| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Papera v Equity Transport Group Pty Ltd [2022] NSWPIC 421 |
| APPLICANT: | Miranda Papera |
| RESPONDENT: | Equity Transport Group Pty Ltd |
| MEMBER: | Carolyn Rimmer |
| DATE OF DECISION: | 28 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Applicant made a claim for lump sum compensation in respect of the left upper extremity and scarring; respondent submitted that she was not entitled to make a further claim as that would contravene the provisions under section 66(1A) of the Workers Compensation Act 1987 and 322A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held — the applicant had amended her claim made in 2020 and this claim was not a second claim and that it was in the interests of justice to exercise the discretion under s328(1A) of the 1998 Act to refer the matter for further assessment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The matter is referred to a Medical Assessor for further assessment of permanent impairment. 2. Matter to be set down for a telephone conference in relation to any further examinations by an Independent Medical Examiner prior to the matter being further assessed by a Medical Assessor. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Miranda Papera, (the applicant) was employed by Equity Transport Group Pty Ltd (the respondent) as an Operations Supervisor. The respondent was insured by Employers Mutual Limited (the insurer) at the relevant time.
The applicant made a claim in these proceedings in the Personal Injury Commission (the Commission) for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 19% whole person impairment (WPI) of the left upper extremity and scarring (TEMSKI) as a result of the injury on 10 August 2019. The applicant has alleged that in the course of her employment on 10 August 2019, she injured her left shoulder and left elbow.
The respondent issued a s 78 Notice dated 2 September 2021 disputing the claim for permanent impairment on the basis that the applicant was not entitled to make a further claim for permanent impairment compensation as to do so contravenes the legislative provisions contained in s 66(1A) of the 1987 Act and s 322A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
HISTORY OF THE MATTER AND PRIOR PROCEEDINGS
Following the injury on 10 August 2019, the applicant made a claim for weekly payments and medical treatment.
In a Certificate of Capacity dated 14 August 2019 Dr Balasingham, general practitioner (GP) made a diagnosis of “Left shoulder injury, Left upper arm injury, Left forearm injury, Left elbow injury, Bilateral knee injury, Neck injury” as a result of the injury on 10 August 2019.
In an Incident Report dated 16 August 2019, the applicant described her injuries on
10 August 2019 as “left arm, back shoulder and both knees”.In a referral to Dr Adrian Low, orthopaedic surgeon, dated 9 September 2019
Dr Balasingham noted that the applicant had slipped and fallen on the left/right arm and “pain also swelling over the left elbow”.In a report dated 23 July 2020, Dr P Endrey-Walder, consultant general and trauma surgeon, noted that on 10 August 2019 the applicant had tripped over a phone charger and trying to break her fall, put out her arms, landing on her hands and knees on the ground. He noted that an X-ray of the left shoulder on 13 August 2019 highlighted a fracture of the lesser tuberosity. He reported that the applicant was referred for physiotherapy treatment and that referral noted symptoms at the left shoulder and arm, left elbow, both knees and neck.
Dr Endrey-Walder noted that the applicant was referred to Dr Low who performed arthroscopic surgery (acromioplasty, bicipital tenodesis and subscapular repair and reduction of bony fracture) on the left shoulder on 23 September 2019. He noted that on
18 October 2019 the applicant complained of ongoing left elbow pain to her GP. He reported that the X-ray and Ultrasound of the left elbow were unremarkable. Under “Present condition and complaint” Dr Endrey-Walder wrote: “Left elbow - No symptoms”. On physical examination he wrote: “I found no evidence of abnormality at the right [sic] elbow”.
Dr Endrey-Walder assessed 16% WPI based on the restriction of movement in the left shoulder (15% WPI) and scarring (1% WPI).In a letter to the insurer dated 31 July 2020, the applicant’s solicitor, Mr Steve Walker, made a claim for 16% WPI based on the report of Dr Endrey-Walder dated 23 July 2020.
In a report to the insurer dated 29 October 2020, Dr V Panjratan, consultant orthopaedic surgeon, noted that he had reviewed various documents including the report od Dr Endrey-Walder dated 23 July 2020. Dr Panjratan noted the applicant has sustained a left shoulder injury in her fall on 10 August 2019. He assessed 21% UEI or 13% WPI of the left shoulder.
In a letter dated 13 November 2020, icare advised that the applicant’s claim for lump sum permanent impairment had been assessed and offered the sum of $31,010 for 13% WPI. In that letter, the injury was described as a “sprain of the shoulder joint”.
On 15 December 2020 the applicant commenced proceedings in the Workers Compensation Commission (WCC) (matter No 7323/20) (the prior proceedings) for lump sum compensation in respect of the injury on 10 August 2020 as the degree of permanent impairment was in dispute. In that Application to Resolve a Dispute (ARD) after “Injury description/Cause of injury and death” the applicant wrote: “The applicant suffered physical injuries to her left shoulder and scarring while at work on 10 August 2019”. The applicant claimed in that ARD16% WPI of “the left upper extremity” and TEMSKI/Scarring.
In a Medical Assessment Certificate dated 17 February 2021 Dr SK Cyril Wong, AMS, (the AMS) made an assessment of 19% WPI as a result of the injury on 10 August 2019. The matter had been referred to the AMS for assessment of the left upper extremity and scarring (TEMSKI) with the date of injury being 10 August 2019. The AMS reported that when she fell, the applicant felt immediate severe pain in the left shoulder and also had pain at the left elbow. He noted that the applicant had informed him that she had no current symptoms in the left elbow. On examination, the AMS found a restriction of movement in the left elbow and assessed 10% upper extremity impairment (UEI). The AMS made a diagnosis that included a soft tissue injury to the left elbow and noted that this had been treated conservatively. He considered that the applicant continued to suffer pain and stiffness at the left shoulder and elbow. In the “Reasons for Assessment”, the AMS noted that “Despite of a lack of symptoms from the worker for her left elbow. The left elbow was tender to touch and painful to move. Ms Papera thought her left elbow symptoms were from her left shoulder injury. The right elbow was entirely normal. The left shoulder had 10% UEI from range of motion restrictions on this examination”. The AMS noted that Dr Endrey-Walder in his report of 23 July 2020 considered the left elbow had no rateable findings and Dr Panjratan in his report of 29 October 2020 did not provide a rating for the left elbow.
In a report dated 2 March 2021, Dr Endrey-Walder noted that he had re-examined the applicant and found some restriction in the range of left elbow movement. He assessed 1% UEI due to restricted extension and 6% UEI due to restricted flexion which combined with 25% UEI for the left shoulder as assessed on the last examination resulted in 30% UEI or 18% WPI. Combined with 1% WPI for scarring, the total assessment was 19% WPI.
Dr Endrey-Walder wrote:
“As it relates to her left elbow, I note that in my previous report (23.7.2020) I
acknowledged her complaining to her doctor of left elbow pain on 18.10.2019,
that is, just over two months after the accident of August 2019.
That said, it was her testimony to me at the time that she had no symptoms at
the left elbow and on physical examination I could not fault the range of
movement at that joint.
In a Medical Assessment Certificate by Dr Wong (17.2.2021) there is
acknowledgement of your client having no symptoms at the left elbow but the
doctor found a degree of restriction in the range of movement which he
assessed.
On my physical examination today I found restriction in the range of
movement at the left elbow, as opposed to my findings seven months ago, although not to the extent that Dr Wong described”.
In a letter to the insurer dated 5 March 2021, the applicant’s solicitor, Mr Steve Walker, under the heading “Amended Claim” made a claim for 19% WPI based on the report of Dr Endrey-Walder dated 2 March 2021.
On 16 March 2021 the respondent appealed the decision of the AMS.
In a letter dated 8 April 2021 icare advised that liability had been accepted for the injury on 10 August 2019 and detailed the injury as a: “sprain of shoulder joint, strain of unspecified muscles, fascia and tendons at forearm level, unspecified arm, contusion of knee, unspecified strain of elbow, strain of muscle, fascia and tendon at neck level”.
In the decision of the Medical Appeal Panel (MAP) dated 28 June 2021 the MAP revoked the decision of the AMS. The MAP issued a new Medical Assessment Certificate which removed the assessment made in respect of the left elbow and limited the assessment to that of the left shoulder and scarring, with a resultant total of 14% WPI. The reasons of the MAP are set out below:
“40. The ARD filed for Ms Papera pleaded that Ms Papera suffered an injury to her left shoulder and scarring. The medical reports for both parties assessed permanent impairment in respect of her left shoulder and scarring. The submission made on behalf of Ms Papera that the ARD sought a referral in respect of the left upper extremity cannot be accepted when the claim in the same document is limited to left shoulder.
41. While Equity Transport has never disputed that Ms Papera suffered an injury to her elbow, that is insufficient to permit her to now recover permanent impairment compensation in respect of it. She did not make a claim as required by s 282 of the 1998 Act in respect of that compensation and could not have done on the basis of her medical evidence.
42. The terms of the ARD limited Ms Papera's entitlement to assessment to her left shoulder and scarring. The brief provided to the Medical Assessor contained a copy of the ARD and all of the evidence relied on. The Medical Assessor commented on the reports of Dr Endrey-Walder and Dr Panjratan as he is required to do by the MAC template and noted that neither doctor has assessed permanent impairment as a result of an injury to Ms Papera's elbow.
43. Though the AMS may not have been alert to the legal issues, his assessment was nonetheless in error.”
On 1 July 2021 the applicant filed an Election to Discontinue in Matter No 7323/20.
In a letter to the insurer dated 14 July 2021, the applicant’s solicitor, Mr Steve Walker, made a claim for 19% WPI based on the reports of Dr Endrey-Walder dated 2 March 2021,
23 July 2020 and the MAC of the AMS dated 17 February 2021.In an email dated 30 July 2021, Mr Richard Orr of TurksLegal advised that a choice of three orthopaedic surgeons would be sent to the applicant and that in the meantime he was instructed to make an offer of 14% WPI for the left upper extremity (shoulder).
It appears that the respondent made arrangements for the applicant to be examined by
Dr JB Stephenson on 21 September 2021 but that appointment was cancelled due to COVID restrictions.In a s 78 Notice dated 2 September 2021, icare disputed the claim for permanent impairment on the basis that the applicant was not entitled to make a further claim for permanent impairment compensation as to do so contravenes the legislative provisions contained in
s 66(1A) of the 1987 Act and s 322A of the 1998 Act.
ISSUES FOR DETERMINATION
The parties agree that the following issues were previously notified as disputed and remained in dispute:
(a) whether a further claim for permanent impairment compensation contravenes the legislative provisions contained in s 66(1A) of the 1987 Act, and
(b) whether a further claim for permanent impairment compensation contravenes the legislative provisions contained in s 322A of the 1998 Act.
A preliminary issue arose in the arbitration when the applicant sought leave to amend the ARD to include a determination of a threshold dispute in the claim made. The respondent opposed the amendment and I dealt with it on an
ex- tempore basis. Without setting out my reasons in full, I declined to give the applicant leave to amend the ARD and noted that this amendment had just been raised in the hearing and the respondent had been given no notice of the amendment sought. The respondent claimed that they would be prejudiced if the matter proceeded on that basis as the respondent had no opportunity to consider the amendment or prepare submissions in respect of it. The applicant elected to proceed after the amendment was declined.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
The parties attended a conciliation conference and arbitration conducted via the audiovisual platform TEAMS on 6 July 2022. The applicant was represented by Mr Stuart Moffet, who was instructed by Mr Steve Walker and Mr Covic of Walker LawGroup. The respondent was represented by Mr David Saul, who was instructed by Mr Richard Orr of TurksLegal.
Ms Melinda Hatfield and Ms Miriam Menge from the insurer also attended the conciliation conference and arbitration.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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Application to Admit Late Documents filed by the applicant on 6 July 2022 and attachments;
(c) Reply and attached documents, and
(d) ARD and attached documents in Matter No 7323/20 filed by the respondent on 6 July 2022.
The parties were directed to refile in the Registry copies of the Application to Admit Late Documents and attachments filed by the applicant on 6 July 2022 and of the ARD and attached documents in Matter No 7323/20 filed by the respondent on 6 July 2022. These documents were, by consent, emailed directly to me during the arbitration.
Submissions
The submissions of the parties were recorded and I do not propose to repeat those submissions in full. However, I note that the respondent submitted that the claim made in the prior proceedings was confined to the left shoulder injury. Section 66(1A) of the 1987 Act, which was inserted into the Act in 2012, provides that only one claim can be made for permanent impairment compensation that results from an injury. Section 322(A) of the 1998 Act provides that only one assessment may be made of the degree of whole person impairment of the injured worker. The respondent argued that s 329 did not override the provisions of s 322A. The respondent submitted that the decisions of Stines v The GEO Group Aust Pty Ltd (2021) NSWDC 550 (Stines) and Singh v B & E Poultry [2018] NSWWCCPD 52 (Singh) made it clear that s 66(1A) and 322(A) governed permanent impairment compensation and only one claim and one assessment was permitted.
The applicant submitted that the applicant was simply trying to give effect to the assessment by the AMS in the prior proceedings and his assessment of her WPI. The applicant argued that s 329 of the 1998 Act, which was not repealed in 2012, still operated in certain circumstances. The applicant conceded that there were limits to the operation of s 329 but submitted that the section still provided a broad discretion which could be exercised properly and in a manner that was consistent with the provisions of the 1998 Act. The applicant argued that this case should be distinguished from Stines for the following reasons: the permanent impairment in the left elbow was identified by the AMS which is rare; the injury to the left elbow was a primary injury; the injury to the left elbow was not previously evaluated and therefore there had been no opportunity for the applicant to include it specifically in the claim in the prior proceedings which were based on the report of Dr Endrey-Walder dated
23 July 2020; a further referral would be consistent with the original referral; the MAC had already been the subject of an appeal; the left elbow injury was an accepted injury and the respondent had not dispute whether there had been an injury to the left elbow.The applicant submitted that the facts in this case were quite different to the facts in other cases and the interests of justice required that the discretion in s 329 be exercised to allow a further assessment of permanent impairment. The applicant noted that the MAC was revoked over a technical issue and argued that s 329 had a role to play to give effect to the actual assessment of the AMS for an accepted injury.
In reply, the respondent argued that even if there was a discretion under s 329, which was not conceded, the facts in this case did not warrant the exercise of the discretion.
FINDINGS AND REASONS
The medical evidence has been set out above apart from the reports of Dr Endrey-Walder dated 2 March 2021 and the two reports filed by Ms Papera in an Application to Admit late Documents dated 2 July 2022.
In a referral dated 14 August 2019 to Mr Michael Teren, Dr Mohanadas Balasingham, GP, wrote: “Tripped on a Phone cord left shoulder injury, left upper arm injury, left forearm injury, left elbow injury, bilateral knee injury, neck injury”.
In a referral to Dr Adrian Low dated 9 September 2019, Dr Balasingham noted that
Ms Papera had slipped and fallen on the “left/right arm” and there was pain also and swelling over the left elbow.Dr Endrey-Walder, in his report dated 2 March 2021, noted that on examination that day he found that Ms Papera had some restriction in the range of left elbow movement. He noted that she had 5 degrees deficit in extension and could only flex the joint 10 100 [sic] degrees. He concluded that Ms Papera had 1 % UEI due to restricted extension and 6% UEI due to restricted flexion. He noted that combining the 25% UEI he found at the left shoulder on
23 July 2020 with the 7% UEI at the elbow she had 30% UEI of the left upper limb, which was equivalent to 18% WPI. He noted that a further 1% for scarring should be combined with the 18% resulting in a total assessment of 19% WPI.In his further report dated 2 March 2021, Dr Endrey-Walder noted under “Current symptoms” that Ms Papera said she had no problems with the left elbow. On examination, Dr Endrey-Walder found that at the left elbow she lacked five degrees at the limit of extension, had 100 degrees range of flexion. Under “Opinion” Dr Endrey-Walder wrote:
“As it relates to her left elbow, I note that in my previous report (23.7.2020) I
acknowledged her complaining to her doctor of left elbow pain on 18.10.2019,
that is, just over two months after the accident of August 2019.
That said, it was her testimony to me at the time that she had no symptoms at
the left elbow and on physical examination I could not fault the range of
movement at that joint.
In a Medical Assessment Certificate by Dr Wong (17.2.2021) there is
acknowledgement of your client having no symptoms at the left elbow but the
doctor found a degree of restriction in the range of movement which he
assessed.
On my physical examination today I found restriction in the range of
movement at the left elbow, as opposed to my findings seven months ago, although not to the extent that Dr Wong described.”
Evidence of the applicant
In a statement dated 11 December 2020, the applicant stated that when she fell on
10 August 2019, she had significant pain in her left shoulder. She said that on
23 August 2019 she had further medical imaging including an X-ray and ultrasound of the left shoulder and elbow and a CT scan of the left shoulder.In a supplementary statement dated 24 May 2022 the applicant said that she wished to clarify that she was mainly referring to her left elbow when she recorded that she had an injury to her left “arm”.
I accept the evidence of the applicant. There was some doubt as to whether the respondent conceded that there had been an injury to the left elbow in the fall on 10 August 2019. After considering the applicant’s evidence and the referrals, reports and certificates of
Dr Balasingham, I am satisfied that the applicant injured her left elbow in the fall on
10 August 2019. Indeed, I am of the view that the insurer conceded an injury to the left elbow in the letter dated 8 April 2021.
Section 66(1A) issue
The first matter to be determined in my view is whether the applicant is precluded by
s 66(1A) of the 1987 Act from making a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in terms of the 2021 claim.Section 66(1A) of the 1987 Act is as follows:
“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:….”
Section 66 of the 1987 Act was amended as part of the broader 2012 amendments, which were intended to deliver urgent reforms to the workers compensation scheme to “ensure better protection for injured workers, save businesses from unnecessary premium hikes and get the scheme back into surplus”. (New South Wales Legislative Assembly, (Hansard), Second Reading Speech for Workers Compensation Legislation Amendment Bill 2012, 19 June 2012 (Second Reading Speech). The 2012 amendments to s 66 of the 1987 Act, included the introduction of a minimum threshold of greater than 10% WPI and a limit of only one claim “to reduce disputes and reduce administration costs while allowing the scheme to focus on the more seriously injured workers”. (Second Reading Speech, at [14]).
Both parties referred to the question of statutory interpretation, so it is appropriate to set out some basic principles.
The plurality explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky), at [78]:
“the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” (footnote omitted)
Their Honours quoted, with apparent approval, the statement by Dixon CJ in Commissioner for Railways (NSW) v Agalianos [1955] HCA27; 92CLR 390 at 397 that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.
When it is said that the legislative “intention” is to be ascertained, “what is involved is the ‘intention manifested’ by the legislation” (Wik Peoples v Queensland [1996] HCA 40; 187CLR 1 at 168–169; cited with approval by French CJ, Gummow, Hayne, Crennan and Kiefel JJ in Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [31]).
There is no objects clause in the 1987 Act but the 1998 Act identifies “system objectives” in
s 3. That section provides:“3 System objectives
The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:(a) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,
(b) to provide:• prompt treatment of injuries, and
• effective and proactive management of injuries, and
• necessary medical and vocational rehabilitation following injuries,in order to assist injured workers and to promote their return to work as soon as possible,
(c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,
(d) to be fair, affordable, and financially viable,
(e) to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,
(f) to deliver the above objectives efficiently and effectively.”While Mr Moffet argued that one purpose of the 1987 Act and 1998 Act is to benefit workers, I do not agree that every grant of an entitlement should be construed broadly because it is part of a beneficial scheme. Section 3(d) of the 1998 Act identifies another object as being "to be fair, affordable and financially viable". In Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47at [5] Gleeson CJ said:
"[5] ... In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretaion Act 1901 (Cth). It is also required by corresponding State legislation, including, so far as presently relevant, s18 of the Interpretation Act 1984(WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose." (citations omitted)
The 1987 Act and 1998 Act do not pursue a sole purpose of providing the maximum amount of benefits to workers at all costs. Where, as here, the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. To construe the 1987 and 1998 Acts as though they pursue only the purpose of providing benefits to workers to the fullest extent possible would be contrary to the manifest intentions of the legislation.
The applicant referred to the decision in Woolworths Limited vStafford, [2015] NSWWCCPD 36 (Stafford) where Roche DP discussed what constituted a “claim... made under this Act for permanent impairment compensation” for the purposes of s 66(1A) of the 1987 Act and whether a claim could be amended. Mr Stafford suffered a serious head injury on
14 June 2010. In April 2014, Mr Stafford made a claim for permanent impairment compensation in respect of 7% WPI, which was less than the 10% threshold in s 66(1) of the 1987 Act. The insurer denied liability following the High Court’s decision in Goudappel No. 2 [2014] HCA 18; 308 ALR 213. No further action was taken in respect of the claim until September 2014, when an amended claim was made in respect of 12% WPI, on the basis that Mr Stafford was then assessed as having 12% WPI following neuropsychological testing. The insurer denied liability on the basis that s 66(1A) prevented Mr Stafford from making a further claim for compensation. The arbitrator in the initial WCC proceedings determined that Mr Stafford had made only one claim and was not precluded by s 66(1A) from bringing a further claim.On appeal, Roche DP examined the statutory meaning of the term “claim and held that the term “claim” in s 66(1A) of the 1987 Act imported more than a demand for payment and had to be capable of payment. He stated at [58]:
“For the reasons explained below, applying the above principles in the present matter, and interpreting ‘claim’ in its proper context, leads to only one conclusion, namely, that it was open to the Arbitrator to find that a ‘claim’ in s 66(1A) imports more than a ‘mere demand for payment but rather is to be read as referring to a claim made in accordance with the 1987 [Act] and [the] 1998 [Act]’... .”
The Deputy President stated at [68] that a construction that appeared “irrational and unjust” should be avoided. The Deputy President acknowledged at [71] that the 1987 Act remained beneficial legislation and “a beneficial interpretation interprets ‘claim’ as one valid claim capable of payment in accordance with the legislation”.
The Deputy President stated at [72] that:
“a ‘claim’ for permanent impairment compensation is, by definition, a claim for a ‘monetary benefit under’ the legislation. A monetary benefit under the legislation is compensation that is paid or payable. If the claim cannot succeed, because it is under the s 66(1) threshold, it cannot be a ‘claim’ for a monetary benefit under the Act.”
The Deputy President determined that the claim made by Mr Stafford in April 2014 was not a valid claim because it was not a claim capable of payment in accordance with the 1987 Act. Accordingly, it could not be his “one claim” for permanent impairment compensation under s 66(1A) of the 1987 Act.
Further, the Deputy President stated that a claim, whether valid or invalid, can be amended prior to its resolution or determination:
“90. The suggestion that a claim for permanent impairment compensation, whether valid or invalid, cannot be amended prior to its resolution or determination is clearly wrong and is rejected.
91. It is true that neither the legislation nor the Workers Compensation Commission Rules 2011 (the Rules) deal with the amendment of the initial letter of ‘claim’ for permanent impairment compensation or a permanent impairment claim form. That is hardly surprising. As explained earlier in this decision, when a claim is at that informal stage, the purpose of making a ‘claim’ is merely to start the claims procedures in Ch 7. It is not a formal pleading. To suggest that, prior to the resolution or determination of the claim, by making a demand for permanent impairment compensation for a certain level of permanent impairment, the worker is permanently locked into that claim, and cannot amend it, is untenable and contrary to all principles of justice.”
92. Once an Application to Resolve a Dispute is filed with the Commission, Pt 4 r 4.2 of the Rules provide that the Commission may, on the application of a party, give the party leave to amend any document lodged by the party in the proceedings ‘if the Commission considers the amendment to be necessary for the avoidance of justice” (Pt 4 r 4.2(1)). Such an amendment may be made at any stage of the proceedings and on such terms as the Commission thinks fit (Pt 4 r 4.2(3)). Where the Commission grants leave to amend a document, it may give directions as to the conduct of the proceedings consequent on the amendment.
93. As an applicant is permitted, with leave, to amend the formal Application to Resolve a Dispute, “for the avoidance of injustice”, so too must a claimant be permitted to amend a letter of claim, or a permanent impairment claim form, prior to the resolution or determination of the claim and prior to commencement of proceedings in the Commission. The contrary suggestion is unsupported by any authority or reasoning. It is clearly preferable that a letter of claim for permanent impairment compensation, or a permanent impairment claim form, should not be served until the worker’s condition is stable and has reached maximum medical improvement. If that is done, as it should be, the issue of amending the claim will rarely arise.
94. However, there will be rare cases, such as the present, where there is a change in impairment between the date of the initial claim and the date of resolution or determination of that claim. In such cases, it is appropriate that the claim be amended to reflect the correct position. That is especially so where workers are now restricted to only “one claim” for permanent impairment compensation and where formal proceedings have not commenced in the Commission. It is clearly in the interests of justice that, subject to any prejudice to the appellant, and none has been suggested in the present case, particulars of the worker’s claim properly reflected the claim that is being pursued.
95. The letter of 26 September 2014 was not a second claim. It merely amended the first claim. Except as otherwise provided by an order or rules of court, and Pt 4 r 4.2 is silent on this issue, amendments to pleadings take effect from the date of the original document which it amends rather than from the date when the amendment is made (Baldry v Jackson [1976] 2NSWLR 415at 419 per Samuels JA, citing Warner v Sampson [1959] 1QB 297and Sneade v Wotherton Barytes and Lead Mining Co Ltd [1904] UKLawRpKQB 16; [1904] 1KB 295).
96. In the absence of any other special provision in the legislation or Rules, there is no reason why the above principle should not apply to a document prepared prior to the commencement of proceedings... Thus, the amendment effected by the letter of 26 September 2014 took effect from the date of the first claim on 7 April 2014.”
In Mehmet Yildiz v Victoria Yeeros Pty Ltd [2016] NSWWCC 108 (Yildiz) Arbitrator Harris considered whether a worker was precluded from pursuing a claim by s 66(1A) of the 1987 Act. Arbitrator Harris found that the initial claim had “resolved” by the issue of the Certificate of Determination in April 2014 in accordance with the MAC and that Mr Yildiz could not pursue the November 2015 claim because it was precluded by s 66(1A) of the 1987 Act.
In Yildiz, Arbitrator Harris referred to the reasons of Deputy President Roche in Stafford (at [66]-[67]). Arbitrator Harris stated that it was clear that in Stafford the claim had not been determined.
The applicant also referred to the decision of the Court of Appeal in Cram Fluid Power Pty Limited v Green [2015] NSWCA 250, (Cram Fluid). In that case, the Court of Appeal considered the effect of the 2012 amendments in relation to a second claim for permanent impairment compensation in circumstances where the worker’s initial claim for permanent impairment compensation had been made, accepted and paid pursuant to a complying agreement prior to 19 June 2012. Mr Green’s back condition deteriorated and he had surgery in September 2012. In October 2013, Mr Green made a claim for further permanent impairment compensation, which the insurer denied on the ground that s 66(1A) of the 1987 Act precluded him from bringing a further claim for permanent impairment compensation. An Arbitrator of the WCC determined that Mr Green was not precluded from bringing his further claim for permanent impairment compensation and a Presidential appeal upheld the decision of the Arbitrator. That decision was appealed to the Court of Appeal.
In Cram Fluid, the Court of Appeal held at [104-110] that as Mr Green had made a claim that specifically sought compensation pursuant to s 66 of the 1987 Act and he recovered permanent impairment compensation pursuant to a complying agreement prior to
19 June 2012, he was not entitled to rely on cl 11 of the 2010 Regulation (currently cl 10 of the 2016 Regulation). Accordingly, he was precluded by s 66(1A) of the 1987 Act from bringing the further claim for permanent impairment compensation.In Cram Fluid, no issue arose as to whether the 2010 claim was other than a valid claim, and the Court was of the unanimous view that the entry into a complying agreement which provided for compensation to be paid, meant that the initial claim had been ‘resolved’.
In Stafford, the claim initiated in April 2014 was unresolved when it was sought to be amended in September 2014. Roche DP in Stafford did not provide any guidance on the meaning of “resolution” or “determination”. In Yildiz, Arbitrator Harris found that the initial claim had been “resolved” when Mr Yildiz’s rights merged “into determination” by the WCC’s issue of a Certificate of Determination in accordance with a MAC. In Cram Fluid, the Court of Appeal was unanimously of the view that entry into a complying agreement which provided for compensation to be paid meant that the initial claim had been “resolved”.
In Yildiz vFullview Plastics Pty Ltd [2019] NSWWCCPD 24 (Fullview Plastics), Phillips P held that the later claim was a new and separate claim to the original claim that had been made and resolved by complying agreement and could not be attached to that earlier claim. Phillips P noted at [69-72] that it had not been argued that the original claim, which had been resolved by a Complying Agreement, had been amended to include the later claim.
Having regard to the authorities, I am of the view that in the present case, there was no signing of a Complying Agreement resulting in the payment of compensation and no Certificate of Determination was issued after the MAP issued a MAC. Indeed, the proceedings were discontinued on 1 July 2021 about three days after the MAC revoked the MAP issued by the AMS and issued a new MAC. That being the case, I am not satisfied that there was a “resolution” of the 2020 claim which had been made in the WCC.
In this matter, the claim was amended on 2 March 2021 to include a claim in respect of the left elbow.
In accordance with the reasoning of Roche DP in Stafford, I am satisfied that the 2020 Claim was a valid claim, but the claim was unresolved when the applicant amended the claim by letter on 2 March 2021 and remained unresolved as the proceedings in the WCC were discontinued. Further, in accordance with the reasoning of DP Roche in Stafford, I am satisfied thatthe 2020 Claim, which was valid, could be amended prior to its resolution or determination.
In the circumstances, I accept that the 2020 Claim was amended by the letter sent
2 March 2021. I therefore accept that the “Claim” made in 2021 was not a second claim for permanent impairment compensation.On that basis, the applicant is entitled to pursue her claim for permanent impairment compensation pursuant to s 66(1) of the 1987 Act. Section 66(1A) of the 1987 Act does not apply to preclude the claim which was amended on 2 March 2021 for 19% WPI in respect of injury to the left upper extremity (left shoulder and elbow) sustained on 10 August 2019 and for scarring to the left upper extremity.
Section 322A issue
Section 322A of the 1998 Act is as follows:
“(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(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:
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by Arbitrator).”
The applicant submits that the restriction in s 322A of the 1998 Act of any further assessment of the degree of permanent impairment must be read together with s 329.
Section 329 of the 1998 Act is as follows:
(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 President 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 President to the medical assessor 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.”
The respondent in the present case argued that s 329 did not override the provisions of
s 322A. The respondent submitted that the decisions of Stines v The GEO Group Aust Pty Ltd (2021) NSWDC 550 (Stines) and Singh v B & E Poultry [2018] NSWWCCPD 52 (Singh) made it clear that ss 66(1A) and 322(A) governed permanent impairment compensation and only one claim and one assessment was permitted.In my view, s 329(1A) of the 1998 Act, which was not repealed in 2012, still operates in certain and limited circumstances and should not be used in an “unrestrained or unlimited way” but only when the dictates of justice require a further referral for assessment.
The applicant attached to the ARD in this matter various submissions made in the prior proceedings after the respondent lodged an appeal from the decision of the AMS, Dr Wong, to the Appeal Panel. These submissions refer to the decision of Adamson J in Skates v Hills Industries Ltd [2020] NSWSC 837(Skates).
The decision of Adamson J in Skates
In Skates at [11-18] Adamson J said:
“11. In Part 4 of the application, the injury was described as “injury to left wrist, ring finger and scarring”. The description of how the injury occurred was:
‘The applicant fell from a ladder whilst accessing a roof to complete a pay TV installation severely injuring his left wrist and ring finger.’
12. In Part 5, headed ‘Claim details’, the Claimant specified in 5.6, ‘Permanent impairment including pain and suffering’ that the date of injury was 7 June 2013, the ‘body parts/systems claimed’ were ‘left upper extremity, joint ring finger and scarring’ and the percentage WPI was said to be 18%, giving rise to an amount claimed of $26,950.
13. The Employer filed a reply on 29 August 2017.
14. On 1 September 2017, a delegate of the Registrar issued a referral for assessment of permanent impairment to an Approved Medical Specialist (AMS). In the referral, the date of the injury was said to be 7 June 2013. The ‘body part(s) referred’ were said to be “Left upper extremity (joint ring finger), scarring (TEMSKI)…
15. The AMS examined the Claimant on 29 September 2017. He found evidence that he was suffering from a condition known as complex regional pain syndrome (CRPS). …The AMS did not assess the Claimant as he had not reached “maximum medical improvement”, a pre-condition to assessment of WPI...
16. Ultimately, on 16 November 2017, the Commission issued a certificate of determination stating that the Claimant’s degree of permanent impairment was not fully ascertainable and that the proceedings could be restored when he had attained maximum medical improvement.
17. On 24 January 2019, the Claimant asked that the proceedings be restored and that he be referred for assessment by an AMS. The parties agreed that the referral should be to Dr Machart, the AMS who had previously examined the Claimant.
18. On 13 March 2019, the Registrar’s delegate notified the parties of the proposed referral for WPI in respect of the injury sustained on 7 June 2013. The ‘body part(s) referred’ were said to be ‘Left upper extremity (joint ring finger), scarring (TEMSKI)’. The email stated that any objection to the referral should be lodged and served within three working days.”
At [20] Adamson J set out the terms of the referral to the AMS:
“Because of the importance of the terms of the referral, I propose to set it out in full:
“WORKERS COMPENSATION COMMISSION
REFERRAL FOR ASSESSMENT OF PERMANENT IMPAIRMENT
TO APPROVED MEDICAL SPECIALIST
Matter Number: 003957/17
Applicant: Anthony Earl Skates
Respondent: Hills Industries Ltd
Date of Request: 13 March 2017 [sic, 2019]
1. MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
• the degree of permanent impairment of the worker as a result of an injury (s319(c))
• whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
• whether impairment is permanent (s319(f))
• whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 7 June 2013
Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)
Method of assessment: Whole Person Impairment…
Dispute Services Coordinator
As delegate of the Registrar”At [28] Adamson J said:
“Section 66(1A) provides that only one claim can be made under the 1987 Act for permanent impairment compensation in respect of permanent impairment that results from an injury. A claimant cannot commence court proceedings for the recovery of work injury damages unless the degree of WPI has been assessed by an AMS to be at least 15%: ss 313 and 314 of the Act.”
At [32] Adamson J said
“…An AMS to whom a medical dispute has been referred is to give a medical assessment certificate as to the “matters” referred for assessment: s 325(1)…”
At [48] Adamson J said:
“Dr Blount, who appeared for the Employer, submitted that the AMS was bound by the terms of the referral and that those terms included the limitation regarding the body parts referred…”
At [51] Adamson J said:
“The evident purpose of s 325(1) is not only to provide an AMS with the parameters of his or her task but also to provide procedural fairness to the parties… This highlights the importance of the terms of the referral, which is set by reference to the application to resolve a dispute and the reply, following which the parties may provide medical reports of experts retained by them for the consideration of the AMS. It is significant that the AMS’s jurisdiction is limited by the terms of the referral, rather than by reference to the matters contained in the medical reports provided by the parties”.
At [54] Adamson J said: “In order to determine whether the AMS fulfilled the task conferred on him by the referral, it is necessary to construe the referral…”.
At [69-70] Adamson J said:
“69. I reject the contention of Mr McManamey that the reference to “body parts referred” could be disregarded by the AMS or that it constituted an unwarranted exercise of power by the Registrar. These body parts were the very same body parts as had been identified by the Claimant in the application to resolve a dispute which was filed by him on 8 August 2017. As the extract set out above indicates, the application identified a dispute which the Claimant said could be determined by the Commission under s 288 of the Act (being the dispute about lump sum compensation where liability is in dispute) and a dispute which could be determined by the AMS following referral under s 293 of the Act (being lump sum compensation where degree of permanent impairment is in dispute). The body parts claimed were nominated in Part 5.6 of the Claimant’s application as “left upper extremity, joint ring finger and scarring”. Thus, it was not the Registrar who was constraining the referral; it was the terms of the Claimant’s own application to resolve a dispute which contained the limitation. As was held in Aircons, the AMS is bound by the terms of the referral to confine the matters determined to those which have been referred.
70. The Claimant (through his solicitors) was given an opportunity to review the referral and make submissions as to whether it correctly stated the dispute to be referred. The Claimant failed to avail himself of that opportunity…”
At [71] Adamson J said:
“While it is understandable that the AMS, Dr Machart, felt entitled to continue where he had left off after the first referral, he was in error to assess the degree of permanent impairment in body parts that were not within the ambit of the referral. The Appeal Panel was correct to recognise this error. It, too, was bound by the terms of the referral…”
At [75] Adamson J said:
“However, the risk that a worker might be debarred from having all the consequences of a work-related injury taken into account in an assessment of the degree of permanent impairment if the wording of the referral does not extend to a consideration of them, highlights the importance of care being taken in the wording of a referral...”
The reasoning of the MAP on 28 June 2021 was based on its consideration of the decision of Adamson J, which was given on 23 June 2020.
The MAP at [15] of its reasons noted the respondent’s submissions, which relied on the respondent’s interpretation of the decision by Adamson J stating:
“The AMS examined the Claimant on 29 September 2017. He found evidence that he was suffering from a condition known as complex regional pain syndrome (CRPS). However, CRPS could not be diagnosed because, according to the Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016) (the Guidelines) symptoms of such condition need to be present for more than a year and need to be verified by more than one examining physician: cl 17.5 and Table 17.1 of the Guidelines. The AMS did not assess the Claimant as he had not reached “maximum medical improvement”, a pre-condition to assessment of WPI. The findings of the AMS were expressed in a medical assessment certificate dated 13 October 2017.”
The Court of Appeal decision in Skates was given on 14 July 2021. Before giving further consideration to the Court of Appeal decision at this stage, it is important to note, and discuss at times in some detail, a number of errors in the MAP’s reasoning in the prior proceedings.
Firstly, the MAP plainly relied upon its conclusions that the AMS erred in the present case by assessing body parts in respect of which “the worker did not allege had been injured”.
As appears from the judgment of Adamson J at [51] the AMS’ jurisdiction is “limited by the terms of the referral, rather than by reference to the matters contained in the medical reports provided by the parties”.
Also Adamson J held at [69] it was the terms of the claimant’s own Application to Resolve a Dispute which contained the limitation on the AMS’ jurisdiction, and that the AMS was bound by the terms of the referral to confine the matters determined to those which had been referred.
Secondly, the MAP at [42] of its reasons for decision held that “the terms of the ARD limited Ms Papera’s entitlement to assessment to (sic) left shoulder and scarring”. But Adamson J did not decide Skates on the basis that the injury to the worker was not specifically stated in the ARD. Instead, Adamson J relied on the restrictions which the referred documents placed on the jurisdiction of the AMS to make relevant conclusions regarding the assessment of permanent impairment.
Thirdly, the MAP failed to recognise that the factual position in Skates in relation to the language used in the referral documents was relevantly quite different from that which existed in the present case. Because of the importance and significance of the relevant differences, it is necessary to consider this question in considerable detail, as has been done in below.
In Skates at [20] Adamson J “set out in full” the terms of the referral to the AMS, doing so “Because of the importance of the terms of the referral”. This statement of the terms of the referral is, for convenience, again repeated at [78] above.
It is significant to note that in such terms of referral, the medical dispute referred for assessment repeats items (c), (d) (f) and (g), the only relevant item for present purposes being “the degree of permanent impairment of the worker as a result of an injury”(s319(c)), followed by “Date of Injury: 7 June 2013”, Body Part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)”, and “Method of Assessment: Whole Person Impairment”.
The notably significant feature in Skates is that referral by the Registrar’s delegate calls for “Whole Person Impairment” assessment of the degree of permanent impairment of the worker as a result of an injury on 7 June 2013 where the “Body part/s referred” are not simply “left upper extremity” which is a wider expression, but instead, a more narrow limited and precisely qualified description on injury being “Left Upper Extremity (joint ring finger)”.
The language of the referral in Skates confines the body parts requiring assessment of permanent impairment of the worker as the result of injury, to the left “joint ring finger”, and does not call for assessment of WPI in any part of the left upper extremity other than the joint ring finger thereof.
However, in the prior proceedings (matter no 7323/20) in the present case, the terms of the referral by the Registrar’s delegate were quite different from those considered by Adamson J and the Court of Appeal in Skates, as can be seen from the language of the ARD in the claim brought by the applicant. For convenience of reference the relevantly differing language of both documents is set out below.
The ARD filed by the applicant has the following features which are relevant for present purposes:
(a) the ARD, headed “Form 2 – Application to Resolve a Dispute”, has the heading “Notice to Parties”, under which is stated “Form 2 is the correct form to use for a Dispute of claim about … Compensation for permanent impairment” (Page 1);
(b) under the heading “Application to Resolve a Dispute “, and its sub-heading “Matters in Dispute”, the only box ticked is alongside the words “Lump sum compensation where degree of permanent is in dispute” (Page 2);
(c) under the heading “Injury Details -10/08/2019” and its sub-heading “Injury Details” appears “Date of injury 10/08/2019” and alongside the printed words “Injury Description/Cause of Injury and Death” there is typed the words “The applicant suffered physical injuries to her left shoulder and scarring while at work on 10 August 2019” (Page 6), and
(d) under the next heading “Permanent Impairment/Pain and Suffering” and its sub-heading “Injury Details” appears “Date of Injury …10/08/2019”, then underneath “Systems Claimed …left upper extremity”, then next underneath “Systems Claimed…TEMSKI/Scarring”, then further underneath …” Total WPI percentage 16”, and alongside that percentage figure “Total WPI amount $38,850.00”.
The MAC issued by the AMS, Dr Wong, which is certified by “Registrar’s Delegate” as a true and accurate certificate issued by Dr Wong, has the following features which are relevant for present purposes:
(a) the AMS under the heading “DETAILS OF MATTERS REFERRED FOR ASSESSMENT” states “The following matters have been referred for assessment (s319 of the 1998 Act)”, followed by “Date of injury: 10 August 2019”, then “Body parts/systems referred: Left upper extremity …Scarring (TEMSKI)”, and below that “Method of assessment…Whole person Impairment” (Page 1);
(b) the AMS under the heading “History Relating to the Injury” and its sub-heading Brief history of the incident/onset of symptoms and of subsequent related events, including treatment “describes the injury on 10 August 2019 where her left arm took most of the impact of the fall, causing her to feel severe pain at the left shoulder, and “she also had pain at the left elbow” (Page 2);
(c) the AMS under a later sub-heading “Present Symptoms” describes her complaints of “present symptoms” regarding the left shoulder, followed by “She informs me she has no current symptoms at the left shoulder” (Page 2);
(d) the AMS under the heading “Findings on Physical Examination” sets out his findings regarding the shoulders and elbows, which include details of “elbow ROM degrees”, concluding that in the left elbow there is 10% UEI (Pages 3-4);
(e) the MAC under the heading “Evaluation of Permanent Impairment” gave his answer “to the following questions regarding the assessment of impairment and or WPI in accordance with the NSW Workers Compensation Guidelines” including various parts about “Body parts/ systems” and “body part/system” (Page 5), and
(f) the MAC under the heading “Reasons for Assessment” concluded the applicant had injury to her left shoulder and left elbow at work, and assessed the WPI at 19% taking account of various matters regarding both the left shoulder and left forearm, including:
“Despite of a lack of symptoms from the worker for her left elbow. The left elbow was tender to touch and painful to move. Ms Papera thought her left elbow symptoms were from her left shoulder injury…The right elbow was entirely normal. The left shoulder had 10% UEI from range of motion restrictions on this examination.” (NOTE the AMS in a later paragraph containing his brief comments regarding the other medical opinions and findings, corrects any error of stating the 10% UEI was for the left shoulder by setting out his calculations of 10% UEI for the left elbow, not the left shoulder. This correction accords with the findings summarised in (d) above.)
Thus it can be seen that the terms of reference to the AMS (Dr Wong) by the Registrar’s delegate required assessment of permanent impairment of the “left upper extremity” whereas the terms of reference of the dispute to the AMS in Skates were in respect permanent impairment of the “Left upper extremity (joint ring finger)”.
In Skates Adamson J at [69] stated in the passages already quoted above, it was not the Registrar (ie Registrar’s delegate) who was constraining the referral; it was the terms of the claimant’s own ARD which contained the limitation adding that the AMS is bound by the terms of the referral to confine the matters determined to those which have been referred.
Then Adamson J at [70] stated in the following passage:
“The Claimant (through his solicitors) was given an opportunity to review the referral and make submissions as to whether it correctly stated the dispute to be referred. The Claimant failed to avail himself of that opportunity.”
Practice Direction No 11 – Permanent impairment disputes dated 1 January 2019 states that “The purpose of this Practice Direction is to set out the Commission’s practice and procedure for the resolution of disputes, concerning disputed claims for permanent impairment, lodged in the Commission”. Under the heading “Disputes regarding permanent impairment referred to an Approved Medical Specialist (AMS)” the Practice Direction relevantly states at 14-16:
“14. The parties will be issued with a copy of the referral to the AMS. A party must raise any deficiency with the referral in writing to the Registrar and the other party. The Registrar will resolve the issue.
15. The AMS will assess the degree of permanent impairment, in respect of impairment of body parts/systems and/or disorders referred for assessment.
16. The AMS will certify the assessment in a Medical Assessment Certificate, which will be issued to the parties. That assessment is conclusively presumed to be correct in accordance with s 326 of the 1998 Act.” (emphasis added)
Both the appellant and the respondent, through their solicitors, were given an opportunity to review the referral by the Registrar’s delegate and make submissions as to whether it correctly stated the dispute to be referred. Both parties failed to avail themselves of that opportunity. So the terms of the referral as recorded by the AMS and certified by the Registrar’s delegate are terms of referral to which the respondent must be taken to have accepted as defining the Dispute which the AMS was to determine.
Fourthly, the MAP in the prior proceedings brought by the applicant placed undue reliance on s 382 of the 1998 Act and what it described as “the terms of the ARD”, in paragraphs [41]-[42] of its discussion of “Legal Issues”, stating:
“41. While Equity Transport has never disputed that Ms Papera suffered an injury to her elbow, that is insufficient to permit her to now recover permanent impairment compensation in respect of it. She did not make a claim as required by s 282 of the 1998 Act in respect of the compensation and could not have done on the basis of her medical evidence.
42. The terms of the ARD limited Ms Papera's entitlement to assessment to her left shoulder and scarring…”
It was an incorrect conclusion that “the terms of the ARD limited the applicant’s entitlement to assessment to [sic] her left shoulder”. As appears from the ARD, discussed in detail above, the ARD did not so delimit the referral, which sought assessment of impairment by reference to “left upper extremity”, without the restriction confining the claim requiring assessment to “Left shoulder”.
Also the MAP’s reasoning at [41]-[42] appears here to be that she did not make a claim as required by s 282 of the 1998 Act in respect of permanent impairment compensation from an injury to her left elbow. But s 282 defines the expression “relevant particulars about a claim” only to the extent that such expression is used in the preceding section, namely s 281 at
ss (2), (b) and (2A), which are only concerned with avoiding delay in the determination of a claim, and the timetable prohibiting more than two months delay by the insurer in determination of a claim. Thus, s 281 cannot be relied upon as having a wider general operation in defining how an injury is to be described in the ARD or how the injury is to be identified for the purposes of assessment of permanent impairment.These passages at [41] and [42] can be assumed to have partly influenced reasoning and conclusions of the MAP.
It is appropriate to consider and summarise how the dispute in Skates was finally resolved, as explored below.
The medical dispute in Skates was referred by the Registrar’s delegate to an AMS for determination. The referral form completed by the Registrar’s delegate specified “body parts referred” as being “left upper extremity (joint ring finger), scarring (TEMSKI)”.
The AMS concluded that the claimant’s “left upper extremity” (left arm) had become functionally useless and assessed WPI of 61%. The insurer appealed to the MAP on the basis that the AMS had erred by going outside the terms of the Registrar’s referral and assessing body parts not referred to him.
The insurer conceded, and both parties agreed, before the MAP that the referral should also have included reference to the left wrist. But the MAP did not give effect to the insurer’s concession and the parties’ agreement on this, considering itself bound by the terms of the referral. The MAP revoked the certificate issued by the AMS and itself issued a new certificate assessing the WPI at a lower figure based on assessment of the “body part or system” listed as “Left upper extremity (joint ring finger)” and scarring only.
The claimant sought judicial review of the MAP by filing an Application for Judicial Review in the NSW Supreme Court which was then heard and decided by Adamson J. Adamson J at [73] –[75] held that the MAP, when it became aware of the insurer’s concession and the parties’ agreement that the left wrist should have been included, committed an error of law to disregard that concession and agreement, and for that reason the decision of the MAP must be set aside.
Adamson J also upheld the decision of the MAP that the AMS was bound by the terms of the referral and that the AMS had exceeded the referral by assessing impairment in parts of the upper limb other than the wrist and the ring finger. Adamson J upheld the insurer’s argument that the MAP had correctly held that the AMS was bound by the terms of the referral to confine the matters determined to those which had been referred.
The decision of the Court of Appeal in Skates v Hills Industries Ltd [2021] NSWCA 142
In the Court of Appeal, Basten JA and Leeming JA by majority, refused leave to appeal from the decision of Adamson J, with the exception of granting leave to appeal for two limited purposes. Basten JA at [38] said:
“Leave should be granted for two limited purposes. The first is to make an order setting aside the decision of the arbitrator, so as to permit further steps to be taken in the Commission. The second is to remit the matter with a direction that any further referral to be made to an AMS should identify the left wrist as an affected body part. That is appropriate because it is likely that the Appeal Panel took a stricter view of its function, which did not allow it to extend the scope of the assessment required by the Registrar’s referral, even with consent of both parties. It is not necessary to determine whether it was correct in that regard, because there is no challenge to the primary judge’s finding that led to the setting aside of its decision…” (emphasis added)
Because the Court of Appeal refused leave to appeal (except to a limited extent related to the insurer’s consent and parties’ agreement regarding the left wrist), it therefore did not decide whether there was error by the MAP or indeed, by Adamson J.
Therefore it is necessary for the purposes of the present hearing to determine this matter on the basis of the principles stated in detail above, as applied to the relevantly different terms (as discussed in detail above) in which the Registrar’s delegate referred the dispute for assessment. The fact is that unlike in Skates, there was no relevant limitation of the terms of referral by the Registrar’s delegate, and no “terms of the claimant’s own Application to Resolve a Dispute which contained the limitation” (applying the test used by Adamson J at [69]).
Exercise of the Commission’s powers under s 329
For the purpose of resolving the present application under s 329, relevant principles have been discussed in the following cases.
In Target Australia v Mansour [2006] NSWWCCPD 286; 6DDCR 440 (Mansour) Roche DP said at [68] that s 329 of the 1998 Act “is in broad unlimited terms without any need for preconditions to be satisfied before it can be used”. He said that a referral pursuant to s 329 must be to an AMS, not to an Appeal Panel, but it need not be the original AMS (at [66]). He rejected an argument of the employer, that if a worker was dissatisfied with a review conducted by an Appeal Panel, the only redress was through the Supreme Court (at [67]). The Arbitrator’s referral for further assessment was, subject to it being to an AMS rather than an Appeal Panel, confirmed.
In Read v Liverpool City Council [2007] NSWSC 320 Malpass AsJ said at [27] with reference to s 329 of the 1998 Act:
“... it may be that s 329 was intended to provide a remedy in cases where no grounds of appeal can be made out but the dictates of justice require a further referral for assessment.”
In Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56 Roche DP considered the circumstances in which a matter would be referred to an AMS for further assessment under s 329(1)(b) of the 1998 Act. Roche DP referred to his decision in Mansour and noted at [58] that s 329 was in “broad unlimited terms” and wrote:
“c. …that is not to say that the section stands outside the terms of the Workers Compensation Acts. It doesn’t, and it must be read in the context of that legislation. There is nothing to indicate that the legislature intended that section 329 could be used in an unrestrained or unlimited way regardless of the Commission’s previous orders or determinations. The exact scope of section 329 must be determined on a case-by-case basis;
d. Malpass AsJ may well be correct in stating that section 329 can be used where no grounds of appeal under section 327 are made out, but “the dictates of justice require a further referral for assessment”. Whether the dictates of justice require a further referral requires a careful consideration of the facts in each case, but whether such a referral can be made is always subject to the Commission’s jurisdictional limits;
…
f. I agree that the fact that a matter has previously been referred to an AMS does not of itself prevent a further referral, but there are other factors relevant in the present case that do prevent a further referral;”
In Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWWCPD 36 (Andriaansen), Snell DP at [81] accepted, consistent with Mansour, that an order can be made pursuant to s 329(1)(b) of the 1998 Act, notwithstanding that there has been a MAP decision. He said that there has been no final determination of the dispute and accepted that the Commission has jurisdiction to make such an order, should it be appropriate. Snell DP also accepted, as was stated in Mansour at [74], that a party, having failed in a Medical Appeal, was not restricted to taking Supreme Court proceedings as his or her only recourse. In considering the Arbitrator’s decision, Snell DP wrote:
“She was aware that the operation of s 329(1)(b) was to be decided on a “case-by-case basis” (Milosavljevic, to which she referred). Read in this light, her reasoning is to be understood in the context of the specific factual background in the current matter. She did not accept that she should, contrary to the decision of the MAP, accept the arguments of the appellant going to the deficiencies in how the AMS conducted his examination. It followed from that that there was no injustice or denial of procedural fairness in the decision of the MAP, that a re-examination was not required.
For reasons set out above, I agree with the Arbitrator’s conclusion in this regard.”
In Pidcock Panel Beating Pty Ltd v Nicolia - [2017] NSWWCCPD 32 Snell DP at [75] referred to the passages in Milosavljevic dealing with s 329, including that quoted above, and accepted them as being correct. At [89] the Deputy President said that: “Section 329(1) provides for ‘a matter referred for assessment’ to be ‘referred again’, that is, the same matter that was previously referred”. Snell DP dismissed the application noting at [96]:
“The appellant does not, on this appeal, oppose an order referring the matter for further assessment within the meaning of Sch 8, Pt 2A, cl 28D of the Regulations. This is with the specific proviso that it does “object to a further assessment being made for the purpose of a further claim for permanent impairment”. For reasons given above, referral pursuant to either s 321 or s 329 of the 1998 Act is not available, on the current state of the proceedings. Notwithstanding the appellant’s limited consent, it is not appropriate to make an order for referral for medical assessment, on either basis, given the doubt about the nature of the respondent’s claim. Re-determination by another Arbitrator would be of little utility. What the respondent really seeks is a further referral for medical assessment. As the matter currently stands, there is no ‘medical dispute’ that could be referred pursuant to s 321, and nothing to be referred again for further assessment pursuant to s 329(1)(b), as the earlier proceedings were concluded by a final and binding decision”.
In Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD52 (Singh), Snell DP at [54]-[55] wrote:
“…s 329 is a discretionary power. Failure by the appellant to utilise potential appeal rights pursuant to s 327 of the 1998 Act, that were unfettered by s 322A, would be relevant to exercise of the discretionary power. However, there is a more fundamental reason why the discretion should not be exercised in the circumstances.
55.The course adopted by the appellant, if it were properly available, potentially has the effect of avoiding the application of s 322A of the 1998 Act. A worker could make a claim, undergo medical assessment by an AMS, obtain a MAC, and if he or she was dissatisfied with the assessed level of permanent impairment, simply discontinue the proceedings before a Certificate of Determination was issued consistent with the binding MAC. If the worker subsequently obtained a higher medicolegal assessment, the worker could simply ‘amend’ the claim, and repeat the process, potentially on more than one occasion.
56.in Milosavljevic (Deputy President Roche) said that s329 had to be read in the context of the Workers Compensation Acts and should not be used in an ‘unrestrained or unlimited way’ ... the ‘context’ of the legislation, given the introduction by the 2012 Amending Act of s66 (1A) of the 1987 Act and s 322A of the 1998 Act, plainly includes consistency with the scheme of those provisions. The application of the discretion in s329, in the way for which the appellant argues, is inconsistent with the statutory scheme. It follows, for this further reason, that reconsideration of the MAC, pursuant to s329 would not have been available.”
In CSR Limited v Ewins [2021] NSWPICPD 1 Wood DP considered the exercise of discretion as to whether a matter should be referred for reconsideration of a MAC in accordance with
s 329 of the 198 Act. She referred to the decision of Samuel v Sebel Furniture [2006] NSWWCCPD 141 and wrote:“The Arbitrator’s comment was simply that if surveillance evidence that came into being after the conclusion of the assessment was to be admitted for the purpose of a reconsideration, it needed to be of sufficient probative value. There is nothing in that observation that is surprising or that indicates the appellant was denied procedural fairness. It is consistent with a long line of reasoning, summarised by Roche DP in Samuel v Sebel Furniture Limited as:
(a) one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely, and
(b) the new evidence sought to be relied upon, had it been before the decision-maker, would likely to have led to a different result.”
In Stines v The GEO Group Aust Pty Ltd [2021] NSWDC 550 (Stines), Coleman DCJ considered whether Mr Stines could seek a further assessment of permanent impairment and the provisions in s 329 and s 322A of the 1998 Act. In Stines WCC had referred the plaintiff out for assessment in 2019. That assessment led to a MAC which assessed the plaintiff’s degree of permanent impairment at 4%. The Appeal Panel confirmed that assessment. At [97-98], Coleman DCJ said that the decision in Andriaansen was distinguishable and wrote:
“Accordingly, in my opinion, a proper construction of these provisions means that there can only be one assessment made as to the degree of permanent impairment of the plaintiff, which assessment may be the subject of an appeal. Once that has occurred, as it has in this case, then no further assessments of the degree of permanent impairment of the plaintiff can be sought or made.
98. Insofar as s 329(1) provides that, for a matter for assessment being referred again on one or more occasions, it clearly states that this can only occur “in accordance with this Part”. As I have said above, s 322A prescribes that there can only be one medical assessment for the degree of permanent impairment. I do not accept that s 329 means that there can be repeated and never ending referrals of matters dealing with the degree of permanent impairment of an offender in custody once that assessment, and any appeal from that assessment, have been completed.”
The applicant submitted that the interests of justice required the exercise of the discretion in s 328(1A) to enable further assessment by the Medical Assessor. Taking into account the submission of the applicant, I consider that the factors to be weighed in favour of the exercise of the discretion were:
(a) the injury to the left elbow was a primary injury;
(b) the applicant received treatment for the elbow, albeit, conservative treatment;
(c) the insurer did not dispute that there had been an injury to the left elbow and indeed accepted that the applicant sustained an injury to her left elbow (letter dated 8 April 2021 from icare);
(d) the MAC had been subject of an appeal (by the respondent);
(e) the permanent impairment in the left elbow had been first identified by the AMS which meant the applicant had no opportunity to make a claim for that impairment when commencing the prior proceedings;
(f) the original referral was for assessment of the left upper extremity and a further referral for such assessment would be consistent with the original referral;
(g) the MAC was revoked over a technical issue and s 329 had a role to play to give effect to the actual assessment of the AMS for an accepted injury;
(h) the applicant was simply trying to give effect to the assessment by the AMS in the prior proceedings and his assessment of her WPI;
(i) there was no significant delay in amending the claim to include a claim for the left elbow;
(j) the inclusion of an assessment of permanent impairment for the left elbow was extremely significant for the applicant because of the 15% threshold for work injury damages and affected the applicant’s entitlements under the 1987 Act, and
(k) Mr Walker had made an amended claim for permanent impairment which included the left elbow on 2 March 2021 before the respondent lodged an appeal on 16 March 2021 against the decision of the AMS.
I consider that the factors to be weighed against of the exercise of the discretion were:
(a) the claim made in the prior proceedings stated only the “left shoulder injury” in the injury description;
(b) in his report dated 23 July 2020, Dr Endrey-Walder found no restriction in the range of movement at the left elbow;
(c) Ms Papera’s claim for permanent impairment was based on the report of
Dr Endrey-Walder dated 23 July 2020;(d) the description of injury in the ARD in the prior proceedings was “physical injuries to her left shoulder and scarring” and the injury details under “Permanent Impairment/Pain and Suffering” provided that the systems claimed were left upper extremity and TEMSKI/scarring;
(e) the public interest that litigation not proceed indefinitely, and
(f) the left elbow had not been assessed by the insurer’s IME.
The respondent argued that the applicant should have appealed against the decision of the MAP in the prior proceedings and her failure to do so was a factor to be considered in the exercise of the discretion under s 329 to refer the matter for further assessment. I am not persuaded that this is a factor that should be given any real weight in the exercise of the discretion. I consider that the applicant, having failed in a Medical Appeal was not restricted to taking Supreme Court proceedings to challenge the MAP’s decision.
In his further report dated 2 March 2021, Dr Endrey-Walder noted that the applicant again said she had no problems with the left elbow but on examination that day found she lacked five degrees at the limit of extension and had 100 degrees range of flexion of the left elbow. Dr Endrey-Walder acknowledged that in previous report of 23 July 2020 at the time of the examination the applicant said she had no symptoms at the left elbow and on physical examination he could not fault the range of movement at that joint. Dr Endrey-Walder referred to the MAC issued on 17 February 2021 in which the AMS acknowledged the applicant had no symptoms at the left elbow but found a degree of restriction in the range of movement which he assessed. Dr Endrey-Walder confirmed that on physical examination on 2 March 2021 he found restriction in the range of movement at the left elbow, as opposed to his findings seven months ago.
In the present case it would be contrary to the dictates of justice for the applicant to be bound where the dispute was not resolved by the MAP in accordance with the terms of the referral by the Registrar’s delegate. The MAP resolved a different dispute from that which the terms of the referral by the Registrar’s delegate required it to decide. Therefore, the dispute as defined in accordance with the terms of referral, when accurately interpreted, remains undecided. Therefore, there has been no final resolution of the dispute which was referred. The applicant and indeed the respondent, should not have to incur costs and unnecessary delay in awaiting and arguing in the NSW Supreme Court an application for judicial review seeking to set aside the MAP’s decision and ordering remittal to the President in order to arrange a further assessment. It is quicker, less costly, and less burden on the Supreme Court to simply have the Commission exercise its powers under s 329 regarding any further medical assessment.
On balance, I am satisfied having taken into account the facts in this matter, that it is in the interests of justice to exercise the discretion pursuant to s 328(1A) and refer the matter to a Medical Assessor for further assessment of WPI.
I note that the respondent has not had an opportunity to have the applicant examined by an IME for the purpose of assessment of the elbow. In those circumstances, the matter should be listed for a further telephone conference to enable the parties to make appropriate arrangements for any examination before the Medical Assessor’s further assessment.
- AGLC
- Papera v Equity Transport Group Pty Ltd [2022] NSWPIC 421
- Case
- [2022] NSWPIC 421
- Decision Date
CaseChat Overview and Summary
The Court of Appeal, consisting of Basten JA and Leeming JA, decided that the applicant had amended her claim made in 2020, and this claim was not a second claim. The court found that it was in the interests of justice to exercise the discretion under section 328(1A) of the 1998 Act to refer the matter for further assessment. Basten JA granted leave to appeal for two limited purposes: to set aside the decision of the arbitrator, and to remit the matter with a direction that any further referral to an AMS should identify the left wrist as an affected body part. The court did not decide whether there was error by the MAP or by Adamson J. The court referred to the principles discussed in Target Australia v Mansour, Read v Liverpool City Council, and Milosavljevic v Medina Property Services Pty Ltd, which established that s 329 of the 1998 Act is in broad unlimited terms without any need for preconditions to be satisfied before it can be used.
The court's reasoning was based on the principles stated in the cited cases, and the fact that there was no relevant limitation of the terms of referral by the Registrar’s delegate, unlike in Skates. The court considered it necessary to determine the matter on the basis of the principles stated in detail above, as applied to the relevantly different terms in which the Registrar’s delegate referred the dispute for assessment. The court confirmed that the Arbitrator’s referral for further assessment was subject to it being to an AMS rather than an Appeal Panel. The court concluded that whether the dictates of justice require a further referral requires a careful consideration of the facts in each case, but whether such a referral can be made is always subject to the Commission’s jurisdictional limits.
The final orders of the court were that leave to appeal was refused for the most part, but granted for two limited purposes. The decision of the arbitrator was to be set aside, and the matter was to be remitted with a direction that any further referral to an AMS should identify the left wrist as an affected body part.
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