Regency Realty Pty Ltd v Arzoumani

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Regency Realty Pty Ltd v Arzoumani [2024] NSWPIC 128
APPLICANT/RESPONDENT ON APPEAL:	Anita Arzoumani
RESPONDENT/APPELLANT:	Regency Realty Pty Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	18 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the applicant suffered injury in 2015; application for medical assessment of threshold based on impairment of right elbow, right wrist, left elbow and skin; referral to Medical Assessor (MA) specified left and right upper extremity and skin; assessed by MA at 15% which included an assessment of the left wrist; employer appealed on ground that left wrist was not part of medical dispute before the MA; applicant then discontinued proceedings in an attempt to prevent the appeal from proceeding; matter had been finally determined when medical assessment certificate issued as this was a threshold matter; discontinuance of no effect as proceedings had been finally determined under Rule 76 of the Personal Injury Commission Rules 2021; alternatively, the discontinuance did not affect the appeal from proceeding; applicant’s request to stay employer’s appeal refused; no reconsideration application made by worker as evidence not available; application to include left wrist raises liability issue requiring determination by a Member; State of New South Wales v Bishop applied; power to make a stay not identified; worker asserted that left wrist was within the referral and could be assessed; discussion of Skates v Hills Industries Ltd, Secretary v Department of Education v Connolly, and Scone Race Club Ltd v Cottom; no claim and no medical dispute concerning the left wrist; employer’s ground of appeal capable of being made out under section 327(4); Held – stay refused; appeal referred to Medical Appeal Panel.
DETERMINATIONS MADE:	The Commission finds and orders: Finding 1. The notice of discontinuance filed on 8 December 2023 had no effect as the proceedings were finally determined within the meaning of Rule 76 of the Personal Injury Commission Rules, 2021. Orders 2. The ground of appeal is capable of being made out under s 327(4) of the Workplace Injury Management & Workers Compensation Act, 1998. An Appeal Panel will be constituted to determine the Appeal. 3. The application by the respondent for a stay of the appeal is rejected.

STATEMENT OF REASONS

BACKGROUND

Ms Anita Arzoumani (the worker) suffered injury on 10 August 2015 in the course of her employment with Regency Realty Pty Ltd (the employer).
Dr Soo was qualified by the worker and provided a report dated 22 December 2021. Dr Soo assessed whole person impairment (WPI) of the right elbow, right wrist, left elbow and skin with a combined WPI of 16%.
On 27 March 2023 the worker’s solicitor wrote to the insurer noting the assessment of Dr Soo who “provided an assessment of 16% WPI” and stated:
“Would you please acknowledge that our client now satisfies the threshold of at least 11% WPI and her entitlement to claim treatment expenses will continue up to at least 23 June 2026 (5 years after weekly benefits ceased).”
On 28 March 2023 the employer’s solicitor advised that it “does not concede the 11% WPI threshold”.
On 14 September 2023, the worker lodged an Application for Assessment for an assessment (W6840/23) seeking an assessment whether the degree of permanent impairment is more than 10%.
On 4 October 2023, the employer lodged a Response to the application for medical assessment.
The medical dispute was referred to Medical Assessor Wong (MA). The Referral for Assessment of Permanent Impairment dated 5 October 2023 listed the body parts referred as ‘Right Upper Extremity’, ‘Left Upper Extremity’ and ‘Scarring’.
On 23 October 2023, the MA issued a Medical Assessment Certificate (MAC) which assessed 15% WPI in respect of the worker’s right upper extremity, left upper extremity and scarring injury. Relevantly, the MA included an assessment of the left wrist as part of the assessment of the left upper extremity injury. The left wrist was assessed as 8% upper extremity impairment.
On 17 November 2023, the employer lodged an Appeal against a Decision of Medical Assessor (M1-W6840/23). The ground of appeal was that the MA erred by including an assessment of WPI for the left wrist as there is no dispute ‘on foot’ with respect to a claim of a left wrist injury or a claim of a consequential left wrist condition. The employer asserted that the worker has never formally alleged a left wrist injury nor condition and had never produced a medical report that includes an assessment of WPI for the left wrist.
On or about 8 December 2023, the worker lodged an Election to Discontinue Proceedings in the originating application (W6840/23).
On 11 December 2023, the Personal Injury Commission (Commission), via email to the parties, confirmed receipt of the Election to Discontinue Proceedings and confirmed the file has been closed for W6840/23. In the email, the Commission advised that this did not close the appeal proceedings.
On 21 December 2023, the employer emailed the Commission and advised that he is instructed to request the Commission to determine its appeal.
On 21 December 2023, the worker’s solicitor sent the following email:
“An applicant in workers compensation proceedings is given the right to discontinue at any time before the proceedings are finally determined (Rule 76 of the PIC Rules). The power is unfettered and the effect of discontinuance is that the proceedings are brought to an end. The Commission is thereby deprived of its jurisdiction in relation to the dispute and any purported decision made in relation to the proceeding following the discontinuance is of no effect.
The applicant objects to the respondent’s suggestion below emailed to you on 20 December 2023.”

Preliminary conference

The matter was listed for a preliminary conference before me on 25 January 2024. Mr Moffitt of counsel appeared for the worker and Mr Orr, solicitor, appeared for the respondent. The matter was unable to resolve by conciliation.
The formal hearing of the matter then commenced. At that time, I advised the parties that the practice of the Commission was that it did not issue a certificate of determination in matters which purely sought a medical assessment of impairment where no relief was sought under s 66 of the Workers Compensation Act 1987 (the 1987 Act). These observations were made in the context of the workers solicitors’ assertion that the proceedings had been discontinued and the proceedings had been brought to an end. In those circumstances I indicated a preliminary view that the notice of discontinuance had no effect as it had been filed after the proceedings had been finalised.
Mr Moffitt sought time to consider the matter. Accordingly, the parties were directed to file written submissions.
Subsequent to the preliminary conference the parties were referred to the decision of the President in Secretary, New South Wales Department of Education v Connolly.[1] I now acknowledge that the employer had previously raised that decision in its submissions in support of the grounds of appeal.
[1] [2023] NSWPICPD 38 (Connolly).
The parties filed written submissions which are discussed later in these Reasons.

REASONS AND FINDINGS

The effect of the discontinuance filed by the worker

The email from the worker’s solicitor asserted that the filing of the notice of discontinuance brought the proceedings “to an end” and the “Commission is thereby deprived of its jurisdiction”.
Rule 76 of the Personal Injury Commission Rules provides:
“An applicant may discontinue applicable proceedings, or part of applicable proceedings, as against one or all of the other parties to the proceedings, at any time before the proceedings are finally determined.”
As the worker noted in its written submissions, it was anticipated at the preliminary conference “that the submissions would be directed to the discontinuance and its impact on the appeal proceedings”.[2] There were no written submissions by the worker on this issue save that it was noted that the “worker is prepared to withdraw the discontinuance”, presumably if the stay was granted.
[2] Workers submissions, [5].
For the following reasons the discontinuance purportedly filed by the worker was of no effect as “the proceedings [were] finally determined”.
The claim was limited to a medical assessment of a threshold dispute. The provision of the MAC finally determined that issue. As I noted to the legal practitioners at the preliminary conference, there is no Certificate of Determination issued by the Commission where the only relief sought is the determination of a threshold dispute.
This is because the proceedings are determined with the issuing of the MAC.
That conclusion is consistent with various provisions of the 1987 Act and the Work Injury Management & Workers Compensation Act 1998 (the 1998 Act) which are phrased in terms of the determination of permanent impairment giving rise to an entitlement.
The present proceedings were framed in the letter of claim that the worker was entitled to medical expenses for a further five years after the cessation of weekly payments. The entitlement to treatment expenses for up to five years is provided by s 59A(2)(b) of the 1987 Act “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 section provides that the entitlement arises by the determination of the degree of permanent impairment.
Other entitlements are similarly based on the provision of the MAC. These include the determination of whether a worker is “seriously injured” (s 32A of the 1987 Act), entitlement to weekly compensation beyond five years (s 39 of the 1987 Act) and the right to obtain damages (s 151H of the 1987 Act).
This conclusion is consistent with the following passages from Connolly when the President stated:
“83. The process I have just outlined is the medical dispute process described by Leeming JA in Skates commencing at [44]. At the end of this process, a MAC was issued. With respect to this process, Leeming JA said:
‘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.’
84. Contrary to the Member’s acceptance that the MAC issued by the Medical Assessor was ‘further evidence that was not available to the [respondent]’, it was in fact the ultimate and binding resolution of the medical dispute. The acceptance that the MAC was further evidence was an error. As Basten JA said in Skates at [27], the jurisdiction of the Commission in a claim for lump sum compensation is ‘not at large’. The effect of the Member’s reasoning is contrary to these remarks and is contrary to the binding authority of Skates.”
The employer accepted at the preliminary conference that the discontinuance was of no effect. The written submission that the proceedings had been discontinued appeared to be a submission in the alternative.
For the above reasons I do not accept that Rule 76 allowed the worker to discontinue these proceedings because they had been finally determined.
If I am wrong in this conclusion, then I accept the employer’s alternative argument. This is because the Application to Appeal the MAC was filed prior to the filing of a Notice of Discontinuance and the purported filing of the Notice by the worker could not prevent the employer’s appeal of the MAC from proceeding.

Application for a stay of the proceedings

Submissions

The worker applied for a “temporary stay of the appeal proceedings so that the MA’s left wrist assessment can be the subject of evidence, and if applicable, further assessment of WPI.”[3]
[3] Worker’s submissions, [6].
The worker noted that at the time of Dr Soo’s examination, there was “no complaints made by the worker of left wrist pain and no impairment was assessed”.[4]
[4] Worker’s submissions, [11].
The worker referred to recent surgery to the left wrist following the issuing of the MAC.
The worker submitted:[5]
“In this case a stay is sought to prevent potential injustice. The injustice would arise if the worker was denied the chance to investigate potential rights from an impairment identified by the MA. The stay would give the applicant time to apply for further assessment so that proper effect can be given to the MA’s assessment on injury-related impairment.”
[5] Worker’s submissions, [21].
The worker otherwise referred to the decision of Papera v Equity Transport Group Pty Ltd[6] as support for it position that she was entitled to reconsider the MAC. It was submitted that the Member then based the decision on the reasoning of Adamson J at first instance in Skates v Hills Industries Ltd.[7] Her Honour stated:[8]
“It follows from Bindah that, if the terms of the referral in the present case had authorised it, the AMS, and the Appeal Panel, would have been entitled to address whether CRPS (which affected his shoulder, elbow and all fingers and the thumb of the left hand) had been caused by the injury to the Claimant’s left finger, wrist and scarring.”
[6] [2022] NSWPIC 421 (Papera).
[7] [2020] NSWSC 837.
[8] At [63].
The worker submitted, in accordance with the decision in Papera, that the Court of Appeal did not interfere with the reasoning of Adamson J in Skates.
In reply the worker submitted that the “precedent value of Connolly should be restricted to its facts”.[9]
[9] Worker’s submissions in reply, [3].
The employer submitted that there was no statutory basis for a stay and the application is contrary to the guiding principle to facilitate the “just, quick and cost-effective resolution of the real issues in the proceedings” (s 42 of the Personal Injury Commission Act 2020).
The employer noted that there was no application by the worker before the Commission as a notice of discontinuance had been filed.
The employer noted that no claim had been made for the left wrist and therefore there was no jurisdiction to determine any claim for that alleged injury. It submitted that there was a clear error in the MAC citing the Court of Appeal decision of Skates v Hills Industries Ltd[10] and the decision of the President in Connolly.
[10] [2021] NSWCA 142 (Skates).

Findings

I reject the worker’s application for a stay for the following reasons.
First, the worker did not refer to a power to order a stay in these circumstances. References to practices which had occurred in some matters only indicates what occurred in particular cases without identifying any power to support the practice.
Secondly, there is presently no application to reconsider the MAC. The worker conceded that further action would have to be taken to prepare the matter. No time limit was identified whilst the worker sought to prepare the left wrist claim.
Thirdly, if there is a liability dispute in respect of the left wrist condition then that must be determined by a Member. The Court of Appeal in State ofNew South Wales v Bishop[11] determined that the issue of whether a condition was caused by a work injury is a matter for a Member. In Jaffarie v Quality Castings Pty Ltd (No 2)[12] the Court of Appeal also found that the Member was required to determine the nature of the work-related injury. There is no relevant submission on the timing of the stay whilst any liability issue is resolved.
[11] [2014] NSWCA 354 at [20], [90] and [93].
[12] [2018] NSWCA 88, [80]-[81] per White JA; Macfarlan JA agreeing at [1] and Leeming JA at [30].
Those reasons are sufficient to reject the worker’s application for a stay of the Appeal.
The worker otherwise submitted that it could apply for a reconsideration under s 329 of the 1998 Act to include the left wrist for assessment. Alternatively, the worker submitted that the referral included the left upper extremity, and the MA was entitled to assess the left wrist.
There are three comments in relation to that submission. The observation by Adamson J at first instance is arguably inconsistent with the observations of Leeming JA in Skates where his Honour focused on the nature of the dispute which is “crystallised by the correspondence” and that the “fundamental legal concept is a dispute”. Leeming JA relevantly stated:[13]
“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.
….
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.” (Emphasis added.)
[13] Skates at [46] and [48]. The reasoning of Leeming JA in Skates was approved by the Court of Appeal in Scone Race Club Ltd v Cottom [2024] NSWCA 34 at [29].
Secondly the appeal was allowed in part. It is difficult to accept that her Honour’s decision has any precedent value on this issue where there is a difference in what was said by Adamson J at first instance and by Leeming JA on appeal.
Thirdly, if the worker’s submission is accepted by the Appeal Panel that the referral by itself, in the absence of a claim, allowed for an assessment of the left wrist, then the appeal can be dismissed based on the absence of demonstrable error. I do not agree with the worker’s submission as the submission is inconsistent with the observations of Leeming JA in Skates. However, this is an interlocutory decision, the comments are not final, and the matter must be decided by the Appeal Panel when it addresses the employer’s ground of appeal.
The employer’s position is arguable as there was no claim for the left wrist and that body part was not within scope of the medical dispute before the MA. The referral using the general reference to “left upper extensity” did not include a part of the arm where there had been no claim, no assessment and no medical dispute.
I otherwise do not accept the worker’s invitation to restrict the decision of Connolly to its facts. As the employer correctly submitted, the worker’s position is contrary to the observations by Leeming JA in Skates and Connolly.
In Connolly the Medical Assessor commented on and assessed occipital neuralgia and scarring which had never been claimed or referred. After the MAC was issued, the worker filed an appeal to an Appeal Panel. A Member determined, as an alternative to an appeal, that the matter should be reconsidered by the Medical Assessor.
The decision of the Member was overturned by the President who held that the Member erred in accepting the MAC as further evidence not available to the worker on the claim. The President otherwise held that the medical dispute did not include the assessment of scarring or occipital neuralgia.[14]
[14] Connolly, [84].
In response to the error made by the Member in amending the claim based on the opinion provided by the Medical Assessor, the President noted:[15]
“A fair reading of the [worker’s] claim, its supporting documentation and the ARD would plainly reveal the metes and bounds of the dispute, namely whole person impairment of the cervical spine and the left upper extremity (shoulder).”
[15] Connolly, [88].
Later in the reasons the President stated:[16]
“Whilst the parties debate whether a claim had been made in accordance with the Act and the authorities dealing with the making of a claim with respect to these two body systems, it is common ground that no such claim was made until after the MAC had been issued. The difficulty for the respondent’s position is as outlined by Leeming JA in Skates at [47] which I set out above. Namely, the outcome of the assessment by the issuing of the MAC constitutes the resolution of the medical dispute. The fact that there are references to these two body parts in the medical material does not assist the respondent, no further claim had been made before the resolution of the dispute.”
[16] Connolly, [95].

The worker submitted that she would suffer a “potential injustice” if a stay was not granted. However, that submission is based on a perceived entitlement that does not exist as it is contrary to the decision of Connolly.
The decision in Connolly is based on the reasoning of Leeming JA in Skates and is contrary to the worker’s submission that it can apply for a reconsideration of the MAC. It is clear that I am bound by the decision of Connolly unless it is contrary to any superior Court authority.
I add an additional comment that is not determinative of my reasons for rejecting the stay application but reinforces that conclusion and the remaining issue under s 327(4) of the 1998 Act.
This issue of the extent of the medical dispute before a Medical Assessor and an Appeal Panel was recently addressed by the Court of Appeal in Scone Racing Club Ltd v Cottom.[17] Those reasons were delivered on 22 February 2024.
[17] [2024] NSWCA 34 (Cottom).
The factual circumstances in Cottom involved a right knee injury in 2008 with surgery (anterior cruciate ligament reconstruction) and ultimately a total knee replacement in 2011. In 2015 a claim for permanent impairment was made and the parties entered into a complying agreement for 20% WPI.
A further claim was made for threshold purposes only, noting that there was no previous medical assessment (s 322A of the 1998 Act) but there had been a resolved claim for permanent impairment.[18] A referral was then made that the worker’s right lower extremity (right knee and peripheral nerve damage) and scarring be assessed.
[18] See Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250.
The MA found no peripheral nerve damage and no assessable scarring. Impairment of the right knee based on a fair result from a total knee replacement resulted in an assessment of 20% WPI.
The Appeal Panel dismissed the worker’s appeal based on assertions that the MA failed to properly assess for peripheral nerve damage. During the course of its reasons, the Appeal Panel stated:[19]
“Conversely, there are tentative suggestions of problems emanating from the lumbar spine in the evidence. But a lumbar spine injury is not part of the medical dispute referred for assessment.”
[19] Cottom v Scone Race Club Ltd [2022] NSWPICMP 70, [53].
The worker was successful in seeking judicial review of the decision of the Appeal Panel due to a failure by it to address the application to admit late documents. Part of that evidence concerned an injury to the lumbar spine, first raised after the issuing of the MAC by the Medical Assessor. At first instance on judicial review, Schmidt AJ stated:[20]
“These were all arguments which were for the appeal panel to consider and in my view cannot be resolved on this application, especially given that Dr Burns had not had to consider any possible injury to Mr Cottom’s spine.”
[20] Cottom v Scone Race Club Ltd [2023] NSWSC 779, [59].
The employer’s appeal to the Court of Appeal was successful. The reasons of the Court, delivered by Basten AJA (Gleeson and Mitchelmore JJA agreeing), included the following principles from previously decided cases in the Court of Appeal:
-      the medical dispute was based on the claim and not limited to the referral (Skates);
-      the Appeal Panel is obliged to dismiss the appeal unless there has been a demonstrable error which is material: Queanbeyan Racing Club Ltd v Burton;[21]
-      it is impermissible for an Appeal Panel to reconsider an element of the medical assessment which has not been the subject of a ground of appeal;[22]
-      the 1998 Act only allowed one appeal: Sleiman v Gadalla Pty Ltd.[23]
[21] [2021] NSWCA 304 (Burton), [25].
[22] Burton, [26].
[23] [2021] NSWCA 236 (Sleiman), [59].
The Court noted that the consent orders agreed between the parties removed any reference in the Application to an allegation of a consequential condition to the lumbar spine caused by the accepted right knee injury. The only matters referred for assessment were the right knee, peripheral nerve damage and scarring.
The Court of Appeal accepted the correctness of the statement by the Appeal Panel that the lumbar spine was not part of the medical dispute referred for assessment. Basten AJA stated:[24]
“As the Appeal Panel was restricted to the grounds of appeal raised in the referral (and any submissions accompanying the referral) and to the injury the subject of the referral (namely to the right knee), it could not properly have dealt with either of the matters raised in the late documents accompanying the application of 9 March 2022.”
[24] Cottom, [53].
This decision, decided after Connolly, determined that it was too late to raise further body parts not part of the claim when the medical dispute was before a Medical Assessor and/or an Appeal Panel.

Gatekeeper function

The parties have made submissions concerning what should happen with the Appeal. The worker has filed submissions and submission in reply. The worker’s application for a stay has been rejected. The remaining issue is whether the appeal should proceed to an Appeal Panel pursuant to s 327(4) of the 1998 Act.
Section 327(4) of the 1998 Act provides that an appeal is not to proceed unless the President is satisfied that, on the face of the application and the submissions made to the President, at least one of the grounds of appeal as specified in sub-s 327(3) of the 1998 Act has been made out. This involves an assessment by the President’s delegate of whether an appeal ground is arguable, or capable of being made out, on the face of the application and the parties’ submissions: Vannini v Worldwide Demolitions Pty Ltd;[25] Ballas v Department of Education (State of NSW).[26]
[25] [2018] NSWCA 324 at [83].
[26] [2020] NSWCA 86 at [68]-[72].
Upon examination of the MAC and on the face of the application and submissions made, I am satisfied that the ground of appeal is capable of being made out because the MA assessed the left wrist when there was no medical dispute in relation to that body part. In that respect the evidence shows that no claim for impairment of the left wrist had been made by the worker.
I note the worker’s submission that the referral identified the left upper extremity and the assessment of the left wrist fell within the scope of the referral. In respect of my function under s 327(4), I am not required to conclusively determine that submission. As there was no claim and medical dispute for the assessment of the left wrist, I am satisfied that the employer’s ground of appeal is “capable of being made out” because the referral did not create a medical dispute to the entire left upper extremity when the medical dispute was narrower than that referred.
The appeal is referred to a Medical Appeal Panel. Details of the constitution of the Medical Appeal Panel will be forwarded separately. These reasons should also be provided to the Medical Appeal Panel.

CONCLUSION

The finding and orders are set out in the Certificate of Determination.

[2024] NSWPIC 128

18 March 2024