Samaan v The Star Entertainment Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Samaan v The Star Entertainment Group Ltd [2022] NSWPIC 471
APPLICANT:	Mamdoh Monir Sabet Samaan
RESPONDENT:	The Star Entertainment Group Ltd
Member:	John Wynyard
DATE OF DECISION:	23 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; whether allegation of the resolution of an aggravation was a bar to the matter being referred to a Medical Assessor; whether the Commission has power to determine a claim for lump sum compensation; effect of Workers Compensation Legislative Amendment Act 2018 amendments; applicant injured in 2014; liability accepted but respondent’s subsequent medical advice was that aggravation had ceased prior to operative treatment in 2020; whether pathology related to the operative treatment was a consequential condition; Held — the 2020 surgery was no more than operative treatment for the subject 2014 injury; Shanka v Ceva Logistics applied; Jaffarie v Quality Castings Pty Ltd considered; observations on medical opinion that injury no longer the main contributing factor; whether aggravation had ceased was a matter for the Medical Assessor; matter remitted for assessment.
determinations made:	The Commission determines: 1. I remit this matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases: a. Date of injury: 9 July 2014 b. Matter for assessment: Lumbar spine c. Evidence: (i) application to Resolve a Dispute and attached documents; (ii) Reply and attached documents, and (iii) respondent ALD and attached documents dated 19 April 2022.

STATEMENT OF REASONS

BACKGROUND

Mamdoh Monir Sabet Samaan, the applicant, brings an action against the Star Entertainment Group Ltd for lump sum compensation.
Dispute notices were duly lodged.
The Application to Resolve a Dispute (ARD) and Replies on behalf of both respondents were issued.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether there is any impediment to the claim for lump sum compensation with regard to the lumbar spine being referred to a Medical Assessor, and
(b) is there any impediment to the matter being assessed by a Medical Assessor as to the surgery on Mr Saaman’s lumbar spine on 13 May 2020 and resultant scarring.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

At teleconference on 20 June 2022, I issued directions for written submissions as set out below. The applicant was represented by Mr Jim Jobson of counsel instructed by Ms Heidi Gergis of Gergis Solicitors. The respondent was represented by Ms Belinda Walsh from Messrs Hall and Wilcox, lawyers.
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:
Applicant
(a)    Application to Resolve a Dispute and attached documents.
Respondent
(a)    Reply and attached documents, and
(b)    ALD and attached documents dated 19 April 2022.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

The directions for written submissions were issued on 23 June 2021. They provided:
“1. The parties are to lodge and serve written submissions by 4 July 2022 as to the following:
(a) whether there is any impediment to the claim for lump sum compensation with regard to the lumbar spine being referred to a Medical Assessor in view of the admission of liability made by Dr Vote and Dr Millions;
(b) is there any impediment to the matter being assessed by a Medical Assessor as to the scarring caused by surgery on Mr Saaman’s lumbar spine on 13 May 2020.
2. Written submissions in response by each party are to be lodged and served by 18 July 2022.”
Written submissions were duly received. As indicated, a question arose as to whether there was any dispute in the light of the evidence relied on by the respondent. It is accordingly necessary to consider the history of this matter.
Mr Saaman injured himself whilst using a backpack vacuum cleaner on 9 July 2014.
A claim for weekly benefits and s 60 expenses was made to which a s 74 notice issued on 29 June 2015.[1] This stated:
[1] Respondent ALD p 1.
“Reasons for decision
We rely on the following evidence in support of our decision on liability:
• You initially made a claim for workers' compensation on 10 July 2014 for an injury to your Lower Back sustained on 09/07/2014 as a result or bending and vacuuming.
• Dr John Lose provided the diagnosis of Lower back muscle strain on 09/07/2014.
• Dr Vote (Independent Medical Examiner) reported on 14/08/2014 that ‘I would consider that his employment is a substantial or main contributing factor to his present acute symptoms’.
• Dr Balsam Darwish your Nominated Treating Specialist reported on 02/10/2014,
‘Mamdoh suffers from L4/L5 and L5/S1 discogenic pain’ and ‘His left leg symptoms can't be explained by the findings of the MRI scan of the lumbosacral spine. He has no verifiable radiculopathy’ He also stated ‘The radiologically demonstrated changes in his lumbar spine are most likely degenerative in nature aggravated by the nature of his employment.’
• Dr Vote again reported on 18/12/2014, ‘Overall, I would consider that his employment is a substantial contributing factor to his present condition which necessitates treatment.’
• Dr Vote reported on 10/03/2015, ‘Overall, I would not consider that the work-related aggravation has ceased.’
• Dr Vote reported on 18/05/2015, ‘Overall, I would consider that the most substantial contributing factor to Mr Samaan's present symptomatology is underlying disc degenerative change. He also stated ‘Reviewing his MRI in July 2014 he has chronic disc degenerative changes at L4/L5 and L5/S1 with central bulges at both, and desiccation and narrowing. These finding, [sic] could not have been produced by the single act of vacuuming.’ Furthermore, he stated, ‘I would consider at this point in time, nine months after his incident at work, Mr Samaan's problems at this point relate mainly to underlying degenerative change with a minimal input if any from the incident involving vacuuming.’
Based on the above, we say that you are no longer suffering from a work related injury; your employment with The Star is not a substantial contributing factor to any injury/symptoms you currently suffer and that you do not require any further treatment as a result of a work-related injury.”
As can be seen, the respondent relied on the opinion of Dr James Vote, orthopaedic surgeon, to dispute this claim.
Dr Vote issued a number of reports to the respondent. He advised that the employment had been the main contributing factor to the subject injury, which was the aggravation of pre-existing asymptomatic degenerative change. Dr Vote gave that opinion on 14 August 2014, 18 December 2014, and 10 March 2015.[2] On
18 May 2015 Dr Vote said:[3]
“I would consider at this point in time, nine months after his incident at work, Mr Samaan's problems at this point relate mainly to underlying degenerative change with a minimal input if any from the incident involving vacuuming.”
[2] Respondent ALD pp 8 (at p 12), 14 (at p 17) and 19 (at p 20) respectively.
[3] Respondent ALD p 25.
To the present claim the respondent issued a s 78 Notice dated 27 May 2021.[4] This showed that the claim was initially accepted, but denied by the s 74 Notice of
29 June 2015. The applicant took no action at that stage, and the present action is the first brought in respect of this injury, according to the ARD form. The reasons given for the denial of lability in the s 78 notice were:
“We confirm that liability for your back injury in respect of the injury on 9 July 2014 was accepted and we have previously paid compensation in respect of weekly benefits and medical expenses for this injury. On 29 June 2015, however, we determined that you were no longer incapacitated nor did you require medical treatment as a result of your injury on the basis that your symptoms were no longer as a result of your aggravation injury.
• We maintain that the injury sustained on 9 July 2014 has resolved and any ongoing symptoms or disability is a result of a non-work related underlying degenerative condition of the lumbar spine. Accordingly, ongoing liability in respect of the lumbar spine injury remains disputed.
• On 15 February 2021, you made a claim for section 66 compensation in respect of 21% WPI for an injury to your lumbar spine, erectile dysfunction and scarring with a date of injury of 9 July 2014. You rely on an assessment of impairment of Dr Guirgis dated 5 February 2021.
• On receipt of your claim for lump sum compensation, arrangements were made for you to be examined by Dr Millons, general surgeon, who provided a report dated 10 May 2021. Dr Millons opined that you possibly aggravated constitutionally based degenerative changes in the lumbar spine on 9 July 2014. He considered that any aggravation would have resolved within months of the date of injury.
• Dr Millons opined that your normal activities of daily living were perpetuating the degenerative changes in your lumbar spine causing mechanical back pain. He did not consider the injury sustained on 9 July 2014 to be a substantial contributing factor to your condition.”
[4] Reply p 1.
Dr David Millons, general surgeon, issued a report dated 10 May 2021, as indicated. His advice was:[5]
“In the incident with the backpack vacuum cleaner on 8 July 2014, Mr Samaan appears to have been leaning over a lot, vacuuming under tables. There could have been some aggravation of the degenerate changes in the lower lumbar region but there does not appear to have been an (sic) particular disruptive pathology.
One would have hoped that, within a few months at most, any aggravation of the changes that are present in his back would have settled and any ongoing problems would relate to the normal activities of daily living playing on those attritional changes. I feel that that is probably the most appropriate diagnosis.
…..
Constitutionally based degenerate changes L4/5/S1. Aggravated by the normal activities of daily living over a three months period prior to the incident on 9 July 2014.
There appears to have been an aggravation of those changes in the incident that day which had him off work for a very long time. One would have thought that any aggravation should have settled within a few months at most. He claims it did not….”
[5] Reply p 26.
Dr Millons acknowledged Dr Vote’s opinion that employment had been the main substantial contributing factor to the injury of 8 July 2014, and that by 29 June 2015, when weekly payments and payment of s 60 expenses ceased, that Dr Vote thought employment was no longer a contributing factor. On 10 May 2021 Dr Millons advised that employment was not a substantial contributing factor to the subject injury.
At teleconference, the respondent argued that it was not liable for the cost of surgery, nor for the claim for scarring. Moreover, it continued to claim that the alleged resolution of the aggravation was a bar to the claim for lump sum payments.
I accordingly made the above direction that written submissions be filed.

WRITTEN SUBMISSIONS

The respondent

The respondent’s submissions were prepared by Mr Josh Beran of counsel. Mr Beran referred to the legislative amendments to the Workers Compensation Act 1987 (the 1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) whereby the Commission was given authority in certain cases to determine a claim for lump sum compensation without referring it to a Medical Assessor (MA). These amendments were in fact made by the Workers Compensation Legislative Amendment Act 2018.
Mr Beran submitted that these amendments affected the authority of Jaffarie v Quality Castings Pty Ltd[6] and Bindah v Carter Holt Harvey Australia Pty Ltd.[7] It followed that the determination of the degree of permanent impairment was no longer wholly within the jurisdiction of an MA.
[6] [2018] NSWCA 88.
[7] [2014] NSWCA 264.
Mr Beran submitted that nonetheless, Jaffarie remained authority that the “nature of the injury” was wholly within the jurisdiction of the Commission and was “the relevant matter” to be addressed in the present case.
This dictum required the Commission to examine the pathology and treatment required with regard to the subsequent surgery carried out on 13 May 2020 at a time when the respondent had not accepted liability, Mr Beran said. The pathology that caused the surgery to occur was in the nature of a consequential condition, Mr Beran argued, and he sought leave to raise this argument pursuant to s 289A(4) of the 1998 Act, if necessary.
Mr Beran submitted that the only liability that had been conceded was that the applicant had sustained an injury by way of an aggravation of a pre-existing condition in the lumbar spine.
Section 293 of the 1998 Act precluded a dispute involving the aetiology of the condition from being referred to an MA, it was submitted. Accordingly, a determination from the Commission was required as to whether the consequential condition had been a result of the subject injury, I understood Mr Beran to submit. The Commission was required to determine whether the consequential conditions Mr Beran had identified formed “the nature of the injury.”

The applicant

Mr Jobson submitted that the answer to my first query was that there was no impediment to the claim being referred to the MA. I accept his submissions and will incorporate them into my reasons, there being no point in rehearsing them twice.

The respondent in reply

Mr Beran noted that the applicable Practice Direction is now Procedural Direction PIC 6 – medical Assessments. I was referred to cl 25 thereof.

DISCUSSION

Section 65 of the 1987 Act now 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.
Note: The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.”
This section replaced the former s 65, which read:
“65 Determination of degree of permanent impairment
(2) 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
(3) 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.
Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
Section 321A of the 1998 Act provides:
“321A REFERRAL OF MEDICAL DISPUTE CONCERNING PERMANENT IMPAIRMENT
(1) The regulations may make provision for or with respect to-
(a) the circumstances in which a medical dispute concerning permanent impairment of an injured worker is authorised, required or not permitted to be referred for assessment under this Part, and
(b) the giving of notice of a referral to the parties to the dispute.
(2) Without limiting subsection (1), the regulations may provide that a medical dispute may not be referred for assessment under this Part if the dispute concerns permanent impairment of an injured worker where liability is in issue and has not been determined by the Commission.
(3) A medical dispute concerning permanent impairment of an injured worker that is authorised or required by the regulations to be referred for assessment under this Part may be referred by a court, the Commission or the President, either of their own motion or at the request of a party to the dispute.”
This section replaced the former s 321, which read:
“321 Referral of medical dispute for assessment
(1)     A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.
(2)     The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.
(3)     The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker.
(4)     The Registrar may not refer for assessment under this Part:
(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b)a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
It is relevant to note that s 293 of the 1998 Act now provides:
“(1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the President may (subject to the regulations under section 321A (Referral of medical dispute concerning permanent impairment)) refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
..
(3) The President may not refer for assessment-
(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
The former s 293 provided:
“(1)    When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may, in accordance with this section, refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(2)     If the dispute concerns the degree of permanent impairment (including hearing loss) of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(3)     The Registrar may not refer for assessment:
(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”

The amendments were made pursuant to the Workers Compensation Legislation Amendment Act 2018, and commenced on 1 January 2019. No regulations pursuant to s 321A(1) have been promulgated.
I read the respondent’s submission with interest. Mr Beran’s focus on the amendments contained in the Workers Compensation Legislation Amendment Act 2018 I found difficult to follow in the present circumstances. However, the submission that the amendments were relevant in the present case I reject. In particular, I reject the submission that the term “nature of the injury” extends jurisdiction to a Member to assess an applicant’s medical condition, if that was a purpose of Mr Beran’s submissions.
By virtue of the 2018 amendments, the Commission now does have power to make decisions regarding lump sum compensation. However, the amendments did not give the Commission power to determine medical disputes. In Shankar v Ceva Logistics (Australia) Pty Limited[8] DP Geoffrey Parker said from [51]:
“51.   The scheme of the Act is well established. The Arbitrators determine matters affecting liability, leaving medical issues to be determined by appointed AMSs. This remains the overall scheme of the Act notwithstanding the amendments to s 65 of the 1987 Act.
52.   Section 65 of the 1987 Act was amended in 2018 to repeal subsection (3). The effect of that amendment is to remove the prohibition on the Commission that prevented the Commission from awarding permanent impairment compensation ‘unless the degree of permanent impairment has been assessed by an approved medical specialist”.
53.   In Etherton v ISS Property Services Pty Limited[19] at [121] the President observed that the amendments to s 65 did not alter the method of assessment provided by the scheme of the Act.
54.   Section 65(1) provides that the degree of permanent impairment that results from an injury is to be assessed as provided for in section 65 itself and Part 7 of Chapter 7 of the 1998 Act. The repeal of s 65(3) has no effect on s 65(1) which remains the controlling provision so far as assessment of the degree of permanent impairment is concerned.
55.   55. The amendment to s 65 does not authorise the Commission to make an assessment of the degree of permanent impairment. The assessment of the degree of permanent impairment remains the province of the AMS. It follows that notwithstanding the absence of subsection (3) in section 65, assessment of the left upper extremity could only be performed by the AMS.”
(Emphasis and numbering as published).
[8] [2021] NSWPICPD 18.
Thus Mr Beran’s contention that the 2018 amendments has affected the authority of Jaffarie and Bindah is incorrect. In Shankar, Arbitrator John Harris, as he then was, found that an injury had occurred, but refused to refer a claim for the left upper extremity as the medical evidence certified a 0% whole person impairment (WPI).
[9] At [73]. Contrast with Etherton, where President Judge Phillips found a similar action by the Arbitrator was within jurisdiction.
DP Parker allowed the appeal on the basis that the Arbitrator had in effect determined the WPI, which he had no jurisdiction to do.[9]
Moreover, it can be seen that the provisions of Procedural Directions PIC 6, which
Mr Beran relied on, confirm the learned DP’s decision. PIC 6 provides:
“25. A dispute in relation to the degree of permanent impairment may be referred to a member for conciliation, in appropriate circumstances. If the matter remains unresolved, a member may determine the dispute in accordance with the evidence. Alternatively, the member may refer the matter to a medical assessor for assessment.”
The operative words in the Direction are “in appropriate circumstances.” Any dispute that requires for the assessment of the degree of permanent impairment must still apply the provisions of Part 7 of Chapter 7 of the 1998 Act, in accordance with s 65(1) of the 1987 Act.
Mr Beran is correct in his submission that the Commission has exclusive jurisdiction to determine the nature of the injury, however. In Jaffarie White JA (McFarlan and Leeming JJA agreeing) cited with approval the dicta of DP Roche in the Commission, relevantly from [80]:
“Deputy President Roche in his judgment of 9 December 2014 (Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79) analysed in detail the reasons of this Court in Bindah and concluded as follows:
‘[249] …. it is my view that the following principles apply to proceedings in the Commission:
(a) …
(b) it is for the Commission to determine whether a worker has received an injury within the meaning of s 4 of the 1987 Act and whether there are any disentitling provisions, such that compensation is not payable for that injury (Bindah at [111] and s 105 of the 1998 Act);
(c) ….
(d) ….
(e) ...
(f) ….
...
[255] The only matters that are ‘conclusively presumed to be correct’ are those matters listed in s 326(1). They are:
(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.
[256] It follows that, since ‘the nature of the injury’ (or the ‘condition’ or ‘aetiology of the condition’) is not a matter on which an assessment in a MAC is conclusively presumed to be correct, the opinions of an AMS on such matters do not bind the Commission. …
[257] The absence of any similar provisions for ‘the nature of the injury’ points strongly to the conclusion that ‘the nature of the injury’ is a matter for the Commission to determine. This is consistent with Emmett JA’s statement at [111] that it is for the Commission ‘to determine whether a worker has suffered an injury within the meaning of s 4 of the [1987] Act’ and his Honour’s later statement (at [118]) that only ‘certain matters of causation’ (emphasis added) are within the exclusive jurisdiction of an AMS’.”
As I apprehended Mr Beran’s submission, the Commission was therefore obliged to consider the nature of the injury as it related to the surgical treatment Mr Samaan had received for his injury, and the scarring that resulted from it. Whilst Mr Beran submitted that “such pathology is essentially in the realm of a consequential condition”, I was unable to follow his argument as to why that should be so, with respect.
The surgery was no more than a form of treatment for the injury, which was agreed by both Dr Vote, Dr Bodel and Dr Millons to consist of the aggravation of a pre-existing degenerative back condition. The causal nexus of treatment to injury was plain, subject to the view of the MA as to whether the aggravation had ceased by the time the surgery took place some six years after the occurrence of the injury. That issue is clearly a medical dispute, as it pertains to the degree of permanent impairment of the worker as a result of an injury, as required by s 326(1)(a).
I accordingly reject the respondent’s submissions that there was an impediment to the matter proceeding for assessment by an MA of the injury to the lumbar spine, or indeed assessment of the scarring caused by the operative treatment. They are matters that require the application of medical expertise to determine, as the treatment is now a fait accompli.
I note that the respondent did not seek to argue that the subsequent advice from both Dr Millons and Dr Vote that Mr Samaan’s employment was no longer the main contributing factor was a relevant issue. The test is mandated by sections 4(b)(i) and (ii), 15 and 16 of the 1987 Act. Each section requires the same test, whereby to establish the legal fact of injury. If employment was not the main contributing factor, then a claimant could not establish that he/she had been injured, regardless of the actual injury. As such it is a vital link in the causal chain and a most relevant fact. Relevant facts cannot later be revisited and declared irrelevant because two medical experts so advise. The issue is legal, and as such outside their expertise.
Accordingly, I accept the applicant’s submissions that there is no impediment to the matter proceeding to an MA for assessment. The injury was initially accepted by the respondent and its medical advisors. There is no legal basis on which not to make the referral.

DECISION

I remit this matter to the President for referral to a MA for an assessment WPI on the following bases:
(a)    Date of injury:  9 July 2014
(b)    Matter for assessment:      Lumbar spine
(c)    Evidence:
(i)ARD and attached documents;
(ii)Reply and attached documents, and
(iii)Respondent ALD and attached documents dated 19 April 2022.

[2022] NSWPIC 471

23 August 2022