DETERMINATION OF APPEAL PANEL	
	
CITATION:	State of New South Wales (NSW Police Force) v Kennedy [2024] NSWPICMP 666	
		
APPELLANT:	State of New South Wales (NSW Police Force)	
		
RESPONDENT:	Peter Charles Kennedy	
		
Appeal Panel		
		
MEMBER:	Catherine McDonald	
		
MEDICAL ASSESSOR:	Drew Dixon	
		
MEDICAL ASSESSOR:	Sophia Adler Lahz	
		
DATE OF DECISION:	18 September 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of physical injuries deemed to have been suffered on the last date of active service; assessment of radiculopathy in the lumbar spine; paragraphs 4.27 and 4.28 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 March 2021) (the Guidelines); section 323 deduction inappropriate on facts; assessment of left ankle; paragraph 3.17 of the Guidelines; reassessment; Held – Medical Assessment Certificate revoked.	

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 23 April 2024 the State of New South Wales (NSW Police Force) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Jonathan Negus, who issued a Medical Assessment Certificate (MAC) on 26 March 2024.
2.	NSW Police Force 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor applied incorrect criteria when assessing radiculopathy in the lumbar spine. We conducted a review of the original medical assessment, limited to the grounds 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.	Mr Kennedy claimed permanent impairment compensation in respect of a disease injury deemed to have been suffered on 21 June 2021, his last date of employment with NSW Police Force when he ceased work as a result of a psychological injury. Mr Kennedy claimed that he suffered injuries to his lumbar spine, both knees, ankles and feet as a result of the repetitive, hard and heavy nature and conditions of his employment between 2000 and 2021.
7.	The Medical Assessor assessed 24% whole person impairment (WPI), comprised of 12% for the lumbar spine, 10% for the left lower extremity and 4% for the right lower extremity.
PRELIMINARY REVIEW
8.	We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
9.	As a result of that preliminary review, we determined that Mr Kennedy should undergo a further medical examination because the Medical Assessor had failed to set out the findings to support his diagnosis of radiculopathy in the assessment of the lumbar spine. Because of a potential overlap with assessment of Mr Kennedy’s lower limbs, 
10.	Dr Lahz of the Appeal Panel conducted an examination of the worker on 13 August 2024 and reported to us. Her report forms part of these reasons.
Fresh evidence
11.	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.
12.	Mr Kennedy seeks to admit an MRI scan report dated 13 June 2024 and a report from Dr Sayce, pain physician, dated 30 July 2024. In the accompanying Applications to Admit Late Documents, he said that the documents were not available at the time of the filing of the Application to Resolve a Dispute and relied on the former s 354(3) of the 1998 Act.
13.	NSW Police Force did not seek to make any submissions in respect of the documents.
14.	We observe that Mr Kennedy’s submissions are in breach of clause 24 of Procedural Direction PIC3 which provides that reasons for the lateness of the documents should be provided and that pro forma paragraphs quoting the Personal Injury Commission’s (Commission) power to admit late documents should not be used as the only basis to support the application. Section 354(3) of the 1998 Act was replaced by s 43(3) of the Personal Injury Commission Act 2020.
15.	We issued directions on 1 July 2024 with respect to Dr Lahz’s examination which included:
“The worker is requested to take original films and hard copies of investigation reports to the examination”
16.	Despite that direction, Mr Kennedy did not take any imaging to the appointment and said that he had not been asked to do so. Because of the direction, we determine that the MRI scan report should be admitted. 
17.	Dr Sayce’s report confirms a telehealth consultation on 30 July 2024. His report included:
“… I understand that he is due to front the NSW Medical Commission for Workers Compensation early next month. Peter was keen to ensure that I include radiculopathy in my diagnosis of his conditions. Indeed Peter has reported on multiple occasions not only radicular pain corresponding to pain in his bilateral lower dermatomes (notably in his left L5, right L5 and S1 dermatomes) but also multiple reports of weakness resulting in frequent tripping over objects and reduced functionality - this would certainly fit the criteria for radiculopathy but should the insurer wish to quantify this further, Nerve Conduction Studies could be performed.”
18.	Dr Sayce’s opinion is not relevant to the task of the Medical Assessor or to an appeal panel and adds nothing to our determination. We decline to admit it.
EVIDENCE
19.	We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination. 
20.	The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS 
21.	Both parties made written submissions. They are not repeated in full, but we have considered them. 
22.	In summary, NSW Police Force submitted that the Medical Assessor was in error to assess radiculopathy because the criteria in paragraphs 4.27 and 4.28 of the Guidelines had not been fulfilled. NSW Police Force said that the Medical Assessor was in error not to make a deduction under s 323 for degenerative changes in Mr Kennedy’s lumbar spine and in failing to give reasons for saying that any injury is due to the nature and conditions of employment. It said that the Medical Assessor had failed to explain his conclusions with respect to the assessment of Mr Kennedy’s left ankle.
23.	In reply, Mr Kennedy submitted that the Medical Assessor had given reasons for assessing radiculopathy and that there was no evidence that there was a pre-existing condition in his lumbar spine. He submitted that the assessment of his left ankle was appropriate.
THE MAC
24.	The Medical Assessor set out a brief history of the injury, including a frank injury to Mr Kennedy’s back in January 2020 on a background of general degeneration over time, attributed to wearing a 9kg utility belt and sitting at an angle in the car when carrying his weapon. Mr Kennedy described multiple instances of minor injuries to his knees when he fell while arresting people and plantar fasciitis from standing in ill-fitting boots.
25.	The Medical Assessor noted that Mr Kennedy used considerable opioid medication, reduced from the highest dose.
26.	Setting out Mr Kennedy’s symptoms the Medical Assessor said;
“Lumbar Spine
He has extreme pain on both sides of the lower back to the top of the backside. It radiates down both legs to the 3 lateral toes on the right and all toes on the left. He gets bad pain in his left buttock. He finds the pain causes him difficulty sleeping and also struggles to bend over. He gets pain if he stands for long periods and that can run up his spine. He has also had a number of incidences of his legs going out from underneath him, causing him to fall associated with faecal and urinary incontinence.
Lower Limbs
Knees
He gets similar symptoms in both knees although the left knee is much worse. He gets a pulsing pain which is worse when he gets up from sitting and he gets a palpable and audible crepitus in both knees which is worse when going up and down steps.
Ankles
He gets pain throughout all aspects of the ankle on the left and mostly on the medial aspect of the right ankle. He also gets stiffness in the left ankle.
Feet
He gets pain in the sole of the feet consistent with plantar fasciitis. He needs to wear orthopaedic thongs or inserts in his shoes otherwise it is unbearable.”
27.	The Medical Assessor set out the parameters of the examination then provided his findings:
Lumbar Spine
He had no surgical scars. He was tender from L3-L5 and paraspinal. He had guarding and spasm over that area. He had stiffness in all degrees of motion. He had a decrease in power bilaterally at L4 & L5. He had reduced sensation on the left from L3 to S1.
Knee Examination
He had no surgical scars and no effusion. He was in neutral alignment and normal stability. He had decreased range on the left from 0-90° compared to 0-120° on the right.
Ankle Examination
He had no surgical scars but he was tender mediolaterally and anteriorly. He had normal alignment and good subtalar movement.”
28.	The Medical Assessor set out the active range of motion in Mr Kennedy’s ankles and said that both feet were tender to palpation over the plantar fascia. He reviewed the MRI scan dated 6 March 2020 and said:
“He has pain radiating from his spine down both legs into his feet. He has sensory changes in the lower lumbar nerve roots on the left and reduced power bilaterally at L4 & L5. His MRI from 2020 does show a disc bulge with L4 nerve root impingement on the right. His sensory changes on the left do not fit a dermatomal pattern but in my opinion his loss of power at L4 & L5 along with the MRI findings are significant signs of radiculopathy at the L4 level.”
29.	The Medical Assessor assessed 24% WPI, assessing Mr Kennedy in diagnosis-related estimate (DRE) lumbar category III because of significant signs of radiculopathy. He added 2% for the impact on activities of daily living and did not apply a deduction under s 323 because any lumbar spine condition was due to the nature and conditions of his employment.
30.	The Medical Assessor assessed 26% lower extremity impairment (LEI) as a result of impairment of the knee, ankle and foot, including 15% LEI as a result of moderate flexion contracture. He converted 26% LEI to 10% WPI.
31.	With respect to Mr Kennedy’s right lower limb, the Medical Assessor assessed 9% LEI as a result of mild loss of extension of the ankle and plantar fasciitis.
32.	Commenting on the reports of Dr Clayton, who examined Mr Kennedy at the request of his solicitors, and Dr Harrington, who reported on behalf of the N SW Police Force, the Medical Assessor noted that each “did not find significant signs of radiculopathy where I did.”
RE-EXAMINATION
33.	Dr Lahz’s report reads:
“Mr Kennedy is aged 48 and right-handed. He has an approximately 22-year history of employment in the NSW Police force (1999-2021). He ceased work due to physical and psychological (work) injuries in mid-2021 and not worked since. He considers himself medically retired.
He lives with his wife Kylie and their teenage son (currently doing HSC) in Glen Innes on a rural property.
His general health is mixed. He suffers from asthma and has undergone three neck surgeries and five surgical procedures on the left shoulder. He has not benefited very much from neck surgery given that he still lacks manual dexterity. 
Mr Kennedy is under consideration for right shoulder surgery (orthopaedic review upcoming in October 2024) and he is also due to see a neurosurgeon to discuss potential lumbar fusion which he hopes would help him with chronic lower back and bilateral leg L>R pain. 
Mr Kennedy is a non-smoker and non-drinker who does not use any illegal drugs. He told me that he once tried some ‘bush’ recreational cannabis although it caused adverse cerebral effects. He has also tried medicinal Cannabis, having limited effect, given there was no THC content. He is fearful of taking THC regularly given that he does not wish to lose his licence.
Mr Kennedy has been under the care of a pain physician (since 2021) who has prescribed him pain medications as well as various steroid and PRP (platelet rich plasma) injections to the lumbar spine (most recently in April 2024). He described the latter procedures as extremely painful. Unfortunately, they also have not so far provided him with any relief of chronic back and leg pain, his greatest complaint. However, the treating pain physician has suggested that he should wait at least until October before any definite conclusions can be made about treatment efficacy.
Mr Kennedy explained that he has suffered intermittently from low back pain since approximately 2012, which he attributes to wearing a heavy weapons belt and having to sit ‘at an angle’ in the ‘sports’ seats of the BMW police vehicles. (The seats are quite deep with sides.) He also reported multiple falls and fights over the years in the course of dealing with offenders. Further, he had to stand for prolonged periods in ill fitting police boots. 
In January 2020, there was a specific incident when Mr Kennedy had been trying to apprehend a fleeing driver from a random breath testing site. Unfortunately, his gun holster became caught up in the seatbelt as he tried to quickly exit the police vehicle. He said too the BMW sports vehicles are too low to alight from quickly. When he was attempting to exit the vehicle, he felt a ‘pop’ in his back and there was instantaneous pain in the lower back and both legs with shooting character. The pain started from just above the gluteal cleft spreading down both legs where he described shooting, electrical sensations.
Prior to the abovementioned 2020 work incident, the back pain had been manageable. He had been taking Targin for various aches and pains since 2015 but only a relatively small dose of 20 mg daily. However, following the 2020 incident, lower back and bilateral leg pain intensified, becoming ‘very bad’ with frequent lower limb shooting sensations and lightning bolt sensations. He likened the lower limb sensations to ‘restless legs’ for which he was prescribed Sifrol although the latter medication did not help. 
As a separate issue, Mr Kenney also reports bilateral generalised formication (creepy crawly) sensations throughout both legs, coming and going.
He took NSAIDS (anti-inflammatory medication) and he received physiotherapy comprising gentle theraband exercises and dry needling although nothing really helped.
By mid 2021, Mr Kennedy was in dire straits physically and psychologically and unable to continue working. 
He reported chronic aches and pains in the knees, feet and ankles which he ascribes to multiple falls (‘smashing’ his knees), tussles with offenders and getting in and out of police vehicles over the years as well as prolonged standing in the ill-fitting boots during the course of employment.
He said that an EML doctor informed him that he has ‘no’ movement at the left ankle.
Aside from limited physiotherapy to the knees, ankles and feet, he has not received any specific treatment for symptoms in these locations. He does have orthotic shoes and orthotic thongs which reduce the discomfort in the soles of his feet. He has not consulted an orthopaedic surgeon for advice regarding the knees, ankles or else his feet.
He said that a recent bone scan indicated ‘black’ knees and ankles i.e. intense uptake consistent with joint inflammation.
He said that at one stage, he had been taking 200 mg or more of opioids per day. He read about the opioid crisis in the USA and wanted to stop these. He tried withdrawing from the medication although he reduced these too quickly. However, with the help of the pain physician, about two years ago, he was able to transition to a Norspan patch initially 40 mg which was ‘too much’ to now 15 mg which just keeps the symptoms sufficiently at bay. 
He is also taking Endone 5 mg qid for pain relief. In addition, he was previously taking Catapres for symptomatic relief. 
Mr Kennedy reported significant issues with mental health due to employment. He briefly recounted episodes of helping people who were dying and having to deal as well with serious injuries occurring to colleagues in the course of police work. He became tearful when discussing such issues and even more so when describing his exit from the Police force in mid-2021 when he realised there was no alternative but to take a step back. ‘I knew my time there was up’. 
Mr Kennedy was commenced on Testosterone a few months ago which he found helpful with respect to motivation and mental health. Unfortunately, EML would not fund the treatment and his mood deteriorated again after stopping it. However, in June, he resumed taking Testosterone and continues to self-fund it. 
Current Symptoms
Mr Kennedy complains of lower back pain spreading across the lumbosacral region just above the natal cleft. 
Low back pain spreads to both buttocks. On the left, the pain spreads to the lateral thigh, calf, anterior ankle, top of the foot and all five toes as well as the ball of the foot. He reported a sensation in the left great and second toes as though he has just been kicked there. If he sits for too long, he mentioned that the left foot also goes to sleep. 
On the right, lower back symptoms spread to the medial groin, medial thigh, anterior and posterior knee, lateral calf and all five toes as well as the ball of the foot and the lateral sole. 
In addition, he reported bilateral posterior heel pain spreading forward over the soles of both feet. 
He described the lower back pain as ‘constant and driving’ whereas the lower limb symptoms L>R are akin to electric shocks. 
Lower back symptoms tend to parallel those in the lower limbs. Average low back pain intensity is 7/10 and lower limb symptoms a self-rated 6/10 average.
There are also frequent ‘pins and needles’ in the lower back, buttocks, anterior forefoot and toes.
Low back pain is made worse by standing and he reported to stand for barely 10 minutes. He can sit/drive for 30 minutes. He sat for at least an hour (my observations) at interview. 
He reported that he could walk up to one kilometre. 
He still has episodic ‘restless legs’ when he feels his legs are full of ‘nervous energy’ as if he could run a marathon although he knows he cannot. 
He said the formication sensations (creepy crawling sensations) in the legs were always worse if he were lying down. He often disturbs his wife at night and leaves bed in order to sleep in a recliner.
In the last year or so, he reports a loss of confidence due to urinary incontinence. He now wears pads when he is out, in case of accidents. 
There has been a single episode of bowel incontinence when he could not arise from bed quickly enough. 
However, he has not sought any specific advice regarding these events from either a gastroenterologist or else a urologist. 
He can obtain and maintain an erection and is able to ejaculate/climax although he said this took ‘more work’. He does not use any medications to improve sexual function. He has libido particularly since taking Testosterone. 
He is cautious about bending and lifting. He can slowly retrieve an item from the floor if necessary.
He reported that he is unable to use a ride on mower nor the whipper snipper. He pays a friend to complete these tasks. Since mid 2021, his wife does all the chores at home. He used to help out with ironing, washing up, vacuuming and mopping as well as laundry although no more. 
He has various hobbies which he still can do self-paced. He visits Lightning Ridge for opal mining, using machinery inclusive of a hoist. He said there was minimal physical exertion involved and this activity helped him greatly psychologically. Lightning Ridge is a five hour drive from home although he takes an entire day to complete the drive. 
He explained too that the Norspan patch makes him sleepy so he often pulls over to the side of the road for a rest (on the way to Lightning Ridge), and people frequently tap on his window to check on his wellbeing.
He still goes fishing occasionally and tries to regularly go hunting with his son, using a Polaris buggy.
He said that he often trips on sticks and rocks and that his walking had become ‘too noisy’ for effective hunting. Animals were staying away and this is the reason he now uses the buggy. 
He also regularly participates in a pistol shooting competition because maintenance of his licence is personally important to him. 
Mr Kennedy reported that he struggles to don his socks and wash his feet. He often uses the bathtub (taking his time) because he fears falls, given his legs can unpredictably collapse from beneath him. ‘My legs lose 100% feeling. They switch off like a light and then I suddenly go down’. Episodes can occur out of the blue and have occurred over the last year or two, at least 10-15 times. He uses a long handled washer for his feet. 
His wife sometimes must help wash his back or else assist him with dressing the lower body (especially feet/donning shoes) to save time.
He is prone to falls on flights of steps and reported that he had ‘cracked open’ his face at least once. 
He relies on a four-pronged stick to get out of bed in the morning when he is at his stiffest. 
He said that he tries to maintain physical activity within limits of tolerance. He tends to lie down if he has nothing specific to do. His socialization with other people is very limited.
He described his knees as frequently creaking, cracking, popping, and aching L>R. The left knee swells whereas the right knee does not. 
At the left knee, he experiences pain over the medial and lateral aspects. The left knee can lock up and he needs to ‘crack it’ in order to unlock the joint. 
At the right knee, there is pain anteriorly and posteriorly. Knee pain is generally worse when climbing stairs (of which there are three at home). He reported to have struggled with the stairs at the airport the morning of this appointment. 
He rated the knee pain at 5-6/10 on average. 
He reported that the entire left side of his body is adversely affected by pain and loss of strength. ‘It’s like I’ve had a stroke’ he remarked. 
He experiences episodic pain in the ankles. At the left ankle, the pain is located over the medial and lateral aspects. At the right ankle, there is circumferential pain. Both ankles can sometimes swell.
Ankle pain is made worse by walking and standing.
He complains of bilateral heel pain worsened by walking and standing. On the left, this spreads anteriorly to involve the entire sole of the foot, terminating mainly in the big and little toes. On the right, there is pain spreading anteriorly over the sole of the foot to involve mainly the big and second toes.
Mr Kennedy has gained some 10-15 kg in recent years due to physical inactivity from the various work injuries.
Clinical Examination
I found Mr Kennedy a tall and strongly built man, with height 178 cm and weight 
100.7 kg. 
The examination was somewhat difficult to due to widespread pain, frequent pain complaints, reluctance to move due to pain, and flinching when painful areas were touched. There was widespread tenderness at the lower back, knees, ankles and feet. 
At the commencement of the examination, I asked him to do his best so far as requested movements were concerned. 
Gait was antalgic/slow favouring the left leg. 
He could repetitively go up on tiptoe (five times) albeit with pain complaint (back and left leg) and also repetitively balance on his heels (five times) whilst making similar complaints. He could stand with his feet inverted and (later) everted.
There was flattening of the lumbar lordosis associated with tenderness from L4-S1 and in bilateral L4-S1 paravertebral regions. There was no muscle spasm or else guarding present. 
Flexion and extension were restricted with virtually no flexion (all flexion coming from the hips) and extension 1/3 normal range. There was ½ normal range of rightward lateral flexion and 2/3 normal leftward lateral flexion. Right-sided rotation was ½ normal range compared with 1/3 left-sided rotation. There was asymmetrical loss of lumbar spine motion in the flexion/extension and lateral flexion planes.
There was dysmetria/non-uniform range of motion in the flexion/extension and lateral flexion planes. 
There was no measurable wasting of the thighs (10 cm above the superior patellar border) 47 cm and calves at maximal mid girth 42 cm. 
Mr Kennedy could sit with each leg outstretched, the equivalent of 70 degrees SLR on the left and 80 degrees on the right. On the left, there was pain in the anterior thigh, inner calf and anterior ankle. On the right, the symptoms were mainly in the hamstrings and posterior calf.
However, in supine, left SLR was just 30 degrees and right SLR 40 degrees with complaints (mainly) of lower back and bilateral buttock pain and (to a lesser extent) symptoms below the knees (on the left in the calf and toes, and on the right in the calf and involving the entire foot). The distribution of the symptoms below the knees was not consistent with a dermatomal pattern.
On sensory testing, there was global reduction of pinprick and light touch bilaterally within the lower limbs, which again is not within a dermatomal distribution. 
Mostly, he reported light touch and pinprick sensations at the lower limbs akin to a ‘very light feather’ or else ‘no feeling at all’. 
Knee, ankle and hamstring jerks were bilaterally present and symmetrical. 
Lower limb strength testing was confounded by presence of severe pain variously at the back and hip (proximal/lateral thigh) regions so there was bilateral generalised ‘giving way’ weakness in all muscle groups i.e. not within the specific distribution of a single myotome. 
The knees were normally aligned. There was tenderness over the medial and lateral joint lines bilaterally. The right knee moved actively through 0-110 degrees with much encouragement. The left knee moved actively through 0-100 degrees again with much encouragement. He reported pain about the groins and hips whilst trying to bend the knees.
There were no effusions and no patellofemoral crepitus present in either knee. 
Both knees were stable in the mediolateral and anteroposterior planes. 
There was global, poorly localised tenderness at both ankles. At the right ankle, there were 10 degrees of dorsiflexion, 50 degrees of plantarflexion, 40 degrees of inversion and 20 degrees of eversion. At the left ankle, there were 0 degrees of dorsiflexion, 40 degrees of plantarflexion, 30 degrees of inversion and 10 degrees of eversion. As was apparent, the right ankle moved a little better than the left. Whilst attempting to move the left ankle and later the left big toe, he complained of lower back pain.
There was global tenderness over the soles of both feet. The tenderness at the time of my examination was not localised to the medial heels. 
At the conclusion of the examination, his wife came in to help him don trousers and footwear.
Radiological Imaging
Mr Kennedy brought no imaging to the appointment and said that he had not been asked to do so.”
FINDINGS AND REASONS 
34.	The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
35.	In Campbelltown City Council v Vegan the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
36.	In Queanbeyan Racing Club Ltd v Burton the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
Lumbar spine
37.	The Medical Assessor placed Mr Kennedy in DRE category III because of significant signs of radiculopathy.
38.	He was required to examine for radiculopathy as defined in the Guidelines. Paragraphs 4.27 and 4.28 of the Guidelines provide:
“Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
•	loss or asymmetry of reflexes 
•	muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution 
•	reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution 
•	positive nerve root tension (AMA5 Box 15-1, p 382) 
•	muscle wasting – atrophy (AMA5 Box 15-1, p 382) 
•	findings on an imaging study consistent with the clinical signs (AMA5, p 382).
Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
39.	Dr Clayton saw Mr Kennedy at the request of his solicitors and reported on 22 July 2022. He observed some radicular symptoms but said that the criteria in paragraphs 4.27 and 4.28 were not met. He assessed Mr Kennedy in DRE lumbar category II and allowed 2% for the impact on activities of daily living.
40.	Dr Harrington reported to NSW Police Force on 21 November 2022. He assessed Mr Kennedy in DRE lumbar category II and did not make an allowance for the impact on activities of daily living. He said that Mr Kennedy had altered sensation down his left leg which was not consistent with a dermatome pattern.
41.	The Medical Assessor did not refer to paragraphs 4.27 and 4.28 and did not set out his examination findings in accordance with them. He did not describe any testing of Mr Kennedy’s reflexes or record muscle weakness. He observed diffuse impairment of sensation from L3 to S1. In the absence of one of those major criteria, the Medical Assessor was in error to assess radiculopathy.
42.	Dr Lahz’s examination findings set out above show that Mr Kennedy’s lower limb reflexes were symmetrical and that there was global sensory loss involving both lower limbs, not within the distribution of a single dermatome. There was generalised lower limb muscle weakness associated with complaints of lower back and leg pain (proximal thighs and hips). Again, the weakness was not within the distinct myotomal (nerve root) pattern. There was no measurable wasting of either thighs or else calves at corresponding points. Lower limb neural tension tests were negative, inducing mostly symptomatic complaints at the lower back and upper thighs/groins with lesser symptomatic complaints below the knees and the latter not within the distribution of a single dermatome.
43.	Dr Lahz’s examination did not support the presence of radiculopathy as defined in the Guidelines. 
44.	The updated MRI scan has no effect on this assessment because of the global sensory loss and generalised nature of Mr Kennedy’s symptoms. The findings are not substantially different to those observed on the MRI scan dated 6 March 2020.
45.	The appropriate assessment is DRE lumbar category II which corresponds to 5% WPI. There was no appeal with respect to the Medical Assessor’s allowance of 2% for the impact of the effect of the injury on the activities of daily living. The assessment in respect of Mr Kennedy’s lumbar spine is therefore 7%.
Section 323
46.	The Medical Assessor did not make a s 323 deduction and did not provide reasons for not doing so. NSW Police Force argued that there should be a deduction under s 323 because of the presence of degenerative changes on the 2020 MRI scan. At the time of that scan, Mr Kennedy had been employed as a police officer for almost 20 years.
47.	Section 323 applies provides that there is to be a deduction from an assessment of impairment for any proportion of the impairment that is due to any previous injury … or is due to any pre-existing condition or abnormality.
48.	In Cole v Wenaline Pty Ltd Schmidt J considered whether there should be a deduction in respect of a worker who had undergone surgical treatment for a previous, well documented, injury. Her Honour said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience…”
49.	In Ryder v Sundance Bakehouse Campbell J said: 
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
50.	Dr Harrington made a deduction under s 323 because there was no direct injury to Mr Kennedy’s lumbar spine. He did not provide further reasoning.
51.	The injury referred to the Medical Assessor was a disease injury. If any deduction was to be made, it would require evidence that there was an abnormality in Mr Kennedy’s lumbar spine before he commenced employment.
52.	There is no evidence to support the contention that Mr Kennedy had any pre-existing abnormality. It is therefore impossible to say whether or not any such abnormality made a difference to the outcome. Given the length of Mr Kennedy’s police service and the fact that he commenced his employment in his mid 20s, it is likely that the degenerative changes observed on radiology developed over the same period of time and did not predate his employment.
53.	There is no basis for a deduction under s 323 in respect of Mr Kennedy’s lumbar spine.
Left ankle
54.	NSW Police Force’s third ground of appeal related to the assessment of Mr Kennedy’s left ankle. In respect of the left lower extremity, the Medical Assessor assessed 26% LEI comprised of 10% LEI for the knee, 15% for the ankle and 2% for the foot.
55.	NSW Police Force said that the Medical Assessor failed to give reasons for assessing 15% LEI as a result of moderate flexion contracture, especially when his assessment was greater than those of other examiners.
56.	In August 2022 Dr Clayton said that there was no assessable impairment of Mr Kennedy’s ankles. In November 2022 Dr Harrington assessed 4% WPI in respect of the left subtalar joint.
57.	The Medical Assessor set out his measurements of dorsiflexion and plantar flexion, inversion and eversion. He undertook the appropriate assessment. NSW Police Force accepted that Mr Kennedy suffered an injury to his ankle and was required to make an assessment on the day of the examination. The fact that his assessment was different to those of other examiners on other days is immaterial.
58.	The Medical Assessor abbreviated his findings in a way that made it difficult to understand. Dorsiflexion (abbreviated by the Medical Assessor to DF) is flexion of the ankle joint or the movement of the foot toward the body using the ankle joint. Plantar flexion (PF) is extension or the movement of the foot in a downward motion away from the body. He found normal hindfoot movements – eversion and inversion. The Medical Assessor made an error in that he did not acknowledge that Table 17-11 of AMA 5 is revised in paragraph 3.17 of the Guidelines. That error required reassessment of Mr Kennedy’s left ankle.
59.	Using the range of motion assessed by Dr Lahz on the day of her examination, the findings convert to 7% LEI for loss of dorsiflexion, no impairment for loss of plantarflexion, no impairment for loss of inversion and 2% LEI for loss of hindfoot eversion (Table 17-12 AMA 5). There are instructions on page 10 of AMA 5 that impairment for loss of motion at the ankle and subtalar (hindfoot) joints should be added, not combined. Adding 7% and 2% results in 9% LEI.
60.	There was no appeal in respect of the Medical Assessor’s assessment of 2% LEI of Mr Kennedy’s left foot as a result of plantar fasciitis. 
61.	Dr Lahzs’ assessment of 9% LEI for the ankle and hindfoot is combined with 10% LEI for the left knee and 2% for the left foot in respect of which there was no appeal, resulting in 20% LEI and 8% WPI.
62.	Combining the assessments of 7% WPI for the lumbar spine, 8% WPI for the left lower extremity and 4% WPI for the right lower extremity (in respect of which there was no appeal) results in 17% WPI. 
63.	For these reasons, we have determined that the MAC issued on 26 March 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002

Matter number:	W7771/23	
Applicant:	Peter Charles Kennedy	
Respondent:	State of New South Wales (NSW Police Force)	
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 Jonathan Negus and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI) 
Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines 	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides
	% WPI 	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)	
Lumbar spine	21.6.21	Chapter 4,
p 24-30.	Table 15-3	7%	nil	7%	
Left lower extremity	21.2.21	Chapter 3
pp13-22.	Tables 17-10, 17-11, 17-12, 17-13	8%	nil	8%	
Right lower extremity	21.2.21	Chapter 3
pp13-22.	Tables 17-11, 17-12, 17-13	4%	nil	4%	
Total % WPI (the Combined Table values of all sub-totals)	17%