O'Callaghan v Energy World Corporation Ltd - [2016] NSWWCCPD 1

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1
APPELLANT:	Kelly O’Callaghan
RESPONDENT:	Energy World Corporation Ltd
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-886/13
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	14 September 2015
DATE OF APPEAL DECISION:	5 January 2016
SUBJECT MATTER OF DECISION:	Application for reconsideration of consent orders; whether any “compensation” at issue on appeal; monetary threshold to appeal not satisfied; alleged deterioration in claimant’s condition after assessment by Approved Medical Specialist; appeal against Approved Medical Specialist’s assessment because of alleged deterioration; whether deterioration must relate to the body part assessed by original Approved Medical Specialist or is at large; ss 352(3)(a) and 327(3)(a) and (b) of the Workplace Injury Management and Workers Compensation Act 1998; application of Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2006] NSWSC 322 and Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Slater and Gordon
Respondent:	Goldbergs
ORDERS MADE ON APPEAL:	The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 have not been met and there is no right of appeal.

BACKGROUND

This appeal concerns a challenge to an Arbitrator’s refusal to set aside consent orders under the reconsideration power in s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) (unless otherwise stated, all references to legislation in this decision are to the 1998 Act). To understand the relevance of the refusal, and to give context to the appeal, it is necessary to set out the procedural background in some detail.
On 7 January 2011, the appellant worker, Kelly O’Callaghan, suffered various injuries when she fell in the course of her employment with the respondent, Energy World Corporation Ltd. On that day, she saw her general practitioner, Dr Garagounis, who diagnosed a soft tissue injury to the cervical spine, upper thoracic spine, left wrist and hand, and sacral area. She submitted a claim for compensation and the insurer initially accepted liability.
On 28 June 2012, Dr Peter Giblin, orthopaedic surgeon, examined Ms O’Callaghan at the request of her solicitors. In his medicolegal report of 3 July 2012, he recorded that Ms O’Callaghan reported the incident, saw her local doctor and had x-rays of her neck and hand, which were sore. He took a history that, after about two weeks off work, Ms O’Callaghan returned to work on reduced duties for about a month and then resumed full time normal duties, though her symptoms, which were predominantly in her low back and coccyx area, had not fully resolved.
Ms O’Callaghan complained to Dr Giblin of having a constant back pain with intermittent sharp stabbing pains in the coccygeal area. Dr Giblin recorded that the symptoms in her neck, thoracic spine and left wrist had “no [sic] resolved”. On examination, the left wrist and forearm showed no abnormality and Ms O’Callaghan had a full active range of motion of her cervical spine. He diagnosed a persisting soft tissue injury involving Ms O’Callaghan’s lumbar spine and coccygeal area. (Given the findings on examination and Dr Giblin’s diagnosis, it seems reasonable to conclude that Dr Giblin meant to write that the neck and left wrist symptoms had “now resolved”.)
Dr Giblin assessed Ms O’Callaghan to have, as a result of the fall and injury to her lumbar spine, a whole person impairment of seven per cent, but a nil per cent impairment as a result of the injury to her sacro-coccygeal spine. He expressed no opinion on whether Ms O’Callaghan suffered a permanent impairment as a result of the condition of her cervical spine.
On 31 August 2012, Ms O’Callaghan’s solicitors claimed $10,106.25 “in respect of 7% whole person impairment” and attached, among other documents, a copy of Dr Giblin’s report of 3 July 2012. Though the claim was not expressed to be for the injury to the lumbar spine, that was the only basis on which the claim could have been made.
In a s 74 notice dated 10 September 2012, the insurer disputed the claim for permanent impairment compensation.
In an Application to Resolve a Dispute registered with the Commission on 17 January 2013 (matter No 886/13), Ms O’Callaghan described her injury as being to the lumbar spine and the sacro coccygeal spine. She claimed weekly compensation from 1 May 2011 to 12 September 2013 and permanent impairment compensation of $10,106.25 in respect of a seven per cent whole person impairment as a result of the injury to her lumbar spine.
The parties resolved the claim for weekly compensation by consent and that part of the claim can be put to one side.
The Commission referred the claim for compensation for whole person impairment to an Approved Medical Specialist (AMS) for assessment. The body part referred was the “[l]umbar spine”. The AMS, Dr Yiu-Key Ho, assessed Ms O’Callaghan on 4 November 2013 and issued a Medical Assessment Certificate (MAC) on 8 November 2013, in which he assessed her to have a 10 per cent whole person impairment as a result of the injury to her lumbar spine.
This assessment allowed five per cent for the injury to the lumbar spine and five per cent for the injury to the coccyx (something for which Dr Giblin had assessed a nil permanent impairment). Dr Ho made no allowance for impairment of activities of daily living. He was not asked to assess, and did not assess, Ms O’Callaghan’s cervical spine. (Dr Ho took no history of Ms O’Callaghan suffering any injury to her neck or cervical spine, or having any symptoms in that part of her body at the time of the fall or his examination.)
In a Certificate of Determination issued by consent on 5 December 2013 (the consent orders), the respondent agreed to pay Ms O’Callaghan permanent impairment compensation of $15,125 in respect of the 10 per cent whole person impairment assessed by Dr Ho, together with $8,500 for pain and suffering under s 67 of the Workers Compensation Act 1987 (the 1987 Act).
At some stage, Ms O’Callaghan’s cervical spine deteriorated.
In a report dated 3 March 2015, Dr Bodel, orthopaedic surgeon, noted that Ms O’Callaghan had been previously assessed as having a five per cent permanent impairment as a result of the injury to her lumbar spine, and he made the same assessment, but he added two per cent for interference with activities of daily living. As per Dr Ho, he assessed a five per cent whole person impairment as a result of the injury to the coccyx.
In addition, Dr Bodel assessed Ms O’Callaghan to have a five per cent whole person impairment as a result of the injury to her cervical spine. Using the Combined Values Chart in the American Medical Association Guidelines for the Evaluation of Permanent Impairment, 5^th edition, (AMA5), these assessments gave an overall whole person impairment of 16 per cent.
On 5 March 2015, Ms O’Callaghan’s solicitors wrote to the respondent’s insurer attaching a copy of Dr Bodel’s report and asking if it conceded that the threshold for the purposes of a work injury damages claim (15 per cent) had been met.
In a s 74 notice dated 10 April 2015, the insurer disputed that Ms O’Callaghan had a whole person impairment of 15 per cent or greater and therefore disputed that she had an entitlement to bring a work injury damages claim.
On 11 May 2015, Ms O’Callaghan filed with the Commission an Application for Assessment by an Approved Medical Specialist (matter No 2665/15). The application stated that it was for a “[t]hreshold dispute for [a] work injury damages claim” under s 313.
On 1 June 2015, the respondent filed a Response to Application for Assessment by an Approved Medical Specialist which attached, among other things, a s 74 notice from the insurer. Relying on s 322A, which states that only one assessment may be made of the degree of permanent impairment of an injured worker, the notice asserted that Ms O’Callaghan was not entitled to have a further assessment of whole person impairment (by an AMS) as the matter had already been dealt with in matter No 886/13. (That is, the matter had already been the subject of an assessment by an AMS and s 322A permits only one such assessment.)
On 2 June 2015, Ms O’Callaghan’s solicitor wrote to the Commission stating that Ms O’Callaghan was “not making a ‘top up’ claim for additional lump sum compensation” (emphasis included in original), but was “seeking a Whole Person Impairment assessment to bring a potential Work Injury Damages claim against the employer”. The letter added that Ms O’Callaghan’s public liability claim against the owner of the premises where she fell had been listed for hearing in the District Court at Wollongong commencing on 10 August 2015.
On 3 June 2015, the respondent’s solicitor wrote to the Commission stating that the letter of 2 June 2015 from Ms O’Callaghan’s solicitor misconceived the insurer’s objection. It noted that there was no suggestion of a top up claim being made for additional lump sum compensation. It was simply that, pursuant to s 322A, there could only be one assessment made of the degree of permanent impairment of an injured worker and the MAC issued (by Dr Ho) was the only one that could be used with any further or subsequent medical dispute about the degree of permanent impairment of the worker.
On 9 June 2015, Ms O’Callaghan’s solicitor wrote to the Commission advising that she withdrew her Application for Assessment by an Approved Medical Specialist. This application did not proceed further and the Commission closed its file.
On 12 June 2015, Ms O’Callaghan filed an appeal against Dr Ho’s MAC under s 327 (the medical appeal).
The appeal relied on sub-paragraphs (a) and (b) of s 327(3), namely:
(a) a deterioration in Ms O’Callaghan’s condition that resulted in an increase in the degree of permanent impairment (s 327(3)(a)), and
(b) the availability of additional relevant material (being evidence that was not available to Ms O’Callaghan before the medical assessment appealed against and that could not reasonably have been obtained by Ms O’Callaghan before the medical assessment) (s 327(3)(b)).
On 17 July 2015, a delegate of the Registrar, Ms Undercliffe, dismissed the appeal against Dr Ho’s MAC on the ground that there is no appeal against a medical assessment once the dispute concerned has been the subject of a determination by the Commission (s 327(7)), as was the case in the present matter when the Commission issued the consent Certificate of Determination on 5 December 2013. Therefore, for the medical appeal to proceed, the consent orders had to be rescinded.
By letter dated 31 July 2015, relying on the reconsideration power in s 350(3), which provides that “[t]he Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission”, Ms O’Callaghan’s solicitor applied to have the consent orders set aside.
Ms O’Callaghan’s solicitor argued that there had been a deterioration in Ms O’Callaghan’s “condition” that resulted in an increase in the degree of permanent impairment and that was sufficient to invoke a right of appeal under s 327(3)(a) and that the consent orders should be set aside to allow her to pursue her s 327(3) appeal.
Relying on s 66(1A), which provides that only one claim can be made under the 1987 Act for permanent impairment compensation in respect of the permanent impairment that results from an injury, the respondent opposed the reconsideration application. It asserted that Ms O’Callaghan had already had her one claim, which was assessed in a valid MAC and settled in the consent orders made on 5 December 2013, and she was not entitled to make another claim (Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (Cram Fluid)).
After hearing brief oral submissions, in a teleconference on 10 September 2015, and considering the parties’ written submissions, the Arbitrator delivered a written decision on 14 September 2015. Relying on binding Supreme Court authority, he determined that the deterioration referred to in s 327(3)(a) must relate to the assessment of permanent impairment that was the subject of the referral to the AMS under s 325(1).
The subject of the referral to Dr Ho was the degree of whole person impairment as a result of the injury to Ms O’Callaghan’s lumbar spine. (I note that Dr Ho also assessed the degree of permanent impairment that resulted from the injury to the coccyx and that that assessment has not been challenged. I have assumed that the parties have accepted that the referral of the lumbar spine included the referral of the sacro coccygeal spine.)
Accordingly, as there has been no challenge to Dr Ho’s assessment of the degree of permanent impairment as a result of the injury to the lumbar spine, the Arbitrator said it was difficult to see how there could be an appeal in respect of a deterioration of a condition not referred to, or assessed by, the AMS.
The Arbitrator’s reasoning was as follows:
(a)     an AMS can only give a certificate as to the matters referred for assessment (s 325(1)) and it would be an error for an AMS to assess matters that were not the subject of the referral (Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2006] NSWSC 322 at [21]–[22] (Aircons));
(b)     a MAC is conclusively presumed to be correct in respect of, among other things, the degree of permanent impairment of the worker as a result of an injury (s 326(1)(a));
(c)     section 327(2) provides that a matter is appealable under s 327 if it is a matter as to which the assessment of an AMS certified in a MAC under Pt 7 of the 1998 Act “is conclusively presumed to be correct” in proceedings before a court or the Commission, and
(d)     the conclusiveness of a MAC only relates to what has been referred and properly determined by the AMS.
The Arbitrator said that these provisions supported the conclusion that s 327(3)(a) is restricted to “what has previously been referred [to the AMS] and properly determined” ([41]). That was because the reference in s 327(3)(a) to “a deterioration of a condition that results in an increase in the degree of permanent impairment” relates to a deterioration of the matters previously referred to the AMS as opposed to a deterioration of “any potential overall impairment” ([42]). This view was, the Arbitrator said, supported by the decision of Tobias JA in JC Equipment Hire Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43 (JC Equipment) that a MAC is only binding in respect of the purpose for which it was obtained.
The Arbitrator said that it was also supported by Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149 (Riverina Wines), where Campbell JA (Hodgson JA and Handley AJA agreeing) observed (at [94]) that the “‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place”. His Honour added, as the Arbitrator noted, that “that conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct”.
The Arbitrator interpreted his Honour’s statement as referring to the actual impairment certified, as opposed to other conditions that were not the subject of certification in the MAC, such as, in this case, the cervical spine.
For these reasons, the Arbitrator did not accept that Ms O’Callaghan has a valid appeal under s 327(3)(a), for a deterioration of a condition that was not the subject of an assessment by the AMS. It followed that any reconsideration of the Certificate of Determination of 5 December 2013 would be futile and he declined to grant the relief sought.
Consistent with the Arbitrator’s reasons, the Commission issued a Certificate of Determination on 14 September 2015 in the following terms:
“1.The Application by the applicant to reconsider the Certificate of Determination dated 5 December 2013 pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 is refused.”
Ms O’Callaghan has appealed.

ON THE PAPERS

Section 354(6) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

MONETARY THRESHOLD

Before proceeding to deal with an appeal, the Commission must determine whether it meets the requirements of s 352. Section 352(3) provides:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”

Submissions

The respondent has submitted that as Ms O’Callaghan has never sought further or additional permanent impairment compensation under s 66, and that as what was being sought was a reconsideration for the purposes of a work injury damages threshold dispute, no “compensation” is “at issue on appeal” and the thresholds in s 352(3) cannot be satisfied.
Counsel for Ms O’Callaghan, Mr McManamey, initially submitted that the reconsideration is in respect of an impairment of the cervical spine and that the amount of compensation payable in respect of the cervical spine exceeds $5,000. In his submissions in reply, he accepted “that the current proceedings have been limited to the issue of a threshold dispute” (for work injury damages). He contended that Ms O’Callaghan meets the threshold because the decision appealed has a real capacity to put the amount of compensation, determined by reference to the decision or claim, in issue in the appeal (Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 (Regan)).
Mr McManamey submitted that if the appeal succeeds the consent orders that previously “determined the claim” for permanent impairment compensation will be set aside and the claim would “no longer be determined”. The Medical Appeal would then proceed and, if successful, a new MAC would be issued that certifies a greater level of impairment. The new MAC would be the only certificate permitted by s 322A and would be binding in respect of both a (work injury damages) threshold dispute and the entitlement to permanent impairment compensation. As the previous orders would have been set aside, there would be an existing claim that had not been determined and Ms O’Callaghan would be free to pursue that claim.
If that claim were disputed, the Commission would be bound by the MAC issued by the Appeal Panel and would order compensation in an amount consistent with that certificate. Because of the operation of s 322A, the determination of the current appeal determines the entitlements to permanent impairment compensation even though they are not being claimed in these proceedings. It would be anticipated that further proceedings would not be necessary as the parties would know that they are bound by the new MAC.

Discussion and findings

Mr McManamey’s submissions cannot be accepted.
The issue was succinctly dealt with in Regan, at [27]:
“27. While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). … The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21)).” (emphasis in original)
It follows that where, as in the present matter, the Commission has made no order for the payment of compensation, the amount of “compensation at issue on appeal” must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator. In the present matter, no compensation was at issue in the proceedings before the Arbitrator because Ms O’Callaghan did not claim any compensation in addition to that which she received under the consent orders. She sought an order revoking the consent orders so that she could pursue her s 327 appeal with a view to establishing the work injury damages threshold.
Ms O’Callaghan’s solicitor expressly rejected any suggestion that the current proceedings relate to a claim for permanent impairment compensation, stating that Ms O’Callaghan was “not making a ‘top up’ claim for additional lump sum compensation” (emphasis included in original), but was “seeking a Whole Person Impairment assessment to bring a potential Work Injury Damages claim against the employer”.
The Commission is concerned with the current claim and whether, in respect of that claim, the amount of “compensation at issue on the appeal” is at least $5,000. That claim is not one for compensation but one that relates to the threshold for a potential work injury damages claim. As a result the monetary threshold cannot be met. (I note, in passing, that “damages” does not include “compensation” under the 1987 Act (s 149(1) of the 1987 Act).)
It is not to the point to say, as Mr McManamey has submitted, that if the s 352 appeal succeeds, and if the s 327 appeal succeeds, the new MAC will be the only certificate permitted by s 322A and will be binding for all purposes. Ms O’Callaghan has claimed no “compensation” in the present proceedings, and given no notice of any intention to claim “compensation”. It follows that no “compensation is at issue on appeal”.
As the monetary threshold in s 352(3)(a) has not been met, there is no right of appeal.
If I am wrong on this issue, and the monetary threshold is satisfied, I will determine the substantive issue.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that the deterioration in s 327(3)(a) must relate to the assessment of the impairment that was the subject of the referral to the AMS pursuant to s 325, and
(b) finding that the MAC is only binding in the proceedings in which it was obtained.

THE LEGISLATION

Sections 65 and 66 of the 1987 Act provide:
65 Determination of degree of permanent impairment“
(1)For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2)If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
(3)If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.
…
66 Entitlement to compensation for permanent impairment
(1)A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note.No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A)Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
(2)The amount of permanent impairment compensation is to be calculated as follows:
(a)if the degree of permanent impairment is greater than 10% but not greater than 30%, the amount of permanent impairment compensation is to be calculated as follows:
…
(b)if the degree of permanent impairment is greater than 30% but not greater than 50%, the amount of permanent impairment compensation is to be calculated as follows:
…
(c)if the degree of permanent impairment is greater than 50% but not greater than 55%, the amount of permanent impairment compensation is $242,010,
(d)if the degree of permanent impairment is greater than 55% but not greater than 60%, the amount of permanent impairment compensation is $309,020,
(e)if the degree of permanent impairment is greater than 60% but not greater than 65%, the amount of permanent impairment compensation is $376,030,
(f)if the degree of permanent impairment is greater than 65% but not greater than 70%, the amount of permanent impairment compensation is $443,030,
(g)if the degree of permanent impairment is greater than 70% but not greater than 74%, the amount of permanent impairment compensation is $510,040,
(h)if the degree of permanent impairment is greater than 74%, the amount of permanent impairment compensation is $577,050,
…
(2A)To the extent to which the injury results in permanent impairment of the back, the amount of permanent impairment compensation calculated in accordance with subsection (2) is to be increased by 5%.
Example 1. A person suffers 12% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $25,420. If the whole of the impairment is to the back, the compensation payable in relation to the back will be the whole $25,420. Under this subsection, that $25,420 will be increased by 5%, yielding $26,691.
Example 2. A person suffers 50% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $175,000. If two-thirds of the impairment is to the back, the compensation payable in relation to the back will be two-thirds of $175,000, or $116,666.67. Under this subsection, that $116,666.67 will be increased by 5%, yielding $122,500. The total compensation payable for the impairment will therefore be $180,833.33.
(3)The amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received.”
Sections 322, 322A, 325, 326, 327, 328 and 329 provide:
322 Assessment of impairment“
(1)The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4)An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.
322A One assessment only of degree of permanent impairment
(1)Only one assessment may be made of the degree of permanent impairment of an injured worker.
(2)The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3)Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of assessment and a medical assessment certificate under this Part.
(4)This section does not affect the operation of section 327 (Appeal against medical assessment).
…
325   Medical assessment certificate
medical assessment certificate(1)     The approved medical specialist to whom a medical dispute is referred is to give a certificate (a ) as to the matters referred for assessment.
(2)A medical assessment certificate is to be in a form approved by the Registrar and is to:
(a)     set out details of the matters referred for assessment, and
(b) certify as to the approved medical specialist’s assessment with respect to those matters, and
(c)set out the approved medical specialist’s reasons for that assessment, and
(d)set out the facts on which that assessment is based.
(3)If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error.
(4)An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence.
326   Status of medical assessments
(1)An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a)the degree of permanent impairment of the worker as a result of an injury,
(b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)the nature and extent of loss of hearing suffered by a worker,
(d)     whether impairment is permanent,
(e)     whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.
327   Appeal against medical assessment
(1)A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2)A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(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 Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, 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 Registrar is satisfied that special circumstances justify an increase in the period for an appeal.
(6)The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
Note. Section 329 also allows the Registrar to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section).
(7)There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.
(8)Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that clause.
Note. Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
328   Procedure on appeal
(1)An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.
(2)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. The Workers Compensation Guidelines can provide for the procedure on an appeal.
(3)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.
(4)When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.
(5)The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.
(6)The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.
329   Referral of matter for further medical assessment or reconsideration
(1)A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:
(a)the Registrar as an alternative to an appeal against the assessment as provided by section 327, or
(b)a court or the Commission.
(1A)A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.
(2)A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”

GROUND 1

Submissions

After setting out s 327(3)(a), Mr McManamey contended that the assessment of impairment is made applying the WorkCover Guides and AMA5. AMA5 provides for assessments of individual body systems to be combined into a single whole person impairment. It is the whole person impairment that is certified and it is the whole person impairment that is conclusively presumed to be correct pursuant to s 326.
Section 322 confirms that the subject of the assessment is the whole person impairment resulting from the work injuries. Impairments resulting from the same injury are to be assessed together (s 322(2)) and impairments that result from more than one injury arising out of the same incident are to be assessed together (s 322(3)). In the present case, the injuries to the neck and back arise out of the same incident and are to be assessed together (s 322(3)). The medical appeal, if it proceeds, is seeking an increase in the assessment of the impairment resulting from those injuries and that incident.
The conclusion that it is the overall impairment that is the subject of an assessment, and therefore the medical appeal rights, is consistent with s 66 of the 1987 Act, which provides the mechanism by which the amount of compensation is calculated, namely, solely on the basis of the overall impairment. There is no provision by which individual body systems are separately compensated, as was the case with the former Table of Disabilities.
Section 65(2) of the 1987 Act deems injuries received in one incident to be a single injury for the purposes of compensating for permanent impairment. Consistently, the appeal rights in s 327 must relate to the assessment of impairment for the purposes of the Act and are concerned with the overall impairment. It follows, so it was argued, that “condition” in s 327(3)(a) must be read to be consistent with the fact that there is only one whole person impairment to be assessed.
Mr McManamey submitted that the grounds of appeal in sub-paragraphs (a) and (b) of s 327(3) are to be distinguished from the grounds in sub-paragraphs (c) and (d) of that provision. Grounds (a) and (b) are concerned with the situation where there has been some change since the assessment by the AMS. That is why they are not restricted by the 28 day time limit in s 327(5). On the other hand, grounds (c) and (d) concern the situation where there has been an error by the AMS, either making the assessment on the basis of incorrect criteria or where the MAC contains a demonstrable error. The Arbitrator erred in failing to recognise this distinction.
It was argued that Aircons does not relate to the separate circumstances contemplated by grounds (a) and (b). It does not follow that, because an AMS is restricted to the matters in the referral, a Medical Appeal Panel considering an appeal under ground (a) is so restricted. The medical appeal itself is a form of referral. It is made to the Registrar (s 327(4)), who can only refer the matter to a Medical Appeal Panel if he or she is satisfied that one of the grounds has been made out. Under s 327(6), the Registrar can refer, under s 329, a medical assessment for further assessment as an alternative to an appeal.

This provision makes it clear that, in a medical appeal, the Registrar makes a further referral to the Medical Appeal Panel or to the AMS. The circumstances of the present case would seem to be the very kind of case where the Registrar may elect to refer the matter under s 327(6) to allow the AMS to make an assessment of the cervical spine. The Arbitrator failed to mention this power in his reasoning.
The power to refer for further assessment seems, so it was argued, specifically designed to deal with cases where the AMS has not had the opportunity to fairly deal with a new matter such as would arise in an appeal relying on grounds (a) and (b). By failing to consider that it is the Registrar who makes both the original referral to the AMS and the referral to the Medical Appeal Panel, the Arbitrator failed to appreciate that an appeal under ground (a) is in fact the subject of a fresh referral entitling the Appeal Panel to consider the matters referred. In this instance, the referral would be to consider the whole person impairment, including that part of the impairment that results from the injury to the neck.
This reading of s 327(3)(a) is consistent with the provisions of s 322A. A worker is only allowed one assessment of whole person impairment. This is because there is only one impairment. The appeal provisions (in s 327) expressly preserve a review of that assessment. Allowing an appeal in respect of all of the consequences of the work injury ensures that a worker receives his or her proper entitlement.
It is also consistent with s 263(1), which requires that “[a]ll claims for permanent impairment compensation in respect of an injury must, as far as practicable, be made at the same time”. The fact that the words “as far as practicable” have been retained after the introduction of s 66(1A) of the 1987 Act and s 322A indicates that there are still circumstances where different parts of an impairment may be claimed at different times. The one circumstance in which that seems to apply is where there is an appeal under s 327(3)(a). If the Arbitrator is correct, there would be no such circumstance.
The proper reading of s 327(3)(a) is that there is an appeal so long as there has been a deterioration in the worker’s condition in the sense of the overall medical condition likely to result in an increase in the degree of permanent impairment. This accords with the usual meaning of “condition”. The Arbitrator’s interpretation involves reading the general term “condition” as the more specific term “condition of the body system the subject of the original referral”. This writes additional words into the section.
In submissions in reply, Mr McManamey submitted that this matter can be distinguished from Cram Fluid. That case concerned a claim that the worker made and finalised in 2010. It was conceded that his claim in 2013 was a further claim. If the present application is successful, the claim will not be finalised. There will only be one claim and s 66(1A) will not operate to defeat that claim.
He submitted that s 327 is expressly preserved and given priority in s 322A. The legislation clearly contemplates that the level of impairment found in respect of the one permissible claim is capable of increasing and the mechanism by which the further entitlement may be pursued is by means of a medical appeal. This is in contrast to the mechanism proposed and rejected in respect of s 66A(3)(c) of the 1987 Act, which is to be read as subordinate to s 66(1A). By contrast, s 327 is expressly referred to in the 2012 amendments as continuing to operate.

Discussion and findings

Mr McManamey’s submissions cannot be accepted.
The appeal available in s 327 is against “a medical assessment under this Part”. That is, it is an appeal against the medical assessment made by the AMS under Pt 7 of the 1998 Act. The only medical assessment made by Dr Ho was in respect of the permanent impairment resulting from the injury to Ms O’Callaghan’s lumbar spine (as noted earlier, it seems to have been accepted without challenge that the referral of the lumbar spine included the sacro coccygeal spine).
As Dr Ho was not asked to do so, it was not open to him to assess any other body part (Aircons). It follows that it is not open to use s 327(3)(a) to appeal against an assessment that Dr Ho did not make, that is, an assessment of whole person impairment as a result of injury to the cervical spine. As the respondent submitted, s 327 does not contemplate a situation where a worker can continue to bring claims, under the guise of an appeal, for a deterioration in respect of parts of the body that were not previously the subject of a dispute or an assessment by an AMS.
This point is essentially consistent with the Arbitrator’s reasoning, which I believe is correct, and is sufficient to dispose of the appeal. For completeness, I make the following additional observations.
Mr McManamey’s first submission, namely, that it is the whole person impairment that is certified, misses the point. The AMS does not conduct his or her assessment in a vacuum. The assessment is constrained by the nature of the body part referred. That is what is assessed and it is that “medical assessment” (s 327(1)) that is appealed under s 327.
It may be accepted that the injury to Ms O’Callaghan’s neck and back arose out of the same incident and that s 322(3) provides that, in such circumstances, impairments that result from more than one injury arising out of the same incident are to be assessed together. However, that has no relevance where the referral to Dr Ho was for the lumbar spine (and, implicitly, the sacro coccygeal spine) only. That referral set the parameters or limits for Dr Ho’s assessment.
That s 66 of the 1987 Act provides a mechanism for the calculation of compensation on the basis of the “overall impairment” does not advance Ms O’Callaghan’s position. The calculation is subject to a claim being made and particulars of “all impairments arising from the injury” being provided (s 282(1)(b)).
The latest Guidelines for Claiming Compensation Benefits, which took effect on 11 October 2013, state that relevant particulars about a claim for permanent impairment compensation must include, among other things, the amount of the whole person impairment assessed in accordance with the WorkCover Guides for the evaluation of permanent impairment and a medical report completed in accordance with those Guides (similar provisions are included in the 2009 and 2012 Guidelines).
For claims made on or after 19 June 2012, a permanent impairment claim form is required. That form requires, under the heading “Injury Details”, particulars of the “[b]ody system affected by the injury”. The form must be supported by a medical report from a medical specialist who, for injuries sustained after 1 January 2002, is a trained assessor of permanent impairment with qualifications, training and experience in a medical speciality relevant to the “body system” being assessed. Read in context, the reference to “body system” is clearly a reference to the particular body part or condition concerned.
Once the claim is made, it is for the insurer to either accept it, and make an offer, or dispute it, in which event the matter can be referred to the Commission for determination (s 289). Once referred to the Commission, it must be referred for assessment by an AMS (s 293(2)).
If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless an AMS has assessed the degree of permanent impairment (s 65(3) of the 1987 Act).
The claim Ms O’Callaghan made was based on the injury to her lumbar spine, supported by Dr Giblin, which the AMS accepted (and it has not been challenged) also included the sacro coccygeal spine. That is the claim the AMS assessed. That is the “medical assessment” that may be appealed under s 327(3)(a).
It is correct that s 65(2) of the 1987 Act states that if a worker receives more than one injury arising out of the same incident, those injuries are to be treated as one injury for the purposes of Div 4 of the 1987 Act, which deals with compensation for non-economic loss. However, contrary to Mr McManamey’s submission, that does not mean that the appeal rights in s 327 must relate to the “overall impairment”, however and whenever it may arise. As explained above, claims for permanent impairment compensation must be properly particularised and supported with appropriate medical evidence. Those particulars set the parameters within which the AMS must conduct his or her assessment. It follows that “condition” in s 327(3) does not mean any condition, whenever arising, as a result of the relevant work incident.
It is correct that grounds (a) and (b) in s 327(3) can be distinguished from grounds (c) and (d) in that subsection. However, that does not assist Ms O’Callaghan. The critical point is that a s 327(3)(a) appeal is an appeal against the AMS’s “medical assessment”. In the present case, the AMS made no assessment of Ms O’Callaghan’s cervical spine and, consistent with the authorities applied by the Arbitrator, which are binding on the Commission, there can be no medical appeal with respect to something that the AMS did not assess.
I do not accept that Aircons does not relate to the circumstances contemplated by grounds (a) and (b). Once it is accepted, as it must be, that a s 327 appeal is “against a medical assessment”, Aircons is directly relevant and binding. As held in that case, an AMS can only give a certificate as to the matters referred for assessment. To say that the Medical Appeal Panel is not restricted to the matters in the original referral to the AMS ignores the fact that a matter does not get to a Medical Appeal Panel unless and until the Registrar is satisfied that, on the face of the application and any submissions made in support of it, at least one of the grounds for appeal specified in subsection (3) has been made out.
For the reasons explained above, Ms O’Callaghan has not established any of those grounds. It is not the situation where she had been assessed as having a nil permanent impairment as a result of her neck injury, and now has a five per cent permanent impairment as a result of that injury. She did not claim permanent impairment compensation for her neck injury and was not assessed for that injury.
The reference to s 329 does not assist. That provision can be relied on, as an alternative to an appeal, but only if the matter could otherwise have proceeded on appeal under s 327 (s 327(6)). The current matter cannot otherwise proceed under s 327. Contrary to Mr McManamey’s submissions, the current case is not the very kind of case where the Registrar “may elect” to refer a matter under s 327(6) to allow an AMS to assess the degree of permanent impairment that has resulted from the injury to the cervical spine. The Registrar’s powers under s 327 are not at large, but are confined to the circumstances outlined.
The Arbitrator’s failure to mention s 327(6), which was not the subject of any submissions to him, involved no error. I note in passing that Ms O’Callaghan has never sought to rely on the reconsideration power in s 329 as an alternative to an appeal under s 327. Without expressing any concluded view on it, it is difficult to see how the reconsideration power in s 329 can work with s 322A, which appears to be the dominant provision.
The interpretation urged by Mr McManamey is not consistent with s 322A. That provision was introduced as part of a range of measures introduced in the Workers Compensation Legislation Amendment Act 2012, which were designed to reduce benefits for permanent impairment compensation. It works in concert with s 66(1A) of the 1987 Act, introduced at the same time, which restricts a worker to only one claim under the 1987 Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
Consistent with a worker now having the right to make only one claim for permanent impairment compensation, only one assessment may be made of the degree of permanent impairment of an injured worker (s 322A(1)). Ms O’Callaghan has made one claim and had one assessment of the degree of her permanent impairment for that claim. However, s 322A does not affect the operation of s 327 (s 322A(4)). Therefore, if Ms O’Callaghan were entitled to rely on s 327(3)(a), s 322A would not prevent her from doing so. For the reasons explained above, she is not entitled to rely on s 327(3)(a).
Contrary to Mr McManamey’s submissions, s 327(3)(a) does not allow an appeal in respect of all of the consequences of the work injury. It is confined to its terms and has been the subject of binding judicial scrutiny in Aircons and Riverina Wines. Those decisions make Mr McManamey’s submissions untenable.
The interpretation urged by Mr McManamey is not consistent with s 263(1). That provision provides that all claims for permanent impairment compensation in respect of an injury must, as far as practicable, be made at the same time. That is consistent with the intention manifested in s 66(1A) of the 1987 Act, namely, that workers are restricted to one claim for whole person impairment compensation in respect of the permanent impairment that results from “an injury”. The words “as far as practicable” make no difference to the clear meaning of s 66(1A) and still have work to do in cases involving claims for permanent impairment compensation where a worker has received a primary psychological injury and a physical injury in the same incident (s 65A of the 1987 Act; Tokich v Tokich Holdings Pty Ltd [2015] NSWWCCPD 72 (Tokich)).
It follows that I do not accept that a proper reading of s 327(3)(a) means that there is an appeal so long as there has been a deterioration in the worker’s overall medical condition. That approach is contrary to the binding authorities applied by the Arbitrator, in particular Riverina Wines, and contrary to the language of the section. It is appropriate to set out the full passage relied on by the Arbitrator from Campbell JA in Riverina Wines, at [94]:
“Considering that submission involves, first, construing section 327(3)(a). ‘Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.” (emphasis included in original)
The “condition in question” in the present case is Ms O’Callaghan’s lumbar spine and sacro coccygeal spine, not her cervical spine. “Deterioration”, being “an inherently relational concept”, operates on or with respect to the deterioration of the degree of impairment of “a matter” as to which the assessment of an AMS, certified in the MAC, is conclusively presumed to be correct (s 327(2)). As Dr Ho did not assess Ms O’Callaghan’s cervical spine, he provided no assessment of any “matter” with respect to it that is conclusively presumed to be correct and no question of a deterioration in that condition arises in s 327(3)(a). As it was not assessed, it is not “a matter” that is appealable under s 327(1)).
Mr McManamey’s approach is also not permissible because it seeks to do indirectly that which cannot be done directly (F. Bennion Statutory Interpretation (4th ed) Butterworths, London 2002 pp 879-880, cited with approval by Spigelman CJ in Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 at [26]; McColl JA (Meagher and Hodgson JJA agreeing) in Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231 at [79]).
That is, it seeks to bring a second claim for permanent impairment compensation in respect of the permanent impairment that has resulted from the physical injuries received on 7 January 2011. That is contrary to the clear terms of s 66(1A) of the 1987 Act. Different considerations would apply if Ms O’Callaghan had sought to appeal under s 327 because of a deterioration in the condition of her lumbar spine. (As explained in Tokich, special provisions create an exception where a worker has received a primary psychological injury and a physical injury arising out of the same incident.)
As I have not relied on Cram Fluid in support of my decision, it is not necessary to consider Mr McManamey’s submissions in reply dealing with that decision.

GROUND 2

Submissions

Mr McManamey submitted the Arbitrator relied on JC Equipment for the proposition that a MAC is only presumed to be correct in the proceedings in which it was obtained and that this was an essential part of his reasoning.
However, JC Equipment was decided before the introduction of s 322A, which applies to the present claim. As such, Dr Ho’s MAC “is expressly the only certificate and also determines any threshold dispute for work injury damages or commutation”. Such a certificate is clearly not limited to the proceedings in which it was obtained. It follows that JC Equipment has no application. More importantly, the entire reasoning of the Court has been displaced by legislative change.

Discussion and findings

I accept that it is difficult to see how the part of JC Equipment referred to by the Arbitrator can stand in light of s 322A. That provision provides that only one whole person impairment assessment may be made (s 322A(1)) and that the MAC given in connection with that assessment is the only MAC that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment as a result of the injury concerned (s 322A(2)).
This applies whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation, or a claim for work injury damages. It follows that the one MAC must be able to be used, and be binding, for purposes other than the purpose for which it was obtained.

However, I do not accept that JC Equipment was an essential part of the Arbitrator’s reasoning. It is correct that he referred to it, and that he said it should be followed. He said, at [42]:
“42.The reference in s 327(3)(a) to a ‘deterioration of a condition that results in an increase in the degree of permanent impairment’ must relate to a deterioration of the matters previously referred to the AMS as opposed to a deterioration of any potential overall impairment. This view is consistent with the observation of Tobias JA in JC Equipment when his Honour held that the Certificate is only binding in respect of the purpose for which it was obtained.”
Thus, the Arbitrator merely observed that his view of s 327(3)(a) was “consistent with” the observations of Tobias JA in JC Equipment. It is unclear to me how that is so. His Honour was dealing with whether a MAC given with respect to proceedings in the Commission for lump sum compensation could be conclusively presumed to be correct with respect to proceedings for work injury damages in the District Court. His Honour held that it was not. That does not answer the question in the present case, which turns on the meaning of s 327(3)(a) and the operation of s 66(1A) of the 1987 Act. I therefore do not accept that JC Equipment was an “essential” part of the Arbitrator’s reasoning. If it was, and if it no longer applies, in light of s 322A, the same result follows for the reasons set out above, which rely on Aircons and Riverina Wines.

CONCLUSION

As the appeal does not satisfy the monetary threshold in s 352(3)(a), there is no right of appeal. If I have erred on that issue, the appeal would have failed in any event. On either view, the Arbitrator’s determination is not disturbed.

DECISION

The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 have not been met and there is no right of appeal.

Bill Roche
Acting President

5 January 2016

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.