Klement v Bull "N" Bush Nurseries Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Klement v Bull "N" Bush Nurseries Pty Ltd [2023] NSWPIC 101
APPLICANT:	Rostislav Klement
RESPONDENT:	Bull ’N’ Bush Nurseries Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	13 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; application to appeal from decision of Medical Assessor (MA); whether a Medical Assessment Certificate could include an assessment of a body system which no Independent Medical Examiner (IME) assessed as having a rateable impairment in circumstances where the referral was for “left upper extremity” as a whole notwithstanding respondent placing left shoulder injury in issue; the applicant’s IME did not assess any impairment for the shoulder, nor did the respondent’s; the matter was referred to a MA who, as part of assessing the left upper extremity as a whole, assessed a rateable impairment to the left shoulder; Held – where a body system has been assessed by the applicant’s own IME as having a 0% impairment, that body system is not the subject of a “medical dispute” as that term is defined in sections 321 and 322(2); Skates v Hills Industries Limited followed; matter remitted to the President of the Personal Injury Commission for referral back to the MA to carry out an assessment without including any assessment of the left shoulder.
determinations made:	1. Pursuant to s 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998, the matter is referred for further assessment by Medical Assessor Anderson to determine the degree of permanent impairment to the applicant in relation to the following: Date of injury: 2 September 2019. Body systems referred: cervical spine, left upper extremity (elbow and ulnar nerve), and scarring (TEMSKI). Method of assessment: whole person impairment. 2. The Medical Assessor is to exclude any assessment of the left upper extremity (shoulder). 3. The documents to be included to assist the Medical Assessor with his determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments, and (d) Medical Assessment Certificate dated 11 October 2022.

STATEMENT OF REASONS

BACKGROUND

The applicant brings these proceedings for permanent impairment compensation in relation to an injury suffered in the course of his employment with the respondent owing to the nature and conditions of that employment with a deemed date of injury of 2 September 2019. He alleges his injury to his left upper extremity, scarring and cervical spine.
On 10 March 2021, the applicant’s solicitors wrote to the respondent's insurer making a claim for permanent impairment compensation for a 21% whole person impairment for the left upper extremity, cervical spine and associated scarring. That claim was based upon the report of the applicant's independent medical examiner (IME) Dr Lai, in his report dated 19 January 2021. Dr Lai set out the applicant's injuries as follows:
“(i)     Left elbow common extensor tendinopathy;
(ii)     Left cubital tunnel syndrome with compression of ulnar nerve, and
(ii)     Cervical spinal degeneration with foraminal stenosis at C7/T1 and impingement of C8 spinal nerve root (left side).
His disabilities are:
(i)     Pain and stiffness left elbow;
(ii)     Pain and stiffness of neck;
(iii)     Weakness of the left hand grip, and
(iv)    Numbness of left upper limb C8 and T1 sensory dermatome”.
Dr Lai assessed the applicant's left upper extremity impairment to the elbow and ulnar nerve (epicondylitis).
By s 78 notice dated 8 June 2021, the respondent disputed the applicant’s claim on the basis his permanent impairment did not exceed the relevant threshold pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
On 5 November 2021, the applicant commenced proceedings claiming 21% whole person impairment for his left upper extremity and cervical spine, together with consequential scarring in accordance with the impairments set out in Dr Lai’s report. In its Reply, the employer listed as matters in dispute “the respondent objects to any referral to a medical assessor for any other body parts, including the left shoulder”. The employer consented to referral of the cervical spine and left elbow/ulnar nerve injuries.
On 16 February 2022, the Personal Injury Commission (the Commission) made a referral for assessment of permanent impairment to Medical Assessor Anderson. The body parts referred by the Medical Assessor were left upper extremity, cervical spine and scarring (TEMSKI).
On 11 October 2022, Medical Assessor Anderson provided a medical assessment certificate (MAC). In his summary of injuries and diagnoses, the Medical Assessor said:
“So far as I could establish, only the elbow range of movement has been assessed by other specialist. At this assessment, for completeness, the shoulder, elbow and wrist joints were assessed in detail. This demonstrates significant reduced movement of the shoulder and also the wrist. The reduction of movement in the elbows is relatively minor. Since there is no other history (at all) of any dysfunction with the left forequarter, it is therefore assessed by a simple deduction but the current condition of his left forequarter, which includes the shoulder and wrist, is also due to his occupation, similar to the condition of the left elbow and his cervical spine. Since the 'left upper extremity' was not further specified, these clinical findings of the left forequarter are included as part of the overall 'impairment package’.”
The Medical Assessor assessed a left upper extremity impairment referrable to the shoulder of 12% and included that impairment in his right upper extremity impairment which was assessed at 25%, equating to a 17% whole person impairment.
On 4 November 2022 (within the applicable time allowed) the appellant employer (the respondent at first instance) lodged an Application to Appeal Against the Decision of a Medical Assessor. On 7 November 2022, the respondent worker (the applicant at first instance) lodged a Notice of Opposition to appeal against Decision of Medical Assessor.
The parties each lodged written submissions in support of their respective positions. On 16 January 2023, the matter came before me for a preliminary conference, at which time the parties agreed to rely on their written submissions and consent to the matter being dealt with “on the papers”.
There is no question the Commission has power by virtue of s 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to refer a matter back to a Medical Assessor.
The appellant submits that the respondent, in making a claim for lump sum compensation, clearly limited the claim for permanent impairment to the alleged impairments to the left elbow, cervical spine and scarring. The appellant submitted it understood and accepted that to be the case, as could be seen from the s 78 notice and the Reply.
I note the appellant listed in the Reply under matters in dispute that it did not consent to any referral to a Medical Assessor of, inter alia, the left shoulder.
The appellant acknowledged the referral to the Medical Assessor did not limit the left upper extremity to the elbow and ulnar nerve, however, it submitted the nature of the dispute regarding the impairment was clear from the Application, Reply and the medical evidence relied on by both parties. That much was acknowledged by Medical Assessor Anderson in the MAC where he stated “so far as I could establish, only the elbow range of movement has been assessed by other specialist”.
The appellant submitted that s 321A of the 1998 Act requires the Commission to make a determination in relation to liability for any injury before a referral to a Medical Assessor can be made, and it is not for a Medical Assessor to make any determination in relation to liability.
The appellant relied on the Court of Appeal decision in Skates v Hills Industries Limited [2021] NSWCA 142 (14 July 2021) (Skates) in which, dealing with a similar situation in relation to the formulation of a referral to a medical assessor, Leeming JA commented at [46]:
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents are setting out both sides' claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a 'medical dispute' because the parties have made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”
At [48] his Honour said:
“The paperwork associated with the administration of the legislation seems to have led to a tendency to give the document comprising the 'referral' to an approved medical specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and insurer would not need to go to the Commission.”
The appellant submitted that while the referral to the Medical Assessor required assessment of the left upper extremity and cervical spine, it was apparent from the medical evidence attached to the Application and Reply that the dispute was in relation to the impairments assessed by Drs Lai and Doig in relation to the left elbow/ulnar nerve, cervical spine and scarring. It was this dispute, which the appellant submitted was crystallised by the correspondence between the parties.
The appellant submitted it has not accepted liability in relation to any injury or impairment to the left shoulder or wrist, and indeed no such claim for permanent impairment compensation to those body systems was made by the respondent. Accordingly, no finding of liability has been made by the Commission in relation to liability for the left shoulder as there was no dispute in relation to that body system.
The respondent worker submitted it was clearly appreciated by the appellant that the claim involves the entirety of the left upper extremity. In the s 78 notice dated 8 June 2021, the injury is described as “lateral epicondylitis, left elbow; radiculopathy, cervical region; sprain of shoulder joint; lesion of ulnar nerve unspecified upper limb”. The respondent submitted the s 78 notice did not dispute any of those injuries and the notice stated “Dr Doig also assessed your left shoulder and reports there were no restrictions on your left shoulder with respect to the active range of motion arcs and that these movements were also symmetrical with the right”.
The respondent submitted that contrary to the assertions made by the appellant in its submissions, it was appreciated the claim involved the left shoulder and the left wrist, and
Dr Doig had in fact made assessments of those body parts.
The respondent submitted the Application in these proceedings also included a reference to the nature and conditions of the respondent's employment causing injuries to his left upper extremity and cervical spine. The injury description, the respondent submitted, was to the left upper extremity and was not limited to the elbow.
The respondent submitted the appellant appreciated the claim was for the entirety of the left upper extremity, and whilst the Reply did not dispute the injuries which had been accepted in the s 78 notice the appellant nonetheless “sought to object to any referral to a medical assessor for any other body parts, including the left shoulder”. The respondent submitted that objection would only make sense if the appellant thought the other body parts were part of the claim.
Relevantly, the respondent’s own IME Dr Lai provided an examination which found a 0% impairment in the left shoulder and left wrist. The respondent submitted such a finding does not prevent the entirety of the left upper extremity being referred for assessment: see Shankar v Ceva Logistics (Australia) Pty Limited (2021) NSWPICPD 18 (Shankar).
In Shankar, Parker ADP, notwithstanding a finding of 0% impairment to a body system, held a referral could be made of that body system to a Medical Assessor.
The Acting Deputy President’s decision in Shankar has been the subject of debate since it was delivered on 16 June 2021.
Following the decision in Shankar, the Court of appeal delivered the decision in Skates, referred to above. In that matter, the worker’s injury was described as “injury to left wrist, ring finger and scarring” and a permanent impairment of 18% was claimed by reference to “left upper extremity, joint ring finger and scarring”.
In Skates, an IME report was relied on stating the whole person impairment had been assessed in relation to the left upper extremity which comprised impairment to the wrist and ring finger. The worker’s application also included a letter from the insurer dated
11 July 2017 which referred to the claim and the worker’s IMEs assessment of whole person impairment. That letter stated the insurer had arranged for the worker to be examined by its own IME, and made a settlement offer on the basis of impairment to the left upper limb (wrist, ring finger).
Leeming JA noted a claim in respect of a body system which had been assessed by an applicant's IME as a 0% was not a valid claim and was therefore not the subject of a “medical dispute” as set out in s 321 and s 321A of the 1998 Act. That is because there has been no rateable impairment assessment of the relevant body part. The analogous body part in the current claim is the left shoulder. Given the applicant’s own IME assessed a 0% rating to the left shoulder, there is no alleged impairment to that body part which is capable of being assessed as part of a medical dispute as that term is defined in ss 321 and 322(2) of the 1998 Act.
I therefore find that the assessment of the left upper extremity (shoulder) by the Medical Assessor in this matter was not a valid one. In making that finding, I rely on the line of authorities which to follow the decision in Skates. That line of authority creates an established proposition that a claim for 0% whole person impairment is not a valid claim and therefore cannot be the basis of a medical dispute under the 1998 Act, including circumstances where a 0% assessment forms part of a wider claim for lump sum compensation.
For these reasons, the matter will be referred to the Medical Assessor for a further determination of the applicant’s whole person impairment, excluding any impairment for the left shoulder.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2023] NSWPIC 101

13 March 2023