Henderson v Reece Australia Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Henderson v Reece Australia Pty Limited [2022] NSWPIC 174
APPLICANT:	Garth Henderson
RESPONDENT:	Reece Australia Pty Limited
MEMBER:	Anthony Scarcella
DATE OF DECISION:	21 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Issues; claim for permanent impairment compensation for accepted injury to the right wrist on 7 November 2018; prior injury to the right wrist in 2009 requiring surgical procedures; applicant’s forensic medical specialist the only evidence assessing whole person impairment as a result of injury; respondent disputed the forensic medical specialist’s zero deductible proportion under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); failure to expose reasoning behind the assessment of zero deductible proportion; whether it was an appropriate case for the Member to determine the section 323 of the 1998 Act issue or whether the matter should be remitted to the President for referral to a Medical Assessor; Shankar v Ceva Logistics (Australia) Pty Limited considered but not followed; Etherton v ISS Properties Services Pty Ltd; Vitaz v Westform (NSW) Pty Ltd; Vannini v Worldwide Demolitions Pty Ltd; Asbestos Remover & Demolition Contractors Pty Ltd v Kruse; Hancock v East Coast Timbers Products Pty Ltd; Paric v John Holland (Constructions) Pty Ltd; and NSW Police Force v Hahn considered and applied; Held- it was an appropriate case for the Member to determine the permanent impairment claim; applying a common sense approach to causation, the 2009 right wrist injury was a contributing factor causing permanent impairment and that a deduction is required under section 323 of the 1998 Act; a one-tenth deduction under section 323 of the 1998 Act was not at odds with the available evidence; an assessment was difficult to determine in the absence of medical evidence properly addressing the requirements of section 323 of the 1998 Act; accordingly, the statutory deduction under section 323(2) of the 1998 Act of one-tenth was applied.
DETERMINATIONS MADE:	1. The applicant has 11% whole person impairment attributable to the accepted injury on 7 November 2018.
ORDERS MADE:	2. The applicant’s claim for weekly benefits is discontinued. 3. The respondent pay to the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987, $23,790 in respect of 11% permanent impairment assessed as a percentage of whole person impairment, attributable to the injury of 7 November 2018.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Garth Henderson, is a 60-year-old man who was employed by the respondent, Reece Australia Pty Limited (Reece) as a full-time driver.
On or about 7 November 2018, Mr Henderson alleges that, whilst strapping pipes into bundles with metal banding, he sustained an injury to his right wrist.
Mr Henderson lodged a claim for weekly benefits and medical expenses under the Workers Compensation Act 1987 (the 1987 Act) with the insurer of Reece, icare Workers Insurance (icare) and was paid until 9 October 2020.
On 12 June 2020, icare issued a dispute notice under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) advising that it had made a decision under section 43(1)(a) of the 1987 Act that it believed Mr Henderson was able to work in suitable employment as either an administrative officer at $24.05 an hour or $601.25 for 20 hours per week; or, as a project manager/coordinator at $64.39 an hour or $1,609.75 for 20 hours per week. It stated that its decision would bring Mr Henderson’s weekly payments to an end from 23 September 2020.[1]
[1] Reply at pages 1-6.
On 22 September 2020, Mr Henderson, through his lawyers, claimed permanent impairment compensation under section 66 of the 1987 Act in respect of his right upper extremity, relying on two reports by Dr Charles New, orthopaedic and spinal surgeon, who assessed a whole person impairment of 12%.[2]
[2] Application to Resolve a Dispute at pages 48-54.
Neither Reece, nor icare issued a dispute notice in respect of Mr Henderson’s permanent impairment compensation claim dated 22 September 2020.
Mr Henderson lodged an Application to Resolve a Dispute (ARD) dated 22 December 2021 in the Workers Compensation Division of the Personal Injury Commission (the Commission) claiming weekly compensation from 12 June 2020 and ongoing under sections 36, 37 and 38 of the 1987 Act and lump sum compensation under section 66 of the 1987 Act as a result of the injury sustained in the course of his employment with Reece on 7 November 2018.

ISSUES FOR DETERMINATION

At the teleconference on 9 February 2022, the parties agreed that the following issues remained in dispute:
(a) Mr Henderson’s entitlement to weekly payments of compensation within the meaning of sections 32A, 33, 35, 37 and 38 of the 1987 Act arising from his accepted right wrist injury from 10 October 2020 and ongoing, and
(b) Mr Henderson’s entitlement to lump sum permanent impairment compensation within the meaning of section 66 of the 1987 Act and, in particular, whether the matter ought to be referred to a Medical Assessor for assessment or whether I should enter an award under section 66 of the 1987 Act on the only available evidence, being the evidence of Dr New.

Matters previously notified as disputed

The issues in the dispute notice referred to above were no longer relevant for the reasons stated below.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference/arbitration by telephone on 9 March 2022. Ms Lyn Goodman of counsel appeared for Mr Henderson, instructed by Ms Marina Georges, solicitor and Mr Allen Parker of counsel appeared for Reece, instructed by Mr Christopher Michael, solicitor.
During the conciliation phase Mr Henderson discontinued his claim for weekly benefits compensation, leaving the only issue for determination being that referred to in [8(b)] above.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I 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 had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD dated 22 December 2021 and attached documents;
(b)    Reply to ARD (Reply) dated 24 January 2022 and attached documents, and
(c)    Application to Admit Late Documents (AALD) lodged by Reece dated 3 February 2022 and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Mr Garth Henderson’s evidence

In evidence there are statements by Mr Henderson dated 21 September 2020[3] and 5 November 2021.[4] I will now refer to the relevant parts of those statements.
[3] ARD at pages 1-3.
[4] ARD at pages 4-12.
Mr Henderson stated that he had undertaken a range of work in different industries in the past. In 1999, he attained a Bachelor of Science (Archaeology) from James Cook University. In 2006, he attained a Diploma of Policing from Charles Sturt University. In 2009, he attained a Bachelor of Arts (Honours) in Archaeology from the University of Sydney. In 2014, he attained a Certificate IV in Training and Education. In 2015, he attained a Traffic Control and Implement Traffic Closures Certificate.
Mr Henderson set out his employment history in detail. He had worked as an archaeologist, as a police officer, as a security guard, as a loss adjuster/insurance assessor, as a project manager, as an investigator and as a printer prior to commencing his employment with Reece.
Mr Henderson stated that, on 4 April 2009, he was involved in a motor vehicle accident and sustained injuries to his neck, left shoulder, both knees and right wrist. All those injuries, except for the right wrist injury, were soft tissue injuries that resolved with conservative treatment. In respect of his right wrist, he had sustained a right scapholunate ligament tear in the motor accident. Between 7 September 2009 and 8 December 2009, he underwent three surgical procedures to his right wrist under the care of Dr Mark Nabarro, orthopaedic surgeon. The surgical procedures included an arthroscopy, a repair of the scapholunate ligament and dorsal capsulodesis and the removal of K-wires.
Mr Henderson stated that he made a full recovery in respect of his right wrist following the three surgical procedures referred to above. He explained that his right wrist was asymptomatic in the sense that it had not caused him to complain about it to his general practitioner. He still had limitations and was cautious with the use of his right wrist to ensure that he did not aggravate the 2009 injury. The injury precluded him from work involving repetitive or forceful movement with his right hand. It precluded him from work as an archaeologist. He experienced intermittent pain in his right wrist from time to time. Such pain was manageable and did not affect his ability to work. He was able to find suitable work and managed such work prior to the injury he sustained on 7 November 2018 whilst employed by Reece.
Mr Henderson stated that, on 7 November 2018, in the course of his employment with Reece, he was strapping pipes into bundles with metal banding over two days (Thursday and Friday). At the end of his shift on the Friday, he experienced pain in his right wrist. The pain was intense enough for him to take pain relieving medication. Over the weekend, the pain in his right wrist became debilitating. He reported the injury to his manager on the following Monday and was directed to consult his doctor.
Mr Henderson stated that, on 8 November 2018, he consulted Dr Shaheen Quader, general practitioner, of Caringbah Medical & Dental Centre (CMDC) complaining of worsening pain in his right wrist. He was referred for an MRI scan of his right wrist. He was referred to a hand therapist and to Dr Nabarro. He was issued with a medical certificate certifying him fit for certain light duties. Dr Quader recommended he wear a right wrist splint during working hours.
Mr Henderson stated that, on 30 January 2019, he underwent a steroid injection into his right wrist on the recommendation of Dr Nabarro. The steroid injection relieved his right wrist pain temporarily.
Mr Henderson stated that, on 17 May 2019, he underwent an arthroscopic debridement of his right wrist by Dr Nabarro. Dr Nabarro referred him to Ms Mary Lee for hand therapy. Following surgery, the pain in his right wrist became worse and radiated into the proximal forearm. In about August 2019, he participated in one session of exercise physiology with Mr Brent Collier, which he found beneficial to some extent but did not continue with it due to the limited number of sessions approved by icare.
Mr Henderson stated that, on 8 December 2019, he consulted Dr Stuart Myers, orthopaedic surgeon, on the referral of Dr Quader for a second opinion. Dr Myers agreed with Dr Nabarro that further surgery to his right wrist was not recommended. He did not believe that there was any further suitable treatment for the injury.
Mr Henderson stated that, prior to 7 November 2018, he had a constant ache in his right wrist. Since 7 November 2018, the pain has been worse. He experiences a constant vibration and rubbing sensation combined with a feeling of a loosening of the joint. The pain in his right wrist is severe. He also experiences an aching and burning sensation with pins and needles as well as a stabbing sensation over the dorsum of his right hand that is aggravated by lifting and gripping. Since 7 November 2018, he has experienced increased weakness in his right wrist; an intermittent sharp stabbing pain in the right wrist that radiates into his forearm and down his fingers; and increased pain behind his thumb at the site of the surgery on 17 May 2019.
Mr Henderson provided a detailed list of the activities that are now affected following the injury on 7 November 2018.

The treating medical evidence

In evidence, there are Mr Henderson’s clinical records produced by CMDC.[5] The CMDC clinical records commenced with a consultation entry dated 10 April 2017 and ended with a consultation entry dated 3 September 2020. Between 10 April 2017 and 7 November 2017 there were no complaints of right wrist symptoms recorded in the CMDC clinical records.
[5] ARD at pages 111-500.
On 8 November 2018, the CMDC clinical records recorded a consultation with Dr Quader.[6] Mr Henderson complained of right wrist pain. He provided Dr Quader with a history that, in 2009, he was involved in a motor vehicle accident and sustained a right wrist injury and was treated by Dr Nabarro. Since that accident, he had not had a full range of movement in his right wrist. Dr Quader noted that Mr Henderson had been working for Reece for 18 months as a delivery person on duties that were of a repetitive nature. The duties included continuous driving for eight hours per day; lifting of goods; and repetitive tying and untying knots on the work vehicle over a period of three days. Mr Henderson had noticed that his pain had worsened over the past week. On examination, Dr Quader observed that Mr Henderson’s right wrist was swollen and tender. He also observed that the range of movement in the right wrist was grossly restricted.
[6] ARD at page 123.
Following the consultation with Dr Quader on 8 November 2018, the CMDC clinical records revealed regular attendances by Mr Henderson in respect of his right wrist injury and related symptoms.
On 8 November 2018, Dr Quader referred Mr Henderson to Dr Nabarro.[7] In the referral letter to Dr Nabarro, Dr Quader noted that, since his wrist operation in 2009, Mr Henderson has always had a limited range of movement.
[7] ARD at page 153.
On 8 November 2018, Dr Quader referred Mr Henderson to Dynamic Hand Therapy for hand therapy.[8]
[8] ARD at page 154.
On 13 November 2018, Mr Henderson underwent an X-ray of his right wrist by Dr Victor Mansberg, radiologist on the referral of Dr Quader.[9] Dr Mansberg found a metallic anchor within the lunate bone at the site of reconstructive surgery; mild degenerative changes in the distal radioulnar articulation; minor degenerative changes in the scaphotrapeziotrapezoidal (STT) articulation; no fractures; and no other bone or joint abnormality.
[9] ARD at page 282.
On 13 November 2018, Mr Henderson underwent an MRI scan of his right wrist by Dr Faisal Rashid, radiologist on the referral of Dr Quader.[10] Dr Rashid observed a past dorsal scapholunate ligament reconstruction with a possible grade 1 sprain and an irregular longitudinal intrasubstance tear of the scapholunate interosseous ligament (SLIL); the appearance at the lunate raised the possibility of ulnocarpal abutment; and a dorsal scapholunate ganglion.
[10] ARD at pages 287-288.
On 14 November 2018, Mr Henderson consulted Ms Lee of Dynamic Hand Therapy, who recommended that Mr Henderson be required to wear a soft neoprene splint whilst at work for lifting, driving and other general duties until he has consulted Dr Nabarro.[11]
[11] ARD at page 283.
On 15 January 2019, Mr Henderson consulted Dr Nabarro, who recommended, an ultrasound-guided steroid injection of the right radio-carpal.[12]
[12] ARD at page 289.
On 30 January 2019, Mr Henderson underwent a right wrist ultrasound guided steroid injection by Dr John Korber, radiologist.[13]
[13] ARD at page 91.
On 6 March 2019, Mr Henderson consulted Dr Nabarro who reported to Dr Quader that he had experienced some improvement in pain over the dorsum of his right wrist following the steroid injection five weeks earlier.[14] However, there was ongoing pain over the ulnar aspect of the right wrist. Dr Nabarro recommended that Mr Henderson continue using his splint and that if pain persisted, he may require an arthroscopic debridement and curettage and bone graft of the lunate in the right wrist.
[14] ARD at page 86.
On 2 April 2019, Mr Henderson consulted Dr Nabarro who reported to Dr Quader that he continued to complain of ongoing pain over the ulnar aspect of the right wrist that was exacerbated by ulnar deviation when lifting objects and chopping vegetables.[15] Examination of the right wrist was unchanged. Dr Nabarro recommended an arthroscopic debridement of the right wrist with curettage and bone graft of the lunate, removal of the anchor and repair of the triangular fibrocartilage complex (TFCC), if required.
[15] ARD at page 84.
On 17 May 2019, Mr Henderson underwent an arthroscopic debridement of his right wrist by Dr Nabarro. On operation, Dr Nabarro found extensive scar tissue and synovitis throughout the right wrist joint; grade 4 degenerative changes on the lunate; an extensive degenerative tear of the TFCC, which was not repairable; the membranous part of the scapholunate ligament was not intact; no diastasis was present; and Ethibond sutures were visible but the anchor was buried in bone and its removal was not attempted due to the risk of damaging the intact part of the scapholunate ligament.[16]
[16] ARD at page 83.
On 27 May 2019, Mr Henderson consulted Dr Nabarro and reported back to Dr Quader that, 10 days following arthroscopic surgery, Mr Henderson reported minimal pain in his right wrist.[17] The incisions were clean and dry. Digital range of motion was full and without pain. There was no neurovascular deficit. He was to be fitted with a splint and was to commence active range of motion exercises.
[17] ARD at page 82.
On 24 June 2019, Mr Henderson consulted Dr Nabarro and reported back to Dr Quader that it was now five weeks following arthroscopic surgery and that motion and strengthening exercises at home had resulted in the development of pain in his right wrist.[18] The pain radiated from the proximal forearm and was slowly settling. It was aggravated by lifting a cup of coffee and using a knife to eat. The wearing of the splint provided some relief. X-rays demonstrated no scapholunate diastasis.
[18] ARD at page 80.
On 23 September 2019, Dr Quader referred Mr Henderson to Mr Collier for strengthening exercises.[19]
[19] ARD at page 209.
On 2 December 2019, Dr Quader referred Mr Henderson to Dr Myers for a second opinion in respect of his right scapholunate ligament injury.[20]
[20] ARD at page 216.
On 9 December 2019, Mr Henderson consulted Dr Myers. Dr Myers reported to Dr Quader that he had taken a history of injury to the right wrist in a motor vehicle accident in 2009 that resulted in a repair of a lunate ligament tear with a bone anchor inserted into the lunate.[21] The right wrist was never completely normal after that and Mr Henderson had intermittent pain but was able to return to heavy manual work without too much trouble. Mr Henderson sustained a further injury to his right wrist at work in November 2018 after he had been performing a lot of manual work over a period of a few days and developed increasing predominantly ulnar sided wrist pain. Dr Myers noted that Mr Henderson had undergone a cortisone injection into his right wrist that provided temporary relief. He then underwent an arthroscopic debridement of the right wrist on 17 May 2019. There was a grade 4 change in the articular surface of the lunate and an extensive degenerative tear of the TFCC, which was debrided.
[21] ARD at pages 484-485.
Dr Myers opined that Mr Henderson had undergone a right scapholunate ligament repair that had held up extremely well. The major cause of his ongoing pain was ulnar impaction. An ulnar shortening osteotomy might improve his ulnar wrist pain but carried with it a small risk of exacerbating his radial wrist pain. The decision to perform an ulnar shortening osteotomy would be based on what parts of the lunate were arthritic at the time of the arthroscopy. Dr Myers opined that he did not believe that there was anything that needed to be done, at present, for the radial side of his wrist.

On 4 June 2020, Mr Henderson consulted Dr Nabarro who reported to Dr Quader that it had been 10 months since his last review and Mr Henderson was complaining of pain over the dorsal aspect of his right wrist, especially with dorsi flexion.[22] He noticed the lump over the dorsal aspect of the wrist a week ago and was wearing a splint for most activities. In view of the ongoing symptoms, Dr Nabarro recommended an X-ray and ultrasound of the right wrist.
[22] ARD at page 332.
On 13 June 2020, Mr Henderson underwent a right hand ultrasound and a right wrist X-ray by Dr Suresh De Silva, radiologist on the referral of Dr Nabarro.[23] Dr De Silva opined that the right hand ultrasound demonstrated a potential ganglion related to the extensor digitorum tendon of the middle finger. He opined that the right wrist X-ray demonstrated a radiopaque anchor projected over the lunate bone at the site of previous surgery without any fracture. He observed some mild degeneration in the articulation between the scaphoid and the adjacent trapezius bone.
[23] ARD at page 334.
On 17 June 2020, Mr Henderson consulted Dr Nabarro, who reported back to Dr Quader that Mr Henderson was complaining of ongoing pain over the dorsal aspect of his right wrist and had been wearing a splint most of the time.[24] Examination of the right wrist was unchanged. X-rays demonstrated a 3mm gap between the scaphoid and lunate. Treatment options were discussed and Dr Nabarro recommended that Mr Henderson continue with his splint as required and could return for review if his pain did not settle.
[24] ARD at page 79.
Dr Nabarro provided a report to Mr Henderson’s lawyers dated 17 September 2021.[25] Dr Nabarro reported that Mr Henderson first consulted him on 19 August 2009 after he had sustained an injury to his right wrist when he was involved in a motor accident on the way home from work on 4 April 2009. The accident occurred when Mr Henderson swerved to avoid a car which had turned in front of him causing his vehicle to strike a telegraph pole at about 40km/h. He was gripping his steering wheel at the time of the impact and injured his right wrist.
[25] ARD at pages 55-56.
Dr Nabarro reported that Mr Henderson sustained a tear of the scapholunate ligament in his right wrist and underwent arthroscopic debridement of the right wrist in September 2009. He made a good recovery and was able to return to work.
Dr Nabarro reported that Mr Henderson consulted him on 15 January 2019 complaining of increasing pain over the dorsal aspect of his right wrist. He took a history that Mr Henderson had been involved in lifting heavy equipment on and off his truck and that, in about November 2018, he had been strapping pipes into bundles with metal banding over a two-day period and the pain in his wrist increased significantly.
Dr Nabarro reported that, on examination of the right wrist, he observed tenderness dorsally over the scapholunate ligament and triangular fibrocartilage. An ulno-carpal impaction test elicited painful crepitus. Dr Nabarro referred to the right wrist X-rays and the MRI scan of the right wrist, the findings of which have already been referred to above. He confirmed that Mr Henderson underwent an ultrasound guided steroid injection of his right radio-carpal joint, which only provided temporary relief.
Dr Nabarro reported that, on 17 May 2019, Mr Henderson underwent an arthroscopic debridement of his right wrist. There was extensive scar tissue and synovitis throughout. There were grade 4 degenerative changes present on the proximal aspect of the lunate and an extensive degenerative tear of the TFCC, which was not repairable. There was a defect in the membranous portion of the scapholunate ligament but the dorsal aspect was intact. The TFCC and synovitis were debrided. Following surgery, Mr Henderson’s pain improved but he complained of a lack of flexion of his wrist which limited his function.
Dr Nabarro reported that Mr Henderson complained of a constant ache over the dorsum of his right wrist and pain over the volar/ulnar aspect and that he had been wearing a splint to prevent his wrist from hyperextending whilst driving.
In respect of prognosis, Dr Nabarro reported that Mr Henderson would continue to experience pain in his right wrist and at some stage, may require further surgery in the form of a partial or total wrist fusion and ulnar shortening osteotomy.
In respect of causation, Dr Nabarro opined that following injury in 2009, Mr Henderson regained good function and then re-injured his wrist whilst working for Reece. He opined that Mr Henderson’s employment with Reece was a substantial contributing factor to the development of his ulnar sided right wrist pain.

The forensic medical evidence

Dr Charles New

On 18 August 2020, Mr Henderson consulted Dr Charles New, orthopaedic and spinal surgeon at the request of his lawyers. In evidence, there are two reports by Dr New dated 24 August 2020.[26] I will now refer to the relevant parts of those reports.
[26] ARD at pages 48-54.
Dr New took a history from Mr Henderson that included the following:
“Mr Henderson states that in November 2018 he had been employed by Reece Plumbing for approximately 18 months and had no pathology with his wrist during that time.
At the time he was strapping pipes into bundles with metal banding. He was doing this task on Thursday and Friday. On the weekend after performing these tasks he began suffering from debilitating wrist pain. He notified his employer when returning to work on the Monday.
Prior to this, in 2009, he was involved in a motor vehicle accident where he sustained an injury to his right wrist. He tore ligaments to the wrist and sustained soft tissue damage. He underwent surgery by Dr Mark Nabarro.
After the 2009 injury he made a full recovery by his account and was asymptomatic.
Due to an increase in pain whilst working for Reece Plumbing he was referred back to Dr Nabarro who performed an arthroscopic debridement of the right wrist on 17^th May 2019. The operation report confirmed extensive scar tissue and synovitis throughout the wrist joint and grade 4 degenerative changes about the TFCC which was not repairable.
He continues to have debilitating pain and is currently on workers’ compensation leave.”[27]
[27] ARD at page 49.
Under the heading “Pain Disability Assessment”,[28] Dr New reported that Mr Henderson had significant pain in his right wrist, which he described as an aching burning sensation with pins and needles and a stabbing quality over the dorsum of his hand, that was exacerbated by lifting and gripping.
[28] ARD at page 50.
On examination, Dr New observed a surgical scar over Mr Henderson’s right dorsum that was consistent with previous surgery. There was some minor swelling over the dorsum of the right hand with point tenderness over the scaphoid and the lunate, as well as pain in the distal ulnar. Dr New observed marked restriction of extension to 20°; flexion to 40°; ulnar deviation to 20°; and radial deviation to 10°. There was acceptable opposition and strength with his right thumb and there was a loss of a small amount of supination and pronation in the hand. Dr New noted that Mr Henderson was compliant and cooperative throughout the taking of the history and throughout the examination. He was of the view that there was no suggestion of over-action or exaggeration.
Dr New reviewed the investigations made available to him, namely, the right wrist X-ray and right wrist MRI scans dated 13 November 2018 and the ultrasound guided steroid injection into the right wrist dated 30 January 2019.
Dr New opined that the imaging and examination confirmed that Mr Henderson had multiple cysts in his lunate with significant loss of cartilage over the lunate and degenerative changes about the TFCC. There were significant degenerative changes in the distal radioulnar joint and there had been a dorsal scapholunate ligament reconstruction. There was also a dorsal scapholunate ganglion.
Dr New opined that Mr Henderson’s long-term prognosis in respect of his right wrist was poor. He opined that the natural history of such a condition was that it would become progressively worse and that the consideration of a wrist fusion may come to pass in the fullness of time.
Dr New opined that Mr Henderson was not fit for his pre-accident work and many general activities.
In the shorter of Dr New’s two reports,[29] he provided an assessment of Mr Henderson’s whole person impairment in respect of the injury sustained on 7 November 2018. In respect of his assessment of Mr Henderson’s right upper extremity (right wrist), Dr New assessed whole person impairment at 10%. He made no deduction under section 323 of the 1998 Act for pre-existing injury, condition and abnormality. In respect of his assessment of Mr Henderson’s skin (scarring - TEMSKI), Dr New assessed whole person impairment at 2%. Dr New concluded that Mr Henderson’s total whole person impairment was 12%.
[29] ARD at pages 53-54.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I summarise the parties’ submissions below.

Reece’s submissions

I will now refer to Reece’s principal submissions in relation to this issue.
The issue of quantum under section 66 of the 1987 Act was raised by Dr New. In respect of the history of injury, Dr New noted that, in 2009, Mr Henderson sustained an injury to his right wrist in a motor vehicle accident, where he tore ligaments to his right wrist and sustained soft tissue damage requiring surgery by Dr Nabarro. The prior injury to the right wrist is not in dispute.
Dr New noted that, due to an increase in pain whilst working for Reece, Mr Henderson was referred back to Dr Nabarro, who performed an arthroscopic debridement of the right wrist. The operation report confirmed extensive scar tissue and synovitis throughout the wrist joint and grade 4 degenerative changes about the TFCC, which was not repairable. Such findings were confirmed by Dr Nabarro in his report dated 17 September 2021.
The present claim under section 66 of the 1987 Act is in respect of the same wrist that was injured in 2009. Dr New assessed Mr Henderson’s whole person impairment and made no deduction under section 323 of the 1998 Act for what was clearly a pre-existing injury, condition or abnormality in the right wrist. Dr New provided no explanation as to why he decided to make no deduction under section 323 of the 1998 Act. On that basis, Dr New’s assessment cannot be accepted and requires a determination. Such a determination should be made by a Medical Assessor. The matter ought to be referred to a Medical Assessor.
The authority for referring such a matter to a Medical Assessor is found in the decision of Acting Deputy President Parker in Shankar v Ceva Logistics (Australia) Pty Limited,[30] (Shankar) where he referred to the decision of Deputy President Snell in Guzman v Trade West Pty Limited[31] (Guzman). This matter is in the same situation as Shankar and Guzman. Dr New’s report cannot be accepted. The Member must either make an assessment of the whole person impairment or refer the matter to a Medical Assessor for assessment.
[30] Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18.
[31] Guzman v Trade West Pty Limited [2017] NSWWCCPD 44.

Mr Henderson’s submissions

I will now refer to Mr Henderson’s principal submissions in relation to this issue.
Shankar can be distinguished from this case. In Shankar, there was a zero assessment for a particular body part and it was that body part that the then Senior Arbitrator was not prepared to refer to what was then known as an Approved Medical Specialist. There was a dispute between the parties as defined by section 319 of the 1998 Act and Acting Deputy President Parker stated that it followed that the degree of impairment was to be assessed by an Approved Medical Specialist. The Acting Deputy President stated that it was not open to the Senior Arbitrator to assume that the assessment for the left upper limb was 0%. Shankar is not authority for the proposition that a matter must be referred to a Medical Assessor, rather than a Member making the assessment.
Dr New did not make a deduction under section 323 of the 1998 Act although, he knew about the previous condition. It is a matter that a Member of the Commission can assess rather than referring the matter to a Medical Assessor.
Mr Henderson sustained a right wrist injury in 2009 and underwent surgery to it in the same year. After recovering from the surgery, he had been in employment all the time and was able to use his wrist despite some difficulty with it. It did not affect him in terms of his everyday life or in his employment.
The clinical records of the treating practitioners did not disclose Mr Henderson having complained about ongoing problems with his right wrist. At best, the 10% statutory deduction may apply and if that is the case, Mr Henderson still exceeds the 10% threshold entitling him to lump sum compensation under section 66 of the 1987 Act.
Apart from Dr New, there was no other medical evidence assessing Mr Henderson’s whole person impairment in respect of his right wrist injury. Mr Henderson raised the issue at the telephone conference. There is no reason why a Member of the Commission could not determine the matter in accordance with Dr New’s assessment and deduct 10% under section 323 of the 1998 Act, which would result in a whole person impairment of 10.8%.

Reece’s submissions in reply

I will now refer to Reece’s submissions in reply.
In response to the submission related to the absence of complaints of ongoing problems with the right wrist in the clinical records, one must consider Dr Nabarro’s findings on operation that there were grade 4 degenerative changes present on the proximal aspect of the lunate in circumstances where Mr Henderson had only been employed by Reece for 18 months prior to the subject injury. The significant degenerative changes could not all have been related to his work with Reece.
Despite a Member’s experience in this jurisdiction, the issue as to whether the grade 4 degenerative changes amount to a 10% deduction or more is best assessed by a Medical Assessor. Therefore, this is clearly a matter that should be referred to a Medical Assessor to determine because of Dr New’s failure to explain the reasons for not making a deduction under section 323 of the 1998 Act.

Mr Henderson’s further submissions

Section 323 of the 1998 Act says that, if it is too difficult to determine what the deduction ought to be, then the deduction should be 10%. One also must take into account whether Mr Henderson was symptomatic prior to the subject injury. It does not really matter what was found at surgery. On Mr Henderson’s evidence and the evidence of the clinical records, there was no evidence that he was symptomatic prior to the injury he sustained whilst employed by Reece. So, in those circumstances, the deduction ought to be the statutory 10%.

FINDINGS AND REASONS

Mr Henderson’s entitlement to lump sum permanent impairment compensation

The legislation and legal principles

Section 66(1) of the 1987 Act relevantly provides that 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 the section.
The assessment of whole person impairment is undertaken in accordance with the reissued 4th edition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines), which took effect with the commencement of the Commission on 1 March 2021.[32] The Guidelines adopt the 5^th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the Guidelines, the Guidelines prevail.[33]
[32] The reissued Guidelines are issued pursuant to section 376 of the 1998 Act.
[33] Clause 1.1 of the Guidelines.
Section 65(3) of the 1987 Act formerly provided that:
“If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist”.
Since the repeal of section 65(3) of the 1987 Act as and from 1 January 2019, a Member of the Commission has power to determine the extent of permanent impairment. This proposition is supported by President Keating in Etherton v ISS Properties Services Pty Ltd (Etherton),[34] where the President stated:
“As can be seen, the relevant alteration is that prior to 1 January 2019 the Commission was prohibited, by virtue of the terms of s 65(3) of the 1987 Act, from awarding permanent impairment compensation absent an assessment by an Approved Medical Specialist. That prohibition was removed and the Commission was then empowered to determine such matters itself.”[35]
President Keating also stated:
“Mr Etherton relies upon Guzman in support of Ground Two, in that in Guzman the Arbitrator exceeded jurisdiction by resolving a medical dispute. It is to be noted that Guzman was decided prior to the 2018 amending Act which commenced on 1 January 2019.”
[34] Etherton v ISS Properties Services Pty Ltd [2019] NSWWCCPD 53.
[35] Etherton v ISS Properties Services Pty Ltd [2019] NSWWCCPD 53 at [105].
There are sections in the 1998 Act that confirm that a Commission Member has the power to assess the degree of permanent impairment resulting from an injury. Section 322A(1A) of the 1998 Act relevantly provides that an assessment of the degree of permanent impairment includes an assessment made by the Commission in the course of the determination of a dispute that is not the subject of a referral to a Medical Assessor. Section 322A(3)(b) of the 1998 Act refers to a determination by the Commission about the degree of permanent impairment of a worker. Section 352(7) refers to a decision made by a non-presidential member about the degree of permanent impairment resulting from an injury.
In Shankar, the claim involved the cervical spine, the right upper extremity and the left upper extremity and the totality of the impairments exceeded the threshold. Because of the effect of section 322(3) of the 1998 Act, impairments from more than one injury arising out of the same incident are to be assessed together. In such circumstances, there is one claim made for permanent impairment compensation comprising of the assessment of the individual body parts.
In Shankar, the employer submitted that because the specialists qualified by the parties each assessed the worker as having 0% impairment of the left upper extremity, there was no medical dispute within the meaning of section 319 of the 1998 Act and therefore, there was no jurisdiction to remit the matter to the Registrar for referral to an Approved Medical Specialist (now a Medical Assessor). Amongst other things, Acting Deputy President Parker found that section 319 of the 1998 Act is engaged when the claim is refused by the person on whom it is made by reason of the topics referred to in sub-paragraphs (a)-(g) of the section. The dispute notice under section 78 of the 1998 Act, disputed that Mr Shankar was entitled to permanent impairment compensation for injury resulting from the nature and conditions of his employment.
Acting Deputy President Parker found that the Arbitrator had resolved the issue concerning whether Mr Shankar had sustained injury from the nature and conditions of his employment but had no jurisdiction to assess the degree of permanent impairment. Such issue could only be resolved by referral to an Approved Medical Specialist (now a Medical Assessor). That is, the 2018 amendment to repeal section 65(3) of the 1987 Act did not authorise the Commission to make an assessment of whole person impairment.[36]
[36] Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18 at [55].

Reece relied on the decision of Acting Deputy President Parker in Shankar but did not submit that a Member of the Commission could not make an assessment of the degree of whole person impairment or that the assessment of the degree of whole person impairment remains in the province of a Medical Assessor. The decision in Shankar in respect of the effect of the repeal of section 65(3) of the 1987 Act is inconsistent with President Keating’s decision in Etherton, wherein the President highlighted that Guzman, on which Acting Deputy President Parker relied in Shankar, was decided prior to the 2018 amending Act repealing section 65(3). I decline to follow the decision in Shankar. Further, I cannot see how Reece’s reliance on Shankar supports the submissions it ultimately made at the arbitration in the factual circumstances of this case.
Section 319(d) of the 1998 Act defines a medical dispute between the claimant and the person on whom a claim is made about whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality and the extent of that proportion.
Section 323 of the 1998 Act relevantly provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
Section 323(3) of the 1998 Act provides meaning to the reference of “available evidence” in section 323(2).
A deduction under section 323 of the 1998 Act is required if a proportion of the permanent impairment is due to previous injury or due to pre-existing condition or abnormality: Vitaz v Westform (NSW) Pty Ltd (Vitaz)[37]; Ryder v Sundance Bakehouse (Ryder)[38]; Cole v Wenaline Pty Ltd (Cole).[39]
[37] Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254.
[38] Ryder v Sundance Bakehouse [2015] NSWSC 526 at [54].
[39] Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [29]-[30].
In Vannini v Worldwide Demolitions Pty Ltd (Vannini)[40] Gleeson JA stated that an Appeal Panel, when considering the reasoning of an Approved Medical Specialist on the question of causation under section 323, was required to determine “whether any proportion of the impairment was due to any previous injury, or pre-existing condition or abnormality” and if so, “what was that proportion”.[41]
[40] Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324.
[41] Vannini v Worldwide Demolitions Pty Ltd at NSWCA 324 [90].
The onus of proof in establishing the section 323 defence lies with the employer. In Asbestos Remover & Demolition Contractors Pty Ltd v Kruse (Kruse)[42], a Medical Panel concluded that the onus of proof was on the employer to establish a non-compensable cause in industrial deafness cases.[43] Reference was made by that Medical Panel to the observations of Barwick CJ in Sadler v Commissioner for Railways[44] and Garling J in Pereira v Siemens Ltd.[45]
[42] Asbestos Remover & Demolition Contractors Pty Ltd v Kruse [2017] NSWWCCMA 51.
[43] Asbestos Remover & Demolition Contractors Pty Ltd v Kruse [2017] NSWWCCMA 51 at [52]-[54].
[44] Sadler v Commissioner for Railways (1969) 123 CLR 216.
[45] Pereira v Siemens Ltd [2015] NSWSC 1133.
In Matthew Hall Pty Ltd v Smart (Smart),^[46] Giles JA accepted the employer’s concession that it bore the onus in establishing a deduction under section 68A (the statutory predecessor to section 323 of the 1998 Act).[47]
[46] Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [32], Mason P and Powell JA agreeing.
[47] Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [37].

Consideration and findings

On 22 September 2020, Mr Henderson, through his lawyers, claimed permanent impairment compensation under section 66 of the 1987 Act in respect of his right upper extremity (right wrist) and the skin (scarring – TEMSKI), relying on two reports by Dr New, who assessed a whole person impairment of 12%.[48]
[48] ARD at pages 48-54.
Neither Reece, nor icare issued a dispute notice in respect of Mr Henderson’s permanent impairment compensation claim dated 22 September 2020. Icare did not rely on a forensic medical specialist arranged by it in answer to the claim for permanent impairment compensation under section 66 of the 1987 Act. The only evidence before me in this regard was that of Dr New.
I accept Mr Henderson as a witness of truth, who did his best to provide a history of his injuries, his treatment and his complaints of symptoms to his various treating doctors and the forensic medical specialists. The histories he provided of injury, treatment and complaints of symptoms were, in the main, consistent.
I reject Reece’s submission that the authority for referring this matter to a Medical Assessor is found in the decision of Acting Deputy President Parker in Shankar supported by Guzman for the reasons stated above.
I reject Reece’s submission that Dr New’s evidence cannot be accepted because “the matter is in the same situation as Shankar and Guzman” for the reasons stated above.
I agree with Mr Henderson’s submission that Shankar is not authority for the proposition that a matter must be referred to a Medical Assessor, rather than a Member making the assessment for the reasons stated above.
Section 65(3) of the 1987 Act was repealed by the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act) in Schedule 2, clause 2. This schedule commenced on the date of proclamation which was 1 January 2019. Savings and transitional provisions were added by the 2018 amending Act and appear in the 1987 Act in Schedule 6, Part 19L. Clause 2 provides that an amendment made by the 2018 amending Act extends to an injury received before the commencement of the amendment, and a claim for compensation made before the commencement of the amendment.
In the second reading speech in relation to the Bill relating to the 2018 amending Act it was stated:
“Schedule 2 to the Bill provides for the Workers Compensation Commission to award permanent impairment compensation without referral to an approved medical specialist.
This amendment recognises that, in certain circumstances, the requirement to refer all permanent impairment disputes to an approved medical specialist was unduly delaying proceedings in the Workers Compensation Commission. The amendment will allow arbitrators to make determinations of permanent impairment by removing section 65(3) from the 1987 Act, which requires all permanent impairment disputes to be referred to an approved medical specialist prior to the Workers Compensation Commission awarding permanent impairment compensation.”^[49]
[49] Legislative Council 19 September 2018, Second Reading Speech of the Hon. David Clarke.
I am satisfied that I have the jurisdiction to determine the matter rather than remit the matter to the President for referral to a Medical Assessor for assessment in an appropriate case.
The only evidence before me in respect of the degree of permanent impairment was that of Dr New. Members have determined the lump sum compensation payable, without a referral to a Medical Assessor, in situations where the worker has an assessment and the insurer has no assessment;[50] where both parties’ forensic medical specialists have assessed the same whole person impairment;[51] or where the only issue was the extent of any deduction under section 323 of the 1998 Act.[52] In such cases, it has been found that a determination can be made without a referral to a Medical Assessor. In the first two cases, there was no “assessment” of the permanent impairment but a “determination” of the permanent impairment by accepting the uncontradicted evidence of the permanent impairment. In the third case scenario, a determination of the section 323 deduction was made.
[50] Thompson v Bernipave Pty Ltd [2020] NSWWSS 127.
[51] Boga v Carpet Call (Vic) Pty Ltd t/as Carpet Call [2019] NSWWCC 127.
[52] Townsend v Sebastian Consulting & Technical Services Pty Ltd [2020] NSWWCC 153.
In its submissions, Reece did not dispute Dr New’s assessment of the degree of permanent impairment in respect of the right upper extremity (right wrist) and the skin (scarring – TEMSKI). Its submissions at the arbitration focussed on Dr New’s failure to expose the reasoning behind not making a deduction under section 323 of the 1998 Act and that, accordingly, the matter ought to be remitted to the President for referral to a Medical Assessor.
Mr Henderson did not submit that there was no dispute within the meaning of section 319(d) of the 1998 Act. Mr Henderson submitted that, although Dr New was aware of the 2009 condition of the right wrist, he did not make a deduction under section 323 of the 1998 Act and that it was a matter that a Member of the Commission could assess rather than referring it to a Medical Assessor.
Mr Henderson’s unchallenged evidence was that he made a full recovery in respect of his right wrist following the three surgical procedures in 2009. However, to his credit, in his later evidentiary statement, he explained that his right wrist was asymptomatic in the sense that it had not caused him to complain about it to his general practitioner. He still had limitations and was cautious with the use of his right wrist to ensure that he did not aggravate the 2009 injury. The injury precluded him from work involving repetitive or forceful movement with his right hand. It precluded him from work as an archaeologist. He experienced intermittent pain in his right wrist from time to time. Such pain was manageable and did not affect his ability to work in suitable employment. He was able to find suitable work and managed such work prior to the injury he sustained on 7 November 2018 whilst employed by Reece.
Contrary to his counsel’s submission that Mr Henderson had been working consistently since recovering from the 2009 surgical procedures, his own evidence disclosed a gap in his employment between October 2012 (when he ceased work as a guillotine operator because of his 2009 right wrist injury) and the commencement of his employment with Reece in 2016.[53]
[53] ARD at page 5 at [19]-[20].
I reject Mr Henderson’s submission that one must take into account whether he was symptomatic prior to the subject injury and that, on his evidence and the evidence in the clinical records, there was no evidence that he was symptomatic prior to the injury he sustained whilst employed by Reece. Therefore, there ought to be no deduction under section 323 of the 1998 Act. Mr Henderson’s evidence referred to at [111] above is inconsistent with the submission. Whilst Mr Henderson did not complain of right wrist symptoms prior to his injury on 7 November 2018 to his general practitioner, on his own evidence, it cannot be accepted that he was asymptomatic at the time of the subject injury.
In any event, a deduction pursuant to section 323 of the 1998 Act can be made despite the fact that the worker is asymptomatic prior to injury. In Vitaz, Basten JA stated:[54]
“42. The appeal to the Appeal Panel did not expressly identify an erroneous failure to give reasons. Rather, the submissions on the appeal, which appear to set out the grounds of challenge, complained that there can be no deduction under s 323, as a matter of law, in the absence of a pre-existing physical impairment. It was further submitted, by reference to the opinion of three medical commentators in a local publication:
‘If a worker develops permanent pain and symptoms due to work consistent with spondylosis in the neck region, that condition might be assessed at DRE II. Although the spondylosis is likely to have been degenerative, if there were no symptoms in the period prior to the work-related complaint, then there was no rateable impairment at that time. So nothing would be subtracted from the current impairment.’
43. That opinion contained a legal assumption which is inconsistent with the approach adopted by this Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]-[32] and, more recently, by Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]). The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury.”
[54] Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [42]-[43], McColl JA and Handley AJA agreeing.
Basten JA referred to the reasoning of other Court of Appeal decisions including the decision in Smart.[55] In Smart Giles JA stated:
“The same, in my view, must be said as to the current s 68A(1) [the statutory predecessor to section 323 of the 1998 Act]. It does not matter that the pre-existing condition was asymptomatic, and if the loss is to some extent due to the pre-existing condition there must be deduction of the deductible proportion for that loss. But it is necessary that the pre-existing condition was a contributing factor causing the loss. And, of course, it is necessary that there was a pre-existing condition.”
[55] Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 (Smart) at [32], Mason P and Powell JA agreeing.
On 17 May 2019, Mr Henderson underwent an arthroscopic debridement of his right wrist by Dr Nabarro. On operation, Dr Nabarro relevantly found, amongst other things, extensive scar tissue and synovitis throughout the right wrist joint; grade 4 degenerative changes on the lunate; and an extensive degenerative tear of the TFCC, which was not repairable.
On 9 December 2019, Dr Myers took a history of injury to the right wrist in 2009 that resulted in a repair of the lunate ligament tear with a bone anchor inserted into the lunate. Mr Henderson reported to Dr Myers that his right wrist was never completely normal thereafter and that he suffered intermittent pain but was able to return to heavy manual work without too much trouble.
On 17 September 2021, Dr Nabarro reported that in 2009 Mr Henderson sustained a tear of the scapholunate ligament in his right wrist, underwent arthroscopic debridement of the right wrist in September 2009 and made a good recovery and was able to return to work.
Dr New accepted Mr Henderson’s account that he had made a full recovery after the 2009 injury and was asymptomatic prior to injuring his right wrist again in the employment of Reece. This was inconsistent with Mr Henderson’s later evidentiary statement referred to in [111] above. As Dr New failed to expose his reasoning behind a 0% deduction under section 323 of the 1998 Act, one can only infer that it was based on the account provided to him at the consultation that Mr Henderson had made a full recovery after 2009 injury and was asymptomatic prior to injuring his right wrist again in the employment of Reece.
The case law makes it clear that the Evidence Act 1995 does not apply to proceedings in the Commission. Hancock v East Coast Timbers Products Pty Ltd[56] is authority for the proposition that in a non-evidence-based jurisdiction such as the Commission, the question of acceptability of expert evidence will not be one of admissibility but one of weight. Further, it is well established in the authorities such as Paric v John Holland (Constructions) Pty Ltd,[57] Makita (Australia) Pty Ltd v Sprowles[58] (Makita); South Western Sydney Area Health Service v Edmonds[59] (Edmonds); and Hancock; that there must be a “fair climate” on which a doctor can base an opinion. Exact correspondence between the history in a medical report and what is proved in evidence is not necessary for the validity of the medical opinion. All that is required both as a matter of principle and common sense is that there be real correspondence between the two. The relevant principles from Makita and onward are a guide to the weight to be given to experts’ reports.
[56] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock).
[57] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
[58] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705.
[59] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421.
In NSW Police Force v Hahn,[60] DP King SC observed that the line of authority commencing with Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd[61] makes it clear that Heydon J in Makita should be regarded as having enunciated a counsel of perfection and that doctors, in expressing an opinion, rely on more than histories, the results of investigations and their training and expertise. Often, they use their experience and medical intuition as well, and when they arrive at an opinion it cannot always be elaborated and explained at length. Whilst it is accepted that doctors do not need to provide elaborate or detailed explanations for their conclusions, more than a mere “ipse dixit” (an assertion without proof) is required and the latter seems to be precisely what Dr New has done in this matter in respect of his consideration of any section 323 deduction. Dr New’s opinion of a 0% deduction under section 323 of the 1998 Act lacks a proper analysis. I do not accept Dr New’s opinion in this regard.
[60] NSW Police Force v Hahn [2017] NSWWCCPD 51 at [60].
[61] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157.
Accordingly, I am satisfied that this is an appropriate case for me to determine the section 323 issue for the reasons stated above, rather than remit the matter to the President for referral to a Medical Assessor for assessment. Further, an important object of the Personal Injury Commission Act 2020 is to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.[62] Referring the matter to a Medical Assessor would not achieve that object. Unnecessary costs and delays would be incurred in referring the matter to a Medical Assessor.
[62] Personal Injury Commission Act 2020, section 3(c).
Applying a commonsense approach to causation on the available medical evidence and Mr Henderson’s own evidence, I find that Mr Henderson’s 2009 right wrist injury is a contributing factor causing permanent impairment and that a deduction is required under section 323 of the 1998 Act. The next matter to be determined is the extent of the deduction.
Section 323(3) of the 1998 Act provides meaning to the reference in section 323(2) of “available evidence”. I do not accept Dr New’s opinion that the deduction under section 323 of the 1998 Act is 0% for the reasons stated above. The statutory one-tenth deduction is not at odds with the available evidence.
There is no convincing medical evidence commenting on the degree of Mr Henderson’s 2009 right wrist injury and resultant condition prior to the subject injury on 7 November 2018. In these circumstances, the assessment is difficult to determine in the absence of medical evidence properly addressing the requirements of section 323 of the 1998 Act. Accordingly, I apply the statutory deduction under section 323(2) of one-tenth to the assessment of the right upper extremity (right wrist). The skin assessment is due to the right wrist arthroscopy on 7 May 2019. Accordingly, the statutory one-tenth deduction is also applied to that body system assessment.
Mr Henderson has a 12% whole person impairment in respect of the right upper extremity (right wrist) and the skin (scarring - TEMSKI). Applying the statutory one-tenth deduction to the assessed 10% whole person impairment in respect of the right upper extremity (the deductible proportion is 1%) results in a whole person impairment of 9%. Applying the statutory one-tenth deduction to the assessed 2% whole person impairment in respect of the skin (the deductible proportion is 0.2%) results in a whole person impairment of 1.8%, which is then rounded up to 2% whole person impairment. Using the AMA 5 Combined Values Chart to combine the assessments of 9% and 2% results in a total whole person impairment of 11%.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2022] NSWPIC 174

21 April 2022