Lovelee v Sydney International Container Terminals Pty Ltd
[2024] NSWPICMP 520
•30 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lovelee v Sydney International Container Terminals Pty Ltd [2024] NSWPICMP 520 |
| APPELLANT: | Christopher Lovelee |
| RESPONDENT: | Sydney International Container Terminals Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 30 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal of Medical Appeal Panel’s decision dated 24 September 2021 on the grounds that there had been a deterioration which was supported by the application to admit fresh evidence; respondent supported a re-examination as worker had undergone spinal surgery since the earlier litigation; Sleiman v Gadalla Pty Ltd, Singh v B & E Poultry Holdings Pty Ltd, and Secretary, New South Wales Department of Education v Connolly considered and applied; Held - application to admit fresh evidence rejected; application for re-examination rejected; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 February 2024 Christopher Lovelee, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Kumar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
5 July 2021.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
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 (the 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, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 21 May 2021 this matter was referred to the Medical Assessor for a WPI assessment regarding the left lower extremity, lumbar spine, digestive system and scarring caused by injury on 1 October 2018.
The appellant sustained his injuries whilst working as a stevedore at the Sydney International Container Terminal. He underwent a left anterior total hip replacement on 3 June 2019 and developed gastric problems as a result of the narcotic analgesics he had been prescribed. He underwent a colonoscopy on 3 March 2020.
The Medical Assessor certified 14% WPI.
Mr Lovelee lodged an Application to Appeal on 30 July 2021, and on 24 September 2021 the Medical Appeal Panel issued its decision confirming the MAC.
On 27 September 2021 Mr Lovelee filed a Notice of Discontinuance in the Personal Injury Commission (Commission) and the Commission emailed the parties confirming that it had closed their file and will take no further action in this matter.
It now brings an action pursuant to s 327(3)(a) and (b) on the basis that since the matter was assessed Mr Lovelee has come to spinal surgery on 13 June 2023.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no further Medical Appeal Panel determination is possible.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
DOCUMENT
AUTHOR
DATE OF DOCUMENT
START PAGE
Statement
Christopher Lovelee
7 February 2024
Medicolegal Report Dr
Bodel
Dr Bodel
8 December 2023
IME Report Workers
Compensation Insurer
Dr Spittaler
28 April 2023
Medical Records of
treating surgeon
Dr Mark Coughlan
As at 19 November
2023
Medical reports treating specialist post
MAC
Dr Papantoniou
June 2021 to date
General Practitioner Consultation records
post MAC
Workers Doctors
June 2021 to date
Email from Personal Injury Commission
noting Discontinuance
Personal Injury Commission
27 September 2021
The appellant submits that the evidence is relevant as it postdated the MAC.
The respondent noted that the referral to the Medical Assessor was concerned relevantly with the lumbar spine, and it objected to the evidence that concerned impairment of the right lower extremity (hip). There was no medical dispute in that regard as defined by ss 319 and 321 of the 1998 Act. The respondent submitted that only Dr Bodel addressed the question of the deterioration of the appellant’s lumbar spine.
The Appeal Panel determines that the evidence should not be received on the appeal because we are unable to entertain this appeal, for the reasons given below.
EVIDENCE
Documentary 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, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The MAC and MAP
The Medical Assessor found there to be a total of 14% WPI as follows:[1]
[1] Appeal papers page 194.
| 25. Body Part or system | 26. Date of Injury | 27. Chapter, page and paragraph number in NSW workers compensation guidelines | 28. Chapter, page, paragraph, figure and table numbers in AMA5 Guides | 29. % WPI | 30. WPI 31. deductions pursuant to S323 for pre- existing injury, condition or abnormality 32. (expressed as a fraction) | 33. Sub- total/s % WPI (after any deductions in column 6) |
| 34. Left Lower Extremity | 1/10/18 | 35. Chapter 3 36. Page 13-22 | 37. Chapter 17 38. Table 17-34, page 548 39. Table 17-33, page 546 40. Table 16-10, page 482 41. Table 17-37, page 552 42. Table 17-3, page 527 | 43. 15 | 44. ½ | 45. 8 |
| 46. Lumbar Spine | 1/10/18 | 47. Chapter 4 48. Item 4.27, page 27 49. Item 4.35, page 28 | 50. Chapter 15 51. Table 15-3, page 384 | 52. 7 | 53. ½ | 54. 4 |
| 55. Digestive system | 1/10/18 | Chapter 16 Item 16.9, page 78 | Chapter 6 Table 6-3, page 121 Table 6-4, page 128 Table 6.5, page 131 |
A Medical Appeal Panel consisting of Member William Dalley, Medical Assessor Drew Dixon and Medical Assessor Philippa Harvey- Sutton determined on 24 September 2021 that the MAC should be confirmed.[2]
SUBMISSIONS
[2] Appeal papers page 31.
The appellant
The appellant noted that the provisions of s 327(3) (a) and (b) were exempted by s (5) of the 1998 Act from the 28-day time limit for an appeal to be lodged pursuant to s (3) (c) and (d) of the 1998 Act. It was submitted therefore that a further assessment by a member of the Panel could be undertaken. The appellant said:
“The appellant has not received any entitlement to section 66 to date and the Personal Injury Commission has not issued a Certificate of Determination as to whole person payment to date.”
The appellant then set out by reference to the fresh evidence, the basis of its appeal. There is no utility in setting out the particulars of the submission, as the respondent conceded that the appellant should be re-examined within the limitations referred to above, but as indicated, the fresh evidence has been rejected.
The respondent
The respondent conceded that the appellant should be re-examined, and suggested the mechanism provided by s 329 of the 1998 Act, by which, in certain circumstances, a matter could be referred back to the Medical Assessor. The respondent said:
“[The] Mac still stands, as confirmed by the Medical Appeal Panel decision dated 24/09/2021.”
DISCUSSION
From a factual and medical perspective, the Panel is satisfied that this subsequent surgery could well have caused a deterioration in the condition of Mr Lovelee’s lumbar spine, and the concession made by the respondent was appropriate.
It is also clear that the respondent has agreed that the appellant should be re-examined, although once a matter is referred to a Medical Appeal Panel, the option under s 329 of the 1998 Act of having the Medical Assessor reassess a claimant is no longer available.
It is, however, a fundamental rule that parties cannot bestow jurisdiction on themselves where none exists, which is the situation that pertains here.[3]
[3] Haroun v Rail Corporation NSW [2008] NSWCA 192 at [21].
We note in passing that the respondent was correct to object to the appellant’s application to have the right lower extremity (hip) assessed, as there was no agreement that there had ever been a medical dispute regarding that alleged injury.[4]
[4] See Skates v Hills Industries Ltd [2021] NSWCA 142.
The present facts are similar to those in Sleiman v Gadalla Pty Ltd.[5] Mr Sleiman had appealed against the finding of a Medical Assessor to a Medical Appeal Panel, which had allowed the appeal, substituting 14% WPI for the 2% that had been awarded by the Medical Assessor. On 21 July 2017 a Certificate of Determination had issued for $20,350 pursuant to s 66 of the 1987 Act, in respect of the 14% WPI.
[5] [2021] NSWCA 236.
Mr Sleiman then claimed two years later that his condition had deteriorated, and he lodged a further application to appeal to a Medical Appeal Panel on 14 August 2019, claiming that the deterioration would add enough WPI to his claim to permit him to commence proceeding for common law damages. We note that the same situation pertains in Mr Lovelee’s case regarding his entitlement to sue at common law.
Mr Sleiman’s argument was similar to that of Mr Lovelee, with the added distinction that
Mr Lovelee did not obtain a Certificate of Determination, but discontinued his case altogether – a distinction to which we shall return presently. In Sleiman, the delegate refused to refer the matter to a Medical Appeal Panel, and Mr Sleiman’s case eventually came before Gleeson Leeming, and Payne JJA in the Court of Appeal.Mr Sleiman argued, as has Mr Lovelee, that as the time limits in s 327(5) did not apply to appeals pursuant to s 327(3)(a) and (b), a further appeal in the case of deterioration was permissible.
Section 327 of the 1998 Act provides relevantly:
“327 APPEAL AGAINST MEDICAL ASSESSMENT
(1) ….
(2) …
(3) The grounds for appeal under this section are any of the following grounds--
(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,
(b)availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.
(4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.
(6) ….
(7) ….
(8) ….”
The Court found against that argument. Leeming JA, with whom Gleeson and McColl JJA agreed, analysed the relevant legislation and considered in detail the competing arguments. His Honour said at [72-73]:
“72 Ultimately, as Mr Sleiman himself contended, his construction involves regarding the right to appeal on the basis of deterioration or the availability of additional relevant information as controlling the meaning to be given to all of the provisions [in the legislation] whose text points against a further appeal.
73 I do not accept Mr Sleiman’s construction. I do accept that there is scope for a harsh or unjust operation in the classes of examples to which he refers, which are far from improbable. But the legislation must be construed in the first instance by reference to the text…”
Accordingly, Mr Lovelee is precluded from bringing his Application to Appeal Against the Decision of a Medical Assessor, as Form 10 describes the action, although his action might more accurately described as an application to appeal against the decision of a Medical Assessor and a Medical Appeal Panel.
Whether Mr Lovelee is able to claim at all is debateable. The parties have proceeded on the assumption that the MAC is still valid, and no submission was made against that proposition.
Suffice it to say that such an assertion is debateable, at best. In Secretary, New South Wales Department of Education v Connolly[6] President Judge Phillips referred with approval to Singh v B & E Poultry Holdings Pty Ltd[7] and DP Michael Snell’s dicta at [55]:
“The course adopted by the appellant, if it were properly available, potentially has the effect of avoiding the application of s 322A of the 1998 Act. A worker could make a claim, undergo medical assessment by an AMS, obtain a MAC, and if he or she was dissatisfied with the assessed level of permanent impairment, simply discontinue the proceedings before a Certificate of Determination was issued consistent with the binding MAC. If the worker subsequently obtained a higher medicolegal assessment, the worker could simply ‘amend’ the claim, and repeat the process, potentially on more than one occasion.”
[6] [2023] NSWPICPD 38 at [85].
[7] [2018] NSWWCCPD 52.
Further, in Sleiman Leeming JA said at [52]:
“52 Section 322A serves an important role in the administrative regime established for the determination of permanent impairment. A decision of a court after a final hearing will ordinarily determine that issue once and for all. A great many rules are associated with this aspect of finality (they include res judicata, issue estoppel, abuse of process, preventing relitigation of the same issue), as well as substantive doctrines like the once-and-for-all rule. This is also subject to well-recognised exceptions, which are found at general law and also under statute (these include the slip rule, setting aside judgments for fraud, and the ability to reopen associated with Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6and under rules of court such as UCPR rr 36.15 and 36.16). Section 322A broadly speaking places the administrative determination of permanent impairment on the same footing as curial determination (as had occurred, by the Compensation Court, before the introduction of medical assessment)….”
The application is accordingly refused. Section 328(5) requires the Panel to either confirm or revoke the certificate of assessment, and we note that the Medical Appeal Panel on
24 September 2021 confirmed the certificate of 5 July 2021. We accordingly do the same.For these reasons, the Appeal Panel has determined that the MAC issued on 5 July 2021 should be confirmed.
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