State of New South Wales (Western Sydney Area Local Health District) v Moslemi
[2025] NSWPICMP 6
•6 January 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (Western Sydney Area Local Health District) v Moslemi & Ors [2025] NSWPICMP 6 |
| APPELLANT: | State of New South Wales (Western Sydney Area Local Health District) |
| FIRST RESPONDENT: | Mina Moslemi |
| SECOND RESPONDENT: | Nepean Private Hospital (Healthscope Operations Pty Ltd) |
| THIRD RESPONDENT: | State of New South Wales (Northern Sydney Local Health District |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Todd Gothelf |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 6 January 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; appeal by one of three employers after Medical Assessment Certificate (MAC) issued following the issue of a Certificate of Determination (COD) by a Senior Member, a successful appeal to Deputy President Wood, and a further COD being issued from which the referral was made; whether Medical Assessor (MA) entitled to ignore such determinations and the terms of the referral; whether MA erred in not applying the principles in Secretary, New South Wales Department of Education v Johnson (Johnson) to the question of apportionment; Held – referrals were binding; Skates v Hills Industries Ltd considered and applied; a fortiori determinations from the Commission on which the referral was based were binding; reliance on principles in Johnson misconceived; apportionment was provided by sections 22 and 22A; MAC revoked and a new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 June 2024, the appellant, State of New South Wales (Western Sydney Area Local Health District) lodged an application to appeal against the decision of the Medical Assessor. The medical dispute was assessed by Dr Drew Dixon, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 May 2024.
Notices of Opposition were lodged by Nina Moslemi (the worker) and the second respondent Nepean Private Hospital (Healthscope Operations Pty Ltd), the third respondent, State of New South Wales (Northern Sydney Local Health District) advised the Commission that it did not intend to lodge a Notice of Opposition.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 18 March 2024 Principal Member Glenn Capel issued a Certificate of Determination (COD), following which a referral was made to the Medical Assessor regarding two separate injuries. The first injury was dated 1 November 2013 for which a WPI assessment was sought in relation to injuries to the right and left upper extremity, namely the shoulders.
The second injury was dated 13 May 2022, (deemed) in respect of which an assessment was sought for the cervical spine, right upper extremity (right shoulder), and the left upper extremity (left shoulder).
Amongst documentation briefed to the Medical Assessor was a copy of Principal Member Capel's COD of 21 April 2023 and a copy of the Determination of Appeal against the Decision of the Commission constituted by a Member in matter no. A1-W7627/22.
The latter determination was by Deputy President Elizabeth Wood.[1] Deputy President Wood revoked the decision of Senior Member Kerry Haddock, and remitted it to the Workers Compensation Division Head (Mr Capel) to issue a determination consistent with Deputy President Elizabeth Wood's determination.
[1] State of New South Wales (Western Sydney Local Health District) v Moslemi 2024 NSWPIC PD 15.
It is convenient to adopt the summary of the facts as found by Deputy President Wood;[2]
[2] Appeal Papers, page 47.
“1. Ms Mina Moslemi (the first respondent) was employed as a midwife on a full-time basis by the State of New South Wales (Western Sydney Local Health District) (the appellant) at Auburn Hospital from 2007 to August 2015. She then worked on a casual basis for the State of New South Wales (Northern Sydney Local Health District), the third respondent, at the Royal North Shore Hospital (RNS) from January 2016 until December 2016 and concurrently worked part-time for Healthscope Operations Pty Ltd at Nepean Private Hospital (Nepean), the second respondent, from April 2016 until May 2017.
2. The first respondent alleged that, as a result of the physical and busy nature of the work with the appellant in the post-natal unit in 2013, she developed pain in her right shoulder and arm. She said that over the course of the following years, her symptoms in the neck and right shoulder were aggravated and she developed left shoulder symptoms because of her difficulties with her right arm, particularly when performing certain midwifery duties.
3. The first respondent made claims for compensation, which were disputed. Ultimately, on 13 May 2022 the first respondent made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) against the appellant as well as Nepean and RNS in respect of 29% whole person impairment, resulting from injuries to the cervical spine and both upper extremities. The first respondent nominated a deemed date of injury of 13 May 2022, or in the alternative 1 November 2013, which was the first date upon which she was incapacitated for work with the appellant.
4. Liability for the claim was disputed by all three employers and the matter proceeded to arbitration before a Senior Member of the Commission. The issues for determination were clearly identified in the Senior Member’s Certificate of Determination, but can be briefly described as:
(a)whether the first respondent suffered injuries as alleged (or, in respect of the left shoulder symptoms, a consequential condition in the left shoulder);
(b) whether the first respondent’s employment was a substantial, or the main, contributing factor to the injuries;
(c)the degree of any whole person impairment, and
(d) if the injuries consisted in a disease or aggravation of a disease, which employer was the last employer for the purposes of the application of ss 15 and/or 16 of the 1987 Act.
5. Nepean and RNS also raised issues as to whether the first respondent had given notice of injury and made her claim for compensation within the prescribed statutory time frames. The appellant conceded that the first respondent suffered a right shoulder injury in November 2013 in its employ.
6. The Senior Member determined that the first respondent suffered injury to the cervical spine and right shoulder on 1 November 2013 (that being the first date of incapacity) in the course of employment with the appellant and a condition in the left shoulder as a consequence of the right shoulder injury. The Senior Member further determined that the first respondent suffered from a disease condition in her cervical spine and both shoulders, which had been aggravated by her employment with the appellant, Nepean and RNS. She found that, in accordance with s 4(b)(ii) of the 1987 Act, the first respondent’s employment with the appellant, Nepean and RNS was the main contributing factor to the aggravation of the disease condition in the first respondent’s cervical spine and both shoulders.
7. The Senior Member further found that Nepean was the last employer who employed the first respondent in employment that was a substantial contributing factor to the injuries and the deemed date of the aggravation of the disease condition was 13 May 2022 (the date the claim pursuant to s 66 of the 1987 Act was made). She remitted the lump sum claim to the President of the Commission for referral to a Medical Assessor for assessment of the whole person impairment of the cervical spine, right upper extremity and left upper extremity (shoulders) as a result of injury on 1 November 2013 and for assessment of those body parts resulting from injuries with a deemed date of 13 May 2022.”
Deputy President Wood found that an error had occurred in that there had been no specific incident that triggered the cervical symptoms in 2013. She found that the injury to the cervical spine did not constitute a personal injury but rather was an aggravation of Ms Moslemi's disease condition. Thus, the date of injury fell within the definition of s 4(b)(ii) of the 1987 Act and the date of injury was therefore the date of claim, 11 May 2022.
The medical assessment certificate issued by the Medical Assessor was in these terms:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Right Upper Extremity (shoulder) | 1/11/2013 West Sydney Local Health(Auburn) | Para 2.5 Page 10 | Pie Charts 16-40, 16-43 and 16-46 Pages 476-9 | 6% | 0% | 6% |
| Left Upper Extremity (shoulder) | 1/11/2013 (Auburn) | Para 2.5 Page 10 | Pie Charts 16-40, 16-43 and 16-46 Pages 476-9 | 7% | 0% | 7% |
| Cervical Spine | 1/11/2013 (Auburn) | Table 4.1 Page 26 | Table 15-5 Page 392 | 17% | 0% | 17% |
| Right Upper (shoulder) | 13.5.22 (deemed) Nepean Private | Para 2.5 Page 10 | Pie Charts 16-40, 6-43 and 16-46, Pages 476-9 | 1% | ||
| Left Upper Extremity (shoulder) | 13/5/22 (deemed) Nepean Private | Para 2.5 Page 10 | Pie Charts 16-40, 16-43 and 16-46 Pages 476-9 | 1% | ||
| Cervical Spine | 13/5/22 (deemed) Nepean Private | Table 4.1 Page 26 | Table 15-5 Page 392 | 1% | = | 3% |
| Right Upper Extremity (shoulder) | 13/5/22 (deemed) RNSH | Para 2.5 Page 10 | Pie Charts 16-40, 16-43 and 16-46 Pages 476-9 | 1% | ||
| Left Upper Extremity (shoulder) | 13/5/22 (deemed) RNSH | Para 2.5 Page 10 | Pie Charts 16-40, 16-43 and 16-46 Pages 476-9 | 1% | = | 3% |
| Cervical Spine) | 13/5/22 (deemed) RNSH | Table 4.1 Page 26 | Table 15-5 Page 392 | 1% | ||
| Total % WPI (the Combined Table values of all sub-totals) | ||||||
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination as the issues for determination in this matter do not concern medical issues, and in any event such a request was not made by the appellant.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The MAC
The referral was accurately reproduced by the Medical Assessor at the beginning of the MAC. At [4] he took a thorough history of the injuries as related to him, it would appear, by Ms Moslemi at the consultation. The Medical Assessor took a history that “[Ms Moslemi] developed pain in her neck and left shoulder which deteriorated over a three month period and she could no longer work. She stopped working at Auburn Hospital on November 1, 2013……."
He noted that Ms Moslemi felt it was the posture she had to adopt that led to the neck and right shoulder pain whilst performing her duties as a postnatal midwife.
In his summary of injuries and diagnoses at [7], the Medical Assessor said:
“This claimant due to the nature and conditions of her employ as a midwife, first at
Auburn Hospital, developed neck pain and right shoulder brachalgia and then
during her casual employs at RNSH and Nepean Hospital developed some deterioration of her neck and right shoulder with left shoulder brachalgia.”
In his reasons for assessment given at [10] by the Medical Assessor, he said:
“That for the cervical spine is from Table 15-4 Page 389, DRE III, plus 2% for ADL’s giving 7% whole person Impairment.
That for the post traumatic stiffness of her left shoulder is from Pie Charts, 16-40, 16- 43, and 16-46, 12% upper extremity impairment which equates to 7% whole person Impairment.
That for her right shoulder is from the same Pie Charts, 10% upper extremity impairment which equates to 6% whole person impairment.
This gives a total of 28% whole person impairment.
The apportionment for the injury on 1 November 2013 is three quarters, that is 21% whole person impairment, and that for the employment subsequently with a deemed date of injury, May 13, 2022 is 6% whole person impairment, apportioned at 3% whole person impairment for employment with RNSH, and 3% whole person impairment for employment with Nepean.”
SUBMISSIONS
The appellant
We were firstly referred to the to the determination by Deputy President Wood and her summary of the facts, which we have repeated above. We were referred to the COD issued by Principal Member Capel which contained DP Wood’s awards in respect of Ms Moslemi's right shoulder and consequential condition in the left shoulder.
It was submitted that Ms Moslemi had accordingly sustained injury to her right shoulder, cervical spine and left shoulder on a deemed date of 13 May 2022, which was said to be the aggravation, acceleration, exacerbation or deterioration of a disease.
The referral of 18 March 2024 correctly set out Principal Member Capel’s COD, it was argued, but the Medical Assessor had failed to undertake his assessment in accordance with the terms of that referral.
The history recorded by the Medical Assessor was materially different to the history that formed the basis of the Presidential decision, it was alleged.
The history taken by the Medical Assessor was that Ms Moslemi developed pain in her neck and right shoulder that deteriorated over a three-month period to the point where she could no longer work, and she ceased work at Auburn Hospital on 1 November 2013. This determination, it was submitted, was contrary to the findings in the Presidential decision and the terms of the COD issued by Principal Member Capel and therefore a demonstrable error.
Determining that there was an injury on 1 November 2013 in relation to the cervical spine was unauthorised and made without power, it was submitted.
Secondly it was further submitted that the Medical Assessor had adopted an incorrect approach to the assessment of impairment generally and in particular to the left and right upper extremities.
The Medical Assessor had failed to appreciate that he was assessing two separate injuries, one being a personal injury on 1 November 2013 and the other a disease injury deemed to have occurred on 13 May 2022. He was required to give separate assessments in that regard and his methodology of apportioning liability for the total impairment was incorrect. The correct method it was submitted was set out in Secretary, New South Wales Department of Education v Johnson.[3]
[3] [2019] NSWCA 321.
The appellant submitted that this was not a case where it could be said that the disease injury was in any way an aggravation of the personal injury. The appellant acknowledged that the task of the Medical Assessor in this case was “not an easy one” but submitted that nonetheless the Medical Assessor was required to use his clinical judgment to assess individually the impairment resulting from each injury. The Medical Assessor's attempt to apportion impairment accordingly constituted both the application of incorrect criteria and a demonstrable error.
Accordingly, the appellant sought the revocation of the MAC and a replacement issued in accordance with the terms of the referral. This would mean there was no impairment assessable of the cervical spine of injury from 1 November 2023 and that the assessment of the right and left upper extremities would be “undertaken by the correct methodology in compliance with the legislation and guidelines”.
First respondent - Ms Moslemi
Ms Moslemi indicated in her application that the appeal could be decided by the Appeal Panel on the basis of the written application and any written notice of opposition.
Ms Moslemi submitted that paragraph 2 of Principal Member Capel's COD determined that on 1 November 2013 she sustained injury to her right shoulder and a consequential condition to the left shoulder.
With regard to the challenge to the assessment of the cervical spine, Ms Moslemi conceded that it was “reasonably clear” that the Medical Assessor had “totally misunderstood” the task required of him as set out in the referral. This was apparent from his findings of paragraph 7 which Ms Moslemi reproduced.
The error was capable of correction by the Panel, it was submitted, by the “affixing of the assessment of impairment to the injury (and date of injury) referred.”
With regard to the appeal concerning the upper extremities, Ms Moslemi took issue with the appellant’s submission that the Medical Assessor’s finding of injury on 1 November 2013 to the cervical spine was contrary to the terms of the referral. Ms Moslemi argued that the function of the Medical Assessor was rather “to make a determination with respect to the impairment suffered by the worker and then make a determination relative to those parts of the impairment that could be attributed to each of the injuries referred”.
It was argued that the Medical Assessor had to consider some level of apportionment and that there was nothing in the methodology adopted in this instance that would indicate error.
The task for the Medical Assessor was not straightforward, it was argued, as was demonstrated by the two decisions firstly of Senior Member Haddock and then Deputy President Wood.
The appellant had accepted injury and paid compensation regarding the left shoulder from the outset, Ms Moslemi observed.
Second respondent – Healthscope Operations Pty Ltd
The second respondent, “Healthscope,” conceded that the determination of the Medical Assessor was contrary to the determination of Deputy President Wood, but submitted that the Medical Assessor had taken a detailed history and had access to the history also recorded by other treating and qualified medical practitioners.
The second respondent reproduced portions of Deputy President Wood’s decision and submitted that the history provided by the Medical Assessor “was not inconsistent” with the history recorded by Deputy President Wood, in that Ms Moslemi had described an aggravation of neck pain in the context of an initial onset of right shoulder pain.
The second respondent referred to the following evidence:
(a) an AIMS incident form of 4 November 2013 which described an injury to the neck with symptoms in the right hand arm;
(b) an injury notification form, (no date given) which referred to injury to the neck, shoulder and arm, which occurred on 29 October 2013 and was reported on
5 November 2013, and(c) report from Ms Moslemi’s general practitioner Dr Nagulendran of
22 December 2019.The inclusion of the cervical spine reflected a consideration of the entire body of evidence tendered in the proceedings, Healthscope submitted. It said that the inclusion of the cervical spine “does not reflect the MA recording own history relating to the injury while failing to appreciate that it is materially different from the history that formed the basis of the Determination by Deputy President Elizabeth Wood.”
Healthscope submitted that the Medical Assessor was required to give an assessment of all the evidence and then exercise his clinical judgment to assess Ms Moslemi’s WPI - “which has been undertaken in this matter”.
Healthscope then addressed the challenge to the findings of the upper extremities. It submitted that an appellant was required to “clearly identify those parts of the NSW workers compensation guidelines …. and AMA 5 which have been incorrectly applied”. It was submitted that the appellant had merely indicated that an apportionment methodology was incorrect. Therefore, the second respondent submitted, this aspect of the appeal could not succeed.
Third respondent – State of New South Wales (Northern Sydney Local Health District)
We note the advice of the delegate that the third respondent did not intend to lodge a Notice of Opposition.
Discussion
As has been seen, Deputy President Wood found that there was in fact no injury to the cervical spine on 1 November 2013. At [130] the learned Deputy President said:
“The difficulty with the Senior Members conclusion was that there was not a specific incident that triggered the cervical symptoms in 2013. Rather, the uncontested evidence was that her symptoms resulted from a heavy workload, short-staffing, participating in a number of births and working on a prolonged and fixed position whilst assisting new mothers with breastfeeding, all of which involved the first respondent working as a midwife…..”
This was the basis for the revocation of Senior Member Haddock's decision and the subsequent issue of the referral after the case had been remitted by Principal Member Capel to the President for such a referral. The determination by Principal Member Capel was, relevantly:
“1 .…
2. The applicant sustained injury to her right shoulder and a consequential condition of her left shoulder on 1 November 2013, arising out of or in the course of her employment with the first respondent.
3. Award for the first respondent in respect of the alleged personal injury to the applicant’s cervical spine on 1 November 2013 within the meaning of s 4 of the Workers Compensation Act 1987.
4. The applicant sustained injury to her right shoulder, cervical spine and left shoulder, deemed to have happened on 13 May 2022, consisting in the aggravation, acceleration, exacerbation or deterioration of a disease, arising out of or in the course of her employment with the first respondent.
5. The applicant sustained injury to her right shoulder, cervical spine and left shoulder, deemed to have happened on 13 May 2022, consisting in the aggravation, acceleration, exacerbation or deterioration of a disease, arising out of or in the course of her employment with the second respondent.
6. The applicant sustained injury to her right shoulder, cervical spine and left shoulder, deemed to have happened on 13 May 2022, consisting in the aggravation, acceleration, exacerbation or deterioration of a disease, arising out of or in the course of her employment with the third respondent.
7. The second respondent was the employer who last employed the applicant in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease.”
It can be seen that there was accordingly an award in favour of the first respondent for the injury to the cervical spine claimed to have occurred on 1 November 2013.
The MAC itself found, in contravention of order 3 by Principal Member Capel, that the first respondent was liable for the injury to the cervical spine dated 1 November 2013.
We read with some interest in the submission by the second respondent that, notwithstanding the determination of Deputy President Wood (or for that matter, the determination of Principal Member Capel) her decision was, in the final analysis, not binding on the Medical Assessor.
The selected portions of the decision of Deputy President Wood that Healthscope relied on were the following:[4]
“1. The first respondent alleged that, as a result of the physical and busy nature of the work with the appellant in the post-natal unit in 2013, she developed pain in her right shoulder and arm. She said that over the course of the following years, her symptoms in the neck and right shoulder were aggravated and she developed left shoulder symptoms because of her difficulties with her right arm, particularly when performing certain midwifery duties.
….
20. The first respondent asserted that, as a result of performing those duties for the appellant in about late 2013, when the appellant was particularly short-staffed, she began to experience aching in her right shoulder and arm. She said that on one night, after having delivered six babies, her right shoulder symptoms were particularly debilitating, so she consulted her general practitioner on 3 November 2013.
21.The first respondent indicated that over the course of the following few years, her right shoulder and neck became increasingly strained and sore, in particular when performing sessions of up to an hour in length instructing mothers in baby feeding. She said that this required her to hold the newborn in an awkward position for a fixed period. She also said that, as a result of the right shoulder symptoms, she relied more on her left shoulder for this and other tasks. She noticed that she began to experience left shoulder symptoms, which worsened over time.
22. The first respondent stated that, by the end of 2016, she was in severe pain with symptoms in both shoulders, radiating into her arms and neck. She sought treatment, and a CT scan and an MRI scan were performed in March 2017. The first respondent described “unbearable” symptoms of increasing numbness and pins and needles in her left hand, which prompted her to submit her resignation from her employment with Nepean in April 2017, ceasing work in May 2017.”
[4] Submissions from [2.14] at appeal page 25.
Both paragraphs [2] and [20-22] were in fact summaries of the allegations made by
Ms Moslemi and did not constitute findings, as appeared to be the import of the second respondent's submissions. The submission that the history provided by the Medical Assessor was “not inconsistent” with that recorded by Deputy President Wood rather overlooked the fact that Deputy President Wood revoked the Senior Member Haddock’s COD, and that Principal Member Capel made an award in favour of the appellant in accordance with Deputy President Wood's decision. Accordingly, the Medical Assessor made an error in finding, contrary to the above decisions, that indeed Ms Moslemi’s cervical spine had been injured on November 2013.The submission also demonstrated that the second respondent was unaware of the decision in Skates v Hills Industries Ltd.[5] In Skates it was held that the terms of the referral were binding on a Medical Assessor unless those terms did not reflect the agreement between the parties. A fortiori, when the Commission, both through Deputy President Wood and Principal Member Capel, have made orders in respect to the nature of the injury, the terms of the referral are binding.
[5] [2021] NSWCA 142 (Skates).
It follows that the certificate must be revoked.
We note Ms Moslemi’s concession that the Medical Assessor had erred in this respect and we concur with the submission proposed by her that the 17% WPI rating for the cervical spine injury referred properly should be ascribed to the deemed date of injury, 13 May 2022, thus making the second respondent liable.
Apportionment
The Medical Assessor was required by the terms of the referral to assess a personal injury caused to the right shoulder and a consequential condition to the left shoulder on
1 November 2013, for which the appellant was liable, and additionally to assess a disease injury caused to the shoulders on 13 May 2022 for which Healthscope was liable pursuant to s 16 of the 1987 Act.Ms Moslemi submitted that “necessarily” the Medical Assessor would have to apportion between the date of injury referred to him of 1 November 2013 and the deemed date of
13 May 2022.
Legislation
Section 4 of the 1987 Act provides relevantly:
“4 Definition of ‘injury’
‘injury’ -
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury', which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) ….”
Section 16 of the 1987 Act provides relevantly:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease-
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
…..”
Section 22 of the 1987 Act provides relevantly:
“22 COMPENSATION TO BE APPORTIONED WHERE MORE THAN ONE INJURY
(1) If--
(a) the death or incapacity of a worker, or
(b) a permanent impairment suffered by a worker as referred to in Division 4 of Part 3, or
(c)a liability under Division 3 of Part 3 to a worker, results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines.
(1A) Death, incapacity, loss or liability that results partly from one injury and partly from one or more other injuries is taken to have resulted from more than one injury.
(2) Liability to pay compensation under this Act includes--
(a) the liability of an employer (including an employer who is a self-insurer), and
(b) the liability of an insurer under a policy of insurance in respect of the payment of that compensation (including a direct liability to the worker)…
(c) …
(d) …
(3) …
(4) Liability to pay compensation under this Act may be apportioned by the Commission even though it is the liability of a single insurer in respect of different periods of insurance, but only if the employer or the Authority applies for such an apportionment.
(5) The Commission may, on the application of any insurer or employer concerned or of the Authority, determine a dispute as to whether--
(a) liability to pay compensation under this Act should be apportioned under this section, or
(b) any such liability should be apportioned under this section in respect of different injuries.
The determination of the Commission has effect despite any agreement on apportionment if the application for determination was made by an employer (in the employer's own right) or the Authority.
(7) A person who is liable to pay compensation under this Act is not entitled in any proceedings under this Act to a reduction in that liability by apportionment on account of the existence of any other person who is also liable to pay any part of that compensation unless that other person is a party to the proceedings.
(8) This section applies to any liability arising before or after the commencement of this Act.”
Section 22A of the 1987 Act provides relevantly:
“(1) The apportionment of liability under section 22 is--
(a) in the case of the apportionment of liability between employers--to be on the basis of the relative length of the worker's employment with each employer concerned (not including any period of employment after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case, and …”
The appellant cited Johnson on the assumption that it was applicable law. However, at [65] Emmett AJA, Macfarlan JA and Simpson AJA agreeing, said:
“Section 22 of the Compensation Act deals with the question of permanent impairment suffered by a Worker that results from more than one injury to the Worker. Under s 22(1)(b), liability to pay compensation is to be apportioned in such manner as the Commission determines. However, s 22 has no operation in the present circumstances since Hostels is not amenable to the Compensation Act or the Management Act. Rather, the entitlement of the Worker to compensation in respect of the Second Injury is regulated by Commonwealth legislation.”
There is no such difficulty in the present case, and the Commission is thus able to apportion by assigning proportionate liability in accordance with the above sections. The Medical Assessor gave a comprehensive overview of the relevant evidence, which was consistent with the summary given by DP Wood (save for the error regarding the date of injury for the cervical spine).
As noted, the Medical Assessor apportioned ¾ liability to the appellant, and he divided the remaining ¼ liability between the second respondent and the third respondent. He was in error in that regard, as Healthscope has been found to be the relevant last employer, and therefore Healthscope would have been liable for the remaining quarter. We concur with
Ms Moslemi’s submission that there is nothing in the methodology employed by the Medical Assessor that suggested he had fallen into error. The challenge by Healthscope was a misconception that the principles in Johnson were applicable, and no submissions were directed to the basis of the apportionment.Accordingly, we make the following changes to the MAC. The Medical Assessor’s calculations have not been challenged, but rather his application of them to the legal issues that were decided. The 17% WPI rating for the cervical spine will now be attributed to Healthscope and the 13% WPI for the shoulders will be apportioned at 4% for the right shoulder and 6% for the left shoulder (10%) to the appellant, and 3% to Healthscope, with 1% for the right shoulder and 2% for the left. This distribution reflects the assessment of 6% for the right shoulder and 7% for the left shoulder, but takes into account that these assessments were made on the date of assessment, 24 April 2024. The apportionment has thus been ¾ to the appellant and ¼ to Healthscope.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 May 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7627/22 |
Applicant: | State of New South Wales (Western Sydney Area Local Health District) |
First respondent: | Mina Moslemi |
Second Respondent | Nepean Private Hospital (Healthscope Operations Pty Ltd) |
Third Respondent | State of New South Wales (Northern Sydney Local Health District |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Drew Dixon and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Right Upper Extremity (shoulder) | 1/11/2013 West Sydney Local Health(Auburn) | Para 2.5 Page 10 | Pie Charts 16-40, 16-43 and 16-46 Pages 476-9 | 4% | 0% | 4% |
| Left Upper Extremity (shoulder) | 1/11/2013 (Auburn) | Para 2.5 Page 10 | Pie Charts 16-40, 16-43 and 16-46 Pages 476-9 | 6% | 0% | 6% |
| Right Upper Extremity (shoulder) | 13/5/22 (deemed) Healthscope | Para 2.5 Page 10 | Pie Charts 16-40, 6-43 and 16-46, Pages 476-9 | 1% | 1% | |
| Left Upper Extremity (shoulder) | 13/5/22 (deemed) Healthscope | Para 2.5 Page 10 | Pie Charts 16-40, 16-43 and 16-46 Pages 476-9 | 2% | 2% | |
| Cervical Spine | 13/5/22 (deemed) Nepean Private | Table 4.1 Page 26 | Table 15-5 Page 392 | 17% | 17% | |
| Total % WPI (the Combined Table values of all sub-totals) | Date of injury 1/11/2013 – 10% Date of injury 13/5/2022 - 20% | |||||
0
3
0