DETERMINATION OF APPEAL PANEL	
	
CITATION:	Buildsafe Sydney Pty Ltd v Stanford [2024] NSWPICMP 134	
		
APPELLANT:	Buildsafe Sydney Pty Limited 	
		
RESPONDENT:	Scott Stanford	
		
Appeal Panel		
		
MEMBER:	Carolyn Rimmer	
		
MEDICAL ASSESSOR:	David Crocker	
		
MEDICAL ASSESSOR:	Drew Dixon	
		
DATE OF DECISION:	13 March 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Appeal in respect of assessment of right upper extremity (shoulder), scarring (TEMSKI) and assessment of chronic pain in right ankle and foot; Panel found no error in assessment of right shoulder or scarring; Panel accepted that the Medical Assessor erred in assessing impairment based on loss of movement in right ankle and foot after finding that the worker did not have chronic regional pain syndrome 1 in circumstances where the parties agreed that there be an award for the respondent in respect of the allegation of injury to the right foot; Held – Medical Assessment Certificate revoked. 

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 23 October 2023 Buildsafe Sydney Pty Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 27 September 2023.
2.	The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act): 
•	the assessment was made on the basis of incorrect criteria, and
•	the MAC contains a demonstrable error.
3.	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. 
4.	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.
5.	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
6.	The respondent, Mr Stanford (Mr Stanford) lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 24 May 2023 in which he claimed 38% whole person impairment (WPI) of the right upper extremity, TEMSKI/scarring, right lower extremity and chronic pain as a result of injuries sustained on 20 October 2017 in his employment with the appellant. 
7.	In a Certificate of Determination – Consent Orders dated 8 August 2023 Member Paul Sweeney made the following orders:
“1. 	Award for the respondent in respect of the allegation of trigeminal neuralgia and injury to the right foot and ankle.
2. 	Remit the matter to the President for referral to a medical assessor to certify the degree of whole person impairment as a result of injury to right lower extremity (knee), the right upper extremity (shoulder), TEMSKI scarring and consequential chronic pain of right ankle and foot on 20 October 2017 and 12 April 2018.
3. 	Medical assessor to have access to the Application, the Reply dated 23 June 2023 and the Reply dated 19 July 2023 and the documents attached to each.”
8.	The matter was referred to the Medical Assessor, Dr Tommasino Mastroianni, on 14 August 2023 for assessment of WPI of the right lower extremity (knee), the right upper extremity (shoulder), TEMSKI scarring and consequential chronic pain of right ankle with the date of injury being 20 October 2017 and 12 April 2018. 
9.	The Medical Assessor examined Mr Stanford on 20 September 2023 and assessed 21% WPI of the the right lower extremity (knee and consequential chronic pain right ankle), 13% WPI of the right upper extremity (shoulder) and 2% scarring (TEMSKI). The combined total was 32% WPI as a result of the injuries on 20 October 2017 and 12 April 2018. 
10.	In the Decision of Delegate Cindy Yang dated 9 January 2024 the following orders were made:
“1.	By and with the consent of the parties, the terms of the referral are amended as follows:-
Date of Injury: 20 October 2017 and 12 April 2018
Body part/s referred: right lower extremity (knee), the right upper extremity (shoulder), TEMSKI scarring and consequential chronic pain of right foot and ankle
Method of assessment: Whole Person Impairment
2.	The matter to proceed to a Medical Appeal Panel.”
PRELIMINARY REVIEW
11.	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.
12.	The appellant submitted that, if required, Mr Stanford should be re-examined by a Medical Assessor who is a member of the Appeal Panel. 
13.	As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Mr Stanford to undergo a further medical examination because there was sufficient evidence on which to make a determination.
14.	The Appeal Panel issued a Direction on 19 February 2024 noting that the appellant submits that no assessment should have been made in respect of chronic pain. The Appeal Panel referred to the decision of Garling J in Sakr v Merrylands Christian Preschool Association Inc [2022] NSWSC 768 (Sakr) and considered that the parties should have an opportunity to make submissions concerning the applicability of that decision. Both parties filed further submissions, the appellant filed further submissions dated 26 February 2024 and the respondent filed further submissions dated 4 March 2024.
EVIDENCE
Documentary evidence
15.	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. 
Medical Assessment Certificate
16.	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 
17.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
18.	The appellant’s submissions included the following: 
(a)	ground 1 – right upper extremity (shoulder). On examination the Medical Assessor advised inspection of the shoulders reveals wasting of the right shoulder which was tender whilst there was no tenderness in the left shoulder. The Medical Assessor commented “Right shoulder movements are very restricted when measured with a goniometer. Left shoulder movements were normal”. The Medical Assessor did not provide a table of the goniometer measurements he found on examination.
(b)	In providing his assessment, the Medical Assessor states: “I have assessed 21% right upper extremity impairment due to restricted shoulder movements referring to the AMA-5 Guides, pages 476 to 479, Figures 16-40 to 16-46”. He acknowledges he did not attach the work sheet or actual calculations. The Medical Assessor refers to a table in Section 5 of the MAC, however there is no such table.
(c)	The appellant is therefore unable to determine the basis on which the assessment of 21% of the right upper extremity impairment due to restricted shoulder movements was obtained.
(d)	There is a statutory obligation for the Medical Assessor to provide reasons to explain the actual path of his reasoning in sufficient detail to enable the Court or an Appeal Panel to determine whether there is an error in its findings: Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52. The Medical Assessor’s failure to provide an outline of the restrictions of the right shoulder, which he says he measured with a goniometer, is a demonstrable error. As a result of this omission the appellant is unable to determine whether the assessment constitutes an application of incorrect criteria.
(e)	TEMSKI (scarring): paragraph 14.8 of the Guidelines provides the TEMSKI is to be used in accordance with the principle of “best fit”. If the skin disorder did not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why he chose the category chosen over other categories.
(f)	Table 14.1 states the assessor should assess the impairment of the whole skin against each criteria and then determine which impairment category best fits (or describes) the impairment. Reference is made to paragraph 14.8 for application of the table.
(g)	The Medical Assessor has not appropriately assessed the whole skin against each criteria separately and he has made demonstrable errors in his assessment of the categories of shape, texture and colour and location as 2% WPI.
(h)	In relation to the criteria of shape, texture and colour, the Medical Assessor did not provide sufficient description of the colour contrast as required by the TEMSKI table to differentiate between 1% WPI and 2% WPI. This shows application of incorrect criteria or demonstrable error on the part of the Medical Assessor.
(i)	In relation to the criteria of location, the Medical Assessor applied incorrect criteria. Table 14.1 refers to the anatomic location of the scar being either visible or not visible with usual clothing. The Medical Assessor in referring to the scars being visible with summer wear and swimwear has applied incorrect criteria. The scarring on the back and left iliac crest (flank) is not visible with usual clothing and the Medical Assessor has made an error in so finding.
(j)	With respect to the criteria of contour, the Medical Assessor stated contour defect is visible and therefore 2% WPI was the best fit.
(k)	 With respect to the category of Activities of Daily Living (ADL)/treatment, there was no limitation on ADLs or and no treatment is required. The category of best fit is 0% WPI.
(l)	In relation to the criteria of adherence, the appellant takes no issue with the Medical Assessor’s determination of best fit.
(m)	Overall, the Medical Assessor fell into error in assessing the best fit for Mr Stanford’s scarring was 2% WPI. As the skin disorder did not meet all of the criteria within the impairment category for 2%, paragraph 14.8 requires the Medical Assessor to provide detailed reasons as to why he chose the criteria for 2% WPI over the criteria for 1% WPI. The Medical Assessor did not do so and this is a demonstrable error.
(n)	Consequential chronic pain of the right ankle and right foot: The Medical Assessor found the respondent’s right ankle and hind foot movements were restricted as described in the table provided on page 5 of the MAC. The Medical Assessor then provided his findings on examination of the right big toe. The Medical Assessor stated the respondent continues to experience symptoms consistent with Chronic Regional Pain Syndrome 1 (CRPS I), however his clinical findings did not satisfy the definition of CRPS I, “with the exception of restricted movements in the big toe and ankle/hind foot”.
(o)	The provisions of Chapter 17 of the Guidelines apply to assessments of impairment arising from chronic pain which the Medical Assessor was required to assess. For CRPS I to be present for the purposes of assessment, the Guidelines require: (i) the diagnosis is to be confirmed by criteria in Table 17.1; (ii) the diagnosis has been present for at least one year; (iii) the diagnosis has been verified by more than one examining physician; (iv) other possible diagnoses have been excluded; (v) CRPS I is to be assessed applying the diagnostic criteria for complex regional pain syndrome in Table 17.1.
(p)	Table 17.1 is used to determine if complex regional pain syndrome (CRPS) is a rateable diagnosis. The Guidelines specifically state, “Once a diagnosis is established, assess impairment as in AMA-5”. This means if the diagnosis of CRPS is not made according to the criteria in Table 17.1 there can be no assessment of impairment.
(q)	The Guidelines provide the diagnosis of CRPS I may be made if the criteria in each of the Sections 1, 2, 3 and 4 in Table 17.1 are satisfied. It is quite clear from the MAC the Medical Assessor did not find the symptoms and signs required to satisfy a diagnosis of CRPS 1 as specified in Table 17.1. It is only if the diagnostic criteria in Table 17.1 are satisfied that a Medical Assessor can move to assess the impairment resulting from the diagnosis of CRPS as specified under Table 17.1.
(r)	Because the diagnostic criteria in Table 17.1 were not satisfied it was not open to the Medical Assessor to provide an assessment of the impairment resulting from loss of motion of the big toe and ankle/hind foot.
(s)	Consequently, the Medical Assessor’s assessment of impairment based upon the restricted movements in the respondent’s right big toe and ankle/hind foot was made by application of incorrect criteria and constitutes a demonstrable error in the MAC.
(t)	The MAC should be revoked because of the numerous instances of application of incorrect criteria and demonstrable errors referred to above.
19.	The appellant’s submissions dated 26 February 2024 included the following:
(a)	in Sakr the worker sustained an injury to the left side of her forehead and right forearm. The worker relied upon medical evidence assessing CRPS of the right upper limb triggered by the index event. The ARD described the injury as “soft tissue injury to the right upper limb resulting in CRPS”.
(b)	The matter was referred to a Medical Assessor with the matter for assessment noted as “Left supraorbital traumatic neuropathy, Complex Regional Pain Syndrome.” The Approved Medical Specialist (AMS) assessed the whole right upper extremity and opined the worker did not satisfy the objective diagnostic criteria for CRPS listed in Table 17.1 of the Guidelines. The AMS assessed impairment based upon a limitation of motion to all joints of the right upper extremity. The Appeal Panel accepted there was a demonstrable error by assessing loss of movement of every joint in the right upper extremity in the absence of a diagnosis of CRPS.
(c)	Garling J referred to the Court of Appeal decision in Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) where the AMS assessed impairment of the left shoulder, elbow, thumb, index, middle and little fingers where the referral was only for the “joint ring finger”. In Skates Basten JA observed the jurisdiction of the Commission was limited by reference to the claim for compensation submitted by the claimant, which was determined by the identification and description of the injury in the correspondence between the parties, the ARD and the medical reports enclosed with it. 
(d)	Garling J noted that CRPS is a complex pain syndrome which develops after a traumatic injury and in itself is not an injury. His Honour stated the diagnosis was not the central issue in dispute, rather the fundamental dispute between the parties was the degree of permanent impairment suffered by the worker as a result of the soft tissue injury to the right upper limb. At [49] Garling J held the determination of the worker’s claim did not ultimately depend on a diagnosis of CRPS, and it was therefore open for the AMS to assess the permanent impairment of the worker’s right upper limb despite the finding that the diagnostic criteria for CRPS had not been met.
(e)	In the present matter Mr Stanford claimed an injury to his right knee on two occasions in the course of his employment, and a consequential condition to the right knee [sic] and shoulder. It was further claimed as a result the respondent sustained complex regional pain syndrome.
(f)	The medical evidence of Dr Gehr provided an assessment of 38% WPI of the right knee and ankle, right shoulder, scarring and trigeminal dysaesthesia. Liability for the claimed injuries of trigeminal neuralgia and right foot and ankle was disputed by the appellant.
(g)	The parties agreed to resolve the issues in dispute by referral of consequential condition in the right foot and ankle from chronic pain to the Medical Assessor. It was agreed by the parties there be an award in the respondent’s favour in respect of the claimed specific injury to the right foot and ankle.
(h)	Therefore, there was a demonstrable error by the Medical Assessor in assessing impairment of the right foot and ankle in circumstances where the parties had specifically agreed the only assessable condition was “chronic pain as a result of a consequential condition in the right foot and ankle” [sic]. The appellant submits on this basis the present claim is distinguishable from Sakr.
(i)	Further, based upon the decision in Skates it was not open to the Medical Assessor to assess impairment on the basis of restriction of movement of the big toe when there is no evidence in any of the material submitted to the Medical Assessor there was any injury to or consequential condition in the right big toe which resulted from the subject injuries sustained in the course of the respondent’s employment.
(j)	The decision of Sakr is distinguishable on the facts and has no applicability in this matter.
20.	Mr Stanford’s submissions included the following:
(a)	ground 1 – shoulder movements goniometer. Although the Medical Assessor did not set out the goniometer measurements, he did not err in the Wingfoot sense of not exposing his path of reasoning. Wingfoot is concerned with the reasoning process, not with the setting out of the material upon which that reasoning process was undertaken. 
(b)	The Medical Assessor found a 13% WPI in respect of Mr Stanford’s right upper extremity because he found Mr Stanford a credible medical witness and on his examination, including consistency on repeated testing using a goniometer, disclosed a 21% right upper extremity impairment due to restricted shoulder movements. 
(c)	Further, the Medical Assessor is to exercise their own clinical experience and judgement in forming the views referred for determination. The Medical Assessor has done this. There is no error failing to disclose his reasoning.
(d)	At its highest, there have been a failure to set out the goniometer readings. This is not a material error, if it be an error at all. There is no reason the appellant could not request the findings, particularly as there is a suggestion by the Medical Assessor that he intended to include the findings in a table in Section 5 of his report, in a similar manner to the way in which he set out the right ankle and hind foot movement restrictions in a table. If so, these readings would be readily available from the Medical Assessor.
(e)	Further at 4.4, the Medical Assessor made it clear that Mr Stanford’s right shoulder movements were very restricted "when measured with a goniometer". The shoulder was wasted. At 7.9, the Medical Assessor indicated that those goniometer readings translated to a 21% impairment due to the restriction of the shoulder movements.
(f)	Further, and importantly, the Medical Assessor notes when discussing the medical evidence supplied by the parties that he found "a similar impairment for the right upper extremity”. Accordingly, the Medical Assessor is adopting the findings of Dr Gehr as being similar to those which he found and the factual data concerning the loss of range of movement can be gleaned from Dr Gehr reports of 4 June 2021 and 14 July 2022.
(g)	There is no material error.
(h)	Ground 2 – scarring – as noted, the guidelines require TEMSKI to be used in accordance with the principle of "best fit".
(i)	The appellant's complaint concerning shape, texture and colour does not particularize what it is that the Medical Assessor found that would compel him, using his clinical judgement, to determine that scarring ought to be assessed at 1%. The question of assessment falls within the Medical Assessor's clinical judgement and he clearly considered that the colour contrast, was sufficient to warrant the 2% finding.
(j)	The appellant's criticism conveying usual clothing is with respect adopting an incorrect definition of "usual clothing". Summer wear and swim wear are "usual clothing". Summer wear is worn throughout summer, and swim wear is worn, as usual clothing, whenever one goes for a swim. There is no error in the Medical Assessor finding that the scars are visible with usual clothing.
(k)	The table, as noted uses a "best fit” model. Not every scarring will fit within every category within each percentage point on the table. While the appellant argues that in respect of shape, texture and colour and location arguably a lower ranking was called for, the point about the table being a "best fit" approach is highlighted by their concession that in respect of "adherence" that the appellant takes no issue. The difficulty is in respect of adherence is that, the Medical Assessor found "some adherence" and accordingly on that basis he ought to have assessed the Mr Stanford in the 3% to 4% category. The 2% category requires there to be "no adherence".
(l)	Accordingly, Mr Stanford has been arguably under assessed by reference to the Medical Assessor choosing a category 2, which requires "no adherence" in circumstances where he found there to be "some adherence."
(m)	The Medical Assessor has clearly weighed these matters and formed a "best fit” view that 2% was appropriate. The appellant has not established that the Medical Assessor, using his clinical judgement, was wrong to do so.
(n)	Ground 3 – chronic pain –  the Medical Assessor noted that Mr Stanford’s treating doctors Dr Kuo and the pain specialist by mid-2019 were diagnosing the claimant with CRPS and treated Mr Stanford with medications and a spinal cord stimulator (initially on a trial basis and then on a permanent basis). 
(o)	The Medical Assessor noted that Mr Stanford’s complaints were consistent with him continuing to experience CRPS, even though the Medical Assessor did not find it clinically on the day of his assessment. The Medical Assessor again notes that Mr Stanford has symptoms of CRPS and also notes that Dr Gehr diagnosed Mr Stanford as having CRPS.
(p)	Mr Stanford met all the criteria in Table 17 of the Guidelines except that at the time of assessment the Medical Assessor did not find one sign in each of the four categories, sensory, vasso motor, pseudo-motor/edema, motor/topic [sic]. The only sign within the table found on clinical examination was the restricted movements in the big toe and ankle/hind foot.
(q)	This is, however, in the context that the CRPS was being treated with a spinal cord stimulator, which was in situ and in the context that the diagnosis had been made over a prolonged period of time (since at least 2019) and had been found by a number of specialist assessors. Further, Mr Stanford provided a history of symptoms consistent with ongoing CRPS.
(r)	In the circumstances, it was open to the Medical Assessor to form the view that, notwithstanding the absence of these signs on the day of assessment, Mr Stanford did indeed suffer CRPS and therefore assessed Mr Stanford as so suffering.
(s)	In other words, the condition was still present, but, symptomatically controlled, most probably by the spinal simulator at the time of assessment.
(t)	In the circumstances the Medical Assessor was entitled to use Part 17 of the Guidelines either directly or pursuant to Guide 1.23 to find that the Guidelines did not strictly cover Mr Stanford’s situation but by necessary analogy, based upon the Medical Assessor’s experience training, skill, thoroughness of clinical evaluation that Part 17 represented a reasonable comparator, particularly given he accepted and diagnosed that Mr Stanford was suffering from CRPS.
(u)	Further the assessment was in any event independent of any diagnosis of CRPS. The assessment was made on the basis of restricted movements of the big toe with no flexion of the interphalangeal joint  (IP) joint and fixed extensions of the first metatarsophalangeal joint: these restrictions were not due to CRPS but due to treatment prescribed for Mr Stanford for pain namely the spinal stimulator. Accordingly, the need for CRPS diagnosis was immaterial to the assessed WPI.
(v)	The asserted error, even if it existed, was irrelevant.The appeal should be dismissed.
21.	Mr Stanford’s submissions dated 4 March 2024 included the following:
(a)	in Sakr Garling J considered whether there was an error in the Medical Appeal Panel failing to assess the worker’s whole person impairment, if otherwise appropriate, on the basis of an underlying condition in the absence of a diagnosis of CRPS (which the Medical Assessor and Panel had rejected). 
(b)	Garling J’s approach to this issue was correct. His Honour noted that the fundamental medical dispute between the parties was always the degree of permanent impairment of the worker as the result of an injury, namely a soft tissue injury to the Plaintiff’s right upper limb, and that such determination of the worker’s claim did not ultimately depend upon a diagnosis of CRPS being established. It was therefore, in the circumstances, open to the Medical Assessor to assess the permanent impairment of the worker notwithstanding the finding that the diagnostic criteria for CRPS had not been met: 
(c)	At [49] His Honour said: 
“The true effect of this finding, however, is that, subject to the operation of the Guidelines, the determination of the plaintiff’s claim did not ultimately depend on a diagnosis of CRPS. It was therefore open for the AMS to assess the permanent impairment of the plaintiff, notwithstanding the finding that the diagnostic criteria for CRPS had not been met.” 
(d)	At [50] His Honour noted that: 
“…it is unfortunate that the parties’ respective medical reports then focused on the degree of permanent impairment based primarily upon a diagnosis of CRPS, because CRPS was not the underlying injury in relation to which a claim was being met. CRPS is a complex pain syndrome which develops after a traumatic injury – it is not itself an injury. This fact appears to have been overlooked by the First Defendant’s medical expert, Dr O’Sullivan, who, once he had concluded that the Plaintiff did not suffer from CRPS failed to consider the Plaintiff’s degree of permanent impairment, despite conceding that the Plaintiff has ‘the inability to use her right upper limb’. In those circumstances, however, it cannot, be that the Plaintiff’s claim was limited by the failure of the First Defendant’s expert to address the broader impairment claim.” 
(e)	Likewise in the present case the issue between the parties has always been the permanent impairment of the right lower extremity and the right foot/ankle impairment fell to be determined as part of that.
(f)	This is further emphasized in the present case by the terms of the referral which included “chronic pain as a result of a consequential condition in the right foot and ankle”. The terms of the referral by consent of the parties means clearly that Mr Stanford was accepted to be suffering from a consequential condition in the right foot and ankle which was giving rise to inter alia chronic pain. Accordingly, there is no barrier to the Medical Appeal Panel proceeding to deal with the second issue raised in Sakr. 
(g)	As to the second issue, His Honour noted in Sakr, consistently, with the what the Medical Assessor in the present case did, that having reached the conclusion that the worker did not suffer from CRPS, assessed the worker’s WPI “based on a limitation of motion to all the joints in her right upper extremity in purported compliance with Chapter 16 of AMA 5”. His Honour expressly stated at [62]-[63] 
“With respect, I particularly disagree with the Panel’s finding that the AMS ‘only assessed loss of motion of the various joints in the right upper extremity by reference to pain without any consideration of any underlying condition’. In fact, the AMS assessed the Plaintiff’s ‘best active range of motion’ without reference to pain. In those circumstances the reference by the Panel to paragraph 1.12 of the guidelines was misleading, as is the purported requirement to assess ‘on the basis of the underlying diagnosed condition’…This conclusion is consistent with my earlier finding that the medical dispute referred to in the AMS was the Plaintiff’s degree of permanent impairment. The AMS was not limited to assessing the diagnosis of CRPS or permanent impairment by reference to pain.” 
(h)	This is entirely consistent with the approach of the Medical Assessor. 
(i)	The Medical Assessor, at page 6.2 found: 
“…he then developed CRPS in the right leg and attended pain management. He had a spinal cord stimulator implanted which remains in situ. Based on today’s physical examination and the history given by the Claimant he has constant permanent right toe extension which is caused by the use of the spinal cord stimulator and is only relieved when the spinal cord stimulator is at maximum level which he cannot bare”. 
(j)	On page 4.10 under the Medical Assessor’s clinical examination, he found that the
“right ankle and foot movements were restricted… the right big toe is held in extension at 30 degrees. I was not able to passively flex the first metatarsophalangeal joint and there was no active flexion of the IP joint or the metatarsophalangeal joint, the lack of flexion of the IP joint of the big toe equates 2% lower extremely impairment. Extension contracture of the first metatarsophalangeal joint is not assessed in either AMA5 Guidelines or the PIC Guidelines. It is a significant impairment as it causes him to weight bare mainly on the outer aspect of the foot and he cannot wear shoes. I have assessed this deformity by analogy to moderate plantar flexion capability of the right ankle, which equates to 15% lower extremity impairment”. 
At page 7, paragraph 10(a) “I found restricted right ankle and hind foot movements as per the table in section 5…, I found restricted movements of the big toe with no flexion of the IP joint and a fixed extension of the first metatarsophalangeal joint…” At page 8, paragraph 10(c) “I have included the hyperextension deformity of the big toe. In my opinion it is the consequence of the treatment for chronic pain and use of the spinal cord stimulator…” 
(k)	Sakr is distinguishable and therefore has no applicability.. 
(l)	The point of distinction appears to be that “the only assessable condition was chronic pain as a result of a consequential condition in the right foot and ankle”. This is the same error made by the Insurer in Sakr. 
(m)	As with Sakr where the underlying condition was a soft tissue injury to the right upper extremity, here it is accepted by the terms of the consent referral that Mr Stanford suffered a condition apart from CRPS, namely “a consequential condition of right foot and ankle” which had given rise to chronic pain. Further the Medical Assessor found that the treatment of that condition and the chronic pain necessitated the permanent placement of a spinal stimulator which was giving rise to restricted ranges of movement, thereby the previously present CRPS, which gave rise to the need for treatment has ultimately given rise, as consequence of that treatment, to the whole person impairment.
(n)	In short, the Medical Assessor was not constrained by his finding that there were currently not the diagnostic criteria for CRPS, to not assess the permanent impairment resulting from any condition consequential to Mr Stanford’s injury. That consequential condition included a loss of motion of the big toe found to be due to the previously provided and ongoing treatment,namely, the permanent placement of a spinal stimulator. (The consequences of medical treatment, unless grossly negligent, are considered for the purposes of causation as part of the original injury giving rise to the need for treatment: Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522.) 
(o)	It would not matter for the purposes of this submission whether the only consequential “condition” of the right foot and ankle was CRPS. It is the fact of treatment now giving rise to impairment that is relevant – even if the CRPS which gave rise to its need has now abated or resolved. 
(p)	The Medical Assessor fulfilled the duty, he was legally bound to discharge in accordance with Sakr, to determine whether there was, and if so the degree, of any permanent impairment resulting from the consequential condition of the right foot/ankle. 
(q)	The Medical Assessors conclusion’s are entirely consistent with Sakr. 
FINDINGS AND REASONS 
22.	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. 
23.	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.
24.	The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
25.	Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
26.	The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground 1 – assessment of the right shoulder
27.	The appellant submitted that the Medical Assessor fell into error in failing to provide an outline of the restrictions of the right shoulder which he says he measured with a goniometer. Further, the appellant argued that as a result of this omission the appellant is unable to determine whether the assessment constitutes an application of incorrect criteria.
28.	The Medical Assessor, under “Findings on physical examination”, noted: 
“Inspection of the shoulders reveals wasting in the right shoulder. The right shoulder is tender whilst there is no tenderness in the left shoulder.
Reflexes in the upper limbs were normal. He had good grip strength. Right shoulder movements were very restricted when measured with a goniometer. Left shoulder movements were normal.
He has normal sensation in the right upper arm to light touch and sharp stimuli, but no sensation to light touch from the elbow to the fingers, and when testing with sharp stimulus he can only feel pressure.
Sensation was normal in the left arm”.
29.	Under “Summary”, the Medical Assessor wrote:
“The claimant sustained a rotator cuff tear in the fall when the walking stick slipped. He has had rotator cuff repair and presents with constant pain and restricted shoulder movements. He has pins and needles and numbness in a global distribution affecting the right arm from the elbow to the fingers which I cannot relate to the shoulder injury. He has widespread pins and needles affecting the shoulder, neck and right side of the face, which again I cannot relate to the shoulder injury”.
30.	Under “Reasons for Assessment”, the Medical Assessor wrote: “I have assessed 21% right upper extremity impairment due to restricted shoulder movements (7) (see 10b), as per the Table in Section 5. This equates to 13% WPI”.
31.	In commenting on the other medical opinions and findings, the Medical Assessor wrote: 
“I note the reports of Dr Gehr dated 4 June 2021 and 14 July 2022. I found a similar impairment for the right upper extremity…
I note the report of Dr R Powell dated 7 October 2022. I found the same impairment for the right upper extremity as Dr Powell.”
32.	The Appeal Panel accepted that the Medical Assessor omitted to include a table of shoulder movements found on his examination in Section 5 of the MAC. 
33.	In a report dated 23 November 2022 to the respondent’s solicitors, Dr Richard Powell, orthopeadic surgeon, noted: “I have reviewed the report of Dr Gehr dated 14/07/22. In relation to the right shoulder, we have reached identical assessment findings”. 
34.	In a report dated 7 October 2022, Dr Powell wrote: 
“Examination of the right shoulder
Reduced spontaneous movements of the right upper limb were noted. There were a series of well healed surgical scars around the shoulder consistent with the previous arthroscopy without any complicating features. There was diffuse tenderness to palpation around the shoulder which could not be localised more specifically. There was hypersensitivity to light touch around the anterosuperior aspect of the shoulder and a pain response in excess of the clinical stimulus provided. There was numbness below the elbow in a global fashion.
Range of motion was restricted with forward flexion 80°, extension 10°, abduction 40°, adduction 10°, internal rotation 30°, external rotation 40°. There was grade V power of the rotator cuff. Impingement tests and tests for bicipital pathology were difficult to interpret in the context of the global painful restriction in range of motion and the heightened pain response. There were no colour, temperature or sweating changes identified.
….
1. 	Right shoulder
Withreference to section 16.4i ‘Shoulder Motion Impairment’ and the following:
• 	Figure 16-40 on page 476, the measured range of forward flexion 80°, extension 10°, is allocated a 9% UEI.
Medical evidence
• 	Figure 16-43 on page 477, the measured range of abduction 40°, adduction 10°, is allocated a 7% UEI.
• 	Figure 16-46 on page 479, the measured range of internal rotation 30°, external rotation 40°, is allocated a 5% UEI.
• 	Total UEI is obtained by adding the above figures resulting in a 21% UEI. This is converted to whole person impairment using Table 16-3 giving a 13% WPI. I would not make any deduction for pre-existing pathology”.
35.	Dr Gehr, in a report dated 14 July 2022, wrote:
“Right shoulder-soft Tissue Injury
He has soft tissue injury with persisting pain and loss of range of motion despite surgery.
From WorkCover Guidelines, page 10, paragraph 2.3 to 2.8 for loss of range of motion and AMA5, page 476, figures 16.40, page 477, figure 16.43 on page 479, figure 16.46, the upper extremity impairment for the right shoulder equals 24%, WPI equals 14% rounded down”.
36.	The Medical Assessor assessed the same degree of WPI in the right shoulder as Dr Powell. The Medical Assessor stated that he found the same impairment for the right upper extremity as Dr Powell.The Appeal Panel are satisfied that the Medical Assessor effectively adopted the assessment made by the respondent’s independent medical examiner, Dr Powell. 
37.	In these circumstance, although the Medical Assessor omitted to include the table of measurements, there was no material error. 
Ground 2 – assessment of scarring/TEMSKI
38.	The appellant submits the Medical Assessor has not appropriately assessed the whole skin against each criteria separately and made demonstrable errors in his assessment of the categories of shape, texture and colour and location and assessing the best fit as 2% WPI. The appellant argued that as the skin disorder did not meet all of the criteria within the impairment category for 2%, paragraph 14.8 requires the Medical Assessor to provide detailed reasons as to why he chose the criteria for 2% WPI over the criteria for 1% WPI and in not doing this the Medical Assessor made a demonstrable error.

39.	Paragraph 14.8 of the Guidelines provides:
“The TEMSKI is to be usd in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories”. 
40.	Paragraph 14.9 of the Guides provides that “Where there is a range of values in the TEMSKI categories, the assessor should use clinical judgement to determine the exact impairment value”.
41.	On examination the Medical Assessor wrote: “He is conscious of the scars on his left flank just below the belt line. He said he is conscious of the scar in his back but not of the arthroscopic scars in the knee and right shoulder.”
42.	Under “Reasons for Assessment”, the Medical Assessor wrote: 
“Under the best fit principle of the TEMSKI classification, based on my clinical findings outlined under examination, I assess 2% whole person impairment. (The claimant is conscious of the scars. There is colour contrast with the surrounding skin, there is colour contrast in both the scar in the lumbar spine and the scar in the left flank. The claimant is able to easily locate the scars. There are trophic changes, suture marks, contour defect is visible. The scars are usually visible with summer wear and swimwear. There is no limitation on ADLs. No treatment is required, and there is some adherence.”
43.	In commenting on the other medical opinions and findings, the Medical Assessor wrote: 
“I note the reports of Dr Gehr dated 4 June 2021 and 14 July 2022. ...I found the same impairment for scarring.
I note the report of Dr R Powell dated 7 October 2022….
Dr Powell assessed 0% for scarring. I have assessed 2% WPI (see 10a)”.
44.	Dr Powell, in a report dated 7 October 2022, wrote: “Scarring is considered with reference to TEMSKI where the surgical scarring is consistent with the expected outcome of the procedure undertaken without any complicating features. On that basis I consider category I with a 0% WPI”.
45.	Dr Gehr, in his report dated 14 July 2022, under “Scars” wrote: “Midline dorsal lumbar scar measuring 5 cm, hyperpigmented, suture marks apparent, it is where the spinal cord stimulator was inserted. WPI equals 2%.”
46.	The Appeal Panel considered that the Medical Assessor carried out a careful and thorough assessment in relation to scarring.
47.	There are four criteria in Table 14.1. The appellant submitted that the Medical Assessor made demonstrable errors in his assessment of the categories of shape, texture and colour and location. The appellant submitted that the Medical Assessor did not provide sufficient description of the colour contrast as required by the TEMSKI Table to differentiate between 1% WPI and 2% WPI. 
48.	The Medical Assessor found colour contrast with the surrounding skin, and noted that there is colour contrast in both the scar in the lumbar spine and the scar in the left flank. However, colour contrast is just one factor to be taken into account in shape, texture and colour. The other factors are being conscious of the scars, being able to easily locate the scars, trophic changes being evident to touch and any staple or suture marks being clearly visible. The Medical Assessor noted that Mr Stanford was conscious of the scars, and able to easily locate the scars, there were trophic changes and suture marks. Some of these factors are the identical in the different impairment categories, for example being conscious of the scar, applies in 1% WPI, 2% WPI and 3% WPI categories. 
49.	The Appeal Panel noted that 14.9 of the Guidelines provides that where there is a range of values in the TEMSKI categories, the Medical Assessor should use clinical judgement to determine the exact impairment value. The Appeal Panel considered that while the Medical Assessor may not have specifically identified the colour contrast of the scar as being noticeable, he would have considered the degree of colour contrast in makig his assessment. The question of assessment falls within the Medical Assessor's clinical judgement and the Appeal Panel considered that the Medical Assessor clearly considered that the colour contrast, was sufficient to warrant the 2% finding in that category.
50.	The appellant submitted that in relation to location, Table 14.1 refers to the anatomic location of the scar being either visible or not visible with usual clothing. The appellant argued that the Medical Assessor in referring to the scars being visible with summer wear and swimwear has applied incorrect criteria and that the scarring on the back and left iliac crest (flank) is not visible with usual clothing.
51.	The Appeal Panel is satisfied that the scar to the right shoulder was certainly visible with summerwear and swimwear even if the other scars were not visible and the Medical Assessor did not apply incorrect criteria in his assessment of the scars being visible when wearing summer clothing and swimwear. The Appeal Panel agree that 2% category was the best fit in this criteria.
52.	With respect to the criteria of contour the Medical Assessor stated contour defect is visible and therefore 2% WPI catrgory was the best fit.
53.	 With respect to the category of ADL/treatment there is no limitation on ADLs and no treatment is required. Although the appellant submitted that the category of best fit is 0% WPI in this criteria, the factor “No treatment, or intermittent treatment only, required” applies in all of the WPI categories, that is, 0% WPI, 1% WPI, 2% WPI, 3-4% WPI and 5-9% WPI. The other factor in this criteria was ADL and 0% WPI category required no effect on ADL, 1% WPI category required negligible effect on ADL and 2% WPI category required minor limitation in the performance of few ADL. The Appeal Panel accept that best fit for this criteria would best fit would be 0%WPI category or 1% WPI category. 
54.	In relation to the criteria of adherence the appellant took no issue with the Medical Assessor’s determination of best fit. The Appeal Panel noted that 2% WPI applied when there is no adherence. The Medical Assessor actually found some adherence which would best fit in the 3-4% WPI category.
55.	The appellant argued that paragraph 14.8 of the Guidelines requires the Medical Assessor to provide detailed reasons as to why he chose the criteria for 2% WPI over the criteria for 1% WPI. The Medical Assessor did not do so and this is a demonstrable error.
56.	The Appeal Panel noted that the Medical Assessor compared to Dr Powell and Dr Gehr provided quite detailed descriptions of the scarring. Table 14.1 of the Guidelines requires “a best fit” approach. While ADL/treatment has a lower ranking than the 2% WPI category, adherence has a higher ranking. The Appeal Panel is satisfied that the Medical Assessor clearly weighed these matters and formed a "best fit“ view that 2% was appropriate. Further, the Appeal Panel, considered on balance, that the Medical Assessor provided adequate reasons as to why he chose the criteria for 2% WPI and that this assessment was open to him given the evidence and his findings. . 
Ground 3 – assessment of chronic regional pain syndrome
57.	The appellant submitted because the diagnostic criteria in Table 17.1 were not satisfied it was not open to the Medical Assessor to provide an assessment of the impairment resulting from loss of motion of the big toe and ankle/hind foot.
58.	Chapter 17 of the Guidelines is headed “Evaluation of permanent impairment arising from chronic pain”. The Guidelines provide at 17.5: “ …Table 17.1 is used to determine if complex regional pain syndrome (CRPS) is a rateable diagnosis…” 
59.	The Appeal Panel reviewed the history of this claim. 
60.	In a report dated 11 July 2019, Dr Warren Kuo, treating orthopaedic surgeon note that  MrStanford was three months post operative and “unfortunately is plagued by quite a lot of ongoing pain and dysesthesia [sic] in the knee as well as ankle and foot.” Dr Kuo wondered if Mr Stanford was experiencing some regional pain type condition.
61.	In a report dated 29 January 2020, Dr Kadavil of Western Sydney Pain Centre diagnosed Mr Stanford as having neuropathic pain/CPRS of his right foot extending to his knee.
62.	In a letter dated 4 August 2022, Mr Stanford’s solicitors made a claim for lump sum compensation for 38% WPI based on the report of Dr Gehr dated 14 July 2022. 
63.	In a State Insurance Regulatory Authority (SIRA) Permanent Impairment Claim Form dated 4 August 2022, Mr Stanford claim 38% WPI in respect of the right knee, right shoulder, scarring and trigeminal dysesthesia [sic]. He relied in the reports of Dr Gehr dated 14 July 2022(x2) and 4 June 2021.
64.	In a report dated 4 June 2021, Dr Gehr, orthopaedic surgeon, noted that Mr Stanford had injured his right knee while at work on 12 October 2017 and then sustained a further injury to the right knee at work on 12 April 2018. There was no reference to any frank injury to the right ankle and foot in Dr Gehr’s report. Dr Gehr on examination found restriction of movement in the right foot and ankle. Dr Gehr made the following diagnoses:
“1.	Right knee soft tissue injury and two arthroscopic procedures with persisting pain and loss of range of motion.
2. 	CRPS type I of right lower limb.
3. 	Placement of spinal cord stimulator for number two.
4. 	Right shoulder soft tissue injury with significant detachment of SLAP lesion with persisting pain, loss of range of motion and awaiting surgery for the right shoulder.”
65.	In a report dated 14 July 2022, Dr Gehr noted that Mr Stanford had injured his right knee while working and found on examination of the right foot and ankle:
“Fixed hyperextension right big toe of 10 degrees.
Range of motion of right foot and ankle - dorsiflexion 10 degrees, plantar flexion 20 degrees, inversion 10 degrees, eversion 0 degrees”. 
66.	In a second report dated 14 July 2022, in relation to the right lower extremity, Dr Gehr assessed: 
“Right knee
CRPS right knee/limb.
He has CRPS involving the right limb. As per Guidelines, page 81, the diagnostic
criteria table 17.1 as outlined in my previous report and reconfirmed today, it is
CRPS 1.
-Right Knee
There is a loss of range of motion of the right knee and from AMA5, page 537,
table 17.10 WPI equals 12%.
-Right Ankle
He has a loss of range of motion of the right ankle.
From AMA5, page 537, table 17.12 and Guidelines page 15, paragraph 3.17, for
the revised table 17-11, the lower extremity impairment for the right foot and
ankle is WPI equals 11%.
The hyperextension of big toe, I am not including that”.
67.	In a report dated 7 October 2022, Dr Richard Powell, orthopaedic surgeon, noted that Mr Stanford developed features of a pain syndrome after the revision knee surgery on 5 April 2019 and he was diagnosed by Dr Kadavil as having compex regional pain syndrome involving the right lower limb.
68.	In the ARD dated 24 May 2023, Mr Stanford alleged he sustained a personal an injury on 20 October 2017. He described the injury as follows:
“On or about 20 October 2017….he fell onto the roof cracking three tiles. He injured his knee as a result.
On or about 12 April 2018 , whist our client was on restrictive duties he was tasked to load steel brackets…He then stood up and took one step and experienced pain in his right knee.
On 25 May 2020, whilst the injured worker was ascending stairs in his unit complex, his cane gave way and he fell, injuring his shoulder. As a result he developed complex regional pain syndrome…
As a result of the above injuries, he has undergone two surgeries to the right knee and has had a spinal stimulator inserted to help alleviate his pain and has suffered injury to his right shoulder, he developed complex regional pain syndrome …”
69.	Mr Stanford then alleged a futher injury in the ARD on 25 May 2020 as follows: 
“Consequential injury – On 25 May 2020, whilst the injured worker was ascending stairs in his unit complex, his cane gave way and he fell, injuring his shoulder. As a result he developed complex regional pain syndrome…”
70.	In the ARD under “Permanent Impairment/ Pain and Suffering” Mr Stanford claimed 38% WPI in respect of the following systens: “Right upper extremity, TEMSKI scarring, Right lower extremity and Chronic pain”.
71.	In a section 78 Notice dated 22 June 2023, the insurer disputed that Mr Stanford was entitled to permament impairment lump sum compensation for the injury on 12 April 2018. The insurer accepted that Mr Stanford had injuries to the right knee and right shoulder, but disputed injury to the right ankle and facial neuralgia. The insurer noted that in a supplementary report dated 23 November 2022, Dr Powell stated he did not believe there was sufficient evidence to conclude that Mr Stanford sustained a specific injury to your right ankle as a result of his employment. 
72.	In the Reply dated 19 July 2023, leave was sought to include various matters including:
“GIO does not agree that the claimed consequential condition resulted from the accepted injury on 17 October 2017. 
…
GIO does not agree that the injury to the applicant’s right ankle and facial neuralgia arose out of or was received in the course of the applicant’s employment as required by section 4 of the Workers Compensation Act 1987…”
73.	In a Certificate of Determination – Consent Orders dated 8 August 2023 Member Sweeney made the following orders:
“1. 	Award for the respondent in respect of the allegation of trigeminal neuralgia and injury to the right foot and ankle.
2. 	Remit the matter to the President for referral to a medical assessor to certify the degree of whole person impairment as a result of injury to right lower extremity (knee), the right upper extremity (shoulder), TEMSKI scarring and consequential chronic pain of right ankle and foot on 20 October 2017 and 12 April 2018.
3. 	Medical assessor to have access to the Application, the Reply dated 23 June 2023 and the Reply dated 19 July 2023 and the documents attached to each.”
74.	In the Decision of Delegate Cindy Yang dated 9 January 2024 the following orders were made:
“1. 	By and with the consent of the parties, the terms of the referral are amended as follows:-
Date of Injury: 20 October 2017 and 12 April 2018
Body part/s referred: right lower extremity (knee), the right upper extremity (shoulder), TEMSKI scarring and consequential chronic pain of right foot and ankle
Method of assessment: Whole Person Impairment
2.	The matter to proceed to a Medical Appeal Panel.”
75.	The Appeal Panel accepts that the decision in Skates represented a departure from the view that the Medical Assessor was bound by the referral with both Leeming and McCallum JJA stating that what is referred for assessment by a Medical Assessor was the “medical dispute” not body parts. The observations of the Court of Appeal in Skates, confirmed that the exchange of correspondence and medical evidence relevant to the claim identified the scope of the medical dispute. In Skates, the matter was referred back for re-assessment because the parties were aware that the medical dispute included the left wrist and the employer/insurer in Skates conceded that the left wrist, which was omitted in the referral, should have been assessed. 
76.	In this case, the appellant did not concede that the injury to be assessed included an injury to the right foot and ankle and, indeed, the parties agreed that there be an award for the respondent in respect of the allegation of injury to the right foot and ankle. 
77.	The parties did agree that the consequential chronic pain of right foot and ankle was to be assessed by the Medical Assessor.
78.	In Sakr, Garling J noted that the the Appeal Panel had held that the AMS was only entitled to assess the impairment as CPRS when the referral properly read was to assess the impairment resulting from an injury determined as CPRS. Garling J noted that CRPS is a complex pain syndrome which develops after a traumatic injury and in itself is not an injury. His Honour stated the diagnosis was not the central issue in dispute, rather the fundamental dispute between the parties was the degree of permanent impairment suffered by the worker as a result of the soft tissue injury to the right upper limb. At [49] Garling J held the determination of the worker’s claim did not ultimately depend on a diagnosis of CRPS, and it was therefore open for the AMS to assess the permanent impairment of the worker’s right upper limb despite the finding that the diagnostic criteria for CRPS had not been met.
79.	Mr Stanford submits that the terms of the referral by consent of the parties means clearly that Mr Stanford was accepted to be suffering from a consequential condition in the right foot and ankle which was giving rise to inter alia chronic pain.
80.	In the submissions dated 26 February 2024 the appellant described the referral on 14 August 2023 as including “consequential condition in the right foot from chronic pain” noting that it was agreed by the parties that there be an award for the appellant in respect of the claimed specific injury to the right foot and ankle. The appellant did not accurately identify what had been referred; what was actually referred for assessment was “consequential chronic pain of right ankle”. The appellant proceeded to note that the parties had specifically agreed the only assessable condition was “chronic pain as a result of a consequential condition in the right foot and ankle” in term of assessing impairment of the right foot and ankle. The appellant again erred in stating what the parties had agreed to as set out in the orders in the COD. The parties had in fact agreed that “consequential chronic pain of the right ankle and foot” be assessed.
81.	Mr Stanford, in the submissions dated 4 March 2024, submitted that it was accepted by the terms of the consent referral that Mr Stanford suffered a condition apart from CPRS, namely, a “consequential condition of the right foot and ankle” which had given rise to CPRS. Again, this description of what had been referred was not accurate; what had been referred on 14 August 2023 was “consequential chronic pain of right ankle” and this was amended to “consequential chronic pain of right ankle and foot on 9 January 2024.” Mr Stanford did not explain what was the effect of the consent order that there be an award for the respondent in respect of the claimed specific injury to the right foot and ankle. 
82.	What the parties agreed to was the assessment by the Medical Assessor of consequential chronic pain of right foot and ankle. However, the parties also agreed that there be an award for the respondent in respect of the allegation of injury to the right foot and ankle. This agreement means that the present claim is distinguishable on the facts from Sakr. 
83.	The Appeal Panel considered that the medical dispute identified between the parties was a dispute concerning the degree of impairment to right lower extremity (knee), the right upper extremity (shoulder), TEMSKI scarring and consequential chronic pain of right ankle and foot on 20 October 2017 and 12 April 2018 but where the respondent had an award in respect of the allegation of injury to the right ankle and foot. The allegation of injury to the right ankle and foot can only refer to a consequential injury as assessed by Dr Gehr on the basis of loss of motion in those body parts.
84.	The Appeal Panel agreed with the appellant that it was not open to the Medical Assessor to assess impairment on the basis of restriction of movement of the big toe as this was never part of the dispute identified between the parties. There is no evidence in any of the material submitted to the Medical Assessor that there was any injury to or consequential condition in the right big toe which resulted from the subject injuries sustained in the course of Mr Stanford’s employment.
85.	The Appeal Panel was satisfied that the Medical Assessor erred in making an assessment in respect of the right foot and ankle. The Appeal Panel therefore determined that the assessment made in respect of the right foot and ankle. should be removed from the assessment of WPI. 
86.	For these reasons, the Appeal Panel has determined that the MAC issued on 27 September 2023 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:	W3834/23	
Applicant:	Scott Stanford	
Respondent:	Buildsafe Sydney Pty Ltd 	
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Tommasino Mastroianni 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 WorkCover Guides 	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)	
1.Right lower extremity (knee) and consequential chronic pain right ankle 	20/10/17 and 12/04/18	Chapter 3 
Pages 13-23	Chapter 17 
Pages 523-564	12%	Nil 
	12%	
2.Right upper exttemity (shoulder) 	20/10/17 and 12/04/18 	Chapter 2 
Pages 10-12	Chapter 16 Pages 433- 521 	13%	Nil 
	13%	
3.Scarring (TEMSKI)	20/10/17 and 12/04/18	Chapter 14 
Pages 73-74 		2%	Nil 
	2%	
Total % WPI (the Combined Table values of all sub-totals) 	25%