Sharma v Woolworths Group Ltd
[2024] NSWPIC 350
•1 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sharma v Woolworths Group Ltd [2024] NSWPIC 350 |
| APPLICANT: | Onkar Sharma |
| RESPONDENT: | Woolworths Group Limited |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 1 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the applicant sustained various work injuries deemed to have occurred in 2016 including right shoulder injury which required surgery and sustained consequential conditions to left wrist and elbow; dispute related to whether the neck condition was consequential to the accepted right shoulder injury; applicant’s medical evidence established bio-mechanical reasons why right shoulder condition would place abnormal stress on neck; consequential condition established; respondent objected to left wrist and elbow being referred to Medical Assessor; disputed that these body parts were part of the claim for permanent impairment despite respondent’s acceptance that there were consequential conditions; applicant asserted that Member bound by decision of Supreme Court in Klement v Bull N’ Bush Nurseries Pty Ltd (Klement) that all injuries suffered should be assessed and/or that a 0% whole person impairment assessment should be assessed as part of medical dispute; discussion of binding precedent; Favelle Mort Pty Ltd v Murray referred to; finding of Supreme Court in judicial review proceedings not binding but should be followed unless convinced it is erroneous; Klement not followed on aspect that all injuries are referred for medical assessment; statement inconsistent with reasoning of Court of Appeal in Skates v Hills Industries Ltd; report making the claim did not refer to left wrist and elbow; sections 281 and 282 required particulars of all impairments; finding that left wrist and elbow were not part of claim and medical dispute; submission by applicant that 0% assessment relevant body parts could be implied is rejected; discussion of 0% assessment part of medical dispute; view expressed that Klement would be followed on that issue and assessment of 0% would be part of claim and medical dispute; Held – applicant entitled to have cervical spine referred for medical assessment; left wrist and elbow not referred. |
| DETERMINATIONS MADE: | The Commission determines: Findings 1. The cervical spine condition arises out of the accepted right shoulder injury deemed to have occurred on 13 September 2016. 2. The medical dispute for the assessment of permanent impairment as a result of the injury deemed to have occurred on 13 September 2016 does not include the left wrist and left elbow. Orders 3. The medical dispute is remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment as a result of injury as follows: Body parts: right shoulder, right elbow and right wrist left shoulder and cervical spine (both consequential). Date of Injury: 13 September 2016 (deemed). Documents: (a) Application to Resolve a Dispute and attachments (excluding reports prepared by Dr Giblin), (b) Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
Mr Onkar Sharma (the applicant) was employed by Woolworths Group Ltd (the respondent) and sustained injury on 13 September 2016 due to the nature and conditions of employment.
The applicant seeks compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The application pleads injury occurring on 13 September 2016 in the following terms:
“Injury to right and left wrist, elbow and shoulder and neck due to nature and conditions of employment and/or consequential injury to neck, left wrist, elbow and shoulder.”
The application referred to the orders dated 28 June 2019 made in proceedings numbered 1925/19 (the consent orders). The consent orders relevantly provided:
“1. Award for the applicant on the claim for injury to his right wrist, elbow and shoulder due to the nature and conditions of his employment. Award for the applicant on the claim for consequential condition to his left wrist, elbow and shoulder.
2. Award for the applicant on the claim for medical expenses in respect of the injuries in order 1 above.
3. Award for the respondent on the claim for primary psychological injury (date of injury: 7 March 2018).
4. Award for the respondent on the claim for secondary psychological injury.
5. Award for the respondent on the claim for weekly benefits compensation from 12 March 2018 to 5 August 2018.”
In a direction dated 6 May 2024 it was noted:
“1. The only liability issue is whether the applicant sustained an injury/consequential condition to the cervical spine.
2. The allegations of injury to the right upper extremity (shoulder, wrist and elbow) and consequential conditions to the left upper extremity (shoulder, wrist and elbow) are accepted (see COD, Application, page 19).”
The parties accepted the accuracy of this direction at the hearing.
Issue estoppel can arise when the consent orders conclusively and finally determine an ultimate fact: Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine[1] The way the applicant ran his case at the hearing was in accordance with the consent orders rather than the pleadings. Accordingly, the only liability dispute was whether the applicant suffered what is colloquially known as a “consequential condition” to the cervical spine. That is an issue for a Member: see State of New South Wales v Bishop.[2]
[1] [2016] NSWCA 213.
[2] [2014] NSWCA 354.
The words “consequential condition” does not appear in the 1987 Act even though a body of authority has been created to distinguish the notion of a “consequential condition” from an injury. Section 65 of the 1987 Act provides:
“If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.”
Similarly, s 322(3) of the Workplace Injury Management & Workers Compensation Act 1998 (the 1998 Act) provides that:
“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.”
Accordingly, the applicant is required to show that the cervical spine condition, to use a neutral term, arises out of the same incident. The applicant did not pursue the allegation that the cervical spine was injured by reason of the nature and conditions of employment.
The applicant submitted that he suffered an accepted extensive injury to the right shoulder and, consistent with the opinion of Dr Guirgis, this caused the symptoms in the cervical spine.
The parties’ submissions initially referred to the accepted injury as being a “frank injury” when the consent orders were inconsistent with that submission. That error was corrected later in the submissions.
HEARING
The matter was listed for arbitration hearing on 14 June 2024 when Mr Boulton of counsel appeared for Mr Sharma and Ms Compton appeared for the respondent.
The following material was admitted into evidence:
(a) the Application to Resolve a Dispute (Application) and attachments;
(b) Reply and attachments;
(c) applicant’s Application to Admit Late Documents attaching the report of Dr Guirgis dated 27 May 2024, and
(d) respondent’s Application to Admit Late Documents attaching the report of Dr Machart dated 29 April 2024.
The applicant advised that he did not rely on the reports provided by Dr Giblin.[3]
[3] Application, p 102, p 107 and p 162.
The parties were advised that evidence would not be considered if it was not the subject of submission.[4]
[4] See the discussion in Sara v G & S Sara Pty Ltd [2021] NSWPIC 286 at [8]-[9].
The parties submissions have been recorded. I have referenced these submissions in either a discussion of the evidence and/or when making findings.
EVIDENCE
The applicant provided a statement dated 3 April 2024 when he relevantly stated:[5]
“10. I was not working or doing any type of strenuous activity but also began to notice problems in my neck from around 2019. I reported these problems to my GP.
11. I had some pain in my neck in around mid 2020 and I saw my GP about this as well as other issues. My GP was concerned that I may have been having a stroke so I was suggested to attend hospital where I was reviewed and advised that my problems were not related to probably stroke.
12. I continued experiencing pain in my neck intermittently on and off but did not always report the problems to my GP as I through (sic thought) most of the problems were caused by my shoulders injury and that they were source or my problems in my neck.
….
19. My neck problems continued to affect me even after undergoing surgery and injection into my shoulder so I discussed the neck problems with my GP who then referred me for scans of my neck however, I was not able to have these scans performed.”
[5] Application, p 10.
There were earlier statements provided by the applicant dated 30 January 2018, 24 June 2018 and 15 March 2019.[6]
[6] Application, pp 1-9.
The respondent noted that there were no references to neck symptoms in the first three statements. The applicant accepted that submission.
The general practitioner (GP) provided a detailed report concerning the applicant’s work injuries dated 26 April 2019. In that report the GP stated:[7]
“Unable to do Physical Jobs currently due to the above mentioned soft tissue injuries.
Chronic Pains
He has recently also mentioned about some Neck Pain also.
He never complained of this neck pain in the past.”
[7] Application, p 158.
The respondent submitted that whilst the neck was included in the report, there was no reference to that body part in the clinical notes. The respondent did not suggest that the doctor had “made it up” but submitted that no weight should be attached to the statement of the GP contained in the report.
The clinical note of the GP dated 20 May 2020 recorded:[8]
“Came along with wife
Wife noticed left side angle of mouth is bit down, started in the morning
About one and half hour ago.
Had some neck pain started 2 days ago.”
[8] Application, p 355.
I agree with the respondent’s submission that the clinical note dated 20 May 2020 does not support the suggestion of neck symptoms related to any shoulder condition. That attendance was in the context of treatment for a transient ischaemic attack which, according to the notes, is a neurological condition initially thought to be a stroke.
On 5 August 2020 the applicant attended the GP complaining of worsening pain in the right shoulder, neck and collar bone.[9]
[9] Application, p 364.
The respondent submitted that there was no mention of neck pain until Dr Guirgis examined the applicant in April 2023. When pressed on the inconsistency between that submission and the clinical note dated 5 August 2020, counsel advised that it would “develop the submission further”. The respondent did not return to this clinical note dated 5 August 2020 in its submissions.
The respondent referred to the clinical note dated 27 November 2022[10] which recorded swelling of the left side of the neck and left face and submitted that this was unrelated to any right shoulder symptoms. The applicant conceded that this clinical note referred to the lymph nodes and was unrelated to any shoulder injury.
[10] Application, p 421.
The respondent submitted that the remainder of the clinical notes until the beginning of 2024 does not refer to the cervical spine. The applicant accepted that submission.
The respondent otherwise noted that the applicant attended Dr Vahid Mohabbati, pain specialist, on 16 April 2020. The doctor examined the spine and noted “range of movement of the neck, thoracic and lumbar spine was within normal range”[11] with no cervical tenderness.
[11] Application, p 169.
Right shoulder complaints
Dr Kuo, orthopaedic surgeon, performed right shoulder surgery by way of arthroscopy, biceps tenodesis and excision of acromioclavicular (AC) joint on 11 November 2020.[12]
[12] Application, p 185.
The applicant continued to complain of right shoulder issues. On 4 February 2021 Dr Kuo noted that the shoulder had become “stiff and capsulitic” and stated:
“I will also apply for a subacromial injection to see if we can settle some of Onkar’s pain. I hope we can try and settle his concerns about his shoulder, but I have also explained it can be a long journey back from post adhesive capsulitis.”
The applicant sought a further opinion on his right shoulder. On 5 November 2021 Dr Manish Gupta, orthopaedic surgeon, noted the recent MRI scan showed a full-thickness tear of the right supraspinatus tendon, recommended physical physiotherapy, the applicant stay off work and focus on recovery.[13]
[13] Application, p 202.
In a report dated 10 July 2023 Dr Gupta noted the elbow pain was the chief complaint despite ongoing concerns regarding the shoulders.[14] The applicant further attended on Dr Gupta in September 2023 for right elbow pain when the doctor noted full active range of motion.[15]
[14] Application, p 210.
[15] Application, p 214.
On 29 March 2023 the GP noted that there was a slight improvement in the right shoulder.[16]
[16] Application, p 429.
On 19 June 2023 the GP noted that the applicant should be seeing the shoulder surgeon.[17]
[17] Application, p 432.
Dr Guirgis
Dr Guirgis, orthopaedic surgeon, was qualified by the applicant and provided a series of reports.
In a report dated 20 April 2023[18] Dr Guirgis noted tenderness at C5 and C6 with no neurological deficits in the upper limbs. Impairment of the cervical spine was assessed at diagnosis-related estimate (DRE) Category II due to muscle guarding and asymmetric loss of movement. The doctor associated the impairment of the cervical spine with the work duties.
[18] Application, p 448.
Dr Guirgis’ first opinion was that the neck condition was due to “static overloading” from repetitive movements at work.[19] The respondent noted that this opinion was not pressed by the applicant.
[19] Application, p 454.
In his second report dated 29 January 2024 Dr Guirgis repeated his earlier opinion that the cervical spine problems were due to the “overuse disorder resulting from the combined effects of dynamic and static overloading of the involved soft tissue structures related to the nature of the duties performed as discussed earlier.[20]
[20] Application, p 458.
Dr Guirgis provided a further report dated 18 March 2024.[21] In that report he noted there were no contemporaneous reports of cervical spine injury. The doctor stated:[22]
“As such, is it possible that the problems to the cervical spine are consequential and secondary to the shoulder problems i.e. caused over time due to the problems with both shoulders as opposed to being injured in the original injury on 13/9/16.
The answer here is that the same stress loading activities applied to the shoulder joint complex that caused the injury with a deemed date of 13-9-2016, were also applied to the cervical spine muscles and ligament that play a foundational role in supporting and stabilising the shoulder joint complex influencing stability, movements, and shoulder homeostasis. Altered shoulder mechanics contributing to pain or dysfunction in activities involving the upper limb, would cause tension and abnormal loading in the muscles of the neck and upper back including, the Trapezius, Levator Scapulae, Sternocleidomastoid, and even the Scalenes through their attachment to the first rib having an indirect effect on the shoulder by stabilising the first rib, which serves as a foundation for shoulder movements.
As stated in my earlier report, we are considering here the sequela of exposure to potentially harmful mechanical loads associated with the nature and conditions of employment as described resulting from the combined effects of dynamic and static overloading of the involved soft tissue structures related to the nature of the duties performed as discussed earlier. Static overloading resulted from sustained contraction required of muscles to support and fix the spine and or limb in a position of function. Dynamic overloading resulted from repetitive movements required to execute the task. Such exposure had caused the gradual onset and slowly but relentlessly progressive course of fatigue loading effects on the collagen-based tissues in the cervical spine and right upper limb.
So, whether there was contemporary documentation or not, the anatomical basis for my report exists and even when we teach junior doctors how to examine a joint emphasizing the fact that we should examine the joint above and the joint below. In this case the joint above was the cervical spine’s collective joints. Furthermore, when I examine any patient presenting with shoulder problem to show me what did he mean with shoulder, and almost always they put their hand on top of the shoulder and point to the adjoining area of the neck.
In regards of whether the cervical spine injury was caused by the original injury or consequential and secondary to the shoulder problems i.e. caused over time due to the problems with both shoulders as opposed to being injured in the original injury on 13/9/16. Both scenarios would be probable here.”
[21] Application, p 463.
[22] Application, pp 463-464.
In a further report dated 27 May 2024, Dr Guirgis further explained the mechanism of right shoulder injury causing neck problems.[23] The doctor explained the relationship between the shoulder injury causing neck problems as:
- compensatory movements in the shoulder places added stress on the neck muscles leading to strain and discomfort;
- injury to the shoulder leads to muscle weakness or tightness in the surrounding area;
- an explanation of the association of the muscles in the neck and surrounding region affected by shoulder injury;
- chronic shoulder pain may cause postural change leading to forward head movement as patients attempt to offload the shoulder symptoms;
- altered scapular mechanics change the load distribution in the cervical spine exacerbating muscle tension and discomfort, and
- the patient adopts a posture to alleviate shoulder pain and inadvertently paces strain on the neck muscles and joints.
[23] Applicant’s Application to Admit Late Documents.
Dr Guirgis then referenced but did not attach 21 medical journal articles that he said discussed and described the relationship between shoulder disorders casing cervical spine symptoms.
Dr Machart
Dr Frank Machart, orthopaedic surgeon, was qualified by the respondent and provided a series of reports. The doctor did not record cervical spine pain in the report dated 31 March 2021.[24]
[24] Reply, p 3.
In the report dated 29 November 2023 Dr Machart noted that neck pain developed “about 2 years after the operation”.[25]
[25] Reply, p 11.
In a report dated 29 November 2023 Dr Machart noted that “the symptoms in the cervical spine did not develop when he was at work”.[26]
[26] Reply, p 15.
Dr Machart provided a further report dated 29 April 2024 which addressed the issue of whether the neck condition was caused by the upper limb symptoms.[27] Dr Machart stated:
“To your letter of instructions, you included 2 supplementary reports provided by Dr Guirgis, dated 29/01/2024 and 18/03/2024. The doctor provided a complex theoretical analysis, which actually make no sense when applied to specifics of what actually happened. The theoreticals that the doctor outlined are not seen in common clinical practice. As a practising orthopaedic surgeon, I do not see cervical symptoms generated by upper limb injuries, and not to the extent of causing symptoms while not working for several years. This is also not something that is seen in textbooks or something relayed through continuing education or evidence-based medicine.
I did not see features of cervical spine injury caused by the injury, direct consequential, or secondary, to the peripheral joint pathology.”
[27] Respondent’s Application to Admit Late Documents, p 1.
REASONS
A brief statement is required for the reasons for determination.[28] The applicant otherwise bears the onus of proof on the balance of probabilities.[29]
[28] Section 294(2) of the 1998 Act.
[29] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J at [44]-[55], McColl and Bell JJA (as their Honours then were) agreeing; Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1].
The parties accepted that the relevant principles were those discussed by Kirby P (as his Honour then was) in Kooragang Cement Pty Ltd v Bates.[30] That agreement was subject to the respondent’s submission that the applicant had to satisfy the statutory test. I agree with the respondent’s submission noting the relevant sections of the 1987 Act are set out earlier in these reasons.
[30] (1994) 35 NSWLR 452 at [462], [463]-[464].
Neck complaints
I accept that the applicant suffered neck symptoms at various times prior to Dr Guirgis noting the problem in April 2023. That conclusion is supported by:
- the applicant’s statement dated 3 April 2024;
- the report of the GP, and
- the clinical note dated 5 August 2020.
Whilst there is a general absence of reference to complaints of pain in the cervical spine, that absence does not disprove the positive complaints recorded by the GP in the 2019 report and the clinical note dated 5 August 2020. The respondent’s submission that the history of neck complaints recorded in the 2019 report be given no weight as complaints are not recorded in the clinical notes is rejected. The particulars of the report are clear, and I accept that the GP was not mistaken.
The respondent noted that Dr Guirgis stated in his report that the first reference to neck problems was the April 2023 report, and that this must be correct. I reject that submission. Dr Guirgis’ acceptance of an incorrect history does not create a fact out of something that is incorrect.
I accept that the neck symptoms were and are not particularly serious. That conclusion is consistent with the explanation provided by Dr Guirgis that the neck condition is essentially musculature and the applicant’s statement that the neck symptoms occurred “intermittently on and off”.[31] The fact that the cervical spine symptoms were not serious and intermittent explains the general absence of references in the GP records and the failure by the applicant to reference the cervical spine to the pain physician, Dr Vahid Mohabbati, in April 2020 and to Dr Machart in March 2021.
[31] See [18] herein.
Causal relationship between right shoulder injury and neck symptoms
The respondent submitted that the “predominant” reason for the applicant’s recent attendances on his GP and Dr Gupta related to the right elbow condition.
The respondent submitted that the applicant did not have “significant” ongoing right shoulder problems, and this was borne out by the GP records. The respondent conceded that the applicant had ongoing right shoulder problems but that was not the “primary focus” for seeking medical treatment following the right shoulder surgery which was mainly concerned with the right elbow.
This submission does not address the applicant’s case. The applicant submitted, consistent with the opinion expressed by Dr Guirgis in his final two reports, that the cervical spine problems were caused by the ongoing right shoulder issue. It is not a proper response to that submission to assert that the right elbow was worse than the right shoulder. The relevant question is whether the ongoing right shoulder symptoms caused the neck condition.
The respondent did not dispute that the applicant had ongoing right shoulder problems. Indeed, in his assessment of permanent impairment, Dr Machart, in a report dated 29 November 2023, accepted that there was right shoulder impingement and opined that permanent impairment was assessed at 2%.[32] Dr Guirgis expressed an opinion of greater impairment.
[32] Reply, pp 13-14.
The medical evidence referenced earlier otherwise establishes the applicant was suffering from and continues to suffer from right shoulder issues.
I am satisfied that the applicant was suffering from and continues to suffer from symptoms in the right shoulder. It is that condition which is alleged to be the cause of the neck symptoms. To the extent that the respondent submitted that the right elbow was the principal problem over recent times, that relevance of that submission is rejected for the reasons set out above.
Having rejected most of the respondent’s submissions, it is necessary to determine whether I accept that the applicant has discharged the onus of proof.
The respondent submitted that Dr Guirgis has changed his opinion and not explained the change in his opinion which was “tailored” towards the result. It otherwise noted that the applicant continued to work until 2019 and that Dr Guirgis did not record that history.
The respondent otherwise submitted that Dr Guirgis prefaced his opinion as a possibility and that was not sufficient to discharge the onus of proof.
The reports of Dr Guirgis must be read together.[33] Any deficiency in one part of an expert's evidence may be made good by other opinion. It is trite that a tribunal can accept part of the opinion of an expert and reject another part. An expert is otherwise entitled to change his or her opinion.
[33] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [92].
It is the reason for the change in the opinion that is relevant rather than the bare assertion that an expert has changed his or her opinion and that opinion cannot be accepted.
Whilst Dr Guirgis expressed his conclusion as a possibility in one part of a report, the other portions of the report disclose his detailed reasoning of the bio-mechanical relationship between the right shoulder problems and the neck condition. That reasoning was supported by references to journal articles which, whilst not attached, supported his conclusion.
The opinion expressed by Dr Machart was brief which contrasted markedly to the comprehensive reasoning of Dr Guirgis.
The statement by Dr Machart that he did not see “cervical symptoms generated by upper limb injuries and not to the extent of causing symptoms while not working for several years” misconstrues and fails to appreciate the applicant’s explanation for the causative nexus between the upper limb symptoms and the cervical spine condition. The applicant alleged that the ongoing upper limb symptoms in the right shoulder produced cervical spine symptoms. It is not to the point that the work effects ceased seven years previously as the cessation of work was not relevant to the development of the cervical spine symptoms. What was relevant was the ongoing right shoulder condition, which overtime, caused cervical symptoms in the manner outlined by Dr Guirgis.
I do not accept that the change of the opinion by Dr Guirgis undercuts his position. There was no contemporaneous record of cervical spine symptoms until 2019, that is some three years after the accepted deemed date of injury. That fact alone cast serious doubts on the original opinion and ultimately a course not pursued by the applicant.
Finally, the respondent asserted that Dr Guirgis did not record a history of work until 2019 and this absence of history undercut the opinion. That submission was made in circumstances where the applicant did not press an allegation of cervical spine injury caused by work duties and the respondent did not accept that position. In those circumstances it is difficult to understand how the failure by Dr Guirgis to record a history of work for three years, where the parties did not suggest that this caused cervical spine injury, undercut the value of the opinion.
I am satisfied that the applicant suffered intermittent cervical spine symptoms since approximately 2019 which were not particularly serious. I accept that the applicant suffers from a chronic right shoulder condition caused by the work injury. The right shoulder condition caused by the accepted work injury, for the comprehensive reasons expressed by Dr Guirgis[34] has caused cervical spine symptoms.
[34] See [40]-[41] herein.
The cervical spine is referred for assessment to the Medical Assessor.
The referral of the left wrist and left elbow
The respondent was granted leave to raise objection to the left wrist and left elbow being referred for assessment of permanent impairment. The applicant consented to the issue being raised.
It is not in dispute that the claim pursuant to s 66 of the 1987 Act was based on the report of Dr Guirgis dated 20 April 2023.[35] The report of Dr Guirgis dated 20 April 2023 noted a date of injury of 13 September 2016 – deemed date for nature and conditions. Dr Guirgis noted that the applicant suffered “consequential left shoulder symptoms as he favoured his left arm in his DLAs to avoid triggering the increase in the pain in his right arm”. Apart from the loss of movement in the shoulders, the doctor also assessed symptoms in the right wrist and elbow.
[35] See the letter of claim, Application, p 23.
There is no mention by Dr Guirgis of symptoms in the left wrist and left elbow. The only assessable impairment of the left upper extremity concerned the left shoulder.
The further reports of Dr Guirgis were in response to the opinion expressed by Dr Machart and do not add anything to the scope of the impairment assessment.
The applicant referred to the following passage in Klement v Bull N’ Bush Nurseries Pty Ltd[36] that any injury must be assessed as part of the medical dispute. The applicant submitted that this passage was binding on the Personal Injury Commission (Commission) and/or was required to be followed.
[36] [2024] NSWSC 466 (Klement).
The decision in Klement were judicial review proceedings against the decision of an Appeal Panel constituted under the 1998 Act. The Appeal Panel had determined that it would not assess the shoulder because there was an agreed assessment made by the respective qualified doctors of 0%.
Schmidt AJ found that all injures asserted by the injured worker required assessment as part of the medical dispute. Her Honour stated:
“It follows that Mr Klement was entitled to pursue, as he did by his claim and later application, all of the injuries which he claimed he had suffered as the result of his heavy work at the nursery, including the injury to his shoulder for which he had received treatment. All those injuries had to be assessed together in accordance with the requirements of the 1998 Act and applicable guidelines, with any dispute about liability no longer providing an impediment to such an assessment being undertaken.”
The reasoning in this paragraph was based upon the wording of s 65 of the 1987 Act that all injuries must be assessed together, and the injured worker was only entitled to bring one claim for the assessment for permanent impairment (s 66(1A) of the 1987 Act).
The reasoning did not address the requirement in ss 281 and 282 of the 1998 Act that the claim for permanent impairment must identify the “impairments arising from the injury” which is distinct from the injuries received by the worker. The reasoning does not address that it is the disputed claim that is referred to the Commission (s 288 of the 1998 Act) and that is the medical dispute assessed by a Medical Assessor.
The issue of binding precedent was recently considered by the President in Ready Workforce (a Division of Chandler Macleod) Pty Ltd v Andronicos.[37] The President referred to the judgment of Barwick CJ in Favelle Mort Ltd v Murray[38] where the Chief Judge was discussing the position following the abolition of appeals from the High Court to the Privy Council. Barwick CJ stated:
“... within this body ofprecedent there are decisions or statements of principle which a court will be obliged to follow and apply. The ultimate foundation of precedent which thus binds a court is that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court’s judgement, has laid down that principle as part of the relevant law. Outside the area of bindingprecedent, there is an area where comity or respect for the high standing of a court outside that juristic unit dictates that the views of such a court in general be accepted unless the court is clearly convinced as to the erroneous nature of the decision or reasoning of that other court, and there are sufficient reasons for departing from that decision or that reasoning. Thus, respect is accorded to the decisions of the House of Lords and, perhaps to a lesser degree, those of the English Court of Appeal. In line with this approach to decisions which do not bind as precedents, no doubt this Court will at least accord a like respect to decisions of the Privy Council to that which it is accustomed to accord to the House of Lords.”
[37] [2024] NSWPICPD 7.
[38] [1976] HCA 13; 133 CLR 580 (Favelle Mort).
A decision by a Medical Assessor and an Appeal Panel is not a decision of the Commission: Campbelltown City Council v Vegan;[39] Hochbaum v RSM Building Services Pty Ltd.[40] Whilst these cases related to the former Workers Compensation Commission, the provisions of the Personal Injury Commission Act, 2020 (PIC Act) maintain the distinction that Medical Assessors are not part of the Commission (s 8 of the PIC Act). Medical Assessors are defined as a “decision maker” (s 32) and are appointed by the President (s 33).
[39] [2004] NSWSC 1129 at [31]-[36]. Those findings were not contested on appeal - see Campbelltown City Council v Vegan [2006] NSWCA 284 at [53].
[40] [2020] NSWCA 113 at [55] – footnote 31.
Appeals from a non-presidential member to a presidential member are governed by s 352 of the 1998 Act. An appeal from a presidential member to the Court of Appeal is restricted to a “point in law” (s 353 of the 1998 Act). A decision of the Court of Appeal is binding on the Commission and parties to the dispute (s 353(3) of the 1998 Act).
There is no statutory right of appeal from the determination of an Appeal Panel. Judicial review proceedings of these decisions are generally brought pursuant to s 69 of the Supreme Court Act,1970.
Accordingly, decisions of the Supreme Court on judicial review from a determination by an Appeal Panel do not fall within the “hierarchy of the same juristic system” as decisions of the Commission. Judicial review determinations are not binding on Commission decisions.
In accordance with the discussion of Barwick CJ in Favelle-Mort, I accept the applicant’s submission that Klement should be followed unless there are good reasons to the contrary.
For the following reasons I decline to follow [49] of Klement.
The parties accepted that the scope of the medical dispute is based on the discussion in Skates v Hills Industries Ltd.[41] In Skates, Leeming JA stated:[42]
“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 Skatesas 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.”
[41] [2021] NSWCA 142 (Skates).
[42] Skates at [46].
The report provided by Dr Guirgis dated 20 April 2023 did not mention the left wrist and left elbow. Consistent with the observations in Skates at [87] herein, I do not accept that any injury is necessary part of the medical dispute unless there is a relevant claim.
Furthermore, there is no basis to “imply” as the applicant submitted, that these body parts, were included as part of Dr Guirgis’ assessment and assessed at 0%.
The assessment of permanent impairment requires a medical dispute between the parties identified by a claim. As Leeming JA observed in Skates:[43]
“44 The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998(NSW) .... The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury .... It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.”
[43] Skates at [44]. These observations were approved by the Court of Appeal in Scone Race Club Ltd v Cottom [2024] NSWCA 34 at [29].
Sections 281 and 282 of the 1998 Act requires the applicant to make a claim for lump sum compensation. Section 282(1) sets out the relevant particulars required for a claim for permanent impairment and include the injuries received and “all impairments arising from the injury” (s 282(1)(b)).
A dispute about a claim may be referred to the Commission (s 288 of the 1998 Act).
The rejection of the claim for the degree of permanent impairment creates the medical dispute under s 319 of the 1998 Act.
On the facts of this case, I do not accept, consistent with the principles of Skates set out at [90] herein, that the medical dispute between the parties included injuries that were not notified as part of the claim for permanent impairment.
The reasoning in Klement set out earlier,[44] was not essential to the ultimate determination by her Honour that an assessment of 0% of a particular body part formed part of the medical dispute. In accepting that an assessment of 0% formed part of the medical dispute, Schmidt AJ stated:
“73. The fact that neither Dr Lai nor Dr Doig had concluded that Mr Klement’s shoulder injury had resulted in an impairment, could not confine the medical dispute. The assessor was not bound by those conclusions. He had to make his own assessment, having regard to their reports and the other material which he had to consider because of the way the claim had been advanced and resisted, based on opinions which he formed, having undertaken the examination of Mr Klementwhich he explained.
74. This statutory scheme accepts that injuries can improve or worsen over time and so an assessor must base his conclusions on his own findings and opinions, formed at the time of the assessment, while taking into account what earlier examinations have established.”
[44] See at [77] herein.
Whilst the finding by her Honour that a 0% assessment, in that case shoulder impairment, was held to be part of the claim for permanent impairment and a constituent part of the medical dispute, the passage that any injuries suffered as part of that dispute are assessable were not necessary for the ultimate decision.
In my view the passage in Klement at [49] is inconsistent with the observations in Skates set out herein. A body part that was injured may not necessarily be part of the medical dispute for the assessment of permanent impairment. Each case will depend upon the documents setting out the respective claims and the scope of the medical dispute.
I otherwise do not accept the applicant’s submission that there was an “implied” assessment of 0% for the left wrist and left elbow. Such a construction does not arise from a reading of Dr Guirgis’ opinion.
The respondent submitted that it was not required to respond to a claim for the left wrist and left elbow as the claim and the resulting medical dispute was based on the opinion of Dr Guirgis which did not discuss those body parts. I agree with this submission.
It is unnecessary to determine the issue of whether an assessment of 0% for a particular body part forms part of the medical dispute noting varying decisions by presidential members.[45]
[45] See for example Voudouris v TDV Constructions Pty Ltd [2023] NSWPICPD 53 (0% not assessable);
However, to the extent that the matter proceed further I address the issue of whether a 0% assessment constitutes a claim and a medical dispute within the meaning of the 1987 Act and the 1998 Act.
Given the differing opinions at the presidential level of the Commission, I am inclined to accept that Klement should be followed on this issue and that an assessment of a body part of 0%, as part of a valid claim, can be assessed as part of the medical dispute.
The assessment of permanent impairment is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[46] The fourth edition guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5).
[46] The fourth edition guidelines are issued pursuant to s 376 of the 1998 Act.
I agree with the observations in Klement that an assessment of 0% does not mean that a Medical Assessor may reach a different view at the time of the medical assessment.
An assessment of 0% permanent impairment pursuant to AMA 5 and the fourth edition guidelines does not mean that there are no symptoms. Indeed, the extent of the physical complaints may bear no resemblance to the degree of permanent impairment.
Various types of surgeries can alleviate or eliminate physical symptoms and often result in a significant increase in the level of impairment. Examples of these include total hip replacements (ranging from 15% to 30%) and spinal fusions.
Other anomalous situations can include an improvement in the movement of a spinal condition which can increase the degree of impairment. This can mean that an injured worker is assessed as having an impairment when no assessable impairment previously existed. Such a statement seems counter-intuitive but is explained by the following factual scenario.
An injured worker with symmetrical reduced range of motion in the spine is assessed as DRE Category I (0%). However, an improvement in range of motion may result in the movement being assessed as asymmetrical and result in a finding of DRE Category II and assessed at 5%.[47]
[47] See cl 4.18 and 4.19 of the fourth edition guidelines and Table 15-3 of AMA 5.
The medical dispute defined in ss 319 and 326 is “the degree of permanent impairment of the worker as a result of an injury”.
A reading of that aspect of the meaning of “medical dispute” probably indicates that it relates to the overall impairment as opposed to the individual claimed body parts. Where there are multiple impairments arising from the same incident, these are combined to produce an overall assessment.
It is settled law that the injured worker must make a claim that is capable of being compensated, normally providing an assessment of a qualified medical practitioner, and claiming permanent impairment of at least 11%: Sukkar v Adonis Electrics Pty Ltd.[48]
[48] See [2014] NSWCA 459 a [91] and [93].
If there is disagreement of the overall impairment, a medical dispute exists, and the injured worker is entitled to have the various body parts assessed. Accordingly, provided there is a valid claim of the overall impairment, the assessment of a particular body part does not have to meet the minimum threshold of at least 11% and can be assessed at 0%.
For the reasons provided, I do not accept that the claim made by the applicant included the assessment of permanent impairment of the left wrist and left elbow. I decline to refer those body parts for assessment.
FINDINGS AND ORDERS
The findings and orders are set out in the Certificate of Determination.
Transdev NSW South Pty Ltd v Twining [2024] NSWPICPD 12 (0% is assessable).
1
17
0