Abou-Haidar v Consolidated Wire Pty Ltd - [2010] NSWWCCPD 128

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128
APPELLANT:		Jean Abou-Haidar
RESPONDENT:		Consolidated Wire Pty Ltd
INSURER:		Employers Mutual NSW Limited
FILE NUMBER:		A1-4108/10
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:		13 September 2010
DATE OF APPEAL HEARING:		2 December 2010
DATE OF APPEAL DECISION:		10 December 2010
SUBJECT MATTER OF DECISION:		Claim for additional lump sum compensation; injury conceded; whether any need to establish deterioration since initial claim
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Mr J Harris, instructed by Sanford Legal
Respondent:	Mr S Flett, instructed by Edwards Michael Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 13 September 2010 is revoked and the following orders made: 1. The matter is remitted to another arbitrator for a teleconference and, if sought by the worker, remittal to the Registrar for referral to an Approved Medical Specialist (Dr O’Neill) for assessment of the worker’s whole person impairment as a result of his injury to his thoracic spine. 2. The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $800 plus GST. In the event that Dr O’Neill conducts a further whole person impairment assessment, the parties are given liberty to apply to an arbitrator in respect of costs of the arbitration.

INTRODUCTION

This appeal concerns an application for additional lump sum compensation in respect of an undisputed injury to the thoracic spine. The issue is whether, in such an application, it is necessary for a worker to establish a deterioration in his or her condition since the initial claim before the matter can be referred for assessment by an Approved Medical Specialist (AMS).

BACKGROUND

The appellant worker, Mr Abou-Haidar, started work for the respondent employer, Consolidated Wire Pty Ltd (Consolidated), as a machine operator and process worker in August 2004. He first injured his neck and thoracic spine in the course of his employment on 6 August 2005 when he and another worker unrolled lengths of wire and, secondly, as a result of performing work between 2 August 2004 and 24 August 2005 that required him to sit at a bench with his neck constantly bent forward, checking cables. The insurer accepted liability and paid weekly compensation until 15 December 2005.
On 25 June 2006, Dr Guirgis assessed the worker to have a 16 per cent whole person impairment, assessed as follows:
(a)     seven per cent for the cervical spine, reduced to six per cent because of a pre-existing condition;
(b)     seven per cent for the thoracic spine, reduced to six per cent because of a pre-existing condition;
(c)     nil per cent for the lumbar spine;
(d)     two per cent for the right knee, and
(e)     two per cent for the left knee.
Dr Guirgis wrongly made an allowance for the “significant” effects on the activities of daily living in both his assessment of the impairment for the cervical spine and for the thoracic spine. That is not permitted by cl 4.32 of the WorkCover Guidelines for the Evaluation of Permanent Impairment (the WorkCover Guidelines).
Relying on Dr Guirgis’s report and assessments, Mr Abou-Haidar’s solicitor claimed lump sum compensation in a letter dated 3 July 2006. The insurer disputed liability for that claim. In an Application to Resolve a Dispute (matter no 13553-06) registered in the Commission on 28 August 2006, Mr Abou-Haidar claimed lump sum compensation for 16 per cent whole person impairment as a result of injuries to his “back, left knee, right knee and neck”. He alleged that his injuries had been caused by him having to sit with his neck constantly bent forward and as a result of an injury on 6 August 2005 when he unrolled wire with another worker.
At a teleconference on 6 November 2006, the matter could not be resolved and, according to the Arbitrator’s note of the teleconference outcome, the parties “agreed on the body parts injured”. He referred the matter to an AMS for assessment of whole person impairment from injury to the “cervical spine and thoracic spine” as a result of the “nature and conditions of employment together with injury on 6 August 2005”.
On 6 December 2006, the AMS (Dr O’Neill) issued a Medical Assessment Certificate (MAC) in which he assessed the worker to have a six per cent whole person impairment as a result of the injury to his cervical spine and a nil whole person impairment as a result of the injury to his thoracic spine. Consistent with this MAC, the Commission issued a Certificate of Determination on 4 January 2007 in which it ordered Consolidated to pay Mr Abou-Haidar $7,500 in respect of the six per cent whole person impairment assessed by Dr O’Neill.
Though the Certificate of Determination did not expressly refer to the thoracic spine, it is not disputed that, as there was no appeal from the MAC, the AMS’s assessment of nil whole person impairment as a result of the injury to the thoracic spine determined that claim and that it is conclusively presumed to be correct (s 326 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)).
In an Application to Resolve a Dispute (matter no 8216-07) registered in the Commission on 29 October 2007, Mr Abou-Haidar claimed weekly compensation from 15 December 2005 together with medical expenses. He alleged that he injured his “neck and back” in the same circumstances as set out in his first Application, but this time he identified the period during which he worked with his neck bent to be 2 August 2004 to 24 August 2004. In a reserved decision delivered on 4 March 2008, the Arbitrator stated (at [27]) “the back is conceded by the Applicant and is not pressed”. The employer appears to have conceded that Mr Abou-Haidar injured his neck. The worker did not allege that he had injured his knees. The Arbitrator made an award in favour of the worker in the sum of $256.07 per week from 16 December 2005 to date and continuing, and ordered the respondent to pay medical expenses up to $490 upon production of accounts or receipts.
In a letter dated 5 February 2010, Mr Abou-Haidar’s solicitors claimed $5,000 for “FURTHER DETERIORATION Lump Sum Compensation under section 66” in respect of a four per cent whole person impairment, $10,000 for pain and suffering, and unspecified medical expenses. They relied on a report from Dr Guirgis dated 16 October 2009 in which he assessed Mr Abou-Haidar to have a whole person impairment of 20 per cent made up as follows:
(a)     seven per cent for the cervical spine (including two per cent for the effects on his daily living activities);
(b)     five per cent for the thoracic spine;
(c)     five per cent for the lumbar spine;
(d)     two per cent for the right knee, and
(e)     two per cent for the left knee.

In a s 74 notice dated 7 June 2010, Consolidated’s insurer disputed liability on the ground that Mr Abou-Haidar had not injured his lumbar spine or either knee, and that he had “not sustained any further permanent loss or impairment” entitling him to lump sum compensation, that is, there had “been no deterioration of [his] condition since the Medical Assessment Certificate issued by Dr J O’Neill on 6 December 2006 with respect to the thoracic and lumbar spines (for which liability was accepted)”. It should be noted that liability was only accepted for the thoracic spine.

In an Application to Resolve a Dispute (the Application) registered in the Commission on 21 May 2010, Mr Abou-Haidar claimed lump sum compensation in the sum of $5,000 in respect of a four per cent whole person impairment due to “[f]urther deterioration of the cervical, thoracic and lumbar spines and the left and right lower extremities” as a result of injuries to his “back, neck and both knees” in the same circumstances alleged in his first two Applications. At the hearing, the Application was amended to delete the words “Further deterioration” and the word “cervical” and the claim for medical expenses.

At a conciliation and arbitration on 29 July 2010, the matter proceeded with submissions from both sides, but the Arbitrator heard no oral evidence. In a reserved decision delivered on 13 September 2010, the Arbitrator stated the issues in dispute to be:
(a)     Did the worker injure his left and right knees in the circumstances pleaded?
(b)     Did the worker injure his lumbar spine in the circumstances pleaded?
(c)     Is the Commission required to remit this matter to the Registrar in any event for referral to an AMS for assessment of the thoracic spine?
The Arbitrator was not satisfied that Mr Abou-Haidar had injured his lumbar spine or either knee. In respect of the “deterioration issue as to the thoracic spine”, he held that Mr Abou-Haidar had not established “any relevant deterioration in his condition” (Statement of Reasons (Reasons) at [77]) and declined to remit the matter to the Registrar for referral to an AMS.

It should be noted that neither in the letter of 5 February 2010 nor in the Application did the worker claim additional lump sum compensation on the basis that his impairment (as a result of the conceded thoracic spine injury) had increased since the assessment by the AMS in December 2006 or since the Certificate of Determination of 4 January 2007. However, the Arbitrator appears to have approached the matter on the basis that Mr Abou-Haidar had made such a claim. When I raised this apparent anomaly at the oral hearing of the appeal, counsel for Mr Abou-Haidar, Mr Harris, who appeared for Mr Abou-Haidar at the arbitration, submitted that the insurer had never taken issue with the making of the claim and the arbitration proceeded (without objection) on the basis outlined above. Counsel for Consolidated, Mr Flett, did not appear at the arbitration and did not dispute Mr Harris’s submission.
Whilst I have reservations about whether Mr Abou-Haidar ever properly made a claim in the present proceedings in compliance with s 282 of the 1998 Act for whole person impairment as a result of the thoracic spine injury, in view of the conduct of the matter at the arbitration, that is not a matter that is in dispute on appeal. I have therefore approached the matter based on the arguments presented by the parties at arbitration and on appeal. Those arguments assumed that the Arbitrator correctly identified the issues in dispute in the manner stated at [13] above.

The Commission issued a Certificate of Determination on 13 September 2010 in the following terms:
“1. There will be an award for the respondent.
2. There will be no order for costs. For the record, I certify the matter as being complex and order an uplift of 30%. The reason for that certification is apparent from the context of this decision.”

In an appeal filed on 29 September 2010, Mr Abou-Haidar seeks leave to challenge the Arbitrator’s determination, but only so far as it relates to the refusal to refer the claim for additional lump sum compensation said to have resulted from the thoracic spine injury to the Registrar for referral to an AMS. He has not challenged the Arbitrator’s finding that Mr Abou-Haidar suffered no injury to his lumbar spine or either knee.

LEAVE

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
It is not disputed that the monetary thresholds in s 352(2) are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.

THE ARBITRATOR’S REASONS

The Arbitrator set out the terms of the 4 January 2007 Certificate of Determination (see [7] above), the essential findings by the AMS in 2006 and the particulars of the claim made on 5 February 2010 (see [10] above). He noted that the letter of claim dated 5 February 2010 referred to Dr Guirgis’s 16 October 2009 report and that the s 74 notice disputed that there should be a referral to an AMS for assessment of the cervical and thoracic spines because the worker had failed to establish that there had been a deterioration since the Certificate of Determination of 4 January 2007. The Arbitrator and the parties proceeded on the assumption that Mr Abou-Haidar had made a claim for additional lump sum compensation as a result of his thoracic spine injury.

The Arbitrator said (at [55] of his decision):
“In relation to the claim for additional compensation for a further impairment to the thoracic spine, Mr Harris submitted on the authority of recent cases that the Commission had no choice but to refer the matter back to the AMS.”
He then referred to several authorities relied on by Mr Harris and said, at [69]:
“The relevance of this line of cases to Mr Harris’[s] position is that he argued that, Mr Abou-Haidar having already received lump sum compensation in relation to the injury to the thoracic spine, the only matter for consideration before the Commission was as to whether his applicant was entitled to further lump sum compensation.”
The Arbitrator then referred to the definition of medical dispute in s 319 of the 1998 Act and added (at [71] and [72]):
“If Mr Harris’[s] submission were true then it would be possible for every claimant who had successfully made a lump sum claim to constantly re-litigate the issue. An insurer would be powerless to defend the matter at arbitral level and the scheme would be subject to needless expense, bearing in mind that there would be a reasonable expectation that medical opinion would mirror legal opinion.
However, there is a check on an untrammelled right of further assessment being conferred upon a litigant who has already been assessed by an AMS.”

He acknowledged that Mr Harris had correctly submitted that an AMS assessment of nil impairment at a certain date was not “binding for the future”, that injuries deteriorate, and “where they do an applicant has a right to seek a further assessment”. However, that right was not “untrammelled” (Reasons at [73]).

He held that it was not relevant to compare Dr Guirgis’s assessment in 2009 with the AMS’s assessment of a nil whole person impairment as a result of the thoracic spine injury. He said it was “germane” to compare Dr Guirgis’s 2006 assessment with his 2009 assessment. That comparison showed that Dr Guirgis assessed a six per cent whole person impairment as a result of the condition of the thoracic spine in 2006 but only a five per cent impairment in 2009. The Arbitrator therefore held that the worker had “failed to establish a relevant deterioration” (Reasons at [78]).
The Arbitrator added (at [89]):
“As was stated in Haroun, it is for the AMS to determine the question of impairment. In post 2002 matters involving the application of the guidelines, the entitlement for thoracic injury is strictly controlled, as has been illustrated by the DRE categorisation referred to above. It is nothing to the point that a claimant complains that he has deteriorated. Regardless of whether there is any subjective impression of deterioration, unless the applicant can satisfy Dr Guirgis of the criteria for a higher rating into DRE III, the expert opinion which the applicant specifically relies upon for impairment compensation will remain the same. The WPI guidelines provide strict criteria for assessment, and if an applicant is unable to demonstrate an increase in his entitlement from an earlier assessment, then he has not made out a prima facie case. That is what has occurred here. The applicant has specifically relied upon the opinions of Dr Guirgis, who assessed him both before and after the AMS gave his opinion in 2007. Although the AMS disagreed with Dr Guirgis’s original assessment, a comparison of the two opinions does not alter the fact that Dr Guirgis’s view has remained the same. His expert view prior to the AMS’s assessment was that the applicant suffered from a DRE II category thoracic problem. His expert view following the AMS’s different view, remained the same. Although the applicant did not appeal the original AMS decision, and therefore may be taken to have accepted the lower assessment, Dr Guirgis has not taken that view. Doctor did not attempt to discuss the decision of the AMS – indeed he did not acknowledge that he knew of it, but simply confirmed his earlier assessment, notwithstanding the complaints he recorded as outlined above. In choosing to rely upon this expert, the applicant has failed to prove any increase.”

The Arbitrator made an award for the employer.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     referring to Moore v Greater Taree City Council [2009] NSWWCCPD 17 and failing to refer to Greater Taree City Council v Moore [2010] NSWWCCPD 49 at [141] (Moore);
(b)     referring to the ability of every claimant to “re-litigate the issue” where the scheme would be “subject to needless expense” if the worker’s submissions were correct;
(c)     finding that a claimant has to establish a deterioration in his or her condition before he or she can claim further lump sum compensation, and
(d)     failing to find (though it was not necessary to do so) that Mr Abou-Haidar had established a prima facie case of a deterioration in his condition.

SUBMISSIONS, DISCUSSION AND FINDINGS

Mr Harris submitted that, as there was no dispute that Mr Abou-Haidar had injured his thoracic spine, and as the only compensation claimed was lump sum compensation, the matter had to be referred to an AMS for assessment because the Commission has no power to determine such claims. He relied on Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192; 7 DDCR 139, Moore, Rail Services Australia v Dimovski & another [2004] NSWCA 267; 1 DDCR 648 (Dimovski), Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 and Gane v Dubbo City Council [2007] NSWWCCPD 140.

Mr Flett submitted that:
(a)     the position is different in a claim for additional lump sum compensation to an initial claim for lump sum compensation. In a claim for additional lump sum compensation, it is necessary for the Commission to determine, as a threshold issue, whether a worker has satisfied the burden of proof of demonstrating that his or her condition has deteriorated in order to have an entitlement to obtain an assessment from an AMS;
(b)     section 105 of the 1998 Act states the Commission has jurisdiction to determine causation issues and other liability issues, such as, whether the effect of an injury has ceased (Spicer Axle Australia Pty Limited v Merza [2007] NSWWCCPD 148 (Merza)). There is a liability issue in the present matter, namely whether Mr Abou-Haidar’s condition has deteriorated;
(c)     when the claim is for additional lump sum compensation, the question for the Commission is whether there is evidence to “invoke” a further referral to an AMS;
(d)     if it were otherwise, there would be no limit to the number of applications for additional lump sum compensation a worker could bring. Such a situation would be contrary to the Commission’s objectives of providing a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts (s 367 of the 1998 Act);
(e)     in E v Sydney South West Area Health Service (Concord Hospital) [2009] NSWWCCPD 108 (E) it was held (at [88]) that, in a claim for additional lump sum compensation, “[p]rima facie, if there is plausible evidence of deterioration, [the worker] is entitled to have it assessed”;
(f)      in Dimovski, it was held (at [14]) that “[t]he consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker's impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the Judge”. It was for Mr Abou-Haidar to show that the presumption of continuance has been rebutted, and
(g)     the Commission (as opposed to an AMS) must look at the quality of the evidence to see if it passes the test of establishing a plausible case of a deterioration. This jurisdiction (that is, the Commission) is the “gateway to the doctors”.

Before dealing with Mr Flett’s submissions, there is a preliminary point that must be determined. In its written submissions on appeal, Consolidated argued that, “prior to obtaining an assessment from the Approved Medical Specialist”, it was necessary for the Arbitrator to determine liability to pay additional compensation pursuant to s 66 of the 1998 Act. Section 66 sets out the steps to be taken in making a claim for compensation or a “further claim”. It was submitted that Mr Abou-Haidar had not taken those steps and had therefore “not made a further claim in accordance with the” definition in s 66.
This submission is incorrect. Section 66 is in Pt 2 of the 1998 Act and only applies to claims made before 1 January 2002 (s 60A of the 1998 Act). Claims made after that date must comply with ss 260, 261 and 282. Those sections make no reference to “further claims”. Section 260 provides that the WorkCover Guidelines may make provision, among other things, for or with respect to the form and manner in which “a claim is to be made”, but does not specifically deal with claims for lump sum compensation. Under s 261, a person is considered to have made a claim for compensation when the person makes “any claim for compensation in respect of the injury” concerned, even if the person’s claim did not relate to the particular compensation in question. No issue of non-compliance with s 260 or s 261 arises in the present case. In any event, strict compliance with s 260 is not required for the Commission to have jurisdiction (Tan v National Australia Bank Ltd [2008] NSWCA 198; 6 DDCR 363).
Before considering the substantive issues in dispute on appeal, it is appropriate to set out the legislative provisions that govern claims for, and the assessment of, lump sum compensation. Unless otherwise stated, all references below are to the 1998 Act.
In 2001, the 1998 Act was amended to set up a separate and distinct system for resolving medical disputes (Workers Compensation Legislation Amendment Act 2001). The amendments apply to all injuries after 1 January 2002 and, with modifications, to injuries received before that date. Before the amendments, judges usually determined medical disputes, claims for lump sum compensation and claims for further lump sum compensation (Lourdes House Hospital v Wheeler (1996) 13 NSWCCR 495). Since the amendments, AMSs have assessed claims for lump sum compensation under Pt 7 of the 1998 Act. AMSs are not part of the Commission (s 368), but are appointed by the President in accordance with criteria developed by the Minister in consultation with the Council (s 320).
A medical dispute is defined in s 319(c) to include, among other things, a dispute as to the degree of permanent impairment as a result of an injury. Only the Registrar has power to refer to an AMS a medical dispute concerning a claim for lump sum compensation. This is the effect of s 321(3), which states that the Commission may not refer such a claim, and s 375, which states that, for the purposes of any proceedings (except as provided by that section) the Commission is constituted by an arbitrator. Therefore, the reference to “the Commission” in s 321(3) is a reference to an arbitrator.
The Registrar may not refer to an AMS a medical dispute concerning permanent impairment “where liability is in issue and has not been determined by the Commission” (s 321(4)(a)). The term “liability” is not defined in the legislation, but has been held to include, among other things, whether the worker received an injury within the meaning of the legislation, whether employment was a substantial contributing factor to the injury under s 9A of the Workers Compensation Act 1987 Act (the 1987 Act), and what pathology is said to have been caused by the relevant work incident (Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124; 5 DDCR 337).
The degree of permanent impairment of an injured worker is to be assessed in accordance with the WorkCover Guidelines, as in force at the time of the assessment, issued for that purpose (s 322(1)). Impairments that result from the “same injury” are to be assessed together to assess the degree of permanent impairment of the injured worker (s 322(2)). The meaning of “injury” in s 322 was discussed in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6, where it was stated that injury means injurious event and the pathology that resulted from that event.
An AMS may decline to assess the degree of permanent impairment of an injured worker until he or she is satisfied that the impairment is permanent and that it is fully ascertainable (s 322(4)). Under cl 1.21 of the WorkCover Guidelines, a permanent impairment will be fully ascertainable where the medical assessor considers that the person has attained maximum medical improvement. That is considered to have occurred when the worker’s condition has been medically stable for the previous three months and is unlikely to change by more than three per cent whole person impairment in the ensuing 12 months, with or without further medical treatment; that is, further recovery or deterioration is not anticipated.
In assessing the degree of whole person impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury, or that is due to any pre-existing condition or abnormality (s 323(1)). The assessor is to make no allowance for the possible influence of future treatment or for the possibility of subsequent deterioration in the worker’s condition (cl 4.8 of the WorkCover Guidelines). If a worker’s condition is expected to deteriorate in the longer term, the assessor should make no allowance for that deterioration, but should note its likelihood in the evaluation report. If a worker’s condition suffers long term deterioration, he or she may reapply for further evaluation of the condition (cl 15.10 of the WorkCover Guidelines).
The AMS to whom the Registrar has referred a medical dispute is to issue a MAC (s 325). Such a certificate is “conclusively presumed to be correct” as to, among other things, the degree of permanent impairment of the worker as a result of an injury (s 326(1)(a)). Section 327 provides for an appeal against a medical assessment. One ground on which an appeal may be lodged is “deterioration of the worker’s condition that results in an increase in the degree of permanent impairment” (s 327(3)(a)). However, there is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission, or agreement under s 66A of the 1987 Act (s 327(7)). Section 328 deals with the procedure on appeal from an assessment by an AMS.
A matter referred for assessment under Pt 7 may be referred again on one or more further occasions for assessment in accordance with Pt 7, but only by the Registrar as an alternative to an appeal under s 327, or by a court or the Commission (s 329). The Commission considered the operation of s 329 in Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286; 6 DDCR 440 and Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56.
If there is a dispute about the degree of permanent impairment, the Commission may not award permanent impairment compensation or pain and suffering compensation unless an AMS has assessed the degree of permanent impairment (s 65(3) of the 1987 Act).
The procedure for making a claim for lump sum compensation is that a worker must provide relevant particulars about the claim, including, among other things, the injury received and all impairments alleged to have arisen from the injury (s 282). An employer is entitled to require the worker to submit himself or herself for examination by a medical practitioner (s 282(2)).
A person on whom a claim for lump sum compensation or work injury damages is made must either accept liability and make a reasonable offer of settlement, or dispute liability (s 281(1)). A claim must be determined within one month after the degree of permanent impairment first becomes fully ascertainable, or within two months after the claimant has provided the insurer with all relevant particulars about the claim (s 281(2)). A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim was made wholly disputes liability, or made an offer of settlement and one month has elapsed since the offer was made, or failed to determine the claim as and when required by the 1998 Act (s 289(3)).
Neither the 1998 Act nor the 1987 Act refer to claims for additional lump sum compensation because of the deterioration of a worker’s condition, or because of an increase in a previously assessed and compensated whole person impairment. Nevertheless, the right to claim such compensation cannot be doubted. The WorkCover Guidelines make express reference to a worker being entitled to re-apply for “further evaluation of the condition” if it deteriorates at a later time (cl 1.24 and 15.10 of the WorkCover Guidelines). Workers must make such claims under the terms of the legislation (s 282) and WorkCover Guidelines, and an insurer either accepts or disputes liability.
In the present case, Mr Abou-Haidar’s solicitors made a claim for lump sum compensation by letter dated 5 February 2010. The particulars of the claim were deficient and did not comply with s 282 because the letter did not particularise a claim for additional lump sum compensation in respect of five per cent permanent impairment as a result of Mr Abou-Haidar’s thoracic spine injury. Mr Abou-Haidar claimed an additional four per cent whole person impairment based on Dr Guirgis’s assessments. He arrived at that percentage after deducting Dr Guirgis’s 2006 assessment of 16 per cent from his 2009 assessment of 20 per cent. The change in whole person impairment resulted solely because of the change in Dr Guirgis’s assessment for Mr Abou-Haidar’s lumbar spine. He assessed the impairment from the lumbar spine condition to be nil in 2006 and to be five per cent in 2009.
The insurer arranged for a medical examination with Dr Powell on 29 May 2010 and disputed the claim in a s 74 notice dated 7 June 2010. The insurer did not dispute the claim on the ground that it had not been properly particularised under s 282. It disputed that Mr Abou-Haidar had injured his lumbar spine or knees and whether there had been any deterioration in Mr Abou-Haidar’s condition since Dr O’Neill’s assessment on 6 December 2006 “with respect to the thoracic and lumbar spines (for which liability was accepted)” (liability having been accepted for the thoracic spine, but not the lumbar spine). Whilst that was the wrong approach, it came about because of the unsatisfactory way the worker’s solicitor particularised the claim.
Mr Abou-Haidar failed to establish that he had injured his knees and lumbar spine and he has not challenged that finding. Without objection, the Arbitrator then treated the claim as a claim for five per cent whole person impairment because of the conceded injury to the thoracic spine, as opposed to the four per cent claim that had been particularised on the basis of an alleged deterioration in Mr Abou-Haidar’s lumbar spine. Whilst that was not the claim that Mr Abou-Haidar made, the employer took no objection to that course, but submitted that such a claim could not be referred to an AMS because there had been no deterioration in Mr Abou-Haidar’s thoracic spine since Dr Guirgis’s assessment in 2006. That was the issue the Arbitrator determined against the worker and it is the issue the parties have argued on appeal.
The employer made no application, either before the Arbitrator or on appeal, for leave to dispute the claim on the basis that Mr Abou-Haidar never properly claimed lump sum compensation in respect of a five per cent whole person impairment as a result of his thoracic spine injury. Having regard to the prejudice to the worker if the Commission were to allow the employer to dispute such an issue at this late stage of the proceedings, it is doubtful that such an application would have succeeded in any event.
It follows from the above history that the Commission must approach the matter on the basis that Mr Abou-Haidar has claimed five per cent whole person impairment as a result of his conceded injury to his thoracic spine. The issue argued is whether he has to establish a deterioration in his condition before such a claim can be referred to an AMS for assessment and, if so, whether that deterioration is a deterioration relative to the 2006 assessment by Dr Guirgis, the 2006 assessment by the AMS, or the date of the Certificate of Determination issued on 4 January 2007.
An arbitrator’s task is to determine injury and other liability issues. Once that is done, the question of the extent of any whole person impairment as a result of the injury is a matter for an AMS. The insurer conceded that Mr Abou-Haidar injured his thoracic spine, but disputed his entitlement to lump sum compensation. That gave rise to a medical dispute within the meaning of s 319. As the only issue in dispute was and is the extent of the Mr Abou-Haidar’s whole person impairment as a result of an accepted injury, that question cannot be determined by the Commission but must be assessed by an AMS.
I do not accept Mr Flett’s submission that the position is different in a claim for additional lump sum compensation compared to an initial claim for such compensation. Nothing in the legislation provides any direct or implied support for that submission. It is not necessary for the Commission to determine, as a threshold issue, whether the worker has demonstrated that his or her condition has deteriorated before the matter is referred to an AMS for a further assessment. A worker must make a claim under s 282 and support that claim with a whole person impairment assessment in the proper form from a WorkCover trained assessor. If the assessment is the same as in a previous award or order of the Commission, there will be no basis for referral to an AMS. If the assessment is higher than in a previous award or order, then, assuming that there are no liability issues in dispute, the Registrar will refer the matter to an AMS for further assessment.
The orders made on 4 January 2007 awarded compensation for $7,500 in respect of six per cent whole person impairment. The Commission made that order based on Dr O’Neill’s MAC issued on 6 December 2006 that assessed six per cent whole person impairment as a result of injury to the worker’s neck and nil whole person impairment as a result of the injury to the thoracic spine. As neither party appealed the MAC and the Commission made orders based on it on 4 January 2007, it follows that the finding of nil per cent impairment for the thoracic spine is conclusively presumed to be correct and formed the basis for the orders made on 4 January 2007.
Section 105 does not assist the employer. It gives the Commission jurisdiction, “subject to” the 1998 Act, to “examine, hear and determine all matters arising under” the 1998 Act and the 1987 Act. The Commission has jurisdiction to determine liability issues. However, once those issues are determined, the Commission has no jurisdiction to determine medical disputes that come within the terms of s 319. A claim for further or additional lump sum compensation as a result of an alleged increased impairment since a previous assessment or award, where there is no dispute as to injury, is such a medical dispute. A worker does not have to establish a prima facie case of a deterioration before such a claim can be referred to an AMS for assessment and, to the extent that E suggests the contrary, it is not consistent with the legislation.
I do not accept that this result will mean that there will be no limit to the number of applications for additional lump sum compensation a worker can bring. The right to have a claim referred to an AMS is restricted to claims that comply with the claims procedure in the legislation and the WorkCover Guidelines. Those claims will have to be supported by assessments provided by WorkCover trained assessors. Workers who bring claims that are frivolous or vexatious, fraudulent or without proper justification will be liable to an adverse costs order (s 341). The Commission will determine costs applications on a case-by-case basis. However, if, in a subsequent claim, a worker relies on essentially the same evidence used to support the initial claim, and if that evidence does not suggest a change in the level of whole person impairment since a previous assessment, and if the AMS reaches the same conclusion he or she reached in the initial MAC, the employer may have an argument that the claim was frivolous or vexatious, or brought without proper justification.
Dimovski does not advance the employer’s position. That case concerned claims made and determined before 1 January 2002, when the judges of the former Compensation Court determined lump sum compensation. It is not for Mr Abou-Haidar to rebut the presumption of continuance. He has to make a claim for lump sum compensation in accordance with the terms of the legislation and the WorkCover Guidelines. If the insurer raises no liability issues, and the dispute is only about the degree of whole person impairment as a result of an accepted injury, an AMS must assess it.
The insurer has not disputed whether Mr Abou-Haidar made a proper claim for lump sum compensation on 5 February 2010. It raised no liability issue, but merely disputed whether there had been a deterioration. The question of deterioration is not strictly relevant and certainly not determinative of a later claim for whole person impairment. An assessment of whole person impairment is not based on a worker’s subjective complaints of deterioration, but depends on an objective assessment based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5^th edn) and the WorkCover Guidelines.
The question is: what is Mr Abou-Haidar’s current whole person impairment as a result of the accepted injury to his thoracic spine? An AMS must determine that question. If an AMS assesses the impairment to be higher than the nil assessment in the MAC issued on 6 December 2006 (effectively, though not expressly, confirmed by the Certificate of Determination issued by the Commission on 4 January 2007), Mr Abou-Haidar will be entitled to receive compensation for that higher impairment. If his impairment is assessed to be the same as the assessment on 6 December 2006, he will have no entitlement to further lump sum compensation.
Mr Flett’s submissions have invited me to engage in an assessment of the merits of Mr Abou-Haidar’s claim for lump sum compensation. In circumstances where the only compensation claimed is lump sum compensation in respect of an accepted injury, the legislation has reserved the assessment of such claims (where there is a medical dispute) to AMSs. Once a worker has properly made a claim, and liability issues have been determined, there is no need for a worker to establish a plausible case of a deterioration. However, the merits of Mr Abou-Haidar’s claim will be relevant to any costs orders.
The present dispute does not raise a liability issue, but only a quantum issue. Had the insurer argued that Mr Abou-Haidar’s current thoracic spine impairment resulted from an accident at home (or in some other non-work situation), that may well have given rise to a liability issue of the kind that must be determined by the Commission before the matter could be referred to an AMS. No such issue arises in this matter. The issue in dispute is clearly a medical dispute that must be determined by an AMS. The AMS who conducted the original assessment will also assess the further claim, if he or she is available to do so.
Merza provides the employer with no assistance. In that matter, the employer disputed injury and the Commission was asked to determine the nature of the injury (pathology) concerned. No such issue arises in the present matter because Consolidated has conceded that Mr Abou-Haidar injured his thoracic spine.

I do not believe that allowing the matter to be referred to an AMS will be contrary to the Commission’s objectives of providing a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts (s 367). Once liability is determined, or, if there are no liability issues, the Commission must refer properly made claims for permanent impairment compensation to an AMS for assessment. If the claim has been made without proper justification and the AMS assesses a nil impairment for an injury that had previously been assessed at nil, the employer may have grounds, depending on an assessment of all the evidence, to make an application for costs under s 341(4). Further, unmeritorious applications that merely seek to cavil with a conclusive and binding MAC that has not been appealed under s 327 (or challenged in the Supreme Court) may also be liable to be dismissed as “frivolous or vexatious or otherwise misconceived or lacking in substance” (s 354(7A)). The employer made no application under s 354(7A) in the present case.
The last point to note (though it was not argued by Consolidated, but may be relevant to future claims) is that there is no estoppel in a changing situation (The Doctrine of Res Judicata by Spencer Bower, Turner and Handley, 3rd edn, 1996, at page 102; O’Donel v Commissioner for Road Transport & Tramways [1938] HCA 15; 59 CLR 744; Dimovski; Hamersley Iron Pty Ltd v The National Competition Council [2008] FCA 598 at [114] to [116]; Prisk v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 13 at [55]). A claim for additional lump sum compensation is such a situation.

CONCLUSION

Having conducted a review on the merits, I have determined that the Arbitrator erred in deciding that the worker had to “establish a relevant deterioration” before his claim could be referred to an AMS for assessment. The claim for whole person impairment as a result of the conceded injury to the thoracic spine must be assessed by an AMS. The original AMS (Dr O’Neill) must conduct that further assessment (if it proceeds). If that assessment is the same as the original assessment (nil), the employer will be entitled to make submissions on costs. As that application may result in a costs order adverse to the worker under s 341(4), Mr Abou-Haidar may wish to consider his position before he proceeds further with this claim. To that end, I will remit the matter to another arbitrator for a further teleconference so the worker can indicate, having regard to the merits of his claim and the potential for an adverse costs order, if he wishes to proceed further or discontinue the proceedings.

Finally, though it has not given rise to a dispute in the present matter, in order to avoid confusion, a nil assessment by an AMS should always be recorded in a post-MAC Certificate of Determination issued by the Commission.

DECISION

The Arbitrator’s determination of 13 September 2010 is revoked. The matter is remitted to another arbitrator for a teleconference and, if sought by the worker, remittal to the Registrar for referral to an Approved Medical Specialist (Dr O’Neill) for assessment of the worker’s whole person impairment as a result of his injury to his thoracic spine.

COSTS

Mr Abou-Haidar is entitled to costs of the appeal because he has succeeded in his primary submission that the Arbitrator erred in his approach. Given the previous proceedings between the parties relating to costs of earlier claims, it will be more expeditious if I assess those costs. Having regard to the narrow issue involved on appeal, I assess the appellant worker’s costs of the appeal at $800 plus GST. In the event that Dr O’Neill conducts a further whole person impairment assessment, the parties are given liberty to apply to an arbitrator in respect of costs of the arbitration.

Bill Roche

Deputy President
10 December 2010

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE