King Tomislav Croatian Club Ltd v Filip Vucic

DETERMINATION OF APPEAL PANEL
CITATION:	King Tomislav Croatian Club Ltd v Filip Vucic [2023] NSWPICMP 386
APPELLANT:	King Tomislav Croatian Club Ltd
RESPONDENT:	Marijan Filip Vucic
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	10 August 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workers Compensation Act 1987; application for assessment by a Medical Assessor (MA); employer argued that MA had no jurisdiction to determine whether worker suffered whole person impairment (WPI) as a result of an accepted injury the cervical spine; employer had denied liability for the cost of a cervical fusion and the dispute as to whether that surgery was reasonably necessary as a result of injury within section 60 had not been brought before or determined by the Commission; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd and Jaffarie v Quality Castings Pty Ltd considered; Held – MA had jurisdiction to assess WPI as a result of injury in accordance with section 319 of Workplace Injury Management and Workers Compensation Act 1998; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 April 2023 King Tomislav Croatian Club Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 March 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Marijan Filip Vucic (the respondent) commenced work for the appellant Club on1 September 1998. He was employed as a barman, waiter and stockist. By his statement, he recounts that he was required to perform physical work including the loading and unloading of cartons of beer in the storeroom and carrying them “up and down stairs to various locations within the Club”. It is accepted that he suffered injury to his neck, right shoulder and left leg in the course of his employment. He ceased work in January 2000 and has not worked since.
On 15 October 2007, the appellant agreed to pay the respondent compensation in respect of 5% loss of efficient use of the neck, 6% loss of efficient use of the right arm at or above the elbow, and 10% loss of efficient use of the left leg at or above the knee pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The agreed date of injury was15 November 1998. Accordingly, the respondent was compensated in accordance with the Table of Disabilities in force in respect of injuries prior to 1 January 2002.
The respondent was initially treated by Dr Manohar, a pain specialist. However, in 2011, he came under the care of Dr Petchell, a shoulder specialist, and Dr Brett Fritsch, a knee surgeon.
On 9 February 2011, Dr Fritsch performed a left anterior cruciate ligament reconstruction. Following that surgery, Dr Petchell reported that the respondent had a stable knee but continued to complain of “deep seated pain within the joint”.
On 2 December 2011, Dr Petchell performed an arthroscopic acromioplasty and rotator cuff repair of the respondent’s right shoulder. On 11 July 2013, Dr Petchell performed an acromioplasty of the respondent’s left shoulder.
On 28 August 2017, the appellant agreed to pay the respondent compensation for a further 5% loss of efficient use of the neck, a further 9% loss of efficient use of the right arm at or above the elbow and a further 15% loss of efficient use of the left leg at or above the knee.
In 2019, the respondent was referred to a neurosurgeon, Dr Renata Abraszko who diagnosed a disc lesion at C5/6.
On 2 October 2019, the appellant’s insurer disputed liability for the cost of the C5/C6 anterior cervical discectomy and fusion proposed by Dr Abraszko. It relied on the opinion of Dr Bentivoglio, a neurosurgeon, who in a report dated 20 September 2019, expressed the opinion that the need for the surgery proposed by Dr Abraszko did not result from a neck injury in the course of the respondent’s employment with the appellant.
On 19 January 2021, Dr Abraszko performed an anterior C5/C6 fusion of the respondent’s cervical spine at Liverpool Hospital.
On 22 March 2022, the respondent saw Dr Min Fee Lai, a plastic and reconstructive surgeon at the request of his solicitors. He diagnosed the respondent as suffering from the following:
“i.     Cervical spondylosis with broad-based herniation at C5/6 level and C6 radicular pain.
ii.      Lumbar spine spondylosis.
iii.     Left and right shoulder rotator cuff tears.
iv.     Left knee anterior cruciate ligament tear.”
Dr Lai expressed the opinion that these conditions resulted from the respondent’s “accident at work”.
Dr Lai expressed the opinion that the respondent suffered 34% whole person impairment (WPI) as a result of these injuries. He assessed 27% WPI for the cervical spine, 5% for the lumbar spine, 1% for the left upper extremity (shoulder), 2% for the right upper extremity (shoulder), and 1% for scarring on the TEMSKI table.
On 19 May 2022, the respondent’s solicitors served a copy of the report of Dr Lai dated 22 March 2022 on the appellant’s insurer. The letter noted that Dr Lai had assessed WPI as 34%. It continued:
“In light of Dr Lai’s assessment Mr Vucic is a ‘worker with highest needs’ and is entitled to receive weekly compensation payments at the applicable statutory rate.”
By a letter dated 23 June 2022, the appellant’s solicitor advised that it did not concede that the respondent had suffered “30% WPI or greater to establish that he is a worker of highest needs”. It proposed to have the respondent re-examined by Dr Diebold, an orthopaedic surgeon.
Dr Diebold initially saw the respondent on 21 April 2021 after which he provided reports of 21 April 2021, 15 June 2021, and 27 July 2021. Following a re-examination of the respondent, Dr Diebold, provided further reports dated 15 August 2022, 16 September 2022 and 10 November 2022.
By his reports Dr Diebold expressed the opinion that it was unlikely that the respondent’s cervical condition related to his employment and that it was entirely due to his “underlying, non-work-related factors”.
By a letter of 21 February 2023, the appellant reiterated its earlier position that it did not concede that the respondent suffered more than 30% WPI. It also referred to the earlier dispute notice of 2 October 2019 by which it denied that the C5/6 cervical fusion undertaken by Dr Abraszko resulted from an employment injury.
By these proceedings the respondent seeks an assessment by a Medical Assessor of his cervical spine, lumbar spine, both upper extremities, left lower extremity, and scarring for the purposes of establishing whether his degree of permanent impairment is more than 20% for the purposes of s 39 of the 1987 Act or more than 30% for the purposes of s 32A of the 1987 Act.
By its Response to the Application for medical assessment, the respondent accepted that the body parts enumerated in the application should be assessed but the Response also contained the following:
“1.     The respondent denied the surgery request resulting in cervical spine fusion on the basis that the treatment was not reasonably necessary or related to the applicant’s injuries as pleaded. A dispute notice was issued on 2 October 2019 to this effect, which has not been subject to review or overturned.
2.     The medical assessor ought to disregard this treatment in completing this assessment on this basis, as it cannot be said that this surgery resulted from the injuries pleaded.
3.     The respondent requests a teleconference in order to confirm the terms of referral for medical assessment.”
At a conference before a Member of the Personal Injury Commission (Commission) on 6 March 2023, a direction was issued which is as follows:
“This matter be referred to the appointed Medical Assessor on 8.3.2023 in the terms of the referral issued on 1.2.2023.
The Commission Notes:
There has been no determination of the Commission or agreement as to whether the cervical spine surgery on 19 January 2021 was reasonably necessary or as a result of the agreed injury to the cervical spine on 15.11.1998.”
On 6 March 2023, a delegate of the President issued an amended Referral for Assessment of Permanent Impairment to Medical Assessor. The Referral referred me to the body parts claimed by the respondent. The Referral stated that the medical assessment methodology was whole person impairment. It contained the following note:
“This matter is referred as a threshold dispute only – the Medical Assessor is to assess as the whole person impairment regardless of the date of injury”. The Referral also noted that in addition to the Application and the Response, the Member’s direction of 6 March 2023 was part of the brief provided to the Medical Assessor.
By his MAC dated 8 March 2023, the Medical Assessor, Dr Mark Burns, certified that the respondent suffered 38% WPI. He assessed 26% WPI of the cervical spine. He stated that it was causally related to the injury on 15 November 1998 and that the cervical surgery was reasonably necessary due to that injury. It is the Medical Assessor’s assessment of WPI in respect of the cervical spine that has given rise to this appeal.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7. The Panel noted that neither party sought a re-examination of the respondent worker by a Member of the Panel. The only issue raised on appeal related to the jurisdiction of the Medical Assessor to determine whether the post-operative condition of the cervical spine was causally related to the accepted neck injury.

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor had no jurisdiction to make a determination that there was a causal link between the respondent’s injury to the cervical spine on 15 November 1998 and the surgery performed by Dr Abraszko on 19 January 2021.
The appellant specifically referred to the direction issued by the Commission on
6 March 2023 that there had been no determination and no agreement had been reached “as to whether the cervical spine surgery on 19 January 2021 was reasonably necessary”. It referred to the fact that a s 78 Notice had been issued on 15 November 1998, before the surgery, denying that the respondent was liable for the cost of the surgery.
It followed that it was not open to the Medical Assessor to determine this issue. It was a liability issue to be determined by the Commission. The respondent continued:
“This conclusion could only be reached if the dispute raised regarding cervical spine surgery had been appropriately resolved by a judicial member of the Commission.”
The appellant referred to the reasoning of the Presidential Unit in Abou-Haidar v Consolidated Wire Pty Limited[1] and Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney.[2] In Abou-Haidar, Roche DP stated:
“An arbitrator’s task is to determine injury and other liability issues. Once that is done, the question of the extent of any whole person impairment as a result of the injury is a matter for the AMS.”
[1] [2010] NSWWCCPD 128 (Abou-Haidar).
[2] [2006] NSWWCCPD 124.
The appellant argued that the conclusion on causation of the Medical Assessor was in error as it “usurps the role of the Commission (constituted by a judicial member) in determining the legal, factual and medical considerations surrounding the dispute raised by the appellant insurer on 2 October 2019, in relation to the cervical spine fusion procedure”.
It also submitted that it was implicitly unfair for the Medical Assessor to determine this issue prior to its determination by a Member of the Commission. It argued that the Medical Assessor determined the rights of the parties to the dispute raised by the appellant “without proper hearing” and that resulted in “practical injustice”.
The appellant submitted that the determination of the Medical Assessor should be revoked. It did not criticise the reasoning by which the Member determined that the applicant’s cervical condition resulted from the injury or the methodology by which the determined WPI.
The respondent submitted that the Medical Assessor had performed the assessment of the cervical spine as directed by the Commission and that there was no error or application of incorrect criteria in the MAC.
He argued that Dr Burns did not make a determination of causation. Rather, he:
“simply determined the worker’s current condition in a number of areas including the cervical spine, without attempting to determine the issue of causation and specifically stating that any such determination was a legal decision to be made by the Personal Injury Commission or one of its Members.”
The submissions appear to assume that the Medical Assessor did not determine that cervical surgery was causally related to the appellant’s injury in 1998.

LEGISLATION

Insofar as it is relevant, s 319 of the 1998 Act is as follows:
“In this Act—'medical dispute’ means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim--
(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker's fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Section 321A of the 1998 Act which deals with the referral of medical disputes concerning permanent impairment for assessment states:
“(1) The regulations may make provision for or with respect to—
(a) the circumstances in which a medical dispute concerning permanent impairment of an injured worker is authorised, required or not permitted to be referred for assessment under this Part, and
(b) the giving of notice of a referral to the parties to the dispute.
(2) Without limiting subsection (1), the regulations may provide that a medical dispute may not be referred for assessment under this Part if the dispute concerns permanent impairment of an injured worker where liability is in issue and has not been determined by the Commission.
(3) A medical dispute concerning permanent impairment of an injured worker that is authorised or required by the regulations to be referred for assessment under this Part may be referred by a court, the Commission or the President, either of their own motion or at the request of a party to the dispute.”

Section 326 of the 1988 Act, which concerns the status of medical assessments, insofar as its relevant is as follows:
“(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned—
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
Section 32A of the 1987 Act defines a worker with high needs and a worker with highest needs as follows:
“‘worker with high needs’ means a worker whose injury has resulted in permanent impairment and—
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 20%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because a medical assessor has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note : Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 20%,
‘worker with highest needs’ means a worker whose injury has resulted in permanent impairment and—
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because a medical assessor has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note : Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%
‘worker with highest needs’ means a worker whose injury has resulted in permanent impairment and--
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because a medical assessor has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note : Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%”

FINDINGS AND REASONS

The medical dispute between the parties in this case concerns the degree of permanent impairment suffered by the respondent worker as a result of accepted employment injuries. While the injuries are said to have occurred on 15 November 1998, the pleadings and particulars suggest that they occurred over a period of time between January 1998 and January 2000.

The dispute falls within s 319(c) of the 1998 Act as it is a dispute about the degree of permanent impairment of a worker as a result of an injury. If such a dispute is validly referred for assessment, the MAC issued by the Medical Assessor is conclusively presumed to be correct in respect of the matters set out in s 326 including the degree of permanent impairment of the worker as a result of an injury.
While an appeal lies to a MAP under s 327 of the 1998 Act, the appeal is against the assessment of a medical dispute by a Medical Assessor as those terms are defined in the 1998 Act. (Panel’s italics). While this may involve the MAP in grappling with legal issues, particularly in respect of causation, it seems unlikely the legislature intended MAPs should determine issues relating to the structure and operation of the 1987 Act. These are matters for the Commission.
In this case, it was open to the appellant to obtain a determination on the issue of jurisdiction from a Member prior to the referral. Presumably, if the Member thought the panel had no jurisdiction to address the issue of the permanent impairment of the worker’s cervical spine as a result of the accepted injury he would not have referred it. If it was thought inappropriate that the issue be determined by a Medical Assessor, the Member could have stayed the assessment of permanent impairment pending determination of the issue of whether the cervical surgery was reasonably necessary as a result of injury by the Commission.
That is not to suggest that the referral of the cervical spine in this case was wrong. The panel refers to these matters merely to emphasise the respective roles of the Commission and the MAP.
There are cases where MACs have been quashed or set aside by reason of an invalid referral. See, for example, Haydar Al-Nouri v Al-Nouri Pty Ltd. [3] In that case a MAC was set aside as it was ultra vires. Arguably, the same result would follow if a referral resulted in a denial of procedural fairness. In Jopa Pty Limited t/as Tricia's Clip-n-Snip v Edenden [4] Fleming DP said:
“However, the issue of a MAC does not equate to a determination of the dispute by the Commission. There are obvious reasons why the legislature would have intended that the ultimate determination of the matter rests with an Arbitrator. There may be a number of issues in dispute between the parties which, while not medical issues, must be agreed, or determined by an Arbitrator, in order to finally resolve the matter. These may include issues of liability and associated claims for compensation by way of weekly benefits and medical expenses. Procedural fairness, the filing of evidence and compliance with the procedural requirements of the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’) may also need to be considered.”
[3] [2010] NSWWCCPD 85.
[4] [2004] NSWWCCPD 50 (11 August 2004).
Section 329 of the 1998 Act also permits a Member to refer a matter for further assessment if it is in the interests of justice to make such a referral: See Milosavljedic v Medina Property Services Pty Ltd.[5] Thus, there is ample provision in the legislation to facilitate the determination of legal issues by the Commission.
[5] [2008] NSWWCCPD 56 (11 June 2008) (Milosavljedic).
With that important reservation, it is the opinion of the Panel that the Medical Assessor did not err in assessing the medical dispute referred to him for assessment.
In respect of the applicant’s cervical spine, the Medical Assessor certified that the respondent worker fell within DRE Category IV, Table 15-5 AMA5. That resulted in an assessment of 25% WPI to which the Medical Assessor added 1% for the activities of daily living. He made no deduction for a previous injury or pre-existing condition pursuant to s 323.
The Medical Assessor clearly accepted that the respondent worker’s acknowledged injury materially contributed to his present cervical impairment. He continued:
“My final comment is that I have assessed the cervical spine as being causally related to the injury on 15 November 1998 and that the cervical spine surgery was reasonably necessary due to that injury. Whether this statement is correct or not is a legal decision, which must be made by the PIC or one of the Members.”
The appellant submits that it was not open to the Medical Assessor to make a finding that the need for neck surgery resulted from injury on 15 November 1998 as the insurer had disputed liability to pay compensation for that surgery in accordance with s 60 of the 1987 Act. It is beyond dispute that the Medical Assessor could not determine a claim for the cost of the cervical surgery pursuant to s 60. There is no statutory basis to permit him to determine such a claim. Conversely, the 1998 Act in the sections set out above clearly provide for a Medical Assessor to determine whether a worker has permanent impairment as a result of an injury and provides, subject to an appeal, that such certification is conclusively presumed to be correct. (Panel’s italics)
Plainly, in a permanent impairment dispute it is necessary for a Medical Assessor to determine whether there is a causal relationship between the worker’s injury and the condition at the time of assessment. The language of the sections of the 1998 Act set out above demands that he does so. Section 326 dictates that his certification on this issue is conclusive and binding on the Commission.
While the statutory scheme has evolved since the decision of the Court of Appeal in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[6], the reasoning in that case is instructive. At [110] Emmett JA said this (footnotes omitted):
“However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of ‘medical dispute’. Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski[2013] NSWCA 449 at [35]).”
[6] [2014] NSWCA 264 (14 August 2014) (Bindah).
The Judge continued at [118]:
“Those propositions must be rejected, for the reasons given above. That is to say, it is clear that certain matters of causation are within the exclusive jurisdiction of an approved medical specialist or the Appeal Panel. It does not follow that there is no work left for an arbitrator to do. An arbitrator will have power to determine finally any application, except to the extent, if any, that the final determination depends upon the resolution of a medical dispute, as that term is defined. The clear scheme of the Management Act is to vest in an approved medical specialist or an Appeal Panel exclusive jurisdiction to determine those issues that are within the definition of medical dispute, whether they be factual issues, issues of causation or otherwise.”
At the time Bindah was decided s 65(3) of the 1987 Act provided that the Commission “may not award permanent in compensation unless the degree of permanent impairment has been assessed by an approved medical specialist”. Section 321(4) (a) of the 1998 Act also provided that a medical dispute concerning permanent impairment could not be referred for medical assessment “where liability is in issue and has not been determined by the Commission”: see Favetti Bricklaying Pty Ltd v Benedek & Anor.[7]
[7] [2017] NSWSC 417 (24 April 2017).
These provisions were removed by the Workers Compensation Legislation amendment Bill 2008 which conferred on the Commission the right to determine but not necessarily to assess disputes concerning permanent impairment. Section 321A envisages that regulations may provide for the circumstances in which medical disputes may be referred for assessment including in circumstances where a liability dispute has not been determined by the Commission. It was not suggested that these amendments or any regulation made pursuant to the power in s 321A are relevant to the argument in this case..
Insofar as it is relevant, s 60(1) of the 1987 act is as follows:
“Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Section 60 (5) is as follows:
“The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
A determination as to whether the cost of medical treatment is reasonably necessary obviously involves considerations other than causation. While the president can refer a claim for the cost of medical treatment to a Medical Assessor for assessment, the certification of the Medical Assessor on this issue is only further evidence in the case. Ultimately the dispute must be determined by the Commission. The Medical Assessor expressly noted that this was the position. After noting that there was no determination of the issue of whether the cost of the surgery was reasonably necessary as a result of the injury, the Medical Assessor stated that “it is not my task to make this decision”.
But these proceedings do not claim the cost of the surgical treatment in 2019.They are solely concerned with permanent impairment. It was the Medical Assessor’s task to assess permanent impairment on the day of the assessment and to determine if it resulted from the work injury. As Bindah makes clear it was incumbent on the Medical Assessor to determine causation to fulfil his statutory function. Assuming that the referral was valid, his certification on this issue is binding and conclusive. Obviously, such an enquiry in this case involves a consideration of causal nexus between injury and the cervical surgery. It was not possible for the Medical Assessor to determine WPI without addressing and determining this issue.
Regrettably, that may give rise to the potential for conflicting decisions on the issue of causation between a Medical Assessor and a Member of the Commission although the scope for such conflict has been considerably reduced by the 2018 amendments. The potential for conflict was addressed, in the context of the legislation then in force, by Roche DP in Jaffarie v Quality Castings Pty Ltd.[8]
[8] [2014] NSW WCC PD 79.
The panel concludes that the Medical Assessor did not exceed his jurisdiction. For these reasons, the Appeal Panel has determined that the MAC issued on 14 March 2023 should be confirmed.

[2023] NSWPICMP 386

10 August 2023