Bull "N" Bush Nurseries Pty Ltd v Klement

DETERMINATION OF APPEAL PANEL
CITATION:	Bull ‘N’ Bush Nurseries Pty Ltd v Klement [2024] NSWPICMP 642
APPELLANT:	Bull ‘N’ Bush Nurseries Pty Ltd
RESPONDENT:	Rostislav Klement
APPEAL PANEL
MEMBER:	Gaius Whiffin
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Brian Stephenson
DATE OF DECISION:	11 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of permanent impairment in the respondent’s left shoulder and left wrist; claimed that the medical dispute between the parties did not include such assessments and the appellant had not accepted liability in relation to injuries to the respondent’s left shoulder and left wrist; demonstrable error alleged; Klement v Bull ‘N’ Bush Nurseries Pty Limited, Skates v Hills Industries Limited, Shankar v Ceva Logistics (Australia) Pty Limited, New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Queanbeyan Racing Club Ltd v Burton, and Campbelltown City Council v Vegan considered; Held – no error found; factual findings made that assessments of the respondent’s left shoulder and left wrist impairment did form part of the dispute; the appellant had a number of opportunities to dispute liability for the respondent’s left shoulder and left wrist injuries but had not done so prior to the issuing of the Medical Assessment Certificate (MAC); Medical Assessor no longer prohibited from assessing impairments whilst there were outstanding issues of liability following amendments made to section 293; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 November 2022, Bull “N” Bush Nurseries Pty Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The relevant medical dispute was assessed by Medical Assessor Tim Anderson (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 11 October 2022.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the Appeal, at least one ground of appeal had been made out. An Appeal Panel (the first Panel) was therefore constituted. On
5 August 2023, the first Panel issued a Statement of Reasons for Decision of the Appeal Panel in relation to a Medical Dispute (the first Panel decision).
Following the first Panel decision, Rostislav Klement (the respondent) sought judicial review of the decision before the Supreme Court.
On 26 April 2024, Schmidt SCAJ in the Supreme Court set aside the first Panel decision and remitted the Appeal to a differently constituted appeal panel, in the matter of Klement v Bull ‘N’ Bush Nurseries Pty Limited [2024] NSWSC 466 (Klement). As a result, on 13 June 2024, the current appeal panel (the Appeal Panel) was constituted.
The Appeal Panel has now conducted a review of the original medical assessment but limited to the ground of appeal on which the Appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An appeal panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The respondent worked for the appellant from 2015 until September 2019 as a nursery assistant. In his signed statement dated 25 May 2021 (found at page 1 of his Application to Resolve a Dispute (ARD)), he describes that he was required to perform repetitive and strenuous tasks, which involved heavy lifting, bending, pulling, pushing and twisting movements. Due to these tasks, he says that he developed injuries to his neck, left shoulder, and left elbow, which (by September 2019) also involved numbness from the inside of his left elbow and left forearm into his palm, ring finger, and little finger, as well as occasionally into his thumb and middle fingers.
As a result of his injuries, he was referred to an orthopaedic surgeon (Dr Thomas), who performed a cubital tunnel release of the ulnar nerve at his elbow as well as a lateral epicondyle release, on 16 April 2020.
By letter dated 10 March 2021 from his solicitors to the appellant’s insurer (found at page 10 of the ARD), the respondent formally claimed lump sum compensation from the appellant, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). Enclosed with this letter were various medical reports and records, including a report from Dr Lai dated
19 January 2021 (found at page 18 of the ARD). In accordance with the report from Dr Lai, the respondent alleged that he suffered from 21% whole person impairment in relation to his “left upper extremity, cervical spine and scarring”.
The appellant arranged for the respondent to be assessed by Dr Doig, who provided a report dated 13 May 2021 (found at page 6 of the appellant’s Reply (Reply)). The doctor assessed the respondent’s whole person impairment at 10%, and the appellant then issued a notice pursuant to s 78 of the 1998 Act dated 8 June 2021 (found at page 1 of the Reply). The notice denied liability for the respondent’s lump sum compensation claim pursuant to s 66(1) of the 1987 Act on the basis that the level of his impairment was not greater than 10%. In describing the respondent’s injury, the notice stated – “Lateral epicondylitis, left elbow; Radiculopathy, cervical spine; Sprain of shoulder joint; Lesion of ulnar nerve, unspecified upper limb”.
After receiving the appellant’s notice pursuant to s 78 of the 1998 Act, the respondent filed his ARD with the Personal Injury Commission (Commission). The ARD sought compensation pursuant to s 66 of the 1987 Act in relation to the “systems claimed” of the left upper extremity, the cervical spine, and TEMSKI/scarring, and it included as an injury description:
“As a result of the nature and conditions of his employment, the Applicant [respondent to the Appeal] sustained injuries to his left upper extremity and cervical spine. Necessary surgery has also resulted in scarring”.
The Reply was subsequently filed, which advised the following:
“The respondent [appellant to the Appeal] consents to the applicant [respondent to the Appeal] proceeding to a Medical Assessor confined to an assessment if [sic] impairment in relation to:
1. cervical spine;
2. left elbow/ulnar nerve injury.
the respondent [appellant to the Appeal] objects to any referral to a Medical Assessor for any other body parts, including the left shoulder.”
By notice dated 16 February 2022, the Commission referred a medical dispute to the Medical Assessor in relation to the degree of the permanent impairment of the respondent with regard to the “body parts” of the left upper extremity (without any breakdown into specific areas of that extremity), the cervical spine, and scarring (TEMSKI). Neither the appellant nor the respondent objected to the terms of this referral.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
The Appeal Panel was substantially guided in this regard by the decision in Klement.
As a result of the preliminary review, the Appeal Panel determined that it possessed enough information to determine the appeal and that it was not necessary for the respondent to undergo a further medical examination

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the medical assessment and has taken them into account in making this determination:
(a) the ARD and its attachments, and
(b) the Reply and its attachments.
The Appeal Panel however will not refer to the documentary evidence in detail, considering the limited nature of the Appeal, and the factual findings made by Schmidt SCAJ in Klement.

Medical Assessment Certificate

The parts of the MAC that are relevant to the Appeal are set out, where relevant, in the body of this decision. It is unnecessary to refer to the MAC in detail given the limited nature of the Appeal and the factual findings made by Schmidt SCAJ in Klement.
It should be noted however that the Medical Assessor correctly identified the “body parts” referred to him to assess - see paragraph 15 above. He took an uncontroversial history of the onset of the respondent’s symptoms, and the treatment for those symptoms. He physically examined the respondent’s cervical spine, scarring, and upper limbs (in relation to shoulder movements, elbow movements, and wrist movements).
The Medical Assessor summarised the injuries and diagnoses found by him as follows:
“Mr Klement gives a history of quite a few years of physically arduous and consistently heavy work with his upper limbs. He has developed dysfunction in the left forequarter, which predominantly consists of left lateral epicondylitis and partial compression of the left ulnar nerve at the cubital tunnel…Further detailed investigation and analysis indicates that there has also been mild neurological irritation in the lower cervical spine, again affecting the C8 nerve root (ulnar nerve)…The elbow condition has been managed by appropriate decompression, which does seem to have given him some improvement. Later on, a therapeutic/diagnostic block to the C8 nerve root on the left also gave improvement, confirming irritation of the C8 nerve root at the cervical spine…So far as I could establish, only the elbow range of movement has been assessed by other specialists. At this assessment, for completeness, the shoulder, elbow and wrist joints were assessed in detail. This demonstrates significant reduced movement of the shoulder and also the wrist. The reduction of movement in the elbows is relatively minor. Since there is no other history (at all) of any dysfunction with the left forequarter, it is therefore assessed by simple deduction that the current condition of his left forequarter, which includes the shoulder and wrist, is also due to his occupation, similar to the condition of the left elbow and his cervical spine. Since the ‘left upper extremity’ was not further specified, these the clinical findings of the left forequarter are included as part of the overall ‘impairment package’”.
The MAC then goes on to assess the respondent’s whole person impairment at 23%, incorporating 7% whole person impairment for the cervical spine, 0% whole person impairment for scarring, and 17% whole person impairment for the left upper extremity (calculated from a combined left upper extremity impairment of 25% - 12% in relation to the shoulder, 4% in relation to the elbow, 15% in relation to the wrist, and 2% in relation to the ulnar nerve).

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor fell into error by assessing the respondent’s left shoulder and left wrist impairment. The respondent’s claim pursuant to s 66 of the 1987 Act was based upon Dr Lai’s report, and Dr Lai did not in that report assess the respondent’s left shoulder or left wrist impairment. Further, the Reply made it clear that the appellant objected to these body parts being assessed by the Medical Assessor (see paragraph 14 above).
The appellant relies upon Skates v Hills Industries Limited [2021] NSWCA 142 (Skates) to submit that the medical dispute between the parties did not include assessments of the respondent’s left shoulder or left wrist impairment, as the correspondence attached to the ARD (which crystallised the dispute) did not address such assessments. The appellant summarises:
“In this matter, whilst the referral to the Medical Assessor required assessment of the left upper extremity and cervical spine, it was apparent from the medical evidence attached to the Application and Reply that the ‘dispute’ was in relation to the impairments assessed by Dr Lai and Dr Doig in relation to the left elbow/ulnar nerve, cervical spine and scarring. This was the dispute that was ‘crystallised by the correspondence’ between the parties. Indeed, the Medical Assessor acknowledged the left shoulder and left wrist had not been assessed by any of the other specialists.”
The appellant also submits that the Medical Assessor fell into error because the appellant had not accepted liability in relation to any injury to the applicant’s left shoulder or left wrist. It says that the respondent had not made any claim in this regard, and that the Commission had not therefore determined liability for such injuries prior to the referral to the Medical Assessor. It argues:
“It is clear, in the Appellant’s submission, that s 321A(2) [of the 1998 Act] requires the Commission to make a determination in relation to liability for any injury before a referral to a Medical Assessor can be made. It is not for a Medical Assessor to make any determination in relation to liability.”
In reply, the respondent submits that:
(a)    the letter of claim from the respondent’s solicitors to the appellant’s insurer dated 10 March 2021 (see paragraph 11 above) included not only Dr Lai’s report dated 19 January 2021, but also reports from Dr Thomas dated 16 January 2020 and 19 March 2020 – Dr Lai’s report included physical examinations of the respondent’s left hand, left wrist, and left shoulder, as well as a history taken by the doctor of symptoms (including numbness, pain, and burning sensations) in the respondent’s left fingers, left hand, left wrist, and left shoulder - Dr Thomas’ reports also recorded positive impingement signs in the respondent’s left shoulder, and markedly weak grip strength in the respondent’s left hand and wrist - Dr Thomas also referred the respondent for radiological tests, physiotherapy treatment, and a cortisone injection in relation to the left shoulder;
(b)    “the claim letter made a claim for the entirety of the left upper extremity…When all the accompanying material is taken into account it is apparent that the Respondent was claiming an injury to the left shoulder and symptoms in the left hand and wrist as a result of the elbow injury” - the appellant was aware of this when it described the respondent’s injuries in its notice pursuant to s 78 of the 1998 Act dated 8 June 2021 (see paragraph 12 above) - it was also aware of the extent of the respondent’s claimed injuries as Dr Doig examined the respondent’s left shoulder and left wrist, even though the doctor found no restricted movement during those examinations;
(c)    it is clear from both the letter of claim and the ARD pleadings (see paragraph 13 above) that the respondent was claiming compensation for “left upper extremity” impairment, which was not limited to elbow impairment;
(d)    the respondent’s statement evidence (see paragraph 9 above), which was attached to the ARD, also made it clear that he alleged injuries to his left shoulder and to his left wrist;
(e)    “It is apparent that the Appellant appreciated that the claim was for the entirety of the left upper extremity. Whilst the Reply did not dispute the injuries which had been accepted in the s 78 notice the appellant nonetheless ‘sought to object to any referral to a medical assessor for any other body parts, including the left shoulder’. That objection would only make sense if the Appellant thought that the other body parts were part of the claim. The basis on which the Appellant objected [to] the referral was not otherwise spelt out. Injury had not been put in dispute so the only likely grounded [sic] objection is the fact that Dr Lai’s examination findings were consistent with a 0% impairment in the left shoulder and the left wrist. That fact, however, does not prevent the entirety of the left upper extremity being referred for assessment (see Shankar v Ceva Logistics (Australia) Pty Limited (2021) NSWPICPD18)”;
(f)    as the appellant did not object to the Commission’s referral to the Medical Assessor (see paragraph 15 above), it can be “accepted that the referral properly reflects the medical dispute to be determined”;
(g)    the appellant has never issued any notice pursuant to s 78 of the 1998 Act disputing liability for injuries to the respondent’s left shoulder and left wrist - the appellant would therefore now require leave from the Commission (which it has not sought) to dispute liability for those injuries, and
(h)    “In any event if there is a dispute about injury that dispute can be determined by a Commission Member at this stage. The legislation no longer prohibits a matter being referred for assessment of personal [sic – permanent] impairment whilst there is an outstanding issue of liability. Contrary to the Appellants submission s 321A(2) of the 1998 Act does not require the Commission to make a determination in relation to liability before a referral to a medical assessor can be made. The section merely allows for regulations to be made with respect to the circumstances in which a medical dispute concerning permanent impairment is authorised, required or not permitted to be referred for assessment. At this stage there are no regulations made pursuant to s 321A.”

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The Appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the Appeal is made, that is, those errors identified by a party in its submissions – see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
The Appeal Panel in this regard has to ensure that it does not disturb any unchallenged findings in the MAC. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated (at [35]):
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor’s reasoning with respect to that finding; neither course was part of its statutory function.”
In Campbelltown City Council v Vegan [2006] NSWCA 284, the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the Appeal Panel in reaching a professional judgement.
The sole alleged errors of the Medical Assessor identified by the appellant in its submissions are:
(a) that the Medical Assessor assessed the respondent’s left shoulder and left wrist impairment despite the fact that such assessments did not form part of the medical dispute referred to him, and
(b) that the Medical Assessor assessed the respondent’s left shoulder and left wrist impairment despite the fact that liability for injuries to those body parts had not been determined.
In relation to the first alleged error, the determination of the Appeal Panel has to be guided by the decision and factual findings made by Schmidt SCAJ in Klement. In reality, that decision is binding upon the Appeal Panel to find that the Medical Assessor did not err in assessing the respondent’s left shoulder and left wrist impairment, as such assessments formed part of the medical dispute referred to him.

Schmidt SCAJ in Klement found that the first Panel erred and set aside its decision. Relevantly she determined [at 57-59]:
“The Panel did accept that Dr Thomas provided evidence of an injury to the left shoulder, but concluded that this injury had not been claimed by Mr Klement in his claim letter. That was also wrong. The letter having claimed injury to the upper extremity of which, under the applicable guidelines, the shoulder was a part and the accompanying documents evidencing as they did that he had suffered an injury to his shoulder, for which he had received treatment.
The Panel was thus plainly mistaken in its understanding of what Mr Klement’s claim had advanced. In a passage in Skates at [46], not referred to by the Panel, it was what was attached to his application, which included Mr Klement’s claim letter and the documents attached to it as well as his statement and the documents attached to the insurer’s reply, which had crystallised the parties’ medical dispute.
Dr Thomas’ report, and other reports and records which Mr Klement had relied on to advance his claim, supported his statement about the shoulder injury he had suffered. That explains not only Dr Lai and Dr Doig’s consideration of whether Mr Klement had suffered any resulting impairment to his shoulder, but also the unconfined referral of all his claimed injuries to his upper extremity for assessment, despite the insurer’s objection, as well as the assessor’s consideration of all that had been so referred.”
She had earlier summarised [at 11-14]:
“In Mr Klement’s case there was no error in the injuries referred for assessment. They were all part of the parties’ medical dispute and accordingly, were assessed by the assessor in accordance with the requirements of the statutory scheme.
What was referred included all the injuries the subject of Mr Klement’s claim and s 66 application, despite the insurer’s objection to referral of any injury to Mr Klement’s shoulder for assessment. The Panel not only misunderstood this, but erred about what documents had accompanied his application, which established that the medical dispute did encompass injury to his shoulder.
That was why both Dr Lai and Dr Doig, the medical specialists who had both examined Mr Klement before the assessment, had considered whether injury to his shoulder had resulted in any impairment. They both concluded that no impairment had resulted.
The assessor came to a different view. But that was not a basis on which either incorrect criteria or demonstrable error could be established. Because of the errors into which the Panel fell, it did not consider this.”
She determined that the respondent expressly claimed in relation to “injury to his left upper extremity” in his 10 March 2021 letter, and that “there is no issue that under the applicable guideline this term includes the shoulder, elbow and wrist”. As a result, she concluded [at 88]:
“The result was that the entirety of Mr Klement’s claim, which included all the injuries he had suffered to his upper extremity, which were dealt with in the reports and records which finally accompanied his application, including the explanation he gave in his statement, correctly accompanied the referral.”
According to Klement, the Medical Assessor was entitled to assess the respondent’s left shoulder and left wrist. Those assessments formed part of the medical dispute referred to him.
It was also noted in Klement that the resulting conclusions as to impairment made by the Medical Assessor were found not to contain any error by the first Panel; were explained by the Medical Assessor, and were not “part of the insurer’s case” in its Appeal.
Finally, the appellant complains that the Medical Assessor was not entitled to assess the respondent’s left shoulder and left wrist impairment, because the appellant had not accepted liability for those injuries.
There is however no evidence before the Appeal Panel that it had disputed liability for those injuries prior to the medical assessment. Indeed, the evidence establishes:
(a)    in accordance with Klement, the respondent’s 10 March 2021 letter included claims for injuries to the respondent’s left shoulder and left wrist;
(b)    the appellant did not dispute liability for these injuries in its notice pursuant to s 78 of the 1998 Act dated 8 June 2021 – that notice did little more than refer to
Dr Doig’s reports in order for the appellant to conclude:
“Based on the report from Dr Graeme Doig, your level of whole person impairment is under the threshold and therefore you are not entitled to lump sum compensation as per Section 66(1) of the Workers Compensation Act 1987.”;
(c)    therefore, for the appellant to raise liability issues once the respondent had filed his ARD, it would have been required to seek the leave of the Commission pursuant to s 289A(4) of the 1998 Act – to the knowledge of the Appeal Panel, the respondent has never sought such leave;
(d)    in the Reply, the appellant objected to the respondent’s left shoulder and left wrist being referred for medical assessment but did not otherwise elaborate, and certainly did not specifically state that it disputed liability for those injuries - it also did not advise the Commission in the Reply of any application for leave pursuant to s 289A(4) of the 1998 Act to dispute liability for those injuries, and
(e)    the respondent did not raise any objection to the terms of the Commission’s
16 February 2022 notice referring a medical dispute to the Medical Assessor in relation to the respondent’s left upper extremity, which would necessarily include (in accordance with Klement) the respondent’s left shoulder and left wrist.
The appellant had a number of opportunities prior to the issuing of the MAC to dispute liability for the respondent’s left shoulder and left wrist injuries, and did not do so. In the opinion of the Appeal Panel, the Medical Assessor was therefore fully entitled to assess impairment in relation to those injuries. The Appeal Panel accepts the respondent’s submissions in this regard at paragraphs 29(f)-29(h) above.
It is to be noted that Procedural Direction PIC6 cl 29 advises that liability disputes must be resolved before permanent impairment is assessed. However, as noted above, there is no evidence before the Appeal Panel that the appellant had notified any liability dispute prior to the MAC.
In any case, despite Procedural Direction PIC6 cl 29, even if the appellant had notified a liability dispute regarding the respondent’s left shoulder and left wrist injuries prior to the relevant medical assessment referral, according to Klement, the referral and the assessment could still have taken place. In this regard, Schmidt SCAJ rejected the appellant’s submission referred to at paragraph 28 above and accepted the respondent’s submission referred to at paragraph 29(h) above, in stating [at 71-72]:
“Before the 2018 amendments on which Mr Klement relied, s 293(3)(a) [of the 1998 Act] precluded the Registrar from referring for assessment ‘medical dispute[s] concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission’.
That limitation was removed by the amendments, with the result that the insurer, even if it had not accepted liability for the injury, could not prevent the Registrar’s referral of the entire medical dispute for assessment. Nor could it prevent the assessment of any part of that dispute. Not having that right, it could not successfully appeal the assessor’s certificate, he having undertaken the assessment which the statutory scheme required, given the medical dispute which had been referred for assessment.”
The Appeal Panel is tasked with determining whether the Medical Assessor fell into error in accordance with the liability situation at the time of the medical assessment, which was that the appellant had not disputed liability for the respondent’s left shoulder and left wrist injuries. If on some future date, the appellant at this late stage is given leave by the Commission to dispute liability for those injuries, only then might consideration be given as to the effect of the findings in the MAC regarding the respondent’s left shoulder and left wrist impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on
11 October 2022 should be confirmed.

[2024] NSWPICMP 642

11 September 2024