Regency Realty Pty Limited v Arzoumani
[2024] NSWPICMP 355
•3 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Regency Realty Pty Limited v Arzoumani [2024] NSWPICMP 355 |
| APPELLANT: | Regency Realty Pty Limited |
| RESPONDENT: | Anita Arzoumani |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 3 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of threshold dispute, based on reports of two years; Medical Assessor assessed left wrist in respect of which there had never been a claim; Skates v Hills Industries Ltd, Secretary, New South Wales Department of Education v Connolly, and Voudouris v TDV Constructions Pty Ltd referred to; Held – Medical Assessment Certificate revoked. |
BACKGROUND
Anita Arzoumani suffered an injury to her right elbow and wrist on 10 August 2015 in the employ of Regency Realty Pty Ltd (Regency) as a real estate salesperson. She suffered a consequential condition in her left elbow. After considerable conservative treatment, Ms Arzoumani underwent surgery in the form of right posterior interosseous nerve decompression and repair of her biceps tendon on 31 July 2019. Dr Lawson performed a right carpal tunnel release on 19 November 2020. On 5 April 2023 Dr Hughes performed a left distal biceps tendon repair. Regency’s insurer approved right wrist surgery in March 2023.
On 22 December 2021, Ms Arzoumani’s solicitors made a claim for permanent impairment compensation for 16% whole person impairment (WPI) based on reports by Dr Soo dated 19 October and 22 December 2021. The injuries assessed were to Ms Arzoumani’s right elbow, wrist and forearm and to her left elbow. The report was prepared at a time when further surgery was contemplated.
On 20 March 2023 Regency’s insurer wrote to Ms Arzoumani and told her that her treatment expenses would end on 23 June 2023. On 27 March 2023 Ms Arzoumani’s solicitors asked Regency to concede that she satisfied “the threshold of at least 11% WPI and that her entitlement to claim treatment expenses will continue up to at least 23 June 2026 (5 years after her weekly benefits ceased)”. The request was based on Dr Soo’s 2021 assessment. On the following day, Regency said that it did not concede the threshold.
When Regency did not make that concession, Ms Arzoumani filed an Application for Assessment by a Medical Assessor, seeking an assessment as to whether the degree of permanent impairment is more than 10% for the purpose of s 59A of the Workers Compensation Act 1987 (the 1987 Act).
The medical dispute was referred to Medical Assessor SK Cyril Wong who issued a Medical Assessment Certificate (MAC) on 23 October 2023. The Medical Assessor assessed 15% WPI in respect of Ms Arzoumani’s right upper extremity, left upper extremity and scarring. The Medical Assessor included 8% upper extremity impairment (UEI) in his assessment in respect of Ms Arzoumani’s left wrist.
On 17 November 2023 Regency lodged an Application to Appeal Against the Decision of a Medical Assessor. Regency relies on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The substance of the appeal is that the Medical Assessor assessed Ms Arzoumani’s left wrist when there was no medical dispute about an injury to, or consequential condition in, her left wrist.
Principal Member Harris prepared a decision dated 18 March 2024[1] in which he described the subsequent chronology. On or about 8 December 2023, after Regency filed the medical appeal, Ms Arzoumani filed an Election to Discontinue the originating application. The Personal Injury Commission (Commission) informed the parties that the election finalised Ms Arzoumani’s application but did not finalise the medical appeal. Ms Arzoumani’s solicitors wrote to the Commission and objected to the medical appeal proceeding.
[1] [2024] NSWPIC 128.
Principal Member Harris determined that the discontinuance was of no effect because the proceedings seeking a medical assessment had been finally determined by the MAC, it being the practice of the Commission not to issue a certificate of determination where no relief is sought under s 66 of the 1987 Act.
Ms Arzoumani sought a stay of the medical appeal to enable evidence to be obtained in respect of her left wrist and a further assessment of WPI sought, because she had recently undergone surgery. Principal Member Harris rejected the application for a stay and determined that the appeal should proceed. The application for a stay was rejected because Ms Arzoumani did not identify any power to order a stay, there was no application to reconsider the MAC on foot and because any liability dispute in respect of the left wrist would need to be determined by a member of the Commission.
As the delegate of the President, the Principal Member exercised the gatekeeper function in s 327 of the 1998 Act and determined that the medical appeal should proceed to an appeal panel.
The MAC
The Medical Assessor was asked to assess Ms Arzoumani’s permanent impairment in respect of her right upper extremity, left upper extremity and scarring.
On 16 October 2023, one week before the medical assessment, Ms Arzoumani underwent an MRI scan of her left wrist. The Medical Assessor took a history that Ms Arzoumani had pain in her left wrist “on usage” and that her left elbow and wrist were stiff.
The Medical Assessor included the results of that scan in the MAC:
“16/10/2023 MRI left wrist and hand – Non retracted chronic high grade tear of the foveal attachment of the TFC complex with extension dorso and volar peripheral lamina attachments. Focal area of deep chondral wear in the proximal medial surface of the lunate bone with underlying degenerative change and mild edema. Scapholunate and lunatotriquetral ligaments are intact.”
Describing his diagnosis, the Medical Assessor said:
“Anita Arzoumani is a 54-year-old woman who had an accident at work sustaining a soft tissue injury to her upper extremities. She had multiple operations for her injuries but she continues to have impairments from her injuries affecting many aspects of her daily activities and her capacity to work.”
The Medical Assessor assessed 15% WPI, comprised of 7%WPI in respect of Ms Arzoumani’s right upper extremity, 6% WPI in respect of the left upper extremity and 2% in respect of scarring. The assessment for the left upper extremity was comprised of 2% UEI for the left elbow and 8% UEI in respect of the wrist.
After setting out the assessments made by other examiners, the Medical Assessor said:
“Based on today’s examination I found impairments at both of the left upper extremity and the right upper extremity. The left upper extremity impairment was 6% WPI somewhat higher than the rating of 5% WPI provided by Dr Bodel. Dr Bodel did not provide a right upper extremity impairment rating. Dr Gavin Soo provided mainly right upper extremity impairment rating of 9% WPI based on range of motion data. My findings for the right upper extremity impairment were 7% WPI, somewhat lower than Dr Soo’s rating. I am unable to confirm the positive scaphoid shift test reported by Dr Soo. I agree with the 2% WPI rating for scarring provided by Dr Soo.”
The Medical Assessor did not comment on the fact that other examiners had not assessed Ms Arzoumani’s left wrist.
PRELIMINARY REVIEW
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
As a result of that preliminary review, we determined that it was not necessary for Ms Arzoumani to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
We observed that Ms Arzoumani had not filed submissions in respect of the medical appeal. We made a direction on 23 April 2024, noting that no submissions in respect of the appeal had been filed and extending time. Short submissions were filed on her behalf.
SUBMISSIONS
Our task is to determine the medical appeal. For that reason, we have not been provided with the written submissions provided for the purpose of the proceedings before the Principal Member. We have considered only the submissions made in respect of the medical appeal.
In summary, Regency referred to the decision of the Court of Appeal in Skates v Hills Industries Ltd[2] (Skates) and submitted that the Medical Assessor was in error to include an assessment in respect of Ms Arzoumani’s left wrist because there was no relevant medical dispute on foot, Ms Arzoumani not having made a claim for an injury to, or consequential condition in, her left wrist.
[2] [2021] NSWCA 142.
In reply and in submissions prepared by Mr Moffet of counsel, Ms Arzoumani submitted that the relevant application was in respect of the threshold under s 59A(2)(b) of the 1987 Act and that Principal Member Harris, in his capacity as gatekeeper, erred in using the absence of a claim for impairment and a medical dispute as a proper ground for permitting the appeal to proceed. Alternatively, Ms Arzoumani submitted that the Principal Member exceeded the power in s 327(4) of the 1998 Act by relying on documents to which the gatekeeper was not permitted to have regard, referring to Vannini v Worldwide Demolitions Pty Ltd[3] (Vannini). Mr Moffet said that there having been no claim, the decisions in Skates and Secretary, New South Wales Department of Education v Connolly[4] (Connolly) were not relevant.
[3] [2018] NSWCA 324.
[4] [2023] NSWPICPD 38.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Queanbeyan Racing Club Ltd v Burton[5] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[5] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[6] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[6] [2006] NSWCA 284.
The submissions prepared for Ms Arzoumani provide little assistance, being directed only to reasons why the medical appeal should not proceed and why it is said that the Principal Member’s decision was wrong. The medical appeal has been referred to us and we are required to determine that appeal.
Though the assessment of permanent impairment was sought for the purpose of the threshold in s 59A(2)(b) of the 1987 Act, that sub-section turns on an assessment of permanent impairment. Section 59A relevantly provides:
“59A Limit on payment of compensation
(1) Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.
(2) The compensation period in respect of an injured worker is—
(a)…—
(b)if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be more than 10% but not more than 20%, the period of 5 years commencing on—
(i)the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii)the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).
…” (emphasis added).
The permanent impairment threshold in s 59A(2)(b) is assessed in accordance with s 65 of the 1987 Act, which provides that the degree of permanent impairment is to be assessed under Part 7 of Chapter 7 of the 1998 Act. Only a medical dispute as defined in s 319 of the 1998 Act can be referred for assessment. Section 319 provides:
“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.”
The standard form of application for a medical assessment identifies a range of possible reasons for assessment, including several threshold disputes. In Ms Arzoumani’s case, the dispute identified was for the threshold in s 59A(2)(b). The dispute about Ms Arzoumani’s condition referred to the Medical Assessor was a dispute about degree of permanent impairment. The result of that assessment will be a finding as to the extent of permanent impairment as a percentage of WPI, not merely an opinion as to whether a threshold has been reached.
Because the Medical Assessor was tasked with determining a medical dispute, he was required to do so in accordance with the Guidelines, as interpreted by relevant, binding authority.
Authorities
In Skates, Basten JA highlighted that a claim was made with respect to a specific injury on a specific date and was described in the Application to Resolve a Dispute.[7] His Honour noted that medical reports enclosed with the worker’s application referred to specific injuries. The insurer had admitted liability with respect to those injuries and a dispute had arisen about the extent of the impairment.[8] The material filed with the application determined the scope of the referral.
[7] At [27].
[8] At [29].
Leeming JA said:[9]
“44. The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), ... The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.
…
46. The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a medical dispute because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.
47. Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences ‘Referral of medical dispute’ and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate.
48. The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute.
…
50. The foregoing substantially corresponds with the first explanation given by Basten JA for confirming the correctness of the result reached by the Appeal Panel and the primary judge, with a heavier emphasis upon the purpose of the statutory regime being to resolve a medical dispute and that a dispute is identified by the disputants’ competing claims. (emphasis in original)”
[9] At [44]-[50].
The reasoning in Skates with respect to the extent of the medical dispute was confirmed by the Court of Appeal in Scone Racing Club Ltd v Cottom.[10]
[10] [2024] NSWCA 34.
In Connolly, the Medical Assessor assessed two “body parts” which had not been referred for assessment and in respect of which a claim had not been made. The employer filed both a medical appeal and an application for reconsideration of the MAC. A Member determined that the Medical Assessor should reconsider the MAC and that the assessment should include the unclaimed body parts, because the MAC was evidence not previously available to the worker. That decision was overturned by the President who held that the medical dispute did not include the unclaimed body parts. The President said that a “fair reading of the [worker]’s claim, its supporting documentation and the ARD would plainly reveal the metes and bounds of the dispute.”[11]
[11] At [88].
In Voudouris v TDV Constructions Pty Ltd[12] (Voudouris) the President considered whether injuries in respect of which 0% WPI had been assessed can be included in a referral to a Medical Assessor. Replying on Skates, the President held that the “essence of the Commission’s power to entertain a medical dispute is the existence of a dispute.”[13] Relevantly for this case, the application concerned the threshold in s 39 of the 1987 Act, rather than a claim for permanent impairment compensation. The President said:
“… A valid claim, inter alia, involves a claim for compensation. In this matter the dispute about whether the appellant surmounts the s 39 threshold I accept is a claim for compensation. But the constituent parts of the claim are made up of the various WPI assessments, …”[14]
[12] [2023] NSWPICPD 53.
[13] At [48].
[14] At [50].
Consideration
The Commission’s practice is to send a draft referral to the parties to make sure it is accurate and appropriate. Both parties have a responsibility to ensure that the referral accurately reflects the claim made. Unfortunately, it did not occur in this case and the referral was made with respect to Ms Arzoumani’s left and right upper extremities generally. The Medical Assessor determined that his task was to assess Ms Arzoumani as she presented and he considered a recent investigation, being the MRI scan taken only a week before.
The President’s decision in Voudouris refutes Ms Arzoumani’s submission that the claim for an assessment for the purpose of a threshold is not independent of claim for permanent impairment compensation. Any relevant threshold will only be reached though the components of a valid claim.
We are satisfied that there is a demonstrable error in the MAC in the Medical Assessor’s assessment of Ms Arzoumani’s left wrist. It is apparent from the face of the MAC that no other examiner has assessed Ms Arzoumani’s left wrist and that the MRI scan was very recent. The passage from Vannini quoted in Ms A’s submissions concerns the role of the gatekeeper, not an Appeal Panel. Gleeson JA went on:[15]
“That a demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist, is consistent with the tentative remarks of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales:
‘The concept of “demonstrable error” is not defined, and may be open to various interpretations, ranging from the broad to the narrow. At the narrowest end of the spectrum, it may be thought that the error must be apparent from reading the certificate itself, thus equating the error with error “on the face of the record” for the unrelated purpose of relief in the nature of certiorari. There is no obvious reason why such a construction should be adopted when the purpose is review on the merits, rather than review for legal error. The word “demonstrable” does not in any event import such a constraint. As noted at [37] above, the example given in the second reading speech suggested that the error must be a manifest error.’”
[15] At [86].
Our review of the authorities shows that the Medical Assessor is required to do more than merely read the referral. While the referral in this case may have suggested to the Medical Assessor that assessment of the whole of Ms Arzoumani’s left upper extremity was open to him, the documents in the file indicated that the claim was restricted and did not include Ms Arzoumani’s left wrist. His task was a little more difficult than that discussed in Skates because the injury details in the application were:
“The applicant injured her right elbow and forearm at work while relocating to a new office building, lifting and moving unwanted office furniture, IT equipment and documents and files. The applicant has sustained a consequential injury to the left arm from overuse.”
However, if that description was not clear, the MAC template alerted the Medical Assessor to comment on the opinions of other examiners. None of the other examiners had commented on Ms Arzoumani’s left wrist and it was not mentioned in her statement. Dr Soo’s 2021 report provided an assessment in respect of her left elbow only. Ms Arzoumani took the very recent MRI scan of her left wrist to the appointment and the Medical Assessor noted that it was not in the documents provided to him. That too should have led him to consider if a claim had been made in respect of it.
Ms Arzoumani claimed that her permanent impairment exceeded the threshold in s 59A(2)(b) of the 1998 Act. Her left wrist was not a component of the claim and the Medical Assessor made a demonstrable error in assessing it.
The appropriate calculation for the left upper extremity (elbow) is 2% UEI which converts to 1% WPI. When combined with 7% for the right upper extremity (elbow and wrist) and scarring, Ms Arzoumani’s WPI is 10%.
For these reasons, we have determined that the MAC issued on 10 August 2015 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W6840/24 |
Applicant: | Anita Arzoumani |
Respondent: | Regency Realty Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor SK Cyril Wong and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW Workers Compensation Guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total % WPI (after any deductions in column 6) |
| Right upper extremity | 10/8/2015 | Chapter 2, | Chapter 16, | 7 | Nil | 7 |
| Left upper extremity | 10/8/2015 | Chapter 2, | Chapter 16, | 1 | Nil | 1 |
| Scarring | 10/8/2015 | Chapter 14, Table 14.1 | 2 | Nil | 2 | |
| Total % WPI (the Combined Table values of all sub-totals) | 10% | |||||
0
8
0