Shankar v Ceva Logistics (Australia) Pty Limited - [2021] NSWPICPD 18

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18
APPELLANT:	Ram Shankar
RESPONDENT:	Ceva Logistics (Australia) Pty Limited
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-6336/20
MEMBER:	Mr J Harris
DATE OF MEMBER’S DECISION:	4 December 2020
DATE OF APPEAL DECISION:	16 June 2021
CATCHWORDS:	WORKERS COMPENSATION – leave to appeal an interlocutory decision – monetary threshold to appeal – assessment of permanent impairment – whether a Member can decline to refer a body part for assessment by a medical assessor
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B McManamey, counsel
Carroll & O’Dea Lawyers
Respondent:
Mr N Maley, solicitor
Holman Webb Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted.
2. The Certificate of Determination dated 4 December 2020 is varied as follows: (a) Add to paragraph [6] against the heading “Body Parts Referred” after the words “cervical spine” the words “left upper extremity”.

INTRODUCTION

This is an application for leave to appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and if leave is granted, to appeal a decision by an Arbitrator made on 4 December 2020, declining to refer for assessment by an Approved Medical Specialist (AMS) the appellant’s left upper extremity.
For the reasons that follow, leave to appeal is granted. The appeal is allowed.

BACKGROUND

In order to understand the ex tempore decision of the Arbitrator, it is necessary to set out in some detail the appellant’s original claim and the respondent’s response thereto.
The appellant, Mr Shankar, filed an Application to Resolve a Dispute (ARD) in the former Workers Compensation Commission, registered on 2 November 2020.
In the ARD he alleged injury against Ceva Logistics (Australia) Pty Limited (the respondent) as follows:
(a)    22 October 2010 – cervical spine, right upper extremity – total whole person impairment [WPI] percentage 11%;
(b)    7 January 2015 – disease injury, and
(c)    7 July 2015 – cervical spine, left upper extremity and right extremity – WPI 17%.[1]
[1] ARD, pp 8–9.
The appellant gave the following description of injury:
“On or around 22 December 2010 the Worker was moving approximately 500 boxes containing brake discs weighing approximately 10kg each. Following this task he started feeling pain in his neck and shoulders.
On 6 August 2013, the Worker had returned to work and was engaged in picking and packing when he was asked to cut steel bolts approximately 10mm [thick] using a bolt cutter. The bolt cutters provided were either blunt and/or not fit for purpose and as a result the worker was required to apply excessive force on a repetitive basis to complete the task. He noticed pain in his left shoulder, elbow and his neck.
The worker ceased work on 7 January 2015 as a result of his injuries and increased symptoms.
It is submitted that the Worker has sustained injury to his right and left shoulders and cervical spine, as a result of the nature and conditions of employment, with the deemed date of injury being 7 January 2015, being the last date he worked.
In the alternative, the Worker claims the incident that occurred on 22 December 2010 amounts to a frank incident suffered in the course of employment giving rise to permanent impairment and consequently a claim for lump sum compensation by virtue of him exceeding the statutory threshold on the workers evidence.”[2]
[2] ARD, p 8.
On 9 July 2020 icare wrote to Mr Shankar informing him that it was “disputing that you are entitled to permanent impairment compensation for injury resulting from the nature and conditions of your employment. The decision will take effect on 9 July 2020.”[3]
[3] Notice issued pursuant to s 78 of the 1998 Act (s 78 notice), ARD, p 405.
In the letter accompanying the s 78 notice icare said, amongst other things:
“In considering all of the information made available to EML that is relevant to your claim for permanent impairment compensation, we dispute that you are entitled to lump sum compensation payable under section 66 of the Workers Compensation Act 1987 as you have suffered no permanent impairment resulting from any work-related aggravating injury you sustained during the course of your employment with Ceva Logistics (Australia) Pty Ltd as such aggravating injury has now resolved.”[4]
[4] ARD, p 407.
In its Reply to the ARD (Reply) the respondent said:
“The Respondent agrees that the 22 December 2010 injury should proceed to an AMS. The Respondent disputes that the claim for nature and conditions should progress at all or be referred to an AMS, on the basis that there is no permanent impairment assessment. The Applicant’s IME Dr Wong, provides an assessment of impairment from injury on 22 December 2010, and for injury on 6 August 2013 (in relation to which no claim is made), but he does not provide an assessment of impairment arising from the allegation of injury in the nature and conditions of employment. The respondent relies on the reports of Dr James Powell dated 5 July 2017 and 9 October 2019 which find that the worker does not have any permanent impairment arising from his workplace incidents described nor the nature and conditions of his work.”[5]
[5] Reply, p 2.
At the initial telephone conference on 4 December 2020, after hearing submissions from the parties, the Arbitrator made the following findings:
(a) “The respondent asserts in the Reply that it disputes that the claim for nature and conditions should progress at all or be referred to an AMS. I reject that submission. The material before me establishes that the applicant has made a claim based on the nature and conditions deemed to have occurred on a specific date”.[6]
(b) “The alternative submission made by the respondent is that there is no assessment of the left shoulder by reason of the nature and conditions/deemed date of injury.”[7]
[6] Transcript of oral decision 4 December 2020 (T) 1.28–33.
[7] T 2.10–12.
To resolve the “alternative submission”, the Arbitrator identified the issue in the following terms:
“The issue is whether Dr Wong has provided an assessment of permanent impairment in respect of the left upper extremity by reason of the nature and conditions of employment.”[8]
[8] T 2.28–31.
The Arbitrator resolved this issue as follows:
“I will infer in favour of the applicant that the seven per cent WPI is a reference to the left upper extremity. However, the doctor clearly states that the nature and conditions of employment, whilst causing injury, was not substantial enough to cause symptoms or range of motion restrictions. I do not accept that Dr Wong has expressed the view that the nature and conditions of employment caused any whole person impairment of the left upper extremity.
As I said during submissions, I will not be referring a body part that has no assessable impairment, for assessment by an AMS.”[9]
[9] T 4.31–5.9.
The Arbitrator resolved the “alternative submission” in favour of the respondent because he made a finding adverse to the appellant namely that Dr Wong’s opinion was that the nature and conditions of employment had not caused any whole person impairment of the left upper extremity.
As the Arbitrator had determined that the appellant had suffered an injury by reason of the nature and conditions of employment, he was required to make a referral to an AMS to assess the degree of permanent impairment as a result of the “injury”: s 65(1) of the Workers Compensation Act 1987 (the 1987 Act).
The referral for assessment made by the Arbitrator was limited to the cervical spine and the right upper extremity (shoulder). He declined to include in the referral the left upper extremity because he said that he was not prepared to refer a body part “that has no assessable impairment”.
There is no appeal by the respondent from the Arbitrator’s first finding that Mr Shankar sustained injury by reason of the nature and conditions of his employment.
The appellant seeks leave to appeal the second finding and seeks an order “that the matter is remitted to the Registrar for referral to an AMS. The date of injury is 7 January 2015 (deemed). The body parts referred are cervical spine, right upper extremity and left upper extremity.”

CERTIFICATE OF DETERMINATION – ORDER

The Workers Compensation Commission Certificate of Determination provides as follows:
“Findings
1.      The respondent has not disputed injury to the cervical spine, left upper extremity and right upper extremity for injury deemed to have occurred on 7 January 2015.
2.      The applicant has made a claim for permanent impairment compensation to the cervical spine and right upper extremity (shoulder) in respect of injury deemed to have occurred on 7 January 2015.
3.      The applicant has not made a claim for permanent impairment compensation to the left upper extremity in respect of injury deemed to have occurred on 7 January 2015.
Orders
4.     By consent the applicant discontinues the claim based on injury occurring on 22 October 2010.
5.      The Referral for Assessment dated 24 November 2020 is revoked.
6.      The matter is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) on the following basis:
Date of injury:         7th January 2015 (deemed)
Body parts referred:      Right upper extremity (shoulder) cervical spine
Method of assessment:         Whole person impairment.
7.     The documents to be referred to the AMS are the Application and attachments and both Replies and attachments.”

GROUNDS OF APPEAL

The appellant relies upon two grounds of appeal:
(a)Ground One: “The Arbitrator erred in law when he failed to include the left upper extremity in his orders for remitting the matter to the Registrar for referral to an Approved Medical Specialist.”
(b)Ground Two: “The Arbitrator erred in law when he failed to give proper reasons for his decision that he would not refer a body part that has no assessable impairment for assessment by an AMS.”

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 without holding any conference or formal hearing.”
The appellant and the respondent each submit that the appeal can be decided solely on the basis of the written materials.
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions of the parties that the appeal can 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 these circumstances.

THRESHOLD MATTERS: SECTION 352(3) OF THE 1998 ACT

There is a dispute as to whether the amount in issue satisfies the threshold requirement in s 352(3), that is whether the amount involved is at least $5,000 and 20% of the amount awarded.
The appellant submits that the claim was for $25,300 in respect of a 17% WPI as a result of injuries to the cervical spine, right upper extremity and left upper extremity. The assessments in respect of the cervical spine and the right shoulder combine to 11% WPI which would entitle the appellant to $15,400 pursuant to s 66 of the 1987 Act. Because of the difference between the two assessments, the sum of $9,900 is in dispute. That amount is more than $5,000.
The respondent submits that the dispute is with respect to the claimed impairment to the left upper extremity arising from the nature and conditions of employment up to 7 January 2015. The respondent says that both Associate Professor Wong and Dr Powell on its case assess the left upper extremity to be 0%. It follows, so the respondent submits, that as the amount in dispute is nil the threshold required by s 352(3) is not satisfied.
Further the respondent says:
“Whether there might be any threshold issue as to the value under s 352(3) cannot be finally determined until the certificate of the Approved Medical Specialist has been provided.”[10]
[10] Respondent’s submissions, [1.3].
Where a monetary sum is not awarded by the Arbitrator or Member “the amount of compensation at issue on the appeal” is determined by reference to the compensation claimed in the Application.[11] Further, in Hart where no compensation had been awarded at first instance, Roche DP found that it was not necessary to satisfy s 352(3)(b) of the 1998 Act.
[11] Fine Meats (Boners PM) Pty Limited v Hart [2007] NSWWCCPD 154 (Hart) per Roche DP, [17].
Although Roche DP considered a differently worded s 352, the current wording was considered in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Stewart[12] where at [15] Snell DP said the “approach adopted” in Hart was appropriate. I agree and propose to follow this approach.
[12] [2021] NSWPICPD 5.
In each of the previous appeals, the Deputy Presidents considered claims where the orders made comprised referral to an Approved Medical Specialist. At the time the appeals were determined the relevant AMS had not assessed the degree of permanent impairment. In neither case did the Commission regard this as an impediment to s 352(3) being satisfied. Likewise, the fact that the AMS has not issued a certificate in this matter is not, in my view, a proper reason for concluding s 352(3) is not satisfied. It follows, in my view, that the respondent’s submission on s 352(3) should be rejected.
The Act now contains s 352(3A) and this may provide an alternative route whereby the appellant can satisfy s 352 in cases where the application is for leave to appeal from an interlocutory decision. In those cases in which the Commission grants leave to appeal the interlocutory decision it may be that the grant of leave overcomes any threshold requirement applicable to an appeal which does not require leave. I have not received submissions on the effect of s 352(3A). Furthermore I am satisfied that Hart provides appropriate guidance. I propose to determine the issue by following the principle and reasoning in Hart.
The amount claimed is $25,300 therefore the quantum “at issue” is $25,300. This is greater than $5,000 and s 352(3) is satisfied.

INTERLOCUTORY: SECTION 352(3A) OF THE 1998 ACT

It is agreed that the decision of the Arbitrator was an interlocutory determination and that leave to appeal is required under s 352(3A) of the 1998 Act.
The appellant submits leave should be granted in the interests of justice so as to permit the AMS to make a proper assessment of the whole person impairment.
The respondent submits “that the MAC should be released for the parties’ consideration before the appeal progresses. If there is a finding by Dr McGroder in respect to the impairment of the right upper extremity and cervical spine consistent with Dr Powell’s report, of 0%, then this appeal will be futile as in any case, the Appellant will not make the 11% threshold.”[13]
[13] Respondent’s submissions, [1.5].
Section 352(3A) of the 1998 Act provides:
“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.”
Leave should be granted to pursue the appeal for the following reasons:
(a)    The point is of general importance to the administration of the system. There have been cases analogous to this matter determined at the Presidential level and I have found the decision of Deputy President Snell in Guzman v Trade West Pty Limited[14] to be of assistance, but so far as I can ascertain, there has been no determination of this precise point at a Presidential level or by the Court of Appeal.
(b)    The decision is of importance to the parties to the present dispute. On the appellant’s case a sum substantially in excess of $5,000 is in issue.
(c)    In my view the appeal should be allowed. It follows that if leave is not granted the appellant may suffer a substantial injustice in that there will not have been included for assessment a body part, arguably, affected by the injury being assessed.
[14] [2017] NSWWCCPD 44 (Guzman).
For the above reasons, I am satisfied that it is necessary to determine the appeal and, furthermore, that it is desirable to do so for the proper and effective determination of the parties’ dispute. I therefore grant leave to appeal the decision pursuant to s 352(3A) of the 1998 Act.

THE NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

Leave having been granted, the jurisdiction that I exercise is in s 352(5) of the 1998 Act, which provides:
“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.”
The principles applicable to an appeal under s 352(5) are well known and are set out in Raulston v Toll Pty Limited.[15] Oversimplifying, the appellant is required to show error of fact, law or discretion.
[15] [2011] NSWWCCPD 25; 10 DDRCR 156, [19].

TRANSFER OF THE MATTER FROM THE WORKERS COMPENSATION COMMISSION TO THE PERSONAL INJURY COMMISSION

The appeal was registered with the Workers Compensation Commission on 23 December 2020. The Workers Compensation Commission was abolished and replaced with the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act from 1 March 2020.[16]
[16] Clause 12(1) of Div 2.3 of Part 2 of the 2020 Act.
The 2020 Act amended the 1998 Act such that the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act.

GROUND 1: THE ARBITRATOR ERRED IN LAW WHEN HE FAILED TO INCLUDE THE LEFT UPPER EXTREMITY IN HIS ORDERS FOR REMITTING THE MATTER TO THE REGISTRAR FOR REFERRAL TO AN APPROVED MEDICAL SPECIALIST

On different occasions the Arbitrator expressed himself as follows:
“During submissions I indicated my view that I will not be referring a body part for assessment if the claim is zero per cent for that body part.”[17]
[17] T 3.3–5.
The appellant’s primary submission in support of Ground 1 to the appeal is:
“20. The Arbitrator had made a finding that there had been injury to the cervical spine, the right upper extremity and the left upper extremity. Once that finding had been made, he remitted the matter for assessment by an approved medical specialist. Pursuant to section 322(3), the AMS was to assess the degree of permanent impairment that resulted from the injuries arising out of the same incident. The three injuries identified all resulted from the nature and conditions of employment and accordingly could all be aggregated for the purposes of section 322(3) (Department of Ageing, Disability and Home Care v Finlay [2011] NSWWCCPD 65).
21. Once there had been a finding of injury, it was a matter for the AMS to determine whether the injuries found result in a whole person impairment [citations omitted].”
The appellant makes two additional submissions:
(a) the Arbitrator’s finding that Dr Wong had not assessed an impairment resulting from the injury was incorrect in so far as Dr Wong did not make a finding “that there was no impairment resulting from the injury”, and
(b) the Arbitrator did not identify any basis in law for his view that he would not refer a body part that has no assessable impairment.

The respondent’s submissions on Ground 1 of the appeal are premised on the following proposition:
“Dr Powell’s opinion of the impairment of the left upper extremity arising for the nature and condition injury was the same as Professor Wong’s assessment, ie 0%. They did not disagree. There was no dispute.”[18]
[18] Respondent’s submissions, [2.24].
That submission is amplified in the following paragraphs:
“2.26 The conclusion reached by Arbitrator Harris was an injury arising from the nature and conditions of employment that occurred up to 7 January 2015. The next step was for the Arbitrator to determine if there was a medical dispute within the meaning of s 319, and if so, to refer that medical dispute to assessment by an appropriate assessor.
…
2.29 Arbitrator Harris rightly concluded there [was] no claim and no medical dispute concerning impairment of the left upper extremity arising from the nature and conditions injury. He rightly concluded that could not be referred to a medical assessor. There was no error. The Ground should be refused. This is for the following reason.
2.30 Section 319 of [the 1998 Act] is clear in its terms. It is part of the legislation which provides that any dispute about an assessment of impairment is a medical dispute and is reserved for a Medical Assessor. However, before there can be any determination by a Medical Assessor, there must be a medical dispute. That is defined to include:
“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 the claim –
…
(c)the degree of Permanent Impairment of the Appellant as a result of the injury …”.
The respondent in its submission then outlines the requirements of the Guidelines issued by SIRA pursuant to s 260 of the 1998 Act and submits:
“2.33 There was no evidence before the Commission of any impairment of the left upper extremity arising from the nature and conditions of employment.
…
2.36 No claim had been made pursuant to Section 260 or the SIRA Guidelines of impairment of the left upper extremity arising from the nature and conditions of employment. This was accepted by Arbitrator Harris (COD finding 3). There was no error in that finding.
2.37 Thus, there was no medical dispute under s 319 in respect to permanent impairment of the Appellant of the left upper extremity arising from this injury. There was nothing to be referred to a medical assessor. Arbitrator Harris made no error in refusing to refer that body part.”
The respondent refers to Guzman, distinguishing that case on the basis that there the appellant had provided medical evidence to suggest there was an impairment of more than 0% to which the respondent had contrary evidence.
The respondent’s ultimate conclusion is:
“2.41 The decisions cited by the Appellant of TheDepartment of Ageing, Disability and Home Care v Findlay [2011] NSWWCCPD 65, Bindah v Carter Holt Harvey Wood Products Australia Pty Limited [2014] NSWCA 264, Abou-Haidar v Consolidated Wire Pty Limited [2010] NSWWCCPD 128 and Caulfield v Whelan Kartaway Pty Limited [2014] NSWWCCPD 334 are distinguishable. In each case, as with Guzman’s case, there was a dispute about injury, and also a dispute about the assessable level of impairment in each case. In none of those cases was there an impairment of 0% referred to an AMS. There was a medical dispute in each case and all claimed body parts, and there was no basis to withhold an assessment of each claim.”

Consideration

For the reasons that follow, Ground 1 of the appeal is established.
The scheme of the Act is well established. The Arbitrators determine matters affecting liability, leaving medical issues to be determined by appointed AMSs. This remains the overall scheme of the Act notwithstanding the amendments to s 65 of the 1987 Act.
Section 65 of the 1987 Act was amended in 2018 to repeal subsection (3). The effect of that amendment is to remove the prohibition on the Commission that prevented the Commission from awarding permanent impairment compensation ‘unless the degree of permanent impairment has been assessed by an approved medical specialist”.
In Etherton v ISS Property Services Pty Limited[19] at [121] the President observed that the amendments to s 65 did not alter the method of assessment provided by the scheme of the Act.
[19] [2019] NSWWCCPD 53.
Section 65(1) provides that the degree of permanent impairment that results from an injury is to be assessed as provided for in section 65 itself and Part 7 of Chapter 7 of the 1998 Act. The repeal of s 65(3) has no effect on s 65(1) which remains the controlling provision so far as assessment of the degree of permanent impairment is concerned.
The amendment to s 65 does not authorise the Commission to make an assessment of the degree of permanent impairment. The assessment of the degree of permanent impairment remains the province of the AMS. It follows that notwithstanding the absence of subsection (3) in section 65, the assessment of the left upper extremity could only be performed by the AMS.
Part 7 of Chapter 7 of the 1998 provides “definitions” including s 319.
Section 319 of the 1998 Act provides:
“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—
…
(c) the degree of permanent impairment of a worker as a result of an injury,”
Section 321A provides for regulations to be made providing for “the circumstances in which a medical dispute concerning permanent impairment of an injured worker is authorised, required or not permitted to be referred for assessment under this Part”.
Section 321A(2) provides for regulations to be made “that a medical dispute may not be referred for assessment under this Part if the dispute concerns permanent impairment of an injured worker where liability is in issue and has not been determined by the Commission.”
I do not understand any regulation(s) have been made.
Section 322 of the 1998 Act relevantly provides:
“(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.”
The respondent’s submission is that because the specialists qualified by the parties have each assessed the appellant as having 0% impairment of the left upper extremity, there is no medical dispute within s 319 of the 1998 Act. It follows, so the argument runs, there is no jurisdiction to refer the matter to the Registrar for referral to an AMS.
The premise of the argument is that s 319 is not engaged unless at least one of the qualified specialists has assessed the worker to have a percentage impairment of the relevant body part. In my view, that premise of the respondent’s argument is incorrect.
Section 319 is concerned with a dispute between “a claimant and the person on whom the claim is made”. It is engaged when the claim is refused by the person on whom the claim is made by reason of the topics specified in paragraphs (a) to (g).
In this matter, by the s 78 Notice, the respondent disputed that the appellant is “entitled to permanent impairment compensation for injury resulting from the nature and conditions of [Mr Shankar’s] employment.” The Arbitrator resolved the issue concerning whether the appellant has sustained injury resulting from the nature and conditions of employment, but he had no jurisdiction to assess the degree of “permanent impairment.” That issue could only be resolved by referral to an AMS.
There was and remains a “dispute” within the meaning of s 319 which is required to be referred to an AMS for assessment: s 65(1).
That conclusion is supported by reasoning of the Deputy President in Guzman. Guzman was decided on the unamended version of s 65 which included s 65(3) but the repeal of subsection 3 does not detract from the reasoning which remains apposite.
In that matter, Mr Guzman wished to have referred to an Approved Medical Specialist a claim for further lump sum compensation. The Senior Arbitrator dismissed his application pursuant to s 354(7A)(b) of the 1998 Act on the basis that the claim was misconceived and lacked substance.
In Guzman the WPI resulting from the injury to the cervical spine and right upper extremity was assessed for the purpose of the application before the Senior Arbitrator to be 8%. However, in the original claim Dr Bodel had assessed the WPI at 11% and the AMS, Dr Berry, assessed it at 9%. The AMS’s assessment had formed the basis of the original award. In other words, the claim being dealt with by the Senior Arbitrator was nominally at least, for a lesser WPI than that for which the worker had previously claimed. The Senior Arbitrator struck the claim out.
The Deputy President in setting aside the decision of the Senior Arbitrator said this:
“59. It was not open to the Senior Arbitrator in the circumstances, to dismiss the proceedings pursuant to s 354(7A)(b), effectively on the basis of a consideration of the persuasiveness of the medical evidence relied on by the appellant, to make the claim for lump sum compensation which gave rise to the ‘medical dispute’. The Workers Compensation Acts reserve assessment of a ‘medical dispute’ to an AMS.” (emphasis added)
The High Court in Wingfoot Australia Partners Pty Limited v Kocak[20] said:
“The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions ... The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[20] [2013] HCA 43; 252 CLR 480, [47].
In Guzman, the Deputy President said this:
“In a matter where no liability issues are raised, and the remaining issue is one going to assessment of permanent impairment (which requires referral to an AMS) it is difficult to see a basis on which a view could be formed by an arbitrator, consistent with General Steel, that the matter is clearly not reasonably arguable. The assessment by the AMS will be based on not only the evidence of the parties, but also his or her own medical experience and expertise, and cannot be known before it is carried out. The test applied by the Senior Arbitrator was an incorrect one, in that she dismissed the proceedings on the basis of the perceived lack of viability of the permanent impairment claim on quantum, when that was not a matter for her to decide.”[21] (emphasis added)
[21] Guzman, [61].
A similar error occurred in this matter. The Arbitrator implicitly assumed that the evidence of the qualified specialists would in the event carry the day. But it is not the views of Dr Wong and Dr Powell that are determinative. Further the Arbitrator had no jurisdiction to assess the degree of permanent impairment and therefore did not have jurisdiction to determine that the degree of permanent impairment was 0%.
Even under the amended s 65 the degree of permanent impairment that results from the injury is to be assessed by the AMS: s 65(1). Furthermore in this matter the Arbitrator was not concerned at this point with making an award of compensation for permanent impairment rather, the issue with which he was concerned was whether the left upper extremity was to be included in the referral.
The Arbitrator’s role at this point was to determine whether or not there was a dispute within the meaning of s 319. That question depended on the stated position of the respondent that the appellant was not entitled to permanent impairment compensation for injury resulting from the nature and conditions of the employment.
There was a dispute between the parties as defined by s 319. It follows that the degree of permanent impairment was to be assessed by an AMS. It was not open to the Arbitrator to assume that the assessment for the left upper limb was 0%.
Ground 1 of the appeal is made out.

GROUND 2: THE ARBITRATOR ERRED IN LAW WHEN HE FAILED TO GIVE PROPER REASONS FOR HIS DECISION THAT HE WOULD NOT REFER A BODY PART THAT HAS NO ASSESSABLE IMPAIRMENT FOR ASSESSMENT BY AN AMS

The Arbitrator said:
“During submissions I indicated my view that I will not be referring a body part for assessment if the claim is zero per cent for that body part.”[22]
[22] T 3.3–5.
Later he said:
“As I said during submissions, I will not be referring a body part that has no assessable impairment, for assessment by an AMS. I am aware of an opinion contrary to this expressed by Arbitrator Wynyard and a decision of Arbitrator Holman which is, in my view, consistent with my opinion.
I observe that there are a number of Presidential decisions that say that if the applicant has not been assessed at or above the threshold for obtaining whole person impairment compensation then the claim is not to be referred to an Approved Medical Specialist.
Whilst those decisions are not directly on point, they do indicate that if an assessment at or above the threshold has not been obtained, then the claim is not referred to an AMS.”[23]
[23] T 5.7–23.
The appellant submits:
“26. In the circumstances, the Appellant is left in the position of not knowing the basis on which the Arbitrator reached his view and is accordingly unable to examine and/or challenge the reasoning process or the use that had been made of the unidentified presidential and arbitral decisions.
27. In the circumstances, there has been a failure to give reasons.”
The respondent submits that the Arbitrator analysed the reports of Dr Wong expressing his reasons and making the submission that at “page 5 line 24 … absent a finding of impairment, he would not refer the matter to an AMS and his reasoning that this is because of the failure of the Appellant to lead evidence of an impairment”. The submission misses the point. The matter which required reasons was the explanation for the Arbitrator’s refusal to refer the left upper extremity for assessment.
The Arbitrator expressed no reason for adopting the position he adopted. He expressed adequate reasons as to why there was no assessed percentage from Dr Wong, but he did not grapple with why there was no medical dispute within the meaning of s 319 of the 1998 Act.
The Arbitrator’s expressed reason for declining to refer the left upper extremity to the AMS was that he declined to refer a body part that had no percentage impairment. But the assessment of the degree of permanent impairment was not, even under the amended s 65, a matter for the Arbitrator. Section 65(1) of the 1987 Act directed that the degree of permanent impairment should be assessed by the AMS. The AMS may take into account assessments by other specialists, but the AMS is required to make an independent assessment of the whole person impairment resulting from the injury.
In my view, the Arbitrator failed to give adequate reasons for his decision not to refer to the AMS the left upper limb or alternatively the reason given was erroneous.
Ground 2 of the appeal is made out.

CONCLUSION

In my view, the appellant has succeeded in establishing legal error with respect to the Arbitrator’s failure to refer the left upper extremity to the AMS for assessment.

DECISION

The Certificate of Determination dated 4 December 2020 is varied as follows:
(a) Add to paragraph [6] against the heading “Body Parts Referred” after the words “cervical spine” the words “left upper extremity”.

Geoffrey Parker SC

ACTING DEPUTY PRESIDENT

16 June 2021