Secretary, New South Wales Department of Education v Connolly - [2023] NSWPICPD 38

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Secretary, New South Wales Department of Education v Connolly [2023] NSWPICPD 38
APPELLANT:	Secretary, New South Wales Department of Education
RESPONDENT:	Barbara Connolly
INSURER:	Allianz - TMF
FILE NUMBER:	A1-W2183/21
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	30 June 2023
ORDERS MADE ON APPEAL:	1. The appellant’s application for leave to appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 2. The Certificate of Determination dated 21 June 2022 is revoked. 3. The matter is remitted to the Member, to refer the matter back to Medical Assessor Pillemer, in accordance with this decision, for the sole purpose of assessing the respondent’s degree of permanent impairment in relation to her left upper extremity (left shoulder) absent any consideration of the occurrence of injury.
CATCHWORDS:	WORKERS COMPENSATION – appeal against Member’s decision to refer a matter for further medical assessment under section 329(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 - Skates v Hills Industries Ltd [2021] NSWCA 142 and Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52 considered – monetary threshold to appeal satisfied under section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 – DGL (Aust) Pty Ltd v Martino [2023] NSWPICPD 30 and Ausgrid v Parasiliti [2020] NSWWCCPD 51 applied – leave granted to appeal against interlocutory decision under section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 – Licul v Corney [1976] HCA 6, Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5 and Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Dodd, counsel
Turks

Respondent:
Mr R Goodridge, counsel
Firths – The Compensation Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr M Wright
DATE OF Member’s DECISION:	21 June 2022

INTRODUCTION

This appeal involves a decision of the Member to allow a further medical assessment of the respondent worker, Ms Barbara Connolly, following an application for reconsideration made pursuant to s 329(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Under this provision, the Member determined that, as an alternative to an appeal against the Medical Assessment Certificate (MAC) issued in this matter, there be a further medical assessment with the same Medical Assessor, Dr Roger Pillemer, to assess the degree of permanent impairment with respect to the accepted injuries of the cervical spine and left upper extremity (shoulder), and the additional injuries of scarring and occipital neuralgia. These latter two injuries had not been referred to the Medical Assessor for assessment at first instance, and it is the Member’s findings in respect of these two injuries and decision to refer them for further medical assessment that are said to constitute both an error of law and error of fact in this appeal.

BACKGROUND

Ms Barbara Connolly was employed by the appellant, the NSW Department of Education, as a teacher at Hawkesbury High School. On 30 September 2009, she sustained injuries to her cervical spine and left upper extremity (shoulder) when a volleyball struck the left side of her head and temporal region. How the respondent came to suffer those injuries was not disputed, and she ultimately came to cervical surgery in the nature of C5/6 and C6/7 foraminotomies. In a letter of 20 May 2020, the respondent made a claim on the appellant for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 26% whole person impairment (WPI).[1] The letter did not particularise the body parts sought, and rather based the claim on the independent medical opinion of Dr WGD Patrick, general, vascular, and trauma surgeon, dated 8 August 2019.[2] In this report, the doctor assessed the respondent with 18% WPI with respect to the cervical spine and 10% with respect to the left shoulder. Dr Patrick considered the possible impairment with respect to scarring following the cervical surgery and found there to be nil (0% WPI).
[1] Application to Resolve a Dispute (ARD), p 2.
[2] ARD, pp 7–14.
While attempts were made by the appellant to have the respondent independently medically assessed in response to the claim, this did not proceed for reasons which were out of the parties’ control, notably the impact of the COVID-19 pandemic. The claim was thus not determined by the appellant. Proceedings were commenced in the Personal Injury Commission (the Commission) in June 2021. On page 7 of the Application (Form 2), the body systems claimed for permanent impairment were the cervical spine and left upper extremity. The respondent’s statement of 22 March 2021 enclosed in the ARD specified injury to the cervical spine and left upper extremity, and noted the assessment made by Dr Patrick of 26% WPI.[3] In the Reply to the ARD, the appellant served radiology and medical reports from the respondent’s treating practitioners, including Associate Professor Tillman Boesel, interventional pain specialist, who treated the respondent primarily in respect of her cervical symptoms. The Associate Professor mentioned a diagnosis of occipital neuralgia in a number of these reports between 2018 to 2019.[4] While the appellant submitted it had arranged for another independent medical examination when the Reply was filed, this did not proceed.
[3] ARD, p 1.
[4] Reply to Application to Resolve a Dispute (Reply), pp 11–37.
The matter was therefore referred to a Commission Medical Assessor, Dr Roger Pillemer, with the referral of 29 June 2021 identifying the body parts to be assessed as the cervical spine and left upper extremity. A teleconference scheduled by the Commission after this date was vacated by consent, and following a change in examination date, again due to the COVID-19 pandemic, the assessment eventually proceeded on 8 November 2021.

THE MEDICAL ASSESSMENT CERTIFICATE

The Medical Assessment Certificate was issued on 18 November 2021. Therein, it was identified that the body parts referred for assessment of whole person impairment pursuant to s 319 of the 1998 Act were the cervical spine and left upper extremity. The Medical Assessor recorded a history of the mechanism of injury on 30 September 2009 and diagnosed the respondent with a cervical spine injury, the symptoms of which were progressively worsening. The Medical Assessor considered the respondent displayed radiculopathy to the left upper extremity and considered the respondent was also suffering from occipital neuralgia. It was the Medical Assessor’s opinion that the respondent’s shoulder complaints were due to a neurological condition, rather than actual injury to the shoulder. This was because there was no actual injury to the left shoulder, the presence of equally restricted movement in both shoulders, and the absence of pathology. Accordingly, the Medical Assessor did not assess impairment for the respondent’s shoulder, finding the symptoms experienced were “part and parcel of the DRE Category III of [the respondent’s] cervical spine”. The Medical Assessor assessed 20% WPI with respect to the cervical spine, and 0% WPI with respect to the left upper extremity. The Medical Assessor opined that the respondent would also be entitled to a further 1% WPI for scarring, but as this was not part of the referral, the Medical Assessor did not include it in the overall assessment.

THE RECONSIDERATION APPLICATION

On 14 December 2021, the respondent filed an Application for Reconsideration of the Medical Assessment Certificate (the Reconsideration Application) pursuant to s 329(1) of the 1998 Act, as an alternative to an appeal against the Medical Assessment Certificate. I note that an appeal against the Medical Assessment Certificate was also lodged, but the Reconsideration Application was heard first, on the grounds that pending its outcome, the appeal may not need to proceed.
Put simply, the basis of the Reconsideration Application was that there was error in the Medical Assessor’s finding of no injury to the left upper extremity, and that based on the Medical Assessor’s clinical findings during assessment, he was “obligated” to assess impairment arising as a result of scarring and occipital neuralgia, despite these not being included in the referral.[5] The respondent acknowledged that while the assessment of 0% WPI for scarring would not have been allowed for inclusion in the referral to the Medical Assessor, (likewise with occipital neuralgia), the respondent would be severely prejudiced if the Medical Assessor was not able to assess these body parts in accordance with his opinion.[6] It was submitted that there was no way to foresee the findings and diagnosis of the Medical Assessor, and the respondent was limited to only one assessment of permanent impairment. In the context of s 329(1) of the 1998 Act, it was argued that a Reconsideration of the Medical Assessment Certificate may be a more pragmatic approach rather than proceeding with an appeal to a Medical Appeal Panel.
[5] Respondent’s submissions in support of reconsideration, [7].
[6] Respondent’s submissions in support of reconsideration, [10]–[11].
In response, the appellant agreed that the Medical Assessor erroneously found there was no injury to the left shoulder. However, it was submitted that this should have no bearing on the assessment of 0% WPI noting the Medical Assessor’s examination findings of no pathology.[7] It was argued that the Medical Assessor’s omission of an assessment of impairment for scarring and/or occupational neuralgia was not an error, as these body parts were not the subject of the medical dispute. The appellant referred to the authority in Skates v Hills Industries Ltd[8] as the guiding authority that body parts subject of a referral in a medical dispute (defined in s 319 of the 1998 Act) are those which form the claim made to an insurer.[9] The appellant submitted that at no stage was there a claim made for scarring or occipital neuralgia, and thus, in applying Skates, it would be impermissible for assessments to take place as they were not subject of the medical dispute. The appellant sought amendment of the Medical Assessment Certificate by removal of the Medical Assessor’s findings as to injury to the left shoulder, scarring and occipital neuralgia.[10]
[7] Appellant’s submissions in opposition of the reconsideration, [13]–[17].
[8] [2021] NSWCA 142 (Skates).
[9] Appellant’s submissions in opposition of the reconsideration, [21]–[22].
[10] Appellant’s submissions in opposition of the reconsideration, [27].
The Reconsideration Application was heard by Member Wright by way of oral submissions, who issued a Certificate of Determination on 21 June 2022. In addition to the written submissions made on the Reconsideration Application, the oral submissions made by the respondent included that s 319 of the 1998 Act did not define a medical dispute to mean the matters referred to the Medical Assessor. It was argued that having regard to s 326(2) of the 1998 Act, the opinion within the Medical Assessment Certificate constituted “evidence” which may be considered within the ambit of s 328(3) of the 1998 Act, the provision allowing for fresh evidence to be available on appeal against a medical assessment where it could not have been reasonably obtained by a party before the medical assessment. It was submitted that there was no legislative reason why an opinion of a medical assessor could not be treated as evidence akin to any other medical opinion. In response, the appellant maintained that the dispute was limited to the body parts claimed in the ARD and referred to the Medical Assessor, and that the Commission could not refer body systems which were outside the original referral, with reference to s 325(1) of the 1998 Act. The appellant referred to O’Callaghan v Energy World Corporation Ltd[11] which provided that the power to refer a matter back for further assessment was limited to those matters referred on the original assessment, and that the Medical Assessor was acting outside of jurisdiction in determining a question on liability.[12] The appellant maintained its reliance on Skates, which it noted was also adopted in Yates v Flavorjen Pty Ltd[13] whereby the court held that although one may look beyond the referral as to the true nature of a medical dispute, the terms of the referral could not be ignored, thus confining a medical assessment to the scope of the referral. It was overall submitted that the operation of s 329 of the 1998 Act did not permit the Commission to go beyond the scope of the initial referral to the Medical Assessor.
[11] [2016] NSWWCCPD 1 (O’Callaghan).
[12] Referring to Pidcock Panel Beating Pty Ltd v Nicolia [2017] NSWWCCPD 32 (Pidcock).
[13] [2022] NSWSC 388 (Yates).

THE MEMBER’S REASONS

The Member determined the Reconsideration Application in favour of the respondent, and ordered that the matter be referred back to Medical Assessor Pillemer to assess the degree of permanent impairment in respect of the cervical spine, the left upper extremity, occipital neuralgia and scarring in accordance with s 329(1)(a) of the 1998 Act, allowing liberty to the parties to apply in respect of further medical evidence as to the degree of permanent impairment with respect to occipital neuralgia and scarring.
In coming to this decision, the Member focused on the application of Skates, finding that Skates “did not conclude that the scope of a medical referral is always properly capable of restriction by reference to the specified body parts/systems at the time of the referral, and without reference to the applicant’s claim and the respondent’s dispute”.[14] The Member referred to the differing judgments of the bench in respect of the scope of a medical referral, concluding that it was “clear” from Skates that the referral did not necessarily limit the scope of assessment of the medical dispute.[15] In considering the material supplied in the proceedings, the Member noted Dr Patrick’s opinion that scarring was rateable (despite attributing 0% WPI), and Dr Boesel’s opinion of 6 March 2019 diagnosing continuing left occipital neuralgia (supplied in the Reply[16]). According to the Member, this material came “within the terms of the claim, or more accurately in this case, the terms of the medical dispute”.[17] The Member also referred to the judgment of McCallum JA in Skates who had acknowledged that an approved medical specialist (now medical assessor) was not free to ignore the terms of the referral, but the “medical dispute referred must be the medical dispute the parties sought to have resolved”. This view, the Member said, “permitted consideration of a change in the medical dispute and reconsideration … given that it is only the [worker] who is permitted to apply to the Commission regarding a dispute about lump sum compensation”.[18]
[14] Reasons, [50]–[51].
[15] Reasons, [53]–[55].
[16] Reply, p 30.
[17] Reasons, [57].
[18] Reasons, [64].
In his discussion, the Member reflected on the difficulties associated with the assessment of body systems and parts, referring to a “degree of casual uncertainty” despite the “prescriptive” NSW workers compensation guidelines for the evaluation of permanent impairment (the Guidelines) and AMA 5 guiding such assessments. The first uncertainty, according to the Member, was despite sometimes fluctuating or complex conditions, cl 1.6 of the Guidelines requires a medical assessor to conduct a “clinical assessment … as they present on the day … taking account the claimant’s relevant medical history information … symptoms and other relevant matters”. Further, cl 1.6 stated “in an unusual situation, a related injury/condition has not previously been identified, an assessor should record the nature of any previously unidentified injury/condition in their report and specify the causal connection to the relevant compensable injury or medical condition”, which posed tension between a requirement to assess in accordance with the Guidelines and the restrictive nature of medical assessment referral document.[19]
[19] Reasons, [58]–[59].
The Member considered that the assessment of impairment imported a causal element into the assessment, with reference to Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd,[20] a case which noted the inherent nature of a permanent impairment assessment required determination of causal connection when assessing impairment “as a result of” an injury, or the proportion “due to” a previous condition. In assessing questions of procedural fairness and the interests of justice, the Member commented that fairness for the respondent would mean allowing the additional assessments, noting she only had one opportunity,[21] and the “objective of providing fair compensation for workplace injuries”.[22]
[20] [2014] NSWCA 264 at [110], referred to at reasons, [61].
[21] Reasons, [62].
[22] Reasons, [66], referring to Skates, [61]–[61], per McCallum JA.
The Member concluded that the terms of the claim and the scope of the assessment of impairment resulting from the injury of 30 September 2009 was not limited by Dr Patrick’s opinion, supported by the fact that there was no report tendered by the appellant; the dispute being based on non-acceptance of the respondent’s medicine; knowledge that scarring was rateable for assessment based on Dr Patrick’s opinion; and Dr Boesel’s diagnosis of occupational neuralgia, attached to the Reply.[23]
[23] Reasons, [63].
According to the Member, there had not been a determination by the Commission, and thus, this gave rise to the question of whether the medical dispute was capable of being changed prior to determination, rather than being fixed at the time an application is lodged. As parties could agree to a “change by reduction of body systems to be considered” before referral to a medical assessor, then it was the Member’s view that body systems referred could be changed where “the [appellant] has not contested the claim … prior to the Application and where the Reply has provided evidence of occipital neuralgia”, and there was knowledge of rateable impairment with respect to scarring. The Member held that a referral for assessment was capable of amendment later in time after an assessment by a medical assessor, as implied from the absence of a finding to the contrary in Skates. The Member believed the medical dispute changed when the respondent sought to rely on the Medical Assessment Certificate in the application for reconsideration, and that “a medical dispute, while commenced by a claim, is not always the same as the commencing claim”.
In turning to the other authority relied on by the appellant, the Member rejected the applicability of Yates; did not accept that O’Callaghan limited the matters that could be referred for further assessment and considered that the circumstances in Pidcock were substantially different to this matter.[24]
[24] Reason,s [69]–[70].
To satisfy himself of referral of the matter for further assessment under s 329(1) as an alternative to a medical appeal, the Member proceeded to consider whether the matter could otherwise have proceeded on appeal to a Medical Appeal Panel under s 327 of the 1998 Act in accordance with Ballas v Department of Education (State of NSW).[25] The Member was satisfied on the basis of s 327(3)(b) of the 1998 Act, finding that the Medical Assessment Certificate was “further evidence” not available to the respondent or could not reasonably have been obtained prior to the medical assessment. The Member also noted that both parties agreed on there being a demonstrable error in the Medical Assessor’s finding of no injury to the shoulder. Accordingly, the Member allowed the Reconsideration Application, and referred the matter to the same Medical Assessor to include occipital neuralgia and scarring in his assessment, noting this would preserve any further appeal rights and provide a more “practical” manner of assessment than a medical appeal.
[25] [2020] NSWCA 86, referred to at reasons, [73].

The Certificate of Determination issued on 21 June 2022 thus records:
“1. Subject to the arrangements in 2 below, and pursuant to s 329(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998, the matter is to be referred again to Medical Assessor Pillemer for assessment of the degree of permanent impairment in respect of the cervical spine, left upper extremity, occipital neuralgia and scarring.
2. Liberty to apply in respect of a timetable for further medical evidence as to the degree of permanent impairment in respect of occipital neuralgia and scarring, to be incorporated with the amended terms for the referral document and direction to the Medical Assessor in accordance with the reasons herein.”

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

GROUNDS OF APPEAL

The appellant advances six grounds of appeal, and the respondent raises several threshold matters which I address below. I would note that Ground Four appears twice, but each ground is different. I have therefore labelled them Four “A” and Four “B” respectively. They are as follows.
Ground One – Error of law in failing to properly apply the decision in Skates.
Ground Two – Error of fact in finding that the respondent did not specify the precise body systems claimed.
Ground Three – Error of law in finding that occipital neuralgia and scarring formed part of the respondent’s claim.
Ground Four A – Error of law in finding that occipital neuralgia and scarring formed part of the ‘medical dispute’ between the parties.
Ground Four B – Error of law in finding that the respondent could amend the claim following the amended MAC dated 18 November 2021.
Ground Five – Error of law in finding that the grounds of the respondent’s appeal were capable of being made out.

LEGISLATION

Section 319 of the 1998 Act defines a medical dispute:
“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.”
Section 327 of the 1998 Act provides for appeals against medical assessments as follows:
“327 Appeal against medical assessment
(1)     A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2)     A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3)     The grounds for appeal under this section are any of the following grounds—
(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.
(4)     An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5)     If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.
(6)     The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
Note—
Section 329 also allows the President to refer a medical assessment back to the medical assessor for reconsideration (whether or not the medical assessment could be appealed under this section).
…”
Section 329 of the 1998 Act provides:
“329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—
(a) the President as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
Section 352 of the 1998 Act provides for appeals against a decision of a non-presidential member of the Commission as follows:
“352 Appeal against decision of Commission constituted by non-presidential member
(1)     A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a presidential member against a decision in respect of the dispute by the Commission constituted by a non-presidential member.
(2)     An appeal is to be made by application to the President.
(2A) The appeal is not to proceed unless the President is satisfied that the procedural requirements of this section and any applicable Commission rules and regulations as to the making of an appeal have been complied with.
(2B) The President is not required to be satisfied as to the substance of the appeal.
(3)     There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
(4)     The appeal must be made within—
(a) 28 days after the decision appealed against is made, or
(b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.
(5)     An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.
(5A) An appeal under this section stays the operation of the decision appealed against pending the determination of the appeal. However, an appeal does not stay or otherwise affect the operation of a decision as to weekly payments of compensation and weekly payments of compensation remain payable despite any appeal.
(6)     Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.
(6A) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(7)     Alternatively, the matter may be remitted back to the non-presidential member concerned, or to another non-presidential member, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by a medical assessor under Part 7).
…
(8)     In this section, decision includes an award, interim award, order, determination, ruling and direction.”

JURISDICTIONAL AND THRESHOLD MATTERS

The respondent’s submissions

Before proceeding to determine the grounds of appeal, I will address a number of jurisdictional and threshold arguments raised by the respondent to this appeal, which are said to go to the competency of the appeal. The “jurisdictional assertions”, as they are styled by the respondent, are as follows.

First jurisdiction assertion – The Presidential delegation

The respondent asserts that the Application for Reconsideration was made to the President and that this power had been delegated by the President to a delegate. The respondent asserts that there is no appeal to a Presidential member from the exercise of a Presidential function.[26]
[26] Respondent’s submissions on appeal, 17 August 2022, [4]–[7].

Second jurisdictional assertion – Threshold $5,000.00

The respondent says that there is no evidence to discharge the appellant’s burden of proving that the amount of compensation at issue is at least $5,000 (s 352(3) of the 1998 Act).[27]
[27] Respondent’s submissions on appeal, 17 August 2022, [8]–[10].

Third jurisdictional assertion – Threshold – 20% of the amount awarded in the decision

The respondent asserts that s 352 appeals are limited to circumstances where:
(a)    an amount is awarded, and
(b)    that amount awarded is contained in the ‘decision appealed’, or
(c)    the compensation at issue may be quantified as at least 20% of the amount awarded in that decision.
The respondent asserts that none of these three matters are satisfied.[28]
[28] Respondent’s submissions on appeal, 17 August 2022, [11]–[12].

Fourth jurisdictional assertion – Interlocutory nature

The respondent asserts that the decision of the President’s delegate cannot be described as a final order and therefore, the decision is interlocutory and thus subject to “statutory restrictions and prohibitions.”[29] I would remark that the respondent’s submissions on this point focus on whether the decision is interlocutory or final. No submission is advanced with respect to the terms of s 352(3A) of the 1998 Act and any application it has to this argument. Even if the decision is interlocutory in nature, which question I deal with below, this provision allows the granting of leave to appeal an interlocutory decision if s 352(3A) of the 1998 Act is satisfied.
[29] Respondent’s submissions on appeal, 17 August 2022, [15]–[16].

The appellant’s submissions

In reply to the jurisdiction assertions, the appellant says as follows.

As to the first jurisdictional assertion

The appellant says that the respondent’s submission misunderstands the Commission’s processes for dealing with disputes. The appellant says that every single dispute referred to the Commission for determination is done so by application to the President, relying upon s 288(1) of the 1998 Act. The appellant also points to s 4 of Sch 3 of the 2020 Act which describes the constitution of the Commission generally. The appellant therefore submits that the legislation requires an application to a non-presidential member at first instance, with an aggrieved party being granted a right of appeal under s 352 of the 1998 Act. The appellant says this assertion is without merit.

As to the second jurisdictional assertion

In answer to the entirety of this assertion, the appellant states that if one were to accept Medical Assessor Pillemer’s MAC, which refers to the possibility of further permanent impairment being assessed which may be 1% WPI or it might be higher, this would entitle the respondent to compensation in excess of $5,000.
Additionally, the appellant refers to the decisions of Olympic Fencing (NSW) Pty Ltd v Crossley[30] and Popovic v Liverpool City Council,[31] and submits as follows.
“In essence, those decisions held that the calculation of the amount of the claim for the purposes of the monetary threshold of $5,000 pursuant to s 352(3)(a) of the [1998] Act is based on the amount at issue on the appeal if no orders are made awarding compensation.”[32]
[30] [2007] NSWWCCPD 121 (Crossley).
[31] [2017] NSWWCCPD 49 (Popovic).
[32] Appellant’s submissions in reply, 15 September 2022, [15].
The appellant goes on to assert the following regarding the Medical Assessor’s assessment:
“The assessment by [Medical Assessor] Pillemer excluding scarring and occipital neuralgia was 20% WPI, equating to $30,250. If the respondent was assessed with at least 22% WPI, which can be inferred from the [Medical Assessor’s] comments if the additional body parts were allowed to be assessed, this would equate to an entitlement of $35,750.”[33]
[33] Appellant’s submissions in reply, 15 September 2022, [18].
The appellant asserts that the monetary threshold required by s 352(3)(a) of the 1998 Act is exceeded.

As to the third jurisdictional assertion

The appellant submits as follows:
“In Howlader v FRF Holdings Pty Ltd [2019] NSWWCCPD 55, Wood DP referred to the decisions in Crossley and Popovic. At [35], she found that:
Both Crossley and Popovic were decisions about the calculation of the amount of the claim for the purposes of the monetary threshold of $5,000.00 pursuant to s 352(3)(a) of the 1998 Act, that is the amount at issue on the appeal. The reasoning in both those authorities is equally applicable in determining the amount at issue on appeal for the purpose of s 352(3)(b).
Wood DP clarified at [36] that:
The decision must have a real capacity to put the amount of compensation in issue in the appeal, determined by reference to either the decision or, if no amount is awarded, the claim [emphasis added].
In applying those authorities to the present matter, as outlined above, because no compensation was awarded by Member Wright by virtue of the nature of the Respondent’s application for reconsideration, one must look at the original claim made. That claim was for $46,750 in relation to lump sum compensation; however, the Respondent was assessed by [Medical Assessor] Pillemer with 20% WPI, which entitles her to $30,250. The Appellant submits that one must look to the amount payable in respect of 20% WPI in order to calculate the required threshold under s.352(3)(b).
On that basis, for the appeal to proceed, ‘the amount at issue on the appeal’ must be $6,050, being 20% of the amount presently payable to the Respondent.
As previously highlighted by the Appellant, the commentary by [Medical Assessor] Pillemer does not provide a conclusive assessment as to the impairment attributable to scarring and occipital neuralgia, which the Appellant submits is correct given that they did not form part of the Respondent’s claim. In any event, it is certainly possible that if those body parts are allowed to be assessed on reconsideration, the Respondent may well be assessed with 23% WPI or higher (the uncertainty surrounding this is a critical part of the Appellant’s appeal). Under those circumstances, the Respondent would be entitled to at least $38,500, being a further $8,250, which is in excess of 20% of the amount payable in respect of 20% WPI.”[34]
[34] Appellant’s submissions in reply, 15 September 2022, [21]–[25].

As to the fourth jurisdictional assertion

The appellant states that the right to have the MAC dated 18 November 2021 reconsidered, which was determined by Member Wright in his decision dated 21 June 2022, had the effect of finally determining the right of the respondent to have the matter reconsidered. The appellant says the fact that this flowed to a further medical assessment is an irrelevant consideration.
In the alternative, the appellant concedes that if Member Wright’s decision was interlocutory in nature, leave must be granted pursuant to s 352(3A) of the 1998 Act. The appellant, noting the terms of s 352(3A), submits as follows.
“… leave should be granted under s 352(3A) of the [1998] Act (if required) for the following reasons:
(a)     There is substantial merit to the Appellant’s appeal.
(b)     Member Wright’s Order at [2] in that the parties have liberty to apply for a timetable for further medical evidence as to the degree of permanent impairment in respect of occipital neuralgia and scarring would have no impact on the assessment of impairment by a [medical assessor] given that that assessment is not based on the competing [independent medical examiners’] assessments but rather the [medical assessor’s] clinical assessment on the day of examination.
(c)    Member Wright’s decision effectively eliminates the Appellant’s ability to explore its liability for those body parts. Member Wright’s decision acts as a determination of liability for occipital neuralgia and scarring without those issues being argued or even investigated by the Appellant.”[35]

Consideration of the jurisdictional assertions

[35] Appellant’s submissions in reply. 15 September 2022, [33].

As to the first jurisdictional assertion

The first jurisdictional assertion raises the following issue. Under the former Workers Compensation Commission, the functions under s 329 of the 1998 Act resided with the Registrar of the former Commission. This situation changed with the commencement of the 2020 Act on 1 March 2021 with the conferral of this function upon the President. On that date, the former Workers Compensation Commission was abolished.[36] There are also other consequential provisions transferring arbitrators of the former Commission into the newly constituted Workers Compensation Division of the Personal Injury Commission. These arbitrators became non-presidential members of the Personal Injury Commission, and I will detail that structure below. It is therefore important to review the scheme of the 2020 Act in order to answer the question which has been raised in this jurisdictional challenge.
[36] Schedule 1, Part 2, Division 2(3) of the 2020 Act.
Section 8(1) of the 2020 Act provides that:
“The Commission is to consist of the following members—
(a)     the President,
(b)     Deputy Presidents,
(c)     principal members,
(d)     senior members,
(e)     general members.”
Section 8(3) provides that “[t]he principal members, senior members and general members are referred to in this Act as non-presidential members.” Further, s 11(1) of the 2020 Act provides that “[a] member has any functions conferred or imposed on the member by or under this Act or any other legislation.” Additionally, s 16(1)(g) of the 2020 Act confers the functions of the President which include inter alia “any other functions that are conferred or imposed on the President by or under this Act or any other legislation.”

Section 18(1)(a) of the 2020 Act permits the President to “delegate to a Division Head of a Commission Division or other member any of the functions of the President (other than this power of delegation)”.
Section 31(1) of the 2020 Act, entitled “Constitution of Commission” provides as follows:
“The Commission is to be constituted by one or more Division members of the Commission Division to which the function of dealing with the proceedings is allocated.”
Section 352(1) of the 1998 Act provides for appeals to a Presidential member against a decision of the Commission constituted by a non-presidential member.
There is no dispute that Member Wright in this matter is a non-presidential member in the Workers Compensation Division. This Member was delegated the power to hear this dispute under s 329(1)(a) of the 1998 Act by virtue of firstly, the President’s delegation of this power to the Division Head of the Workers Compensation Division of the Commission. Secondly, this power was sub-delegated by virtue of the Division Head’s sub-delegation to a non-presidential member, allowed pursuant to s 18(4) of the 2020 Act by way of my written instrument of delegation of 1 March 2021, and further set out in item 79 of the Division Head’s sub-delegation dated 25 January 2022. When hearing this matter, the Member properly constituted the Commission as is envisaged in s 31(1) of the 2020 Act.
As the non-presidential member in this matter has made a “decision” which he had been appropriately delegated, as contemplated by s 352(1) of the 1998 Act, it can be appealed under that provision to a Presidential member. This is the scheme of the 2020 Act, which provides appellate supervision over such matters which members have been delegated to hear. The respondent’s submission is very brief, it simply states that there is no appeal to a Presidential member from the exercise of a Presidential function. The submission is not further developed, nor does it attempt to engage with the scheme or structure of the 2020 Act. This submission, if accepted, would have the effect of requiring a decision of a member, acting under a delegated function or power, to be only capable of challenge by way of administrative review. I do not accept that this is the effect of the scheme and structure of the 2020 Act. As a result, the first jurisdictional assertion is not established.
I would distinguish this position from that of a Commission staff member, who also performs a decision-making role or function, clearly referred to in the instrument of sub- delegation. As this decision-maker is not a member (as defined in the 2020 Act), no appeal from that person’s decision would arise under s 352 of the 1998 Act. Such a decision-maker is subject to administrative review of their decisions.
The first jurisdictional assertion is dismissed.

As to the second jurisdictional assertion

The approach to monetary thresholds on appeal has very recently been canvassed by Deputy President in Wood in DGL (Aust) Pty Ltd v Martino,[37] a decision dated 23 May 2023. In Martino, the Deputy President described the authorities as they apply to this question (footnotes omitted):
“The question of whether the monetary threshold is satisfied in circumstances where the Member determined whether a body part is to be referred to a medical assessor (formerly an Approved Medical Specialist) has been considered in a number of Presidential Decisions, such as Fleming DP inFletchers International Exports Pty Limited v Regan; Deputy President Roche in Mateus v Zodune Pty Limited t/as Tempo Cleaning Services, and Acting Deputy President Snell (as he then was) in Trustees for the Roman Catholic Church for the Diocese of Maitland-Newcastle v Barrett.
In particular, in Ausgrid v Parasiliti, the appellant in that case raised the same argument in relation to the monetary threshold as that presented by the respondent in these proceedings. Snell DP made the following observations:
‘No compensation was awarded in the Arbitrator’s decision. In those circumstances it is settled practice in the Commission that whether the threshold in s 352(3) is satisfied is determined by reference to the claim as particularised by the worker. The claim was particularised in the current matter at $25,781.25, in respect of 17 per cent whole person impairment. The assessment of 17 per cent in Dr Giblin’s most recent report (on which the claim is based) is impairment of 7 per cent, 6 per cent and 4 per cent in respect of the lumbar spine, left upper extremity and right upper extremity respectively.
...
The monetary value of the particularised impairment in respect of the right upper extremity, which was the component of the claim in issue, exceeds $5,000. The appeal has the capacity to affect recovery of the whole of that amount, if the finding that the condition of the right upper extremity is secondary to the left upper limb injury is set aside. The requirements of s 352(3) of the 1998 Act are satisfied.’”[38]
[37] [2023] NSWPICPD 30 (Martino).
[38] Martino, [21]–[22].
Clearly in the dispute before Member Wright no compensation was sought or awarded, indeed the situation is analogous to that in Ausgrid v Parasiliti[39] referred to above. Applying that authority to this case, the claim particularised by the worker in the ARD was for 26% WPI, an amount of $46,750.00 based on the opinion of Dr Patrick. The addition of claims for scarring and occipital neuralgia has a capacity to affect the amount recovered if allowed to proceed, which is the effect of the Member’s determination. The monetary threshold is exceeded based on a review of the evidence relied upon by the respondent.
[39] [2020] NSWWCCPD 51.
The requirements of s 352(3) of the 1998 Act are satisfied. This jurisdictional assertion has not been established.

As to the third jurisdictional assertion

This submission simply asserts that as there was no amount awarded by the Member, the amount under appeal cannot be quantified as being at least 20%. In response, the appellant has attempted to show that 20% has been met by undertaking the various calculations I have set out above from its submissions. Neither approach taken by the parties is determinative of the question raised under this jurisdictional assertion.
The third jurisdictional assertion can be easily rejected. As no amount was awarded by the Member, s 352(3)(b) of the 1998 Act is of no application.[40]
[40] Lilly v Tomago Aluminium Company Pty Limited [2004] NSWWCCPD 62; Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5, [22].
The third jurisdictional assertion is without merit and is dismissed.

As to the fourth jurisdictional assertion

Before turning to the circumstances of this appeal, it is necessary to assess the true character of Member Wright’s decision; was it interlocutory or final? The Commission has approached this consideration in accordance with the decision in Licul v Corney,[41] where the following test is stated: “Does the judgement or order, as made, finally dispose of the rights of the parties?”
[41] [1976] HCA 6; 180 CLR 213, [11].
In no way can the two orders made by Member Wright in the Certificate of Determination dated 21 June 2022 be considered final. A fair reading of both orders clearly reveals the further steps to be taken in the proceedings, which could be subject to further applications (namely an appeal or reconsideration). The Member’s decision is clearly interlocutory in nature.
Consequently, the appellant requires leave under s 352(3A) of the 1998 Act to pursue this appeal. In accordance with the statute, leave is not to be granted unless the Commission is of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. This provision was considered by Deputy President Roche in Collingridge v IAMA Agribusiness Pty Ltd.[42] In Collingridge, Deputy President Roche determined that this provision required a consideration of the nature of the dispute and the orders sought on appeal.
[42] [2011] NSWWCCPD 31 (Collingridge).
In this matter the appellant seeks orders that the Certificate of Determination dated 21 June 2020 be revoked and that there be an award for the appellant entered with respect to the application for reconsideration.
The nature of the dispute is an application by the respondent for lump sum compensation where the degree of permanent impairment is in dispute. As stated above, the respondent made a claim on the appellant, who failed to respond, and the respondent then commenced these proceedings. The respondent claimed with respect to two body systems, her cervical spine and her left upper extremity (shoulder). The respondent’s claim was for 26% WPI based upon these two body systems as assessed by Dr Patrick in his report dated 8 August 2019.[43] Dr Patrick assessed the respondent’s scarring at 0%.[44] The doctor said this about her scarring:
“There is the healed longitudinal surgical scar evident over lower cervical and upper thoracic spinal region - well healed with some suture marks visible with minor contour alteration and not really visible with usual clothing.”[45]
[43] ARD, p 7.
[44] ARD, p 13.
[45] ARD, p 10.
As noted above, the respondent had also consulted a pain medicine physician, A/Professor Tillman Wolf Boesel at the Western Sydney Pain Centre. In his letter to the respondent’s GP, Dr Hamad, on 6 March 2019, Dr Boesel records that the respondent continues to have inter alia “L) occipital neuralgia”.[46]
[46] Reply, p 30.
Such whole person impairment claims, where an injured worker files an application for an assessment by one of the Commission’s medical assessors, is quite a common occurrence. The process is that the medical assessor is referred, for expert assessment, such body parts as are in dispute between the parties. In this matter there is no doubt that the body parts or systems referred to Medical Assessor Pillemer were the cervical spine and left upper extremity. No issue had been taken by the appellant with respect to injury to these body parts. Medical Assessor Pillemer examined the respondent on 8 November 2021. Medical Assessor Pillemer then issued his Medical Assessment Certificate on 18 November 2021. This is where this matter then departed from what is normally the case in such assessments. In this matter, over and above the two body parts or systems referred to the Medical Assessor, the Medical Assessor made the following findings and remarks:
“Importantly she does have localised tenderness to palpation in the sub-occipital region on the left side which is her site of maximum tenderness, and she also has hypoaesthesia to pin prick on the left side of her scalp.
She has a 10cm healed scar in the posterior cervical region which shows a colour contrast with the surrounding skin, and she is able to readily locate the scar and there is a minor contour defect.”[47]
[47] Medical Assessment Certificate, 18 November 2021, p 4.
Beneath the heading “Reasons for Assessment”, Medical Assessor Pillemer said the following in addition to his remarks and findings about the referred body parts:
“In my opinion Ms Connolly would also be entitled to 1% WPI for scarring, but as noted this has not been requested in the referral, and is therefore not included in the Table.
In my opinion there would also be additional impairment for occipital neuralgia, but this has also not been included in the referral, and is therefore not included in the Table.”[48]
[48] Medical Assessment Certificate, 18 November 2021, p 5.
Finally, I would also remark that the Medical Assessor found that there was no injury to the respondent’s shoulder and assessed her WPI for that body part at 0%. Both parties agree that the finding by the Medical Assessor of no injury to the shoulder represents demonstrable error, given that injury is not and was not in issue.
In the proceedings before the Member, the respondent sought to have either the error referred to a Medical Appeal Panel to assess the additional impairments identified by the Medical Assessor or in the alternative, to refer the matter back to the Medical Assessor for reconsideration. In short, the respondent sought to have the additional body parts (scarring and occipital neuralgia) assessed and become a constituent part of her application as, it was submitted, these arose from the accepted injury. The respondent also submitted that the MAC was in fact fresh evidence that should be received with respect to those two body parts.
To say the least, this matter has produced an idiosyncratic set of circumstances. The appellant has strenuously resisted these requests.
In the proceedings before Member Wright, the Court of Appeal decision in Skates figured highly in the argument and in the Member’s decision. On appeal, the Member’s application of the binding authority of Skates is seriously challenged by the appellant and prima facie those submissions have merit.
Given the history of this matter, its rather unique circumstances and the decision reached by the Member, it is necessary that leave to appeal be granted to enable the proper and effective determination of this dispute. To not grant leave would leave the matter in an unsatisfactory state, particularly having regard to the error which the Medical Assessor did make with respect to the finding of no injury to the left upper extremity or left shoulder where this was not in dispute. That error must be corrected. This matter also has the capacity to undermine the finality which attaches to a MAC and thus requires determination.
The appellant’s application for leave to appeal pursuant to s 352(3A) of the 1998 Act is granted.

DISCUSSION – APPEAL GROUNDS

As to Ground One – Error of Law in failing to properly apply the decision in Skates

The appellant relies upon the Court of Appeal decision in Skates in terms of defining what is a medical dispute and, as a consequence, what is then referred to a medical assessor for assessment. In particular, the appellant relies upon the following passages from Skates:
“It was not entirely clear whether the applicant’s case demanded that no constraint be placed on the assessment to be undertaken by reference to body parts/systems. If that were so, the AMS would not have been restricted to the left upper extremity (the left arm). No one suggested that he was not confined to that extent. However, once it is accepted that the scope of the referral was properly capable of restriction by reference to body parts/systems, the question as to how the Appeal Panel read the referral may well have been a matter for its professional judgment and not one involving reviewable error. In any event it was not submitted that it misread the referral. However, the claim was in fact wider than the referral in that it extended to the left wrist.
More broadly, this approach is confirmed by having regard to the statutory scheme, a matter which was fully developed by the primary judge in her reasons. Critically for present purposes, the concept of ‘whole person impairment’ is itself not found in the [1998] Act, which, reflecting s 66 of the [1987] Act, uses the term ‘permanent impairment’. As set out above, s 322 of the [1998] Act requires that an assessment of the degree of permanent impairment ‘is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.’ Section 331, dealing with the promulgation of Guidelines has also been noted.
Without attempting to set out the detail of the Guidelines and the AMA Guides, to which the Court was not taken, it is sufficient to note that the medical assessment certificate was required to identify the specific body part or system, together with the ‘chapter, page and paragraph number in WorkCover Guides’ and the ‘chapter, page, paragraph, figure and table numbers in AMA 5 Guides’. Identification of the extent of impairment by reference to individual body parts and body systems is required by the Guidelines and Guides which the statute obliges the AMS to follow.”[49]
And:
“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 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. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.
The document signed by the Registrar’s delegate and dated 1 September 2017 described itself as a ‘Referral for Assessment of Permanent Impairment to Approved Medical Specialist’. Its first numbered subheading was ‘Medical Dispute Referred for Assessment’ and there it stated, wrongly, ‘Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)’. That was wrong insofar as it did not include Mr Skates’ wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. The Appeal Panel was correct to state that the Approved Medical Specialist had gone beyond assessment of the medical dispute which had been referred to him.
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.”[50]
[49] Skates, [31]–[33], per Basten JA.
[50] Skates, [46], [48]–[50], per Leeming JA.
The appellant states that no claim was ever made by the respondent for whole person impairment arising from scarring or occipital neuralgia and as a result such body parts cannot be a matter for referral now.
In reply the respondent concedes that the “initial claim” did not include a claim for scarring or occipital neuralgia as the respondent had no evidence quantifying these impairments. Pausing here, I do not accept this submission with respect to the claim of scarring; the respondent had an assessment from Dr Patrick with respect to scarring in the amount of 0%. There was also a letter from A/Professor Boesel addressed to the respondent’s GP dated 6 March 2019 which recorded that the respondent continued to have “L occipital neuralgia”. True it is that this letter did not provide any permanent impairment assessment, the point is that the condition was identified in 2019. An assessment was capable of being obtained. The respondent says that no evidence of impairments with respect to these two matters was available until the Medical Assessment Certificate was issued. This, the respondent says, enabled the respondent to make a “further claim” based upon the Medical Assessor’s assessment. The respondent asserts that s 66 of the 1987 Act accepts that claims may be expanded.
In reply, the appellant states that the respondent’s submission with respect to the further claim being made following the MAC clearly contravenes s 66(1A) of the 1987 Act, which permits only one claim for lump sum compensation. The appellant relies upon the Presidential decision in Singh v B & E Poultry Holdings Pty Ltd[51] at [55] per Deputy President Snell. The appellant, with some force, then submits as follows, referring to the Deputy President’s remarks.
“The same caution should be adopted in the present matter. If the Respondent is permitted to have the MAC reconsidered to include the assessment of additional body parts that did not form part of her claim nor the ‘medical dispute’ between the parties, it sets a precedent in which a worker, if dissatisfied with a MAC, could obtain a further medico legal report inclusive of additional body parts and then seek to have a further assessment. That course of action, if allowed, would avoid the application of s 66(1A) of the [1987] Act, which was specifically introduced to prevent situations such as those in the present matter.”[52]
[51] [2018] NSWWCCPD 52 (Singh).
[52] Appellant’s submissions in reply, 15 September 2022, [40].

Consideration

Before turning to the Member’s decision in detail, it is necessary to set out the principles arising from the majority decision in Skates (Basten and Leeming JJA). Skates was a medical dispute as to the degree of permanent impairment arising from certain injuries. The worker in that case suffered serious injuries to his wrist and his left ring finger when he fell off a ladder at work. The medical dispute was referred to an Approved Medical Specialist (now medical assessor) who assessed the worker’s left upper extremity (left arm). The insurer appealed to an Appeal Panel, which upheld the appeal on the basis that the doctor had erred by going outside the terms of the Registrar’s referral and assessing body parts not referred to him. It was noteworthy that the insurer had conceded that the referral should have included a reference to the left wrist in addition to the left upper extremity (joint ring finger) and scarring. However, the Appeal Panel did not give effect to the concession considering itself bound by the terms of the referral.
Basten JA, in addition to those passages I have outlined above, said as follows:
“The short explanation is that the jurisdiction of the Commission in relation to a claim for lump sum compensation under s 66 of the [1987 Act] was not at large. The claim was made with respect to a specific injury which occurred in the course of employment on a specified date. The form for an application to resolve a dispute required identification of the date of the injury, a description of the injury, and a description of how the injury occurred. The ‘injury details’ included in the applicant’s application of 8 August 2017 were as follows:
‘Date of injury: 7.6.2013
Place of injury: Wagga Wagga
Date of compensation claim: 7.6.2013
Injury description: Injury to left wrist, ring finger and scarring.
Describe how injury occurred: The applicant fell from a ladder whilst accessing a roof to complete a pay TV installation severely injuring his left wrist and ring finger.’
In part 5.6 of the form, which covered permanent impairment, in addition to the date of the injury, the applicant was asked to identify the ‘body parts/systems claimed’ using ‘correct terminology depending on date of injury’. In that column, he included the following statement:
‘Left upper extremity, joint ring finger and scarring’.
This description, it is true, was not in precisely the terms set out earlier in the application.
Medical reports enclosed with the application referred to specific injuries of the left wrist and hand; it was these injuries to which the insurer admitted liability and as to which a dispute arose concerning the precise extent of the injury. The insurer offered to accept a degree of permanent impairment calculated at 12%; the applicant sought a payment calculated by reference to 18%. These figures were supported by medical reports.”[53]
[53] Skates, [27]–[29].
And at [30] his Honour said, “[a]s the primary judge found, this material defined the proper scope of the referral.” His Honour then granted the appeal, remitting the matter with the direction that the further referral to the medical assessor should identify the left wrist as an affected body part.
In addition to the paragraphs extracted above, in the appellant’s submission the following statement of Leeming JA is also of relevance:
“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.”[54]
[54] Skates, [47].
The Member was of the view that this matter fell outside the issues considered by the majority in Skates. The Member then considered the question as to whether or not the medical dispute was fixed or static at the time the application was lodged and found that it was not.[55] The Member then said as follows:
“The majority in Skates also did not hold that a referral document could not be amended at a later time in the proceedings. As the referral document does not prescribe the scope of the referral, and it is capable of amendment after an assessment by a Medical Assessor, as may be implied from Skates, then amendment of the referral document in this case is possible and desirable to avoid injustice to the [respondent], having regard to the legislative requirement that there can only be one assessment of the degree of permanent impairment pursuant to s 322A of the 1998 Act, and meeting the objective^[[56]] of providing fair compensation for workplace injuries.^[[57]] The proposition that the Appeal Panel was in error in not including an assessment of the wrist injury in its review, was not an issue of disagreement in the judgements in [Skates]^[[58]].”[59]
[55] Reasons, [64]–[65].
[56] Section 3(d) of the 1998 Act.
[57] Skates, [61]–[62], per McCallum JA.
[58] Skates, [30], [35], [50], [60]–[61].
[59] Reasons, [66].
The Member then continued at reasons [73] describing the respondent’s argument “that the Medical Assessor has provided new evidence, that is his own assessment with respect to his clinical judgement on the day of the examination, which could not reasonably have been obtained before the MAC was issued.” The Member then found that the MAC itself, in terms of the Medical Assessor's own clinical judgement, was further evidence not available to the respondent, nor could it have reasonably been obtained by the respondent prior to the MAC. The Member then referred the matter again to the Medical Assessor for further assessment to encompass further claims of occipital neuralgia and scarring.[60]
[60] Reasons, [74].
The Member was in error so to find.
Initially the respondent made a claim upon the insurer by letter dated 20 May 2020 for 26% WPI pursuant to s 66 and enclosed a copy of the report of Dr Patrick dated 8 August 2019. [61] A consideration of Dr Patrick’s report reveals the precise body parts assessed by the doctor which constitute his 26% WPI finding.[62] Pausing here, I would remark that on this page of the ARD Dr Patrick assessed the respondent’s scarring at 0%. When no response from the appellant was forthcoming, proceedings were filed by the respondent in this Commission on 7 June 2021. The ARD identified firstly injury to the cervical spine and left upper extremity under “injury description”, and beneath the heading “permanent impairment/pain and suffering”, the systems claimed are “cervical spine and left upper extremity”. The report of Dr Patrick was included in the application. A Reply was filed by the appellant and the respondent was subsequently referred to Medical Assessor Pillemer for the purposes of assessment.
[61] ARD, p 2.
[62] ARD, p 13.
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.”[63]
[63] Skates, [47].
Contrary to the Member’s acceptance that the MAC issued by the Medical Assessor was “further evidence that was not available to the [respondent]”,[64] 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.
[64] Reasons, [74].
This approach is also consistent with Deputy President Snell’s remarks in Singh, which I have extracted above. Neither scarring nor occipital neuralgia formed part of the “medical dispute” notified in this matter.
Ground One has been established.

As to Ground Two – Error of Fact in finding that the respondent did not specify the precise body systems claimed

This ground can be dealt with shortly. The Member at reasons [56] said that the letter of 20 May 2020 did not specify the precise body systems claimed. The letter attached Dr Patrick’s report of 8 August 2019 which did specify, with great precision, the body parts assessed and how the WPI claim of 26% was calculated. I do not read the respondent’s reply to this ground as taking issue with the appellant’s assertion, rather submitting that the “initial claim did not include scarring or occipital neuralgia”.[65]
[65] Respondent’s submissions on appeal, 17 August 2022, [21].
To the extent this factual finding was used by the Member to distinguish the Court of Appeal decision in Skates, the Member was in error. Indeed, as Leeming JA said in Skates at [48] “the fundamental legal concept is a dispute.” Without a dispute there is no need for any application to the Commission. A fair reading of the respondent’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).
I would note that neither party, and in particular the respondent, took any issue with the terms of the referral to the Medical Assessor. Nor was any issue taken with the body parts examined and reported on by the Medical Assessor (other than the agreed position that the Medical Assessor was in error to find no injury to the left upper extremity (shoulder).
Contrary to the assertion in this ground, the respondent did specify the body parts claimed with precision.
Ground Two has been established.

As to Ground Three – Error of law in finding that occipital neuralgia and scarring formed part of the respondent’s claim

The appellant refers to the Member’s reasons at [57] and [63] in support of a submission that the Member found that occipital neuralgia and scarring formed part of the respondent’s claim for whole person impairment. This, the appellant says, was an error in that no such claim had been made.
In response, the respondent says as follows:
“The initial claim did not include scarring or occipital neuralgia.”[66]
[66] Respondent’s submissions on appeal, 17 August 2022, [21].
It is the respondent’s position that it was not until the Medical Assessor’s MAC was issued that the respondent had evidence to make a “further claim” as contemplated by s 66(2B) of the 1987 Act with respect to scarring and occipital neuralgia. Implicit in this submission is an acknowledgement that at no time prior to the issuing of the MAC, had the respondent made any claim in accordance with the legislation with respect to these two body systems. I do not read anything in the respondent’s submissions as suggesting or submitting that at any time prior to the issuing of the MAC was there any “medical dispute” raised about these two body systems.
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.
The Member was in error in finding that these two body parts formed part of the respondent’s claim.
Ground Three has been established.

As to Ground Four A – Error of law in finding that occipital neuralgia and scarring formed part of the ‘medical dispute’ between the parties

This appeal ground is a derivation of that dealt with in Grounds One and Three above. For the same reasons that I upheld Ground One and Ground Three, Ground Four A is also established.
At reasons [57], the Member was in error where he said as follows:
“In my view, the material attached to the Reply comes within the terms of the claim, or more accurately in this case, the terms of the medical dispute.”
Ground Four A is established.

As to Ground Four B – Error of law in finding that the respondent could amend the claim following the amended MAC dated 18 November 2021

The appellant submits that “the Member also erred in finding that in the alternative, the ‘medical dispute’ between the parties was capable of being amended by way of the filing of the application for reconsideration.”[67] The appellant points to reasons [65]–[66] as the offending sections of the decision.
[67] Appellant’s submissions on appeal, 19 July 2022, [64].
The appellant further submits as follows:
“The Member’s finding that Skates implies that a ‘medical dispute’ is capable of change after assessment by a [medical assessor] is wrong at law.”[68]
[68] Appellant’s submissions on appeal, 19 July 2022, [66].
The respondent answers this by saying that s 66 of the 1987 Act “expressly accepts that claims may be expanded and that a ‘claim’ includes a further claim notified to the insurer.”[69]
[69] Respondent’s submissions on appeal, 17 August 2022, [23].
For the reasons that I have referred to above in Ground One, the Member was in error in finding that the claim could be amended following the issuing of the MAC. As I have described above, the effect of the MAC is, subject to appeal or the application of a slip rule exception, the final resolution of the medical dispute.
Ground Four B has been established.

As to Ground Five – Error of law in finding that the grounds of the respondent’s appeal were capable of being made out

The appellant takes issue with the Member’s opinion that the MAC was “further evidence that was not available to the [respondent]”.[70] The appellant complains that the Member relied upon this finding in order to justify exercising his delegated power under s 327(4) of the 1998 Act. The appellant also complains that the Member relied upon the error made by the Medical Assessor in finding that there had been no injury to the respondent’s left shoulder. Both parties agreed that this finding was an error as injury had not been disputed. The appellant submits that it is this error that should have been the focus of the appeal to the Medical Appeal Panel, and not the other arguments asserted by the respondent.
[70] Reasons, [74].
The respondent asserts that “[t]he proposition that expert opinion is not evidence is fundamentally wrong”.[71]
[71] Respondent’s submissions on appeal, 17 August 2022, [24].
This ground can be dealt with shortly as it misunderstands the role of the medical assessor. A medical assessor is a “decision-maker” in accordance with the definition found in s 32 of the 2020 Act. The MAC is not a forensic medical report,[72] it is a decision. A MAC, of course, can be before a member in the deciding or resolution of a dispute. The status of the MAC is that as bestowed upon it by the legislation. Namely, a conclusive expert determination within a highly regulated framework that resolves the medical dispute between the parties.
[72] Begnell v Super Start Batteries Pty Ltd [2009] NSWWCCPD 19, [112].
In terms of the error that the Medical Assessor did make, namely finding that there had been no injury to the respondent’s left shoulder, this type of matter is covered by Procedural Direction PIC7 (PD PIC 7) relating to the correction of obvious errors in Medical Assessment Certificates. In particular, I refer to paragraphs [73]–[76] of PD PIC 7 and to the Commission’s statutory imperative to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.[73] Given that both parties did not dispute that the Medical Assessor was in error to find that there was no injury to the respondent’s left shoulder, when injury had been conceded, this obvious error should have been agreed and brought to the attention of the Medical Assessor. It is then for the Medical Assessor to consider or assess the degree of permanent impairment in relation to the left shoulder (left upper extremity), absent any consideration of the causation of that injury.
[73] Section 3(c) of the 2020 Act.
I do not agree with the Member’s finding that the MAC was “further evidence” in the sense in which it was deployed to justify the orders made by the Member. I also do not accept the Member’s finding that the respondent was relevantly limited in terms of the forensic medical reports that she could rely on.[74] It is true that the Workers Compensation Regulation 2016 at subcl 44(1) does limit parties to a single report, but subcl 44(3) is an exception which permits additional reports in other specialities, which is clearly the case in this matter with respect to occipital neuralgia. But I would note that the respondent was on notice of the occipital neuralgia issue as a result of A/Professor Boesel’s letter to the respondent’s GP dated 6 March 2019. Additionally, the respondent did have an assessment of scarring from Dr Patrick. I therefore do not accept the Member’s finding at reasons [74], that the argument under s 327(3)(b) of the 1998 Act is capable of being made out. The facts do not prove the matters set out in that provision. The Member was in error so to find.
[74] Reasons, [63].
Ground Five has been established.

CONCLUSION

Whilst the appeal has been successful, this matter still requires further processes to take place in order to bring the application to a conclusion. The parties agree that the Medical Assessor made an error when assessing the respondent’s left shoulder (left upper extremity). The Medical Assessor found that “there was no injury to the left shoulder” in circumstances where there was no dispute as to injury. The Medical Assessor needs to undertake a further assessment of this body part on the basis that the occurrence of injury is not in issue.

DECISION

The appellant’s application for leave to appeal pursuant to s 352(3A) of the 1998 Act is granted.
The Certificate of Determination dated 21 June 2022 is revoked.
The matter is remitted to the Member, to refer the matter back to Medical Assessor Pillemer, in accordance with this decision, for the sole purpose of assessing the respondent’s degree of permanent impairment in relation to her left upper extremity (left shoulder) absent any consideration of the occurrence of injury.

Judge Phillips
President

30 June 2023