Bull "N" Bush Nurseries Pty Ltd v Klement
[2023] NSWPICMP 373
•5 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bull "N" Bush Nurseries Pty Ltd v Klement [2023] NSWPICMP 373 |
| APPELLANT: | Bull "N" Bush Nurseries Pty Ltd |
| RESPONDENT: | Rostislav Klement |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 5 August 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of 21% whole person impairment (WPI); Medical Assessor (MA) interpreted the referral for the “left upper extremity” as including shoulder and wrist; whether he was restricted to just the elbow; whether referral reflected agreement by the parties as to the medical dispute; Held – referral did not reflect such an agreement; letter of claim restricted the claim to the elbow; the section 78 Notice restricted acceptance of injury to the elbow; the respondent specifically limited the claim to the elbow in its reply; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd and Skates v Hills Industries Ltd considered and applied; Shankar v Ceba Logistics (Australia) Pty Ltd doubted and distinguished; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 November 2022 Bull "N" Bush Nurseries Pty Ltd, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 October 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). WPI is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 16 February 2022 the Delegate of the President referred this dispute to the Medical Assessor for an assessment of WPI regarding:
“Left Upper Extremity, Cervical Spine, Scarring (TEMSKI)”
- caused by injury on 2 September 2019.
Mr Klement suffered the onset of aches and pains on the left side of his neck and associated with the left elbow in the course of his duties a worker in a nursery, which work he commenced in 2015.
He was diagnosed with left lateral epicondylitis and cubital tunnel compression, and he came to surgery in respect of those conditions in mid-April 2020.
Following that surgery neck symptoms continued. He was referred to a specialist neurosurgeon and a cortisone injection was administered to the C8 nerve root. This gave him some improvement.
The Medical Assessor certified a 7% WPI for the cervical spine, 17% WPI in relation to the left upper extremity and 0% WPI for the scarring, giving a combined value of 23% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant employer did not seek to have the worker re-examined. In view of the nature of the issue before the Panel, no re-examination was required.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
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.
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 medical professionals in reaching a professional judgement.
The issue before the Medical Appeal Panel concerns the terms of the referral.
The MAC
The Medical Assessor gave a detailed and thoughtful statement of reasons. In conformance with the terms of the referral he assessed the scarring (0%) and the cervical spine (7%). However, he also assessed 17% WPI for the left upper extremity. With regard to that assessment he said at [4] of the MAC, that after working at the employer’s nursery for a while, Mr Klement noted the onset of aches and pains in the left side of his neck and also associated with the left “forequarter.” The Medical Assessor said:
“He was referred to Specialist Orthopaedic Surgeon, Dr Michael Thomas. Left lateral epicondylitis and also cubital tunnel compression were identified. These were managed by surgical decompression and release in mid-April 2020. This gave him some improvement, although he mentioned that the aches and pains in his neck continued….”
The MA examined Mr Klements and summarised his findings at [7], saying:
“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.
….
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’.”
At [10b] the Medical Assessor found upper extremity impairments for the shoulder, elbow, wrist and ulnar nerve, which gave a combined total of 25% upper extremity impairment, which in turn converted to 17% WPI.
At [10c] the Medical Assessor said:
“As previously mentioned, I cannot find anywhere in the clinical file where any of the other assessing specialists have looked at the shoulders or elbows. As already advised, no other feature has been identified which would account for dysfunction at those joints other than his occupation at the Bull ‘n’ Bush Nursery.”
SUBMISSIONS
Appellant employer
The appellant employer submitted in the final analysis that the Medical Assessor was confined by the agreement between the parties to assess only the left elbow and ulnar nerve impairment, which would have entitled Mr Klements to 6% upper extremity impairment, or 4% whole person impairment. The appellant employer asserted that the Medical Assessor had fallen into error by assessing additionally the shoulder and the wrist.
The appellant employer submitted that the Medical Assessor had assessed injuries that were not agreed between the parties. We were referred to passages from Leeming JA’s judgement in Skates v Hills Industries Limited[1] in that regard.
[1] [2021] NSWCA 142.
The appellant employer referred to the medico-legal report of Dr Lai, the worker’s medico-legal expert, submitting that it delineated the extent of the medical dispute that the Medical Assessor was required to assess.
We were also referred to the appellant’s employer’s Reply of 26 November 2021 which set out the appellant employer’s consent, that was limited to the cervical spine and left elbow/ulnar nerve injury, to the matter proceeding to a medical assessment.
It was submitted that the claim letter of 10 March 2021 from Rostislav Klement (the respondent worker) limited the claim for the left upper extremity to those areas that had been identified by Dr Lai.
At paragraph 17 of the submissions the appellant employer said:[2]
“It is acknowledged that the referral to the Medical Assessor did not limit the ‘left upper extremity’ to the elbow and ulnar nerve. However, it is the Appellant’s submission that the nature of the dispute regarding impairment was clear from the Application, Reply and medical evidence relied upon by both parties.”
[2] Appeal papers page 11.
The appellant employer submitted that an analysis of the findings by the Medical Assessor would yield a result in relation to the medical dispute of 6% left upper extremity which would convert to 4% WPI, giving a total of 11% when combined with the finding for the cervical spine.
It was submitted that the MAC should be “set aside.” It was also submitted that the matter should be referred back to the Medical Assessor to issue an Amended Medical Assessment Certificate. We were not advised by the appellant employer of any statutory power by which that might be done. We would observe that once the matter has been referred to the Medical Appeal Panel there is no power to refer it back to the Medical Assessor.
Respondent’s submissions
The respondent’s submissions were prepared by Mr Bruce McManamey of counsel.
Mr McManamey submitted that the claim was identified by letter on 10 March 2021, naming the entire left upper extremity. He submitted that the letter was accompanied by reports of Dr Lai (which was correct), and two reports of Dr Thomas (which was not correct).
Mr McManamey reviewed Dr Lai’s report, which was dated 16 January 2020, submitting that Dr Lai impliedly found 0% WPI for impairment to the shoulders and wrists.
Mr McManamey also reviewed the two reports from Dr Thomas. The first was dated 16 January 2020. Mr McManamey noted that Dr Thomas had referred Mr Klement for nerve conduction studies and MRI scans of the left elbow and shoulder.
Dr Thomas’ next report was dated 19 March 2020, which Mr McManamey noted indicated that the results of the investigations suggested a subacromial bursitis secondary to rotator cuff syndrome.
Mr McManamey submitted that when the claim was made on 10 March 2021, it was for the entirety of the left upper extremity. When all the material was taken into account Mr McManamey argued that the letter of claim was intended to claim injury to the left upper extremity which included the shoulder, the hand and the wrist.
Mr McManamey referred to the s 78 Notice dated 8 June 2021. He submitted that the Notice had referred to the left shoulder, and the Notice did not dispute that or any other injury it recited. The respondent’s expert, Dr Doig, had assessed the left shoulder, Mr McManamey said, and found no restriction of movement.
Thus, Mr McManamey argued, it was appreciated by the insurer that the claim involved the left shoulder.
Mr McManamey then referred to the pleadings in the Application to Resolve a Dispute (ARD). He submitted that the description therein alleged injury to the left extremity and was not limited to the elbow. It followed that the claim for permanent impairment was for the entire left upper extremity.
Mr McManamey also referred to Mr Klement’s statement in the ARD documents. It too referred to injuries and disabilities within Mr Klement’s left shoulder and hand.
The employer appreciated that the claim was for the entirety of the left upper extremity, Mr McManamey said. He again acknowledged that the s 78 Notice also said that the respondent objected to any other body parts, including the left shoulder, being referred. It would seem that the basis for the objection was that Dr Lai had implied a 0% WPI for the left shoulder, Mr McManamey thought. However, he said, that fact did not prevent the matter being referred nonetheless. We were referred to Shankar v Ceba Logistics (Australia) Pty Ltd[3] in that regard.
[3] [2021] NSWPIC PD 18.
Mr McManamey referred to the usual practice of the Personal Injury Commission (Commission) of notifying the parties of the proposed referral. The failure by the employer to object to the terms of the draft meant that the employer had accepted that the referral properly reflected the medical dispute. To restrict the MAC as it submitted, the employer would need to apply to a Commission Member (presumably pursuant to s 289A (4) of the 1987 Act) to exclude the Medical Assessor’s assessment of the shoulder and wrist.
In any event, it was submitted, a Commission Member could “at this stage” determine the dispute, as there was no longer any need for liability to be determined within the Commission before it was referred to a Medical Assessor since the 2018 amendments to s 293 of the 1998 Act.
DISCUSSION
This is another case which raises the issue as to how a Medical Assessor or an Appeal Panel is to approach the terms of a referral which one party claims does not reflect the intentions of the parties. In Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[4] Meagher JA, with whom Ward and Emmett JJA agreed, said at [22]:
“Those orders [i.e., the terms of a referral] are to be construed taking into account the circumstances in which they were made, at least to the extent that those circumstances were known to the parties: (authorities omitted). Those circumstances include the communications between the parties and their representatives which preceded the referral of the dispute to the Commission, and the terms of the Application which referred that dispute.”
[4] [2014] NSWCA 264.
It is settled law that the terms of the referral are those that a Medical Assessor is obliged to accept. However, in Skates v Hills Industries Ltd[5] at first instance Adamson J considered a case where the referral omitted an injury to the left wrist, which omission had not been noticed by either party. The Approved Medical Specialist (AMS) included the left wrist in his WPI finding, but the Medical Appeal Panel revoked the MAC, saying that it was “settled law that an AMS [as Medical Assessors were then named] is confined by the terms of the referral.”[6]
[5] [2020] NSWSC 837.
[6] At [24 (39)].
Adamson J said:[7]
“The question is whether the referral entitled the AMS to assess the degree of permanent impairment arising from parts of the left upper limb which had not been specifically referred, if he was satisfied that they were the result of the injury sustained by the worker…”
[7] At [45].
Her Honour reviewed the relevant authorities and concluded at [73]:
“While the Appeal Panel was correct to determine that the AMS had gone beyond the terms of the referral … the Appeal Panel should have reverted to the Registrar to obtain a referral which reflected the parties’ agreement as to the correction required….”
In the Court of Appeal[8] Leeming JA said from [48]:
“…The [referral] is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.
49. The document signed by the Registrar’s delegate and dated 1 September 2017 described itself as a ‘Referral for Assessment of Permanent Impairment to Approved Medical Specialist’. Its first numbered subheading was ‘Medical Dispute Referred for Assessment’ and there it stated, wrongly, ‘Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)’. That was wrong insofar as it did not include Mr Skates’ wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. The Appeal Panel was correct to state that the Approved Medical Specialist had gone beyond assessment of the medical dispute which had been referred to him.
(Emphasis added).
50. The foregoing substantially corresponds with the first explanation given by Basten JA for confirming the correctness of the result reached by the Appeal Panel and the primary judge, with a heavier emphasis upon the purpose of the statutory regime being to resolve a medical dispute and that a dispute is identified by the disputants’ competing claims.”
(As written).
[8] [2021] NSWCA 142.
McCallum JA said at [82]
“… However, the medical dispute referred must be the medical dispute the parties have sought to have resolved.”
The present case also throws up the same issue, except that the referral failed to confine the assessment of the left upper extremity to the elbow, which the appellant employer claims was the intention of the parties when the matter was referred. It is accordingly necessary to consider the communications between the parties and the documentation forwarded with the referral to ascertain whether the appellant employer was correct. We note that the relevant communications in this matter were contained within the documentation.
The letter of claim
The letter of claim of 10 March 2021 stated:[9]
“We refer to the above matter and enclose, by way of service, copy of medical report prepared by Dr Min Fee Lai dated 19 January 2021. Based on the enclosed report the worker makes a claim pursuant to Section 66 of the Workers Compensation Act 1987:
Physical Section 66
Compensation for permanent impairment
assessed at 21% in relation to the workers left $55,600.00
upper extremity, cervical spine and scarring
Total: $55,600.00”
[9] Appeal papers page 49.
The letter also attached an ultrasound report of the left elbow dated 20 September 2019, and a report from Dr Venti Boney dated 12 February 2020, neither of which was relevant to the issue.
Report of Dr Lai
Dr Lai’s report of 19 January 2021 was thorough and comprehensive. Dr Lai noted a complaint of a “burning sensation from [Mr Klement’s] fingers into his left forearm on the ulnar side and into his shoulder.”[10] Physical examination noted:[11]
“The active range of movements of Mr Klement’s thumbs, fingers, wrists and shoulders were all even and normal bilaterally.”
[10] Appeal papers page 60.
[11] Appeal papers page 61.
Dr Lai’s assessment regarding the left upper extremity was as follows:[12]
“1. Table 16-3, page, 439, AMAS - Conversion of upper extremity impairment to whole person impairment values.
2. Figure 16-34, page 472 and figure 16-37, page 474, AMA - Motion impairment of elbow.
3. Clause 2.18, page 12, WCG4 - Impairment from epicondylitis of elbow.
4. Combined Values Chart, page 604, AMAS.
As per the left upper extremity impairment evaluation record, the motion impairment of your client from abnormal motion of the elbow is 4% UEI. The impairment from his left lateral epicondylitis (as demonstrated with pain on resisted wrist extension) (reference iii) is 2% UEI. The total impairment of your client's left upper extremity is a combination of the proceeding figures of 4% + 2% = 6% UEI. 6% UEI converts to 4% WPI.”
[12] Appeal papers page 64.
DISCUSSION
As indicated, Mr McManamey was mistaken, with respect, when he submitted that the reports of Dr Thomas had been attached to the letter of claim of 10 March 2021. His reliance on Dr Thomas’ reports was in support of his submission that the terms of the letter of claim could be seen to incorporate the left shoulder, as Dr Thomas had found pathology in the left shoulder following MRI imaging. However, that report was not attached to the letter of claim, and was then a year out of date, being dated 19 March 2020. Whilst it provided evidence of an injury to the left shoulder, that injury was not claimed in the letter of 10 March 2021.
Although the letter of 10 March 2021 used the term “left upper extremity,” the reliance by Mr Klement on the report of Dr Lai establishes that it was only the elbow injury for which compensation was being claimed. This is evident both from the description of the impairments assessed, and the percentage impairment given by Dr Lai. The 21% combined value WPI of all impairments assessed by Dr Lai demonstrated that 4% WPI had been allowed for the injury to the “left upper extremity.”[13]
[13] Appeal papers page 66.
We are accordingly satisfied that the claims made on the insurer were intended to restrict the left upper extremity claim to impairment to the elbow, as advised by Dr Lai.
The s 78 Notice
The s 78 Notice issued on 8 June 2021 identified the “injury” as:[14]
“Lateral epicondylitis, left elbow; Radiculopathy, cervical region; Sprain of shoulder joint; Lesion of ulnar nerve, unspecified upper limb”
[14] Appeal papers page 192.
The claim was disputed, the Notice said, as the respondent’s medico-legal expert, Dr Graeme Doig, had advised that Mr Klement had only achieved an entitlement of 10% WPI, and had thus not satisfied the threshold.
Reports of Dr Doig
The Notice mentioned two reports from Dr Doig dated 13 May 2021 and 2 June 2021.[15] In his report of 13 May 2021 Dr Doig took a history of the onset of symptoms in Mr Klement’s left arm from about a year previously. It had given pain “particularly at the elbow and posteriorly at the shoulder around the scapular blade…” Dr Doig noted that Mr Klement had come to an MRI scan which had suggested “sub-acromial bursitis with a possible frozen component.”
[15] Appeal papers pages 195 and 201 respectively.
Dr Doig noted the elbow surgery in April 2020 and recorded that Mr Klement believed his nerve symptoms had improved. On examination Dr Doig noted there were “no restrictions at the left shoulder with respect to the active range of motion arcs.” He also found “normal movement at the wrist, fingers and thumb.”
Dr Doig certified 2% upper extremity impairment for epicondylitis, 3% for the ulnar nerve impairment, and 12% for a Grade 4 motor deficit. The combined value upper extremity impairment was 25%, which converted to a 10% WPI.
DISCUSSION
It can be seen that the insurer had sought an opinion from Dr Doig as to impairment to Mr Klement’s left elbow. Although that opinion was given some 5 months after Dr Lai’s report, Dr Doig did not have a copy, as when asked to comment on any assessment of WPI answered:[16]
“I was unable to locate a Whole Person Impairment Assessment…within the documentation supplied.”
[16] Appeal papers page 198.
It follows that Dr Doig’s analysis of Mr Klement’s left upper extremity was indeed independent of that by Dr Lai, but both medico-legal experts found impairment only in the elbow of the left upper extremity.
In any event, Dr Doig was supplied with Dr Lai’s report, and on 2 June 2021 he advised that Dr Lai’s methodology was suspect, as he had examined Mr Klement via video link and could not have performed the necessary measurements to the required degree of accuracy.
Thus, the s 78 Notice nominated the following injuries:
· lateral epicondylitis, left elbow;
· radiculopathy, cervical region;
· sprain of shoulder joint, and
· lesion of ulnar nerve, unspecified upper limb.
The insurer accepted through Dr Doig that injury to the ‘lateral epicondylitis, left elbow’ and to the ‘left ulnar nerve’ (as Dr Doig had specified the upper limb) had occurred, along with the cervical injury. Although the shoulder joint was also identified it is clear that in context, the reference to “injury” was a referral to the allegations of injury, as is common in such notices. The “Reasons for the decision” segment of the Notice dealt with the question of whether the allegations were accepted or not and whilst the cervical and elbow injuries were accepted (although under the 10% threshold required by s 66(2)(a) of the 1987 Act), the claim for the alleged unspecified shoulder injury was ignored, as again is common. No inference is available from its being mentioned (along with the claim number) in the “injury” section, that liability for the shoulder had thereby been accepted.
Mr McManamey’s contention that, because the Notice did not dispute them, the insurer had accepted the named injuries, is accordingly rejected. The fact that Dr Doig assessed the left shoulder also did not imply that the insurer had accepted liability for it. Whether the insurer appreciated that there was an allegation regarding the left shoulder was, without more, irrelevant.
Similarly, the contents of Mr Klement’s statement are irrelevant as to the question of the acceptance or denial of the claim.
The Reply
When it lodged its reply, the appellant employer wrote in the templated “matters in dispute” box:[17]
“The respondent consents to the applicant proceeding to a Medical Assessor confined to an assessment if impairment in relation to:
1.cervical spine;
2.left elbow/ulnar nerve injury, the respondent objects to any referral to a Medical Assessor for any other body parts, including the left shoulder.”
[17] Appeal papers page 186.
DISCUSSION
Mr McManamey argued that this objection would only have made sense if the insurer thought that the other body parts were part of the claim. That argument is somewhat disingenuous, with respect, as the purpose of the objection was more probably to prevent matters that had not been included in the dispute going to the Medical Assessor. It is apparent however that Mr McManamey made that submission to enable him to make a further submission, based on Shankar. The nub of Mr McManamey’s argument was that the entirety of the left upper extremity could have been referred for assessment regardless of whether the evidence was sufficient to establish an entitlement to a lump sum payment for the left shoulder and wrist. To make that submission however Mr McManamey had to establish that the insurer had accepted that the left shoulder and wrist had been injured.
Shankar is a case whose authority is doubtful in any event,[18] but it may be distinguished from the present case on its facts. In Shankar Arbitrator (as he then was) John Harris found that whilst the expert evidence on behalf of the applicant had certified an impairment of 7% for the left upper extremity as the result of a frank incident, there had been no impairment proved that was due to an alternative injury pleaded as the nature and conditions of employment. The insurer had accepted that the alternative injury caused injury, but the applicant’s medicolegal expert had found that it had not been substantial enough to cause an impairment. Arbitrator Harris said:
“I will not be referring a body part that has no assessable impairment for assessment by an AMS.”
[18] See Apps v Secretary, Department of Communities & Justice [2022] NSWPIC 190; McPherson v Mitre 10 Australia Pty Ltd [2022 NSWPIC 410.
Those facts may be distinguished from the present circumstances. To establish that the shoulder and the wrist should be referred Mr Klement had first to demonstrate that injury to them had been admitted. Mr McManamey’s reliance on the authority of Shankar accordingly was dependent upon whether he could establish that proposition. An examination of the communications between the parties within the documentation, and the documentation itself referred to the Medical Assessor shows for the above reasons that no such acceptance had occurred. Accordingly, the medical dispute agreed to be assessed by the Medical Assessor was limited to the elbow of the left upper extremity, the cervical spine and scarring.
Commission Member intervention
Mr McManamey also made submissions that a Commission Member was now able to regularise the situation by virtue of the 2018 amendments to the legislation. We understood Mr McManamey to submit that the Commission Member on the Panel could intervene at this stage of the proceedings. We respectfully decline to do so. The insurer is entitled to have natural justice and procedural fairness accorded to it, which this suggested course might well jeopardise.
Finally, we endorse the comment by Basten JA in Skates at [36] in the facts of this case:
“36. The failure of both parties to raise with the Registrar the error in [the referral] is inexplicable. ….”
The MAC will accordingly be revoked and the assessments made with regard to the left shoulder and left wrist will be omitted from the new certificate.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 October 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5589/21 |
Applicant: | Bull "N" Bush Nurseries Pty Ltd |
Respondent: | Rostislav Klement |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical | 02/09/19 | Chap 4 P 24 | P 392 T 15-05 | 7 | 0 | 7 |
| Left upper extremity | Chap 2 P 10 | P 472 F 16-34 P 474 F 16-37 | 4 | 0 | 4 | |
| Scarring | P 74 T 14.1 | 0 | 0 | 0 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
0
5
0