Sarkiss v Workers Compensation Nominal Insurer (iCare) - [2024] NSWPIC 432

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sarkiss v Workers Compensation Nominal Insurer (iCare) & Anor [2024] NSWPIC 432
APPLICANT:	Andro Sarkiss
RESPONDENT:	Workers Compensation Nominal Insurer (iCare), Giginos Fairfield Pty Ltd
MEMBER:	Diana Benk
DATE OF DECISION:	13 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; accepted injuries to the cervical and lumbar spine, left shoulder, right elbow and left knee; whether the right elbow and left knee injuries/impairments meet the definition of medical dispute in section 319; whether a medical opinion expressing ‘no rateable impairment’ can be referred to a Medical Assessor; Sharma v Woolworths, Shankar v Ceva Logistics (Australia) Pty Limited and Klement v Bull N’ Bush Nurseries Pty Ltd discussed; Held – a medical dispute exists with respect to the left knee and right elbow and the assessment of no rateable impairment is equivalent to a 0% whole person impairment (WPI) capable of referral to a Medical Assessor; matter to be referred to a Medical Assessor for assessment of the WPI dispute with respect to the cervical and lumbar spine, left shoulder, left knee and right elbow.
DETERMINATIONS MADE:	The Commission determines: Findings 1. A medical dispute exists in respect of the left shoulder, right elbow, cervical and lumbar spine and left knee. Orders 2. The medical dispute is remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment as a result of injury as follows: Body parts: left upper extremity (shoulder); right upper extremity (elbow) (consequential condition); cervical spine; lumbar spine, and left lower extremity (knee) (consequential condition). Date of injury: 16 June 2022. Documents: Application to Resolve a Dispute and attachments, and Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

Mr Sarkiss (the applicant) sustained injuries in the course of his employment on
16 June 2022. Giginos Fairfield Pty Ltd, the employer and first respondent in these proceedings was uninsured at the time of injury thereby necessitating management of the claim by the workers compensation nominal insurer (the second respondent), who following assessment accepted liability.
On 13 December 2023, the applicant claimed lump sum compensation with reference to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for a 23% whole person impairment (WPI) relying on a report of Dr Gehr dated 28 November 2023 who assessed the following impairments:
(a)    13% WPI - left shoulder;
(b)    5% WPI - cervical spine;
(c)    7% WPI – lumbar spine;
(d)    no rateable impairment for the right elbow, and
(e)    no rateable impairment for the left knee.
In response to this claim, the second respondent arranged for the applicant to be medically assessed by Dr Hale, who in a report dated 13 February 2024, concluded the applicant had globally not reached maximal medical improvement and so assessment of WPI was not possible.
On 15 May 2024, in a dispute notice, the second respondent notified the applicant (unedited):
“We do not believe that you are eligible for permanent impairment lump sum compensation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 432
Decision Date: 13 August 2024

CaseChat Overview and Summary

The case of Sarkiss v Workers Compensation Nominal Insurer (iCare) involved the plaintiff, Sarkiss, who sought compensation for multiple injuries sustained in a workplace incident. The injuries included cervical and lumbar spine issues, left shoulder, right elbow, and left knee injuries. The dispute centred around whether the right elbow and left knee injuries met the definition of a "medical dispute" under the Workplace Injury Management and Workers Compensation Act 1998, and if a medical opinion expressing 'no rateable impairment' could be referred to a Medical Assessor for evaluation. The case was heard and determined by the NSW Civil and Administrative Tribunal.

The primary legal issues the court needed to decide were whether the injuries to the right elbow and left knee constituted a "medical dispute" as defined in section 319 of the Act, and if a medical opinion indicating 'no rateable impairment' could be referred to a Medical Assessor. The court had to interpret the relevant statutory provisions and consider precedent cases such as Sharma v Woolworths, Shankar v Ceva Logistics (Australia) Pty Limited, and Klement v Bull N’ Bush Nurseries Pty Ltd to arrive at a conclusion.

In its reasoning, the court held that there was indeed a medical dispute concerning the right elbow and left knee injuries. The court determined that a medical opinion expressing 'no rateable impairment' was equivalent to a 0% whole person impairment (WPI), which qualified as a matter that could be referred to a Medical Assessor. The tribunal concluded that the definition of a medical dispute was satisfied in this context and that the assessment of the WPI dispute, including for the cervical and lumbar spine, left shoulder, left knee, and right elbow, should be referred to a Medical Assessor for further evaluation. The tribunal's decision was based on the statutory interpretation and the established legal principles outlined in the precedent cases.

As a result of the tribunal's determination, the matter was to be referred to a Medical Assessor for the assessment of the WPI dispute concerning the cervical and lumbar spine, left shoulder, left knee, and right elbow. The court did not provide specific orders beyond directing the referral to a Medical Assessor for the unresolved issues.

Orders