Apps v Secretary, Department of Communities and Justice

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Apps v Secretary, Department of Communities and Justice [2022] NSWPIC 190
APPLICANT:	Karen Apps
RESPONDENT:	Secretary, Department of Communities and Justice
MEMBER:	Nicholas Read
DATE OF DECISION:	29 April 2022
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation; worker suffered injuries to cervical spine, lumbar spine left upper extremity (shoulder), lower left extremity (knee, foot and ankle); no identified impairment in lumbar spine and body part assessed as 0% permanent impairment; whether body part of lumbar spine ought to be included in the referral to a Medical Assessor (MA); Held– claim made on the basis of combined assessment of worker’s medicolegal doctor that did not include any impairment assessment of the lumbar spine; no valid claim made in respect of any impairment to the lumbar spine capable of being referred for assessment by a MA; considered authorities regarding making a valid claim and Shankarv Ceva Logistics (Australia) Pty Ltd; no claim for impairment of the lumbar spine that was capable of forming the basis of a “medical dispute”; matter referred to a MA to assess the combined degree of permanent impairment resulting from the body parts to which rateable impairment has been identified by the worker’s medicolegal doctor.
DETERMINATIONS MADE:	1. The body part/system of lumbar spine does not form part of the claim for lump sum compensation for permanent impairment and is not to be referred to a Medical Assessor. 2. The matter is remitted to the President to be referred to a Medical Assessor to assess the degree of whole person impairment as follows: a. Date of injury: 2 December 2016, and b. Body parts/systems: cervical spine, left upper extremity (shoulder), lower left extremity (knee, foot & ankle). 3. The documents to be referred to the Medical Assessor are: a. Application to Resolve a Dispute, and attachments, and b. Reply, and attachments.

STATEMENT OF REASONS

BACKGROUND

Ms Apps suffered an injury at work on 2 December 2016 when she fell heavily onto her left side.
On 6 August 2021 Ms Apps made a claim for lump sum compensation based on assessments made by Dr James Bodel, orthopaedic surgeon.
In his impairment assessment dated 26 August 2019, Dr Bodel assessed Ms Apps as suffering from 18% impairment (WPI) as a result of her injury comprising of:
(a)    7% WPI cervical spine (neck);
(b)    6% WPI left upper extremity (shoulder);
(c)    15% WPI left upper extremity (knee, ankle and foot); and
(d)    0% WPI lumbar spine.
In respect of the lumbar spine Dr Bodel said Ms Apps had a DRE Lumbar Category 1 assessable impairment and there was no asymmetry of movement or guarding and no clinical sign of radiculopathy and therefore a 0% WPI rating (Application to Resolve a Dispute (ARD) page 42).
On 2 November 2021 Ms Apps saw Dr Yiu-Key Ho, orthopaedic surgeon, at the request of the Secretary, Department of Communities and Justice (the respondent). In a report dated 5 November 2021, Dr Ho assessed Ms Apps as suffering from 7% WPI, comprising of 5% WPI resulting from a left upper extremity impairment and 2% WPI resulting from a left ankle injury. Dr Ho said “...if one looks at the low back, using AMA Guides 5^th Edition, Table 15-3, this is obviously DRE Lumbar Category I, with 0% whole person impairment. Ms Apps has good movement, no neurology, full straight leg raising, equating to 0%” (Reply page 15).
On or around 7 December 2021 Ms Apps submitted a permanent impairment claim form. The claim form stated the body systems affected by her injury were: “cervical and lumbar spine, left upper arm, left low leg” (ARD page 18).
The respondent disputed liability on the basis that Ms Apps did not exceed the threshold required to obtain lump sum compensation, relying upon a report from Dr Ho.
In late December 2021 Ms Apps brought an application in the Personal Injury Commission (the Commission) seeking a referral to a Medical Assessor. The body systems claimed on the ARD Form included the lumbar spine.
On 1 February 2022 the respondent wrote to Ms Apps advising that it was instructed to accept the claim in relation to the lumbar spine only. The respondent said it did not agree that the lumbar spine, which had been assessed by Dr Bodel as having 0% WPI, could be referred for assessment by a Medical Assessor (respondent’s Application to Admit Late Documents, page 1).
On 1 February 2022 Ms Apps wrote to the respondent advising that it did not accept that it was open to the respondent to accept a portion of Dr Bodel’s assessment. Ms Apps maintained her position that her lumbar spine was injured and ought to be referred for assessment by a Medical Assessor.
On 3 February 2022 the respondent wrote to Ms Apps as follows:
“The claim made by the Applicant on 6 August 2021 did not include a claim for any lump sum compensation in respect of the lumbar spine; given the wording of the letter sent by your office and the fact that Dr Bodel assessed 0% WPI [see Skates v Hill Industries Ltd [2021] NSWCA 142]. As such, the ‘medical dispute’ [see s.319 of the Workplace Injury Management andWorkers Compensation Act 1998 (‘WIM Act’)], created by the issuing of the s.78 notice dated 22 November 2021 could not have incorporated the lumbar spine. Therefore, the Personal Injury Commission holds no jurisdiction to refer the lumbar spine for assessment under Part 7 of the WIM Act.
In the alternative, as the Respondent has now accepted the Applicant's claim in respect of the lumbar spine, being 0% WPI, there is no longer a ‘medical dispute’ in respect of that body part. On that basis, the Personal Injury Commission does not hold the jurisdiction to refer the lumbar spine for assessment by a Medical Assessor under Part 7 of the WIM Act. It is noted that there is no restriction on a party withdrawing a dispute after the issuing of a dispute notice.
For the reasons outlined above, the Respondent is of the view that only the cervical spine, left upper extremity (left shoulder) and left lower extremity (left knee and foot).”
Ms Apps maintained her position that a medical dispute existed which incorporated injury to the lumbar spine and all impacted body parts ought to be referred for assessment. In part, Ms Apps relies upon the decision of Acting Deputy President Parker SC in Shankarv Ceva Logistics (Australia) Pty Ltd (2021) NSWPICPD 18 (Shankar).

ISSUE FOR DETERMINATION

The issue for determination is whether the body part of “lumbar spine” ought to be referred for assessment in the circumstances where it has been assessed as having 0% WPI.
This issue requires consideration of whether Ms Apps had made a valid “claim” for lump sum compensation in respect of the lumbar spine.

PROCEDURE BEFORE THE COMMISSION

The parties agreed that the matter should be determined by me, on the papers.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them. I was satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and have been taken into account in making this determination:
(a)    ARD, and attachments;
(b)    Reply, and attachments (Reply);
(c)    applicant’s Application to Admit Late Documents, and attachments;
(d)    respondent’s Application to Admit Late Documents, and attachments;
(e)    applicant’s further written submission dated 24 February 2022;
(f)    respondent’s written submission dated 4 March 2022; and
(g)    applicant’s written submissions in reply dated 10 March 2022.

REASONS

Section 4 of the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act) defines “claim” as “a claim for compensation...that a person has made or is entitled to make.”
The SIRA Guidelines for claiming workers compensation, which are made under 1998 Act provide the following relevant information in respect of making claims for permanent impairment compensation:
“It [the claim] must include a report from a permanent impairment assessor listed on the SIRA website, as trained in the assessment of the part or body system being assessed. The report must include:
·A statement that the condition has reached maximum medical improvement.
·An assessment on the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW workers compensation guidelines for the evaluation of permanent impairment in effect at the time of the examination...”
Part 7 of the 1998 Act deals with the resolution of medical disputes by way of referral to a Medical Assessor.
Section 319 defines “medical dispute” as including a dispute between a claimant and the person on whom a claim is made about the degree of permanent impairment of the worker as a result of an injury.
A medical dispute may be referred to a Medical Assessor (section 321, 321A of the 1998 Act).
Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker (section 322(3) of the 1998 Act).
The purpose of section 322(3) of the 1998 Act, is to address the state of "permanent impairment" of a particular person produced by a single incident, with all injuries arising out of the incident being treated as a single injury and all resultant impairments being "assessed together".
The NSW workers compensation guidelines for the evaluation of permanent impairment, Fourth Edition – 1 April 2016 (the Guidelines) provides the following information in respect of “multiple impairments” at paragraph 1.17:
“Impairments arising from the same injury are to be assessed together. Impairments resulting from more than one injury arising out of the same incident are to be assessed together to calculate the degree of permanent impairment of the claimant.”
The Guidelines are based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, fifth edition (AMA5). Unless there is some inconsistency with the WorkCover Guidelines themselves, AMA5 is to be used in performing tasks with which the WorkCover Guidelines deal.
Under AMA5, multiple impairments resulting from an injury or injuries arising out of a single event are combined to determine the degree of permanent impairment of an injured worker. For this purpose, AMA5 uses the "Combined Values Chart" which it describes as follows:
"The Combined Values Chart (p. 604) was designed to enable the physician to account for the effects of multiple impairments with a summary value. A standard formula was used to ensure that regardless of the number of impairments, the summary value would not exceed 100% of the whole person. According to the formula listed in the combined values chart, multiple impairments are combined so that the whole person impairment value is equal to or less than the sum of all the individual impairment values."
By means of the Combined Values Chart, multiple impairments are combined into a summary value, so that the whole person impairment is equal to or less than the sum of all the individual impairments.
Prior to the decision of Acting Deputy President Parker SC in Shankar, various decisions had been issued by the Commission dealing with the necessity to bring a valid claim for permanent impairment compensation as a precondition to a referral to a Medical Assessor.
In Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128 (Abou-Haider) Roche DP dealt with a matter where a worker sought a referral to an Approved Medical Specialist (now Medical Assessor) in the circumstances where she did not have evidence of impairment beyond that which had already been the subject of compensation. The issue was whether, in such an application, it is necessary for a worker to establish a deterioration in his or her condition since the initial claim prior to a matter being referred for assessment. Deputy President Roche said at [55]:
“...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.”
In Woolworths Limited v Stafford [2015] NSWWCCPD 36 (Stafford) DP Roche considered the meaning of the term “claim” applying the principles of statutory interpretation and having regard to context of the 1998 Act, including disentitling provisions. Deputy President Roche said at [66]:
“If, by the making of one claim for permanent impairment compensation, a worker is to be prevented from making any further claim for such compensation, the word ‘claim’ should be interpreted to mean, at the least, a valid claim. On this approach, consistent with the Arbitrator’s conclusion, Mr Stafford’s demand on 7 April 2014 was not a valid claim because it was not capable of payment in accordance with the 1987 Act. As a result, it does not qualify as ‘one claim’ for the purposes of s 66(1A). There are a number of reasons for adopting this interpretation.”
And at [72]:
“Third, the definitions of ‘claim’ and ‘compensation’ strongly favour the conclusion I have reached. That is because a ‘claim’ for permanent impairment compensation is, by definition, a claim for a ‘monetary benefit under’ the legislation. A monetary benefit under the legislation is compensation that is paid or payable. If the claim cannot succeed, because it is under the s 66(1) threshold, it cannot be a ‘claim’ for a monetary benefit under the Act. That is because, in respect of that claim, no compensation is payable.”
In Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 (22 December 2014) Justice McColl of the NSW Court of Appeal found a claim for 9% WPI did not satisfy the threshold in section 66(1) of the Workers Compensation Act 1987 (the 1987 Act) and was therefore prevented from being made (at [78]). The Court of Appeal found there was no entitlement to have such a claim referred for assessment by an Approved Medical Specialist.
On 16 June 2021 ADP Parker SC issued the decision in Shankar.
The decision in Shankar arose from a decision by an arbitrator (now member) at first instance to decline to refer a body part for referral to a Medical Assessor in the circumstances where the claimed impairment to the body party had not arisen from the compensable injury.
In overturning the arbitrator’s decision, ADP Parker said:
“[62] The respondent’s submission is that because the specialists qualified by the parties have each assessed the appellant as having 0% impairment of the left upper extremity, there is no medical dispute within s 319 of the 1998 Act. It follows, so the argument runs, there is no jurisdiction to refer the matter to the Registrar for referral to an AMS.
[63] The premise of the argument is that s 319 is not engaged unless at least one of the qualified specialists has assessed the worker to have a percentage impairment of the relevant body part. In my view, that premise of the respondent’s argument is incorrect.
[64] Section 319 is concerned with a dispute between ‘a claimant and the person on whom the claim is made’. It is engaged when the claim is refused by the person on whom the claim is made by reason of the topics specified in paragraphs (a) to (g).
[65] In this matter, by the s 78 Notice, the respondent disputed that the appellant is ‘entitled to permanent impairment compensation for injury resulting from the nature and conditions of [Mr Shankar’s] employment.’ The Arbitrator resolved the issue concerning whether the appellant has sustained injury resulting from the nature and conditions of employment, but he had no jurisdiction to assess the degree of ‘permanent impairment.’ That issue could only be resolved by referral to an AMS.
[66] There was and remains a ‘dispute’ within the meaning of s 319 which is required to be referred to an AMS for assessment: s 65(1).”
On 14 July 2021 the NSW Court of Appeal delivered the decision in Skates v Hills Industries Ltd (Skates). Skates concerned whether an Approved Medical Specialist to whom the medical dispute was initially referred was confined to an assessment of the “body parts” specified in the referral form completed by a delegate of the Registrar of the former Workers Compensation Commission.
The Court of Appeal considered the purpose of the statutory regime was to resolve the medical dispute identified by the parties’ competing claims, and that the medical assessment was limited to the dispute so identified (at [27]-[30] and [45]-[48]). In Skates Leeming JA stated at [44]-[47]:
“[44] The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), reproduced in the other judgments. The term is defined by reference to the existence of a “dispute between a claimant and the person on whom a claim is made” about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.
[45] In the present case Mr Skates’ ‘Application to Resolve a Dispute’ was received by the Commission on 8 August 2017. It described his injury as ‘Injury to left wrist, ring finger and scarring’ and stated that he had a permanent impairment of 18% by reference to ‘Left upper extremity, joint ring finger and scarring’. A medical report accompanying Mr Skates’ application from Dr O’Keefe stated that the whole person impairment had been assessed according to the ‘new WorkCover 4 guidelines’, and that insofar as it was based on his ‘left upper extremity’ it comprised impairment to the wrist and ring finger by reference to particular figures in the AMA5 Guide. Mr Skates’ application also included a letter from the workers compensation insurer dated 11 July 2017. The letter referred to the claim and Dr O’Keefe’s assessment of whole person impairment of 18% based on ‘Left upper limb (wrist, ring finger) 15% WPI’, ‘Scarring 3% WPI’. The letter stated that it had arranged for Mr Skates to be examined by Dr Panjratan, whose assessment was ‘Left upper limb (wrist, ring finger) 11% WPI’ and ‘Scarring 1% WPI’ yielding a total of 12% WPI, and it made a settlement offer on that basis.
[46] The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.
[47] Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences ‘Referral of medical dispute’ and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate.”

Ms Apps has made a claim for permanent impairment compensation. The claim is for compensation arising from multiple body parts. As noted above, impairments from more than one injury arising out the same incident are to be assessed together (section 322(3) of the 1998 Act). Ms Apps has made one claim made for permanent impairment compensation comprising of the assessment of different body parts. The claim is based on the report of Dr Bodel, who assessed 0% WPI for the lumbar spine.
The claim was made on the basis of there being no impairment that was medically identified by Dr Bodel in the lumbar spine. In his impairment assessment Dr Bodel stated “This leaves therefore a total of three individual ratings to be combined and they are 7% for the Cervical Spine, 6% for The Left Upper Extremity and 6% for the Left Lower Extremity.” In respect of these three identified impairments, Dr Bodel applied the Combined Values Chart to arrive at a total of 18%. Dr Bodel’s combined assessment, upon which Ms Apps’ claim for permanent impairment has been brought, did not incorporate any impairment assessment of the lumbar spine.
In my view, Ms Apps’ claim for compensation for permanent impairment of the lumbar spine is not a valid claim. This is because no there has been no rateable impairment assessment of the lumbar spine incorporated into claim. There is no impairment to the lumbar spine that is capable of being assessed together, with other body parts, as required by section 322(2) of the 1998 Act.
I also find that Ms Apps claim is not valid because Dr Bodel’s assessment of the lumbar spine was 0%. A claim for 0% WPI is not a valid claim because no monetary benefit can be payable under the 1987 Act.
In making this finding I rely upon Abou-Haidar, Stafford and Sukkar. By analogy, these cases create a powerful line of authority that a claim for 0% WPI, is not a valid claim and therefore cannot be the basis of a medical dispute under section 319 of the 1998 Act. This includes circumstances where a 0% assessment forms part of a wider claim for lump sum compensation. I accept the respondent’s submission that no valid claim has been made for permanent impairment to the lumbar spine that is capable of referral to a Medical Assessor.
Further, in my view, there is no “medical dispute” in respect of the lumbar spine that is capable of resolution by way of referral to a Medical Assessor.
The dispute between Ms Apps and the respondent was crystallised by the correspondence attached to Ms Apps’ ARD and the Reply. The documents referred to the Commission set out the parameters of the medical dispute.
The forensic medical experts qualified by both parties assessed Ms Apps as having suffered 0% WPI in respect of her lumbar spine. Whist it is not in dispute that Ms Apps suffered an injury to her lumbar spine on 2 December 2016, there is no evidence of any impairment suffered as a result of that injury that was capable of forming the basis of a medical dispute. There is no dispute concerning the extent of permanent impairment to the lumbar spine which is capable of resolution by a Medical Assessor.
The respondent submitted that the reasoning in Shankar was incorrect and the decision is wrong at law.
This is substantial force in that submission having regard the case law regarding the need to make a valid claim and the Court of Appeal’s subsequent decision in Skates.
It is difficult to understand how section 319 could be “engaged” when a claim is refused by the person upon whom the claim is made (Shankar at [64]).
The ADP’s reasoning in Shankar presupposes that the claim is a “valid” claim for which compensation may be payable. I have found, consistent with the decisions in Abou-Haidar, Stafford and Sukkar, that a claim for 0% WPI is not a valid claim for permanent impairment.
Upon reading the decision of Shankar, it is quite apparent that ADP Parker was not directed to the relevant case law regarding the necessity to make a valid claim for compensation. The crux of the debate before ADP Parker concerned whether there was a medical dispute that was capable of being referred to a Medical Assessor and did not focus on the validity of the claim in the first place.
Further, in my view is difficult to understand in what circumstances an insurer would “refuse” a claim for 0% WPI. A claim for 0% WPI is not a claim that is capable of being compensated. It would be unusual for an insurer to expressly refuse a claim for 0% WPI, especially in the circumstances where medical experts agree that no impairment has been sustained to the particular body part that is capable of being assessed or forming part of a combined assessment.
I am not persuaded by Ms Apps’ submissions on this point. Ms Apps’ submissions fail to adequately address why the claim for 0% WPI of the lumbar spine ought to be considered a valid claim for compensation to which the insurer was obliged to respond in the first place. In my view, the medical dispute that crystallised, and formed the basis of Ms Apps’ application to the Commission, was not a dispute that involved consideration of permanent impairment to the lumbar spine. The claim was made on the basis of Dr Bodel’s combined assessment, which did not incorporate the 0% WPI assessment of the lumbar spine.
I accept the respondent’s submission that there has been no valid claim for lump sum compensation pursuant to section 66 of the 1987 Act in relation the lumbar spine and therefore there is no “medical dispute” concerning the degree of permanent impairment of the lumbar spine.
The respondent also submitted ADP Parker’s decision was incorrect in respect of the ability of the Commission to assess the degree of permanent impairment arising from the repeal of section 65(3) of the 1987 Act. That issue does not arise in Ms Apps’ case. The respondent does not ask that I make any finding in relation to the degree of impairment suffered by Ms Apps arising from an injury to her lumbar spine. The respondent simply asks for the terms of the referral to the Medical Assessor to exclude the lumbar spine, as requested by Ms Apps. This is the appropriate course of action.

SUMMARY

For the above reasons, the body part/system of lumbar spine cannot form the basis of a referral to a Medical Assessor and I decline to make such order.
The matter is remitted to the President to be referred to a Medical Assessor to assess the degree of WPI as follows:
(a) Date of injury: 2 December 2016
(b) Body parts/systems: cervical spine, left upper extremity (shoulder), lower left extremity (knee, foot & ankle).
The documents to be referred to the Medical Assessor are the ARD, and attachments and the Reply, and attachments.

[2022] NSWPIC 190

29 April 2022