McPherson v Mitre 10 Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McPherson v Mitre 10 Australia Pty Ltd [2022] NSWPIC 410
APPLICANT:	Guye McPherson
RESPONDENT:	Mitre 10 Australia Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	26 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Permanent impairment compensation; worker sought referral in respect of accepted injuries to his thoracic and lumbar spines assessed on his behalf at 0% whole person impairment; Held — no claim for compensation; Skates v Hills Industries discussed; determination of the extent of permanent impairment; Shankar v Ceva Industries discussed; referred to Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The Application to Resolve a Dispute is amended to describe the injury as: “The applicant suffered injury on 3 April 2018 to his cervical, thoracic and lumbar spines and bilateral shoulders as a result of lifting lintels.” 2. I remit the matter to the President for referral to a Medical Assessor to assess the applicant’s permanent impairment. 3. The referral is in respect of: a) Body parts: i) Cervical spine ii) Left upper extremity (shoulder) iii) Right upper extremity (shoulder) b) Date of injury: 3 April 2018 c) Method of assessment: Whole person impairment. 4. The Application to Resolve a Dispute and the Reply are to be sent to the Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

Guye McPherson was employed by Mitre 10 Australia Pty Ltd (Mitre 10) as a yard supervisor. On 3 April 2018 he suffered an injury to his neck, back and shoulders while lifting steel lintels. Mitre 10 does not dispute that it is liable for the consequences of the injury.
Mr McPherson made a claim for permanent impairment compensation on 21 December 2012 and the parties agree that he should be referred to a Medical Assessor. The issue in dispute is whether the referral can include his thoracic and lumbar spines in respect of which he has been assessed by a doctor qualified on his behalf as having 0% whole person impairment (WPI).

PROCEDURE

The claim was listed for telephone conference on 16 June 2022 when Mr Hopper appeared for Mr McPherson and Ms Moylan appeared for Mitre 10.
The pleading of injury in the Application to Resolve a Dispute was amended and that is reflected in the orders made. The injury is pleaded as:
“The applicant suffered injury on 3 April 2018 to his cervical, thoracic and lumbar spines and bilateral shoulders as a result of lifting lintels.”
While Mitre 10 was willing to make an offer of settlement in respect of Mr McPherson’s cervical spine and both shoulders, it disputes that he is entitled to compensation in respect of his thoracic and lumbar spines in respect of which Dr Bodel has assessed 0% WPI.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
I ordered the parties to prepare written submissions.

EVIDENCE

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD), and
(b) Reply.
Mr McPherson suffered two injuries – one in March 2018 when he fell from a truck and one on 3 April 2018 which is the subject of these proceedings. In the second, Mr McPherson injured his lumbar spine and shoulders and aggravated the condition in his cervical and thoracic spines. The second injury caused him to cease work. He saw Dr Cherikuri, neurosurgeon, who recommended conservative management.
Dr Bodel, orthopaedic surgeon, assessed Mr McPherson at the request of his solicitors and reported on 9 December 2021. He recorded only the history of an earlier injury (with the incorrect date) when Mr McPherson fell from the back of a truck. The history of subsequent treatment is that which followed the injury on 3 April 2018. Dr Bodel assessed Mr McPherson in DRE Cervical Category I under Table 15-5 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5) because there was asymmetry of movement and guarding but no clinical sign of radiculopathy. He added 2% under NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed, reissued 1 March 2021 for the impact of the impairment on Mr McPherson’s activities of daily living.
In respect of Mr McPherson’s thoracic and lumbar spines, Dr Bodel assessed Mr McPherson in DRE Thoracic and Lumbar Category 1, which results in 0% WPI, because there was no asymmetry of movement. He assessed 6% WPI in respect of Mr McPherson’s right shoulder and 8% WPI in respect of the left.
Dr Bodel said:
“This leaves three positive ratings and they are 8% for the left upper extremity, 7% for the cervical spine and 6% for the right upper extremity and these are combined using the Combined Values Chart on Page 604 of AMA5 to give a total of 19% Whole Person Impairment overall.”
Based on that report, Mr McPherson’s solicitors made a claim for permanent impairment compensation by a letter dated 21 December 2021 seeking:
“Compensation for permanent impairment assessed at 19% Whole Person Impairment in relation to the worker’s left upper extremity, cervical spine and right upper extremity: $48,670.00.”
Mitre 10’s insurer arranged for Mr McPherson to see Dr Cadden who reported on 11 March 2022. Dr Cadden said that Mr McPherson injured his cervical and thoracic spines in the incident in March 2018 and aggravated those injuries on 3 April 2018 and well as suffering injury to his lumbar spine and both shoulders. Dr Cadden assessed 10% WPI arising from the injuries to his cervical spine and left and right shoulders.
On 14 April 2022 Mitre 10’s insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing Mr McPherson’s entitlement to permanent impairment compensation on the basis that his permanent impairment was not more than 10%. It noted the discrepancy between the history in Dr Bodel’s report and a reply to request for particulars. The insurer noted the history obtained by Dr Cadden and said it had accepted liability for Mr McPherson’s cervical spine and both shoulders in respect of the 3 April 2018 incident. The insurer accepted liability for an aggravation of thoracic and lumbar spine injuries. It denied that Mr McPherson was entitled to claim in respect of an injury on 1 March 2018 because he had neither given notice nor made a claim in respect of that injury.
These proceedings were commenced on receipt of the s 78 notice.

SUBMISSIONS

Ms Magee of counsel prepared submissions for Mr McPherson. She said that the only dispute was the degree of permanent impairment. She referred to the decision of Parker ADP in Shankar v Ceva Logistics (Australia) Pty Limited[1] (Shankar) and in particular at [75] and [76] which read:
“75. The Arbitrator’s role at this point was to determine whether or not there was a dispute within the meaning of s 319. That question depended on the stated position of the respondent that the appellant was not entitled to permanent impairment compensation for injury resulting from the nature and conditions the employment.
76. There was a dispute between the parties as defined by s 319. It follows that the degree of permanent impairment was to be assessed by an AMS. It was not open to the Arbitrator to assume that the assessment for the left upper limb was 0%.”
[1] [2021] NSWPICPD 18.
Ms Magee said that the claim involves a dispute as to the degree of permanent impairment which a member has no jurisdiction to assess. It is not open to a member to assume that assessment of the lumbar spine and thoracic spine is 0% so that they should be included in the referral to the Medical Assessor
Mr McMahon of counsel prepared submissions on behalf of Mitre 10. He said that there were two issues for determination - whether a claim for lump sum compensation had been made in respect of the thoracic and lumbar spines and where there was a medical dispute with respect to the thoracic and lumbar spines.
In respect of the first issue, Mr McMahon said that the claim for lump sum compensation referred only to Mr McPherson’s cervical spine and shoulders. He noted the Guidelines for claiming compensation and the decision of Roche DP in Abou-Haidar v Consolidated Wire Pty Ltd[2] (Abou-Haidar), referring to [55] which read:
“A worker must make a claim under s 282 and support that claim with a whole person impairment assessment in the proper form from a WorkCover trained assessor. If the assessment is the same as in a previous award or order of the Commission, there will be no basis for referral to an AMS.”
[2] [2010] NSWWCCPD 128.
Mr McMahon said that, by analogy, there is no claim in respect of Mr McPherson’s thoracic and lumbar spines assessed at 0%. He said that the claim must be a valid claim, referring to Woolworths Limited v Stafford[3] (Stafford) at [66] and [72]:
“If, by the making of one claim for permanent impairment compensation, a worker is to be prevented from making any further claim for such compensation, the word ‘claim’ should be interpreted to mean, at the least, a valid claim. On this approach, consistent with the Arbitrator’s conclusion, Mr Stafford’s demand on 7 April 2014 was not a valid claim because it was not capable of payment in accordance with the 1987 Act. As a result, it does not qualify as ‘one claim’ for the purposes of s 66 (1A).”
And
“Third, the definitions of ‘claim’ and ‘compensation’ strongly favour the conclusion I have reached. That is because a ‘claim’ for permanent impairment compensation is, by definition, a claim for a ‘monetary benefit under’ the legislation. A monetary benefit under the legislation is compensation that is paid or payable. If the claim cannot succeed, because it is under the s 66(1) threshold, it cannot be a ‘claim’ for a monetary benefit under the Act. That is because, in respect of that claim, no compensation is payable.”
[3] [2015] NSWWCCPD 36.
Mr McMahon said that there can be no claim when there is no assessment of WPI which might entitle Mr McPherson to receive lump sum compensation and that Shankar could be distinguished on that basis.
Mr McMahon said that there is no medical dispute with respect to the impairment of Mr McPherson’s thoracic and lumbar spines, citing the comments of Leeming JA in Skates v Hills Industries Ltd[4] (Skates) that a dispute is identified by the disputants’ competing claims. Because Dr Bodel assessed 0% and Dr Cadden did not make an assessment, there was relevantly no dispute.
[4] [2021] NSWCA 142 at [50].
Mitre 10’s position, Mr McMahon said, is that Shankar is wrong in law. He noted that Parker ADP relied on the decision in Guzman v Trade West Pty Ltd[5] (Guzman) and that in that case the effect of a deduction under s 323 of the 1998 Act meant that a further claim was less than the amount previously assessed. Mr McMahon said that s 65(3) of the Workers Compensation Act 1987 (the 1987 Act) was in force at the time that case was decided. Parker ADP said that the repeal of s 65(3) made no change to the general scheme of assessment under the legislation and relied on the reasoning in Guzman to find that questions of liability are to be determined by the Commission and that a disputes regarding the assessment of permanent impairment “could only be resolved by referral to an AMS”.
[5] [2017] NSWWCCPD 44.
Mr McMahon said that s 65(3) was repealed by the Workers Compensation Amendment Act 2018 and that ss 322A(1A) and 322(3)(b) were introduced and that the appropriate construction of those sections was to specifically provide for situations in which a member of the Commission may make an assessment of the degree of permanent impairment. That construction was affirmed by Phillips P in Etherton v ISS Property Services Pty Ltd[6] (Etherton):
“As can be seen, the relevant alteration is that prior to 1 January 2019 the Commission was prohibited, by virtue of the terms of s 65(3) of the 1987 Act, from awarding permanent impairment compensation absent an assessment by an Approved Medical Specialist. That prohibition was removed and the Commission was then empowered to determine such matters itself.”[7]
[6] [2019] NSWWCCPD 53.
[7] At [105].
On that basis, he said it is entirely within the jurisdiction of a member of the Commission to refuse to refer a body part for assessment or to make an assessment of 0% WPI.
Mr McMahon noted that the approach contended for was adopted by Member Read in Apps v Secretary, Department of Communities and Justice[8] (Apps).
[8] [2022] NSWPIC 1.
No order was made for submissions in reply and Mr McPherson did not apply to file a reply.

FINDINGS AND REASONS

Claim for compensation

Division 4 of Part 3 of the 1987 Act deals with compensation for non-economic loss. Section 65 provides that the degree of permanent impairment is assessed in accordance with s 65 and with Part 7 of Chapter 7 of the 1998 Act. Under s 66 compensation is payable if an injury results in a degree of impairment greater than 10%.
Before compensation can be recovered, a claim must be made and Chapter 7 of the 1998 Act deals with the procedure for making claims. Section 260 says that a claim must be made in accordance with the applicable requirements of the Workers Compensation Guidelines. Division 4 of Chapter 7 provides for claims for lumps sum compensation and work injury damages and s 281 imposes time limits on determining claims and making offers of settlement. Section 281(2) requires that a claim must be determined within:
“(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by a medical assessor, or
(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim,
whichever is the later.”
Section 282 provides that “the relevant particulars about a claim are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim.” The particulars include “all impairments arising from the injury.”
The Workers Compensation Guidelines provide in section 8.1 provide that a claim for lump sum compensation must be accompanied by a report from a permanent impairment assessor listed on the SIRA website for the body system being assessed. The report must include:
· a statement about whether the condition has reached maximum medical improvement, and
· an assessment of the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (version current at the time of the assessment).
Section 289(3) provides that a dispute about a claim for permanent impairment compensation cannot be referred to the Commission unless the person on whom the claim is made wholly disputes liability, makes an offer or fails to determine the claim.
Part 7 of the 1998 Act provides for medical assessment. Section 319 defines medical dispute:
“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.”
Those sections and the Workers Compensation Guidelines highlight the importance of making a claim, setting out the compensation sought to be recovered. The terms of the claim will define the medical dispute.
Skates was an appeal from an application for judicial review of a Medical Appeal Panel decision and concerned a determination of whether the Approved Medical Specialist (AMS) was confined to an assessment of the body parts set out in the referral which omitted the left wrist which the insurer accepted should have been assessed. Leeming JA (who agreed with Basten JA) said:
“The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), reproduced in the other judgments. The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.
…
The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents 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 had 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.”
Dr Bodel assessed 19% WPI by reference to Mr McPherson’s cervical spine and left and right upper extremities. The claim made on behalf of Mr McPherson in the letter dated 21 December 2021 was clearly expressed to be in respect of his “left upper extremity, cervical spine and right upper extremity”. There was no reference in that letter to the thoracic and lumbar spines and no claim for permanent impairment arising from those accepted injuries. Mitre 10 and its insurer were entitled to assume that no permanent impairment compensation was sought in respect of those accepted injuries and Dr Cadden did not assess them.
The compensation claimed in the ARD was in respect of the left upper extremity, cervical spine and right upper extremity. While an amendment to the ARD to describe the correct mechanism of injury was made by consent at the telephone conference, no application was made to claim compensation in respect of the thoracic and lumbar spines. If the issue had been raised, it is likely that Mitre 10 would have said it was prejudiced - the way the claim had been made meant that it had not obtained medical evidence to meet it.
No claim for compensation was made in accordance with the Guidelines in respect of Mr McPherson’s thoracic and lumbar spines. There is no medical dispute with respect to those body parts and for that reason alone, those injuries should not be referred to a Medical Assessor.
That finding is consistent with the decisions in Abou-Haidar and Stafford to which Mr McMahon referred.

Assessment of permanent impairment

An examination of the decision in Shankar shows that it concerns a different point to that at issue here. Mr Shankar sought that injuries on three dates be aggregated for referral to an AMS for an assessment of permanent impairment. He made claims in respect of a frank injury to his cervical spine and right upper extremity, a disease injury and a nature and conditions injury to his cervical spine, left upper extremity and right upper extremity. The insurer disputed that there was a nature and conditions injury and relied on a report which stated that there was no permanent impairment arising from that injury.

The Commission Arbitrator (as he then was) was satisfied that Mr Shankar had suffered an injury as a result of the nature and conditions of employment. He noted that there was an issue as to whether the doctor on whose assessment the claim was based had made an assessment of permanent impairment in respect of the left upper extremity resulting from the nature and conditions of employment. He said:
“I will infer in favour of the applicant that the seven per cent WPI is a reference to the left upper extremity. However, the doctor clearly states that the nature and conditions of employment, whilst causing injury, was not substantial enough to cause symptoms or range of motion restrictions. I do not accept that Dr Wong has expressed the view that the nature and conditions of employment caused any whole person impairment of the left upper extremity.
As I said during submissions, I will not be referring a body part that has no assessable impairment, for assessment by an AMS.”
The Arbitrator did not refer the left upper extremity to the AMS because he found that the doctor’s opinion was that the nature and conditions of employment had not caused WPI of that body part. The other injuries were referred to an AMS.
Parker ADP stressed that the overall scheme of the legislation remained the same after the repeal of s 65(3) of the 1987 Act and that the repeal did not authorise the Commission to assess the degree of permanent impairment. That is at odds with the decision of the President in Etherton.
The respondent in Shankar had adopted the Arbitrator’s finding that the worker had 0% permanent impairment of his left upper extremity as a result of the accepted injury resulting from the nature and conditions of employment. Parker ADP said[9]:
“The respondent’s submission is that because the specialists qualified by the parties have each assessed the appellant as having 0% impairment of the left upper extremity, there is no medical dispute within s 319 of the 1998 Act. It follows, so the argument runs, there is no jurisdiction to refer the matter to the Registrar for referral to an AMS.
The premise of the argument is that s 319 is not engaged unless at least one of the qualified specialists has assessed the worker to have a percentage impairment of the relevant body part. In my view, that premise of the respondent’s argument is incorrect.
Section 319 is concerned with a dispute between ‘a claimant and the person on whom the claim is made’. It is engaged when the claim is refused by the person on whom the claim is made by reason of the topics specified in paragraphs (a) to (g).
In this matter, by the s 78 Notice, the respondent disputed that the appellant is ‘entitled to permanent impairment compensation for injury resulting from the nature and conditions of [Mr Shankar’s] employment.’ The Arbitrator resolved the issue concerning whether the appellant has sustained injury resulting from the nature and conditions of employment, but he had no jurisdiction to assess the degree of ‘permanent impairment.’ That issue could only be resolved by referral to an AMS.”
[9] At [62]-[65].
That very brief summary highlights a significant difference between Shankar and this case. It does not stand for the simple proposition that Ms Magee contends for – that an assessment of 0% can be referred to a Medical Assessor. There was a claim for compensation in respect of Mr Shankar’s left upper extremity but the Arbitrator determined that there was 0% permanent impairment in respect of that injury. It was not a case where the worker’s own evidence provided an assessment of 0% and in which there was no claim for compensation as a result of impairment of the relevant body part.
Similarly in Guzman, from which Parker ADP gained assistance, the error which was overturned on appeal involved a determination of the “perceived lack of viability” of a further permanent impairment claim because there was no increase in the assessments of permanent impairment when s 323 of the 1998 Act was considered. It was also not a case in which there was an assessment from the worker’s doctor of 0% WPI.
I agree with the reasons for decision in Apps. In that case the claim for compensation and the ARD included a claim in respect of the lumbar spine which had been assessed at 0%. Here the medical dispute crystallised by the correspondence sent on behalf of Mr McPherson making a claim which did not include the thoracic and lumbar spines. It was confirmed by the ARD in which no claim was made. It is not appropriate that there be a referral in respect of the thoracic and lumbar spines.

Orders

I remit the matter to the President for referral to a Medical Assessor to assess Mr McPherson’s permanent impairment.
The referral is in respect of:
Body parts:  Cervical spine
Left upper extremity (shoulder)
Right upper extremity (shoulder)
Date of injury:  3 April 2018
Method of assessment:               Whole person impairment.
The Application to Resolve a Dispute and the Reply are to be sent to the Medical Assessor.

[2022] NSWPIC 410

26 July 2022