Connolly v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Connolly v Secretary, Department of Education [2022] NSWPIC 313
APPLICANT:	Barbara Connolly
RESPONDENT:	Secretary, Department of Education
MEMBER:	Michael Wright
DATE OF DECISION:	21 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Reconsideration and appeal against Medical Assessment Certificate (MAC) in which Approved Medical Specialist (AMS) opined body parts not listed in referral nor previously claimed, could be assessed for the degree of permanent impairment as a result of the subject injury; consideration of Skates v Hills Industries Ltd; procedural fairness; Held– matter to be referred again to MA for assessment of additional body parts, following timetable for parties to obtain further medical opinion.
DETERMINATIONS MADE:	1. Subject to the arrangements in 2 below, and pursuant to section 329(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998, the matter is to be referred again to Medical Assessor Pillemer for assessment of the degree of permanent impairment in respect of the cervical spine, left upper extremity, occipital neuralgia and scarring. 2. Liberty to apply in respect of a timetable for further medical evidence as to the degree of permanent impairment in respect of occipital neuralgia and scarring, to be incorporated with the amended terms for the referral document and direction to the Medical Assessor in accordance with the reasons herein.

STATEMENT OF REASONS

BACKGROUND

This is an application for reconsideration by Barbara Connolly (the applicant) pursuant to section 329(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that the President, as an alternative to an appeal against a Medical Assessment Certificate issued in this matter, refer the matter for “a further medical assessment and/or re-consideration” or pursuant to section 329(1)(b) of the 1998 Act that the Personal Injury Commission (the Commission) refer the matter again to the Medical Assessor for further assessment. The Secretary, Department of Education, the respondent to this application, opposed the application.

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.
At the conciliation/arbitration hearing of this matter on 8 April 2022, the applicant was represented Mr Goodridge of counsel, instructed by Mr McKean, solicitor, and the respondent by Mr McMahon of counsel, instructed by Mr Krieg, solicitor. Both parties gave oral submissions in addition to the written submissions referred to below.

EVIDENCE
Documentary evidence

The following documents were provided to the Commission and considered in making this determination:
(a)    Application for reconsideration (the application) with written submissions and attached documents, dated 10 December 2021, including Form 10 – Appeal against a Decision of Medical Assessor dated 10 December 2021 (form 10), with submissions in support;
(b)    respondent’s written submissions in reply dated 17 September 2021;
(c)    Amended Medical Assessment Certificate (MAC) of Medical Assessor Pillemer dated 18 November 2021 in matter numbered W2183/21;
(d)    Application to Resolve a Dispute (ARD) and attached documents in matter numbered W2183/21, and
(e)    Application to Admit Late Documents dated 29 June 2001 and attached documents, being the Reply and attached documents, in matter numbered W2183/21.

Oral evidence

There was no application for cross examination of the applicant nor was there an application to give oral evidence.

Application to Resolve a Dispute and attached documents

The ARD, at page 6 of the Commission’s form 2, stated the date of injury as 30 September 2009, the place of injury as Hawkesbury High School, and the injury description/cause of injury as “injury to cervical spine and left upper extremity (shoulder)”.
At page 2 of the same form, under “Compliance Documentation”, the applicant marked “failure to determine”.
At page 7 of the same form, under the heading “Permanent Impairment/Pain and Suffering”, the date of injury was stated as 30 September 2009, with systems clamed as “cervical spine” and “left upper extremity”, for a total whole person impairment (WPI) of 26%.
Attached to the ARD were a short statement of the applicant dated 22 March 2021, lump sum compensation claim correspondence between the applicant and the respondent and its insurer, including a letter by the insurer arranging for a medicolegal examination by Dr Wong, general surgeon, on 10 July 2020 for the purpose of assessment of WPI, and a report of
Dr Patrick dated 8 August 2019, upon which the applicant’s lump sum compensation claim was based. In that short statement, the applicant said that on 30 September 2009 she sustained significant injuries to her cervical spine and left upper extremity and her subsequent workers compensation claim was accepted by the insurer, and she also noted the opinion of Dr Patrick as to WPI and the arrangement made by the insurer for her to be examined by Dr Wong, with no further response having been received from the insurer.
In his report dated 8 August 2019, Dr Patrick noted the following history of injury on 30 September 2009:
“At the time Barbara Connolly was carrying out her work duties as a teacher. She was at Hawkesbury High School in the Hall when a girl kicked a volleyball vigorously and it impacted forcibly with her head about the left temporal region. She believes there was a sudden hyperextension and sideways flexion, and she believes she lost consciousness just momentarily but she remained of her feet - albeit unsteady. She was feeling extremely unwell.”
Dr Patrick noted the applicant’s progress following the injury, including the following:
“She was continuing with the left sided headache and neck pain as well as the left shoulder problems persisting. Dr Seex has sent her for MRl cervical spine and she has come to cervical spinal surgical intervention by Dr Seex, neurosurgeon, at Macquarie University Hospital in about October 2010. This surgical procedure consisted of left sided CS/6 and C6/7 foraminotomies (posterior approach) which did result in some improvement in her symptoms - for a time only. She has come to further MRl's of cervical spine post-surgery, and she was developing some degree of frozen shoulder on the left. Her neck and shoulder had been bothering her ever since September 2009. There was some improvement with her neck symptoms post-surgery but there were significant problems with ongoing pain over a broad area between cervical spine and left shoulder and she was being troubled by headaches and some facial paraesthesias.
She has come to further imaging studies and she has been referred on to be seen by capable pain specialist Prof Tillman Boesel associated then with Macquarie Pain Centre at the Macquarie Specialist Clinic at Macquarie University, and now at Inner West Pain Centre at the RPA Medical Centre in Newtown.
She has not come to further surgical intervention to date but she continues with very problematic continuing symptoms.”
Dr Patrick noted present symptoms included:
“She has ongoing neck pain and stiffness. The neck swells at times and she has increased pain at the back of the neck and head (likely cervico-genic headache). She is also aware at times of some swelling in the temple region on the left. Sometimes her left eye can be affected.
She has ongoing marked stiffness at her left shoulder now. She cannot raise her left arm to the horizontal at all…”
Dr Patrick noted findings on physical examination, including:
“There is the healed longitudinal surgical scar evident over lower cervical and upper thoracic spinal region - well healed with some suture marks visible with minor contour alteration and not really visible with usual clothing.
Standing erect left shoulder hangs slightly lower than the right in natural posture.
There is demonstrable muscle guarding evident at cervical spine, and there is some significant dysmetria. Active flexion is just to 40% of expected, extension 30%, lateral rotation to the right 40% and the left 25% of expected.
Consistent to repeated examination biceps jerk (predominantly CS, C6 nerve root innervation), and also supinator jerk (predominantly C6, C7 nerve root innervation) are both clearly reduced on the left compared to the right. There is diminished sensation over lateral and dorsal aspect left forearm mainly corresponding more to C6, C7 nerve root distributions. She does satisfy criteria for a persistent radiculopathy following surgery.
…
At the injured and problematic left shoulder (for which she has been seen by Dr Piper and also Dr Rizkallah) range of active motion is markedly restricted, with active flexion being to 80 degrees, extension 30 degrees, abduction 50 degrees, adduction 20 degrees, external rotation and internal rotation both 50 degrees, all consistent to repeat goniometer measurement. It is somewhat difficult to test for any gleno-humeral instability.
…
Examination of scalp and skull reveals no definite abnormality. Cranial nerves intact (sense of smell, taste, visual acuity and hearing not formally tested). Romberg test negative…”
Dr Patrick provided his opinion, including the following:
“The findings on clinical examination now are as outlined above. I believe the cause of Barbara Connolly's ongoing condition has been the significant workplace injury sustained on 30 September 2009.
She has come to posterior cervical spinal surgery at two levels with neurosurgeon
Dr Seex carrying out left sided C5/6 and C6/7 foraminotomies in about October 2010, with some improvement in symptoms for a time, but with recurrence, with ongoing problematic pain which has been managed for a considerable time by Prof Tillman Boesel, and with Dr Piper and Dr Rizkallah attending to her problematic left shoulder (without surgical intervention).
The diagnoses now are of a persistent radiculopathy arising at the operated cervical spine, and the radiculopathy affects left upper extremity more in C6 and C7 dermatomal distributions, and with diminished biceps jerk and supinator jerk on the left. She clearly does satisfy criteria for a persistent radiculopathy following cervical spinal surgery at two levels. She also now has a problematic quite stiff left shoulder which has been relatively unresponsive to treatments and there is probably some degree of a persisting capsulitis.
…
I believe her cervical spine and left upper extremity (shoulder), and skin (surgical scarring) are all rateable for assessment.”
Dr Patrick provided the following assessment of WPI:

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He explained the assessment of WPI as follows:
“She is DRE III at Cervical spine with now a demonstrable persistent radiculopathy following surgery and there is here a 2% WPI loading for ADL in that there is clear requirement for domestic/ household assistance and I believe this 2% WPI for ADL is appropriate, and based on all clinical findings and other reports. There are also two Table 4.2 assessments of 3% WPI for the persistent radiculopathy following cervical surgery, and a further 1 % WPI for the extra additional level being operated upon. These combine to result in 4% WPI which when combined with the 17%, results in 20% WPI for cervical spine.
The numbers within the parentheses relating to left shoulder are the percent upper extremity impairments resulting from the goniometer measured ranges of active motion in flexion, extension, abduction, adduction, external and internal rotation respectively, totalling 18% uei which equates to 11% WPI.
The surgical skin scarring posteriorly at cervico-thoracic region probably attracts 0% WPI in accordance with para 14.6 WCG4 p 73…”

Reply and attached documents

The Reply acknowledged that the insurer had failed to determine the applicant’s section 66 lump sum claim and noted that the applicant was scheduled to attend an independent medical examiner (IME) examination on behalf the respondent on 8 July 2021. Attached to the Reply were documents including an “email trail” regarding the proposed IME examination. This showed that the applicant attended an initial examination by Dr Wong on 21 August 2020, following which a further examination appointment was arranged. However, the further examination was rescheduled on a number of occasions for various reasons which appeared to be no fault of either party.
Also attached to the Reply were imaging investigation reports, serial treating reports of
Dr Boesel, pain medicine physician and specialist anaesthetist, Associate Professor Seex, neurosurgeon and reports of an injury management consultant, Dr Kafataris. None of these reports provided an assessment of permanent impairment.
In his report dated 21 August 2019 to the treating general practitioner (GP) (copied to the insurer), Dr Boesel noted that the applicant was still currently troubled by left post-traumatic supraorbital neuralgia and ongoing cervicalgia related to the neck injury and subsequent surgery. Dr Boesel requested case manager approval for a radiofrequency neurotomies procedure at the left supraorbital nerve to ameliorate her neurogenic headaches and possibly help taper the analgesic medications.
In his report dated 6 March 2019, Dr Boesel noted that:
“She continues to have:
·       [left] occipital neuralgia
·       [left] supraorbital neuralgia
·       [left] cervicalgia radiating to the left shoulder.”
In his report dated 19 November 2019 to the treating GP (copied to the insurer),
A/Prof Seex stated the following:
“I reviewed Barbara. Barbara's MRI is reported as showing foraminal narrowing, this wasn't that obvious to me and it seems to be bilateral and does not really account for the very unilateral pain that she has. She has also got problems around her left shoulder with fairly marked restriction of external rotation of the shoulder joint consistent with a degree of adhesive capsulitis which she appears to have had for some time.
The flexion/extension views don't show particularly abnormal motion, there is degeneration of 5/6 and 6/7 and some slight kyphosis and I am just not optimistic that surgical fusion, which really is the only option, is warranted here or is likely to produce a good result, however, I am going to do a bone scan. I think if this shows marked uptake in the joints this might be a candidate for injection or other therapy and I will think in the meantime she has seen Dr Boesel and a psychologist and I think all of these are useful strategies for her. She is currently off work and also getting her dizziness investigated. So I will see her back.”
In his report dated 7 April 2020 the treating GP (copied to the insurer), Dr Boesel noted that he added a thermal facet joint neurotomy to her procedure as requested by A/Prof Seex following review of a bone scan which confirmed severe active upper cervical facet joint arthropathy. Dr Boesel noted that the applicant’s symptoms had ameliorated to a degree following the neurotomies and in particular the cranial lancinations. He noted that the lateral “C-Spine” was not reportedly feeling numb.

Medical Assessment Certificate

The MAC of Medical Assessor Pillemer dated 18 November 2021 provided details of the matters referred for assessment. These were: date of injury was 30 September 2009; body parts/systems referred were cervical spine and left upper extremity; and the method of assessment was WPI.
Medical Assessor Pillemer noted the date of examination was 8 November 2021.
Medical Assessor Pillemer relevantly noted the following history:
“Her history was confirmed of having sustained an injury to her cervical spine on 30 September 2009, now some 12 years ago, when she was struck on the left side of her head by a volleyball that had been kicked by one of the students. She was immediately aware of discomfort in her neck and pain radiating down her left arm, and Ms Connolly has basically had ongoing problems with her neck and left upper extremity ever since then.
As will be noted below she eventually came to surgery which did improve symptoms for a period, but they have since recurred.
Ms Connolly was treated conservatively initially with tablets and physiotherapy, and had multiple injections in her neck including Botox injections as well as radio-frequency neurotomies. She also used a TENS machine and heat packs, and as mentioned she came to surgery in October 2010 being a left sided C5/6 and C6/7 foraminotomy via a posterior approach. Post-operatively she had further conservative treatment including tablets, physiotherapy and further injections.”
Medical Assessor Pillemer noted present symptoms including:
“As mentioned Ms Connolly has had ongoing problems in her neck and left upper limb ever since her injury in September 2009 with symptoms becoming progressively worse with time, extending from her neck into the left side of her head and down into the digits of her left hand, particularly her thumb, index and middle fingers.
She says that after her operation symptoms did seem to improve but gradually became worse again.
On direct questioning she feels that prior to her surgery symptoms went as high as 10+ /10, and after the operation they would have gone down to 5-7/10, but now they have increased again and range between 7-10/10. Symptoms in her neck, left side of her head and left arm are described as being constantly present and associated with pins and needles in the digits of her left hand.
When asked to indicate the main site of discomfort she indicates the sub-occipital region on the left side with discomfort extending to the left side of her head and also into her scapular region. She again has symptoms going all the way down into her left hand.”
Medical Assessor Pillemer noted findings on physical examination including:
“She shows significant restriction of cervical movement in all directions and was only able to abduct and flex either upper extremity to 50° today because this caused discomfort in her neck and occipital region on the left side. With her arms in a dependent position she has a full range of pain free external rotation and was able to get both hands to her buttocks posteriorly. Reflexes are generally depressed and excellent grip strength was present on the right and very good grip strength present on the left. The circumference of her left upper arm and forearm are both slightly less than the right side.
Importantly Ms Connolly has distinct hypoaesthesia to pinprick down the lateral border of her left forearm including the thumb and index finger and this sensory loss is distinct and present with repeated testing (C6 distribution). Importantly she does have localised tenderness to palpation in the sub-occipital region on the left side which is her site of maximum tenderness, and she also has hypoaesthesia to pinprick on the left side of her scalp.
She has a 10cm healed scar in the posterior cervical region which shows a colour contrast with the surrounding skin, and she is able to readily locate the scar and there is a minor contour defect.”
Medical Assessor Pillemer noted from the reports provided to him that there were no reports pre-operation, and that reports post-operation showed neural exit foraminal narrowing with compression of exiting nerve roots, and a suggestion of moderate compression of exiting right C6 nerve root (MRI 18 November 2019). He noted that Ms Connolly’s radiculopathy is left sided.
Medical Assessor Pillemer summarised injuries and diagnoses as follows:
“Ms Connolly sustained an injury to her cervical spine on 30 September 2009, eventually requiring a two-level decompression by a posterior approach. This did give some improvement in her symptoms initially but they have progressively increased and once again she is in considerable discomfort on a constant basis.
In addition to the neck discomfort she also has evidence of C6 involvement of her left upper extremity (radiculopathy), and in my opinion she also has evidence of occipital neuralgia which seems to be the site of her main discomfort at the present time.
As noted Ms Connolly has an equal restriction of movement of both upper extremities, and any attempt at increasing this movement caused significant discomfort in her neck and occipital region, and in my opinion the reduced range of movement of her shoulders is due to the aggravation caused by her neurological condition, and in my opinion there is no pathology in the shoulders themselves. This is evidenced by the facts that:
• There was no injury to the shoulder.
• There is equal restriction of movement of both shoulders.
• As noted, in my opinion there is no primary pathology in the shoulder itself.
Therefore as will be noted in the Table, I have not awarded any impairment for restricted range of shoulder movement as this is part and parcel of the DRE Category III of her cervical spine.”

Medical Assessor Pillemer provided the following opinion and assessment of WPI:
“In my opinion Ms Connolly falls into DRE Category III of her cervical spine(1) (see 10b), with 15% WPI. To this I would add an additional 2% for interference with activities of daily living, giving a total of 17% WPI.
Ms Connolly is entitled to further impairment according to Table 4.2(2), with an additional 3% for radiculopathy and a further 1% for the second level operated on, giving a total of 4% WPI. Combining these impairments gives a total of 20% WPI. Please note that I would not make any deduction for pre-existing condition noting that Ms Connolly was asymptomatic prior to her injury in September 2009.
In my opinion Ms Connolly would also be entitled to 1% WPI for scarring, but as noted this has not been requested in the referral, and is therefore not included in the Table.
In my opinion there would also be additional impairment for occipital neuralgia, but this has also not been included in the referral, and is therefore not included in the Table.”
Medical Assessor Pillemer made the following comments regarding other medical opinions and findings submitted by the parties:
“I note the reports of Dr W G D Patrick (general surgeon) of 8 August 2019, placing Ms Connolly in DRE Category III of her cervical spine and suggesting the same figures that I have suggested, but making a one-tenth deduction which I have elected not to do. Ms Connolly was asymptomatic prior to her injury.
Dr Patrick then finds an additional 10% WPI for reduced range of left shoulder movement, but as noted in the body of my report, in my opinion there is no primary pathology in either shoulder.
There are reports of Dr T Boesel (pain specialist), A/Professor K Seex (neurosurgeon and treating specialist), and Dr C Kafataris (IMC), none of whom suggest figures of impairment.”
Medical Assessor Pillemer assessed WPI as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	% WPI deductions pursuant to S323 for pre- existing injury, condition or abnormality	Sub-total/s % WPI (after any deductions in column 6)
Cervical Spine	30/09/09	Chapter 4 Page 24-29	Chapter 15 Page 384 Table 15-3	20%	nil	20%
Left upper extremity	30/09/09	Chapter 2 Pages 10-12	Chapter 16 Pages 433 to 521	0%	not applicable	0%
Total % WPI (the Combined Table values of all sub-totals)					20%

The applicant’s form 10 and submissions

The grounds of appeal were marked as:
·        availability of additional relevant Information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before the medical assessment);
·        the assessment was made on the basis or incorrect criteria, and
·        the medical assessment certificate contains a demonstrable error.
The submissions in support of the form 10 were as follows:
“1.     The Appellant Worker submits that the Medical Assessment Certificate of
Dr Pillemer dated 18 November 2021 contains a demonstrable error and/or was made on the basis of incorrect criteria
2.      The Appellant Worker submits that the issue of injury in this matter was uncontested. To that extend the Appellant Worker claimed injury to her cervical spine and left upper extremity. The Respondent Employer relied on no medical evidence to challenge this, nor at any stage issued a Section 78 Notice disputing injury to those body parts.
3.      Despite there being no dispute as to injury, and no evidence to the contrary, the Medical Assessor went on to find that there was no injury to the left upper extremity. This is not a finding open to the Medical Assessor as the injury was not in dispute.
4.      Under Section 325(1) the Assessor is to give a certificate as to the matters referred for assessment. In this case the matter of injury was not referred for assessment as this was accepted and pre-determined. Accordingly any comment on that aspect is not in compliance with the requirements of the Assessor under Section 325(1) and again the Assessor has fallen into error in this regard (see Jopa Pty Ltd t/as Tricia's Clip-n-Snip v Edenden [2004]NSWWCCPD50).
5.      In circumstances where injury is found it is required of the AMS to accept that there has been an injury and to assess the impairment in accordance with Waikara v Registrar of Workers Compensation Commission [2005] NSWSC 954. As such the findings of the Medical Assessor that there was no injury to the left upper extremity are in error
6.      Whilst we concede that it was open to the Medical Assessor to find that there was no impairment arising from the injury, it was not open to the Medical Assessor to find that there was no injury as this was an uncontested issue between the parties.
7.      Further, in the decision of Qantas Airways Limited v Madeline Swift, being a Medical Appeal Panel decision dated 29/11/2010, it was found in that case that it was the task of the AMS to assess the degree of whole person impairment arising from an injury.
8.      In that case it was held that where other impairments arise that it was open to the AMS to include assessments for other parts not referred to him as long as it arose as a result of the agreed injury.
9.      To that extent the AMS must apply a test of commonsense causation (see Kooragang Cement Pty Limited v Bates [1994] 10 NSWCCR 796).
10.    In the current case the Medical Assessor found that the Appellant Worker had an entitlement to a whole person impairment arising from both scarring and for occipital neuralgia arising from the compensable injury however did not proceed to determine the impairment arising therefrom.
11.    It is submitted that in light of the above decision that that was an error. It was open to the Medical Assessor, and indeed his duty under the Act, to determine those impairments for scarring and occipital neuralgia as they clearly arose, in his own opinion, from the injury to the neck.
12.    To the extent that the Medical Assessor has not made that determination there is a demonstrable error and he has used incorrect criteria in not assessing those impairments.
13.    It is submitted that in those circumstances that an appeal lies and the matter should be referred to a Medical Panel to assess the additional impairments noted as occurring as a result of the scarring and occipital neuralgia as described by the AMS.
14.    In the event that the appeal is successful and the matter is not referred for reconsideration to the original Medical Assessor then the Appellant Worker submits that the Medical Appeal Panel will need to examine the Appellant Worker for the purposes of assessing any whole person impairment arising from the left upper extremity, scarring and occipital neuralgia arising from the neck injury as found by the Medical Assessor but not quantified by him.
15.    It is respectfully submitted that the matter should be re-referred to the Medical Assessor for re-consideration of the MAC for the reasons articulated above.”

The application

The application contained written submissions in accordance with the Commission’s Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes. Also attached to the application were a form 10 (Appeal Against a Decision of Medical Assessor) with separate written submissions in respect of that appeal, a copy of the MAC noted above, and a copy of the report of Dr Patrick, also noted above.
The written submissions in support of the application were relevantly as follows:
“The Applicant seeks that pursuant to Section 329(l)(a) of the 1998 Act that the President, as an alternative to an appeal against the Medical Assessment Certificate, as allowed under Section 327, refer the matter for a further medical assessment and/or re-consideration.
It is submitted that there has been no undue delay in bringing the application for referral for further medical assessment and/or re-consideration, noting that it has been lodged prior to the last date that the Applicant can appeal and as such there can be said to be no prejudice to the Respondent arising from the delay.
The circumstances of this Application are as follows:
1.      The Applicant will be lodging an appeal against the Medical Assessment Certificate on the basis that despite there being no contest as to injury in relation to the left upper extremity that the Medical Assessor found that there was no injury. With respect it was not open at law to the Medical Assessor to find no injury when it was uncontested. That will put the Medical Assessment Certificate in error.
2.      The Applicant submits that whilst it is likely that she will succeed on any appeal relating to the Medical Assessor's finding of no injury, where it was not open to him to do so, it is conceded that based on his clinical findings that it is unlikely that any impairment would be given to the worker based on his clinical examination conducted at the time of his assessment.
3.      The Applicant therefore believes that the matter can be rectified by way of re consideration where he concedes that the worker was injured but finds that there was no impairment arising from the injury, as he is entitled to do.
4.      It is further submitted that the Medical Assessor found that arising from the neck injury, which was not in dispute, that the Applicant had impairments arising as a result of scarring from neck surgery as well as occipital neuralgia however did not go on to assess the impairments arising therefrom despite his clinical findings.
5.      It is submitted that the Medical Assessor was entitled to assess those impairments if he believed that they related to the neck injury which was referred to him to assess.
6.      In those circumstances we believe a request for a re-consideration of those matters will lead to the Medical Assessor being able to issue a Medical Assessment Certificate including assessments for both the scarring and occipital neuralgia which he believes the worker suffered as a result of the injury however did not go on to assess on the mistaken belief that he couldn't do so.
7.      It is the Applicant's position that the Medical Assessor was obligated to assess those impairments if he believed that they arose as a result of the injury referred to him whether or not those matters were included in the referral or not. To this extent we believe that there are previous Medical Panel Decisions which are consistent with that approach, namely Qantas Airways Limited v Madeline Smith (29/11/2020).
8.      The Applicant should not be prevented from obtaining those percentages which the Medical Assessor believes that she has as a result of the injury, simply because her own doctors and evidence did not find impairments in that regard or make the same clinical findings as the Medical Assessor.
9.      It is submitted that the Medical Assessor is entitled, and should be directed to consider those matters, as they are impairments that arise directly from the injury and as such are able to be assessed by him under the legislative provisions.
10.    It is submitted that the Commissions discretion should be exercised for a reconsideration as the Applicant would not have been entitled to refer to the AMS an injury to the skin for scarring as the Applicant's own evidence was that it was 0% and as such there was no dispute to refer. Given the Medical Assessor's different opinion relating to that the Applicant would now be severely prejudiced, through no fault of her own, if the Medical Assessor was not allowed to assess for scarring in accordance with his opinion.
11.    The same can be said for the occipital neuralgia. There was no previous diagnosis or findings made by any of the doctor's in evidence of occipital neuralgia or any impairment arising therefrom. The fact that the Medical Assessor has found that there was occipital neuralgia arising from the neck injury means that should have been assessed.
12.    If that matter is not re-considered the Medical Assessment Certificate will become binding and an impairment which the Applicant would otherwise be entitled to will not be assessed and the Applicant will be bound by the one MAC rule. There was no way that the Applicant could have foreseen those findings or diagnosis until such as the Medical Assessor made them and therefore could not have claimed for them. To not allow the Medical Assessor to now include those assessments will cause substantial injustice to the Applicant and in those circumstances should be allowed in accordance with the principles set out in Hilliger v Hilliger (1952) 52 SR (NSW) 105.
13.    Whilst the Applicant intends to lodge an appeal, to protect her interests having regard to the above matters, in light of the circumstances set out above it is submitted that it would be more pragmatic to simply be re-referred to the Medical Assessor for re-consideration and make findings accordingly in relation to the injury to the arm and providing assessments in relation to scarring and occipital neuralgia.
14.    If the matter is not re-considered and the matters relating to scarring and occipital neuralgia are not considered then the Applicant will only be entitled to one assessment, being the current assessment of Dr Pillemer, and therefore will be minus matters which the matter could not have addressed prior to the findings of the Medical Assessor. As such it is submitted that it would not be fair to allow the Applicant to have those matters assessed given the prejudicial effect flowing therefrom.”
In its written submissions in support of an appeal against the MAC, the applicant stated the following:
“1.     The Appellant Worker submits that the Medical Assessment Certificate of
Dr Pillemer dated 18 November 2021 contains a demonstrable error and/or was made on the basis of incorrect criteria
2.     The Appellant Worker submits that the issue of injury in this matter was uncontested. To that extent the Appellant Worker claimed injury to her cervical spine and left upper extremity.   The Respondent Employer relied on no medical evidence to challenge this, nor at any stage issued a Section 78 Notice disputing injury to those body parts.
3.      Despite there being no dispute as to injury, and no evidence to the contrary, the Medical Assessor went on to find that there was no injury to the left upper extremity. This is not a finding open to the Medical Assessor as the injury was not in dispute.
4.      Under Section 325(1) the Assessor is to give a certificate as to the matters referred for assessment. In this case the matter of injury was not referred for assessment as this was accepted and pre-determined. Accordingly any comment on that aspect is not in compliance with the requirements of the Assessor under Section 325(1) and again the Assessor has fallen into error in this regard (see Jopa Pty Ltd t/as Tricia's Clip-n-Snip v Edenden [2004] NSWWCCPD 50).
5.      In circumstances where injury is found it is required of the AMS to accept that there has been an injury and to assess the impairment in accordance with Waikara v Registrar of Workers Compensation Commission [2005] NSWSC 954. As such the findings of the Medical Assessor that there was no injury to the left upper extremity are in error.
6.      Whilst we concede that it was open to the Medical Assessor to find that there was no impairment arising from the injury, it was not open to the Medical Assessor to find that there was no injury as this was an uncontested issue between the parties.
7.      Further, in the decision of Qantas Airways Limited v Madeline Swift, being a Medical Appeal Panel decision dated 29/11/2010, it was found in that case that it was the task of the AMS to assess the degree of whole person impairment arising from an injury.
8.      In that case it was held that where other impairments arise that it was open to the AMS to include assessments for other parts not referred to him as long as it arose as a result of the agreed injury.
9.      To that extent the AMS must apply a test of commonsense causation (see Kooragang Cement Pty Limited v Bates [1994] 10 NSWCCR 796).
10.    In the current case the Medical Assessor found that the Appellant Worker had an entitlement to a whole person impairment arising from both scarring and for occipital neuralgia arising from the compensable injury however did not proceed to determine the impairment arising therefrom.
11.    It is submitted that in light of the above decision that that was an error. It was open to the Medical Assessor, and indeed his duty under the Act, to determine those impairments for scarring and occipital neuralgia as they clearly arose, in his own opinion, from the injury to the neck.
12.    To the extent that the Medical Assessor has not made that determination there is a demonstrable error and he has used incorrect criteria in not assessing those impairments.
13.    It is submitted that in those circumstances that an appeal lies and the matter should be referred to a Medical Panel to assess the additional impairments noted as occurring as a result of the scarring and occipital neuralgia as described by the AMS.
14.    In the event that the appeal is successful and the matter is not referred for reconsideration to the original Medical Assessor then the Appellant Worker submits that the Medical Appeal Panel will need to examine the Appellant Worker for the purposes of assessing any whole person impairment arising from the left upper extremity, scarring and occipital neuralgia arising from the neck injury as found by the Medical Assessor but not quantified by him.
15.    It is respectfully submitted that the matter should be re-referred to the Medical Assessor for re-consideration of the MAC for the reasons articulated above.”

Respondents written submissions

In its written submissions in opposition to the application, the respondent summarised its submissions:
“1.     The Appellant has filed both an Application for Reconsideration and an Appeal Against a Decision of a Medical Assessor. The submissions in support of both are almost identical and the Respondent submits that the President must determine whether to refer the matter back to the Medical Assessor ("MA") or whether to refer the matter to an Appeal Panel (‘AP’). Both avenues cannot be pursued concurrently.
2.      The Appeal Against a Decision of Medical Assessor indicates that one of the grounds of appeal is that there is additional relevant information that is now available, however, the Appellant's submissions do not address this ground and it does not appear that any further evidence was filed with the Appeal.
3.      The Respondent concedes that the Medical Assessment Certificate (‘MAC’) dated 18 November 2021 contains a demonstrable error in that the Medical Assessor (‘MA’) Dr Roger Pillemer's found that the worker did not suffer an injury to the left shoulder. However, the error did not impact the assessment of 0% WPI in relation to the left upper extremity (left shoulder);
4.      The MA did not fall into demonstrable error by omitting any impairment attributable to scarring or occipital neuralgia from his final assessment as those body systems did not form part of the ‘medical dispute’ referred to him. To the extent that the MAC contained an assessment for scarring, this should be amended.”
As to the submission regarding a concurrent application for reconsideration and an appeal the respondent submitted:
“5.     The Respondent submits that the President must determine whether to refer the matter back to the MA or whether to refer the matter to an Appeal Panel. Both avenues cannot be pursued concurrently.
6.      Usually, an aggrieved party will file an Appeal Against a Decision of a Medical Assessor and submit that the matter should be referred to the MA or in the alternative, that it should proceed to an AP. However, the Appellant has elected to make both applications concurrently, which it is open to her to do.
7. Section 329(1) of the WorkplaceInjuryManagementandWorkersCompensationAct 1998 (‘WIM Act’) provides that:
A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—
(a) the President as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
8. It is evident from the words s.329(1) of the WIM Act, which is consistent with s.327(6) of the WIM Act, that the President may only refer the matter for reconsideration as an alternative to an appeal. That is, this matter cannot be referred back to the MA and at the same time proceed to an AP.
9.      This is a matter for the President but for reasons outlined below, the Appellant has not sufficiently outline why the matter should either be referred for reconsideration or why it should proceed to an AP.”

In relation to an appeal based on additional relevant information, the respondent submitted:
“10. The Respondent submits that any appeal based on the availability of additional relevant information should be dismissed.
11. At page 2 of the Appellant's Appeal, she asserts that one ground of appeal available to her is based on the availability of additional relevant information. However, there does not appear to be any additional information that has been filed with the Appeal. Further, even if there is further information that the Appellant seeks to rely on, her submissions do not address why those documents are admissible, given that she must establish that the evidence was not available or that it could not be reasonably obtained prior to the MA's assessment.
12. As such, this ground of appeal should be dismissed as it has not been made out.”
As to the assessment of the left shoulder by the Medical Assessor, the respondent submitted:
“13. The Respondent concedes that the MA fell into demonstrable error by finding that the Appellant had not sustained an injury to the left shoulder. This was outside of the MA's jurisdiction.
14.    However, the Respondent submits that the error had no impact on the final assessment of impairment to the left upper extremity, being the left shoulder.
15.    The MA made the following findings:
As noted Ms Connolly has an equal restriction of movement of both upper extremities, and any attempt at increasing this movement caused significant discomfort in her neck, and occipital region, and in my opinion the reduced range of motion of her shoulders is due to the aggravation caused by her neurological condition, and in my opinion there is no pathology in the shoulders themselves.
16.    The findings on examination made by the MA warrant an assessment of 0% WPI. It is noted that the Appellant concedes at para 6 of the Appeal submissions that it was open to the MA to find that there was no impairment arising from the left shoulder injury.
17.    The Respondent considers that this error can be dealt with by way of the slip-rule, in that the comment on page 4 of the MAC reading ‘there was no injury to the shoulder’ should be omitted but the assessment of impairment should be confirmed.”
In relation to the assessment of impairment attributable to scarring or occipital neuralgia, the respondent submitted:
“18. The Respondent submits that the MA did not fall into demonstrable error by omitting an assessment of impairment for scarring and/or occipital neuralgia from his final assessment, as those body systems were not referred to him nor were they the subject of a "medical dispute".
19.    The Appellant relies on the decision in Qantas Airways Ltd v Swift [2010] NSWWCCMA 42 to submit that the MA had jurisdiction to assess any impairment for scarring and/or occipital neuralgia so long as he was satisfied that it resulted from the accepted injury. This is an application of the principle in KooragangCementPtyLimitedvBates [1994] 10 NSWCCR 796.
20. With respect, the decision relied upon by the Appellant is significantly dated and is not a true reflection of the MA's jurisdiction in light of the legislative framework relating to medical assessments contained in the WIM Act.
21.    The MA's jurisdiction to assess impairment was recently discussed by the Court of Appeal in SkatesvHillsIndustriesLtd [2021] NSWCA 142. The Court held that:
(a) The term ‘medical dispute’ is defined at s.319 of the WIM Act. The term is defined by reference to the existence of a ‘dispute between a claimant and the person whom the claim is made’ about any of the seven related subject matters, which includes the degree of permanent impairment as a result of an injury. [see 44]
(b) Sections 321 and 321A of the WIM Act concern referrals of a dispute for assessment. The headings of each section commences with "referral of medical dispute" and each provision confirms that it is the medical dispute that is referred for assessment. Section 293 of the WIM Act authorises the referral of a medical dispute for medical assessment and the deferral of determination. ‘All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute’. [see 47]
(c) There is a tendency to given the ‘referral’ to a MA a ‘greater status than it warrants’. The referral is important but the ‘fundamental legal concept is a dispute’. [see 48]
(d) ‘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.’ [see 48]
(e) Any terms contained in the referral to a MA ‘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’. [see 49]
22. Effectively, the Court determined that the body parts to be assessed by a MA are those that formed part of the claim made to the insurer, which in turn becomes the ‘medical dispute’ as defined by s.319 of the WIM Act.
23.    In the present matter, the claim initially made by the Appellant, dated 20 May 2020, was in respect of 26% WPI and supported by Dr Patrick. Dr Patrick's assessment was for the cervical spine and left upper extremity (left shoulder). That the assessment also included 0% WPI for scarring.
24.    Upon filing of the ARD, the Appellant was required to particularise the alleged injury and claim for lump sum compensation. At page 6, the injury is pleaded as occurring on 30 September 2009 and involving ‘injury to the cervical spine and left upper extremity (shoulder)’. At page 7, the only body systems claimed in relation to the lump sum compensation claim were the cervical spine and left upper extremity, totalling 26% WPI. The reference at page 7 to left upper extremity is a reference to the left shoulder when the ARD and claim is read in totality.
25.    At no stage was there a claim made for scarring or an injury relating to occipital neuralgia. Occipital neuralgia amounts to an injury to the nervous system/pain. In applying Skates, it would be impermissible for the MA to make an assessment for those body systems given that they did not form part of the claim made by Appellant, which in turn means that those body parts were not the subject of the "medical dispute" and could not be referred to the MA for assessment.
26.    On that basis, the Respondent submits that the assessment made by the MA complies with his obligation to determine the "medical dispute" between the parties. It is an unfortunate circumstance that the MA elected to include reference to 1% WPI for scarring and that he alluded to a potential assessment for occipital neuralgia, despite conceding that this was outside of his jurisdiction. As such, any reference to an those body systems and attributable impairment should be omitted from the MAC by way of the slip-rule”
The respondent sought the following:
“27. That the MAC dated 18 November 2021 is amended by way of the slip-rule to remove the following:
a. ‘There was no injury to the shoulder’ – page 4 of MAC
b. ‘In my opinion Ms Connolly would also be entitled to 1% WPI for scarring, but as noted this has not been requested in the referral, and is therefore not included in the Table.’ – page 5 of MAC
c. ‘In my opinion there would also be additional impairment for occipital neuralgia, but this has also not been included in the referral, and is therefore not included in the Table’. – page 5 of the MAC
28. The President dismiss the Application for Reconsideration and the Appeal Against a Decision of a Medical Assessor, and confirm the MAC dated 18 November 2021, save for the amendments outlined above.”

ORAL SUBMISSIONS

At the arbitration of this matter, the applicant submitted that:
(a)    it is the applicant’s case that the occipital neuralgia ought to have been assessed and added to the table in the MAC and, similarly the scarring ought to have been added to the table, although it was allocated it was not for the Medical Assessor to not find injury to the left shoulder;
(b)    the checkbox under “matters in dispute” at page 2 of the ARD checked “lump sum compensation where degree of permanent impairment is in dispute”. The Reply at “Part 3 – Matters in Dispute” in response to “failure to determine” was marked “yes” and in response to “where failure to determine leave is sought to include the following” the response was “the applicant is scheduled to attend an IME examination on behalf of the respondent on 8 July 2021”. In the Reply at “Part 7 – Certification and Signature” the respondent certified that “the dispute is limited to those matters identified in the application to resolve a dispute lodged by the applicant and those identified in Part 3”;
(c)    the only matter in dispute in these proceedings is lump sum compensation where the degree of permanent impairment is in dispute. This was the only dispute identified in the ARD and in the Reply at Part 3. The pleadings define the matter or matters in dispute between the parties, that is the degree of permanent impairment. No injury was in dispute and there was no identification that any part of impairment was or was not in dispute, it was simply that the degree of impairment of the worker was in dispute;
(d) section 321A(3) of the 1998 Act contains within it the term “medical dispute” and is the mechanism by which the referral is made to the Medical Assessor;
(e) section 319(c) of the 1998 Act relevantly defines “medical dispute” to mean a dispute between the 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. This definition applies in this case;
(f) the pleadings in this matter define the dispute to be no more and no less than what was the permanent impairment of the worker, with respect to the definition of a medical dispute in section 319. That is, all impairments in the opinion of the medical assessor that result from an injury were matters within the medical dispute;
(g) section 319 does not define a medical dispute to mean the matters referred to the Medical Assessor in the referral by the delegate of the President. The respondent’s submissions ultimately appear to conflate a number of concepts. The respondent appears to conflate the concept of dispute which is as defined on the pleadings, to what was contained in the referral to the Medical Assessor, which is a different concept to a dispute. The respondent also conflates in their submissions matters that might or might not be in one of the medical reports that are attached to the Reply, as opposed to that issue being a non-dispute;
(h)    section 322 provides no impediment to the Medical Assessor assessing all parts of the body. The only relevance in this matter is such an impediment could have been included in section 322, as part of the legislative scheme, but no such impediment is contained in section 322;
(i)    section 326, status of medical assessments, is a code in two parts that covers the entire universe of opinions of the medical assessor. Subsection 1 provides that the MAC pursuant to a medical assessment is conclusively presumed to be correct in respect of matters including the degree of permanent impairment of the worker as a result of an injury. Subsection 2 refers to any matter which is not within subsection 1 and the assessment certified is evidence, but not conclusive evidence, in any such proceedings. Section 326 is relevant to arguments below;
(j) it was submitted that the grounds of appeal specified in section 327 (3) were applicable in this case were ground (b) and (c) and subsection 4 provides an alternative mechanism. The applicant also submitted that s 327(6) is of great importance in this matter, that is the president may refer a medical assessment for further assessment under section 329 as an alternative to an appeal (but only if the matter could otherwise have proceeded on appeal under this section). It was submitted that for the reasons previously expressed there are grounds of appeal that would satisfy subsection 6. It was submitted that this would be an appropriate course in this matter;
(k) section 329(1) provides for the power to refer again for further assessment by the President as an alternative to an appeal against the assessment, s 329(1)(a), and by the Commission, s 329(1)(b);
(l) if the matter does not proceed to the Medical Assessor on referral by the President or the Commission pursuant to s 329(1), then s 328 would operate, in particular, s 328(3) in which it is provided that:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
(m)     having regard to s 326(2), if the respondent is correct on all other matters, the opinion expressed by the Medical Assessor becomes evidence available to an appeal panel pursuant to s 328(3) because it was not available before the issue of the MAC. The applicant accepted that on its face this submission may appear to be strange, nevertheless it must be correct because if the medical opinion had come from a different source, not the Medical Assessor, then it would be a matter of fresh evidence. There is no reason in the statute why the opinion of the Medical Assessor is not treated as evidence like any other medical opinion as to permanent impairment. There can be no doubt that the opinion of the Medical Assessor can have evidentiary value pursuant to s 326(2).
The respondent submitted that:
(a)    the applicant has not ever advanced a claim for compensation concerning the occipital neuralgia and has not ever sought compensation in relation to the scarring. There is no determination that has been made by the Commission or a concession regarding liability by the respondent. The consequence of that these are matters that could not ever have been referred for assessment;
(b) the nature of the dispute is limited to the matters in the ARD as framed by the claim. The claim describes the cervical spine and left upper extremity being the shoulder as the injuries. The body systems were then referred for assessment on that basis. The medical dispute pursuant to section 319, is and must be the degree of permanent impairment arising from those two body parts and the referral to the AMS was on that basis;
(c)    the Commission cannot refer body systems, which were outside the original referral, to the Medical Assessor for reassessment as it does not have the power to do so. What the applicant is asking the Commission to do is to exercise the discretion conferred by section 329 of the 1998 Act. The term “matter” is not actually defined in part 7, but the use of the word in other sections in the part, including in section 325(1) and (2). Section 325 provides the medical assessor to whom a medical dispute is referred is to give a certificate as to the matters referred for assessment. The matters referred for assessment can only be those things identified in the referral, in this circumstance the degree of permanent impairment arising from the injuries to the cervical spine and injury to the left upper extremity. A similar use of the term is found in section 326. Section 329 while conferring a broad discretionary power is limited, however, as the terms, in which it is been drafted and reading section 329 in that manner, the respondent submits the referral must be limited to the matters that were originally referred;
(d)    it was submitted that there is really no jurisdiction to refer any body system beyond the original referral as it is not a matter that has been referred for assessment. The fundamental aspect is that there is no claim that has been made and there is no determination of the question of injury, for example, in relation to the body system suggested;
(e)    the applicant’s submission that as a matter of common sense, there is no restriction to the medical assessor in only assessing the matters referred to them, must be viewed in light of section 325, and what a medical assessor is empowered to do by section 325 in conducting a medical assessment and in providing a MAC. In the respondent’s submission it is a slightly different situation because there is a statutory limit on what the medical assessor can do;
(f)    in Milosavljevic v Medina Property Services[1] (Milosavljevic). In that case, DP Roche stated[2] that while the MAC is conclusively presumed to be correct in respect of the matters identified in section 326(1), it does not equate to a determination of the dispute by the Commission. In this case there has been no determination of the issue and the concern is that there are procedural fairness requirements for both parties;
(g)    while there is a power to refer the matter back for further assessment, that power is limited to the matters that were referred on the original assessment. That approach was adopted or has been adopted, in relation to appeals concerning the MAC in the matter of O’Callaghan v Energy World Corporation[3] (O’Callaghan);
(h)    the Medical Assessor in this case is potentially making a determination concerning the question of liability and this is beyond the realm of the jurisdiction of the MA. This issue was ventilated in Pidcock Panel Beating Pty Ltd v Nicolia[4] (Pidcock), in which it was held that the matter referred again for assessment must be the same matter that was previously referred;
(i)    the limits of the jurisdiction of a Medical Assessor were considered in Skates v Hills Industries Ltd[5] (Skates). The terms of the referral guide how the medical assessor is to conduct the assessment, and what the medical assessor is to conduct the assessment on. In Yates v Flavorjen[6] (Yates), the Court considered Skates, in circumstances where the parties had agreed to the terms of the dispute and agreed to the terms of the referral and there was no issue that the referral had been drafted improperly or anything of that nature. In following Skates, the Court in Yates stated that while one must look beyond the referral form as to the true nature of the medical dispute one also cannot ignore the terms set out in the referral form. It was confirmed that the AMS was constrained to an assessment within the scope of the referral and that is the statutory limit of the operation of section 329, and
(j) section 329 does not permit the Commission to go beyond the scope of that initial referral and that is supported by presidential authority and Court of Appeal authority. It is difficult to identify how to effectively add in body systems for assessment which have never been the subject of a claim, and are not and cannot ever be a medical dispute within the definition described by section 319. When looking at section 319, a medical dispute is defined as a dispute between a claimant and the person on a claim is made. The starting point is that there needs to be a claim. In the absence of that there cannot be a medical dispute, which then cannot be the subject of a referral. In this case the referral to the medical assessor and the medical dispute concern the degree of permanent impairment cervical spine and the left upper extremity.
[1] 2008 NSWWCCPD 56.
[2] at [49].
[3] 2016 NSWWCCPD 1.
[4] [2017] NSWWCCPD 32.
[5] [2021] NSWCA 142.
[6] [2022] NSWSC 388.

Decision

There was no dispute in this matter that the President’s referral to the Medical Assessor in this matter (the referral document) was accurately described in the amended MAC.

Section 319 of the 1998 Act provides:
“medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim—
(a)  the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b)  the worker’s fitness for employment,
(c)  the degree of permanent impairment of the worker as a result of an injury,
(d)  whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e)  the nature and extent of loss of hearing suffered by a worker,
(f)  whether impairment is permanent,
(g)  whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Section 327 of the 1998 Act now relevantly provides:
“(1)    A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2)     A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3)     The grounds for appeal under this section are any of the following grounds—
(a)  deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b)  availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c) the assessment was made on the basis of incorrect criteria,
(d)  the medical assessment certificate contains a demonstrable error.
(4)     An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5)     If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.
(6)     The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
Note—
Section 329 also allows the President to refer a medical assessment back to the medical assessor for reconsideration (whether or not the medical assessment could be appealed under this section).
…”
Section 329 of the 1998 Act now provides:
“(1)    A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—
(a)  the President as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.
(2)     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.”
As there was particular focus on the decision in Skates, it is necessary to consider that decision in some detail. Since that decision, the new legislative arrangements for Medical Assessors (previously Approved Medical Specialists) and the Commission have come into force. There is no material difference between an Approved Medical Specialist (AMS) and a Medical Assessor in this context.
In my view, the Court of Appeal in Skates did not conclude that the scope of the referral is always properly capable of restriction by reference to specified body parts/systems at the time of the referral, and without reference to the applicant’s claim and the respondent’s dispute. On this point, the three judgements differed. In that case the referral document (from the Registrar’s delegate) contained an error in omitting a body part, the left wrist. The ARD claimed injury in respect of the left wrist and hand, and claimed permanent impairment in respect of, inter alia, the left upper extremity. The AMS provided a MAC which assessed permanent impairment in respect of the left upper extremity in respect of complex regional pain syndrome as a result of a combination of impairments of the shoulder, elbow, other fingers and thumb. The Appeal Panel, citing Aircons, found the AMS went beyond the terms of the referral, but declined to review the left wrist on the basis that it had not been referred to the AMS.
Basten JA, in considering the scope of the referral to a Medical Assessor, rejected the submission that the scope of the referral was not and could not be restricted by reference to body parts, for two reasons[7]. The first[8] was that the jurisdiction of the Commission was not at large in respect of a section 66 claim for lump sum compensation. The material attached to the application defined the proper scope of the referral, that is the medical reports supporting the applicant’s claim for payment and the insurer’s offer in that respect. These documents referred to specific injuries of the left wrist and hand, for which liability was admitted and as to which the precise extent of the injury was disputed. The second[9] was that the statutory scheme, incorporating the NSW workers compensation guidelines for the evaluation of permanent impairment[10] (the Guidelines) and the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA5), requires identification by the medical assessor of the extent of impairment by reference to individual body parts and body systems. The Approved Medical Specialist was in error in failing to be limited to “the terms of the claim”[11], presumably being the material referred to in the first reason above.
[7] [26].
[8] [27]-[31].
[9] [32]-[34].
[10] Fourth edition.
[11] [35].
Leeming JA, while agreeing with Basten JA, also observed that the medical dispute, as defined in s 319, will have been identified by written exchange of competing claims in most cases.[12] The dispute in that matter was crystallised by the correspondence attached to the application setting out both sides’ claims. The referral document to the AMS has been given a greater status than it warrants, as the fundamental legal concept is the dispute. Leeming JA gave a heavier emphasis upon the purpose of the statutory regime being to resolve a medical dispute and that dispute is identified by the competing claims of the applicant and the insurer.
[12] [44].
McCallum JA, dissenting, was of the view that the process contemplated by the legislation is the Registrar (now the President) will refer a medical dispute, meaning a dispute about a “matter” specified in the definition of s 319, and that there is no reference to body parts or body systems in the 1987 or 1998 Acts. The statutory function of the AMS is to certify their assessment with respect to the matter referred. The AMS was not confined to an assessment of the body parts referred by a delegate of the Registrar. The focus on body parts tends to “distract attention from the precise matter to be assessed and certified” by the AMS, which is the application in the context of the statutory regime, that is referral of a medical dispute as to one of the matters specified in s 319. Although the ARD form refers to “body parts/systems claimed”, language that is not used in the legislation, it is to be understood as “shorthand for the body parts or body systems in respect of which permanent impairment compensation is claimed”. The medical evidence contained medical assessments of impairment in parts of the limb, particularly the shoulder, other than the wrist and ring finger.
What is clear, I think, from the decision in Skates is that the referral document to the Medical Assessor does not necessarily limit the scope of the assessment by the Medical Assessor (or an Appeal Panel) of the medical dispute, that is of the degree of permanent impairment. A difficult issue in that case was that the AMS was found to go beyond the terms of the referral document when he should not have, while the Appeal Panel was found that it ought to have gone beyond the terms of that document to review the erroneously omitted left wrist.
There are also differences between the circumstances of this matter and those of Skates. In the letter of claim in this matter dated 20 May 2020, the applicant claimed a lump sum pursuant to section 66 in respect of 26% WPI, relying upon the report of Dr Patrick dated 8 August 2019, without specifying in the letter of claim the precise body systems claimed, while in Skates it was unclear whether the applicant in its letter of claim specified any particular body systems. In this case there was no written exchange between the parties, as the respondent has not been in a position to respond to the applicant’s claim.
The material provided to the Commission, in the Application and the Reply, did contain documents relevant to the assessment by the Medical Assessor. In respect of scarring,
Dr Patrick was of the opinion that this was rateable for assessment, although he attributed 0% permanent impairment. In respect of occipital neuralgia, the report of Dr Boesel dated 6 March 2019, attached to the Reply, provided a diagnosis of continuing left occipital neuralgia. The report of Dr Boesel dated 6 March 2019 was marked as copied to the Claims Manager of the workers compensation insurer. In my view, the material attached to the Reply comes within the terms of the claim, or more accurately in this case, the terms of the medical dispute. Further, as the report of Dr Boesel dated 6 March 2019 was provided by the respondent in the Reply, it may be seen that it has been in the possession of the respondent since 6 March 2019, or shortly afterwards.
The difficulty is that the assessment of body systems and body parts involves a degree of causal uncertainty, notwithstanding the prescriptive nature of the Guidelines and of AMA5. The Guidelines apply equally to Medical Assessors as to other assessors of permanent impairment qualified by the parties.[13] The first uncertainty is that the key principles[14] of permanent impairment assessments involves “clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information may consider symptoms and other relevant matters”[15]. This may be an uncertainty, for example, for fluctuating or complex conditions. Similarly, “assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment…”.[16] In this jurisdiction reasonably held clinical judgement as to diagnosis may on occasion differ between medical specialists.
[13] S 322(1) of the 1998 Act.
[14] Cl 1.6 of the Guidelines.
[15] Cl 1.6 a.
[16] Cl 1.6 b.
This causal uncertainty in the assessment of permanent impairment is at least implicitly acknowledged in the Guidelines, where it is provided[17] that “in calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition” and “if, in an unusual situation, a related injury/condition has not previously been identified, an assessor should record the nature of any previously unidentified injury/ condition in their report and specify the causal connection to the relevant compensable injury or medical condition”. There is a tension between the statutory requirement for the Medical Assessor to assess in accordance with the Guidelines in this regard, and the apparent status of the Commission’s referral document as being to some extent restrictive of matters to be considered with respect to body parts or systems, with the terms of the claim.
[17] Cl 1.6 c.
So, a Medical Assessor may consider shoulder, neck and other symptoms and assess them as permanent impairment for body systems with respect to the cervical spine, or the upper extremity, or peripheral nerves (e.g. occipital), or all, some or none, having regard to diagnoses and the nature of any pathology or pathologies. Thus, assessment of the upper extremity[18] involves evaluation of anatomical impairment and a rating that “reflects the degree of impairment and its impact on the ability of the person to perform [activities of daily living]”[19]. Assessment of the upper extremity mainly involves clinical evaluation[20]. The Guidelines provide for the manner of assessment of the range of motion[21] in relation to the upper extremity. Assessment of the cervical spine does not involve the range of motion method[22], rather evaluation of impairment of the spine is only to be done using diagnosis-related estimates (DREs)[23] that “relies especially on evidence of neurological deficits and less common, adverse structural changes, such as fractures and dislocations”. These estimates “are differentiated according to clinical findings that can be verified by standard medical procedures”[24].
[18] Cl 2.1 ff.
[19] Cl 2.2.
[20] Cl 2.3.
[21] Cl 2.5.
[22] Cl 4.13.
[23] Cl 4.1.
[24] Cl 4.2.
This necessarily imports a causal element into the assessment by the Medical Assessor, that is whether any assessed permanent impairment results from the subject injurious event. As Emmett JA observed in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[25]:
“However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of "medical dispute". Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]).”
[25] [2014] NSWCA 264 at [110].
This is where a question of procedural fairness should be addressed. Fairness for the respondent should allow it the opportunity for its own medical assessment to consider the body systems indicated by the Medical Assessor as suitable for permanent impairment assessment. Fairness for the applicant should allow her to have body systems assessed which on the evidence may be considered as assessable, where she has only one opportunity (subject to any possible later appeal such as for a deterioration of her condition), and where she previously did not have the basis for a claim for permanent impairment in respect of occipital neuralgia and scarring. These are also matters weighing in favour of the applicant in consideration of the interests of justice of the reconsideration application[26].
[26] Cl 70(f) - Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes.
In this case, where no report of a medical assessment has been provided by the respondent; the medical dispute lies in a non-acceptance by the respondent of the applicant’s medical report; the respondent knew that there was scarring that was rateable for assessment in the opinion of Dr Patrick, and that in March 2019 there was continuing occipital neuralgia based upon the report of Dr Boesel which was attached to the Reply, then the terms of the claim are not necessarily limited to Dr Patrick’s opinion as to the degree of permanent impairment. If this were not the case, then the determination of the applicant’s rights would be limited by one opinion (Dr Patrick) among various possible opinions prior to the commencement of proceedings, none of them conclusive unless agreed by the parties. The applicant is limited as to the number of forensic medical reports that she can rely upon in proceedings[27]. The scope of the assessment of the degree of permanent impairment resulting from injury on 30 September 2009 is not limited to the opinion of Dr Patrick.
[27] Workers Compensation Regulation 2016, r44.
This is a matter which falls outside the issues considered by the majority in Skates, as discussed in the previous paragraphs. However, the judgment of McCallum JA in Skates provides some further guidance. While McCallum JA acknowledged that she did not suggest that an AMS is free to ignore the terms of the referral, she also observed that “the medical dispute referred must be the medical dispute the parties have sought to have resolved”[28]. This in my view permits consideration of a change in the medical dispute and reconsideration in these circumstances, given that it is only the applicant who is permitted to apply to the Commission regarding a dispute about lump sum compensation[29].
[28] [82].
[29] s288(1) of the 1998 Act.
In this case, where there has been no determination by the Commission, the question is whether the medical dispute that is before the Commission is capable of change prior to determination, rather than being fixed or static at the time that the application is lodged. The parties may agree to a change by reduction of body systems to be considered before referral to a Medical Assessor. If a medical dispute can be limited in this way, then in my view it can be changed with respect to body systems where the respondent has not contested the claim by the applicant prior to lodgement of the Application and where the Reply has provided evidence of continuing occipital neuralgia. The respondent was also aware of scarring that was rateable for assessment. The medical dispute changed, or crystallised, when the applicant sought to rely upon the MAC of Medical Assessor Pillemer by this application and/or appeal, and the respondent, by opposing this application and appeal, has not accepted that additional body systems that were noted in the MAC could be included in the dispute.
The majority in Skates also did not hold that a referral document could not be amended at a later time in the proceedings. As the referral document does not prescribe the scope of the referral, and it is capable of amendment after an assessment by a Medical Assessor, as may be implied from Skates, then amendment of the referral document in this case is possible and desirable to avoid injustice to the applicant, having regard to the legislative requirement that there can only be one assessment of the degree of permanent impairment pursuant to
[30] s3(d) of the 1998 Act.
[31] Skates, per McCallum JA [61-62].
[32] [30,35,50,60-61].
s 322A of the 1998 Act, and meeting the objective[30] of providing fair compensation for workplace injuries.[31] The proposition that the Appeal Panel was in error in not including an assessment of the wrist injury in its review, was not an issue of disagreement in the judgements in Skase[32].

One procedural outcome of the decision in Skase, that the appeal panel was in error in not reviewing a matter erroneously omitted from the referral document, was that an amended referral document may be required to consider a body part that was not considered by the AMS, that is after the assessment by the AMS.
As was observed by Leeming JA in Skates, “in most cases the dispute will have been identified by a written exchange of competing claims”[33]. There may be cases, such as this, where the dispute was not identified by an exchange between the parties, and, further, the claim becomes capable of later change with material previously not available to the applicant, that is the MAC. As noted above, McCallum JA in that case did not limit the referral of a medical dispute to a written exchange of claims, rather the referral must be the medical dispute that is sought to be resolved by the parties. McCallum JA did not provide a temporal limitation in this regard. A medical dispute, while commenced by a claim, is not always the same as the commencing claim.
[33] [44].
I do not accept that the decision in Yates is applicable to this matter. In Yates, it was observed that in that case, unlike in Skates, the employer disputed the description of the relevant injuries and did so immediately in correspondence and then in its Reply, and the applicant agreed to the terms proposed by the employer, effectively amending the claim that was made in the ARD and expressly agreeing to the narrowing of the terms of the dispute[34]. There was no such history or limitation in this case.
[34] [89], [105-107].
I do not accept the submission that the decision in O’Callaghan limits the matters that can be referred for further assessment. O’Callaghan dealt with a section 327(3)(a) appeal (deterioration) and applied the decision of Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW)[35] (Aircons). O’Callaghan can be distinguished. This matter deals with more than the ground of appeal considered in O’Callaghan. Applying Skates, the scope of the assessment is not necessarily limited to the referral document. McCallum JA in Skates distinguished Aircons in her decision, on grounds which also apply here[36], that is that in Aircons the parties had reached agreement as to referral of the dispute to two approved medical specialists, one being a referral to a plastic surgeon, nor was it said that there was any discrepancy in Aircons between the terms of the referral and the terms of the worker’s application to resolve a dispute. McCallum JA observed that Aircons “does not hold that the Registrar has power to circumscribe the scope of the medical dispute between the parties”[37].
[35] [2006] NSWSC 322.
[36] [79-80].
[37] [80].
The decision in Pidcock was in the context of Cl 28D of Sch 8, Pt 2A of the Workers Compensation Regulation 2016 (the 2016 Regulation), with consideration of a referral for a further assessment of the degree of permanent impairment with respect to section 329(1)(b) of the 1998 Act. Moreover, the lump sum claim in that matter had been determined in earlier proceedings. In my view, the circumstances of that matter are substantially different to this matter. I do not accept the respondent’s submission.
In my view the procedural mechanisms of referral again for further assessment by way of section 329(1)(a) or (b) or for reconsideration by way of subsection (1A) are available to the applicant. In relation to a section 329(1)(a) referral, in this case to the same Medical Assessor, it must be as an alternative to an appeal, but only if the matter could otherwise have proceeded on appeal under section 327[38]. I am permitted to make an order relating to the procedure to be followed in these proceedings that could be made by the President[39].
[38] s 327(6).
[39] Rule 9, Personal Injury Commission Rules 2021.
In exercising the power of the President as ‘gatekeeper’ pursuant section 327(4), I am not required to determine the outcome of an appeal[40]. That is a matter for an Appeal Panel. What is required is consideration as to whether a ground or grounds of appeal are capable of being made out. In my view the grounds of appeal are capable of being made out, or, in other words, an “arguable case of error” has been established[41]. In this case, in relation to the occipital neuralgia and scarring, the applicant in essence has appealed on the basis that the Medical Assessor has provided new evidence, that is his own assessment with respect to his clinical judgement on the day of the examination, which could not reasonably have been obtained before the MAC was issued. The applicant did not have an assessment of permanent impairment in relation to scarring or occipital neuralgia. The applicant also argued demonstrable error in that the Medical Assessor has not provided an assessment of permanent impairment when he indicated these body systems could be assessed.
[40] Ballas v Department of Education (State of NSW), [2020] NSWCA 86 (Ballas) [72-75, 151].
[41] Ballas [73].
In my view, the argument pursuant to section 327(3)(b) is capable of being made out.
I accept the applicant’s submission that the MAC itself is further evidence that was not available to the applicant, nor could it reasonably have been obtained by the applicant, prior to the MAC. It is not necessary to decide the section 327(3)(d) argument.
If I am wrong on the section 327(3)(b) ground of appeal in respect of occipital neuralgia and scarring, then in any event the parties have agreed that there was demonstrable error in the Medical Assessor’s finding of no injury to the shoulder. That agreement is well founded. I do not accept the respondent’s submissions that, as the impairment would in any event be zero in this regard, this can be remedied by the “slip rule” or similar. That is a matter for the Medical Assessor. Once a ground of appeal is found to be capable of being made out, then all grounds may be considered. For the reasons given above, in my view the occipital neuralgia and scarring can and should be assessed, and so can also be considered on appeal.
Moreover, in my view, the applicant has established the utility of an order pursuant to section 329(1)(b) for further assessment. Similarly, the basis for an order pursuant to
section 329(1A) for reconsideration by the Medical Assessor has been established, although not expressly argued. In my view, any distinction between referral for further assessment under section 329(1) and reconsideration by the same Medical Assessor under section 329(1A) is not relevant in this case. The Medical Assessor may be requested to provide the further assessment of permanent impairment that he indicated was available, or he may be requested to reconsider the MAC and provide his further assessment of permanent impairment.
There is clear statutory expression that the further assessment is not prevented by the operation of section 322A, that is pursuant to section 322A(4) and section 329(1)(a). It is also the case that section 329(1)(b) comes within the exception of section 322A(4) having regard to section 329(2) and also section 327(6), following amendment of the referral[42], with similar reasoning applying to section 329(1A).
[42] Nixon v Klorman Industries Pty Limited [2015] NSWWCC 293; Nixon v Lyndhurst Rural Services Pty Ltd [2015] NSWWCC 276
I accept the applicant’s submission that the matter should be referred again to the Medical Assessor for further assessment as an alternative to an appeal, thereby preserving the parties’ further appeal rights and providing a more practical manner of assessment than referral to an Appeal Panel. This is an appropriate matter for an order pursuant to
section 329(1)(a), in respect of the cervical spine, left upper extremity, occipital neuralgia and scarring, with a direction to the Medical Assessor to assess the degree of permanent impairment in relation to the left upper extremity without regard to causation of injury to the left shoulder, and subject to a timetable being set for the parties being given the opportunity to lodge any further medical assessments in relation to the occipital neuralgia and scarring, before the further referral to Medical Assessor Pillemer. The parties to have liberty to apply in respect of the orders for the amended referral and the procedural timetable. At the time of the setting of the timetable, the terms of the amended referral would be amended to additionally include the body parts/systems of occipital neuralgia and scarring, and the direction in respect of the left upper extremity (shoulder).

[2022] NSWPIC 313

21 June 2022