Priest v Secretary, Department of Communities and Justice
[2024] NSWPIC 3
•8 January 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Priest v Secretary, Department of Communities and Justice [2024] NSWPIC 3 |
| APPLICANT: | Jennifer Priest |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| SENIOR MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 8 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits pursuant to section 38A for period from 14 April 2023 to 9 July 2023; applicant was assessed by Medical Assessor (MA) on 14 April 2023 with 30% whole person impairment (WPI) and Medical Assessment Certificate (MAC) issued; applicant appealed against MAC and Medical Appeal Panel (MAP) issued MAC on 10 July 2023, assessing 41% WPI; applicant claimed weekly benefits pursuant to section 38A from the date of the MA’s assessment, on the basis that he had assessed her as having more than 30% WPI, but had applied the wrong tables and criteria, and the MAP had not assessed her; applicant submitted that Meat Carter Pty Ltd v Melides could be distinguished; consideration of Meat Carter Pty Ltd v Melides and L’Estrange v Manildra Meat Company Pty Ltd; Held – award for the respondent. |
| DETERMINATIONS MADE: | The Commission determines: 1. There is an award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Jennifer Priest (Ms Priest) is employed by the respondent, Secretary, Department of Communities and Justice, as a senior community corrections officer.
On 19 March 2019, the applicant sustained an injury to her right knee when she lost her footing on some steps. She has also sustained a consequential condition of her left knee.
By letter dated 29 November 2022, addressed to the respondent’s insurer, QBE Insurance (Australia) Ltd (QBE), the applicant’s solicitors made on her behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant served a report of Dr P. Endrey-Walder dated 24 November 2022, in which Dr Endrey-Walder provided an assessment of 37% whole person impairment (WPI).
By letter dated 13 February 2023, the solicitors for the respondent served a report of Dr John Bentivoglio dated 28 January 2023, in which Dr Bentivoglio provided an assessment of 14% WPI, and conveyed an offer to settle the applicant’s claim on the basis of his assessment.
By letter to QBE dated 21 February 2023, the applicant’s solicitors made on her behalf an amended claim for WPI of 32%. They served reports of Dr Endrey-Walder dated 26 July 2021, 7 December 2021, 24 November 2022, and 16 February 2023.
The applicant was assessed by a Medical Assessor, Dr Jonathan Negus, on 14 April 2023. Dr Negus assessed WPI as a result of injury to her right lower extremity (right knee); left lower extremity (left knee); and scarring (TEMSKI).
Dr Negus issued a Medical Assessment Certificate (the first MAC) dated 27 April 2023, in which he certified Ms Priest’s WPI as 30%.
The applicant lodged an appeal against the first MAC.
On 10 July 2023, the Medical Appeal Panel (MAP) revoked the first MAC. It issued a new MAC (the second MAC), certifying the applicant’s WPI as 41%.
By letter dated 12 July 2023, the applicant’s solicitors advised QBE that they considered that Ms Priest satisfied the definition of a “worker with highest needs” pursuant to s 32A(2) of
the 1987 Act, and had satisfied the definition since Dr Endrey-Walder’s report dated 22 November 2022, in which he provided an assessment of 37% WPI.The applicant claimed the “special benefit payment”, pursuant to s 38A of the 1987 Act, from 24 November 2022 to date and continuing. She claimed payment pursuant to s 39A [sic] of the 1987 Act in accordance with a schedule set out in the letter.
On 14 August 2023, the Personal Injury Commission (the Commission) issued a Certificate of Determination (COD). The respondent was ordered to pay the applicant, pursuant to s 66 of the 1987 Act, the sum of $139,110 in respect of 41% WPI resulting from injury on 19 March 2019.
On 18 August 2023, QBE issued the applicant with a notice (the dispute notice) pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
QBE disputed that the applicant was entitled to weekly payments pursuant to ss 32A and 38A of the 1987 Act during the period from 24 November 2022 to 9 July 2023.
QBE advised that, as the MAP had assessed the applicant with 41% WPI, it was not disputed that she was classified as a “worker with highest needs”, in accordance with s 32A of the 1987 Act.
QBE relied on the decision of the Court of Appeal in Meat Carter Pty Ltd v Melides[1]. It maintained that the special rate of weekly compensation in s 38A of the 1987 Act was payable only from 10 July 2023, the date on which Ms Priest satisfied the definition of “worker with highest needs.” She was therefore not entitled to weekly payments pursuant to s38A of the 1987 Act during the period from 24 November 2022 to 9 July 2023.
[1] [2020] NSWCA 307 (Melides).
QBE advised the applicant that her weekly payments under s 38A of the 1987 Act were payable on and from 10 July 2023 at the rate of $955 per week.
The applicant lodged an Application to Resolve a Dispute (the Application) on
25 August 2023.The applicant claimed that on 19 March 2019, she sustained injuries to her right knee. She had sustained a consequential condition of her left knee as a result of overuse, overcompensation and altered gait, and surgical scarring.
The applicant claimed weekly benefits from 24 November 2022 to 30 March 2023 at the rate of $917 per week; and from 1 April 2023 to 9 July 2023 at the rate of $955 per week.
The respondent lodged its Reply on 14 September 2023.
ISSUES FOR DETERMINATION
The parties agreed that the following issue remained in dispute:
(a) whether the applicant was to be considered a “worker with highest needs” before the issue of the MAP.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was listed for conciliation/arbitration hearing on 5 December 2023 by the Teams platform. Mr Moffett of counsel, instructed by Mr Covic, appeared for the applicant, who was present; and Mr Stiles of counsel, instructed by Ms Cook, appeared for the respondent.
Ms Sandona of QBE also attended.A preliminary issue arose when the applicant instructed Mr Covic and Mr Moffett that, despite QBE having stated in the dispute notice that weekly payments under s 38A of the 1987 Act were payable to her on and from 10 July 2023, no payments had been made.
Mr Stiles confirmed that he was instructed that it was correct that no payments had been made. The payments from 10 July 2023 to 22 August 2023 were being processed immediately. The applicant had been certified as fit for pre-injury duties from 23 August 2023. No further notice pursuant to s 78 had been served on the applicant.
The applicant sought to amend the Application to claim weekly benefits from 14 April 2023 to date and continuing. The respondent opposed the proposed amendment. The respondent did not object to the Application being amended to claim weekly benefits from 14 April 2023 (the date on which Dr Negus assessed the applicant) to 9 July 2023.
The application to amend the claim for weekly benefits to claim ongoing payments was refused, for reasons which were provided at the hearing, and recorded.
The Application was amended to claim weekly benefits from 14 April 2023 to 9 July 2023.
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) Application and attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no application to call oral evidence or cross-examine any witness.
FINDINGS AND REASONS
It is unnecessary that I discuss the applicant’s evidence, given the nature of the dispute.
Medical evidence
Dr John Bentivoglio – orthopaedic surgeon
Dr Bentivoglio reported first to QBE on 23 October 2019.
Dr Bentivoglio agreed with Dr (George) Kirsh that the applicant required a right knee joint replacement, due to medial compartment degenerative changes. She had equal degenerative changes in her left knee, which would “undoubtedly become symptomatic in the not too distant future”, and required bilateral knee joint replacements.
Dr Bentivoglio next reported to QBE on 3 November 2021.
The applicant had undergone partial knee joint replacement on 7 November 2019, and also release of the iliotibial band in December 2020.
Dr Bentivoglio assessed the applicant as having had a fair result for knee joint replacement. Her WPI was 30%. He deducted “10%”, leaving a total WPI of 20% (so the deduction was one-third).
On 11 November 2021, Dr Bentivoglio again assessed the applicant as having had a fair result for knee joint replacement. He assessed 20% WPI, but deducted one half, and the final assessment was therefore 10% WPI.
On 19 December 2021, Dr Bentivoglio opined that he did not believe the need for left total knee replacement (TKR) was a result of the original injury to Ms Priest’s right knee. “Definitely” her left knee complaint had not arisen as a result of the right leg injury.
Dr Bentivoglio’s final report is dated 28 January 2023.
The applicant had undergone left TKR in March 2022.
Dr Bentivoglio again assessed the applicant as having had a fair result from right knee joint replacement. He assessed 20% WPI but deducted one-half, so the assessment was 10% WPI. Even this deduction was “probably not enough”.
Dr Bentivoglio assessed the applicant as having had a good result from left TKR, which gave rise to 15% WPI. He deducted four-fifths, leaving an assessment of 3% WPI.
Dr Bentivoglio’s assessment of scarring was 1%. His combined assessment of WPI was therefore 14%.
Dr P. Endrey-Walder – general and trauma surgeon
Dr Endrey-Walder reported to the applicant’s solicitors first on 26 July 2021.
Dr Endrey-Walder noted that the applicant had undergone right uni-compartmental knee replacement at the hands of Dr Kirsh on 7 November 2019.
The applicant was having symptoms in her left knee when she was on her feet for a long period. Dr Endrey-Walder considered this to be “ominous”, on account of the overload when she had to take pressure off her right knee.
Dr Endrey-Walder assessed the applicant with 19% WPI. She had had a fair result from the right knee replacement, in respect of which he assessed 20% WPI. This was reduced by one-tenth, pursuant to s 323 of the 1998 Act, as Ms Priest had pre-existing pathology, leaving an assessment of 18% WPI. Her scarring was assessed as 1% WPI, so the combined assessment was 19% WPI.
Dr Endrey-Walder next reported on 7 December 2021.
The main reason for the consultation was the applicant’s significant consequential injury to her left knee, and Dr Endrey-Walder concentrated on this.
Dr Kirsh had requested approval for a left TKR, secondary to the injury on 19 March 2019.
Dr Endrey-Walder found no significant change in the applicant’s right knee. There was a prior history of left knee pain associated with osteo-arthritic changes. Her left knee had not been an issue for her until after the right knee injury and subsequent overload of her left leg.
Dr Endrey-Walder opined that there was a very significant contribution by the right knee injury to the current sustained pain in the applicant’s left knee.
Dr Endrey-Walder maintained his assessment of 19% WPI as a result of injury to the applicant’s right knee.
Dr Endrey-Walder next reported on 24 November 2022. He noted that the applicant had undergone left TKR at the hands of Dr Kirsh on 17 March 2022.
Dr Endrey-Walder assessed the applicant with 20% WPI as a result of left TKR (fair result); 20% WPI as a result of right uni-compartmental knee replacement (fair result); and 2% WPI for scarring. The combined assessment was 37% WPI.
Dr Endrey-Walder’s last report is dated 16 February 2023. He had been requested to comment on Dr Bentivoglio’s reports.
Dr Endrey-Walder noted that Dr Bentivoglio had deducted one-half from his assessment of WPI as a result of injury to the applicant’s right knee. He did not agree that his own deduction of one-tenth was inappropriate.
Dr Endrey-Walder, noting that the applicant had intermittent symptoms in the left knee going back to at least 2010, and more significant degenerative changes on that side than on the right, believed it would be reasonable to deduct one-fifth from the assessment of WPI.
Dr Endrey-Walder therefore assessed 16% WPI as a result of injury to the applicant’s left knee (20% WPI, less one-fifth); and 18% WPI as a result of injury to her right knee. He assessed WPI of 2% for scarring. The combined assessment was 32% WPI.
Dr Jonathan Negus – orthopaedic surgeon (Medical Assessor)
Dr Negus assessed the applicant on 14 April 2023.
On 27 April 2023, Dr Negus issued the first MAC.
Dr Negus assessed the applicant’s WPI by reference to Table 17-35 of American Medical Association Guides, 5th edition (AMA 5) and p 21 of the NSW workers compensation guidelines for the evaluation of permanent impairment, fourth edition (the Guidelines).
Dr Negus rated the applicant’s left knee as fair, and assessed 16% WPI, and her right knee as poor, and assessed 20% WPI. He referred to table 3.3, rating for ankle replacement results (“is to be the same as for total knee replacements”) on p 19 of the Guidelines, in rating the applicant’s knees.
Dr Negus deducted one-tenth from his assessment of 16% WPI for the left knee, so the assessment was 14% WPI. He also deducted one-tenth from his assessment of 20% WPI for the right knee, so the assessment was 18%. The applicant’s WPI for scarring was 1%. The combined assessment was therefore 30% WPI.
Commenting on Dr Endrey-Walder’s assessment, Dr Negus opined that Dr Endrey-Walder had not used the recommended points system from the Guidelines, where a fair result is 16% WPI, and not 20%, as it is in AMA 5. He also did not believe the applicant’s second scar added any significant impairment over and above the first, to warrant more than 1% WPI.
Dr Negus did not agree with Dr Bentivoglio’s deductions for a pre-existing condition. He saw no reason not to apply a one-tenth deduction to each of the applicant’s knees. He opined that Dr Bentivoglio had also used the AMA 5 points system, rather than that recommended in the Guidelines.
Medical Appeal Panel
The MAP issued its statement of reasons, together with the second MAC, on 10 July 2023.
The MAP confirmed that assessment of WPI is undertaken in accordance with the Guidelines. The Guidelines adopt AMA 5. Where there is any difference between AMA 5 and the Guidelines, the Guidelines prevail.
The MAP noted the method by which the Medical Assessor had assessed the applicant’s WPI, as recorded above.
Ms Priest relied on two grounds of appeal pursuant to s 327(3) of the 1998 Act. She claimed that the assessment was made on the basis of incorrect criteria; and the first MAC contained a demonstrable error.
The applicant claimed that the Medical Assessor had incorrectly applied Table 3.3 of the Guidelines, rather than the assessments contained in Table 17-33 of AMA 5.
The MAP noted that the issue was whether Table 3.3 of the Guidelines specified the assessments for a TKR and was inconsistent with Table 17-33 of AMA 5.
The MAP agreed with the submission made by the applicant that Table 3.3 of the Guidelines did not state that the impairment ratings for total ankle replacements are the same as for total hip replacements and TKR.
An essential part of Table 3.3 was the construction of the following sentence:
“The points system for rating total ankle replacement is to be the same as for total hip and total knee replacements, with the following impairment ratings:” (Emphasis added).
The MAP held that the above sentence did not provide that the impairment assessments for total ankle replacements are the same as the impairment assessments for total hip and knee replacements.
Table 3.3 then set out how the overall points rated for either a good, fair, or poor result. The MAP noted that the overall points system was identical to that part of Table 17-33 of AMA 5, which provides for how total hip and TKR rate – good, fair, or poor.
The MAP agreed with the applicant that Table 3.3 of the Guidelines did not say that Table 17-33 of AMA 5 was not used for TKR and total hip replacements. This contrasted with the clear language in paragraph 3.30 of the Guidelines, which provided a replacement table for the points system for rating TKR.
The MAP referred to paragraph 3.29 of the Guidelines, which it held supported the applicant’s argument that Table 17-33 of AMA 5 was used for the assessment of impairment ratings for total hip replacement and TKR.
Paragraph 3.29 included the following:
“A point score system is applied, and then the total points calculated for the hip (or knee) joint are converted to an impairment rating from Table 17-33.”
The MAP held that the above sentence assumed that Table 17-33 of AMA 5 was used for the conversion of the points system to impairment for hip or knee replacements.
The MAP noted that paragraph 3.30 of the Guidelines included a table that provided a revised points system for the calculation of the “Rating of knee replacement results”. The table stated that “AMA 5 Table 17-35 (p 549) is incorrect” and provided a “correct table.”
This contrasted with Table 3.3 of the Guidelines, which did not state that the portion of Table 17-33 of AMA 5 was incorrect.
The MAP concluded that the surrounding provisions provided clear contextual support that the assessments of impairments of TKR and total hip replacements in Table 17-33 of AMA 5 were used.
The MAP stated that Table 17-33 of AMA 5 did not contain a points system for assessing total ankle replacements. Accordingly, Table 3.3 of the Guidelines introduced a points system for grading total ankle replacements and provided a WPI based on whether there was a good, fair, or poor result.
That was necessary because of the absence in AMA 5 of a method of assessing total ankle replacements; and because assessing a total ankle replacement involves different criteria than assessing TKR or total hip replacement.
The purpose of Table 3.3 of the Guidelines was that it introduced both a points system and impairment assessments for total ankle replacements that was not otherwise contained in Table 17-33 of AMA 5.
The MAP concluded that Table 3.3 of the Guidelines did not assess the level of impairment for total hip replacement and TKR. Table 3.3 did not apply to TKR.
The MAP determined that the Medical Assessor had incorrectly applied Table 3.3 of the Guidelines in assessing the overall level of impairment for a TKR. Table 17-33 of AMA 5 must be applied for assessing impairment of a TKR. That is, a fair result is assessed at 20% and a poor result is assessed at 30%. This was an application of incorrect criteria.
The MAP determined that the first MAC was revoked, and the second MAC was issued.
The second MAC contained an assessment of 41% WPI.
SUBMISSIONS
The submissions have been recorded, so I will summarise them briefly.
Applicant
The applicant submitted that her permanent impairment was assessed at more than 30% when Dr Negus assessed her, as the MAP assessment was unchanged.
The applicant submitted that, in respect of payment of weekly benefits, the Commission had the power to go back and correct errors. It had the power to go back to the time when the second entitlement period ended, and if she satisfied the criteria, order that payments be made from that time.
The applicant submitted that the decision in Melides could be distinguished. Melides dealt with the question of whether the worker’s right to weekly benefits vested at the time of the injury.
There was no appeal of the MAC in Melides, so the applicant submitted it did not deal with the period between the MAC and the MAP, but with the period between the injury and the MAC. There is ratio in Melides that is relevant, but it did not address the matter that is before me.
The applicant submitted that she was a worker with highest needs as at the date of the first MAC, as she had been assessed for the purposes of Division 4 as having more than 30% WPI.
The applicant submitted that “assessment”, which was referred to in Melides, was another expression for “determination”. When the question arose for determination by the insurer in April 2023, assuming that it did arise, she qualified as a worker with high needs.
The applicant submitted that, in Melides’ case, Dr Burns had not assessed the worker in accordance with Part 7 of Chapter 7 of the 1998 Act. The description of assessment for the purposes of Division 4 of Part 3 of the 1987 Act matched what she undertook when she presented for examination by Dr Negus on 14 April 2023.
The applicant submitted there was nothing standing in the way of an award in her favour from 14 April 2023, notwithstanding that the assessment was flawed. Dr Negus assessed less than the applicant needed. She submitted this was still an assessment for the purposes of Division 4 that exceeded 30%.
The applicant submitted that “assessment”, not “found to be”, is relevant. It was “assessment” that needed to be considered. The assessment was of her condition. It was referred to by the Medical Assessor. Even though he used the wrong tables and criteria, he rated her left knee as fair and her right knee as poor. This was unchallenged by the MAP. It was not part of the appeal, and the MAP was restricted to the issues raised on appeal.
The applicant submitted that we were in “uncharted territory.” In Melides, the MAC created the trigger for a worker with high needs. It was “easy”, as the assessment was greater than 30% and was not appealed.
If the Court of Appeal was looking at this case, it would ask when the applicant was assessed for the purposes of Division 4. She submitted she was assessed on the date of the Medical Assessor’s assessment, because the MAP did not assess her. The assessment was not made clear until the MAP corrected the decision of the Medical Assessor. What was revoked was the first MAC, and not the assessment, on which the MAP relied, and which formed its basis.
The applicant submitted that Melides was not authority that there is no retrospectivity whatsoever. There was inbuilt retrospectivity. What was important was the assessment. If it was wrong, and overturned, that was one thing, but in this case it was right, and not challenged by either party or the MAP.
In reply to the respondent, the applicant submitted that L’Estrange v Manildra Meat Company Pty Ltd[2] addressed s 322A of the 1987 Act. It was of limited relevance, especially with respect to retrospectivity.
[2] [2022] NSWPIC 563 (L’Estrange).
The applicant reiterated that there was no assessment by the MAP. It established the unchallenged assessment of Dr Negus. His assessment retained relevance in a crucial way, as the MAP relied on it. The calculation needed to be assessed, but the assessment was unchallenged.
The applicant submitted that what was meant by retrospectivity in this case was pre - (the first) MAC, which she accepted.
The applicant did not argue that the legislation was “beneficial legislation”. She relied on the text of s 32A of the 1987 Act. She was “assessed” with greater than 30% WPI at an earlier date than the MAP “found” that she had greater than 30% WPI.
Respondent
The respondent relied on the authority of Melides, and the decision of White JA. It submitted that his Honour contemplated that there would be cases where there was a delay in assessment and in workers meeting the definition, but despite that potential disadvantage, he did not change his view. Payment under s 38A of the 1987 Act did not arise until the worker met the “highest needs” criteria.
The respondent submitted that the second MAC was conclusively deemed to be correct. Conversely, the first MAC ceased to have any statutory force or effect. There was no basis to accept the revoked MAC, and there was an obligation to accept the MAP dated 10 July 2023.
The respondent referred to the decision of Member Sweeney in L’Estrange.
The respondent submitted that it was not until the MAP was issued on 10 July 2023 that there was an assessment that met the criteria. That was the date at which it accepted liability to pay at the rate provided for by s 38A of the 1987 Act.
The respondent submitted that there was no reason to distinguish Melides. The applicant’s entitlement ran from the date on which she met the definition. Clause (a) of s 32A of the 1987 Act had to be read as a whole. The assessment had to be greater than 30%, and we did not get that until the MAP issued a certificate. Melides is authority that s 38A does not apply retrospectively.
The respondent submitted that there should be an award in its favour.
SUMMARY
Section 32A of the 1987 Act provides:
“‘worker with highest needs’ means a worker whose injury has resulted in permanent impairment and - -
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because a medical assessor has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”
Section 38A of the 1987 Act provides:
“38A Special provision for workers with highest needs
(1) If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision results in an amount that is less than $788.32, the amount is to be treated as $788.32.
(2) If the amount specified in subsection (1) is varied by operation of Division 6A, a weekly payment of compensation payable to a worker with highest needs before the date on which the variation takes effect is, for any period of incapacity occurring on and after that date, to be determined by reference to that amount as so varied.”
Division 6A of the 1987 Act provides for the indexation of weekly payments, which are reviewed on 1 April and 1 October in each year.
Part 3 of Division 4 of the 1987 Act includes s 65, which provides:
“65 Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.”
Part 7 of Chapter 7 of the 1998 Act contains the provisions relating to assessment of a medical dispute.
Section 319 of the 1998 Act provides:
“319 Definitions
In this Act - -
‘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.”
Section 325 of the 1998 Act provides:
“345 Medical assessment certificate
(1) The medical assessor 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 President and is to - -
(a) set out the details of the matters referred for assessment, and
(b) certify as to the medical assessor’s assessment with respect to those matters, and
(c) set out the medical assessor’s reasons for that assessment, and
(d) set out the facts on which the assessment is based.
(3) If the President is satisfied that a medical assessment certificate contains an obvious error, the President may issue, or approve of the medical assessor issuing, a replacement medical assessment certificate to correct the error.
(4) A medical assessor is competent to give evidence as to matters in a certificate given by the assessor under this section, but may not be compelled to give evidence.”
Section 326 of the 1998 Act provides:
“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.”
Section 327 of the 1998 Act provides for appeal against a medical assessment:
“327 Appeal against medical assessment
(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3) The grounds for appeal under this section are any of the following grounds - -
(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.
…”
Section 328 of the 1998 Act provides for the procedure on appeal:
“328 Procedure on appeal
(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows - -
(a) 2 medical assessors,
(b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission.
(2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made
(2A) To avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members.
(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.
(4) When attending an Appeal Panel for the purposes of assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.
(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.
(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.”
The Court of Appeal considered the construction of s 38A of the 1987 Act in Melides, in determining whether the special rate in that section was payable from the time of injury or from the time the worker satisfied the definition of “worker with highest needs”.
White JA, Gleeson JA and Macfarlan JA agreeing, held that s 38A includes a temporal element that requires that a worker be a “worker with high needs” at a relevant time in order to qualify for the higher payment rate.
White JA said (at [40]-[41]):
“The appellant submitted, correctly, that there is a temporal aspect to s 38A(1). It submitted that s 38A(1) operates with respect to determined amounts of weekly payments of compensation payable to a worker who meets the criteria for a worker with highest needs at the time the compensation is payable.
It is only if a determination of the amount of weekly payments of compensation payable to a worker with highest needs results in an amount less than the prescribed amount that a higher amount is payable. That assessment is to be made from time to time as amounts of weekly payments of compensation are payable. Unless at that time the worker is a ‘worker with highest needs’, then, increased amounts of compensation are not payable. The respondent was not a worker with highest needs (as defined) before 9 June 2017.”
White JA also said (at [47]-[48]):
“The respondent submitted that s 32A is a definition section and does not of itself create any entitlements to any form of compensation. That is true. But the definition is to be read into s 38A (Herzfeld and Prince, Interpretation, 2nd ed Thomson Reuters at [3.40]). When that is done, s 38A provides in substance (albeit awkwardly):
‘If the determination in accordance with this Subdivision of the amount of weekly payments of compensation payable to a worker, whose injury has resulted in permanent impairment and:
(a) the degree of permanent impairment has been assessed for the purposes of Div 4 to be more than 30%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%,
results in an amount that is less than $788.32, the amount is to be treated as $788.32.’
If, when the determination of the amount of weekly payments of compensation has to be made, whether it be by the insurer or the Commission, the worker does not fall within the description above, then s 38A is inapplicable.”
White JA said in Melides that the worker came within the definition “because and only because his degree of permanent impairment had been assessed for the purposes of Div 4 to be more than 30 percent” (at [35]).
Division 4 of the 1987 Act requires that permanent impairment is to be assessed as provided by Part 7 of Chapter 7 of the 1998 Act.
The applicant’s permanent impairment was assessed as provided for by Part 7 of Chapter 7 of the 1998 Act. The Medical Assessor then issued the first MAC “as to the matters referred for assessment” – s 325(1).
The first MAC was conclusively presumed to be correct. It certified the applicant’s WPI as 30%. It was not, as the applicant submitted, an assessment for the purposes of Division 4 that exceeded 30%.
The MAP revoked the first MAC and issued the second MAC, pursuant to s 328(5) of the 1998 Act. Section 326(1)(a) applied to the second MAC, that is, it was conclusively presumed to be correct with respect to the degree of the applicant’s permanent impairment as a result of the injury. As the respondent submitted, the first MAC then ceased to have any statutory force or effect.
Member Sweeney said in L’Estrange (at [22]-[23]):
“It is difficult to understand the applicant’s submission that the Commission, or the respondent’s insurer, should accept and act on the MAC of Dr Anderson dated 18 December 2020. It was revoked by the decision of the MAP of 9 April 2021. The new certificate issued by the MAP is conclusively presumed to be correct as to the degree of permanent impairment of the applicant as a result of an injury in accordance with s 326(1)(a) of the 1998 Act. Conversely, from 9 April 2021, the MAC of Dr Anderson ceased to have any statutory force or effect in respect of the degree of WPI as a result of the injury referred for assessment.
There is no basis for the Commission to accept the revoked certification of Dr Anderson. On the contrary, it is obliged to accept the certification of permanent impairment by the MAP. Equally, there is no substance in the argument that the insurer is obliged to accept the MAC of Dr Anderson and conclude that the applicant is a worker of ‘high needs’. It was entitled to rely on the MAC of 9 April 2021 that the applicant suffered 18% WPI as a result of the proven injuries.”
I do not agree with the applicant’s submission that because L’Estrange addressed s 322A of the 1987 Act, it is of limited relevance. The discussion of the effect of the MAC and the MAP in that matter is relevant to this matter.
Member Sweeney also said, at [39]:
“It must also be borne in mind that the only evidence on which [the applicant] relies to support the proposition that he is entitled to consideration as a worker of ‘high needs’ is the revoked MAC of Dr Anderson. Section 328(5) of the 1998 Act, however, applies s 326 to the new MAC issued by the MAP on 9 April 2021. It is that MAC which is binding and conclusive as to the degree of permanent impairment of the worker as a result of the injuries.”
That is the case in this matter. The first MAC was revoked and ceased to be of any effect when the second MAC was issued. It was only then that the applicant satisfied the provisions of s 38A.
I do not accept the applicant’s submission that what the MAP revoked was the first MAC and not the assessment, and that she was assessed on the date of the Medical Assessor’s assessment, because the MAP did not assess her. Pursuant to s 328(2) of the 1998 Act, the appeal was to be by way of review of the original medical assessment, which is what the MAP did.
I do not believe this case may be distinguished from Melides, on the basis that in Melides there had been no MAP. The principle remains the same. The applicant did not satisfy the provisions of s 38A until the second MAC was issued.
The order is as set out in the Certificate of Determination.
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