacromial bursitis and plain x-rays of the left shoulder on 19 March 2019 showed no definite bone or joint abnormality and the AC joint appeared intact.
He had been reviewed by a shoulder specialist, Dr Gupta, who noted a repeat MRI arthrogram of the shoulder had shown an anterior labral tear which was thought to be most likely to be contributing to his ongoing pain and instability of the left shoulder, where he had a subacromial cortisone injection about sustained benefit, and physiotherapy treatment.
MRI subsequently of the sacroiliac joints on 14 March 2023 showed no abnormality on the right and showed there was post fusion of the left sacroiliac joint with multiple metallic anchors.
MRI of the lumbar spine on 14 March 2023 showed following left hemi laminectomy and presumed L3/4 microdiscectomy with residual disc bulge, disc osteophyte complex without any mass effect on the anterior thecal sac and at L4/5 a left hemi laminectomy with a mild broad based disc osteophyte complex which abutted both the descending left and right L5 nerve roots in their respective lateral recesses and at L5/S1 a mild broad based osteophyte complex which did not cause mass effect on the thecal sac, which abuts but did not cause mass effect on the thecal sac.
The claimant had arthroscopic surgery with decompression and repair of the rotator cuff in December 2021 by Dr Manish Gupta. This was revised by Dr Kevin Kuo in 2021. Because of ongoing pain in his left hip, Dr Sonny Randhawa, an orthopaedic surgeon, did arthroscopy of the left hip with minimal benefit.
He eventually returned to work as a self-employed painter where he did three years of insurance work, mainly ceilings, but still had considerable pain in his lower back, right knee and left shoulder. He is no longer working now.
He was previously assessed at 11% WPI by Ian Meakin for the Workers Compensation Commission but the claimant indicated there was considerable deterioration in his lower back, right knee and left shoulder.
He developed post-traumatic stress disorder and required counselling and inpatient care at Kellyville Private Hospital and is to undertake three weeks as an inpatient in St John of God Hospital at Richmond shortly. Anti-depressants and calmatives have been prescribed.
He has had procedures to both hips where he has had psoas releases bilaterally. He has had ongoing pain management which has included radiofrequency blocks to the lower lumbar segment and CT guided perineural cortisone injections including bilaterally at the L5 nerve root for sciatic pain which has extended to buttock sciatic pain.
He has been back to see Associate Professor Kevin Seex, his spinal surgeon, who has proposed L5/S1 fusion but as the claimant is due to have inpatient psychiatric care and has a one year daughter, he wishes to defer such treatment for one year and may or may not have it in the foreseeable future.
He has ongoing psychological counselling and ongoing pain management.
He has had nerve conduction studies and EMGs performed on 11 December 2024 which showed some mild chronic radiculopathy involving the L4 to S1 levels, right more than left, without active ongoing denervation and no evidence of fasciculations in the lower limbs and no evidence of peripheral neuropathy.
He had an insurance assessment for his back by neurosurgeon Dr John Fuller who, in his report to GIO Newcastle Compensation on 29 April 2025, noted that initially the claimant had sciatic radiation into the thighs and both calves but over a period of two years, there has been some improvement in the sciatica. He noted the claimant to have central lower back pain exacerbated by sitting and walking and described bilateral leg pain affecting the posterior thighs and at times the calves. He found decreased sensation in the claimant’s sole of the left foot and non-verifiable sacral pain and lower limb pain. He felt there was no objective indication for L5/S1 ALIF at that stage and recommended ongoing pain management and hydrotherapy with physiotherapy supervision.
It was Dr David Abraham, the sports and exercise physician, that recommenced the PRP injections to his right sacroiliac joint on 2 September 2022 and noted, in his letter of 30 June 2025 to Dr Michelle Crockett at Riverstone Family Medical Practice, that the claimant had a further left L5/S1 facet cortisone injection, organised by Professor Seex with mild improvement in his pain and also had a nine week inpatient recovery period at St John of God for depression and anxiety. He noted that the new MRI of his lumbar spine had shown L5/S1 disc degeneration with mild foraminal narrowing and ongoing right SI joint pain with tenderness of the joint. He felt he would benefit from further platelet rich plasma injections to that joint.
Current Symptoms
He has pain in the lower back with lumbar stiffness, residual left sacroiliac pain and hip pain and pain and stiffness of his left shoulder.
He reported numbness in the sole of his left foot. He was conscious of his surgical scars at both hips and laminectomy scar and arthroscopic portals in the left shoulder.
His back pain/pelvic pain disturbs his sleep and he has difficulty sleeping on his left shoulder, doing overhead tasks at home and heavy lifting and carrying due to left shoulder and back pain. He has difficulty kneeling.
Treatment
He was reliant on Endone and Palexia for pain relief and Nurofen and Celebrex as anti-inflammatories and Endep as an anti-depressant for night sedation. He takes Diazepam as an anxiolytic and Gabapentin for neuropathic pain and Norflex for spasm. He had a trial of CBD oil. He takes Quetiapine as a calmative and he takes Turmeric.
He also took fish oil and Magnesium supplements and Glucosamine and did the trial of CBD oil which he found was useful.
He had ceased physiotherapy and hydrotherapy and was doing gentle home based exercises. He enjoyed some swimming as aqua therapy.
He sees his local doctor regularly and has psychological counselling as required. He sees Professor Seex as referred and his sports injury physician as necessary. He is due to have a 21 patient psychiatric admission to St John of God Hospital in the near future.
Social History
He is married and has a one year old daughter. His wife works part time. They live in a granny flat on their in-law’s property.
He had difficulty doing heavy household cleaning chores and yard work and difficulty with any heavy lifting of groceries or laundry and any tasks that required for recurrent bending and stooping.
Reports of Others
With regard to his left shoulder, Dr Manish Gupta did do an arthroscopy review on
22 November 2021 which showed no gross instability.
A subsequent arthroscopic review of the left shoulder on 8 March 2022 at Somerset Private Hospital by Dr Warren Kuo did find instability and impingement with capsular laxity and a SLAP (labral) tear with moderate biceps tendonitis and this was tenodesed through a separate anterior groove incision and anchors inserted and acromioplasty was performed as well as anterior capsular plication. This was followed by physiotherapy, gym exercises and hydrotherapy.
On review on 21 July 2019 he reported persisting pain and stiffness of his left shoulder with persisting pain in his lower back with lumbar stiffness and residual pain in his right lower extremity with some clunking at the right hip, where an MRI arthrogram on
22 October 2021 had suggested chondral wear of the anterior hip but no labral tear.
Examination
On examination on 21 July 2025 he presented in a straight forward fashion. He is a well-built man who showed me photographs on his IPad of the scaffolding from which he fell 4 metres to the ground.
There was stiffness on elevation of his left shoulder with active abduction 110 degrees, forward flexion 120 degrees, extension 40 degrees, adduction 40 degrees, external rotation 70 degrees and internal rotation 50 degrees. Shoulder girdle power on the left was grade 4 out of 5.
There were five arthroscopic portals reasonably healed. There was winging of the left scapula on resisted protraction.
He had a full range of motion of his right shoulder with a click which appeared to be arising from the AC joint. Shoulder girdle power on the right was grade 5 out of five.
There was 1cm wasting of his left arm and 1cm of wasting his left forearm. His thenar power, grip strength and intrinsic power in both hands was grade 5 out of 5.
There was stiffness of his lumbar segment with flexion decreased by one third with slow and jerky recovery with erector spinae muscle spasm with pain on back extension was decreased by one half. Lateral flexion was decreased by one third bilaterally. There was tenderness at the L5 level in the mid line and a 4cm hypertrophic tender laminectomy scar.
His straight leg raise was 60 degrees bilaterally. His sciatic nerve root stretch tests were equivocal. There was no wasting of either lower extremity. His sciatic nerve root stretch test on the left was equivocal and negative on the right. His knee jerks were present and his medial hamstring jerks were symmetrical although mildly reduced and his ankle jerks were present with reinforcement. There was sensory alteration in the sole of his left foot and very slight weakness of dorsi flexion of his left great toe.
Stress of both sacroiliac joints was positive today.
There was stiffness of both hips where flexion was 100 degrees, active abduction 30 degrees, adduction 20 degrees, external rotation 30 degrees and internal rotation 20 degrees and there were no flexion contractions and his Trendelenberg tests were negative.
The range of motion of both knees was 0 degrees through to 120 degrees. There was some retropatellar rub. Both knees were stable. There was no joint line tenderness.
His normal gait was slow and associated with a limp on the left and he had difficulty with toe or heel walking due to unsteadiness and his squat test was associated with low back pain.
There was a 4cm scar in his left buttock for his sacroiliac fusion and there was a traumatic scar of 3cm in the left pre-tibial region. He had injury to his right knee but complained of anterior knee pain today bilaterally and had retropatellar rub in both knees, which were stable.
He had significant scarring where the laminectomy scar was hypertrophic and remained tender with some adherence and there was a pigmented scar on his left buttock where the sacroiliac screws were inserted which is readily localised by the claimant and remains tender. The arthroscopic portals at his left shoulder had healed well.
He has developed significant PTSD requiring counselling and inpatient care.
Radiological Investigations
His investigations include an MRI of the lumbosacral spine and sacroiliac joints on
6 February 2019 which showed an annular tear at L3/4 and a disc bulge at L4/5 with a small annular tear and an annular tear at L5/S1 with right sided disc bulge close to the right S1 nerve root and no impinging of the L5 nerve roots.
MRI of the sacroiliac joints showed minor marrow oedema involving the proximal left sacroiliac joint, consistent with post-traumatic sacroiliitis. The right sacroiliac joint was normal. The iliopsoas muscle appeared normal.
MRI of the lumbosacral spine on 17 November 2021 showed re-modelling of annular fissures and protrusions from L3 to S1 with early left L4 and L5 subarticular root impingement and early right S1 contact with foraminal impingement seen and the facet joints were intact.
CT of the lumbar spine and pelvis on 19 February 2025 showed multilevel spondylosis with moderate L4/5 spinal canal stenosis and moderate foraminal narrowing and moderate bilateral foraminal stenosis with potential impingement of the L5/S1 nerves and mild multilevel facet joint arthrosis.
CT of the pelvis showed 3 screws bridging the left sacroiliac joint which was arthrodesed and mild sacroiliac joint degenerative change was noted without sacroiliitis.
MRI of the lumbar spine on 11 June 2025 showed there had been a left L3/4 hemi-laminotomy with microdiscectomy and similarly at L4/5. There was disc degeneration at L5/S1 with a shallow disc bulge less prominent in the right subarticular zone without significant impingement on the transiting S1 nerves. There was mild foraminal narrowing with disc osteophyte complexes abutting the L5 nerves without displacement or compression. There was multilevel facet arthritis.
Summary
In summary this claimant fell 4 metres to 5 metres from scaffolding and sustained injuries to his left shoulder, lower back with lumbar stiffness with radicular complaint extending into the buttocks and transiently into the thighs and calves and probable injury to the left sacroiliac joint, together with a traumatic scar to his right pre-tibial region.
WPI
His whole person impairment is as follows.
That for the post traumatic stiffness of his left shoulder is from Pie Chart 16-40, 16-43 and 16-46, Pages 476 to 479, 10% upper extremity impairment which equates to 6% whole person impairment.
That for the lumbar spine where he has had two level laminectomy and discectomy is from Table 15-3, Page 384, AMA V, DRE III with impaction on ADLs including foot care, is 13% whole person impairment. That for the second level operated on is from Table 4.2, Page 29 of the WorkCover Guidelines, 1% whole person impairment, giving a total of 14% WPI for the lumbar spine.
That for the retropatellar the rub of his right knee is from Table 17-31, Page 644, AMA V, 2% whole person impairment.
That for the surgical scarring as described which remains tender and painful if bumped, impacting on his ADLs with pigmentary and hypertrophic change and the claimant remains conscious of the scarring which he can readily localise which would be visible when wearing a swimming costume, is from TEMSKI Table 14.1, Page 74 of the WorkCover Guidelines, 2% WPI.
This gives a total from the Combined Values Chart of 23% WPI.”
The Appeal Panel, having reviewed the assessment and findings on examination of
Medical Assessor Dixon is satisfied that it appropriately determines the medical dispute between the parties with respect to the degree of permanent impairment to the lumbar spine, right knee, left shoulder and scarring as a result of injury on 29 May 2017 being the extent of the dispute (subject to appeal) as crystalised in the documents exchanged between the parties and reflected in the referral.

In doing so, it provides relevant WPI assessments in relation to the appellant’s lumbar spine at 14% WPI, left shoulder at 6%, right knee at 2% and scarring at 2%. In reaching the assessment, Medical Assessor Dixon has used his clinical judgment and explained the assessment with reference to the Guides and Guidelines.
In Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191, Ward P considered at [88]:
“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 Medical Assessor Glozier’s assessment in preference to the assessment of, say, the Medical Assessor. In my opinion, it was sufficient for the Appeal Panel to adopt Medical Assessor Glozier’s assessment (for the reasons contained therein).”
The Appeal Panel considers the findings and assessments of Medical Assessor Dixon to be reliable, and the Appeal Panel adopts those findings and assessments.
The WPI assessments of the appellant found by Medical Assessor Dixon and adopted by the Appeal Panel are of course different, on account of the deterioration found, to the assessments of Approved Medical Specialist Meakin.
For these reasons, the Appeal Panel has determined that the MAC issued on
27 August 2019 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:	3616/19
Applicant:	Craig Spokes
Respondent:	Mark Anthony Bristow Painting Services

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 Meakin 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)
Left upper extremity (shoulder)	Pie Chart 16-40, 16-43 and 16-46, Pages 476 to 479	6%	Nil	6%
Lumbar spine	Table 4.2, Page 29	Table 15-3, Page 384	14%	Nil	14%
Right lower extremity (knee)	Table 17-31, Page 644	2%	Nil	2%
Scarring (TEMSKI)	Table 14.1, Page 74	2%	2%
Total % WPI (the Combined Table values of all sub-totals)					23%

[2025] NSWPICMP 689

9 September 2025