Phillip John Carmody v Walter Merriman & Sons Pty Ltd
[2003] NSWWCCPD 27
•20 October 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | Phillip John Carmody v Walter Merriman & Sons Pty Ltd [2003] NSW WCC PD 27 |
| APPELLANT: | Phillip John Carmody |
| RESPONDENT: | Walter Merriman & Sons Pty Ltd |
| INSURER: | Zurich Australian Workers Compensation Ltd |
| FILE NO: | WCC 2976-2002 |
| DATE OF ARBITRATOR’S DECISION: | 19 June 2003 |
| DATE OF APPEAL DECISION: | 20 October 2003 |
| SUBJECT MATTER OF DECISION: | Application for leave to appeal against a decision of an Arbitrator, powers of an Approved Medical Specialist, referral to Approved Medical Specialist, status of medical assessment. |
| PRESIDENTIAL MEMBER: | Deputy President Dr Gabriel Fleming |
| HEARING: | On the Papers |
| REPRESENTATION: | Appellant: Robb and Associates, Solicitors |
| Respondent: Goldrick Farrell Mullan, Solicitors | |
ORDERS MADE ON APPEAL: | Leave to Appeal the Arbitrator’s decision is granted. The decision of the Arbitrator is revoked and the following decision is made in its place: The Medical Assessment Certificate of the Approved Medical Specialist, Dr Peter Isbister dated 9 April 2003 is conclusively presumed to be correct as to the assessment of the whole of the Applicant’s permanent impairment suffered as a result of his injury on 28 May 2001. The Respondent is to pay the Appellant’s costs of the appeal, as agreed or assessed The matter is referred to the Registrar for allocation to an Arbitrator to determine the remaining issues in dispute. |
THE APPEAL
On 11 July 2003, Philllip John Carmody, (‘the Appellant’), lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 19 June 2003. The Respondent to the appeal is Walter Merriman & Sons Pty Ltd (‘the Respondent’) and the relevant Insurer is Zurich Australian Workers Compensation Ltd (‘the Insurer’).
THE DECISION UNDER REVIEW
On 19 December 2002 the Arbitrator referred this dispute to an Approved Medical Specialist (AMS), Dr Peter Isbister, with a request that the AMS report on the following matters:
A.Has the Applicant’s injury stabilized?
B.If so, what is the degree of permanent impairment of his back?
C.What percentage, if any, of any impairment of the back is attributable to the Applicant’s condition pre-existing the injury sustained on 22 May 2001?
On 9 April 2003 Dr Isbister issued a Medical Assessment Certificate which concluded, among other things, that Mr Carmody had suffered a permanent impairment as a result of his injury at work on 28 May 2001, this injury had stabilized and had resulted in a 15% impairment of his back and 5% impairment of his left leg at or above the knee. Dr Isbister opined that:
I note that his claim is for his back only, however, although his leg symptoms have reduced he still has evidence of Radiculopathy, including loss of ankle jerk and restriction of full leg raising ability. In my opinion this constitutes 5% permanent loss of efficient use of his left leg at or above the knee due to his back condition.
The AMS’s report was referred to the Arbitrator. On 19 June 2003 a Certificate of Determination was issued by the Commission setting out the decision of the Arbitrator as follows:
That the medical assessment certificate of permanent impairment issued by Dr Peter Isbister is conclusive only as to the degree of permanent impairment of the Applicant’s back as a result of the injury suffered by the Applicant on 28 May 2001.
A statement of reasons for this decision was attached to the Certificate of Determination and, in summary (at paragraphs 23 and 24), sets out the reasons for the decision as follows:
23. There is no doubt that in this case the Applicant has suffered an injury and it would be unduly restrictive and, I believe, incorrect to maintain that the same may be confined to his back only. However, I must consider what question was put to the approved medical specialist for his determination to determine in what respect the certificate is conclusive.
24. Here the matter referred for assessment is described in the certificate as the “permanent impairment of (the Applicant’s) back” (para 1). Therefore it is the degree of permanent impairment of the Applicant’s back only to which the certificate can go for the purpose of s.326 whereas if the doctor had been asked to assess, say, the impairment attributable to the Applicant’s back injury the ambit of the medical dispute would have been wide enough [to] enable him to certify with respect to the Applicant’s left leg as well as his back. Unfortunately for the Applicant it [was] only when the certificate was issued that he became aware of any involvement of the left leg.
THE ISSUES IN DISPUTE
There is only one issue in dispute in this appeal, namely, did the Arbitrator err in refusing to accept the Medical Assessment Certificate of the Approved Medical Specialist, in relation to the assessment of a 5% permanent impairment of the Applicant’s leg at or above the knee, as binding? The consequence of the determination of this question is that the Applicant may be entitled to increased compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), and may be entitled to compensation for pain and suffering, pursuant to section 67 of that Act.
JURISDICTION AND LEAVE TO APPEAL
Before proceeding to hear the appeal the Commission must determine whether the application for leave meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as follows:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The Arbitrator’s decision was made on 19 June 2003 and the appeal was lodged on 11 July 2003. This is within 28 days of the Arbitrator’s decision, in accordance with section 352(4) of the 1998 Act and Rule 77 of the Workers Compensation Commission Rules 2003 (‘the Rules’, effective from 1 July 2003). Rule 77 (4) distinguishes between the ‘lodgement’ of an application for leave to appeal and the registration of that application by the Registrar. Rule 16 provides for the ‘Form of Documents’ in the Commission. The Registrar may refuse to ‘accept, file, seal or issue any document’ that is not in the required form and in compliance with relevant Practice Directions. On 28 July the Applicant’s written submissions were received in the Commission. There was a significant delay in the sealing and registration of the application, which occurred on 22 September 2003. This delay is inexplicable from a reading of the Commission’s file. The appeal was referred to me on 13 October 2003.
The Appellant claims that the amount at issue in the appeal meets the criteria in section 352(2) in that the amount at issue is the whole of $3,750 with respect to 5% permanent impairment for the permanent loss of efficient use of the left leg at or above the knee, and $15,000 claimed for pain and suffering pursuant to section 67 of the 1987 Act. The Respondent claims that the appeal is restricted to an amount of $3,750 and therefore below the threshold in section 352(2).
I am satisfied that the Application for leave to appeal meets the requirements of section 352(2). The Appellant has argued that the effect of the decision of the Arbitrator is to deny his claim for compensation pursuant to section 67 of the 1987 Act, although it is not clear to me that this is actually the result. The whole of the Appellant’s claim for pain and suffering compensation, stated as $25,000 in attachments to the application to resolve a dispute, is at issue in the appeal. This was a part of the claim filed in the Commission and before the Arbitrator. It exceeds the threshold of $5,000 and is more than 20% of the amount awarded in the decision appealed against. The decision itself is not expressed in terms of a monetary award. However the acceptance of the medical assessment certificate in full will, in the circumstances where liability is not in issue, result in a substantially higher award pursuant to section 66 of the 1987 Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the Act provides:
354 Procedure before Commission
(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.
I am satisfied, and the parties have agreed, that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing, and that this is the appropriate course in the circumstances of this matter.
EVIDENCE AND SUBMISSIONS
The following facts are not in dispute:
·Mr Carmody is a 41 year old man who has worked as a shearer since he was 16 years old.
·At the time of the injury, 28 May 2001, he was working for the Respondent in Boorowa shearing rams. He began to feel pain in his back, but he kept working.
·Some three weeks later he saw his local general practitioner, Dr Scott, and was referred for a CT scan of his lumbar spine. This revealed disc pathology.
·He was referred to Dr Chandran, Neurosurgeon, who recommended surgery. Prior to the proposed surgery Mr Carmody’s pain improved and thus the surgery did not take place.
·Mr Carmody notified the Respondent of his injury on 21 June 2001.
·Mr Carmody notified the Respondent of his claim for permanent impairment compensation by letter dated 5 March 2002.
·Mr Carmody was referred to Mr Phillips, Consultant Orthopaedic Surgeon, who provided a report to the Respondent on 1 May 2002.
·The Respondent wrote to Mr Carmody on 14 May 2002 denying the claim on the basis that ‘we are in receipt of the medical report from Dr (sic) Phillips, which concludes that your client’s condition has not yet stabilised. As such we are unable to make your client an offer with respect to his Section 66/67 entitlements at this stage.’
·Mr Carmody has returned to work on light duties. He has continued to report pain and restrictions of movement as a result of his injuries.
Mr Carmody saw Dr Griffith, Consultant Surgeon, for the purpose of a medico–legal report, on 5 December 2001 and a report dated the same day was lodged with his application to the Commission. Dr Griffith opined that:
On the basis of restrictions of movement seen in the lumbar spine, and the presence of two non-operated discs with residuals, he exhibits a current impairment of not less than 20% of his back in terms of Section 66 of the Workers Compensation Act of New South Wales, as amended. There is no current impairment in relation to the nerve root irritation of S1, because there is no persisting sciatica. Accordingly, there is a zero disability or permanent impairment in terms of Section 66 of the left lower limb at this time.
The Respondent relies upon the report of Mr Phillips that stated, among other things, that Mr Carmody has suffered a permanent impairment of ‘acute disc protrusion at L5/S1 on the left, which has partially resolved and mechanical instability at L5/S1.’ However Mr Phillips’ view was that his condition had not stabilized at the time of the report, 1 May 2002.
There is no longer any dispute between the parties as to whether Mr Carmody suffered an injury in the course of his employment with the Respondent from which he has a 15% permanent impairment of his back.
The Appellant submits that the medical assessment of Dr Isbister was properly made pursuant to sections 321, 322, 323, 324 and 325 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). It is conceded that no specific request was made of the AMS for an assessment of Mr Carmody’s left leg. However, the Appellant submits, ‘Dr Isbister was empowered to assess all impairments sustained by the Applicant as a consequence of the injury which occurred on 28 May 2001.’ The Appellant argues that the AMS was required to determine the degree of all impairments resulting from the injury and was not restricted in his assessment. In the event that the AMS is alleged to be in error in his or her assessment the appropriate remedy is to appeal to a medical appeal panel, constituted under the 1998 Act.
The Respondent did not make written submissions to the Arbitrator as to the issue now in dispute in the appeal. On appeal the Respondent simply stated that we have no further evidence to submit in relation to this matter and consider the Arbitrator’s findings and reasons were correct.
DISCUSSION AND FINDINGS
This matter involves a ‘medical dispute’ as that term is defined in section 319 of the 1998 Act. Section 321 provides for the referral of a medical dispute, by the Commission or the Registrar, to an AMS. ‘Referral’ is a formal step in the resolution of a medical dispute and the Registrar must ‘give the parties notice of the referral’. Section 322 provides for the assessment of permanent impairment in accordance with the WorkCover Guidelines. Impairments that result from the same injury, or that result from more than one injury but arise from the same injury, must be assessed together. An AMS may decline to make an assessment if he or she is not satisfied that the degree of permanent impairment is fully ascertainable. Section 323 provides that an AMS, in assessing the degree of permanent impairment arising from an injury, is to deduct any proportion of the impairment that is due to any previous injury.
Section 324 of the 1998 Act sets out the powers of an AMS on an assessment. Sections 325 and 326 are particularly relevant to the issue in dispute in this matter. They provide as follows:
325 Medical assessment certificate
(1)The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.
(2)A medical assessment certificate is to be in a form approved by the Registrar and is to:
(a) set out details of the matters referred for assessment, and
(b) certify as to the approved medical specialist’s assessment with respect to those matters, and
(c) set out the approved medical specialist’s reasons for that assessment, and
(d) set out the facts on which that assessment is based.
(3)If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error.
(4)An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence.
326 Status of medical assessments
(1)An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)the nature and extent of loss of hearing suffered by a worker,
(d)whether impairment is permanent,
(e)whether the degree of permanent impairment is fully ascertainable.
(2)As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.
It is clearly the intention of the legislation that certain medical issues in relation to the assessment of permanent impairment, namely those listed in sub-section 326(1) of the 1998 Act, be finally decided by medical specialists, rather than Commission Arbitrators. This intention is reinforced by the appeal provisions for medical disputes, where Medical Appeal Panels are constituted by two AMS’s and an Arbitrator. Given this intention there is no reason to restrict the role of the AMS in the assessment of a permanent impairment claim, beyond the express restriction contained in the relevant provisions.
Section 325 of the 1998 Act provides that the AMS ‘is to give a certificate as to the matters referred for assessment’ (emphasis added). This section must be read in the context of the whole of Part 7 of the 1998 Act. The definition of a ‘medical dispute’ in section 319 similarly refers to ‘matters’, as follows:
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker’s fitness for employment,
(c)the degree of permanent impairment of the worker as a result of an injury,
(d)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e)the nature and extent of loss of hearing suffered by a worker,
(f)whether impairment is permanent,
(g)whether the degree of permanent impairment of the injured worker is fully ascertainable.
In my view the ‘matters referred for assessment’ pursuant to section 325 are those ‘matters’ that form part of a ‘medical dispute’ and upon which an AMS is empowered to give an opinion. AMSs are appointed for their particular medical expertise which is matched to the nature of the injury suffered by the worker in any particular case that is referred to them. The only restriction that is imposed upon an AMS is that he or she is not empowered to determine ‘matters’ other than those set out in the statute. There is no express, or implied, intention in the relevant provisions to limit the application of the AMS’s medical expertise in the assessment of the particular ‘matters’ referred to him or her in a dispute. In relation to those ‘matters’ specified in section 326, the AMS’s opinion will be binding on the parties and the Commission.
The Arbitrator therefore erred in finding that any section 66 determination was restricted to answers to the questions that were set out in the ‘referral’ from the Registrar. The questions themselves did not specifically refer to the statutory provisions, and purported to restrict the ‘matters’ upon which the AMS was empowered to give an assessment.
This is not to say that the formal ‘referral’ of a medical dispute to an AMS should not be expressed as clearly as possible in relation to the particular ‘matters’ that are referred. Use of the statutory language, contained in the definition of ‘medical dispute’ and in section 326 may assist to this end. This approach is consistent with the role of AMSs in the determination of medical issues in disputes under the 1987 and 1998 Acts. This medical assessment is entirely a matter for the AMS, who has the medico-legal reports from both parties before him or her (see the WorkCover Medical Assessment Guidelines), and has frequently had the benefit of a personal examination of the worker. Just as an AMS may find, in a particular case, that nil permanent impairment has resulted from the alleged work injury, so he or she may disagree with previous medical opinion as to the nature and extent of the worker’s permanent impairment.
In this case Dr Isbister clearly considered the medical evidence in relation to Mr Carmody’s injury and whether any permanent impairment resulted from that injury. He was aware that the claim had been made only in relation to permanent impairment of the back, but it was his professional opinion that Mr Carmody also had a permanent impairment of the left leg at or above the knee. The medical reports filed in the dispute referred to Mr Carmody’s symptoms in relation to his left leg, albeit that they came to a different view as to their significance. In this case the leg condition was intimately related to the claimed permanent impairment of the back.
In my view this was a ‘matter’ upon which Dr Isbister was empowered, and indeed obliged, to report in the Medical Assessment Certificate. It would result in an inaccurate and misleading medical assessment if he were unable to frankly report on his clinical findings and opinion. It is a ‘matter’ upon which his opinion is binding, in accordance with section 326 of the 1998 Act. All parties must be aware of the extent of the powers of an AMS in relation to the assessment of a medical dispute and thus there is no denial of procedural fairness where the medical assessment is made ‘on matters’ specified in the Act. If a party is dissatisfied with the Medical Assessment Certificate then the appropriate remedy is to appeal against the assessment, provided that one of the grounds of appeal set out in section 327(3) of the 1998 Act can be made out.
COSTS
The appeal has been successful and costs fall to be determined in accordance with section 345 of the Act. That section provides, relevantly, that:
345Costs Penalties Where Appeal Unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)If the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)If the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1000 or such other amount, as may be prescribed by the Regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a) the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
The result of this decision is that the Appellant will be entitled to further compensation pursuant to section 66 and may be entitled to compensation pursuant to section 67 of the 1987 Act. In these circumstances it is appropriate that the Respondent pay the Appellant’s costs of the appeal, as agreed or assessed.
DECISION
The findings in this matter will necessitate the dispute returning to the Arbitrator for determination of the issues remaining outstanding, in particular the precise award that should be made pursuant to section 66 of the 1998 Act and whether an award pursuant to section 67 of the 1998 Act should be made.
I make the following orders;
Leave to Appeal the Arbitrator’s decision is granted.
The decision of the Arbitrator is revoked and the following decision is made in its place:
The Medical Assessment Certificate of the Approved Medical Specialist, Dr Peter Isbister dated 9 April 2003 is conclusively presumed to be correct as to the assessment of the whole of the Applicant’s permanent impairment suffered as a result of his injury on 28 May 2001.
The Respondent is to pay the Appellant’s costs of the appeal, as agreed or assessed.
The matter is referred to the Registrar for allocation to an Arbitrator to determine the remaining issues in dispute.
Dr Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President (name), Workers Compensation Commission
Registrar Date:
8
0
0