Sarkiss v Workers Compensation Nominal Insurer (iCare)

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 because your accepted physical injury has not resulted in more than 10% permanent impairment as required by section 66(1) of the Workers Compensation Act 1987…
In Dr Hale’s report dated 13 February 2024, he indicates you have not reached maximal medical improvement and therefore is unable to provide an assessment of whole person impairment. At this time, iCare is unable to determine your Whole Person Impairment percentage as required by s66 of the Workers Compensation Act 1987”
In response to this notice, the applicant commenced proceedings in the Personal Injury Commission (Commission). In the ordinary course of events, given liability has been accepted, the matter would have bypassed conferencing and promptly been diverted to the medical assessment stream in line with the Commission’s efficient case management Pathways.
This Pathway was interrupted when the second respondent notified the Commission that no ‘medical dispute’ exists with respect to the left lower extremity (knee) and the right upper extremity (elbow) and so opposed referral of these injuries to a Medical Assessor.
As a result a preliminary conference was convened. The applicant was represented by Mr Kardum. The respondent was represented by Ms Davis instructed by Ms Barnsley. Attempts to conciliate resulted in the second respondent confirming a ‘medical dispute’ exists with regard to injury/impairments claimed for the cervical spine, lumbar spine and left shoulder and it consented to these claims being assessed by a Medical Assessor. However, the respondent maintained no ‘medical dispute’ existed for the right elbow and left knee and maintained these injuries/impairments were to be excluded from any referral to a Medical Assessor. The applicant disagreed. The respondent indicated it was prepared to make submissions at preliminary conference. In the interests of procedural fairness, (and specifically given referral to a Medial Assessor where there is an assessment of 0% WPI is arguable given recent decisions at various levels), I timetabled submissions to enable each party the opportunity to articulate its position.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the left knee and right elbow form part of the subject ‘medical dispute’ within the meaning of s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and
(b) can an assessment of ‘no rateable impairment’ be referred to a Medical Assessor?

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    written submissions filed by both parties.
The medical evidence filed is undisputed and has been largely addressed in submissions. For this reason, in the interests of brevity, it will not be repeated here.

SUBMISSIONS

In written submissions the respondent advanced;[1]
(a)    liabilities for all injuries claimed has been accepted;
(b)    the claims for the cervical and lumbar spine and left shoulder are properly a ‘medical dispute’ and capable of referral to a Medical Assessor;
(c)    lump sum claims for the consequential conditions of the left knee and right elbow cannot be considered a ‘medical dispute’ as both qualified doctors and the treating specialist have reported the applicant does not suffer any rateable impairment of the right elbow or left knee;
(d)    whilst authorities allow for 0% WPI assessment to constitute ‘a medical dispute’, this case can be distinguished as the left knee and right elbow have been assessed with ‘no rateable impairment’ and such an assessment is very different to a 0% WPI, and
(e)    the circumstances of this case can be distinguished from the authorities of Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 8 (Shankar) and Transdev NSW South Pty Ltd v Twining [2024] NSWPICPD 12 as there is a significant difference between conclusions as to the appropriateness of referral of a body part assessed with 0% WPI and those that have been expressed in this matter as having ‘no rateable impairment’. I was referred to Welsh v Dandan Management Services Pty Ltd [2022] NSWPIC 190 (Welsh) where the applicant was found not to have made a valid claim for any impairment to his right ankle as ‘the impairment had not been assessed in order to entitle the applicant to a monetary benefit’. Likewise reliance was placed on the authority of Voudouris vTVD Constructions Pty Ltd [2023] NSWPICPD 53 where the definition of medical dispute was explored.
[1] Second respondent submissions dated 22 July 2024.
In response, the applicant submits:[2][3]
(a)    Dr Hale reported he could not assess WPI. The only medical dispute raised by the second respondent is that the worker had not reached maximal medical improvement and the threshold required;
(b)    Dr Gehr’s assessment of ‘no rateable impairment’ for the right elbow and left knee are equivalent to assessments of 0% WPI for those injuries;
(c)    Dr Gehr is the only opinion that provides an assessment of impairment;
(d) the respondent has not claimed that any part of the section 66 claim was invalid;
(e)    the dispute notice did not assess or make offers in response to the claims made by the applicant and did not expressly accept the ‘0% WPI’ or ‘no rateable impairment’ for the left knee or right elbow in its letter of offer, and given that the second respondent has not answered these claims or the balance of them, a ‘medical dispute’ exists with reference to the entire lump sum claim;
(f)    reliance was placed on Sharma v Woolworths [2024] NSWPIC 350 (Sharma) where it was determined ‘an assessment of a body part of 0% as part of a valid claim, can be assessed as part of the medical dispute’. I was also referred to Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 8 (Shankar) which also concluded that a 0% WPI can be assessed by a Medical Assessor, and
(g)    this case can be distinguished from Welsh as the second respondent has not raised an argument that the worker’s s 66 claim was not a valid one and also distinguished from Voudouris as the 0% WPI assessments in that claim were not in dispute.
[2] Submissions dated 29 July 2024.

CONSIDERATION AND FINDINGS

Sections 281 and 282 of the 1998 Act requires the applicant to make a claim for lump sum compensation. Section 282(1) sets out the relevant particulars required for a claim for permanent impairment and include the injuries received and “all impairments arising from the injury” (s 282(1)(b)).
A dispute about a claim may be referred to the Commission (s 288 of the 1998 Act).
The rejection of the claim for the degree of permanent impairment creates a ‘medical dispute’ under s 319 of the 1998 Act.
The definition of a ‘medical dispute’ is found in s 319 of the 1998 Act and prescribes seven instances that may activate a dispute, relevantly;
"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 scope of a ‘medical dispute’ was considered and determined in the matter of Skates v Hills Industries Ltd 41 [2021] NSWCA 142 (Skates). Relevantly Leeming JA stated:
“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...
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 .... 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”
Here the second respondent has not argued the claim for lump sum compensation was invalid, rather submits the conclusion of Dr Gehr of ‘no rateable impairment’, for the left knee and right elbow means there is no ‘medical dispute’ for these injuries/impairments. Its dispute notice declined to assess any aspect of the lump sum claim on the basis of the global finding by Dr Hale that the conditions had not reached maximal medical improvement. On the face of the dispute notice, I find technically a ‘medical dispute’ exists particularly with reference to s 319 (c) and (g) as it is evident the correspondence between the parties establishes a ‘medical dispute’ both with reference to the degree of permanent impairment and/or whether the degree of the permanent impairment is ascertainable. However, assessment does not end there and the issue is not so clear cut.
I have noted the submissions, particularly in relation to competing authorities. Whilst a trite statement, it is axiomatic that each case turns on its own circumstances.
Both parties referred to the matter of Shankar. In that case, ADP Parker allowed the referral of a body part where there was an assessment of 0% WPI to a Medical Assessor on the basis that there was a ‘medical dispute’ as defined by s 319 of the 1998 Act despite both parties assessing 0% WPI for a body part. However, I understand such a referral may be resisted where there was no valid claim made for lump sum compensation or no ‘medical dispute’ exists between the parties as to the extent of the WPI that resulted from the injury/body part because the impairment assessments are identical and documented in the correspondence between the parties.
In these circumstances, the second respondent has not argued any aspect of the lump sum claim was invalid. Importantly in the dispute notice, it did not articulate any agreement with the finding of ‘no rateable impairment’ for either the left knee or right elbow. Realistically, it could not do so as Dr Hales considered the injuries had not reached maximal medical improvement. The respondent’s submission that Dr Hale considered there was no rateable impairment of the left knee and right elbow is not correct as he did not offer an impairment assessment. The submission is one of inference and not fact.
The primary contention by the second respondent is that Dr Gehr’s assessment of ‘no rateable impairment’ does not align with a 0% WPI finding. Whilst the term ‘no rateable impairment’ is not found in the 1987 Act, 1998 Act or indeed the Evaluation to the Guides for Permanent Impairment, I interpret and find the use of that term, in the circumstances of this case, to mean that the left knee and right elbow conditions equate to a 0% WPI. I acknowledge the respondent’s argument but overall, given that the finding of ‘no rateable impairment’ follows on from normal examination findings that preceded that ultimate assessment, I find that the term ‘no ratable impairment’ for the purposes of this review, is akin or interchangeable to the term “0% WPI” as so is an assessment of WPI capable of referral to a Medical Assessor.
I agree with the applicant’s submission the current circumstances are distinguishable from Welsh as the dispute in that case was whether there was a ‘valid claim’. Likewise, the facts of this case can be distinguished from Voudouris as in that case the two body parts that had been assessed at 0% were not in dispute in the particular circumstances of that matter.
Having regard to the above, I find that there is a disagreement between the parties as to the overall level of permanent impairment or whether the impairment is ascertainable. This finding is made on assessment of the opinions of the competing qualified medical specialists and the correspondence between the parties. It follows that a s 319 ‘medical dispute’ exists, allowing for all claims to be assessed by a Medical Assessor
For the reasons above, in summary, I find that a ‘medical dispute’ as defined in s 319 of the 1998 Act exists with regards to the claims made for the left knee, right elbow, left shoulder, cervical and lumbar spine. I further find that the term ‘no rateable impairment’ is analogous to a finding of 0% WPI and so is capable of referral to the medical assessor with reference to the authorities of Shankar, Sharma, Skates and more recently Klement[4] where similar observations were made. For reasons that are not clear, the parties did not refer to the authority of Klement, despite that authority being the subject of much robust discussion in the matter of Sharma. Again, in the interests of procedural fairness, I had considered inviting the parties to provide further submissions to address the issues raised in Klement (specifically the conclusion that a 0% WPI can be referred to a medical assessor), however, given that this argument was addressed in each parties submission (albeit with reference to other and older authorities) considered such a course of action would only frustrate the Pathway timeframes and not advance the matter.
[4] Klement v Bull N’ Bush Nurseries Pty Ltd [2024] NSWSC 466.

SUMMARY

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

[2024] NSWPIC 432

13 August 2024