Klement v Bull ‘N' Bush Nurseries Pty Ltd

[2024] NSWSC 466

Supreme Court

New South Wales

Medium Neutral Citation:

Klement v Bull ‘N’ Bush Nurseries Pty Ltd [2024] NSWSC 466

Hearing dates:

11 April 2024

Date of orders:

26 April 2024

Decision date:

26 April 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1)   The Appeal Panel’s decision be set aside;

(2)   The matter be remitted to another appeal panel to be considered according to law; and

(3)   Unless the parties approach to be heard within 14 days with short written submissions, the Court’s order will be that Bull ‘n’ Bush Nurseries Pty Ltd bear Mr Klement’s costs of the proceedings, as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – judicial review – application to set aside appeal panel’s decision – dispute about the subject of the medical dispute referred for assessment – panel mistaken in its understanding of plaintiff's claim and resulting medical dispute – panel acted on a significant misunderstanding of the statutory scheme – injury to wrists and shoulder part of medical dispute correctly referred for assessment – appeal panel's decision set aside

ADMINISTRATIVE LAW – judicial review – whether the appeal panel made relevant errors – appeal panel failed to consider documents attached to application which crystallized the medical dispute – claim for injury to upper left extremity not confined to elbow injury – relevant error established – appeal panel's decision set aside

Legislation Cited:

Workers Compensation Act 1987 (NSW), ss 65, 66

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 78, 289, 289A, 293, 319, 321A, 322, 322A, 324, 325, 327

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Bindah v Carter Hold Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Shankar v Ceba Logistics (Australia) Pty Ltd [2021] NSWPIC PD 18
Skates v Hills Industries Ltd [2021] NSWCA 142

Category:

Principal judgment

Parties:

Rostislav Klement (Plaintiff)
Bull ‘N’ Bush Nurseries Pty Ltd (First Defendant)
Personal Injury Commission (Second Defendant)

Representation:

Counsel:
B G McManamey (Plaintiff)
P Stockley (First Defendant)

Solicitors:
Law Partners Compensation Lawyers (Plaintiff)
Stephen Lee Legal (First Defendant)

File Number(s):

2023/343988

Publication restriction:

Nil

JUDGMENT

1. In 2019, Mr Klement was injured while performing work at a nursery, where he had commenced employment in 2015. He sought lump sum compensation under s 66 of the Workers Compensation Act1987 (NSW), claimed to have been 21% whole person impairment, WPI, in relation to injuries to his left upper extremity, cervical spine and scarring. Liability was disputed and a medical dispute also arose about his injuries and resulting WPI.

2. Mr Klement was assessed by Assessor Anderson, who concluded that he had suffered 23% WPI. The insurer’s appeal against that assessment, advanced on grounds specified in s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), application of incorrect criteria and demonstrable error, succeeded. The Panel concluded that Mr Klement had suffered only 11 % WPI.

3. This judgment deals with Mr Klement’s application for judicial review of the Appeal Panel’s decision, his case being that the Panel fell into jurisdictional error, as well as error of law.

4. There was no issue that the Panel erred in its understanding of Mr Klement’s claim. But that this had resulted in error warranting the making of the orders which he sought, setting aside the Panel’s decision and remitting the appeal to be dealt with by another panel, was still disputed.

Issues

5. What is in issue concerns the subject of the medical dispute which arose to be assessed: s 319 of the 1998 Act. That determines the jurisdiction of the Commission in relation to a claim for lump sum compensation under s 66: Skates v Hills Industries Ltd [2021] NSWCA 142 at [27]. What such a dispute concerns requires a consideration of the injury details provided by the applicant.

6. Also in issue is whether the Panel made relevant errors because:

1. it failed properly to consider the documents which accompanied Mr Klement’s application;

2. it concluded that any injury to Mr Klement’s left shoulder was irrelevant to the parties’ medical dispute;

3. it took the view that Mr Klement’s statement was irrelevant to the question of the acceptance or denial of his claim, the correct question being whether the claim had encompassed injury to his left shoulder and wrist; and

4. it concluded that the medical dispute was limited to the injuries the insurer had accepted.

7. The parties’ submissions were largely directed to Mr Klement’s shoulder injury, but the cases advanced also concerned conclusions which the assessor arrived at about injury to his wrist.

What was decided in Skates?

8. There was no issue that the Panel was bound by what was decided in Skates. That it did not correctly understand what was there decided is apparent.

9. What arose to be considered in Skates turned on how an error involved in the omission from the referral for assessment of a left wrist injury, which was part of the parties’ medical dispute, should have been dealt with. What was there held included that:

1. the jurisdiction of the Commission in relation to a claim for lump sum compensation under s 66 of the Workers Compensation Act is not at large, but depends on the claim made with respect to a specific injury which occurred in the course of employment. The form for an application to resolve a dispute about such an injury requires the date of the injury to be identified, a description of the injury to be given, as well as a description of how the injury occurred: at [27];

2. an applicant must also identify the “body parts/systems claimed”, using “correct terminology depending on date of injury”: at [28];

3. medical reports accompanying that application referred to specific injuries Mr Skates had suffered, to which the insurer had admitted liability and as to which a dispute arose about the precise extent of the injury: at [29];

4. this material defined the proper scope of the referral: at [30];

5. by error, an injury to the left wrist was omitted in the referral which the Registrar made: at [30];

6. resolution of the medical dispute depended on an assessment made in accordance with applicable Workers Compensation Guidelines and AMA Guides, Chapter 2 of which deals with the ‘upper extremity’. Both required the extent of the injured person’s impairment to be assessed by reference to individual body parts and body systems: at [33]-[35];

7. a “medical dispute” is defined in s 319 of the 1998 Act by reference to the existence of a “dispute between a claimant and the person on whom a claim is made” about related subject matters, including the degree of permanent impairment as a result of an injury. As a consequence of the ordinary operation of the statutory regime, in most cases, “the dispute will have been identified by a written exchange of competing claims”: at [44]; and

8. a medical dispute is crystallised by what is attached to an application. The medical dispute is concerned with the parties’ different claims about the degree of permanent impairment which has been suffered as a result of the injury. The point of referral for medical assessment is to resolve that dispute: at [46].

10. The error into which the Appeal Panel fell in this case was different.

11. In Mr Klement’s case there was no error in the injuries referred for assessment. They were all part of the parties’ medical dispute and accordingly, were assessed by the assessor in accordance with the requirements of the statutory scheme.

12. What was referred included all the injuries the subject of Mr Klement’s claim and s 66 application, despite the insurer’s objection to referral of any injury to Mr Klement’s shoulder for assessment. The Panel not only misunderstood this, but erred about what documents had accompanied his application, which established that the medical dispute did encompass injury to his shoulder.

13. That was why both Dr Lai and Dr Doig, the medical specialists who had both examined Mr Klement before the assessment, had considered whether injury to his shoulder had resulted in any impairment. They both concluded that no impairment had resulted.

14. The assessor came to a different view. But that was not a basis on which either incorrect criteria or demonstrable error could be established. Because of the errors into which the Panel fell, it did not consider this.

The medical dispute referred for assessment

15. There is no issue that there was a medical dispute between the parties. Medical disputes are defined in s 319 to include “the degree of permanent impairment of the worker as a result of an injury”. What was in dispute depended both on the applicant’s claim and the response to that claim.

16. In Mr Klement’s 10 March claim letter he claimed he had suffered 21% WPI, relying on Dr Lai’s report, including as the result of injury to his left upper extremity. There is no issue that under the applicable guideline this term includes the shoulder, elbow and wrist. Accompanying documents referred to investigation into and treatment of the symptoms of the injuries Mr Klement had suffered, including to his shoulder.

17. Despite this, on this application what the medical dispute between the parties included remained in issue. That also turned on the insurer’s response to the claim, which also referred to injury to his shoulder.

18. The attached supporting documents were the medical reports of Dr Lai, Dr Bonev and Dr Thomas, an ultrasound of Mr Klement’s elbow, sensory nerve conduction tests, an operation report, WorkCover certificates of capacity and clinical notes.

19. The insurer’s June 2021 s 78 notice advised Mr Klement that his entitlement to lump sum compensation was disputed. Reasons were there given. His injury was there described to be “lateral epicondylitis, left elbow; radiculopathy, cervical region; sprain of shoulder joint; lesion of ulnar nerve, unspecified upper limb.”

20. In the reasons the insurer gave for its decision that Mr Klement was not eligible for compensation because he had not suffered more than 10% WPI, reference was made to Dr Doig’s findings on examination of Mr Klement and his two reports, but not to Dr Lai’s report. It was noted that Dr Doig had examined his shoulder, but he found that Mr Klement then had no shoulder restrictions. The result of Dr Doig’s assessment of the impairments which he did find, was 10% WPI.

21. That it was impairment to Mr Klement’s shoulder, not that he had suffered an injury, which the insurer was then disputing, is consistent with Dr Doig’s report. Dr Doig there referred to an MRI scan of Mr Klement’s shoulder, suggestive of sub-acromial bursitis with a possible frozen component. But on examination he found no restriction of Mr Klement’s shoulder, with respect to active range of motion arcs. That resulting in his conclusion that Mr Klement had suffered no compensable impairment to his shoulder.

22. A dispute about a claim cannot go to the Commission until a claim is made and disputed: ss 289 and 289A. Mr Klement had made such a claim, which the insurer had rejected. The Act specifies how disputes are to be dealt with, depending on their nature, including medical disputes.

23. Mr Klement’s application to resolve a dispute provided an injury description:

“At the time of the injury, the Applicant was employed by the Respondent as a Nursery Assistant, where he commenced employment in approximately 2015.

Throughout the course of his employment from commencement to cessation, the Applicant was required to perform duties of a heavy, repetitive and strenuous nature which consisted of lifting items weighing 5kg and 70kg above and below shoulder height for approximately 37.5 hours per week.

As a result of the nature and conditions of his employment, the Applicant sustained injuries to his left upper extremity and cervical spine. Necessary surgery has also resulted in scarring.”

24. This application was also accompanied by supporting documents, which were there listed: Mr Klement’s statement, the letter of claim, medical reports of Dr Thomas, Dr Bonev, Dr Lai, various clinical records, WorkCover NSW Certificates of Capacity and an ultrasound of his left elbow. They too established that Mr Klement’s application was concerned with the various injuries he had suffered to his upper extremity, including to his shoulder.

25. In his statement Mr Klement explained, in short, his medical history and how he developed injuries to his neck, left shoulder and left elbow in 2019 and his subsequent symptomology. That extended into his left forearm, palm and fingers. He also explained treatment he had received, including to his neck and shoulder, the scarring and pain he still suffered, and their impact on his life.

26. The insurer’s November 2021 reply to application to resolve dispute indicated:

“The respondent consents to the applicant proceeding to a Medical Assessor confined to an assessment if impairment in relation to:

1. cervical spine

2. left elbow/ulnar nerve injury

the respondent objects to any referral to a Medical Assessor for any other body parts, including the left shoulder.”

27. Despite this response, the medical dispute which was referred for assessment, after consultation with the parties, was not so confined. The injuries referred for assessment were “left Upper Extremity, Cervical Spine, Scarring (TEMSKI)”. It was those injuries which had to be assessed.

28. On the case here advanced by Mr Klement, which was not disputed, before this referral was made the Commission had given the parties an opportunity to address its terms, which the insurer did not take up. Nor did the insurer take any other steps, as it could have, to pursue a dispute about liability for Mr Klement’s claimed shoulder injury. It has still not taken such steps.

29. The result was that the referral was not limited in the way for which the insurer had earlier contended, that is, by excluding from the assessment injury to Mr Klement’s shoulder or wrist. Attached to the referral was Mr Klement’s application and the there attached documents, as well as the insurer’s reply and its attached documents.

30. What the assessor was then required to do, by adherence to the applicable guidelines, was to assess the degree of Mr Klement’s permanent impairment resulting from the referred injuries, assessing together both impairments which had resulted from the same injury and those which had resulted from more than one injury arising out of the same incident. That is because only one such assessment is permitted: ss 322 and 322A of the 1998 Act.

31. That required the assessor not only to take into account the documents on which the parties had relied and the submissions which they advanced on the assessment, but also the results of the assessor’s examination of Mr Klement: s 324.

32. The results of the assessment were then contained in the certificate which the assessor issued, which also explained why he had concluded that Mr Klement had in total, suffered 23% WPI. That included the result of injuries to his left shoulder and wrist, for reasons which he explained.

What the medical assessor concluded

33. The assessor correctly noted what had been referred for assessment, as s 325 required, as well as the accompanying documents he had to consider, and gave the required reasons for the conclusions which he had arrived at, including the facts on which his assessment was based.

34. He explained the history Mr Klement had given at his examination, as well as his then present symptoms and his social activities. He explained his findings on physical examination, including of his cervical spine, shoulder, elbow and wrist and he explained the details of investigations which had earlier been pursued, including MRI scans of his shoulder and cervical spine.

35. The assessor’s conclusion was that Mr Klement had suffered 23% WPI, having explained his findings about the reduced range of motion of his major joints of the left quarter, except his digits. He provided tables to explain his findings in respect of shoulder, elbow and wrist impairments, as well as Mr Klement’s combined upper extremity impairment. His conclusion was that Mr Klement had suffered 7% cervical spine WPI and 17% left upper extremity WPI, that totalling 23% WPI, given their combined table values.

36. In his final comments, the assessor explained:

“As previously mentioned, I cannot find anywhere in the clinical file where any of the other assessing specialists have looked at the shoulders or elbows. As already advised, no other feature has been identified which would account for dysfunction at those joints other than his occupation at the Bull ‘n’ Bush Nursery.

My ultimate whole person impairment is closest to that of Specialist Plastic Surgeon, Dr Min Fee Lai, who ultimately gives 21% WPI. Nevertheless, I was able to demonstrate, radiculopathy, although there is continuing dysfunction in the cervical spine. I believe 0% for scarring is more appropriate.

My assessment of elbow movement resulting in impairment is the same as Dr Lai’s, although again there is significant reduction of movement of the left shoulder and wrist.

Specialist Orthopaedic Surgeon, Dr Graeme Doig in his two reports of 13/05/21 and 02/06/21 has a very much lesser whole person impairment of 10%. He does, however base part of this on reduced ulnar function. As already mentioned, I was unable to demonstrate any significant motor dysfunction. Despite the nerve conduction studies, the clinical assessment clearly demonstrated sensory dysfunction of the left ulnar nerve.”

37. This overlooked the explanations which both Dr Lai and Dr Doig had given in their reports about their findings on examining Mr Klement, which had resulted in their conclusions that he then had 0% impairment to his left shoulder.

The parties’ cases on appeal

38. The grounds of appeal the insurer pursued were incorrect criteria and demonstrable error: s 327(3). The insurer’s appeal submissions asserted that Mr Klement’s s 66 claim was confined to Dr Lai’s opinion that his WPI was 21%, which it had resisted on the basis of Dr Doig’s assessment that the impairment had only been 10%. It also relied on its reply to Mr Klement’s application, when it had objected to any referral for assessment of any body parts other than the spine and left elbow/ulnar nerve injury.

39. The result of the assessor’s approach was argued to have been demonstrable error, neither Dr Lai nor Dr Doig having found any impairment to Mr Klement’s left shoulder or wrist. It was argued that the result of its reply had been to limit Mr Klement’s claim for permanent impairment to his spine and left elbow/ulnar nerve injury, even though the referral to the assessor had not been so confined. No authority for that contention was cited.

40. It was also contended that s 321A(2) required the Commission to make a determination in relation to liability, before a medical dispute was referred for assessment. In fact, the section provided:

321A Referral of medical dispute concerning permanent impairment

(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.

41. No such regulations have been made.

42. Reliance was placed on Skate to support the submission that the dispute did not concern Mr Klement’s shoulder, the insurer contending that had been crystallised by the parties’ correspondence in the way for which it contended. In the result the assessor had erred in considering impairment resulting from injury to his shoulder or wrist.

43. That was disputed, Mr Klement submitting that his claim had included all of his upper extremity injury, that he had suffered injury to his shoulder being supported by his statement, his medical history of examination and treatment for such injury, including by Dr Thomas, and that injury also being evidenced by the reports and records he relied on, as well as Dr Lai’s examination of his thumbs, fingers, wrists and shoulder.

44. He contended that this had been appreciated by the insurer, given the injuries it had described in its s 78 notice, where it did not dispute his claimed injuries. It rather relied on Dr Doig’s examination of his shoulder and wrist, which had not established resulting impairment.

45. It was submitted that the insurer’s objection to referral of his shoulder for assessment of impairment accorded with its appreciation that this injury was encompassed by his claim in respect of his upper extremity injury. Under the then statutory scheme its approach could not preclude referral of the entire medical dispute for assessment. That there had finally been no objection to the referral, which included the upper extremity injury claim, accorded with this, s 321A no longer precluding such a referral for assessment before issues of liability had been determined, that requirement having been removed by amendment to s 293 in 2018. It now provides:

293 Medical assessment

(1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the President may (subject to the regulations under section 321A (Referral of medical dispute concerning permanent impairment)) refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.

(2) (Repealed)

(3) The President may not refer for assessment—

(a) (Repealed)

(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).

46. To that point, the insurer had not pursued any issue about liability. It still has not.

How the Appeal Panel erred

47. Section 65 of the Workers Compensation Act requires that if a worker receives more than one injury arising out of the same incident, those injuries must together be treated as one injury. Further, only one claim can be made for permanent impairment compensation in respect of the permanent impairment that results from an injury: s 66(1A).

48. It was thus not open to Mr Klement to delay seeking compensation for injury to his shoulder, despite Dr Lai not having found on examination that he had suffered any resulting impairment. That explains his pursuit of all injuries he had suffered, even though Dr Lai had found some had not resulted in impairment.

49. It follows that Mr Klement was entitled to pursue, as he did by his claim and later application, all of the injuries which he claimed he had suffered as the result of his heavy work at the nursery, including the injury to his shoulder for which he had received treatment. All those injuries had to be assessed together in accordance with the requirements of the 1998 Act and applicable guidelines, with any dispute about liability no longer providing an impediment to such an assessment being undertaken.

50. The assessment certificate which resulted from the assessor’s consideration of the parties’ medical dispute was conclusively presumed to be correct as to the degree of Mr Klement’s permanent impairment as the result of his injuries before a Court, or the Commission: s 326. Still the insurer’s appeal was referred by the President’s delegate to the Appeal Panel, which then had to consider the cases which the parties advanced about what the medical dispute actually concerned and whether the assessor had gone beyond it: s 327(4).

51. The Panel refused the application to re-examine Mr Klement and said in its reasons that it had before it all the documents sent to the medical assessor. But it is apparent from its reasons that it failed to consider relevant documents which the assessor had considered, which had been attached to Mr Klement’s claim, as well as to his application and the referral. They thus also arose to be considered on the appeal.

52. After referring to its obligation to limit its review to the grounds of appeal advanced and its obligation to give reasons, the Panel turned to explain the detailed and “thoughtful statement of reasons” which it considered that the assessor had given for the conclusions he arrived at. It then explained the parties’ submissions, before turning to its discussion of the issues it had to decide.

53. The Panel referred to Bindah v Carter Hold Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [22], misquoting what was there said, as well as what was decided in Skate at first instance and on appeal. It quoted from Leeming JA’s reasons at [48], [49] and [50] and from McCallum JA’s reasons, as her Honour then was, at [82].

54. The Panel observed that Mr Klement’s case threw up the same issue as in Skate, except that it considered that the referral in his case had failed to confine the assessment of his left upper extremity to the elbow, which the employer claimed had been intended. The Panel did not observe that this was disputed.

55. There is no issue that the Panel wrongly concluded that the submission advanced for Mr Klement, that his 10 March claim had attached the report of Dr Thomas, was mistaken. It appears from its reasons that the Panel failed to consider this report and other attached documents, which supported Mr Klement’s claim for injury to his upper left extremity not being confined to his elbow, but a part of the medical dispute which had to be assessed.

56. That involved relevant error.

57. The Panel did accept that Dr Thomas provided evidence of an injury to the left shoulder, but concluded that this injury had not been claimed by Mr Klement in his claim letter. That was also wrong. The letter having claimed injury to the upper extremity of which, under the applicable guidelines, the shoulder was a part and the accompanying documents evidencing as they did that he had suffered an injury to his shoulder, for which he had received treatment.

58. The Panel was thus plainly mistaken in its understanding of what Mr Klement’s claim had advanced. In a passage in Skates at [46], not referred to by the Panel, it was what was attached to his application, which included Mr Klement’s claim letter and the documents attached to it as well as his statement and the documents attached to the insurer’s reply, which had crystallised the parties’ medical dispute.

59. Dr Thomas’ report, and other reports and records which Mr Klement had relied on to advance his claim, supported his statement about the shoulder injury he had suffered. That explains not only Dr Lai and Dr Doig’s consideration of whether Mr Klement had suffered any resulting impairment to his shoulder, but also the unconfined referral of all his claimed injuries to his upper extremity for assessment, despite the insurer’s objection, as well as the assessor’s consideration of all that had been so referred.

60. Contrary to the Panel’s view, Dr Lai’s report did not establish that Mr Klement was only claiming compensation for injury to his elbow. It rather established that when he was examined no impairment to his shoulder was found and, therefore, that that injury formed no part of the 21% WPI it was concluded he had suffered.

61. The Panel did note Dr Doig’s observations about Mr Klement’s shoulder, wrist, fingers and thumb, which he had found on his examination were not impaired, with the result being his conclusion that Mr Klement had suffered only 10% WPI for his upper extremity impairment, but still it did not accept that had been part of his claim or the medical dispute. If it had not been a part of the claim, there would of course obviously have been no reason for Dr Doig to consider such injuries.

62. The Panel was correct in observing that Dr Doig had only found impairment to Mr Klement’s left elbow, while the insurer’s s 78 notice had referred not only to the elbow, but also to the cervical region, sprain of his shoulder joint and “ulnar nerve, unspecified upper limb”.

63. Still, it considered that while that was a reference to Mr Klement’s allegations of injury, that could not result in the inference that liability for the shoulder had thereby been accepted. The contention that liability had been accepted was thus rejected. But that was not what the assessment of the parties’ medical dispute depended on under the statutory scheme.

64. The Panel also concluded that Mr Klement’s statement was irrelevant to the acceptance or denial of his claim. That is also plainly wrong, given that statement was part of the basis on which Mr Klement had pursued his application, it being one of the accompanying documents.

65. The Panel also concluded that the submission advanced for Mr Klement, that the insurer’s objection to referral of the left shoulder for assessment, only made sense if it had understood that part of the claimed injury to be “disingenuous”. It found that the insurer’s purpose “was more probably to prevent matters that had not been included in the dispute going to the Medical Assessor”. It also considered that the referral of the entirety of the left upper extremity for assessment depended on the insurer having accepted that the left shoulder and wrist had been injured.

66. That was also incorrect because the Act no longer required any dispute about liability to be resolved, before a medical dispute was referred for assessment. Consistently with this, despite having objected to the shoulder injury being referred for assessment, the insurer took no steps to challenge the referral of the injury to the entire upper limb for assessment, or to dispute liability for the shoulder injury.

67. The parties’ medical dispute having been referred as it was despite the insurer’s earlier objection, it was apparent that the assessor had done as the Act required. That is, by undertaking an assessment of all that had been referred, the insurer having no right to veto a referral of any part of a medical dispute for assessment.

68. The Panel then dealt with arguments advanced about Shankar v Ceba Logistics (Australia) Pty Ltd [2021] NSWPIC PD 18, which it is unnecessary to deal with. It also declined an application “to regularise” the situation it considered had arisen.

69. It thus upheld the insurer’s appeal and issued a new certificate, where it curiously dealt with both Mr Klement’s cervical and left upper extremity injuries. But it confined his WPI to 11%, no account having been taken of the injuries to the wrist and shoulder which the assessor had assessed, despite the Panel not having found any error in the conclusions arrived at from the assessment of those injuries.

70. It is evident that, in so concluding, the Panel acted on a significant misunderstanding of the statutory scheme.

71. Before the 2018 amendments on which Mr Klement relied, s 293(3)(a) precluded the Registrar from referring for assessment “medical dispute[s] concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission”.

72. That limitation was removed by the amendments, with the result that the insurer, even if it had not accepted liability for the injury, could not prevent the Registrar’s referral of the entire medical dispute for assessment. Nor could it prevent the assessment of any part of that dispute. Not having that right, it could not successfully appeal the assessor’s certificate, he having undertaken the assessment which the statutory scheme required, given the medical dispute which had been referred for assessment.

73. The fact that neither Dr Lai nor Dr Doig had concluded that Mr Klement’s shoulder injury had resulted in an impairment, could not confine the medical dispute. The assessor was not bound by those conclusions. He had to make his own assessment, having regard to their reports and the other material which he had to consider because of the way the claim had been advanced and resisted, based on opinions which he formed, having undertaken the examination of Mr Klement which he explained.

74. This statutory scheme accepts that injuries can improve or worsen over time and so an assessor must base his conclusions on his own findings and opinions, formed at the time of the assessment, while taking into account what earlier examinations have established.

75. The Panel did not find any error in the conclusions the assessor had reached about the shoulder and wrist impairments which he explained, that not having been a part of the insurer’s case and so the appeal should have been dismissed.

76. It follows that because of the case which the insurer did advance, and the Panel’s mistaken understanding of what the medical dispute had encompassed and what the statutory scheme actually required, it erred in the conclusions which it reached. They were simply not open.

Can the orders sought still be refused?

77. In these proceedings the insurer advanced written and oral submissions to establish that despite the Panel’s errors, the orders Mr Klement sought could be refused. That was because, in short:

1. Dr Lai’s opinion was an essential ingredient in Mr Klement’s claim, accompanying it as s 65 required;

2. The three components which led to Dr Lai’s conclusion that he had suffered 21% WPI were the left upper extremity injury which turned on impairment Dr Lai found Mr Klement had suffered to his elbow, assessed at a total 4% WPI, the impairment to his cervical spine, assessed at 15%, and his scarring, assessed at 1%;

3. The material attached to Mr Klement’s claim articulated no other WPI claim;

4. Dr Doig assessed only 10% WPI on which the insurer relied in its s 78 notice, that articulating the dispute which attracted the Commission’s jurisdiction and which was referred for assessment;

5. The assessor thus did err in considering impairment of Mr Klement’s shoulder and wrist, that in reality never having been the subject of any previous impairment claim;

6. The Panel was thus correct in its conclusion that the assessment went beyond the subject matter of the parties’ medical dispute, that establishing demonstrable error, with the result that it had acted within its jurisdiction;

7. The Panel’s mistakes and inaccuracies, including in relation to what accompanied the claim, did not affect its reasoning, nor constitute an error of law or meet the threshold of materiality: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29];

8. The Panel’s consideration of whether the claim of injury to the shoulder was required “at least in part”, in response to Mr Klement’s case, which had relied on Shankar;

9. The Panel did not depart from what was decided in Skates at [46], where it was concluded that the dispute was crystallised by the correspondence attached to the application, in this case by Dr Lai’s report; and

10. There was no jurisdictional error involved in the views it had reached about the shoulder injury.

78. Orally, it was argued that despite what was decided in Skates, the scope of the referral was confined by the opinions which Dr Lai had reached, the resulting claim being 21% WPI, with no impairment of the shoulder or wrist.

79. Further, it was argued that the insurer could not have understood from Mr Klement’s claim, despite the consideration Dr Lai had given to his shoulder injury and references in other of the documents which comprised his claim to symptoms of injury to his shoulder, which had resulted in various treatment, that Mr Klement was making any claim in respect of impairment to his shoulder.

80. The real dispute between the parties was only ever about Mr Klement’s cervical spine. The result was that any errors which the Panel had made were not material ones.

81. That was disputed, given all of the errors into which the Panel fell, as I have already explained. I am well satisfied that the insurer’s case cannot be accepted, given all those errors, which I am satisfied were material.

82. Mr Klement’s claim for injury to his upper extremity encompassed the injuries to all the body parts he explained in his statement he had suffered and for which the documents he relied on established he had been treated for. That was why Dr Lai and Dr Doig considered whether he had suffered any impairment to his shoulder, as did the insurer, when responding to his claim and application as it did.

83. That was also why the referral of the parties’ medical dispute was not confined in the way for which the insurer had contended it ought to be, with the result that the entire medical dispute was referred for assessment, without further objection by the insurer. It was not open to the Panel to ignore this.

84. The applicable guidelines required the assessor to clinically assess Mr Klement in order to resolve all that was in issue about the medical dispute which had been referred. This included all of the claimed injuries to Mr Klement’s various body parts. The assessor’s examination in September 2022 established that impairment to the shoulder and wrist had by that time materialised, he having undertaken the same type of examinations Dr Lai and Dr Doig had undertaken over a year earlier.

85. The assessor’s conclusions were not confined by the views Dr Lai or Dr Doig had reached when they examined Mr Klement. Both any improvement or deterioration in the injuries he had earlier suffered arose to be considered by the assessor. He had to arrive at his own conclusions about the dispute which had been crystallised by Mr Klement’s application, the documents which accompanied it, the insurer’s response, and the documents which accompanied it.

86. As I have already explained, I am satisfied that the Panel not only misunderstood what the dispute concerned, given its error about the documents which accompanied the claim, but also misunderstood aspects of the statutory scheme which it wrongly took into account in arriving at its incorrect conclusion that the shoulder injury was not a part of the parties’ medical dispute.

87. The insurer’s objection to that aspect of the parties’ medical dispute being referred for assessment could not exclude referral of any part of the medical dispute and so what the insurer sought was correctly rejected by the President’s delegate.

88. The result was that the entirety of Mr Klement’s claim, which included all the injuries he had suffered to his upper extremity, which were dealt with in the reports and records which finally accompanied his application, including the explanation he gave in his statement, correctly accompanied the referral. On assessment he also gave a similar history to the one he eventually gave the assessor. Having considered all that arose, he explained, in the reasons he gave for his conclusions, as he was obliged to do by the statutory scheme, the results of the examinations which he had undertaken and took into account, in arriving at his conclusions about the Mr Klement’s WPI.

89. In the result, even though reference had been made in Mr Klement’s claim letter to the 21% WPI which Dr Lai had identified, that did not preclude the assessor from reaching the different conclusions which he finally arrived at, about the parties’ medical dispute.

90. In all those circumstances I am satisfied that the insurer’s case cannot be accepted. The Panel’s errors were material and accordingly, the orders Mr Klement sought by must be made.

Costs

91. The usual order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event. In this case that is an order that Bull ‘n’ Bush Nurseries Pty Ltd bear Mr Klement’s costs as agreed or assessed.

92. Unless the parties approach with short written submissions within 14 days, that will be the Court’s order.

Orders

93. For these reasons I now order that:

1. The Appeal Panel’s decision be set aside;

2. The matter be remitted to another appeal panel to be considered according to law; and

3. Unless the parties approach to be heard within 14 days with short written submissions, the Court’s order will be that Bull ‘n’ Bush Nurseries Pty Ltd bear Mr Klement’s costs of the proceedings, as agreed or assessed.

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Decision last updated: 26 April 2024