Ogbonna v Shedvic Australia Pty Ltd
[2023] NSWPIC 553
•20 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ogbonna v Shedvic Australia Pty Ltd [2023] NSWPIC 553 |
| APPLICANT: | Christian Ogbonna |
| RESPONDENT: | Shedvic Australia Pty Ltd |
| MEMBER: | Michael Wright |
| DATE OF DECISION: | 20 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether 11% whole person impairment lump sum claim can be referred to Medical Assessor (MA); no dispute regarding injury or body parts; respondent disputed section 323 calculation of applicant’s doctor, said it was incorrect and result is true calculation of 10%; no medical dispute and no referral can be made; Woolworths Ltd v Stafford and Shankar v Ceba Logistics (Australia) Pty Ltd considered; Held – there was a medical dispute; matter referred to MA. |
| DETERMINATIONS MADE: | The Commission determines: 1. There is a medical dispute within the meaning of s 319(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). 2. By consent, Application amended as follows: a. Date of injury 19 March 2021, b. Under “Permanent Impairment”, additionally claim thoracic spine. 3. Matter remitted to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Actfor assessment as follows: a. Date of injury: 19 March 2021 – personal injury b. Body systems / parts: i. cervical spine ii. thoracic spine. c. Method of assessment: whole person impairment. 4. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents, and b. Reply and attached documents. |
STATEMENT OF REASONS
BACKGROUND
In an Application to Resolve a Dispute (Application), Mr Christian Ogbanna (the applicant) claimed lump sum compensation in respect of 11% whole person impairment of the cervical spine as a result of injury on 19 March 2021 in the course of his employment with Shedvic Australia Pty Ltd (the respondent).
In its Reply, the respondent asserted that “the worker’s lump sum claim is not valid as the IME relied upon of Dr Charles New equates to 10% WPI, below the s66 (1) threshold”. Injury was not disputed.
Attached to the Application were the reports of Dr New dated 20 January 2022 and 20 June 2023. In the earlier report, Dr New assessed the applicant as having 11% whole person impairment in respect of the thoracic spine, cervical spine and “impact of ADL". The assessments in respect of the thoracic spine and cervical spine were reduced by one-tenth for pre-existing injury pursuant to s 323, well the assessment in respect of Activities of Daily Living (ADL) was not so reduced. In the latter report, Dr New was provided with the respondent’s objection to this approach in respect of s 323. He maintained his opinion and position in respect of the calculation and application of the s 323 deduction.
Attached to the Reply was the report of Dr Smith dated 2 August 2022. He was of the opinion that the applicant would have recovered from the injury of 19 March 2021 after three months at most following the injury. He was of the opinion that there was no assessable impairment as a consequence of this injury, that the applicant was embellishing his condition and there was no organic pathology that could produce the symptoms exhibited by the applicant.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
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 have 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.
At the preliminary conference in this matter on 22 August 2023, the applicant was represented by Mr Thomas, solicitor, and the respondent by Ms Davis, solicitor. Following that conference I issued directions on the parties to provide written submissions as to the issue identified in the Reply. Written submissions were thereafter received in the Personal Injury Commission (Commission) from both parties.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no oral evidence.
FINDINGS AND REASONS
Submissions
The respondent has objected to a referral to a Medical Assessor on the basis that there is no assessment before the Commission which satisfies the threshold pursuant to s 66(1) of the Workers Compensation Act 1987 (the 1987 Act).
The respondent submitted that Dr New applied an incorrect method of assessment, such that his assessment of 11% whole person impairment should, it was submitted, have been 10% whole person impairment. It was submitted that Dr New incorrectly applied the s 323 deduction, and a review of a number of Medical Appeal Panel decisions in the Commission showed that the correct manner of applying the s 323 deduction was as the respondent contended. It was submitted that Dr New applied the s 323 deduction to the thoracic and cervical spines, but not to ADL, and the latter should also have been subject to the s 323 deduction.
The result, it was submitted by the respondent, was that there was no medical dispute within the meaning of s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The respondent relied upon and referred to a number of decisions and support of this contention and, it was submitted, which were also contrary to the decision in Shankar v Ceba Logistics (Australia) Pty Ltd[1] (Shankar), which should not be followed or which was not applicable in any event.
[1] [2021] NSWPICPD 18.
The applicant submitted that the issue of the alleged incorrect assessment was raised with Dr New, as was noted by the respondent. The applicant submitted that Dr New provided a supplementary report dated 20 June 2023 which he stood by his assessment of 11% whole person impairment in this matter. It was submitted that Dr New was of the view that he did not make a typographical error or a calculation error, and that he made a valid assessment in accordance with the relevant guidelines.
It was submitted by the applicant that the respondent had tendered no medical evidence supporting the 10% whole person impairment assessment that it contended for in its submissions. It was submitted that the applicant’s s 66 claim does meet the requirements of s 66 (1) on the basis of evidence in the medical reports of Dr New that impairment exceeds the 10% threshold. It was also submitted that the respondents contention as the operation of the assessment of ADLs this matter is part of the definition of medical dispute in s 319 of the 1998 Act, namely “…(c) the degree of permanent impairment of the worker as a result of an injury” and “…(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”.
Reasons
In relation to the respondents submissions as to the incorrect method of assessment said to have been made by Dr New, in my view the respondent is effectively asking me to enter into the medical assessment process, to reject the considered assessment of Dr New, subsequently maintained by Dr New in the face of the very same criticism that is now made, and to substitute my own view of how the relevant guidelines should be applied in making a s 323 deduction. I decline to do so.
I agree with the applicant’s submission that this is not a case of mere typographical or arithmetical error. This is a case concerning the manner of making a s 323 deduction, which in my view falls squarely within the medical assessment process.
It is true that I may make a determination of the degree of permanent impairment without the matter being referred to a Medical Assessor. However, in these circumstances where the question is whether the applicant is assessed as reaching the relevant threshold pursuant to s 66 (1), in my view the matter should be referred to a Medical Assessor before a determination is made.
The respondent referred to a number of Appeal Panel decisions in support of its contention as to the manner of assessing a s 323 deduction. I do not accept that Appeal Panel decisions should apply, nor that their reasons should apply, at this stage of proceedings. The function and role of an Appeal Panel follows the referral by the President of an appeal against the certificate of a Medical Assessor. Both the Appeal Panel and the Medical Assessor have defined statutory roles in the assessment and resolution of medical disputes.
It follows that in my view there is a medical dispute with the meaning of s 319 of the 1998 Act. I agree with the applicant’s submission that the dispute comes within the meaning of sub-ss (c) and (d) of s 319, as outlined above. The applicant relies on Dr New, who has assessed the applicant as having 11% whole person impairment resulting from the subject incident, and who has made a s 323 deduction in the manner noted above. The respondent relies on Dr Smith, who has assessed 0% whole person impairment, with no comment as to a s 323 deduction. There is therefore a dispute as to the degree of permanent impairment, and the s 323 deduction, if any, to be applied.
If I am wrong in finding that the making of a s 323 deduction in these circumstances is for the assessment of a Medical Assessor, then I will deal briefly with the respondent’s other submissions. The consequence that flows from the respondent’s submissions is that if the medical evidence in respect of permanent impairment prior to referral to a Medical Assessor is not more than 10%, or is 0% in a case such as this, then the matter must not be referred to a Medical Assessor. I disagree.
In my view, the reasoning of the decision in Shankar may be applied in appropriate cases, including this one.
The respondent referred to a number of decisions of Members of the Commission, in which the reasoning of Shankar was not applied.
Of importance to the respondent’s submissions, and indeed in some the decisions to which I was referred, was the concept of a “valid claim”. The first observation I make is that neither the 1987 Act nor the 1998 Act provides for a “valid claim”. This phrase may be a shorthand for the process of considering whether or not there is a claim that may be considered for the purposes of referral to a Medical Assessor.
The concept of a “valid claim” appears to have become prominent in the decision of Woolworths Ltd v Stafford[2] (Stafford), to which the respondent referred. The context is important in understanding some of the oft-quoted passages of that decision. As was observed in that decision:
“65. As a worker may now only make ‘one claim’ for permanent impairment compensation in respect of the permanent impairment that results from an injury, it follows that the making of that ‘one claim’ will be much more significant for a worker than in the past, when a worker was not restricted to the recovery of only one amount of lump sum compensation. For the first time, the legislature has introduced into workers’ compensation law the common law concept that damages are awarded once-and-for-all (Assessment of Damages for Personal Injury and Death, Harold Luntz, 4th ed, 2002, Butterworths at para 1.2.1). Therefore, contrary to Mr Parker’s submissions, the term ‘claim’ should not be narrowly construed to mean any ‘demand’.
66. 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). There are a number of reasons for adopting this interpretation.”
[2] [2015] NSWWCCPD 36.
The reasoning process of that decision, continued, importantly in my view:
“69. Second, as accepted by the plurality in Goudappel No 2, the 1987 Act’s ‘remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker’ (at [29], footnote omitted). Moreover, it is accepted that beneficial and remedial legislation is to be given a ‘fair, large and liberal’ interpretation (IW v City of Perth [1997] HCA 30; 191 CLR 1 at 12 per Brennan CJ and McHugh J, 39 per Gummow J; quoted and applied in AB v Western Australia [2011] HCA 42 at [24]; 244 CLR 390).
70. I accept that, as the plurality further explained in Goudappel No 2, not every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. Their Honours added that ‘[t]he purpose of the provision must be identified’. Though the amendments to s 66 have reduced the permanent impairment compensation payable, by introducing a greater than 10 per cent threshold and repealing s 67, the 1987 Act remains beneficial legislation and s 66 continues to have a beneficial purpose, namely, the payment of permanent impairment compensation.
71. It follows that where two constructions are possible, that which is favourable to the worker should be preferred (per Fullagar J in Wilson v Wilson’s Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328 at 335). In the present case, a beneficial interpretation merely interprets ‘claim’ as one valid claim capable of payment in accordance with the legislation. That is perfectly consistent with the intention of the legislation. As will be further explained below, when dealing with the amendment issue, Mr Stafford has only made one claim.”
That is, the decision in Stafford was made specifically in the context of the “one claim for lump sum compensation” issue. That decision expressly applied a beneficial interpretation, that is, by interpreting a “claim” as “one valid claim capable of payment in accordance with the legislation”.
There are a number of interpretations of the effect of Stafford. The first is that the reasoning of a “valid claim” applies strictly, as suggested by the respondent. I do not accept this. In my view regard must be had to the context, particularly with respect to the above passages. A beneficial interpretation was adopted expressly. It would be regrettable if a beneficial interpretation in that context was applied in a non-beneficial manner in this case.
Another interpretation is that the reasoning in Stafford should not be applied at all in this case, as it was limited to a beneficial interpretation expressed to apply in the particular circumstances of a “one claim for lump sum compensation”. There is some force to this interpretation. However, in this case it is not necessary to adopt that view.
A further interpretation, adopting the “preferred beneficial construction” approach proposed in Stafford, is to include in the meaning of a claim for lump sum compensation a claim that may not be currently above the 10% threshold, but for which there is an assessment of permanent impairment, whatever that may be. An assessment of 0% is still an assessment, bearing in mind that a worker may continue to suffer from the ill effects of an injury, such as in the assessment of lumbar spine pain as diagnosis-related estimates (DRE) category 1. Also important in my view is that a Medical Assessor makes the assessment on the day of examination, and the Medical Assessor does not adjudicate between the differing views of other assessors. Similarly, each medical assessment by an Independent Medical Assessor (not a Medical Assessor in the Commission) is made “on the day” of assessment. Medical conditions may fluctuate in intensity. To deny an injured worker the opportunity of medical assessment by a Medical Assessor in these circumstances is to adopt a non-beneficial approach, in my respectful view. I adopt the “preferred beneficial construction” approach in this case.
It follows that in my view the decision in Shankar is not contrary to the decision in Stafford.
Stafford also referred to the decision of the NSW Court of Appeal in Tan v National Australia Bank Ltd.[3] Relevantly, that decision observed:
“38 A number of points of significance can be derived from these provisions. First, s 260 clearly envisages that a claim may not be made as required by the Guidelines and may yet constitute a ‘claim’. Secondly, it may readily be envisaged that factual disputes could arise as to whether a claim has been made and whether a dispute has arisen. Because the Commission is required to operate with as little formality and technicality as the proper consideration of matters before it permits (s 354(1)) and without regard to technicalities or legal forms (s 354(3)) the legislative scheme should be understood to confer on the Commission the power to determine whether or not a dispute has arisen or a claim has been made. That is not to say that the statute may not impose legal constraints, but the Commission is entitled to determine these matters for itself and an error will not be jurisdictional. The dicta to that effect in Fletcher at [39] should be followed.”
[3] [2008] NSWCA 198.
Adherence to the relevant guidelines[4] is therefore a matter that may not be determinative, as in this case.
[4] NSW workers compensation guidelines for the evaluation of permanent impairment, now Fourth edition – reissued 1 March 2021, and the Workers compensation guidelines, 1 March 2021, State Insurance Regulatory Authority.
Also relied upon in the respondent’s submissions was the decision in Abou-Haidar v Consolidated Wire Pty Ltd[5] (Abou-Haidar). Again, the context of that decision is worth considering. That matter involved a claim for lump sum compensation for deterioration of the thoracic spine, where there was medical evidence that there was a higher assessment of thoracic spine permanent impairment than had been previously assessed by an Approved Medical Specialist, but no evidence of deterioration.
“55 …It is not necessary for the Commission to determine, as a threshold issue, whether the worker has demonstrated that his or her condition has deteriorated before the matter is referred to an AMS for a further assessment. 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…”
[5] [2010] NSWWCCPD 128.
This reasoning was given in the context of finding it is not a requirement to prove deterioration for a further lump sum claim. It was reasoning which was given to address an “open the floodgates” argument in respect of deterioration claims. It was not in my view expressed to apply to all possibilities for lump sum compensation claims. In my view, Abou-Haidar is distinguished from the present case.
The respondent also relied upon Sukkar v Adonis Electrics Pty Ltd.[6] That decision concerned a claim for further lump sum compensation for further industrial deafness, being a further 9% whole person impairment, resulting from further noise exposure. The Court in that case held that a claim for lump sum compensation for permanent impairment made on or after 19 June 2012 is a claim to which the 2012 Amending Act applies by virtue of the transitional provision in cl 15, Pt 19H, Sch 6 to the 1987 Act. It was unclear what was meant by a claim being prohibited in not reaching the s 66(1) threshold, and the reasoning process did not elaborate, as it was not the subject of the decision. The decision concluded that the worker was not entitled to receive lump sum compensation for that impairment. In my view, this decision is distinguishable from the present case, as it concerned industrial deafness, and answered specific questions in respect of the worker’s entitlement to lump sum compensation.
[6] [2014] NSWCA 459.
The respondent also referred to Etherton v ISS Property Services Pty Limited[7] (Etherton), and submitted that it was contrary to Shankar as it confirmed a Member is now capable of determining permanent impairment, and also that the decision of Guzman v Trade West Pty Limited,[8] relied upon in Shankar, to the effect that an arbitrator who determined a medical dispute exceeded jurisdiction, was decided before the repeal of s 65(3). I disagree.
[7] [2019] NSWWCCPD 53.
[8] [2017] NSWWCCPD 44.
In Etherton, it was stated that “Mr Etherton’s concern appears to lie solely in the Arbitrator acting ultra vires by virtue of the statutory bar in s 65(3) of the 1987 Act, as opposed to the merits of the Arbitrator’s determination.” It was found that the 2018 amendments applied to the claim and that the arbitrator was within power when he determined the claim for lump sum compensation without referral to a Medical Assessor. However in Etherton, in deciding that an arbitrator was within power in determining the degree of permanent impairment, it was not decided that an arbitrator could not refer a medical assessment to a Medical Assessor in the circumstances of that decision. That is, the reasoning of Etherton is to that extent not contrary to Shankar, and the observations made in Shankar as to the medical assessment process are not contradicted. Similarly in Shankar, the decision in Guzman was discussed expressly acknowledging the application of the then unrepealed s 65(3), and applying the principles said to arise.
Although the outcome in Shankar may appear on its face to be contrary to Etherton, it should be noted that in Etherton the arbitrator’s decision to determine the lump sum claim was not challenged in that appeal, and hence it was not necessary for reasons to be given in this regard in the appeal decision, and so reasons were not given in this regard.
The perceived inconsistency between Shankar and Etherton may be resolved when it is considered that there remains a distinction between a member’s determination and a medical assessment. This was explored in Shankar, where it was noted that the 2018 amendments did not change the medical assessment process in the Commission. The decision in Shankar went further, by reasoning that it remains the case that a member cannot conduct a medical assessment, and that a member must refer such a medical dispute for medical assessment.
What is apparent from the reasoning in Shankar is that the 2018 amendments did not change the process of medical assessment in the Commission, rather those amendments changed the power of the Commission, that is a member, to make a determination in the relevant sense without requiring a prior referral for a medical assessment. As was noted in Shankar, the only statutory indication of how or when this may happen was by providing for the power to make relevant regulations in certain circumstances, which do not appear to have been made. The problem, in my view, lies not with the reasoning of Shankar, but with the change with the 2018 amendments from a “bifurcated” system to a hybrid system in which the boundaries between medical assessment and determination of lump sum rights are not clear.
As for the “open the floodgates” argument, it is always a question in my view as to the weight to be given to the termination of either a worker’s substantive rights, or to the availability of a process of medical assessment in a beneficial scheme. There is nothing, in my opinion, in either the 1987 or the 1998 Acts that expressly requires a member to be a gate keeper to the process of medical assessment, other than liability and related issues such as procedural fairness, in these circumstances. The reasoning in Stafford is relevant here, in that an “open the flood gates” argument was not found to be persuasive.
There was also reliance placed by the respondent on the decisions of Skates v Hills Industries Ltd[9] and Secretary, New South Wales Department of Education v Connolly.[10] However, these submissions were not expanded upon, other than to note that a claim for lump sum compensation is “not at large”.
[9] [2021] NSWCA 142.
[10] [2023] NSWPICPD 38.
That is so, that is there are limits, but it will be seen from the above discussion, the boundaries of a lump sum compensation claim may vary according to the circumstances, adopting a “preferred beneficial construction” approach. Adopting this approach has the result in my view that a case for medical assessment of the worker, such as here, or perhaps where there is a 0% assessment, amongst other assessed body parts or systems, should be referred for the medical assessment process in the Commission before a final determination, possibly involving an adverse outcome for the worker, is considered.
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