Allouche v M & B Moses Investments Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Allouche v M & B Moses Investments Pty Ltd [2022] NSWPIC 1
APPLICANT:	Khaled Allouche
RESPONDENT:	M & B Moses Investments Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	10 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Application by respondent employer pursuant to section 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for referral of a matter to the Medical Assessor (MA) who previously assessed the applicant worker, but was unable to assess one body part, the lumbar spine due to the recent implantation of a spinal stimulator; two other body parts, the left and right lower extremities were previously assessed; the applicant, in responding to the respondent’s section 329(1A) application, sought to expand the body parts that should be referred to the MA, namely, to include consequential condition in right wrist, gastrointestinal system and scarring; the respondent opposed this, relying of section 322A of the 1998 Act to submit that the lumbar spine only should be assessed, and combined with the previous assessment of the lower extremities; the respondent agreed that an earlier assessment by an Approved Medical Specialist in a Medical Assessment Certificate of 1% in respect of gastrointestinal system should be included; Held - finding that, in the circumstances of the case, scarring should be referred to the MA together with the lumbar spine only, and that assessments for these body parts should be combined with earlier assessments in respect of the lower extremities and the agreed 1% WPI for the gastrointestinal system which would then constitute the only one assessment permitted by section 322A of the 1998 Act.
DETERMINATIONS MADE:	1. Pursuant to s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998, the matter is remitted to the President for referral to Medical Assessor Dr Phil Truscott for assessment of whole person impairment as a result of: (a) condition in the lumbar spine consequent upon injury on 16 July 2009, and (b) scarring to the right foot and lower back in accordance with TEMSKI. 2. The Medical Assessor is to include in his assessment of total whole person impairment in accordance with the Combined Table values, in addition to the assessments referred to in [1] above: (a) the assessment of 1% whole person impairment made by Dr Neil A Berry in respect of the upper digestive tract in Medical Assessment Certificate dated 15 July 2015, and (b) his assessments of whole person impairment in respect of the right lower extremity (ankle) and left lower extremity (knee) contained in Medical Assessment Certificate dated 7 January 2020. 3. The documents to be referred to the Medical Assessor are: (a) Application for Assessment by an Approved Medical Specialist and attachments; (b) Response to Application for Assessment by an Approved Medical Specialist and attachments; (c) Certificate of Determination – Consent Orders dated 18 November 2019; (d) Referral for Assessment of Permanent Impairment to Approved Medical Specialist issued by the Workers Compensation Commission dated 19 November 2019; (e) Medical Assessment Certificate of Dr Phil Truscott dated 7 January 2020; (f) Certificate of Determination – Arbitrator Michael Wright dated 10 February 2020; (g) report Dr Robert Breit dated 24 June 2021; (h) documents attached to the applicant’s submissions 30 September 2021 commencing with and including “Supplementary Statement Khaled Allouche 28 September 2021” and concluding with and including “Patient Medical History Wentworthville Pharmacy 1 January 2009 – 10 September 2021”, and (i) this Certificate of Determination and Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

On 16 July 2009 Khaled Allouche (the applicant/Mr Allouche) suffered injury arising out of or in the course of his employment as a forklift driver/truck driver and general labourer with M & B Moses Investments Pty Ltd (the respondent). As he alighted from his forklift at the respondent’s premises he stepped into a pothole/crack in the roadway causing his right ankle to twist. Mr Allouche did not lose his balance but was able to remain standing upright. He felt significant pain in his right ankle and a burning pain in his right calf.
The applicant claims that he sustained a number of other injuries to different parts of his body on 16 July 2009, or conditions consequent upon injury on that day. There have been a number of proceedings between the applicant and the respondent in respect of such injuries or conditions in the former Workers Compensation Commission (WCC) up to the commencement of the current proceedings by way of an Application for Assessment by an Approved Medical Specialist, registered with the Commission on 23 September 2019 (the Application). On the evidence attached to the Application, and relevant to such proceedings, the first of these earlier proceedings is numbered 8212/11. In that matter the Approved Medical Specialist (AMS) Dr Richard Crane, general surgeon, issued a Medical Assessment Certificate (MAC) dated 21 October 2011 containing an assessment of 6% whole person impairment (WPI) as a result of injury to the right lower extremity on 16 July 2009 (6% WPI), and scarring (0% WPI) in accordance with the Table for the Evaluation of Minor Skin Impairment (TEMSKI) in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines).
On 25 November 2011 the WCC issued a Certificate of Determination in which the respondent was ordered to pay the applicant $8,250 compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 6% WPI resulting from injury on 16 July 2009.
On 29 May 2015 Arbitrator Kerry Haddock (as she then was) issued a Certificate of Determination in matter number 1432/15 containing the following determinations:
(a) an award for the respondent in respect of the claim for injury (consequential condition) of the right upper extremity (shoulder); and cervical spine, and
(b) that the matter be remitted to the Registrar for referral to an AMS for assessment of permanent impairment as a result of injury to the right lower extremity (ankle); lumbar spine; left lower extremity (knee); and digestive system on 16 July 2009.

On 15 July 2015 AMS Dr Neil Berry, general surgeon, issued a MAC containing the following assessments as a result of injury on 16 July 2009:
(a)    right lower extremity (ankle) – 11% WPI;
(b)    lumbar spine – 0% WPI;
(c)    left lower extremity (knee) – 0% WPI;
(d)    upper digestive tract – 1% WPI, and
(e)    lower digestive tract – 0% WPI,
for a total WPI pursuant to the Combined Table values of all sub-totals of 12% WPI.
On 26 October 2015 the WCC issued a Certificate of Determination – Consent Orders noting discontinuance of proceedings number 1432/15 and the agreement by the respondent to pay the applicant $10,175 in respect of further impairment resulting from injury on 16 July 2009 and $8,000 compensation for pain and suffering pursuant to the former s 67 of the 1987 Act.
As noted above, the applicant lodged the Application on 23 September 2019 in which he claims assessment as to whether the degree of permanent impairment is fully ascertainable in accordance with s 319(g) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
In “Part 4 – Injury Details” of the Application the applicant claims the following injuries:
“Right ankle, low back, right knee, right wrists and right shoulder, both hands, arm elbow and Injury lumbar Spine and anxiety state and depression.”
At a telephone conference on 18 November 2019, as an Arbitrator of the WCC, I issued a Certificate of Determination – Consent Orders containing the following determination:

“1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whole person impairment in respect of the:
(a) lumbar spine;
(b) right lower extremity (ankle), and
(c) left lower extremity (knee),

as a result of injury on 16 July 2009 or consequential condition resulting from such injury.
2. The documents to be referred to the AMS are:
(a)Application for Assessment by an Approved Medical Specialist and attachments;
(b)Response to Application for Assessment by an Approved Medical Specialist and attachments,
(c)any further documentation from the applicant in respect of the proposed Stage 2 Lumbar Spine Implant to take place at Norwest Private Hospital.

4. Grant leave to the parties to approach the Registrar for a further telephone conference if the respondent objects to the referral of documentation referred to in [2(c)] to the AMS.”

On 19 November 2019 the WCC issued a “Referral for Assessment of Permanent Impairment to Approved Medical Specialist” pursuant to s 319 of the 1998 Act for assessment of WPI as a result of injury on 16 July 2009 or consequential condition resulting from such injury in respect of the lumbar spine, right lower extremity (ankle) and left lower extremity (knee).
On 9 December 2019 AMS Dr Phillip Truskett, specialist in general surgery and trauma, examined the applicant and on 7 January 2020 issued a MAC containing an assessment of two of the three body parts referred, the right lower extremity and left lower extremity, and a determination the lumbar spine was not assessable at that time due to medical advice received after nerve stimulation implantation. Dr Truskett assessed 12% WPI in respect of injury to the right ankle and 0% WPI in respect of injury to the left knee. At [8.c] of the MAC Dr Truskett stated:
“Mr Allouche has had recent implantation of a spinal cord stimulator and wires approximately 2 weeks ago. He has been advised that he cannot bend for 3 months. Dysmetria of the back in flexion and extension can therefore not be assessed. It is likely that his back could be better assessed in approximately 6 months’ time.”
On 10 February 2020 Arbitrator Michael Wright (as he then was) issued a Certificate of Determination containing the following determination and brief statement of reasons:
“1.     That the applicant suffers 12% permanent impairment in respect of lumber spine and scarring resulting from injury on 16 July 2009 or consequential condition resulting from such injury.
2.     That the applicant has no entitlement to further lump sum compensation resulting from injury on 16 July 2009 or consequential condition resulting from such injury.
Brief statement of reasons
3.     The Medical Assessment Certificate dated 7 January 2020 certifies 12% permanent impairment resulting from injury to the right ankle on 16 July 2009 or consequential condition resulting from such injury, compensable as $17,050.
4.   The applicant was previously compensated:
a)$8,250 in respect of 6% permanent impairment resulting from injury to the right lower extremity on 16 July 2009 in accordance with the Certificate of Determination dated
25 November 2011 issued in WCC Matter no 8121/11.
b)A further $10,175 in respect of 12% permanent impairment resulting from injury to the right extremity and upper digestive tract on 16 July 2009 in accordance with the Certificate of Determination dated 26 October 2015 issued in WCC Matter no 1432/15.
5.   Therefore the applicant has no entitlement to further lump sum compensation resulting from injury on 16 July 2009 or consequential condition resulting from such injury.
6.   The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.”

On 20 April 2021 the respondent’s insurer, AAI limited trading as GIO (GIO), wrote to the applicant confirming an arrangement for the applicant to be seen by Dr Robert Breit, orthopaedic surgeon, on 10 May 2021. In that letter GIO noted that Mr Allouche was previously assessed by Dr Phil Truskett on 7 January 2020 as not having reached ‘maximum medical improvement’ (MMI), meaning the degree of WPI could not be assessed. That decision entitled Mr Allouche to ongoing weekly payments until his degree of WPI could be assessed. GIO requested Mr Allouche to attend the further independent medical examination to determine WPI to enable it to consider whether he would be entitled to ongoing weekly payments.
In the event, the applicant attended upon Dr Breit on 17 June 2021, who produced a report dated 24 June 2021. Dr Breit advised in that report that the applicant had achieved MMI, and assessed him as having sustained 7% WPI as a result of condition in the lumbar spine, that is, 5% WPI under DRE Category II in Chapter 15 paragraph 15.4 Table 15.3 of the American Medical Association’s Guides to the Assessment of Permanent Impairment 5^th ed (AMA 5), plus 2% WPI for interference with activities of daily living.
On 27 July 2021 the respondent made an application for reconsideration of the MAC issued by Dr Truskett on 7 January 2020 pursuant to s 329(1A) of the 1998 Act and submissions in support thereof. In that application the respondent did not seek to have the MAC reconsidered insofar as the assessments of the right lower extremity (ankle) and left lower extremity (knee) were concerned, but only sought reconsideration of the body part, lumbar spine, that was not capable of assessment in December 2019. In support of this application the respondent noted that in December 2019 Dr Truscott believed that the applicant’s lumbar spine could be better assessed in approximately six months’ time, and that 18 months had passed since that assessment. The respondent observed that there was reason to believe that the degree of permanent impairment of the lumbar spine would be fully ascertainable. The report of Dr Breit dated 24 June 2021 was attached to the application for reconsideration together with the MAC of Dr Truscott dated 7 January 2020.
On 12 August 2021 the applicant lodged submissions in reply to the respondent’s submissions. In those submissions the applicant, after summarising a history of the matter since the date of injury on 17 July 2009 and submitting that the report of Dr Breit dated 24 June 2021 was “fresh evidence”, requested that he be provided with an opportunity by way of a timetable to be set by the Commission to lodge an updated statement, his own further fresh medical evidence, an independent medical assessment in reply to the report of Dr Breit, and also the opportunity to comment on all accepted injuries. The applicant also submitted that the request for reconsideration was prejudicial in its then current form, that he should have been provided with sufficient notice of such an application and as a consequence he should be afforded the opportunity to obtain the fresh evidentiary material referred to above. A timetable was proposed by the applicant.
The matter came before Parnell McAdam, a Delegate of the President of the Personal Injury Commission which replaced the WCC on 1 March 2021, who issued a decision on 3 September 2021. The Delegate provided a summary of the relevant history of the matter, the respondent’s submissions in its application for reconsideration dated 27 July 2021 and the applicant’s “lengthy submissions in response” dated 12 August 2021. He also provided detailed reasons on the issue of procedural fairness raised by the applicant, and referred to the encouragement advocated by the applicant to set down a timetable for the obtaining of further evidence. The Delegate noted that it was apparent that the matter was not ready to be referred back to the Medical Assessor and set a timetable. The orders made by the President through his Delegate are as follows:
“1. Accordingly, the following orders are made:
(a)the applicant is to file any evidence on which he proposes to rely by 5 October 2021. That evidence should be lodged and served under the cover of an Application to Admit Late Documents;
(b)if the applicant seeks to amend the Application to broaden the claim to assess body parts not assessed in the MAC, or to have the previously assessed body parts reconsidered, that must be communicated to the Commission by 5 October 2021, with evidence provided in support;
(c)if the above occurs, the respondent is to provide their views on any application made by 12 October 2021, and
(d)matter is to be referred back to the medical assessor for reconsideration pursuant to section 329 of the 1998 Act. That assessment is not to take place before 12 October 2021.”
On 30 September 2021 the applicant lodged further short undated submissions expressed as:
“Further Submissions of Applicant Worker in support of ‘Application for Reconsideration’ to amend the Application to broaden the claim to assess body parts not assessed in the MAC, or to have the Previous assessed body parts reconsidered"

These two page submissions were accompanied by bundle of documents that included a supplementary statement of the applicant dated 28 September 2021, reports of Dr James Bodel, orthopaedic surgeon, dated 6 August and 13 September 2021, reports of Dr Breit dated 24 June 2021 and 23 July 2019, the MAC of Dr Truskett dated 7 January 2020 and updated reports and clinical records of treating practitioners. As is apparent from the heading to these submissions, the applicant sought to “broaden the claim to assess body parts not assessed in the MAC” and to “have the previously assessed body parts reconsidered” (see [17 “1(b)…”] above).

After an extension of time allowed by the Commission, the respondent lodged further submissions dated 19 October 2021 in reply to the applicant’s further undated short submissions lodged 30 September 2021.
In view of the applicant’s application to broaden the claim to assess body parts not assessed in the MAC and to have previously assessed body parts reconsidered, the matter was listed before me for a telephone conference on 3 November 2021, at the conclusion of which the following Direction was issued:
“1. The matter is stood over for conciliation/arbitration via telephone conference to 10.00 am on Wednesday 15 December 2021.
2. The matters to be determined at conciliation/arbitration are:
(a) if the applicant suffers a condition in in his right wrist consequent upon
injury of 16 July 2009:
(b) if the Application for Assessment by Approved Medical Specialist dated
19 September 2019 should be amended to include:
(i) condition in the right wrist found to be consequent upon injury of 16 July 2009;
(ii) gastrointestinal injuries – digestive system, and
(iii) scarring – TEMSKI.
(c ) if the reconsideration of the medical assessment of Dr P Truskett, Medical Assessor, in Medical Assessment Certificate dated 7 January 2020 pursuant to s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 should include, in addition to assessment of the lumbar spine:
(i) right lower extremity (ankle);
(ii) left lower extremity (knee);
(iii) condition in the right wrist found to be consequent upon injury of [19] above. 16 July 2009;
(iv) gastrointestinal injuries – digestive tract, and
(v) scarring – TEMSKI.”

On 15 November 2021 the applicant lodged an Application to Admit Late Documents (AALD) with a report of an x-ray of the applicant’s right wrist dated 10 November 2021 attached.

ISSUES FOR DETERMINATION

The parties agree that the issues remaining in dispute are those referred to in [20] above.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

The parties attended a conciliation/arbitration on 15 December 2021 conducted via telephone conference. Mr S Hickey of counsel appeared for the applicant briefed by
Mr M Coorey. The applicant attended with Mr Coorey. An Arabic interpreter attended on a separate line. Ms L Goodman of counsel appeared for the respondent briefed by
Mr G Forster. A representative of GIO attended on a separate line.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) the Application and attached documents;
(b) Response to Application for Assessment by an Approved Medical Specialist (the Response);

(c) Certificate of Determination – Consent Orders dated 18 November 2019 (Consent Orders 18 November 2019);

(d) Referral for Assessment of Permanent Impairment to Approved Medical Specialist issued by WCC dated 19 November 2019 (Referral 19 November 2019);

(e) MAC Dr Phillip Truskett dated 7 January 2020;

(f) Certificate of Determination – Arbitrator Michael Wright dated 10 February 2020;

(g) respondent’s application for reconsideration of the MAC issued by Dr Truskett on 7 January 2020 dated 27 July 2021 and attached documents (respondent’s reconsideration application 27 July 2021);

(h) applicant worker’s response to application for reconsideration dated 12 August 2021 and attached indexed documents (applicant’s response 12 August 2021);

(i) Personal Injury Commission Decision of Delegate of the President, Parnell McAdam, dated 3 September 2021 (the Delegate’s decision);

(j) applicant’s further submissions lodged 30 September 2021 (applicant’s submissions 30 September 2021);

(k) respondent’s further submissions dated 19 October 2021 (respondent’s submissions 19 October 2021);
(l) Direction of the Personal Injury Commission dated 3 November 2021 (Direction 3 November 2021), and

(m) AALD dated 15 November 2021 with a report of an x-ray of the applicant’s right wrist dated 10 November 2021 attached.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties at the arbitration hearing on 15 December 2021 were recorded, a transcript of which can be obtained on request. A summary of those submissions and those lodged by the parties prior to the conciliation/arbitration is as follows.

Respondent

The respondent in seeking to have the matter referred for assessment pursuant to s 329(1A) of the 1998 Act submits that reconsideration, as opposed to appeal, is the appropriate course. It only seeks reconsideration of permanent impairment of the lumbar spine given that the AMS Dr Truskett, now and hereinafter referred to as a Medical Assessor in accordance with the commencement of the Personal Injury Commission Act 2020 on 1 March 2021, said that he believed that the lumbar spine could be better assessed in approximately six months’ time after his assessment of the applicant in December 2019. Eighteen months had elapsed when the respondent’s reconsideration application of 27 July 2021 was lodged.
As Dr Breit had previously assessed the applicant and prepared reports dated 31 August 2012, 8 April 2014, 6 April 2016, and 23 July 2019, it was appropriate that he re-assess that applicant again. Dr Breit now believes that, now more than a year since the implant was inserted into the applicant’s spine, the lumbar spine is capable of assessment. Dr Breit also took a history of proposed spinal injections, but does not believe that those will alter his assessment.
The respondent notes that the other body parts referred to Dr Truskett on 19 November 2019, the right knee and left ankle, have been assessed, and that it is only the lumbar spine that now has to be assessed to complete the assessment. The respondent draws attention to the injury description in the Application (referred to in [8] above) and the Consent Orders dated 18 November 2021 pursuant to which the applicant agreed to have the matter referred to a Medical Assessor. These orders are reflected in the Referral dated 19 November 2021.
The respondent refers to s 322A(1) of the 1998 Act, which provides that “Only one assessment may be made of the degree of permanent impairment of an injured worker”, and that the MAC records such an assessment by Dr Truskett. Once the assessment of the lumbar spine has been carried out, MAC is binding for all purposes of injury. The respondent submits that it is appropriate that Dr Truskett was only asked to assess the lumbar spine in the respondent’s reconsideration application dated 27 July 2021, the right lower extremity (ankle) and left lower extremity (knee) having already been assessed by him in December 2019. The respondent does not concede that these body parts should be assessed again when the lumbar spine is assessed.

The respondent submits that it would suffer prejudice if the right ankle and left knee were assessed again by Dr Truskett, as it does not have any (presumably) up-to-date medical evidence in respect of these body parts.
The respondent submits that it would also suffer prejudice if other body parts, not assessed by Dr Truskett, were referred to him for assessment. These are the right wrist and scarring. The respondent also notes that there is also reference in the applicant’s submissions to complex regional pain syndrome (CRPS), and that the applicant himself does not have an assessment of impairment of any such syndrome, and that alone is sufficient that it should not be referred for assessment.
The respondent notes that the applicant has rights of appeal against a medical assessment but has chosen not to pursue such an appeal at this stage. The respondent also submits that if the applicant wished to extend further assessment to be carried out by Dr Truskett to body parts already assessed by him, namely the right ankle and left knee, or those not previously assessed by him, namely the right wrist, gastro-intestinal injuries – digestive system and scarring, it was open to the applicant to lodge his own application for reconsideration. He has not done this.
The respondent submits that there has not been any assessment by an AMS or Medical Assessor of scarring and that there can therefore be no reconsideration of this claimed impairment.
The respondent refers to s 322A(1A) of the 1998 Act which provides:
“A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.”
The respondent submits that, at the end of the day, even if a dispute about any permanent impairment in respect of the claimed condition in the right wrist consequent upon use by the applicant of a walking stick is referred to Dr Truskett for assessment, that is of no consequence. That is because the only MAC which will issue once he has assessed the lumbar spine is that of Dr Truskett. That MAC is the only certificate that the parties can rely upon for all purposes, including an assessment for the purpose of s 39 of the 1987 Act, if the degree of permanent impairment resulting from the injury is more than 20%.

Applicant

In the applicant’s submissions dated 30 September 2021 he seeks to amend the Application to include injury to the left knee, scarring, gastrointestinal injury and CRPS. At the arbitration hearing on 15 December 2021 the claim in respect of CRPS was abandoned.
The applicant submits that reconsideration by the Medical Assessor is required in respect of the areas assessed by him in December 2019, namely:
(a)    right lower extremity (ankle);
(b)    lumbar spine, and
(c)    left lower extremity (knee).
The applicant also submits that the following body parts should be included in the assessment which were not included in the current MAC of Dr Truskett or in the Application:
(a)    right wrist;
(b)    gastrointestinal injuries – digestive system, and
(c)    scarring (TEMSKI).

In oral submissions the applicant submits that the current application for reconsideration by the respondent and the response thereto by the applicant raises issues as to what is “a just and fair outcome between the parties”, noting the Delegate’s reference to procedural fairness and the substantial merits of the case as referred to at [22] of the Delegate’s decision, with reference to what was held in Samuel v Sebel Furniture Limited[1]. The applicant notes that the outcome of the current proceedings is relevant to his entitlement to receive weekly benefits beyond the five year limit referred to in s 39 of the 1987 Act.
[1] [2006] NSWWCCPD 141 (Samuel).
The applicant refers to the previous assessments and awards in respect of injury sustained on 16 July 2009 and conditions consequent to such injury.
The applicant submits that the preclusion in s 322A of the 1998 Act of any further assessment of the degree of permanent impairment must be read with s 329, and that both sections, and s 327 in respect of appeal appeals against medical assessment, are in Part 7 of the 1998 Act that deals with medical assessment.
The applicant submits that s 329(2) of the 1998 Act which provides that:
“A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
is essential reading in this matter. The section contemplates referral and re-referral on numerous occasions. The applicant concedes however that there cannot be unlimited applications for reconsideration pursuant to s 329 of the 1998 Act. There must be an evidentiary basis for such an application, and there is such a basis in the current matter.
The applicant submits that there is a need for assessment of all injuries and conditions that result from injury or are consequent upon such injury. This was recognised by the Delegate in his Decision dated 3 September 2021 when he set a timetable for further evidence and submissions. He identified the need for consideration of additional matters not previously assessed by Dr Truskett. The applicant then refers to the assessments recently made by Dr Bodel in his reports dated 6 August and 13 September 2021[2]. The applicant refers to the up-to-date clinical material attached to his applicant’s submissions dated 30 September 2021, including in particular, the report of Dr Sol Qurashi dated 6 April 2021 in respect of the left knee and the report dated 7 October 2020 of the CT arthrogram of that knee[3]. The applicant also refers to the assessments made by Dr Breit in his reports dated 23 July 2019 and 24 June 2021[4]. The applicant notes that Dr Breit assessed scarring to the right ankle, two weeks before the further surgery to the lumbar spine to insert the spinal cord stimulator.
[2] Applicant’s submissions 30.09.21 pp 9 and 17 (noting that page references are to the page numbers in the Commission’s electronic records).
[3] Applicant’s submissions 30.09.21 pp 95 and 104.
[4] Applicant’s submissions 30.09.21 pp 19 and 28.
The applicant submits that, in view of the limited previous referral to Dr Truskett of the lumbar spine, right knee and left ankle and the up-to-date assessments of Dr Bodel and Dr Breit, there is now clear evidence of what must be assessed to avoid injustice to the applicant and re-referral to a Medical Assessor. This is particularly relevant, and would create such a substantial injustice to the applicant, if the lumbar spine only is referred to the Medical Assessor, and the respondent then relies upon s 322A(2) of the 1998 Act to submit, in accordance with that subsection, that “The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned.”
The applicant notes that such a further or subsequent medical dispute could be in respect of the entitlement to receive compensation beyond the five year limitation period provided for in s 39 of the 1987 Act, and that in such context, the permanent impairment resulting from all injuries suffered on 16 July 2009, or conditions consequent upon such injuries, should be considered in the one assessment that may be made of the degree of permanent impairment of an injured worker contemplated by s 322A(1) of the 1987 Act.
The applicant also submits that if he fails to raise and submit that all injuries and conditions should be referred to a Medical Assessor in the context of the current application for reconsideration lodged by the respondent, he may be met with a defence of estoppel in any future application by him on the basis of the finding of the High Court in the case of Port of Melbourne Authority v Anshun Pty Limited[5].
[5] [1981] HCA 45; (1981)147 CLR 589.
The applicant submits that, as articulated in [2.(b)] of Direction dated 3 November 2021, the Application should be amended to include the conditions referred to in [(i)-(iii)] of that sub paragraph. The applicant submits however that the assessment of the AMS Dr Neil A Berry in his MAC dated 15 July 2015 of 1% WPI in respect of the condition in the upper digestive tract[6] should be accepted and incorporated in the final assessment of the Medical Assessor to whom the matter is referred to for reconsideration. The applicant concedes that Dr Truskett is the Medical Assessor to whom the matter should be referred back to.
[6] Application pp 37 and 45.
The applicant notes that pursuant to s 329 of the 1998 Act, the Commission of its own motion may refer the matter for reconsideration, that the Delegate’s decision has created a path for such reconsideration by recognising that the applicant’s claim has progressed significantly from the limited original referral to Dr Truskett. The timetable for further evidence and submissions set by the Delegate provides a basis for the consideration and reception of further evidence in support of the more extensive referral now sought by the applicant.
The applicant submits that, having regard to the justice and merits of his case, to the assessments now in evidence and in particular to those of Dr Breit on behalf of the respondent, and to the up-to-date treating clinical records now lodged by him, there is no real prejudice to the respondent in allowing all of the injuries and conditions claimed to be referred to Dr Truscott for assessment. The Application should be amended accordingly. The applicant articulated the orders sought by him which will be referred to hereunder in the event that there is a finding in his favour.

Respondent in reply

The respondent submits that, having regard to the Certificate of Arbitrator Michael Wright dated 10 February 2020, there can be no amendment to the Application to include body parts not referred to the Medical Assessor. The matter was referred to an AMS and that Certificate dealt with what was referred to the AMS, and it is not appropriate that the Application now be amended. That Application has already been dealt with.
The respondent submits that what the applicant is now in effect doing is making an application for reconsideration from the bar table. It was open to the applicant to do this in the past, but he has not done so. The respondent submits that it will suffer prejudice if the applicant is allowed to either amend the Application now, or have referred to Dr Truskett the additional body parts he now seeks to have assessed in addition to those already referred to him and assessed. The prejudice is that, according to the respondent, if the applicant had made an application for reconsideration, the respondent would then have had the opportunity to respond as the applicant has done in respect if its application for reconsideration.
The respondent notes that the Commission is a creature of statute, which must be complied with. The respondent refers to the decision of Deputy President Michael Snell in Pidcock Panel Beating Pty Ltd v Nicolia[7], noting that there must be a dispute raised, and that the applicant has never made a claim in respect of the consequential condition now claimed in the right wrist. The respondent refers to the notice under s 78 of the 1998 Act dated 19 August 2019 in which GIO disputed liability for the consequential injury to the right wrist[8].
[7] [2017] NSWWCCPD 32.
[8] Application p 1050.
The respondent submits that the applicant has never articulated a claim for reconsideration, and stresses that s 322A of the 1998 Act has to be complied with. It submits that subsection (1A) does not take the matter any further in respect of an assessment of permanent impairment that has not been the subject of referral to an AMS or Medical Assessor. There is only one assessment that can be made of the degree of permanent impairment, and such an assessment can be the subject of an appeal or application for reconsideration. In this case, the respondent has adopted the latter course.
The respondent notes that it has continued to pay the applicant weekly compensation pending finalisation of the MAC of Dr Truskett, and the question of unfairness, as articulated by the Delegate in his decision, applies equally to the respondent as well as the applicant.
In respect of further assessment of the left knee, the respondent submits that there is no “dispute” as such before the Commission, as the question of deterioration of the condition in the knee has not been addressed by the respondent.
The respondent draws attention to the body parts originally claimed in the Application, noting that by consent, all but the lumbar spine, the right ankle and left knee were abandoned when the matter was referred to an AMS for assessment.
The respondent does not take issue with the 1% WPI in respect of the upper digestive system, assessed by Dr Berry in MAC dated 15 July 2015, being referred to Dr Truskett for inclusion in any final assessment of WPI.
The respondent notes that in respect of scarring, that was not assessed by Dr Truskett and that there has been no specific claim in respect thereof.

Applicant’s further submissions

Th applicant draws attention to s 319 of the 1998 Act, noting that there can be a “medical dispute” as defined therein in relation to a threshold dispute for the purpose of s 39 of the 1987 Act. The definition of that term refers to matters “…in connection with a claim” including “(c) the degree of permanent impairment as a result of an injury.”
The applicant has made the one claim for permanent impairment pursuant to s 66 of the 1987 Act allowed to him after 2012, and it is the degree of permanent impairment as a result of injury on 16 July 2009 which must be determined in the current proceedings. The applicant submits that s 321A of the 1987 Act identifies the need for assessment of all areas of injury or condition as a result of injury. The applicant did not refer to any regulations made pursuant to that section.
The applicant refers to a Workers Compensation Commission case of Weate v Racing NSW[9], a decision I gave in which the applicant attempted to use the opinion of an independent medical examiner that he had not reached MMI in order to obtain an entitlement of ongoing weekly benefits beyond the 260 week limit provided for in s 39 of the 1987 Act. The applicant worker was unsuccessful in that case.

FINDINGS AND REASONS

[9] [2019] NSWWCC 397.

The Delegate’s decision

The Delegate of the President in the Statement of Reasons for the orders made by him on 3 September 2021 set out a relevant background to the respondent’s application for reconsideration, referred to the MAC of Dr Truskett, the respondent’s application and the applicant’s submissions in response and then gave reasons for his decision. That decision principally addressed the matter of procedural fairness raised by the applicant in responding the respondent’s reconsideration application dated 27 July 2021. The Delegate observed that the applicant had taken no steps to prosecute his case by obtaining further evidence since the assessment by Dr Breit on 17 June 2021 or the lodgement of the reconsideration application other than lodging submissions in response seeking an extension of time to obtain the necessary evidence.

The applicant’s submissions (“applicant’s response 12.08.21”) sought a timetable for the lodgement and service of fresh evidence from the applicant, and that that matter be referred to “the appointed AMS” to assess the following injuries/body parts in determining WPI resulting from injury on 16 July 2009:
(a)    the right lower extremity (ankle);
(b)    the left lower extremity (knee);
(c)    the lumbar spine;
(d)    the upper digestive tract;
(e)    the lower digestive tract, and
(f)    consequential scarring.
At [31]-[32] the Delegate observed:
“31. In terms of the scope of the assessment, at this stage I am not satisfied that any reconsideration should go beyond that sought by the respondent. There is no evidence that the applicant’s condition has deteriorated in any of the body parts assessed by the Medical Assessor (or previously assessed) nor is there sufficient evidence provided that the claim can be expanded beyond that set out in the Application.
32. It may be that the production of further evidence changes this position, at which point my decision can be reconsidered and the referral can be amended.”

The Delegate fixed the timetable set out in [17] above following which the applicant’s submissions dated 30 September 2021 and the respondent’s submissions dated 19 October 2021 were lodged. The applicant in its submissions, for the first time, raised the issue of the condition in his right wrist claimed to be consequent upon injury of 16 July 2009 because of the use of a walking stick. He also submitted that the Application should be amended to include injury to the left knee, scarring, gastrointestinal injury and CRPS. Attached to those submissions were relevantly:
(a)    reports of Dr James Bodel dated 6 August 2021 and 13 September 2021;
(b)    reports of Dr Robert Breit dated 23 July 2019 and 24 June 2021, and
(c)    statement of the applicant dated 28 August 2021.
The applicant does not now press amendment of the Application to include CRPS.

Evidence of deterioration in the applicant’s condition?

I will refer to the reports referred to in [67(a) & (b)] in chronological order as follows.
Dr Breit in his report dated 23 July 2019 noted under “PRESENT COMPLAINTS” that the applicant continued to use a walking stick when outside but not inside. When examined he used the walking stick in his right hand and walked with a marked right externally rotated antalgic gait, which was quite variable. He found no swelling or deformity in the right wrist and displayed negligible movement, inconsistent with that displayed while using the walking stick. Dr Breit could not make a diagnosis with respect to the right wrist, given that there was not even a plain x-ray and the applicant’s presentation of gross maximisation and inconsistency.
Dr Breit said that given the chronic use by the applicant of his stick, it is reasonable to indicate a consequential injury to the (right) wrist, but that given the inconsistencies displayed by the applicant he had no option other than to invoke the SIRA (State Insurance Regulation Authority) Guides, Chapter 1, [1.36] and indicate 3% WPI. After a deductible quantum of 1/10^th for pre-existing injury/condition and using the rounding rule, the same percentage impairment results. The reference by Dr Breit to the “SIRA Guides” is to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, fourth edition 1 April 2016, reissued 1 March 2021.

Dr Breit assessed the lumbar spine at 5% WPI, no impairment of the left knee and indicated that the previous assessment of Dr Berry on behalf of the WCC of 11% WPI for the right ankle should stand.
In respect of scarring, Dr Breit assessed scarring over the dorsum of the right foot in accordance with TEMSKI at 1% WPI.

In his report dated 24 June 2021, in accordance with what was referred to him, Dr Breit assessed the lumbar spine only. He assessed 5% WPI plus 2% WPI for activities of daily living (ADL) for a total of 7% WPI.
Dr Bodel in his report dated 6 August 2021 made the following assessments:
(a)    left lower extremity – 8% WPI;
(b)    right lower extremity – 7%;
(c)    lumbar spine – 7%, and
(d)    scarring – 2% WPI.
In respect of scarring, this was an assessment of impairment for the collective rating of all scars, including the scars on the lower back associated with the spinal stimulator and the scar on the lateral aspect of the right ankle.
In his supplementary report dated 13 September 2021 Dr Bodel was asked to comment on the assessment of Dr Breit of 3% WPI in respect of the right wrist, given in his report dated 23 July 2019. Dr Bodel noted the inconsistent presentation recorded by Dr Breit and his application of [1.36] of the SIRA Guides. Dr Bodel noted that at the time of his assessment of the applicant, he did not record any restricted range of wrist movement. He adopted the explanation given by Dr Breit and attributed 3% WPI for the right upper extremity.
The applicant also relies on the findings and recommendation of Dr Sol Qurashi in respect of the treatment of his left knee, referred to at [45] above. Dr Qurashi had the benefit of a CT arthrogram of the left knee which showed appearances consistent with chondromalacia predominantly affecting the patellofemoral compartment associated with a joint effusion. Those were of moderate degree in that compartment. Dr Qurashi suspected that the applicant did have some arthritic change or meniscal pathology and sent Mr Allouche for a corticosteroid injection and some weight bearing x-rays.
Summarising the assessments of Dr Breit, Dr Bodel and the Medical Assessor, Dr Truskett, the following is apparent:
(a)    right lower extremity (ankle): Dr Truskett 12% WPI, Dr Breit 11% WPI and Dr Bodel 7% WPI;
(b)    left lower extremity (knee): Dr Truskett 0% WPI, Dr Breit 0% WPI and Dr Bodel 8% WPI;
(c)    lumbar spine: Dr Truskett no assessment (MMI not reached), Dr Breit 7% WPI and Dr Bodel 7% WPI;
(d)    right wrist: Dr Truskett no assessment (not referred to him), Dr Breit 3% WPI and Dr Bodel 3% WPI, and
(e)    scarring: Dr Truskett no assessment (not referred to him), Dr Breit 1% WPI (right ankle only) and Dr Bodel 2% WPI (right ankle and lower back).
The assessment in respect of the lumbar spine is not relevant to the issue of deterioration as there is no issue that it is to be referred to Dr Truskett. Accepting the assessment of Dr Bodel for the purpose of the issue as to whether there has been deterioration in the applicant’s condition, it provides prima facie evidence of deterioration in the left knee. That may be because of the natural progression of a condition in that knee, or because of the condition in that knee consequent upon injury to the right ankle on 16 July 2009 as found by Arbitrator Haddock and recorded in Certificate of Determination dated 29 May 2015[10]. If (emphasis added) the left knee is referred back to Medical Assessor Dr Truskett, that will be a matter for his determination. Dr Truskett will have the benefit of up-to-date medical evidence of investigation and treatment of the knee.
[10] Response p 63.
It may be argued that there is no evidence of deterioration in the right ankle. The assessment of Dr Bodel is less than that given by Dr Truskett, and by Dr Breit on 23 July 2019, that is prior to the assessment of Dr Truskett on 9 December 2019 and recorded in the MAC of 7 January 2020. I note that Dr Breit in giving his assessment adopted the previous assessment of 11% WPI found by Dr Berry. However, if (emphasis added) the left lower extremity is to be referred for further assessment by Dr Truskett, in my view the right lower extremity should also be referred. Not to do so would be unfair to both parties and create an artificial outcome of an assessment of the two lower extremities at different dates two years apart.
In my view there is prima facie evidence of deterioration in the applicant’s condition in respect of the left knee. That does not necessarily mean that the left knee and right ankle must be referred for further assessment together with the lumbar spine.

Should the right wrist be referred for assessment?

The respondent has at no time conceded that the applicant suffers a condition in his right wrist consequent upon injury to the right ankle on 16 July 2009. In the s 78 notice dated 19 August 2019 referred to at [54] above, GIO denied liability for such condition. The respondent submits correctly that the applicant has at no time in the past made a claim that he suffers from such a condition, and there has been no determination of the respondent’s liability. It was only when the applicant made his submissions on 30 September 2019 that it was submitted that the right wrist should be referred to Dr Truskett for assessment. This is against the background of the injury description in Part 4 of the Application, which included “right wrists” [sic], which did not form part of the matters to which the parties gave consent to referral to AMS (so described at that time) on 18 November 2019.
The applicant submits that Dr Breit concedes that given the use of a walking stick it is reasonable to indicate that the applicant would have suffered a condition in his right wrist and notes the assessment of 3% WPI. The applicant relies on Dr Bodel’s adoption of this degree of assessment in his report dated 13 September 2021, notwithstanding that at the time of his assessment of Mr Allouche, he did not record the restricted range of wrist movement.
Clause [1.36] of the SIRA Guides provides for inconsistent presentation to a Medical Assessor in the following terms:
“Consistency tests are designed to ensure reproducibility and great accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgement when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.”
In his report dated 6 August 2021 Dr Bodel expresses the following opinion in respect of consequential injuries to the back and left knee:
“There is a direct causal link between the frank injury that occurred at work involving the right ankle on 16 July 2009 and the consequential injuries to the back and left knee. All interrelated consequential injuries flow from the injury to the ankle.”
The doctor does not express an opinion on the causation of the claimed consequential condition in the right wrist. Similarly, in his report dated 13 September 2021 he does not express such an opinion, simply accepting the opinion and assessment of Dr Breit.
In my view, having regard to the absence of a finding that the applicant’s claimed condition in the right wrist is consequent upon injury to the right ankle, or admission by the respondent that such is the case, and the failure of the applicant to bring such a claim until it was raised in submissions lodged 30 September 2019, the assessment of a condition in the right wrist claimed to be consequent upon injury to the right ankle on 16 July 2009 should not be referred to Dr Truskett for assessment.

Gastrointestinal condition

Both the applicant and the respondent accept that the assessment of Dr Berry of 1% WPI in respect of condition in the upper digestive tract can be referred to Dr Truskett for incorporation by him in an assessment of WPI of the matters in which he is to be asked to now provide an assessment.

Scarring

Clause [14.7] of the SIRA Guides provides:
“The table for the evaluation of minor skin impairment (TEMSKI) (see Table 14.1 below) is an extension of Table 8-2 in AMA5. The TEMSKI divides class 1 of permanent impairment (0-9%) due to skin disorders into five categories of impairment. The TEMSKI may be used by trained assessors (who are not trained in the skin body system), for determining impairment from 0-4% in the class 1 category, that has been caused by minor scarring following surgery. Impairment greater than 4% must be assessed by a specialist who has undertaken the requisite training in assessment of the skin body system.”
There is nothing in the evidence to indicate that either Dr Breit or Dr Bodel are assessors who are trained in the skin body system. They have both provided an assessment of scarring according to TEMSKI. Dr Breit’s assessment was made before the applicant underwent implantation of the spinal stimulator and therefore does not include scarring of the back as does the assessment of Dr Bodel. Dr Breit’s assessment is contained in his report dated 23 July 2019 in the following terms:
“Under the TEMSKI scale, the more recent scar over the dorsum of the right foot, which is a little spread and discoloured, although it is covered all the time does warrant 1% WPI.”
Notwithstanding this assessment of Dr Breit, the assessment of scaring was not included in the Consent Orders dated 18 November 2019 when the matter was referred to an AMS, although that referral did include, as set out in [9] above, the words “consequential condition resulting from such injury” which could on one view have referred to the scarring assessed by Dr Breit. There appears to be an error in the Certificate of Determination – Arbitrator Michael Wright dated 10 February 2020 (COD 10 February 2020) in [1] thereof which is in the following terms:
“1. That the applicant suffers 12% permanent impairment in respect of lumber [sic] spine and scarring (emphasis added) resulting from injury on 16 July 2009 or consequential condition resulting from such injury.”

There was no assessment of scarring in the MAC of Dr Truskett. He simply assessed 12% WPI as a result of injury to the right ankle on 16 July 2009 and 0% WPI as a result of injury to the left knee on that date.

Dr Bodel’s assessment in his report dated 6 August 2021 is as follows:
“The scarring, as I indicated, is a 2% whole person impairment for the collective rating of all the scars, including the scars in the lower part of the back associated with the spinal stimulator and the scar on the lateral aspect of the right ankle.”
In his report dated 24 June 2021 Dr Breit describes his findings on examination of the applicant on 17 June 2021 in respect of scarring to the back as follows:
“There was a 4cm midline lumbar scar with slight spread and discoloration, there was a transverse scar in the left flank that was almost invisible.”
Dr Breit does not give an assessment of this scarring.
Having regard to cl 14.7 of the SIRA Guides, the examinations of the applicant and assessments made to date by Dr Breit and Dr Bodel, and the error in the COD dated 10 February 2020, I am of the view Dr Truskett should be asked to provide an assessment of scarring in accordance with TEMSKI on referral of the matter to him for assessment of the lumbar spine together with such other body parts that are det ermined hereunder should be referred to him. Dr Truskett will have the benefit of:
(a)the assessment of Dr Bodel of scarring to the right ankle and lower back;
(b)the assessment of Dr Breit of the scar over the dorsum of the right foot and his observation of the lower back scarring, and
(c)most importantly, his own observation and assessment of scarring.

Referral of body parts other than the lumbar spine.

Having regard to the foregoing findings, the remaining matter for determination is whether the right ankle and left knee should be referred back to Dr Truskett together with assessment of the lumbar spine. The respondent opposes this, relying on s 322A of the 1998 Act, which states that only one assessment may be made of the degree of permanent impairment of an injured worker. It submits that, once Dr Truskett has assessed permanent impairment of the lumbar spine, assessment of the body parts referred pursuant to Consent Orders dated 18 November 2019 and Referral dated 19 November 2019 is complete and constitutes the one and only assessment that may be made of the degree of permanent impairment of an injured worker pursuant to s 322A(1) of the 1998 Act.
The applicant submits that the justice and merits of the case require that that both the right ankle and left knee, together with the right wrist, gastrointestinal system and scarring which have been considered above, be referred to the Medical Assessor for assessment together with the lumbar spine. The applicant submits the Delegate’s decision has created a pathway for this to occur and indicates that the matter has proceeded beyond the situation in existence when the matter was first referred to the AMS, Dr Truskett.
The Delegate’s decision was primarily concerned with procedural fairness to both parties in terms of the respondent’s reconsideration application dated 27 July 2021. This is addressed at [22]-[24] of the Delegate’s decision. At [24], the Delegate says:
“Having said all that, it is of course important that the worker be afforded the opportunity to properly present his case. The evidence referred to, including the clinical records, an updated statement, and an IME assessment, will potentially assist the Medical Assessor in properly assessing the worker on reconsideration.”

The Delegate then, from [25], goes on to discuss the applicant’s request for reconsideration body parts not limited to the lumbar spine, including body parts already assessed for permanent impairment, that is, the right ankle and left knee. The Delegate at [28] says that the matter is not ready to be referred back to the Medical Assessor and thereafter discusses a timetable. His comments at [31]-[31] are set out above at [66].
The Delegate’s decision recognised and addressed the need for procedural fairness in the way that the respondent’s reconsideration application dated 27 July 2021 proceeded before the Commission. The Delegate noted the applicant’s reference to the obligation, referred to in Samuel, to do justice between the parties according to the substantial merits of the case. That is no doubt correct, noting however that the case of Samuel was in respect of an application for reconsideration of a decision of the Commission under the now repealed s 350 of the 1987 Act. The provisions of s 350 of the 1998 Act are now found in ss 56(1) and (2) and 57(1) of the Personal Injury Commission Act 2020.
I do not accept the applicant’s submission that the Delegate’s decision recognises the need for assessment in these proceedings of all injuries and conditions that result from injury or are consequent upon such injury. Nor do I accept that “the justice and merits of his case” require such an assessment in the current proceedings, or that the Delegate’s decision has created a path for such reconsideration by recognising that the applicant’s claim has progressed significantly from the limited original referral to Dr Truskett.
Section 322A of the 1998 Act is as follows:
“(1)    Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2)     The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3)     Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of:
(a)assessment and a medical assessment certificate under this Part, or
(b)a determination by the Commission under Part 4.
(4)     This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by Arbitrator).”

The applicant submits that the preclusion in s 322A of the 1998 Act of any further assessment of the degree of permanent impairment must be read with s 329, and that both sections, and s 327 in respect of appeal appeals against medical assessment, are in Part 7 of the 1998 Act that deals with medical assessment.
In O’Callaghan v Energy World Corporation Ltd[11] Acting President Roche said at [88]-[89] with reference to the facts in that case:
“88. The interpretation urged by Mr McManamey is not consistent with s 322A. That provision was introduced as part of a range of measures introduced in the Workers Compensation Legislation Amendment Act 2012, which were designed to reduce benefits for permanent impairment compensation. It works in concert with s 66(1A) of the 1987 Act, introduced at the same time, which restricts a worker to only one claim under the 1987 Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
89. Consistent with a worker now having the right to make only one claim for permanent impairment compensation, only one assessment may be made of the degree of permanent impairment of an injured worker (s 322A(1)). Ms O’Callaghan has made one claim and had one assessment of the degree of her permanent impairment for that claim. However, s 322A does not affect the operation of s 327 (s 322A(4)). Therefore, if Ms O’Callaghan were entitled to rely on s 327(3)(a), s 322A would not prevent her from doing so. For the reasons explained above, she is not entitled to rely on s 327(3)(a).”
[11] [2016] NSWWCCPD 1.
Earlier, in Read v Liverpool City Council[12] Malpass AsJ said at [27] with reference to s 329 of the 1998 Act:
“... it may be that s 329 was intended to provide a remedy in cases where no grounds of appeal can be made out but the dictates of justice require a further referral for assessment.”
[12] [2007[ NSWSC 320.
In Milosavljevic v Medina Property Services Pty Ltd[13] Roche DP accepted that statement as correct with the qualification:
“That is not to say that the section stands outside the terms of the Workers Compensation Acts. It doesn’t, and it must be read in the context of that legislation. There is nothing to indicate that the legislature intended that section 329 could be used in an unrestrained or unlimited way regardless of the Commission’s previous orders or determinations. The exact scope of section 329 must be determined on a case-by-case basis;”
[13] [2008] NSWWCCPD 56 (Milosavljevic).
In Pidcock Panel Beating Pty Ltd v Nicolia[14] Snell DP at [75] accepted the correctness of passages in Milosavljevic dealing with s 329, including that quoted above, as being correct. At [89] the Deputy President said that:
“Section 329(1) provides for ‘a matter referred for assessment’ to be ‘referred again’, that is, the same matter that was previously referred.”
He then went on to discuss cl 28D of the Workers Compensation Regulation 2016 - Schedule 8 (Further Permanent Impairment Assessments) dealing with “only one further assessment may be made of the degree of permanent impairment”, which is not relevant to the current proceedings.
[14] [2017] NSWWCCPD 32.

In my view in the circumstances of this case, the lumbar spine, together with scarring for the reasons given above, are the only body parts that should be referred to the Medical Assessor for assessment in accordance with the respondent’s reconsideration application dated 27 July 2021. On 9 December 2019 Dr Truskett assessed the right ankle and left knee in accordance with the Consent Orders dated 18 November 2019 and Referral dated 19 November 2019. He declined to assess the lumbar spine as that could not be done due to the recent implantation of a spinal cord stimulator, and suggested that the back could be better assessed in six months’ time. The respondent has now applied for assessment of the lumbar spine, and submits that on completion of that assessment, together with:
(a) inclusion of the 1% WPI in respect of condition in the upper digestive tract assessed by Dr Berry that the parties have agreed should be included in the assessment, and
(b) assessment of scarring in accordance with TEMSKI, which I have determined should be included in the assessment,
the assessment of Dr Truskett will be complete, and constitute the one assessment that may be made of the degree of permanent impairment of an injured worker in accordance with s 322A of the 1998 Act.

Amendment of the Application

It follows from my findings that the application to amend the Application made in the applicant’s submissions dated 30 September 2021 is rejected.

SUMMARY

Pursuant to s 329(1A) of the 1998 Act, the matter is remitted to the President for referral to Medical Assessor Dr Phil Truscott for assessment of WPI as a result of:
(a) condition in the lumbar spine consequent upon injury on 16 July 2009, and
(b) scarring to the right foot and lower back in accordance with TEMSKI.
The Medical Assessor is to include in his assessment of total percentage WPI in accordance with the Combined Table values, in addition to the assessments referred to in [108] above:
(a) the assessment of 1% WPI made by Dr Neil A Berry in respect of the upper digestive tract in MAC dated 15 July 2015, and
(b) his assessments of WPI in respect of the right lower extremity (ankle) and left lower extremity (knee) contained in MAC dated 7 January 2020.
The documents to be referred to the Medical Assessor are
(a)    the Application and attached documents;
(b)    Response to Application for Assessment by an Approved Medical Specialist (the Response);
(c)    Certificate of Determination – Consent Orders dated 18 November 2019;
(d)    Referral for Assessment of Permanent Impairment to Approved Medical Specialist issued by WCC dated 19 November 2019;
(e)    MAC Dr Phillip Truskett dated 7 January 2020;
(f)    Certificate of Determination – Arbitrator Michael Wright dated 10 February 2020;
(g)    report Dr Robert Breit dated 24 June 2021;
(h)    documents attached to the applicant’s submissions dated 30 September 2021 commencing with and including “Supplementary Statement Khaled Allouche 28 September 2021” and concluding with and including “Patient Medical History Wentworthville Pharmacy 1 January 2009 – 10 September 2021”, and
(i)    this Certificate of Determination and Statement of Reasons.

[2022] NSWPIC 1

10 January 2022