Kendall v Woollahra Municipal Council
[2024] NSWPIC 411
•31 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kendall v Woollahra Municipal Council [2024] NSWPIC 411 |
| APPLICANT: | Gary Kendall |
| RESPONDENT: | Woollahra Municipal Council |
| MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 31 July 2024 |
| DATE OF AMENDMENT: | 20 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66; applicant wishes to accept the degree of permanent impairment assessed by respondent’s Independent Medical Examiner (IME) which is less than his claim; respondent seeks referral to Medical Assessor (MA); applicant seeks for the Commission to make a determination of the degree of permanent impairment in the same amount as the percentage found by the respondent’s IME; parties agree that following the repeal of section 65(3) the Commission has the power to determine the applicant’s permanent impairment without referral to an MA but disagree whether the Commission should exercise this power; Held – in the circumstances, the degree of permanent impairment is determined without referral to an MA; respondent to pay the applicant for lump sum compensation. |
| DETERMINATIONS MADE: | The Commission determines: 1. The respondent is to pay the applicant for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 for 31% whole person impairment in relation to the deemed date of injury of 7 February 2018 in the sum of $86,130. |
STATEMENT OF REASONS
BACKGROUND
Gary Kendall, the applicant, was employed by Woollahra Municipal Council (the respondent) as a horticulturist for 15 years. In these proceedings his claim for compensation is confined to lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act).
The Application to Resolve a Dispute (ARD) was amended as follows:
(a) the claim in respect to the left lower extremity (knee) is discontinued.
(b) Under the heading “injury details” the date of injury was amended to “22 September 2023 (deemed date- being date applicant claimed compensation pursuant to s 66 of the Workers Compensation Act 1987.)” However, after the Certificate of Determination was issued the applicant withdrew this amendment and pleaded the date of injury as 7 February 2018.
(c) The “type of injury” was amended to “disease injury”.
(d) The existing description under “injury description/cause of injury” was deleted and replaced with “the applicant sustained injury to his right upper extremity as a result of repetitive and strenuous use of the right arm while using a blower in the course of his employment.”
(e) On page 7 under the heading “permanent impairment” the date of injury is 7 February 2018 and the body part left lower extremity is deleted.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
In the preliminary conference on 24 May 2024 Mr Kendall was represented by Mr Tim Gauci, solicitor, and Ms Erica Walter, solicitor appeared for the respondent.
The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing. They made oral submissions which were sound recorded and they are summarised below.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Application to Admit Late Documents dated 22 May 2024 attaching the Reply.
Oral evidence
There was no oral evidence.
FINDINGS AND REASONS
Submissions
The applicant’s solicitor amended the ARD without objection by the respondent. He submitted that the applicant wished to accept the assessment of A/Prof Courtenay, the Independent Medical Examiner engaged by the respondent, who assessed the applicant as suffering from 31% whole person Impairment (WPI).
The applicant submitted that the Commission has power to determine the dispute in relation to permanent impairment. The respondent submitted that it accepts the Commission has the power to make a determination of permanent impairment but submits this is a case where it would be inappropriate to do so. It was submitted that the report of A/Prof Courtenay provides a diagnosis of chronic regional pain syndrome (CRPS), and the doctor goes through the criteria in his initial report of 4 December 2023 and in the report dated 6 February 2024. The respondent submits that the doctor’s reports do not appropriately deal with the Guidelines for Evaluation of Permanent Impairment Fourth Edition (the Guidelines), specifically with respect to Table 17.1 sub part 3 which requires satisfaction of certain signs being present, such as with the vasomotor category. It is submitted that because A/Prof Courtenay did not assess this sign that his diagnosis of CRPS cannot be accepted. Therefore, the respondent argues that A/Prof Courtenay’s reports cannot be given weight with regard to his assessment of WPI. It was submitted that the claim should be referred to a Medical Assessor for the assessment of permanent impairment.
I sought further submissions from the parties regarding the fact that A/Prof Courtenay sets out the methodology he has used to assess WPI which was based on shoulder upper extremity impairment (UEI), elbow UEI, wrist UEI and of the fingers to give a percentage of hand and he combined these assessments to get to his assessment of 31% WPI. I noted A/Prof Courtenay did not separately assess CRPS. The respondent submitted that A/Prof Courtenay immediately before that table with his assessment of permanent impairment refers to CRPS and so it has been taken into account in his assessment.
In reply the applicant submitted the argument that A/Prof Courtenay did not consider the vasomotor is not evident from his reports but in any event the assessment of 31% WPI was not based on an assessment of CRPS.
Relevant legislative provisions
Section 65(3) of the 1987 Act was repealed by the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act) in Schedule 2, cl 2. In Etherton v ISS Property Services Pty Ltd[1] the then President, His Honour Judge Keating stated at [105]:
“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.”
[1] [2019] NSWWCCPD 53, Etherton.
Section 322A (1A) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) also allows for a Member of the Commission to determine the degree of permanent impairment without a referral to a Medical Assessor as sub-s (3) includes reference to “(b) a determination by the Commission under Part 4.”
The position that the Commission has the power to determine the degree of permanent impairment of an injured worker is also supported by the second reading speech in relation to the Bill introducing the 2018 Amending Act as 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.”[2]
[2] Legislative Council 19 September 2018, Second Reading Speech of the Hon. David Clarke.
The respondent agrees that the Commission has to power to determine the degree of permanent impairment but argues that it should not exercise this power in this case because of the concerns it has raised about A/Prof Courtenay’s assessment of the WPI.
Determination
The applicant made his claim for lump sum compensation in the letter dated 22 September 2023 from his solicitor to the respondent’s insurer. The claim was for 53% WPI based upon assessments of Dr Bodel and Dr Kwong for the body systems of the right upper extremity, CRPS and the left lower extremity.
Dr Kwong, consultant physician and rheumatologist, assessed Mr Kendall’s permanent impairment in his report dated 25 October 2021 by using Table 17.1 of the Guidelines for CRPS, setting out the symptoms and signs meeting the criteria for CRPS. He then assessed the loss of joint motion for each individual joint arriving at a total of 51% UEI. He then assessed the sensory deficit and pain arriving at 70% UEI, which when added to the 51% equalled 85% UEI which in turn converted to 51% WPI. Dr Bodel in his report dated 23 February 2022 agreed with this assessment.
I have read, but not summarised, the balance of the medical evidence in the ARD, noting the parties did not refer to the same in their submissions.
On 17 January 2024 State Cover Mutual Limited (the insurer) responded to this claim by issuing a notice pursuant to s 78 of the 1998 Act. In that notice the insurer disputed liability for the claim because it said it was seeking clarification from A/Prof Courtenay about his opinion and the insurer advised until that clarification was provided they considered that there was not sufficient evidence to determine the claim. It is stated that they have sought this clarification from the doctor on an urgent basis and they would review their decision as soon as it is issued.
On 22 May 2024 the insurer issued a further s 78 notice[3] declining the claim for the left knee on the basis that it was an entirely different claim to that involving the right elbow injury. It noted that the left knee injury had been dealt with under a separate claim number for which the applicant had received compensation. It asserted the right elbow injury had a deemed date of injury of 7 February 2018 relating to the repetitive use of the blower at work. Nothing was stated in that dispute notice about the lump sum claim made for the right upper extremity and CRPS or that the further report from A/Prof Courtenay having been received. The only reference to A/Prof Courtenay was to his report dated 4 December 2023 which the insurer stated did not identify any relationship between the two separate injuries, being the left knee and right upper extremity.
[3] Reply p 6.
In Boga v Carpet Call (Vic) Pty Ltd t/as Carpet Call[4] I made a determination that the applicant’s entitlement to lump sum compensation was for 23% WPI in a case where both the applicant’s and respondent’s doctors had each assessed the applicant has having 23% WPI. At [65] of Boga I found it would be wasteful of costs and delay the matter if there was to be a referral to a Medical Assessor. In Mr Kendall’s case I hold similar concerns. Unfortunately, there has been some delay in issuing the decision as I became significantly unwell after the Preliminary Conference which precluded me from completing the decision at that time. Nonetheless, I find that in the situation where an applicant wishes to accept an assessment of permanent impairment made by the respondent’s independent medical assessor which is lower than the applicant’s claim that should be encouraged to save costs and delay and to further the objects of the Personal Injury Commission Act 2020 (PIC Act).
[4] [2019] NSWWCC 127 Boga.
Section 3 (c) of the PIC Act includes the object “to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.
In this matter before coming to a determination it was necessary to consider the submissions of the respondent in relation to their concerns about A/Prof Courtenay’s assessment of WPI. In the report dated 4 December 2023 the doctor sets out his examination findings about the right shoulder, elbow and wrist movements. He also assessed the movement of the parts of the hand. He sets out his history and the investigations. He confirmed that Mr Kendall has undergone 14 procedures to the right arm. The doctor does state that he agrees with the diagnosis of CRPS. A/Prof Courtenay in response to question 10 about the assessment of permanent impairment states he has made his assessment based on the Guidelines, the lack of movement and also the overall condition of his arm and in keeping with the NSW Guidelines for CRPS type 1. However, when he provides his table settling out his assessment of 31% WPI the only body part he lists is “right upper extremity” and his calculations are all based on differing parts of Table 16 to obtain UEI in relation to loss of motion. He combines these UEI assessments and converts 51% UEI to 31% WPI. At no point has he used Table 17 for CRPS.
In his second report dated 6 February 2024 in question 2 A/Prof Courtenay was specifically asked to identify the signs and symptoms experienced by Mr Kendall in accordance with Table 17.1. He states that he believes Mr Kendall does fulfil the full criteria and he then lists four points. Table 17.1 of the Guidelines in point 2 specifies that there must be reported at least one symptom in each of the four categories and under point 3 must display one sign at the time of evaluation in all of the four categories. A/Prof Courtenay does not deal with vasomotor symptoms or signs which related to temperature asymmetry and/or asymmetric skin colour changes. It is for this reason that the respondent says his assessment cannot be relied upon.
However, the Guidelines then states how the impairment is to be rated. It is stated that the Medical Assessor is to rate the extremity impairment resulting from the loss of motion of each individual joint involved but it goes further. The next bullet point is to “rate the impairment resulting from sensory deficits and pain, according to the grade that best fits the degree of amount of interference with ADL, as described in AMA 5 Table 16.10a (p482)…” The next bullet point requires the Medical Assessor to combine the extremity impairment for loss of joint motion with the impairment for pain or sensory deficit using the Combined Values Chart to obtain the final extremity impairment, which is then convert to WPI.
A/Prof Courtenay’s only assessment of permanent impairment was in his first report. He has not provided a further assessment. That assessment of 31% WPI is only based on loss of range of motion. A/Prof Courtenay has not assessed the permanent impairment Mr Kendall for CRPS because he has not added a rating for sensory deficits and pain.
Accordingly, the absence of dealing with vasomotor changes does not render his assessment of the loss of motion as inaccurate.
The assessment of Dr Kwong for loss of motion of each joint totals 51% UEI which using AMA 5 Table 16-3 converts to 31% WPI. This is the identical assessment found by A/Prof Courtenay for the total loss of range of motion of each joint.
Therefore, the situation has arisen that the applicant’s and respondent’s doctors have made the same assessment of loss of motion of 31% WPI. The applicant wishes to accept this assessment and finalize his claim for WPI notwithstanding his doctor has additionally assessed the loss of sensation and pain with the total impairment equating to 51% WPI (when the left knee is excluded).
The respondent’s only relevant dispute notice is dated 17 January 2024 disputing the claim solely on the basis they were seeking clarification from A/Prof Courtenay and advising they would review their dispute in relation to the lump sum claim when that clarification was to hand. The insurer has apparently not conducted such a review, certainly no further notice has been tendered to the Commission, the notice dated 22 May 2024 dealt with the left knee.
I find given that Dr Kwong, with Dr Bodel agreeing, and Dr Courtenay have all assessed the loss of motion of the various joints of the right upper extremity at UEI 51% which converts to 31% WPI, there is no dispute about this aspect of the permanent impairment assessment. If the applicant wishes to compromise his claim and accept that figure, rather than the higher assessment of 51% WPI, given he is legally represented, I consider I should give effect to that when I take into account the objects of the PIC Act.
Therefore, I determine that the applicant is entitled to be compensated pursuant to s 66 of the 1987 Act for 31% WPI which for the date of injury of 7 February 2018 is $86,130.
Addendum
After the original Certificate of Determination was issued by the Commission the respondent’s solicitors wrote to the Commission on 20 August 2024 raising an issue about the date of injury. The applicant’s solicitors replied on 10 September 2024. A further preliminary conference was held before me on 20 September 2024 at which time Mr Gauci appeared for the applicant, who was also present, and Ms Ulmer instructed by Ms Bell from State Cover appeared for the respondent. The applicant advised he wished to rely on the date of injury of 7 February 2018 and that the compensation payable was $86,130. The respondent agreed to this amount and course of action. Accordingly, I have amended the original Certificate of Determination. I have underlined the amendments.
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