Gowman v Kimberly Clark Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gowman v Kimberly Clark Australia Pty Ltd [2024] NSWPIC 280
APPLICANT:	Wayne Gowman
RESPONDENT:	Kimberly-Clark Australia Pty Limited
SENIOR MEMBER:	Elizabeth Beilby
DATE OF DECISION: DATE OF AMENDMENT:	27 May 2024 29 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim in respect of lump sum benefits; discussion on effect of previous referral to Medical Assessor where claim discontinued before Certificate of Determination issued; applying Singh v B & E Poultry Holdings Pty Ltd; Held – applicant had had his assessment in relation to that injury; further claim made in relation to separate injurious events can be referred for assessment.
DETERMINATIONS MADE:	The Commission determines: 1. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows: Date of injury: 4 June 2001 and of 31 July 2019 (nature and conditions of employment). Body systems /parts: left lower extremity (knee) and consequential right lower extremity (knee). Method of Assessment: whole person impairment. 2. The documents to be reviewed by the Medical Assessor are: a. Application and attached documents; b. Reply and attached documents, and c. late documents dated 26 March 2024. 3. The finding that the applicant suffered a 1% whole person impairment of the left lower extremity (knee) from an incident on 22 October 2016 is confirmed. The finding that the applicant suffered a 0% whole person impairment by way of consequential condition from the incident on 22 October 2016 is confirmed.

STATEMENT OF REASONS

BACKGROUND

The applicant commenced employment with Kimberly-Clark Australia Pty Limited (the respondent) when he was 23 years of age. He describes his work in his statement[1] which he says involved a lot of squatting, kneeling, walking, and going up and down various steps. This description has not been put in issue by the respondent.
[1] Application page 1.
On 4 June 2001 (the 2001 incident) the applicant had been kneeling for approximately 40 minutes whilst performing maintenance on the machine. As he stood up, he felt pain in his left knee and later that evening observed his knee was swollen. He reported his symptomatology to the first aid nurse the next day and was re referred to a general practitioner[2] and eventually for treatment by Dr Sam Sorrenti.[3]
[2] Application page 1.
[3] Application page 2.
A claim was submitted on 6 July 2001.[4] There is no evidence of an impairment assessment being undertaken by the applicant.
[4] Application page 150.
The applicant underwent an MRI scan on 24 September 2001[5] which disclosed a posterior horn tear of the medial meniscus. Dr Sorrenti then performed an arthroscopy on
[5] Application page 132.
[6] Application page 149.
12 October 2001.[6]
The applicant describes that he continued to have left knee symptoms which involved clicking and some pain.
The insurer arranged for the applicant to be examined by Dr Silva on 16 March 2002 who assessed the applicant as having sustained a 9% loss of efficient use of the left leg at or above the knee. As a result of that assessment, it appears that a cheque was issued to the applicant in the sum of $6,750 which was forwarded to the applicant.
The applicant says that in response to receiving that cheque he says that “I had no idea that I was making such a claim nor did I initiate such a claim”.[7] The applicant’s submissions accept that it should be inferred that the applicant banked that cheque.
[7] Application page 2.
On 22 October 2016 (the 2016 incident), the applicant explains that he had spent a significant period of time squatting and crawling under a machine and that when he stood up he experienced further pain in the left knee.[8] A claim was made in respect of that injury for medical expenses and weekly benefits and a new scheme agent (GIO) admitted liability for what was apparently regarded as a further frank injury.[9]
[8] Application page 3.
[9] Application page 3.
The applicant was then being treated by Dr Nabavi who treated him with PRP injections and ultimately carried out an arthroscopic surgery on 8 September 2017.[10]
[10] Application page 93.
On 10 October 2018, Dr Nabavi commenced surgery with the intention of carrying out a high tibial osteotomy however after commencing surgery he changed the surgery to a chondroplasty, debridement and resection of a tear in the medial meniscus as it was apparent there was too much degenerative change in the knee.[11]
[11] Application page 74.
The applicant describes in his statement he continued to have symptomatology and observed he had a limping gait by early 2019.[12]
[12] Application page 4.
The applicant was able to return to part-time select duties in early 2019 however was made redundant on 31 July 2019.
The applicant made a claim in respect of an injury on 22 October 2016 to the left knee and with a consequential condition in the right knee.
The matter was then referred for assessment to Medical Assessor Pillemer who issued a Medical Assessment Certificate on 3 December 2019.[13]
[13] Application page 28.
Medical Assessor Pillemer took a history of the applicant performing his employment with the respondent involving a lot of squatting, kneeling and crawling under machines. He had also taken a history of the onset of left knee pain on 22 October 2016.
Medical Assessor Pillemer observed that the applicant initially injured his left knee in 2001 and came to a partial medial meniscectomy at that time however he responded well to the surgery and symptoms settled down but were aggravated on 22 October 2016.
Dr Pillemer opined that the injury on 22 October 2016 was a fairly minor aggravation of an advanced degenerative condition of the left knee which had almost certainly arisen as a result of the original injury in 2001 as well as the nature and conditions of his work thereafter. It was Medical Assessor Pillemer’s opinion that the applicant had a 10% whole person impairment of the left knee however it was his opinion that the entire 10% whole person impairment was due to the applicant’s employment with Kimberly-Clark and as a result of his original injury in 2001, as well as the nature and conditions of his employment since then and the incident on 22 October 2016. The impairment that was assessed was therefore reduced by nine tenths due to the impairment in relation to the left lower extremity on the basis that the main problem had arisen as a result of the original injury in 2001 with a development of advanced medial compartment osteoarthritis, noting that the incident on 22 October 2016 was a fairly minor issue. Therefore, his impairment was due to the work with Kimberly-Clark and the injury in 2001 and the nature and conditions of employment as well as the incident on 22 October 2016. The impairment was therefore rated as 1% arising from the injury date that Medical Assessor Pillemer was asked to assess being 22 October 2016.
The applicant discontinued the claim before a Certificate of Determination was issued.
The applicant’s solicitors then had their client assessed by Dr Habib who in a report dated 4 August 2021 assessed a 20% whole person impairment in respect of the left knee and a 7% whole person impairment in respect of the right knee. It appears that Dr Habib says these injuries arise from the events on 22 October 2016 and the nature and conditions of employment.
The applicant’s solicitors have now mounted a claim in respect of s 66 lump sum impairment of 26% based on the nature and conditions of employment and the frank incidents. As a result of a further report from Dr Habib on 31 January 2023, the applicant now seeks to claim 26% whole person impairment resulting from the injuries on 4 June 2001, 22 October 2016 and the nature and conditions of employment from 2001 to July 2019.[14]
[14] Application page 42.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant has exhausted his one claim for lump sum compensation for an injury pursuant to s 66(1A) of the Workers Compensation Act 1987 (the 1987 Act);
(b) whether the applicant has exhausted his one assessment for the degree of permanent impairment pursuant to s 322A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and
(c) can the matter be referred for assessment, and if so. on what basis.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (Application) and attached documents;
(b)    Reply to the Application to Resolve a Dispute;
(c)    late documents dated 26 March 2024, and
(d)    submissions dated 26 March 2024 and 2 April 2024.

PROCEDURE BEFORE THE PERSONAL INJURY 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.

LEGISLATION

Section 66 of the 1987 Act relevantly provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
Section 293 of the 1998 Act provides:
“293 Medical assessment
(1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may, in accordance with this section, refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(2) If the dispute concerns the degree of permanent impairment (including hearing loss) of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(3) The Registrar may not refer for assessment:
(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
Section 322A of the 1998 Act provides:
“322A One assessment only of degree of permanent impairment
(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of assessment and a medical assessment certificate under this Part.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment).”
Section 329 of the 1998 Act provides:
“329 Referral of matter for further medical assessment or reconsideration
(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 Registrar 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 Registrar to the approved medical specialist 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.”
Section 354(7A) of the 1998 Act provides:
“(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings:
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Rules.”
Clause 11 of Sch 8 to the Regulation provides:
“11 Lump sum compensation: further claims
(1) A further lump sum compensation claim may be made in respect of an existing impairment.
(2) Only one further lump sum compensation claim can be made in respect of the existing impairment.
(3) Despite section 66 (1) of the 1987 Act, the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%.
(4) For the purposes of subclauses (1) and (2):
(a) a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with, before the commencement of subclause (1) is to continue and be dealt with as if section 66 (1A) of the 1987 Act had never been enacted, and
(b) no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment:
(i) that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and
(ii) in respect of which no compensation has been paid, and
(c) section 322A of the 1998 Act does not operate to prevent an assessment being made under section 322 of that Act for the purposes of a further lump sum compensation claim.
(5) The following provisions are to be read subject to this clause:
(a) section 66 of, and clause 15 of Part 19H of Schedule 6 to, the 1987 Act,
(b) section 322A of the 1998 Act,
(c) clauses 10 and 19 of this Schedule.
(6) In this clause:
existing impairment means a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.
further lump sum compensation claim means a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment.
lump sum compensation claim means a claim specifically seeking compensation under section 66 of the 1987 Act.”

SUBMISSIONS

The respondent objects to the referral to a Medical Assessor as currently pleaded.
The respondent complains that in 2019 when the initial referral was made, the applicant had the benefit of the services of experienced legal practitioners and medical evidence and nevertheless mounted the claim on the basis that there was an injury on 22 October 2016. If there were indeed three injuries that should have been assessed then all three should have referred to the Medical Assessor at that time.
The respondent pointed out that if the applicant’s approach was to be contemplated, that it would open the floodgates so that an applicant, if they received a medical assessment which they did not find preferable, would then be able to reconstitute the claim to include other dates of injury and then somehow circumvent what was found by the Medical Assessor.
The respondent referred to the decision of Ozcan[15] which it was submitted provides authority that an injury can have multiple causes, and that is that the applicant has had one injury with multiple causes which were 2001, the nature and conditions of employment and the 2016 frank event. The respondent then says that the applicant has had his one referral pursuant to s 322A of the 1998 Act he is precluded from mounting a further one. That is, there can only be one assessment made of that injury which injury comprises of 2016 frank event, 2001 frank event and nature and conditions of employment.
[15] Ozcan v Macarthur Disability Services Ltd [2021] NSW CA.
The applicant has provided written submissions which are annexed to the Application.[16] What is made clear in those submissions is that it is argued that the claim was mounted seeking s 66 compensation was in relation to one injury only, that being 22 October 2016. The applicant objected to the descriptor that the injury for 2001 and the 2016 injury were referred to Medical Assessor Pillemer for assessment. It is quite clear on the reading of the documents that while Medical Assessor Pillemer was well aware of the 2001 event and the nature and conditions of employment, he was not asked to assess that. I therefore agree with that description.
[16] Application page 355.

DISCUSSION

A good starting point is to establish what was referred to Medical Assessor Pillemer when he prepared his Medical Assessment Certificate. It is quite clear that the terms of his referral refer to a date of injury of 22 October 2016.[17] Dr Pillemer opines that there were three contributors to the development of the left knee arthritis and the need for surgery, those being the frank injury in 2001, the nature and conditions of employment and the frank injury in October 2016. Medical Assessor Pillemer however does not apportion any part of the injury, that is the nine tenths remaining, between the nature and conditions of employment and the original injury in 2001. To be clear there is no discrete finding of what part of the nine tenths is from the 2001 injury and what part is from the nature and conditions of employment. There can be no criticism of the Assessor in this respect because he had been asked to specifically assess the injury on 22 October 2016 only.
[17] Application page 254.
Based upon the assessment, it cannot not be said that the Assessment included the 2001 or a nature and conditions claim. There has been no proper assessment of whole person impairment arising from the 2001 or the nature and conditions of employment. Indeed Medical Assessor Pillemer was not permitted to do so as s293 of the 1998 Act has a threshold for assessment so that it is for matters that are subject to a ‘medical dispute’. There is no evidence that there was any medical dispute regarding whole person impairment and/or injury arising from the 2001 event or the nature and conditions of employment.
The next issue in relation to Medical Assessor Pillemer’s assessment is where does that stand now. The decision in Singh[18] has factual matters which relate directly to the present claim particularly in relation to the 2016 injury. In Singh, the applicant was examined by an approved medical specialist, Dr Wong, who issued a Medical Assessment Certificate (as Medical Assessor Pillemer has in this present case). Dr Wong assessed the applicant at 14% WPI following which the applicant had lodged an election to discontinue proceedings before a Certificate of Determination was issued.
[18] Singh v B & E Poultry Holdings Pty Ltd [2018] NSWCCPD 55.
The applicant then made a further claim for lump sum compensation claim in 2018 in respect of a 16% whole person impairment. The applicant was also notified that they made a claim for weekly compensation and provided particulars for a claim for work injury damages.

The respondent arranged an examination with Dr Casikar who maintained his opinion that the applicant’s whole person impairment was 10%. The respondent’s solicitors objected to the referral for a further medical assessment on the basis that a Medical Assessment Certificate had been issued certifying the applicant as having a 14% whole person impairment and offered to resolve the lump sum claim on that basis.
Deputy President Snell held that section 322A of the 1998 Act operates to restrict a worker to only one assessment of the degree of permanent impairment resulting from an injurious event.
Deputy President Snell warned caution in respect of the type of argument mounted by the applicant in this case. At paragraph 55 he says the following:
“The course adopted by the appellant, if it were properly available, potentially has the effect of avoiding the application of s 322A of the 1998 Act. A worker could make a claim, undergo medical assessment by an AMS, obtain a MAC, and if he or she was dissatisfied with the assessed level of permanent impairment, simply discontinue the proceedings before a Certificate of Determination was issued consistent with the binding MAC. If the worker subsequently obtained a higher medico-legal assessment, the worker could simply ‘amend’ the claim, and repeat the process, potentially on more than one occasion.”
Deputy President Snell confirmed the Arbitrator’s approach and said that she was correct to conclude that the appellant was not, in the circumstances, entitled to obtain a new MAC. This had the effect that the only Medical Assessment Certificate that could be used in connection with a dispute about permanent impairment was the one that had been issued by Dr Hong dated 29 June 2016 which was binding on the parties pursuant to s 326(1) of the 1998 Act.
The applicant suggests that Singh is factually distinguishable as it involved one injurious mechanism, whereas the present case involves three injurious mechanisms.
I cannot agree with this submission because the applicant has had his assessment in relation to the 2016 injury and is now precluded from having a further assessment in relation to that injurious event.
I have considered the decision of Singh, and I do believe that this case falls squarely in relation to that decision. The assessment should stand so that there is a 1% whole person of the left knee impairment arising from the frank injury in 2016.

WHERE TO NOW?

What is clear on the basis of the documents is that there has been no claim that has been subject to an assessment arising from the nature and conditions of employment and/or the frank injury in 2001.
Coming specifically to the frank injury in 2001, it is quite clear that the applicant received payment from the insurer in respect of what presumably would have been an injury that incurred at that time. I agree with the applicant’s submissions in relation to how that payment should be assessed in that there was no valid claim made in respect of the claim however a cheque was sent. The applicant banked that cheque however there was no assistance of any legal representation nor did he understand any rights in relation to what that meant.
Further, in relation to the 2001 injury, it is quite clear there has not been a ‘claim’ made in respect of it[19]. For a claim to have been made there would have needed to be a medical report from a medical practitioner supporting the loss or impairment claimed. There is simply no evidence that a claim has been made and therefore it cannot be said that the applicant has exhausted his rights in relation to the 2001 injury.
[19] See applicant’s submissions paragraphs 3.2 to 3.6, Application page 358.
I therefore find that the 2001 injury has not been subject to a prior claim nor has it been assessed, therefore the applicant is entitled to have it assessed by a Medical Assessor.
I also agree with the respondent’s submissions so far that even though this injury would be subject to an assessment pursuant to the Table of Maims, so that the pre-2002 injury and the post-2002 injury is regarded to have arisen from the post-2002 injury. The whole person impairment system is used to calculate the whole person impairment in relation to the three relevant injuries.
In any event, if minds differ from mine as to the characterisation of the payment, then the applicant has the benefit of Clause 11 of Sch 8 to the Regulation Clause 11 in respect of the 2001 injury so that he has not exhausted his rights.
The respondent’s position was essentially that the Act contemplates one assessment of impairment for an injury, its contemplating pathology rather than injurious events. It is the pathology itself that needs to be assessed and that has been done. I do not agree with this description of the Act. The Act contemplates injurious events, not just pathology.
The respondents position disregards the import of the injurious event causing the impairment. If the respondent’s position were to be accepted , it would mean that worker who was injured with say in 2018 causing a small impairment , which was assessed, and then subsequently sustains a major injury to the same body part with that same or different respondent would be precluded from making a further claim as they had already had that body part assessed arising from the first injurious event.
What is clear is that there also has not been a claim arising from the 2001 injurious event nature and conditions of employment, the 2019 injury. There has simply been no previous “claim” made impairment that results from these injuries. Section 66(1A) is not a bar to the applicant advancing a s66 claim with respect to the 2001 injury or the nature and conditions of work.
Following my previous finding, these injuries (arising from separate injurious ‘events’) should also be referred off for assessment together with any consequential condition arising from those two injuries.

[2024] NSWPIC 280

27 May 2024