Oswell v Sublime Install Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Oswell v Sublime Install Pty Ltd [2023] NSWPICMP 570
APPELLANT:	William Oswell
RESPONDENT:	Sublime Install Pty Ltd
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	13 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor (MA) erred in making a deduction pursuant to section 323; in addition, the appellant seeks a reconsideration of the Medical Assessment Certificate (MAC) on the grounds that the MA did not include an assessment for scarring; Panel held the evidence supported a deduction; the appellant failed to make a claim for scarring; Skates v Hills Industries Ltd considered; no errors; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 July 2023 William Oswell (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
27 June 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
In addition, we note that this appeal also includes an Application for Reconsideration of the MAC issued by Medical Assessor Mastroianni.
We propose to deal firstly with the substantive issues on appeal and will then consider the reconsideration application.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in making a deduction pursuant to s 323 where there is no evidence of a relevant pre-existing condition.
In addition, the appellant seeks a reconsideration of the MAC on the grounds that the Medical Assessor did not include an assessment for scarring.
In reply, the respondent submits that the deduction was open to the Medical Assessor on all of the evidence before him, and further that the reconsideration application should be dismissed for reasons that will follow shortly.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the lumbar spine resulting from a date of injury of
20 January 2020.
However, the Application to Resolve a Dispute claimed an injury due to the nature and conditions of employment with a deemed date of 11 January 2023 (being the date of claim consistent with ss 15 and 16).
The Medical Assessor should have more properly identified the injury as pleaded by the appellant but whether that amounted to a material error will be discussed more fully below.
The Medical Assessor obtained the following history:
“Mr Oswell states that in December 2019 whilst working installing air conditioning ducts he developed back pain. He consulted the doctor and was prescribed medication and referred for an MRI. Symptoms persisted and he developed left leg pain. He was referred to Dr McGee-Collett (neurosurgeon). There was a delay in having surgery because of Covid. On 20 May 2020 he had L3-4, L4-5 laminectomy.
Post op he was not much better and he continued to complain of back pain and left leg pain. He was treated conservatively. He subsequently changed GPs and came under the care of Dr Lim. He had another MRI and he was referred to Dr Khong. He had perineural infiltration. Symptoms persisted and Dr Khong recommended further surgery.
On 10 February 2022 he had L5-S1 decompression and redo L4-5.”
After documenting Mr Oswell’s present treatment regime, the Medical Assessor then noted present symptoms as follows:
“He complains of constant back pain. Pain fluctuates for no particular reason and aggravated by activities. The pain is aggravated by prolonged sitting, standing and walking. Walking on uneven surfaces aggravates the back. Pain radiates to the left shin. He has no other referred symptoms.”
When asked to provide “details of any previous or subsequent accidents, injuries or condition” the Medical Assessor said:
“He states that for a couple of weeks prior to the injury in December 2019 he was getting back pain on and off but needed no treatment. There is no history of any previous or subsequent injury to the back.”
As to the effects of the injury on Mr Oswell’s social activities and activities of daily living, the Medical Assessor said:
“He is married. Family is grown up. He lives in a unit. He says he can’t do the heavier house chores such as vacuuming and mopping because of the back pain. Prior to the injury he went deep sea fishing which he no longer does. He is independent in self-care.”
Findings on examination were noted as follows:
“Man of stated age of medium build.
He walks with a slight limp favouring the right leg. He dresses and undresses with no difficulty and noted to squat normally as he takes his shoes off.
Examination of the spine reveals healed surgical scar in the small of his back extending to the L5-S1 level. The scar is 12cm in length. It is a fine pale scar with some suture marks visible on close inspection. There is colour contrast with the surrounding skin. There is no adherence, no contour defects and no effects on ADL’s. When inspecting the skin, he said that he is conscious of the scar.
He stands erect with normal spinal curve. There is no muscle guarding or muscle tenderness. There is discomfort on palpating the lower lumbar spine. back movements were three quarter normal. He gets on and off the couch with no difficulty and comfortable supine.
Inspection of the lower limbs reveals right valgus deformity measured at 20°. He has normal sensation to light touch and sharp stimuli. Reflexes were normal and symmetrical (knee, ankle and hamstring jerks, right equals left). Power in the lower limbs is normal. Straight leg raise normal. Nerve root tension signs negative.”
The Medical Assessor then set out details of the various radiological material he had as follows:
“No x-rays were brought in for review.
The following x-ray report was on file: MRI lumbar spine, 8/1/2020 – Dr Dugal. Severe multi-level degenerative lumbar spondylosis, lower lumbar facet O/A, multi-level disc bulges. Multi-level central canal stenosis and areas of crowding of the corda equina nerve roots. The MRI confirms small extruded disc fragments in the left L2-3 lateral recess subarticular region, and in the right L5-S1 lateral recess subarticular region. Mild to moderate multi-level foraminal stenosis also noted.”
The Medical Assessor summarised the injuries and diagnoses as follows:
“As a result of the work activities on a particular day (day not recalled) in December 2019, Mr Oswell developed lower back pain and left leg symptoms for which he had two level laminectomy by Dr McGee-Collett and subsequently decompression of the L5-S1 and revision of the L4-5 surgery by Dr Khong.”
The Medical Assessor assessed 16% WPI from which he deducted one-tenth under s 323 for a pre-existing injury, condition or abnormality, leaving a total of 14% WPI.
He explained his calculations as follows:
“Mr Oswell aggravated pre-existing degenerative disease in the lumbar spine for which he had surgery. As he had surgery to the spine he falls into DRE Lumbar Category III (see 10b). He is entitled to further impairment as a result of a second operation and surgery to further levels of the spine (see 10b).
He had a second operation to the lumbar spine for which he gets a further 2% WPI. He gets a further 1% WPI for surgery to the second level in the first operation and a further 1% WPI for surgery to another level in the second operation. Total Whole Person Impairment due to the modifiers is 4%.
DRE III of the Lumbar Spine is 10%-13% WPI. I have assessed 2% for ADL’s. He therefore gets 12% WPI. This combined with the 4% WPI for the modifiers, gives a total impairment of 16%.
MRI at the time of the injury revealed longstanding preexisting multilevel canal stenosis, foraminal stenosis and lumbar spondylosis and facet osteoarthritis. In my opinion the preexisting degenerative disease is a component of the current impairment. Guided by the history of no previous injuries or problems with the back and the radiological findings, I have made a one tenth deduction, applying the provision of S323.
In my opinion a deduction of one tenth is not at odds with the available evidence.
A 1/10th deduction equates to 1.6% WPI. He therefore has 14.4% WPI which rounds off to 14%.”
He then turned to consider the other medical opinions and evidence and said:
“I note the report of Dr Mohammed Assem dated 9/11/2022. I find the same impairment in the lumbar spine as Dr Assem. The doctor makes no deduction for pre-existing condition even though he states that the claimant has pre-existing degenerative disease in the lumbar spine which was aggravated by the employment.
I note the doctor assessed scarring however I was not asked to assess scarring.
I note the report of Dr John Sheehy dated 2/11/2021 and 3/3/2023. I find the same impairment in the lumbar spine as Dr Sheehy and agree with a one tenth deduction.”
The Medical Assessor added:
“The worker has evidence of underlying degenerative disease of the lumbar spine.
In my opinion, persistent symptoms in the back are a result of injuries sustained at work and the underlying degenerative disease.
I am of the opinion that the pre-existing degenerative disease is a component of the current impairment.
I have deducted one-tenth applying the provisions of s323(2) as the extent of the deduction is difficult or costly to determine.”
The appellant makes the following submissions:
(a)    the claim was made by letter dated 11 January 2023. The claim was in respect of an injury suffered as a result of the nature and conditions of employment (deemed date of injury 20 January 2020). The terms of the claim indicate that the claim was in respect of an injury to which section 15 or 16 of the 1987 Act applied;
(b)    the claim was based on the report of Dr Assem dated 9 November 2022;
(c)    Dr Assem took a history that the appellant had worked as a sheet metal worker since arriving in Australia in 1981. The Appellant attributed his injury to the nature and conditions of his employment. There was no history of a frank injury but the development of back pain over time;
(d)    an MRI identified severe multilevel degenerative lumbar spondylosis in January 2020;
(e)    the Appellant underwent an L2-L4 laminectomy. Further surgery in the form of a redo L4/5 and L5/S1 decompression was performed in February 2022;
(f)    Dr Assem assessed a 16% WPI in respect of the lumbar spine to which he added 1% for scarring. He did not make a deduction pursuant to s 323 saying degenerative changes in the lumbar spine were aggravated, accelerated and exacerbated by the nature and conditions of employment;
(g)    the respondent relied upon the opinion of Dr Sheehy. He took a history that symptoms of low back pain commenced at work about Christmas time 2019. He also considered that the appellant had aggravated underlying degenerative changes. He noted that bending and lifting was the nature of the work that the appellant had been performing for 40 years;
(h)    Dr Sheehy assessed a 16% WPI and made a deduction of 1/10 pursuant to
s 323. He said this was on account of the degenerative changes on his imaging. The only imaging he referred to in the report was dated 9 September 2021;
(i)    the Reply did not seek to dispute the description of injury merely relying upon the dispute notices. In fact the only dispute notice was the letter from the respondent’s solicitors on 15 March 2023 offering to settle the matter on the basis of Dr Sheehy’s assessment of 14%;
(j)    the Reply did not seek to dispute the description of injury merely relying upon the dispute notices;
(k)    the Application to Resolve a Dispute claims an injury due to the nature and conditions of employment with a deemed date of 11 January 2023 (being the date of claim consistent with sections 15 and 16);
(l)    the referral identified a date of injury of 20 January 2020. The date of injury expressed in the referral clearly does not accurately describe the medical dispute being referred for assessment. The referral is in respect of a dispute about a frank injury occurring on 20 January 2020. The correct dispute is about a disease injury with a deemed date of 11 January 2023;
(m)     the task for the Medical Assessor is to assess the medical dispute. The dispute is not defined by the referral but by the documents that establish the dispute being the claim letter, the offer of settlement, the Application to Resolve a Dispute and the Reply. See Skates v Hills Industries Ltd [2021] NSWCA 142;
(n)    in the report the Medical Assessor describes the date of injury as
20 January 2020. In his summary he describes an injury as a result of the work activities on a single day;
(o)    he described the injury as an aggravation of pre-existing disease in the lumbar spine. He does not address the critical question which is what “must the degenerative change pre-date”. In other words, the question is whether the condition existed prior to the relevant date to be considered. The Medical Assessor clearly thought that he only had to consider whether the condition pre-existed the date of injury in January 2020. He says “MRI at the time of the injury revealed longstanding pre-existing multilevel canal stenosis, foraminal stenosis and lumbar spondylosis and facet osteoarthritis. In my opinion the pre-existing degenerative disease is a component of the current impairment”;
(p)    the fact that the Medical Assessor only refers to the MRI at the time of injury demonstrates that he was only considering whether the condition pre-existed January 2020. He does not refer to any evidence that supports a conclusion that it pre-existed any earlier date. If he has considered that there is such evidence, he has not referred to it and accordingly has failed to give proper reasons which is itself a demonstrable error;
(q)    in the case of a disease injury the proper enquiry is whether the condition pre-exists the date when the appellant first performed work to the nature of which the disease was due (s 15) or was the first type of work that was a substantial contributing factor to the injury (s 16). In this case this requires identifying a condition that existed prior to the appellant commencing work as a sheet metal worker in 1981. The MRI in 2020 does not establish a degenerative condition that had been present for almost 40 years;
(r)    the Medical Assessor never addresses the correct question. He never considers whether there was a degenerative condition in 1981. He also fails to consider whether the almost 40 years of hard work as a sheet metal worker has contributed and even been the cause of the degenerative condition present in 2020;
(s)    when the matter is properly considered there is no evidence of a relevant pre-existing condition and therefore no basis for a deduction pursuant to s 323. The Medical Assessor has asked the wrong question and this has led to the error of finding a deduction. If he asked the correct question he has failed to give reasons for finding a condition that pre-existed 1981. In any event the evidence does not permit a finding that there was such a condition and a finding to the contrary would be a demonstrable error, and
(t)    the correct result is that the certificate should be revoked and a new certificate issued that certifies a 16% WPI.
The respondent submits as follows:
(a)    the respondent does not dispute the allegation that the appellant suffered an injury under s 4(b)(ii) of the 1987 Act. Both Independent Medical Examiners and the Medical Assessor accept that the appellant’s injury was an aggravation of underlying degenerative change;
(b)    the respondent contends that there is no suggestion that the Medical Assessor accepted that the appellant had sustained a frank injury on 20 January 2020. [As an aside, the respondent notes that if there was an issue with the referral, the appellant did not seek to correct such within the timeframes afforded by the Personal Injury Commission (Commission). In any case, the history reported by the appellant to all medical doctors is clear, and all accept that it was the appellant’s duties with the insured that resulted in injury;
(c)    the respondent does however dispute the appellant’s submissions in respect to the entirety of the appellant’s duties throughout his employment history being relevant, and that the Medical Assessor erred by not considering whether the appellant’s pre-existing condition was evidenced before 1981;
(d)    the respondent notes the injury as pleaded by the appellant reads “The applicant sustained injury to his lumbar spine due to the nature and conditions of his employment with a deemed date of injury of 11 January 2023 as a sheet metal worker with Sublime Install Pty Ltd as his job role involved continuous heavy lifting, movement of objects and material which progressively caused a deterioration in his condition. Please refer to the applicant’s statement for further information.” [The respondent notes that the appellant’s statement is referred to above];
(e)    the respondent submits that it is the duties with the insured, with whom the appellant was employed by from 5 March 2018, that are pleaded as causative of the worker’s injury;
(f)    the appellant’s pleadings, statement, and history provided to all medical practitioners clearly reference only his employment with the insured. At no stage does the appellant reference any prior duties with prior employers, who remain unidentified. There is no suggestion that the appellant’s duties with any prior employers resulted in injury;
(g)    as such, the respondent contends that the appellant’s assertion that the Medical Assessor should have considered whether the worker’s condition pre-existed 1981 is incorrect;
(h)    as such, the respondent contends that the appellant’s assertion that the Medical Assessor should have considered whether the worker’s condition pre-existed 1981 is incorrect;
(i)    the respondent also submits that the acceptance of a s 4(b)(ii) injury automatically triggers a deduction, being that by their very nature, such injuries are the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, which by necessity, must be pre-existing;
(j)    following a full review of all of the evidence available to him, the Medical Assessor has provided a deduction of one-tenth pursuant to s 323 of the 1998 Act. It is clear the Medical Assessor considers the pre-existing degenerative change to be contributing to the appellant’s WPI. That conclusion was open to him on all of the evidence, and
(k)    the Medical Assessor has clearly and thoroughly examined the issue of the deduction to be applied for a pre-existing condition. Based on the evidence before the Medical Assessor, the respondent submits that the one-tenth deduction was appropriate.

DISCUSSION

To begin with, as the respondent correctly points out, it is not disputed that the appellant’s injury fell within the definition contained in s 4(b)(ii) of the 1987 Act.
Section 4(b)(ii) of the 1987 Act provides:
“the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
That being said, it is of necessity an injury by way of “aggravation” of a pre-existing injury or disease. In addition, to satisfy the definition of injury in this section, it must be established that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration.
That of itself means employment with the employer named in the proceedings.
It is true that the Medical Assessor noted the injury as occurring on 20 January 2020, but the history he obtained from the appellant was that symptoms commenced in December 2019. He also said:
“As a result of the work activities on a particular day (day not recalled) in December 2019, Mr Oswell developed lower back pain and left leg symptoms…
“Mr Oswell aggravated pre-existing degenerative disease in the lumbar spine for which he had surgery…”
The appellant’s submission that the Medical Assessor “describes the date of injury as
20 January 2020 [and] in his summary he describes an injury as a result of the work activities on a single day” is misconceived. The Medical Assessor referred to the onset of symptoms in December 2019 and only describes the date of injury of 20 January 2020 in accordance with the referral.
He clearly understood the nature of the injury despite the flawed description in the referral. It is true that on one reading of the referral, it suggests that the dispute is about “a frank injury occurring on 20 January 2020”.
We do not agree with the appellant that the Medical Assessor misunderstood the nature of the referral which he says should have read: “a disease injury with a deemed date of 11 January 2023”.
His findings and reasons are consistent with the correct referral.
In any event, the Commission’s practice and procedure requires parties to a medical dispute to advise of any objection to a Referral for Assessment within three days of the email to the parties advising of the referral. The appellant did not seek to amend or correct the referral within the three days allowed by the Commission.
In addition, as the respondent correctly points out, “the pleadings, statement, and history provided to all medical practitioners clearly reference only his employment with the insured.” In addition, “At no stage does the appellant reference any prior duties with prior employers, who remain unidentified. There is no suggestion that the appellant’s duties with any prior employers resulted in injury”.
Given the terms of the referral and the history obtained, there is no reason why the Medical Assessor should have considered whether the worker’s condition pre-existed 1981 when he apparently commenced work as a sheet metal worker.
The appellant correctly identifies that:
“In the case of a disease injury the proper enquiry is whether the condition pre-exists the date when the appellant first performed work to the nature of which the disease was due (section 15) or was the first type of work that was a substantial contributing factor to the injury (section 16).”
Section 15 deals principally with a disease contracted by gradual process.
Section 16 is relevant to the issues in dispute in this case, and provides that compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation etc. It also provides for a contribution from any employers who employed the worker in the 12 months preceding the claim.
In this case, there is no reference to any prior employers in the claim, nor is there evidence of the type of employment which may have contributed to the aggravation.
The injury as pleaded by the appellant reads:
“The applicant sustained injury to his lumbar spine due to the nature and conditions of his employment with a deemed date of injury of 11 January 2023 as a sheet metal worker with Sublime Install Pty Ltd as his job role involved continuous heavy lifting, movement of objects and material which progressively caused a deterioration in his condition.”
If the appellant considered that his employment from 1981 contributed to his condition, he should have amended his pleadings accordingly.
In short, the appellant is quite clear that his injury arose from his employment with the respondent.
The respondent is quite correct in noting that:
“the acceptance of a s4(b)(ii) injury automatically triggers a deduction, being that by their very nature, such injuries are the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, which by necessity, must be pre-existing.”
In his statement dated 20 April 2023, the appellant said:
“I immigrated to Australia in 1981 and continued to work as a sheet metal worker.
I was employed by Sublime Install Pty Ltd as a full-time sheet metal worker for nine (9) years prior to my injury.
I have sought no other employment and have pursued my career in the sheet metal industry all my life.
In or around December 2019, I was installing heavy air conditioning ducts that weighed between 30kg-80kg whilst in the course of employment, this was when I first felt pain in my low back…”
Although noting he had worked as a sheet metal worker since he arrived in Australia,
Mr Oswell specifically stated that he first felt symptoms in December 2019, consistent with the history provided to the Medical Assessor.
Section 323 of the 1998 Act states:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
A pre-existing condition or injury, even to the same body part, does not automatically invoke a deduction under s 323. The test is whether the pre-existing condition or injury actually contributes to the current impairment. If the evidence does not establish that the previous injury contributes to the impairment then no deduction can be made. However, if the previous injury does contribute, even if it was asymptomatic at the time of the later injury, then there must be a deduction. To put it another way, we understand the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great. (see Ryder v Sundance Bakehouse [2015] NSWSC 526).
The only radiological material before the Medical Assessor was the MRI of the lumbar spine, dated 8 January 2020 which the Medical Assessor noted disclosed:
“Severe multi-level degenerative lumbar spondylosis, lower lumbar facet O/A, multi-level disc bulges. Multi-level central canal stenosis and areas of crowding of the corda equina nerve roots. The MRI confirms small extruded disc fragments in the left L2-3 lateral recess subarticular region, and in the right L5-S1 lateral recess subarticular region. Mild to moderate multi-level foraminal stenosis also noted.”
In the absence of any other such material, it was open to the Medical Assessor to make the deduction he did.
In our view, there was clear evidence of a pre-exiting condition, specifically noted in the MRI and in the terms of the injury pleaded, for the Medical Assessor to conclude that a deduction was warranted.
For these reasons we find no errors in the Medical Assessor’s assessment of the lumbar spine.

THE RECONSIDERATION ISSUE

On 10 July 2023 the appellant wrote to the Commission seeking a reconsideration of the MAC of Medical Assessor Mastroianni pursuant to s 329 of the 1998 Act. The appellant noted that:
“The claim before the Commission was for lump sum compensation for 17% WPI…on the basis of a report from Dr Assem dated 9 November 2022 which included an assessment of 16% WPI for the lumbar spine and 1% for scarring.
We advise that the claim was always intended to include the claim for scarring despite the ARD and referral omitted to make reference to the words ‘scarring.’
Nonetheless, the claim for scarring was included in the claim and had always been intended to form part of the s66 claim…
In support of our submission, the applicant relies on the decision in Skates v Hills Industries Ltd [2020] NSWSC 837 (Skates).”
The respondent opposes the reconsideration application and submits as follows:
(a)    a claim for 17%WPI was made by the appellant on 11 January 2023. The claim was made on the basis of the report of Dr Assem dated 9 November 2022, however the letter making the Appellant’s claim did not particularise the body parts sought;
(b)    the Application to Resolve a Dispute was registered in the Commission on
10 May 2023. In that Application, the Appellant claimed lump sum compensation where degree of permanent impairment is in dispute. Under the heading “Permanent Impairment/Pain and Suffering”, and specifically “Systems Claimed”, the Appellant’s Application listed only “Lumbar spine”;
(c)    the Commission issued a referral on 30 May 2023 which referred the appellant to the Medical Assessor in respect to the body parts listed in the Application, being the lumbar spine. The appellant has submitted that the referral omitted reference to scarring. The respondents submits this was correct, as that system was not listed in the Application;
(d)    the Commission’s practice and procedure requires parties to a medical dispute to advise of any objection to a Referral for Assessment within three days of the email to the parties advising of the referral;
(e)    the appellant did not seek to amend or correct the referral within the three days allowed by the Commission;
(f)    The MAC of Medical Assessor Mastroianni was issued by the Commission on
27 June 2023. It did not include an assessment for scarring, and indeed the Medical Assessor noted that he was not asked to assess scarring. The respondent submits this was correct, as that system was not listed in the Application, nor was it included in the referral to the Medical Assessor;
(g)    noting the issues above, the respondent submits that a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (Hurst v GoodyearTyre & Rubber Co (Australia) Ltd [1953] 27 WCR (NSW) 29), and
(h)    the respondent further relies on the decision of Secretary, New South WalesDepartment of Education v Connolly [2023] NSWPICPD 38 in support of the opposition to the request for reconsideration (Connolly).
The issue sought to be raised in the Skates appeal was whether the Medical Assessor to whom the medical dispute was initially referred was confined to an assessment of the “body parts” specified in the referral from the Commission.
In that case, the worker had suffered a serious wrist fracture and injury to the left ring finger. The medical dispute as to the degree of permanent was referred by the Commission to a Medical Assessor who concluded that the applicant’s left upper extremity (left arm) had become functionally useless and assessed WPI of 61%. An appeal brought by the insurer to the Appeal Panel was upheld on the basis that the Medical Assessor had erred by going outside the terms of the referral and assessing body parts not referred to him.
The referral form specified “body part/s referred” as “Left Upper Extremity (joint ring finger), scarring (TEMSKI)”. The insurer conceded that the referral should also have included reference to the left wrist but the Appeal Panel did not give effect to that concession, considering itself bound by the terms of the referral. The Appeal Panel revoked the certificate and issued a new certificate assessing WPI of 7% based on assessment of the “body part or system” listed as “left upper extremity (joint ring finger)” and scarring only.
Mr Skates sought judicial review of that decision in the Supreme Court of New South Wales. The primary judge upheld the application on the limited basis that the Appeal Panel should have given effect to the insurer’s concession as to inclusion of the wrist but otherwise upheld the decision of the Appeal Panel that the AMS was bound by the terms of the referral and that he had exceeded the referral by assessing impairment in parts of the upper limb other than the wrist and the ring finger.
The Court of Appeal held that:
“The primary judge was correct in finding that the Appeal Panel (subject to the identified concession) was correct in concluding that the approved medical specialist’s assessment contained demonstrable error in failing to be limited to the terms of the applicant’s referral of a dispute.
The applicant’s “application to resolve a dispute” of 8 August 2017, together with the accompanying medical reports, identified a dispute concerning the degree of permanent impairment caused by the injury to the applicant’s left wrist, ring finger and scarring. The purpose of the statutory regime was to resolve the medical dispute identified by the parties’ competing claims. The medical assessment was limited to the dispute so identified.
There were numerous opportunities for both parties to raise the issues now the subject of ongoing disputation in the courts. The fact that neither party did so in a relatively small claim would provide a sound reason for refusing leave to appeal even if error had been demonstrated on the part of the primary judge.”
More specifically, Basten JA said as follows:
“The short explanation is that the jurisdiction of the Commission in relation to a claim for lump sum compensation under s 66 of the [1987 Act]was not at large. The claim was made with respect to a specific injury which occurred in the course of employment on a specified date. The form for an application to resolve a dispute required identification of the date of the injury, a description of the injury, and a description of how the injury occurred. The ‘injury details’ included:
Injury description: Injury to left wrist, ring finger and scarring.
In part 5.6 of the form, which covered permanent impairment, in addition to the date of the injury, the applicant was asked to identify the ‘body parts/systems claimed’ using ‘correct terminology depending on date of injury’. In that column, he included the following statement: ‘Left upper extremity, joint ring finger and scarring’.
This description, it is true, was not in precisely the terms set out earlier in the application.”
In addition, the following statement of Leeming JA is also of relevance:
“Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences ‘Referral of medical dispute’ and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate…
The fundamental legal concept is a dispute. Without a dispute there is no need for any application to the Commission. A fair reading of the respondent’s claim, its supporting documentation and the ARD would plainly reveal the metes and bounds of the dispute, namely whole person impairment of the cervical spine and the left upper extremity (shoulder).”
The appeal was upheld, and the left wrist injury referred for assessment.
In short, in Skates, the s66 claim was identified in different ways in the respective parts of the form for an Application to Resolve a Dispute, permitting referral for further assessment.
To begin with, it is important to note the provisions of s 66(1A) of the 1987 Act which permits only one claim for lump sum compensation. This section was considered by Deputy President Snell in Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52 (Singh) where he noted:
“If the Respondent is permitted to have the MAC reconsidered to include the assessment of additional body parts that did not form part of her claim nor the ‘medical dispute’ between the parties, it sets a precedent in which a worker, if dissatisfied with a MAC, could obtain a further medico legal report inclusive of additional body parts and then seek to have a further assessment. That course of action, if allowed, would avoid the application of s 66(1A) of the [1987] Act, which was specifically introduced to prevent situations such as those in the present matter.”
O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1 is authority for the proposition that the power to refer a matter back for further assessment was limited to those matters referred to in the original assessment.
A similar situation occurred in Connolly.
In that case, the lump sum compensation claim was referred to a Medical Assessor with the referral identifying the body parts to be assessed as the cervical spine and left upper extremity.
The Medical Assessor assessed 20% WPI with respect to the cervical spine, and 0% WPI with respect to the left upper extremity. The Medical Assessor opined that the worker would also be entitled to a further 1% WPI for scarring, but as this was not part of the referral, the Medical Assessor did not include it in the overall assessment.
By way of an Application for Reconsideration of the MAC, the worker claimed that there was error in the Medical Assessor’s finding of no injury to the left upper extremity, and that based on the Medical Assessor’s clinical findings during assessment, he was “obligated” to assess impairment arising as a result of scarring and occipital neuralgia, despite these not being included in the referral.
The appellant employer agreed that the Medical Assessor erroneously found there was no injury to the left shoulder. However, it was argued that the Medical Assessor’s omission of an assessment of impairment for scarring and/or occupational neuralgia was not an error, as these body parts were not the subject of the medical dispute. The appellant referred to the authority in Skates as the guiding authority that body parts subject of a referral in a medical dispute are those which form the claim made to an insurer. The appellant submitted that at no stage was there a claim made for scarring or occipital neuralgia, and thus, in applying Skates, it would be impermissible for assessments to take place as they were not subject of the medical dispute. It was overall submitted that the operation of s 329 of the 1998 Act did not permit the Commission to go beyond the scope of the initial referral to the Medical Assessor.
The worker maintained her reliance on Skates, which it noted was also adopted in Yates v Flavorjen Pty Ltd [2022] NSWSC 388. whereby the court held that although one may look beyond the referral as to the true nature of a medical dispute, the terms of the referral could not be ignored, thus confining a medical assessment to the scope of the referral.
President Phillips agreed with the appellant’s submission. Neither scarring nor occipital neuralgia formed part of the “medical dispute” notified in this matter. “The Member’s finding that Skates implies that a ‘medical dispute’ is capable of change after assessment by a medical assessor] is wrong at law.” The effect of the MAC is, subject to appeal or the application of a slip rule exception, the final resolution of the medical dispute.

In addition, in Skates, the member considered that the MAC issued by the Medical Assessor was “further evidence that was not available to the [respondent].” The Court found that the MAC was the ultimate and binding resolution of the medical dispute. The acceptance that the MAC was further evidence was an error. As Basten JA said in Skates at [27], the jurisdiction of the Commission in a claim for lump sum compensation is “not at large”.
The error regarding the Medical Assessor’s finding that there had been no injury to the worker’s left shoulder, was covered by the procedural direction Procedural Direction relating to the correction of obvious errors in Medical Assessment Certificates.
The decision in Skates can be distinguished from the circumstances of this case.
In Skates, the body parts to be referred had been identified in various ways both in the ARD and other documents, and the insurer conceded that the referral should also have included reference to the left wrist.
In this case however, the letter making the appellant’s claim did not particularise the body parts sought. In the ARD, under the heading “Permanent Impairment/Pain and Suffering”, and specifically “Systems Claimed”, the appellant’s Application listed only “Lumbar spine”.
The appellant did not seek to amend or correct the referral within the three days allowed by the Commission.
The mere statement by the appellant that “the claim was always intended to include the claim for scarring despite the ARD and referral omitting to make reference to the words scarring” is not sufficient to override the underlying principle that, as President Phillips said in Connolly, “The effect of the MAC is, subject to appeal or the application of a slip rule exception, the final resolution of the medical dispute.”
We also remind the appellant of the decision in Hurst v GoodyearTyre & Rubber Co (Australia) Ltd [1953] 27 WCR (NSW) 29 where it was held that a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration.
It is regrettable for the appellant that he is thus unable to pursue his claim for scarring, but we are bound by the authorities to which we have referred.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 June 2023 should be confirmed.

[2023] NSWPICMP 570

13 November 2023