Hanna v Workers Compensation Nominal Insurer (iCare Worker)
[2021] NSWPIC 348
•15 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Hanna v Workers Compensation Nominal Insurer (iCare Worker) [2021] NSWPIC 348 |
| APPLICANT: | Raad Hanna |
| FIRST RESPONDENT: | Black Horse Espresso Pty Ltd |
SECOND RESPONDENT: | Workers Compensation Nominal Insurer (iCare Worker) |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 15 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation arising from assault which took place adjacent to the workplace; whether assault constituted a workplace injury (section 4 of the Workers Compensation Act 1987 (the 1987 Act)) and if so whether applicant’s employment was a substantial contributing factor to the injury (section 9A of the 1987 Act); factual dispute as to whether applicant was working at time of assault; Held - the applicant was working at the time of the assault; the evidence supports his contention that, contrary to the evidence of the first respondent, he often worked into the evening, consistent with the time at which the assault took place; the applicant’s employment was a substantial contributing factor to his injury; the applicant consciously made an effort to remove his assailant form the café in an attempt to remove any risk of harm to its patrons; as such, his employment was causally connected with the injury suffered in the assault; the medical dispute between the experts in the matter relates to the degree of whole person impairment arising from the assault, not whether there were any injuries at all; as such, having found the injury occurred in the course of the applicant’s employment, that dispute is a matter for a medical assessor, not a Member of the Commission; matter remitted to the President for referral to a Medical Assessor to determine the whole person impairment, if any, to the applicant’s cervical and lumbar spines. |
| DETERMINATIONS MADE: | 1. The applicant suffered injuries to his cervical and lumbar spine in the course of his employment with the respondent on 12 July 2018. 2. The applicant’s employment was a substantial contributing factor to the injury. 3. The matter is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following: Date of injury: 12 July 2018 Body systems referred: cervical spine, lumbar spine Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) This Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute; (c) Reply, and (d) Applicant’s Application to Admit Late Documents dated 27 July 2021. |
STATEMENT OF REASONS
BACKGROUND
On 12 July 2018, Raad Hanna (the applicant) was injured when he was assaulted in the vicinity of his workplace, the Black Horse Espresso Café in Liverpool (the first respondent). The second respondent is the Workers Compensation Nominal Insurer.
The dispute in this matter is a narrow one, but factually vital to the outcome of the applicant’s claim. The applicant says he was in the course of his employment when the assault took place, whereas the respondents deny liability on the basis the applicant was not injured in the course of his employment (section 4 of the Workers Compensation Act 1987 (the 1987 Act)) and his employment was not a substantial contributing factor to any injuries he suffered (section 9A of the 1987 Act).
ISSUES FOR DETERMINATION
The parties agree that the only issues in dispute are whether the applicant suffered an injury in the course of his employment to which that employment was a substantial contributing factor (sections 4 and 9A of the 1987 Act).
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.
The parties attended a hearing before me on 3 August 2021. On that occasion, Mr B McManamey of counsel instructed by Mr J Matthews, solicitor, appeared for the applicant. Mr S Grant of counsel instructed by Ms J Turnbull, solicitor, appeared for the respondent.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents, and
(c) applicant’s Application to Admit Late Documents (AALD) dated 27 July 2021 and attached documents.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Injury and contributing factor
It is important to keep in mind that the notion of “injury” as defined in section 4 of the 1987 Act and the relevant considerations under section 9A are separate. Nevertheless, the factual matters for consideration in determining both issues are intrinsically linked, and as such, it is appropriate in the circumstances of this matter to consider them together.
“Injury” is relevantly defined in section 4 of the 1987 Act as follows:
“In this Act: injury means
(a)personal injury arising out of or in the course of employment.”
The law on “injury” must be viewed in conjunction with section 9A of the 1987 Act. However, the application of section 9A is not considered unless an injury pursuant to section 4 is found.
In this matter, the fact of the assault is not in issue. The question is whether any injuries arising from it were “work injuries”. In other words, whether the injury arose out of or in the course of the applicant’s employment.
For an injury to arise out of employment, there must be a causal connection between the employment and the injury.
In Tarry v Warringah Shire Council [1974] 48 WCR 1 (Tarry), Glass JA (with whom Samuels JA agreed) held that in a given situation, the injury may arise out of the employment, even though at the time it is sustained, the worker is no longer in the course of his employment. In Tarry, the Court reaffirmed that the proper test for determining whether the injury arose out of employment was as stated by Jordan CJ in Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 when his Honour described the employment as “causing or contributing” to the injury; by Fullagar J in Kavanagh v The Commonwealth (1960) 103 CLR 547, when his Honour noted the need for a causal connection between the employment and the injury; and by Starke J in South Maitland Railways Pty Ltd v James (1943) 67 CLR 496, when his Honour said the words ”out of” require that the injury had its origin in the employment.
This reasoning has been applied in cases such as Badawi v Nexon Asia-Pacific Pty Ltd trading as Commander Australia Pty Ltd [2009] NSWCA 324 (Badawi) per Allsop P, Beazley and McColl JJA. The decision in Badawi includes the following propositions:
(a) whether an injury arose out of employment requires “a certain degree of causal connection between the accident and the employment”;
(b) it would be sufficient to establish that an injury arose out of the employment if it appears that the fact of the worker being employed in the particular job caused, or to some material extent contributed to, the injury;
(c) it is unnecessary to show that the employment exposed the worker to some special danger, and
(d) although the expression “arising out of” imports some kind of causal connection with the employment, it does not necessitate direct or physical causation and it should be asked “Was it part of the injured person’s employment to hazard, to suffer or to do that which caused his injury?”
The question of whether an injury arises out of employment must be considered on the individual facts of a case. In Tarry, a fight causing injury was held to arise out of the employment as it was about work matters, even though the worker had removed himself from the course of his employment by fighting. In Kasim v Busways Blacktown Pty Ltd [2003] NSWCC 6, a bus driver assaulted a passenger. Though he was not in the course of his employment at the time of the assault, it arose out of the employment because the passenger’s conversation with the worker, which provoked him, arose out of the relationship of driver and passenger.
At its most basic level, the phrase “the course of employment”, involves the worker’s normal working hours at his place of employment. In earlier cases such as Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30, the phrase was said to include “anything at all that happened to a man while he is at work happens in the course of his employment”. If injury occurs in the course of employment, the mere temporal connection with employment is enough, it is not necessary to show some further relationship with the employment to establish injury: see Kavanagh and The Commonwealth v Oliver (1962) 107 CLR 353.
The course of employment may also extend beyond a worker’s normal hours and place of work to “the natural incidents connected with the class of work”. If a worker is doing something which is part of or is incidental to his service”, he is in the course of his employment: see Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22. Therefore, service is not confined to the actual performance of the work that the worker is employed to do, but includes all things incidental to the performance of that work.
In Comcare v PVYW (2013) 303 ALR 1, the majority of the High Court said:
“The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how is the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of the circumstances is present that the question arising from the Hatzimanolis Principle becomes relevant. When an activity was engaged in at the time of injury, the question is: Did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: Did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer’s inducement or encouragement to be present at a place is not relevant in such a case.”
In Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, a claimant was found to be injured in the course of his employment while injured in a motor vehicle accident travelling in a vehicle owned by his employer, on a pleasure trip on his day off work. The worker was required to live on site at a remote location, the accident occurred on a rostered day off and the trip was organised by the employer.
In Meeson v Placer Pacific Management Ltd [2002] NSWCC 47, Nielson CCJ (as His Honour then was) held a worker who was posted to Port Moresby where he was expected to reside in employer supplied accommodation and was on call 24 hours per day was injured in the course of his employment when murdered late one night by an intruder who attacked him and his wife while they slept in the accommodation.
In terms of authorities dealing with workers being assaulted, there is tension between the decision of the High Court in Weston and that in Bill Williams Pty Ltd v Williams (1972) 126 CLR 146. In that case, a worker who was employed by his own company was at work when approached by another man who was not a fellow employee who proceeded to argue with him about the worker’s relationship with the man’s wife. The man produced a gun and threatened to shoot the worker, who ran from the premises. While running away, he was shot in the back.
At first instance, the worker’s claim was initially unsuccessful, with the then Workers Compensation Commission finding that, in arguing about things unrelated to employment and then running away from his place of employment, the worker had taken himself outside the course of his employment. That decision was reversed in the Court of Appeal. The High Court, however, allowed an appeal from the Court of Appeal, on the basis that the original result was available on the facts found by the trial judge, and so should not have been reversed by the Court of Appeal.
In Blacktown City Council v Smith [1996] NSWCA 52, the Court of Appeal distinguished Williams, saying it was authority only for the proposition that it was open to a Court to find the worker was not in the course of his employment when seeking to escape from an assailant. As always, each matter must be assessed on its own facts.
Liability for an employer to pay compensation is limited by the requirement under section 9A of the 1987 Act that employment is a substantial contributing factor to the injury. Subsection (2) of section 9A provides examples of matters to be taken into account in determining whether employment was a substantial contributing factor. The list, which is not exhaustive, has six examples:
(a)time and place of injury;
(b)the nature of the work performed and the particular task of that work;
(c)the duration of the employment;
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or have not worked in that employment;
(e)the worker’s state of health before the injury and the existence of any hereditary risks, and
(f)the worker’s lifestyle and his or her activities outside the workplace.
Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; McMahon v Lagana [2004] NSWCA 164) to be decided after a consideration of all the evidence.
It is important to remember that employment must be a substantial contributing factor to the injury, not to the incapacity, need for treatment or permanent impairment incurred. Likewise, the employment must be a substantial contributing factor to the injury, not the substantial contributing factor. It is possible for there to be more than one substantial contributing factor to a single injury: see Mercer v ANZ Banking Corporation [2000] NSWCA 138.
In this matter, the factual dispute arises as to whether the applicant was still working when approached by his assailant, or whether he had left work for the day and was, as was his alleged habit according to the first respondent, in the vicinity of his workplace socialising after he had finished for the day.
The applicant’s evidence is that on Thursday nights such as the date of injury, the first respondent’s premises would stay open until approximately 7:00 pm. He stated that he would start work at differing times, sometimes at 10:00 am or other times at 2:00 pm. He would be telephoned by the first respondent’s owner, Mr Rofael and advised what time to start work. The applicant set out the background to the assault as follows:
“15. The café brought in the smoking of Shisha. From when the café started offering shisha to be smoked, the café would then stay open until about 11:00 pm on Thursday nights, Friday nights and Sunday nights.
16. Shisha is typically smoked after work as a cultural practice. And as such, people would come to the café and smoke shisha around 5:00 pm to 6:00 pm and later. I would often start work on Thursday, Friday or Saturday nights at about 7:00 pm and stay until the café closed at about 11:00.
17. My first contact with the person who assaulted me on 12 July 2018 occurred around about 5:30 pm or perhaps 6:00 pm. I was in the café at that time. A male person who appeared to be aged about in his early 30s, (he had a beard and bald head), started shouting at me...”
For his part, the owner of the first respondent, Mr Rofael states the first respondent’s business was open from Monday to Saturday, 7:00 am to approximately 7:30 pm. He stated the applicant’s working hours were always to be between 9:00 am to 5:00 pm each day, as arranged between the first respondent and the disability labour hire company who had initially placed the applicant into employment, known as “Afford”.
Mr Rofael then said that although the applicant’s work hours were set as being between 9:00 am and 5:00 pm each day, the actual hours were determined between the applicant and Mr Rofael. Mr Rofael stated the applicant mostly work during the day, starting at approximately 10:00 or 11:00 am. Mr Rofael noted the applicant worked at the café on 12 July 2018, though he said he commenced employment at approximately 11:00 am and worked for five hours, finishing at about 4:00 pm. Mr Rofael stated:
“18. He left the café after finishing work. He often hung around the immediate shopping area and visited friends in other stores or met them for a coffee. Sometimes he sat at one of our tables with a friend.
19. That day I knew he was still in the area as his car was still parked at the café.
20. At about 6:15 pm I was cleaning some plates from an outside table and I saw Raad outside a nearby jewellery shop that is about 30 metres away from my café on the same side of Macquarie Street. He was talking to a male. There was just the two of them. I did not recognise the other male. They seem to be in a heated discussion but I could not hear anything. I have a feeling that maybe something was going to happen – a fight perhaps.”
There is little variance between the applicant and Mr Rofael’s version as to what happened once the actual assault in issue commenced. In any event, there is no dispute it took place. I do not, therefore, propose to recount their versions in detail.
For the applicant, Mr McManamey impressed upon the Commission the version of events provided by the applicant surrounding the lead up to the assault, noting it was broadly supported by the statements of Ms Smyth, a casual employee of the first respondent, who provided a statement found at [104] of the Application. Although Ms Smyth was not present at the café at the time of the assault, she noted that on Monday and Tuesday the café would close at about 5:00 or 6:00 pm, however, on Wednesday, Thursday and Friday, it would stay open until approximately 9:00 pm or even 11:00 pm. Ms Smyth’s version of events contrasts with that of Mr Rofael, who stated the first respondent’s business was only open until approximately 7:00-7:30 pm each day.
In my view, that is a significant discrepancy, and Ms Smyth provides her evidence as an independent witness.
Further statement evidence to support the applicant’s contention that the café often opened later is found in the statement of Mr Alsabee at [100] of the Application. Mr Alsabee noted he would regularly attend the café, which was open late into the night, and on many occasions when he attended there in the evening, the applicant was working.
That evidence is also supported by the statement of Mr Marcellus, who had provided some business equipment to the first respondent which was being paid off. At [102] of the Application he said in reference to the café:
“I would either call in unannounced or Magdy [Mr Rofael] would call me to advise he had some money available for me. Magdy would typically pay me in instalments of a few hundred dollars. I would attend to the café about once or twice a month until the debt had been satisfied...
12. On one occasion, I attended a party at the café which was held in the evening from about 6:00 pm to midnight. [The applicant] was working during the party when I was there until midnight.”
On balance, I accept the applicant’s contention that the café was often open beyond regular business hours asserted by Mr Rofael, and that the applicant regularly worked after hours. The respondent has not produced any timesheet material to support its contention that the applicant only worked up to an earlier time of day. I also accept Mr McManamey’s submission that the absence of a document in the form of some timesheet or roster which the respondent would be able to produce to verify its claims as to the applicant’s work hours is significant. The work ledgers provided by the first respondent to the labour hire company do not state the times the applicant worked, only his total hours. There is no evidence to corroborate Mr Rofael’s statement that the applicant only ever worked up to and earlier than 4:00 or 5:00 pm, and indeed the only independent lay evidence supports the applicant’s claim as to the hours he often worked.
This being so, I accept the applicant’s contention that he often worked in the evening.
I note there are significant discrepancies between the statement of Mr Rofael and what he told the police when the assault was reported to them. In his statement, Mr Rofael said he first noticed the applicant and the assailant approximately 30 metres away from the café adjacent to a jewellery store. By contrast, Mr Rofael (who says he acted as interpreter for the applicant when he spoke with police, and who is identified as a witness in the police reports found at [132] of the Application) did not apparently tell the police the applicant was some distance from the café before the assault took place.
I am comfortable in finding that the witness referred to in the police report is Mr Rofael, noting that document records the witness stating “he will enquire with his CCTV at Black Horse Café”. That is plainly consistent with Mr Rofael being the witness as he is the owner of the café.
The police report says that:
“The victim claimed the POI approached him at the Black Horse Café where they engaged in a verbal altercation. After this, the victim walked across the road at the front of the corner pub on Macquarie Street, Liverpool. The POI allegedly struck the vic with a closed fist and pushed him to the ground. The vic walked inside the corner pub where the POI allegedly followed him and assaulted him further. The POI left the location and walked along Moore Street, Liverpool in an easterly direction with a female who was pushing a stroller.
A short time later, the POI returned to Black Horse Café and spoke with the wit. During the course of the conversation the POI stated his name [redacted]. The wit allegedly said to him he cannot act the way he did. The POI left not long after this.”
It is apparent from the police report that there is no record of Mr Rofael having advised them that he first observed the applicant and his assailant in a heated discussion some 30 metres away from the café. That is the case, notwithstanding the police narrative recording the applicant being “at the above café” when he was involved in a verbal argument which became physical.
There are details contained within Mr Rofael’s statement in which he makes reference to the assailant alleging the applicant had been acting inappropriately towards the assailant’s partner. There is no suggestion of that detail being provided to the police by Mr Rofael, and in the circumstances, I reject it. This is particularly the case where Mr Rofael states he not only acted as interpreter for the applicant over the phone, but also when he attended Liverpool police station. He also states the police attended the café to obtain details from him about the incident.
Whilst, as Mr Grant points out, the police report notes the assailant left the scene with a woman, that is not of itself corroborative of the suggestion put forward by Rofael as to the reason for the assault perpetrated upon the applicant. One would expect Mr Rofael to have mentioned this detail to the police in circumstances where he informed them of having told the applicant’s assailant that he could not act in the manner he had towards the applicant.
On balance, taking into account the lay evidence of independent witnesses as to the opening hours of the café which supports the applicant’s statement, I find the applicant was working at the time he was approached by the assailant in the lead up to the assault. In so finding, I have taken into account the lay evidence surrounding the circumstances leading up to the assault, in particular the discrepancy between Mr Rofael’s statement in these proceedings and the details contained in the police report.
Mr Grant submitted that Mr Rofael’s explanation as to the motive behind the assault should be preferred, as the alternative is a random attack perpetrated on the applicant by an unknown person for no apparent reason. I do not, however, see how the latter scenario is inherently unlikely or fanciful, especially in circumstances where Mr Rofael’s contention as to the motive is not supported by the contents of the police report, which were partly provided by him. Mr Rofael also states he acted as interpreter for the applicant in reporting the matter to the police, so in my view he was in a position to provide the police with that information, however, he failed to do so.
In my view, the absence of any material from the respondent which sets out the hours worked by the applicant, whether on the day at issue or in general, is telling. Moreover, there is no lay evidence to support Mr Rofael’s contention regarding the hours usually worked by the applicant, which contrasts with the applicant’s evidence being supported by no fewer than three lay witnesses.
Turning to the requirements of section 9A, in my view, accepting as I do the applicant’s evidence surrounding the circumstances of the assault, his employment was a substantial contributing factor to his injury. This is because the applicant made a conscious effort to absent himself from the workplace where there were customers present in order to avoid placing those patrons in harm’s way owing to the confrontational nature of the approach by his assailant. Moreover, accepting as I do the applicant was working at the time of his injury, I find the requirements of section 9A are satisfied, and the applicant’s employment was a substantial contributing factor to the injury at issue. Having accepted the applicant’s evidence, it follows he would not have been at the café and the subject of the assault were he not working. As such, I find the circumstances of this case are distinguishable from those in Williams, as the applicant in this instance attempted to remove his assailant from the vicinity of his workplace to ensure the safety of its customers. That, in my view, provides a causal nexus between the employment and the injury occasioned by the assault, even though it took place some short distance from the café itself.
Mr Grant also submitted the applicant had not demonstrated he had suffered an injury in the sense of pathological change as a result of the assault, given an alleged lack of complaint to his treating doctors immediately after the assault.
I note, however, that when the applicant attended on his general practitioner in the days immediately following the assault, he complained of pain and injury to (relevantly) his neck and back. The entry of the general practitioner at Application [81] dated 18 July 2018 provides:
“Surgery consultation .recorded by Dr Andrew Newman on 18/07/2018
1. alleged assault
12/7/2018 at 1800 at coffee shop
is going to do a police report
reports tender at back and sides of head
and back of neck
no LOC
nll other injuries
fully able to rotate neck to right and left
ambulatory
some mldline c spine tenderness
normal neuro exam
under Canadian C spine rule does not need to be in a brace”
A clinical entry on 29 July 2018 provides:
“radiating down shoulders and back
Actions:
Letter printed.
letter written re. NSW Workcover certificate of Capacity.
Letter to Rehab HQ printed.
Letter written to Rehab HQ re. Specialist referral 3.
Imaging request printed: Plain X-ray - Lumbo--sacral spine, Plain x ray - Thoracic spine, (back pain following alleged assault)It is therefore apparent the applicant did make complaints surrounding the cervical and lumbar spines in the few weeks immediately following the assault.
The findings on examination of Dr Guirgis, treating orthopaedic surgeon, are also supportive of injury to those body parts. It should be noted that Dr Guirgis also saw the applicant in his capacity as treating surgeon after an earlier workplace injury which took place in 2003. The applicant had injured his lower back in that incident, and in my opinion, Dr Guirgis is uniquely qualified in this matter to provide opinion as to whether further injury had been suffered in the incident at issue. Although his report does not provide exhaustive detail, in my view it is still helpful as a treating medical record in which the practitioner clearly sets out their view as to causation.
Moreover, while the respondent’s IME Dr Panjratan found the applicant’s injuries to each of the cervical and lumbar spine did not give rise to a finding of permanent impairment, he had before him the benefit of the history of previous injury from 2003 and did not dispute some injury being suffered in the incident at issue. Whether those injuries give rise to an assessable impairment is a separate question to whether they took place at all. Regarding the previous injury, Dr Panjratan noted at [112] of the Application:
“A trolley full of food came down an incline and struck him behind both legs. He was treated with pain killers and continued to see a surgeon who operated on him He had a couple of operations . Surgery was carried out to the left ankle a couple of times. As far as his understanding goes there was a fracture in the ankle area which was fixed and later on it appears that the plate got removed. He claims he didn't suffer an injury to the ankle in the current injury.
I found previous statement by Dr Vijay Maniam regarding shoulders and knees. That
was the result of a previous accident recorded above . He does not recall the measure of pain he had before but there is documented shoulder, neck and knee pain before. I have timelined in my previous report the nature of treatment from 2003 and he confirmed that he had ongoing problems since 2003. It was the incident with the trolley in 2003 which started off his problems.”Dr Panjratan found a measure of pain focussed behaviour in the applicant’s presentation, however, he did find the applicant suffered injury to the lumbar and cervical spine, albeit they were assessed at 0% whole person impairment.
Whilst there is a large discrepancy between the impairment ratings of Dr Panjratan and
Dr Tong, IME for the applicant, both doctors are of the view that injury took place. Medically, there is no controversy that this is the case. Rather, it is the severity of that injury which is the medical issue in this matter, as Dr Tong assesses the applicant as suffering whole person impairment to the cervical and lumbar spine.Such a dispute is the provenance of a Medical Assessor appointed by the Commission rather than the Commission constituted by a Member of the Workers Compensation Division.
This being so, orders will be made referring both the cervical and lumbar spine for assessment by a Medical Assessor of the applicant’s whole person impair
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