Haydar Al-Nouri v Al-Nouri Pty Ltd - [2010] NSWWCCPD 85

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Haydar Al-Nouri v Al-Nouri Pty Ltd [2010] NSWWCCPD 85
APPELLANT:		Haydar Al-Nouri
RESPONDENT:		Al-Nouri Pty Ltd
INSURER:		QBE Insurance (Australia) Limited
FILE NUMBER:		A1-8375-09
ARBITRATOR:	Mr Nolan
DATE OF ARBITRATOR’S DECISION:		19 March 2010
DATE OF APPEAL DECISION:		6 August 2010
SUBJECT MATTER OF DECISION:		Section 319 of the Workplace Injury Management and Workers Compensation Act 1998; medical dispute; validity of Registrar’s referral of medical dispute to an Approved Medical Specialist; status of a Medical Assessment Certificate following invalid referral; determination of the Workers Compensation Commission operating as a res judicata.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	La Rosa Izzo & Co Solicitors
Respondent:		Moray & Agnew Solicitors
ORDERS MADE ON APPEAL:		Paragraphs 1, 2 and 3 of the Arbitrator’s Interim Determination dated 19 March 2010 are revoked and the following determinations are made: “1. The referral for assessment made on 20 November 2009 by the Registrar to AMS Dr Assem was invalidly made. 2. The Medical Assessment Certificate issued by the AMS Dr Assem on 3 February 2010 is a nullity. 3. There remains a medical dispute with respect to alleged whole person impairment resulting from injury received to the worker’s left upper extremity.” The order made by the Arbitrator in Paragraph 4 of his Interim Determination dated 19 March 2010 is confirmed. Paragraph 5 of the Arbitrator’s Interim Determination dated 19 March 2010 is revoked and the following direction is made: “The documents to be forwarded to the AMS are to include all documents in evidence before the Commission subject to the withdrawal by the worker of all but one forensic medical report in his case. The Registrar is to seek the worker’s election as to the single forensic medical report upon which he relies for the purposes of the referral.” No order as to costs of this Appeal.

BACKGROUND TO THE APPEAL

Haydar Al-Nouri (‘the worker’), who is 30 years of age, alleges that he received injury in the course of his employment with Al-Nouri Pty Ltd (‘the respondent’). The evidence reveals that the respondent was the worker’s ‘own company’ however it is not known as to whether he was a director. At relevant times the worker was employed as a truck driver and his duties were to operate a 12 tonne truck for the purpose of soft drink delivery.

The injury alleged was particularised as being “injury to the neck, left shoulder, left elbow, left wrist, upper back, lower back, both legs the left being worst”. The date of the injury is particularised as being “nature and conditions of employment between November 2007 - May 2008”.

In March 2009 the worker instructed his solicitors to pursue a claim with respect to lump sum workers compensation benefits pursuant to section 66 and section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). Notification of that claim was given to the respondent and its insurer by letter dated 27 March 2009 sent by the worker’s solicitors. Reliance was placed upon the medical opinions expressed by Dr Peter Conrad in a report dated 4 March 2009 and by Dr Richard Evans in his report dated 18 March 2009. A claim in respect of 18 per cent whole person impairment (‘WPI’) was made. The correspondence also included a claim for a lump sum of $15,000 with respect to pain and suffering pursuant to section 67.

A dispute arose concerning the worker’s entitlement to the lump sums claimed and an Application to Resolve a Dispute was registered in the Commission on 16 June 2009 being matter 4615/09. A Reply to that application was registered on behalf of the respondent by its solicitors on 1 July 2009. On that day the respondent’s solicitors wrote to the worker’s solicitors drawing attention to the fact that reliance had been placed by the worker upon two forensic medical reports being those of Dr Conrad and Dr Evans. It was indicated that such reliance was in breach of Regulation 43 of the Workers Compensation Regulation 2003 (incorrectly referred to as Regulation 43A in the correspondence) and a request was made that the worker’s solicitors give notice to the Registrar concerning which of the two reports was to be withdrawn. The correspondence proceeded to state that if there was disagreement with such course the respondent intended to list the matter for a teleconference for the purpose of raising the relevance and operation of the Regulation to the facts. A further matter of some significance in this Appeal was raised by the respondent’s solicitors in that correspondence, being that “you use a combination of assessments from both forensic medical reports in order to arrive at the claim made on the worker’s behalf in the application of 18% whole person impairment”.

The worker’s solicitors on 8 July 2009 wrote to the Registrar and enclosed a copy of the respondent’s solicitors letter dated 1 July 2009 and stated:
“We nominate the forensic medical report of Dr R Evans of 18 March 2009 and request the report of Dr Peter Conrad dated 4 March 2009 be deleted prior to referral of the matter (sic) an Approved Medical Specialist”.

Before receipt by the Registrar of the last mentioned correspondence, steps had been taken to refer the medical dispute for assessment by an Approved Medical Specialist (‘AMS’) Dr Nigel Marsh. The original referral nominated the following body parts as being included in the referral: “cervical spine, lumbar spine, left upper extremity and left low extremity”. That referral was amended following receipt of the correspondence from the worker’s solicitors in two respects. Dr Marsh was advised that Dr Conrad’s report of 4 March 2009 was to be excluded from the material to be taken into account on assessment, and referral to the body part “left upper extremity”, as appeared in the original referral, was deleted. I note in passing that the report of Dr Evans contained no assessment concerning WPI resulting from injury to the left upper extremity. Notice of the amended referral was given to the parties by the Registrar.
Dr Marsh conducted an examination of the worker and issued a Medical Assessment Certificate (‘MAC’) on 24 August 2009. The certificate is directed to the three body parts nominated in the amended referral. Dr Marsh’s conclusion, as certified, was that total WPI had been assessed at “0%”.
On 29 September 2009 a Certificate of Determination was issued by the Registrar, the terms of which were as follows:
“The Commission orders:
1. That the Applicant suffers 0% permanent impairment resulting from the injury sustained as a result of the nature and conditions of employment between November 2007 and May 2008.
2.That there be no order as to costs.
3.Brief statement of reasons.
This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.”
The worker, prior to the issue of the Certificate of Determination, had taken no steps to pursue an appeal against Dr Marsh’s assessment pursuant to section 327 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). No steps had been taken on behalf of the worker seeking further medical assessment pursuant to section 329 of the 1998 Act prior to issue of the Certificate of Determination. No application was made on behalf of the worker (pursuant to section 378 of the 1998 Act) for reconsideration of the findings by the AMS nor of the Registrar’s decision. Following issue of the Certificate of Determination, no steps were taken by the worker to seek leave to appeal pursuant to section 352.
The subsequent history of this claim, by reason of a multitude of factors which will be discussed below, has become particularly confused. The first factor contributing to this confusion was the step taken by those advising the worker to issue a second Application to Resolve a Dispute. That Application was filed on 13 October 2009 and the particulars of injury, including date and description, conformed in every respect to the allegations made in the earlier proceedings. That Application, prepared by solicitors experienced in this jurisdiction, contained two significant misstatements.
The first of those misstatements is to be found at [2.1] of the Application where, in response to the question as to whether the worker had been examined at any time by an AMS under Part 7 of Chapter 7 of the 1998 Act the answer “no” was given. The second misstatement is to be found at [2.2] where, in response to the question “have any proceedings been taken in relation to this injury or any other injury or condition?” the reply given was “no”. The Application also contained a misrepresentation concerning the status of Dr Evan’s report of 18 March 2009 which was attached to the Application. That document was itemised at [6.1.2] of the Application as being a report by a “treating doctor”. As earlier noted the report of Dr Evans is a forensic report within the meaning of Regulation 43. Finally, it is disturbing to note that a copy of a report by Dr Bye dated 14 April 2009 addressed to the respondent’s insurer was attached to the Application, however no listing of that report is found at Part 6 of that Application. That report is clearly a forensic report as defined in Regulation 43.
A Reply to the Application was prepared by the respondent’s solicitors and transmitted electronically to the Commission’s Registry. That communication was acknowledged by the Commission in an email dated 30 October 2009 addressed to Ms Sutton of the respondent’s solicitors. That Reply was accompanied by an email communication which stated:
“From:           Katherine Sutton
Sent:              Friday, 30 October 2009 9:15 AM
To:                 ‘registry 2 wcc.nsw.gov.au’
Subject:         8375-09 Al-Nouri
Attachments: 8375-09 Al-Nouri-Reply.pdf
Dear Sir/Madam
We act for the respondent and enclose for filing respondent’s reply.
The reply sets out the fact that there is a dispute as to liability and that the claim has been the subject of a medical assessment certificate and a certificate of determination in WCC matter number 004615/09.
The respondent requests that the matter be changed from the permanent impairment track to the general dispute track and that it be allocated a teleconference.
Please:
1.    In accordance with rule 5.3, confirm lodgement and registration of the response by ECM system, and
2.   Return Sealed copies for service.
Thankyou
Katherine Sutton | Administration Assistant | Moray & Agnew Solicitors”
The worker’s solicitors had earlier, in correspondence dated 27 October 2009 from the respondent’s solicitors, received a copy of the Reply which was subsequently sent to the Registry for registration. That correspondence also noted the respondent’s request put to the Registrar concerning case management of the matter.
The next significant event occurred on 20 November 2009 when the Manager Dispute Services of the Commission, as delegate of the Registrar, referred this matter for assessment to an AMS, Dr Mohammed Assem. Documents before the Commission include a copy of an email sent by the Registry to the worker’s solicitors which had attached a copy of the referral to Dr Assem.It is common ground that the respondent’s solicitors received no notice of the Commission’s referral of the matter to Dr Assem. Whilst it is suggested that the notice had been forwarded to the respondent’s insurer, QBE, the Commission file contains no record of such communication.
The worker was examined by Dr Assem and a MAC was issued by that practitioner dated 3 February 2010. The Certificate concerned the body parts or systems as referred being the cervical spine, the left upper extremity, the lumbar spine and the left lower extremity. Dr Assem’s assessment as certified was that the worker suffered a total 12% WPI. That figure was determined having regard to his assessment of 7% WPI cervical spine and 5% WPI lumbar spine. The certificate certified 0% each in respect of the left upper extremity and the left lower extremity.
On 12 February 2010 the respondent’s solicitors wrote to the Registrar setting out the lengthy history of the worker’s claim and both sets of proceedings instituted by him. It was made reasonably clear in that correspondence that the first notice the respondent’s solicitors had received concerning Dr Assem’s assessment and the subsequent issue of his MAC had been received on 10 February 2010 when their insurer client, QBE, forwarded that certificate to their office together with a notice that the matter had been allocated a teleconference before an Arbitrator on 9 March 2010. That correspondence also contained details concerning enquiries conducted by the respondent’s solicitors of the Commission staff concerning the fate of the Reply that had been earlier forwarded electronically. Those enquiries revealed that the Reply had been “evidentially misplaced”. The correspondence also included an indication that the respondent was seeking orders that the decision by the Registrar to refer the matter to Dr Assem be set aside and that the MAC of Dr Assem be revoked. The basis of such request for relief was made clear in the correspondence and was apparently construed by the Registrar as a request for a reconsideration.
On or about 15 February 2010 the respondent’s solicitors lodged what they described as an “Application for Review/Reconsideration of the decision to refer this matter to Dr Assem”. The ground of that application was that the respondent had been denied procedural fairness concerning the making of the orders leading to the referral. On 17 February 2010 both parties were informed by the Commission that the matter raised concerning reconsideration was to be dealt with by the Arbitrator at the teleconference set down for 9 March 2010. Written submissions were invited.
The matter came before an Arbitrator for the purpose of conducting a teleconference on 9 March 2010. A conciliation procedure took place, however the matter was not able to be settled. The Arbitrator then proceeded to deal with those matters in dispute. The teleconference from that point was recorded and a transcript (T) of the proceedings is available and has been provided to the parties. It appears from the transcript that the Arbitrator initially addressed an application, which was perceived by the parties as being before the Commission for determination, being one by the respondent that the Registrar reconsider the decision referring the matter for assessment by Dr Assem. The Arbitrator acknowledged that the parties had provided detailed written submissions concerning the history of the matter and the manner of its proper disposition. He invited further submissions and the parties supplemented the earlier written submissions by way of oral argument. Thereafter the transcript (T5-T9) records the Arbitrator embarking upon an analysis of the history of the claims and a statement by him that:
“I, acting as Arbitrator, am being asked to determine the respondent’s application in respect of these proceedings that the Registrar reconsiders her decision under section 378 of the Workplace Injury Management and Workers Compensation Act 1998. That is a discretionary matter for a Registrar, AMS or Appeal Panel under the section” (at T7).
The Arbitrator proceeded to state that he did not have power to reconsider the Registrar’s decision nor (at T9) the power to order the Registrar to reconsider.

The transcript further records that the Arbitrator and the parties were troubled by the consequences of the Arbitrator’s stated reasons concerning the suggested application for reconsideration. There followed lengthy discussion between the parties and the Arbitrator, after which the Arbitrator proceeded to indicate his views concerning a number of arguments raised by the parties. Further discussion occurred during which the parties agreed that the complexity of the matter had given rise to considerable doubt as to the parties’ rights and obligations and that it would be appropriate to seek leave of the President, pursuant to section 351 of the 1998 Act, to refer a question of law seeking the opinion of the President. The Arbitrator indicated that he would seek such leave once the parties agreed as to the question or questions to be put to the President. No formal orders were made at the conclusion of the teleconference however it is clear that the Arbitrator had granted leave to the parties to submit, following consultation between them, the question or questions of law which would be referred pursuant to section 351 by way of stated case.
Following the teleconference the parties failed to agree as to the form of the stated case to be put to the President. In the circumstances the Arbitrator was requested by each party to proceed to a determination. A Certificate of Determination issued on 19 March 2010 which was accompanied by a Statement of Reasons (‘Reasons’). Those Reasons included an observation by the Arbitrator that his reasons for the orders made were delivered by him extempore on the day of the teleconference.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 19 March 2010 records the Arbitrator’s orders as follows:
“The Commission makes the following interim determination:

1. That at the telephone conference I, acting as Arbitrator, determined that I have no power under section 378 of the 1998 Act to order the Registrar to reconsider the decision of the delegate to the Registrar to refer the matter to Dr Assem as requested by the Respondent, that the medical assessment certificate of Dr Marsh in matter no. 4615-09 was conclusive pursuant to section 326(1) of the 1998 Act, and the Registrar should not have made the referral to Dr Assem in matter no. 8375-09.

2. That the medical referral by the Registrar to Dr Assem dated 20 November 2009 was made without power, due to the operation of section 321(4) of the 1998 Act. The subsequent Medical Assessment Certificate dated 3 February 2010 is therefore a nullity.

3. The only remaining issue in dispute concerns the level of permanent impairment of the left upper extremity, which was not assessed as part of matter no. 4615-09.

4. The matter is remitted to the Registrar to prepare a referral to a different AMS for medical assessment of permanent impairment of the left upper extremity.

5. The documents to be sent to the AMS are those accepted into the proceedings, being the Application and all attached documents, the Reply and all attached documents and include the reports of Dr Conrad dated 4 March 2009 and Dr Bye dated 14 April 2009.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

On 19 April 2010 the worker registered with the Commission an Application seeking leave to appeal against the decision of the Arbitrator.

ISSUES IN DISPUTE

The issues in dispute in the Appeal are:
Whether the Arbitrator erred in:
(a)   determining that the Registrar’s referral of the medical dispute to Dr Assem was made without power;
(b)   determining that the MAC of 3 February 2010 was a nullity;
(c)   failing to make orders in accordance with the MAC issued by Dr Assem, and
(d)   remitting to the Registrar for referral to an AMS, assessment only of the left upper extremity.

The summary of the issues set out above is based upon the written submissions by the worker in support of the Application seeking leave to appeal.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act. In the circumstances I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

EVIDENCE

There is no summary to be found of the evidence which was before the Arbitrator as at the date of the teleconference, 9 March 2010. The transcript reveals that there was no summary of the evidence recorded during the course of the teleconference and there is no summary of that evidence to be found in the Arbitrator’s short Statement of Reasons which accompanied his Certificate of Determination dated 19 March 2010. It is reasonably clear, having regard to matters recorded in the transcript and the reasons given by the Arbitrator, that all the material attached to the worker’s Application was in evidence before the Arbitrator. It is also clear that the Reply prepared on behalf of the respondent, which had apparently gone astray following its electronic transfer to the Registry, was also in evidence together with those documents attached thereto. It may be that orders were made by the Arbitrator during the conciliation process concerning the state of the evidence, however that portion of proceedings was, properly, not recorded.
As noted, at [4] and [11] above, the reports of Dr Conrad, Dr Evans and Dr Bye are each forensic medical reports. The fact that the worker sought to rely upon those reports in the proceedings before the Arbitrator gives rise to the obvious difficulty that such reliance is precluded by the provisions of Regulation 43. No point was taken by the respondent concerning this matter before the Arbitrator. As the outcome of this Appeal turns on an examination of procedural matters and questions of principle concerning the respondent’s entitlement to be heard with respect to the Registrar’s referral, and questions going to the validity of such referral, the presence of those documents in evidence is of little if any consequence.
The MAC of Dr Marsh is attached to the respondent’s Reply and is thus in evidence before the Commission. There does not appear to be any record of either party seeking leave to tender the MAC issued by Dr Assem. That document has been addressed both by the parties and the Arbitrator and may have been admitted into evidence during the conciliation process. The parties have each made repeated reference to the MAC in the course of argument and I infer that the Arbitrator had admitted the document into evidence before him. The status of that medical assessment is a matter in issue on this Appeal.
It is, in my view, unnecessary to undertake the task of summarising the evidence relied upon by the parties given the nature of the dispute. This Appeal concerns a determination of the correctness or otherwise of the Arbitrator’s conclusions as to the status of the Registrar’s referral of a medical dispute to Dr Assem, his determination that the MAC issued by Dr Assem was a nullity, his failure to make an order in accordance with Dr Assem’s MAC and his remitter to the Registrar of the matter for referral to an AMS for an assessment of one body part.

THE ARBITRAL PROCEEDINGS

Worker’s submissions before the Arbitrator

Written submissions were put on behalf of the worker in correspondence dated 2 March 2010 addressed to the Commission. Attached to that correspondence are a number of documents which form part of the record before the Commission including copy of the amended referral for assessment addressed to Dr Marsh dated 10 July 2009, the referral for assessment addressed to Dr Assem and some copies of communications which have been forwarded by the Commission which are addressed below.
The worker’s submissions directed attention to the provisions of section 378 of the 1998 Act which makes provision for reconsideration of decisions and it was argued that in the present circumstances that section does not afford a basis upon which the Registrar’s referral to Dr Assem may be challenged. It was also argued that the section affords no basis upon which the respondent may seek to have Dr Assem’s certificate revoked. Reliance was placed upon the decision in Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56 (‘Milosavljevic’).
The submissions proceeded to challenge matters asserted by the respondent in the course of its submissions to the Arbitrator. The worker emphasised that the referral to Dr Marsh did not include a request that he consider “the left upper extremity” when making his assessment. It was also emphasised that the evidence of Dr Conrad was not included among documents referred by the Registrar for Dr Marsh’s consideration. Upon the basis of those matters it is argued:
“Consequently the evidence in the proceedings 4615/09 was different to the evidence in the present proceedings 8375/09 as were the body parts referred to the AMS”.

The worker developed the argument that the dispute which existed in the earlier proceedings was a different dispute to that which was referred to Dr Assem in the present proceedings.
The respondent’s assertion that the Reply had been “misplaced” was apparently challenged in the course of these submissions. The worker drew attention to Dr Assem’s referral to the Reply in the course of his reasons which forms part of his MAC.
The worker proceeded to suggest that documents attached to the submissions support an inference that the respondent’s insurer, QBE, “received notice of the referral for assessment of permanent impairment by email dated 20 November 2009”.
The worker sought to refute the statement by the respondent that they first received notice “in relation to the new set of proceedings” on 10 February 2010. The worker pointed out in submissions that a Reply had earlier been prepared.
The worker challenged the suggestion in the respondent’s submissions that it has been “denied natural justice and procedural fairness”. It was again asserted that the insurer, QBE, received notice of the referral by email dated 20 November 2009, which notice invited objection to the referral within seven days of that notice.
The worker repeated certain matters raised earlier in submissions and it was again asserted that “the dispute in the present proceedings is a fresh dispute”. Reliance was also placed by the worker upon the provisions of section 329(2) of the 1998 Act as the basis to argue that Dr Assem’s certificate prevails over that of Dr Marsh.

Respondent’s submissions before the Arbitrator

The respondent’s written submissions appear in the correspondence dated 12 February 2010. That correspondence has attached a copy of the Reply that had been prepared on behalf of the respondent and earlier forwarded to the Commission.
The respondent sought from the Arbitrator orders that:
“The decision by the delegate to the Registrar to refer the matter to Dr Assem should be set aside.
Likewise the Medical Assessment Certificate of Dr Mohammed Assem dated 3 February 2010 should be revoked because there is no ‘dispute’ between the parties, that dispute having already been determined by the Certificate of Determination in matter no. 4615/09.”
The respondent argued that the MAC issued by Dr Marsh has at relevant times remained binding upon the parties. It was further argued that the dispute between the parties had been determined and that there was no “dispute” to be referred. It is put that “the dispute had already been determined in accordance with the earlier Certificate of Determination”.
It was submitted that the respondent has been denied natural justice and procedural fairness given that it had not been afforded an opportunity to argue that there was no dispute and that there should not have been a further referral to an AMS. It was further argued that the fact that a Certificate of Determination had been issued in the earlier set of proceedings was a factor of significance.

THE ARBITRATOR’S DECISION

The Arbitrator’s reasons for making the orders set out at [22] above are found as recorded in the transcript as well as in the short Statement of Reasons which accompanied his Certificate of Determination. The Arbitrator expressed his perception as to the task before him at T7 where it was stated:
“I, acting as Arbitrator, am being asked to determine the respondent’s application in respect of these proceedings that the Registrar reconsiders her decision under section 378 of [the 1998 Act]”.
The Arbitrator stated his conclusion that he had “no power to reconsider the Registrar’s decision” concerning referral to Dr Assem. As summarised earlier the Arbitrator did not make any formal order at the hearing given the circumstance that the parties expressed a wish that the Arbitrator state a case for the opinion of the President. The Arbitrator agreed to seek leave pursuant to section 351 to obtain such an opinion and invited the parties to provide a draft of the question or questions which they wished to have put by way of that stated case. The parties subsequently failed to agree which led the Arbitrator to make the determinations and orders which appear at [22] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

The confusion which has attended the conduct of these proceedings has, unfortunately, given rise to a misconception both by the Arbitrator and the parties as to the nature of the task before the Commission and the issues which, on the evidence, required determination. On the present facts and circumstances the provisions of section 378 can have no application. It is fortunate that, notwithstanding the erroneous characterisation of the dispute as being one arising under that last mentioned section, the parties have in argument addressed the issues and the evidence relevant to the task that confronted the Arbitrator. In its simplest terms the Arbitrator was required to determine what order, if any, should be made with respect to the alleged whole person impairment suffered by the worker. I consider that the practical consequence of the “interim determination” made by the Arbitrator on 19 March 2010 is that the questions before him were addressed. However, by reason of errors which exist as expressed in his reasons for making that interim determination, I consider that a review is necessary. The object of such review is to determine whether the Arbitrator’s view was the true and correct view (State Transit Authority of New South Wales v Fritzi Chemler (2006) 5 DDCR78; [2006] NSWCA 249 (‘Chemler’)).

It is clear that the Registrar treated the worker’s claim as a medical dispute that required reference to an AMS for assessment of WPI. That view of the circumstances was erroneous. There had been earlier proceedings involving assessment by an AMS and a MAC had issued. A Certificate of Determination, which reflected the AMS’s assessment, issued on 29 September 2009. As noted at [9] above no challenge had been raised by the worker to Dr Marsh’s MAC, nor had there been any challenge to the Registrar’s determination.
The Registrar’s error was occasioned by reason of two distinct matters. Firstly the worker had not correctly particularised the Application filed with the Registry as summarised at [11] above. The information provided by a party in the forms which have been specifically designed by the Commission to facilitate the efficient conduct of its business, when correctly engrossed by a party, brings to the Registrar’s notice the existence of any earlier proceedings and the conduct of any earlier medical assessment. In this regard the Registrar was misled by the worker. In usual circumstances it may be anticipated that a respondent to such an Application would bring to the notice of the Registrar relevant matters of fact. In the present case I accept that the respondent’s solicitors forwarded a Reply in accordance with practice in the Commission, and that the Registrar received and acknowledged receipt of that Reply. I also accept that the respondent’s Reply at some time thereafter went astray within the Registry.
The loss of the Reply was the second matter which contributed to the Registrar’s error. The worker has correctly noted in submissions that Dr Assem listed the Reply as being among documents submitted to him. At page 10 of his report Dr Assem made reference to “other medical opinions and findings submitted by the parties” where reference is made to the views of Dr Evans, Dr Conrad and Dr Bye. The report of Dr Bye had been included in the worker’s Application however it should be noted that Dr Bye was qualified on behalf of the respondent. Dr Bye’s report was not included in the documents attached to the respondent’s Reply that had been forwarded to the Registrar. There is no reference made by Dr Assem to the report of Dr Marsh dated 24 August 2009 which accompanied his MAC of the same date which had been annexed to the Reply. The Registrar’s referral made on 20 November 2009 listed only the Application and attached documents as comprising the brief to Dr. Assem. It is likely, and I infer, that notwithstanding the notation found in Dr Assem’s MAC, that that practitioner did not have a copy of the Reply, which had attached the MAC of Dr Marsh, at the time of his examination of the worker.

The validity of the Registrar’s referral to Dr Assem for assessment

The form of referral addressed to Dr Assem is in evidence. The referral concerns a medical dispute. The dispute is particularised as involving questions of the degree of permanent impairment of the worker as a result of an injury (section 319(c)); whether any proportion of impairments due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (section 319(d)); whether impairment is permanent (section 319(f)) and whether the degree of permanent impairment of the injured worker is fully ascertainable (section 319(g)). The terms of the referral are identical to the amended referral which had been forwarded to Dr Marsh except that the body parts referred to in the referral to Dr Marsh did not include the left upper extremity. The only other point of difference was that Dr Conrad’s report had not been submitted for Dr Marsh’s consideration. Notwithstanding those differences I am of the opinion that the medical dispute referred to each of the doctors was one and the same dispute. The MAC issued by Dr Marsh addressed those body parts particularised in the referral received by him. That assessment is conclusively presumed to be correct with respect to the matters enumerated in section 326(1) in any proceedings before the Commission with which the Certificate is concerned.
A Certificate of Determination was issued by the Registrar on 29 September 2009. No appeal from that Determination has been made.
The worker challenges the Arbitrator’s determination found at [2] of the Certificate of Determination dated 19 March 2010 that the Registrar’s referral to Dr Assem dated 20 November 2009 was made without power. The worker’s argument appears to be that the referral was made by the Registrar pursuant to section 321 of the 1998 Act. The worker’s argument appears to acknowledge that the Arbitrator’s reasoning concerning the referral included his conclusion that there existed at the time of the referral a dispute between the parties and that such referral may not take place by reason of the provisions of section 321(4). That section provides so far as is relevant:
“(4) The Registrar may not refer for assessment under this Part:
(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…”
It is asserted by the worker (at [1.5] of submissions in support of this Appeal) that liability was not in dispute at the time of the Registrar’s referral. In support of that assertion the worker states that there “was no Reply to the Application to Resolve a Dispute before the Registrar at the time he made the referral”. It is further asserted that the insurer, QBE, had received notice of the referral and “did not raise any objection”. At [1.6] of submissions the worker addresses the nature of the “medical dispute” which was referred and seeks to distinguish that medical dispute from that which was addressed to Dr Marsh.
I agree with the Arbitrator’s conclusion that the referral to Dr Assem had been made by the Registrar without power, however I am of the opinion that the Arbitrator has erred in his reasoning which led to that conclusion. The question as to the existence of a dispute as to liability within the meaning of section 321(4)(a) is not, on the facts, the relevant consideration. The fundamental question raised on the present facts is whether a dispute, being a medical dispute within the meaning of section 319 of the 1998 Act, was in existence at the time of the referral. This question requires an examination of the consequences in law of the determination made by the Registrar on 29 September 2009. That question necessarily requires identification of the ‘dispute’ in each application.
The worker seeks to distinguish that which was in dispute in the earlier proceedings from that which has been addressed by the Arbitrator in the present. I have addressed this question at [52] above. The points of distinction include the amendment of the referral in the first proceedings to delete reference to one body part and the inclusion of Dr Conrad’s report in evidence in the present proceedings. I have earlier, at [52], reached the conclusion that those points of difference, which concern procedural and evidentiary matters, have no relevance to the question as to whether the same dispute has been raised in each of the proceedings. I have earlier noted at [10] above that the second Application brought by the worker conformed in every respect to the allegations made in the earlier proceedings. I conclude that the dispute in each referral to the AMS was one and the same, namely a medical dispute within the meaning of section 319 of the 1998 Act concerning WPI resulting from injury to body parts cervical spine, lumbar spine and left lower extremity.
The validity of the referral to Dr Marsh is not in question. Dr Marsh’s MAC is conclusively presumed to be correct concerning the matters set forth in section 326(1) which includes the question of the degree of permanent impairment of the worker as the result of the injury. A Certificate of Determination has been issued by the Registrar which reflects the assessments made by Dr Marsh. That determination stands and is binding upon the parties. The consequence is that the issue of the Certificate of Determination has concluded the dispute which existed between the parties. That determination operates as a res judicata.
The effect in law of such Determination is in no way lessened or qualified by reason of the existence in the 1998 Act of a power granted to the Registrar to refer a matter for further medical assessment (section 329); nor by the grant of a power to reconsider matters dealt with by the Registrar, an AMS or an Appeal Panel (section 378). As was stated by Neilson J concerning determinations of the former Compensation Court of New South Wales in Bruce v Grocon Ltd [1995] NSWCC 10; (1995) 11 NSWCCR 247 (‘Bruce’):
“Of course, the doctrine of res judicata, meaning cause of action estoppel, and also the doctrine of issue estoppel can have no application in a claim for reconsideration pursuant to section 17(4). It is to overcome such principles that the power of reconsideration exists. That is what Rainbow J was referring to in Humphreys v. Shell Co of Australia Ltd. However, in my view, absent an application under section 17(4) of the Compensation Court Act 1984, any determination made by this Court does create an issue estoppel: see Somodaj v. Australian Iron & Steel Ltd (1963) 109 CLR 285. Therefore, there is no reason in principle why a determination of this Court could not in appropriate circumstances create a cause of action estoppel, absent an application under section 17(4).” (at 264)

The matters referred for assessment to Dr Assem included the same questions referred to Dr Marsh concerning WPI resulting from injury to the body parts noted at [57] above. The dispute concerning entitlement had been determined by the issue of the Certificate of Determination following Dr Marsh’s MAC which addressed those body parts. The Registrar’s Certificate of Determination had resolved the dispute. The consequence of the issue of the Certificate of Determination following Dr Marsh’s assessment is that there was no dispute in existence at the time of the commencement of the second set of proceedings concerning such alleged entitlement. There being no dispute there was no power to make the referral to Dr Assem. There was no dispute to be referred and any such referral in my opinion was made by the Registrar ultra vires. The assessment of Dr Assem has come into being by reason of an invalid referral and his MAC must be treated as a nullity. That being so, any determination made by the Commission upon reliance of Dr Assem’s MAC would be “infected with the error” which attended the Registrar’s referral (Jopa Pty Limited t/as Tricia's Clip-n-Snip v Edenden [2004] NSWWCCPD 50; (2004) 5 DDCR 321 at [37]). The Arbitrator’s conclusions that the medical referral made by the Registrar to Dr Assem was made without power and that Dr Assem’s MAC dated 3 February 2010 is a nullity were correct.
The worker at [1.7] of submissions suggests that the referral in question was made by the Registrar pursuant to section 329(1)(a) which subsection permits referral for reassessment. I reject that submission. It cannot be said that the referral was made by the Registrar as “an alternative to an appeal against the assessment as provided by section 327” as is provided in the sub-subsection. Upon the assumption that the worker intended to nominate the provisions of section 329(1A) I reject that argument. It cannot be suggested that the Registrar was seeking a further assessment by way of reconsideration given that the Registrar had no knowledge of the prior assessment. It follows that the worker’s argument founded upon the provisions of section 329(2) must also be rejected.
For the reasons which I have attempted to summarise above, I reject the worker’s second ground of appeal which suggested error on the part of the Arbitrator in failing to determine the suggested dispute by issuing a Certificate of Determination in accordance with Dr Assem’s MAC.
The third and final ground of appeal relied upon by the worker is expressed as follows:
“The Arbitrator erred in referring only one body part to Dr Bodel.”
To enable a proper understanding of the worker’s complaint it is necessary to examine those events which occurred following the issue of the Arbitrator’s interim Certificate of Determination on 19 March 2010. The Commission record reveals that the Registrar, in accordance with the Arbitrator’s orders, had referred the question of assessment of any whole person impairment resulting from injury to the worker’s left upper extremity to an AMS, Dr Bodel. An appointment had been made for examination and assessment by Dr Bodel however that appointment had been cancelled given the existence of this appeal.
The worker’s complaint is that all body parts nominated in his Application should have been the subject of referral to Dr Bodel. In its Notice of Opposition to this Appeal the respondent appears to take no exception to the order of remitter as made by the Arbitrator nor to the terms of that referral.
I have earlier found (at [58] above) that the Certificate of Determination dated 29 September 2009 is binding upon the parties. The worker’s rights with respect to the body parts addressed by Dr Marsh have been conclusively determined and an order of the Commission has followed. The worker elected to amend the terms of the referral to Dr Marsh to remove reference to the left upper extremity. The consequence of that amendment and the nullity of Dr Assem’s MAC is that there has been no valid assessment nor determination of entitlement, if any, concerning that body part. In the circumstances it was appropriate, in my view, that the Arbitrator made an order of remitter to the Registrar as found in his interim determination. Such an approach is consistent with the legislature’s intentions concerning the objectives of the Commission as found in the provisions of section 367 of the 1998 Act. The Arbitrator’s order of remitter requires amendment given the worker’s attempted reliance upon three forensic medical reports (those of Dr Conrad, Dr Evans and Dr Bye) in breach of Regulation 43. An appropriate order appears below.
Should I be in error in my determination as to the invalidity of the Registrar’s referral for assessment to Dr Assem and as to the nullity of the MAC issued by that practitioner, I propose to briefly indicate my views concerning the respondent’s submission that it had been denied natural justice.
I have earlier accepted that the Reply was filed on behalf of the respondent but misplaced within the Registry. I have also stated my view that there is insufficient evidence to satisfy me that the respondent’s insurer, QBE, received advice concerning the referral to Dr Assem as suggested by the worker. In the circumstances the respondent has been denied an opportunity to defend the claim brought by the worker. Denial of a hearing constitutes a breach of the requirements of natural justice. The Commission, in conduct of its proceedings, is bound to afford a party an opportunity to secure a favourable outcome of the litigation. That opportunity has been denied. Had it been necessary, my conclusion, given such denial of the right to be heard, would have been that the orders of the Arbitrator be revoked and the matter remitted to another Arbitrator for determination.

DECISION

Paragraphs 1, 2 and 3 of the Arbitrator’s Interim Determination dated 19 March 2010 are revoked and the following determinations are made:

“1.       The referral for assessment made on 20 November 2009 by the Registrar to           AMS Dr Assem was invalidly made.
2.      The Medical Assessment Certificate issued by the AMS Dr Assem on 3                 February 2010 is a nullity.
3.      There remains a medical dispute with respect to alleged whole person                    impairment resulting from injury received to the worker’s left upper    extremity.”

The order made by the Arbitrator in Paragraph 4 of his Interim Determination dated 19 March 2010 is confirmed.
Paragraph 5 of the Arbitrator’s Interim Determination dated 19 March 2010 is revoked and the following direction is made:
“The documents to be forwarded to the AMS are to include all documents in evidence before the Commission subject to the withdrawal by the worker of all but one forensic medical report in his case. The Registrar is to seek the worker’s election as to the single forensic medical report upon which he relies for the purposes of the referral.”

COSTS

No order as to costs of this Appeal.

Kevin O’Grady

Deputy President
6 August 2010

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEPUTY PRESIDENT KEVIN O’GRADY OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE