Stevens v Shoalhaven Starches Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stevens v Shoalhaven Starches Pty Ltd [2024] NSWPIC 496
APPLICANT:	Mathew Stevens
RESPONDENT:	Shoalhaven Starches Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	6 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 66; claim made by the applicant for compensation for whole person impairment (WPI); applicant claimed compensation for 11% WPI for impairment of the left upper extremity (elbow) and scarring; applicant relied on a medical assessment being the only assessment of WPI; whether there was error in calculating 11% WPI; Welsh v Dandan Management Services Pty Ltd, Woolworths Ltd v Stafford, Bell v The Mining Pty Ltd, Abou-Haidar v Consolidated Wire Pty Ltd, Sukkar v Adonis Electrics Pty Ltd, Skates v Hills Industries Ltd, Yates v Flavorjen Pty Ltd, and Secretary, New South Wales Department of Education v Connolly considered and applied; Held – matter remitted to the President for referral to a Medical Assessor for assessment of left upper extremity and scarring.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant has made a valid claim for 11% WPI and that there is a “medical dispute” within the meaning of s 319 of the Workplace Injury Management and Workers Compensation Act 1998 which is capable of referral to a Medical Assessor. 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 27 March 2023 - Personal Injury. Body systems/parts: left upper extremity (elbow), and TEMSKI/scarring. Method of Assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Mr Mathew Stevens, the applicant, was employed by Shoalhaven Starches Pty Limited, the respondent.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained injury to his left arm whilst in the course of his employment with the respondent on 27 March 2023 when he tripped and struck his arm against a machine.
The applicant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for 11% whole person impairment (WPI) for impairment of his left upper extremity and TEMSKI/scarring.
The applicant underwent surgery at the hands of Dr Jarman, orthopaedic surgeon, on
3 April 2023.
In support of his claim for permanent impairment compensation the applicant relies on a report of Dr Geoffrey Rosenberg, orthopaedic surgeon, dated 18 March 2024 who assessed 11% WPI. The said assessment of impairment by Dr Rosenberg is the only assessment of impairment in evidence.
The respondent does not dispute that the applicant sustained the alleged injury. The respondent undercover of correspondence from its solicitors, Gair Legal, dated 8 May 2024 disputes the claim for impairment compensation on the basis that Dr Rosenberg has incorrectly calculated the degree of impairment. The respondent asserted that on the basis of the examination results recorded by Dr Rosenberg the applicant has a 9% WPI of the left upper extremity (elbow) and when combined with the 1% WPI which Dr Rosenberg assessed for TEMSKI/scarring the applicant has a combined impairment of 10% WPI which does not satisfy the threshold of “permanent impairment greater than 10%” contained in s 66(1) of the 1987 Act to have an entitlement to compensation for permanent impairment pursuant to s 66 of the 1987 Act.
Undercover of correspondence from the applicant’s solicitors, John McGuire & Associates, dated 27 May 2024 the applicant responded to the letter from Gair Legal dated 8 May 2024 advising that they did not agree with the respondents “assessment of the situation” advising that the applicant continued to rely on the opinion of Dr Rosenberg. The applicant did not provide any reasons as to why he did not agree with the respondent’s “assessment of the situation”.
The applicant seeks to have the matter referred to a Medical Assessor for assessment of permanent impairment. The respondent opposes such a referral on the basis that there is no assessment of impairment which satisfies the threshold of “permanent impairment greater than 10%” contained in s 66(1) to have an entitlement to compensation for permanent impairment pursuant to s 66 of the 1987 Act.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether there is a “medical dispute” within the meaning of s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) which is capable of referral to a Medical Assessor.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties have agreed to the determination of the matter without a conference or formal hearing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

SUBMISSIONS

Below is a brief summary of the submissions made in this matter.

Respondent’s submissions

The respondent submits that Dr Rosenberg has incorrectly calculated the left elbow impairment based on the recorded results of the doctor’s clinical examination. In particular that Dr Rosenberg measured a range of motion in respect to flexion of 95 degrees which
Dr Rosenberg equates to an upper extremity impairment (UEI) of 8%. The respondent submits that a range of motion in respect to flexion of 95 degrees equates to 7% UEI which when combined with the other range of motion assessments taken by Dr Rosenberg gives a total of 11% UEI and not the 12% UEI calculated by Dr Rosenberg.
Once combined with the assessment made by Dr Rosenberg for sensory deficit and pain of 4% UEI Dr Rosenberg calculated 16% UEI (12% UEI + 4% UEI) which Dr Rosenberg converted to 10% WPI. The respondent submits that the correct combined UEI is 15% (11% UEI + 4% UEI) which converts to 9% WPI.
Dr Rosenberg assessed 1% WPI TEMSKI/scarring finding a combined impairment of 11% WPI (10% WPI + 1% WPI). The respondent submits that the correct assessment is 10% WPI (9% WPI + 1% WPI).
On the basis that the combined assessment of Dr Rosenberg should in fact be 10% WPI it is submitted on behalf of the respondent that there is no assessment of impairment before the Commission which satisfies the greater than 10% WPI threshold contained in s 66(1) of the 1987 Act and therefore there is no valid claim for impairment compensation under s 66 of the 1987 Act. It therefore follows, in the respondent’s submission, that there is no “medical dispute” capable of referral to a Medical Assessor.
The respondent in support of its submissions referred to the decisions of Welsh v Dandan Management Services Pty Ltd [2022] NSWPIC 609 (Welsh); Woolworths Ltd v Stafford [2015] NSWWCCPD 36 (Woolworths); Bell v The Mining Pty Ltd [2023] NSWPIC 295 (Bell); Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128 (Abou-Haider); Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 (Sukkar); Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates); Yates v Flavorjen Pty Ltd [2022] NSWSC 388 (Yates) and Secretary, New South Wales Department of Education v Connolly [2023] NSWPICPD 38 (Connolly).
The respondent submits that remitting the matter for referral to a Medical Assessor where the evidence does not provide for a claim capable of being compensated due to the operation of s 66(1) is contrary to the relevant authorities and outside the scope of the jurisdiction of the Commission.

Applicant’s submissions

In the applicant’s submission the respondent has failed to take account of the distinction between the making of a claim and the outcome of the claim. The applicant submits that the applicant has complied with the requirements to make a valid claim and that the report of
Dr Rosenberg on which the applicant relies in support of his claim for impairment compensation expressly assesses 11% WPI.
In the applicant’s submission for the claim to be duly made it is only necessary that there be a report in accordance with the guidelines for the making of a claim. Whether or not the report is correct does not go to the question of whether the claim has been made but rather to the existence of a medical dispute. In the applicant’s submission the dispute should be resolved in the normal manner by reference to a Medical Assessor to assess the impairment and to issue a Medical Assessment Certificate.
In the applicant’s submission the respondent’s argument as to the interpretation of
Dr Rosenberg’s report does not go to whether a claim has been duly made but rather an argument as to the conclusion reached by Dr Rosenberg and is a dispute about the degree of permanent impairment. As such it is no different from any argument about the degree of impairment with such arguments often involving disputes about the accuracy of the clinical findings and whether the findings support the conclusion with respect to the degree of impairment.

FINDINGS AND REASONS

Section 319 of the 1998 Act defines a “medical dispute” as follows:
“In this Act—
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim—
(a)    the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b)    the worker’s fitness for employment,
(c)    the degree of permanent impairment of the worker as a result of an injury,
(d)    whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e)    the nature and extent of loss of hearing suffered by a worker,
(f)    whether impairment is permanent,
(g)    whether the degree of permanent impairment of the injured worker is fully ascertainable.”
There is no dispute as to the validity of the claim made by the applicant except as to whether a claim has been made for greater than 10% WPI due to the issues raised by the respondent in respect to the correctness of the assessment of permanent impairment made by
Dr Rosenberg.
For the following reasons I accept the applicant’s submission that whether or not the report of Dr Rosenberg is correct does not go to the question of whether the claim has been made but rather to the existence of a medical dispute.
The applicant under cover of correspondence from his solicitors, John McGuire & Associates, dated 24 April 2024 made a claim for permanent impairment compensation. The correspondence did not on its face detail the nature of the claim for permanent impairment compensation but rather enclosed a permanent impairment claim form and the report of
Dr Rosenberg dated 18 March 2024.
The permanent impairment claim form detailed a claim for permanent impairment compensation for 11% WPI identifying the body systems affected by the injury as upper extremity and scarring with a date of injury of 27 March 2023. Dr Rosenberg in his report of 18 March 2024 assessed a combined impairment of 11% WPI for impairment of the left upper extremity and scarring. The application to resolve a dispute which was filed with the Commission particularises a claim for permanent impairment compensation for injury sustained on 27 March 2023 for 11% WPI particularising systems claimed as left upper extremity and TEMSKI/scarring.
The documents relating to the claim for permanent impairment compensation clearly and consistently make a claim for 11% WPI for impairment of the left upper extremity and TEMSKI/scarring.
In effect it is the respondent’s submission that the merits of the applicant’s claim need to be considered to determine if a valid claim has been made and as to whether there is a “medical dispute” as defined by s 319 of the 1998 Act.
I turn now to the case law which the respondent has referred to in support of their submissions.
The matter of Abou-Haider involved an appeal concerning an application for additional lump sum compensation in respect of an undisputed injury to the thoracic spine. The issue was whether, in such an application, it is necessary for a worker to establish a deterioration in his or her condition since the initial claim before the matter can be referred for assessment by an Approved Medical Specialist (AMS) as they then were.
Mr Abou-Haider made a claim for impairment compensation in 2006. In support of that claim Mr Abou-Haider relied upon an impairment assessment of Dr Guirgis dated 25 June 2006.
Dr Guirgis assessments included an assessment of 7% WPI for the thoracic spine which was reduced to 6% WPI after deduction because of a pre-existing condition.
On 6 December 2006, the AMS, Dr O’Neil, had issued a Medical Assessment Certificate (MAC) in which he assessed the worker to have a 6% WPI as a result of an injury to the cervical spine and 0% WPI as a result of an injury to the thoracic spine. Consistent with the MAC, the former Workers Compensation Commission issued a Certificate of Determination on 4 January 2007 in which Mr Abou-Haider was compensated pursuant to s 66 of the 1987 Act for 6% WPI.
In a letter dated 5 February 2010 Mr Abou-Haidar’s solicitors made a claim for further permanent impairment compensation. In support of the claim a report of Dr Guirgis was relied upon which included an assessment of 5% WPI of the thoracic spine.
At first instance Arbitrator Wynyard (as he then was) found on the basis of the assessments of the thoracic spine by Dr Guirgis that the worker had “failed to prove any increase” and made an award for the employer.
On appeal Roche DP observed at [53] that the issue in dispute was whether the applicant;
“has to establish a deterioration in his condition before such a claim can be referred to an AMS for assessment and, if so, whether the deterioration is a deterioration relative to the assessment by Dr Guirgis, the 2006 assessment by the AMS, or the date of the Certificate of Determination issued on 4 January 2007.”
Roche DP stated at [54]:
“An arbitrator’s task is to determine injury and other liability issues. Once that is done, the question of the extent of any whole person impairment as a result of the injury is a matter for an AMS. The insurer conceded that Mr Abou-Haider injured his thoracic spine but disputed his entitlement to lump sum compensation. That gave rise to a medical dispute within the meaning of s 319. As the only issue in dispute was and is the extent of the Mr Abou-Haider’s whole person impairment as a result of an accepted injury, that question cannot be determined by the Commission but must be assessed by an AMS.”
Roche DP at [62] stated:
“Mr Flett’s submissions have invited me to engage in an assessment of the merits of
Mr Abou-Haider’s claim for lump sum compensation. In circumstances where the only compensation claimed is lump sum compensation in respect of an accepted injury, the legislation has reserved the assessment of such claims (where there is a medical dispute) to AMS’s. Once a worker has properly made a claim, and liability issues have been determined, there is no need for a worker to establish a plausible case of a deterioration.”
At the time of the determination of Mr Abou-Haider’s claim by the Workers Compensation Commission an Arbitrator did not have the power, where there was a dispute about the degree of permanent impairment, to award permanent impairment compensation unless the degree of permanent impairment had been assessed by an AMS. This restriction was imposed by s 65(3) of the 1987 Act which has since been repealed.
The decision in Abou-Haider does not assist the respondent with Roche DP specifically declining the respondent’s invitation “to engage in an assessment of the merits of Mr Abou-Haider’s claim for lump sum compensation”.
In Stafford the appeal concerned changes to the recovery of permanent impairment compensation introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act). The appeal concerned the meaning of the word “claim” in s 66(1A) of the 1987 Act.
Roche DP stated:
“[58] For the reasons explained below, applying the above principles in the present matter, and interpreting ‘claim’ in its proper context, leads to only one conclusion, namely, that it was open to the Arbitrator to find that a ‘claim’ in s 66(1A) imports more than a ‘mere demand for payment but rather is to be read as referring to a claim made in accordance with the 1987 and 1998 Acts’. Further, as the Arbitrator determined, a ‘claim for compensation’ means a claim for compensation that is capable of payment in accordance with the 1987 Act.
[59] The above summary of the legislation and Guidelines demonstrates that, in the context of Ch 7, a ‘claim’ is, as was observed by Basten JA in Tan v National Australia Bank Ltd [2008] NSWCA 198 (Tan) at [43], ‘a means of providing certain information’. In other words, the making of a ‘claim’ provides the trigger for the operation of the ‘New Claims Procedures’ in Ch 7 of the 1998 Act. In that context, it is simply a demand for compensation that a person has made or is entitled to make.
[60] Once a worker makes a demand for compensation, then, assuming that certain procedural requirements have been met, specific obligations arise and the employer and the insurer must take certain steps. The primary purpose of those steps is to ensure s speedy and efficient resolution of the claim, or, if the claim cannot be resolved, the prompt referral of the dispute to the Commission for determination, or, if there are no liability issues, for assessment by an AMS. Thus, in Ch 7, a claim is merely the first procedural step in the dispute resolution process.”
Roche DP at [64] observed:
“However, s 66 of the 1987 Act is quite different to the provisions in Ch 7 of the 1998 Act. Appearing in Pt 3 of the 1987 Act, it is the substantive provision that provides for the recovery of compensation for permanent impairment, but only if the degree of permanent impairment is greater than 10 per cent.”
Mr Stafford had originally claim compensation for 7% WPI. A claim which did not satisfy the threshold of greater than 10% to be eligible for permanent impairment compensation. At [66] Roche DP observed that the claim was “not a valid claim because it was not capable of payment in accordance with the 1987 Act”. At [67] Roche DP observed that “Such a claim is not permitted under s 66(1)” as it did not give “rise to an entitlement to permanent impairment compensation, it being under the greater than 10 per cent threshold”.
Roche DP went on to state:
“[72] Third, the definitions of ‘claim’ and ‘compensation’ strongly favour the conclusion I have reached. That is because a ‘claim’ for permanent impairment compensation is, by definition, a claim for a ‘monetary benefit under’ the legislation. A monetary benefit under the legislation is compensation that is paid or payable. If the claim cannot succeed, because it is under the s 66(1) threshold, it cannot be a ‘claim’ for monetary benefit under the Act. That is because, in respect of the claim, no compensation is payable.
[73] Different considerations would apply if a worker made a claim for permanent impairment compensation based on an 11 per cent whole person impairment, but an AMS assessed the impairment at 10 per cent and issued a valid MAC to that effect. In that situation, the claim would fail and there would be an award for the employer…..
[74] The claimant described in the preceding paragraph will have made ‘one claim’ for permanent impairment compensation and could not bring a second claim. That is because the claim for 11 per cent permanent impairment was a valid claim that, if an AMS had made the same or higher assessment of whole person impairment, would have resulted in the recovery of permanent impairment compensation, assuming there were no liability issues preventing the recovery of compensation.”

The decision in Stafford does not assist the respondent. In the current matter the applicant’s claim of 11% WPI satisfies the threshold of greater than 10% WPI to be eligible to receive permanent impairment compensation pursuant to s 66 of the 1987 Act and therefore was a claim capable of payment.
In Sukkar the applicant made a claim for permanent impairment compensation for an additional 9% WPI arising from hearing loss. Mr Sukkar had previously been compensated for 12.9% binaural hearing loss. One of the issues in dispute was whether the Mr Sukkar could aggregate the previous impairment for which he had been compensated for with the claim for additional permanent impairment compensation for the purposes of determining whether or not the greater than 10% WPI threshold in s 66(1) of the 1987 Act had been exceeded. McColl JA stated at [78]:
“The current claim was for nine per cent whole person impairment which did not satisfy the s 66(1) threshold. Subject to the aggregation argument, the current claim was prohibited.”
The above observation of McColl JA was consistent with the reasoning of Roche DP in Stafford.
In the matter of Skates, Mr Skates sought leave to appeal from a judgment of the Supreme Court reviewing a decision of the Appeal Panel of the then Workers Compensation Commission determining a medical dispute as to the degree of permanent impairment resulting from certain injuries. The issue was whether the AMS to whom the medical dispute was initially referred was confined to an assessment of the “body parts” specified in the referral form completed by a delegate of the Registrar of the Workers Compensation Commission. The insurer conceded that the referral to the AMS should have included the left wrist however the Appeal Panel did not give effect to that concession, considering itself bound by the terms of referral.
Basten JA observed at [27] that the claim for lump sum compensation under s 66 of the 1987 Act was “not at large.” The claim was made with respect to a specific injury which occurred in the course of employment on a specific date. The form of the Application to Resolve a Dispute required identification of the date of the injury, a description of the injury, and a description of how the injury occurred. The injury description referred to injury to the left wrist, ring finger and scarring. The description of how the injury occurred also relevantly referred to the left wrist injury. Part 5.6 of the form which covered the “body parts/systems” in respect to which permanent impairment was claimed was not in precisely the same terms set out earlier in the application not particularising the left wrist recording “Left upper extremity, joint ring finger and scarring”. The medical reports with the application did relevantly refer to specific injuries to the left wrist and hand. The insurer admitted liability for these injuries. Basten JA stated at [30]:
“As the primary judge found, this material defined the proper scope of the referral. However, the referral by the Registrar omitted reference to the left wrist. The insurer accepted that this was an error, as was noted by the Appeal Panel. However, the Appeal Panel did not see fit to include an assessment of the wrist in its review.”
At [31] Basten JA observed that the “claim was in fact wider than the referral in that it extended to the left wrist”.
The decision in Skates does not assist the respondent. Whilst Basten JA observed that a claim for lump sum compensation under s 66 of the 1987 Act was “not at large” his Honour also identified the documents by which the scope of the claim and the resulting dispute was defined. In the current matter the documents making the claim all on their face relate to a claim for 11% WPI. The decision in Skates provides no support for the contention that the merits of the claim also need to be examined.
Yates involved a judicial review of a decision of an Appeal Panel of the Commission. The central issue in the matter was the scope of the medical dispute.
Harrison AsJ considered and applied the decision in Skates stating at [58]:
“All of the judges were of the view that the role of the AMS was to make an assessment to resolve the dispute between the parties. The dispute was to be determined by reference to the claim, the medical evidence relied upon and the ARD. The Registrar’s only power was to refer that dispute. The Registrar did not have the power to otherwise constrain the AMS when performing their role…”
Harrison AsJ concluded at [62]:
“Under the statutory scheme, the Registrar only has the power to refer the dispute. The Registrar does not have the power to determine questions of injury or to determine any aspect of the dispute. Accordingly, to the extent that any referral is inconsistent with the medical dispute between the parties, it is the terms of the dispute which prevail and not the terms of the referral form. This much is clear from their Honours’ reasoning in Skates.”
At [71] Harrison AsJ observed:
“The delegate did not have the power to redefine the dispute or to refer a different dispute for assessment. The delegate’s only power was to refer the dispute which existed between the parties.”
The decision in Yates also does not assist the respondent with Harrison AsJ considering and applying the decision in Skates which as previously discussed does not assist the respondent.
The matter of Welsh involved a claim for impairment compensation pursuant to s 66 of the 1987 Act for effectively 17% WPI in respect to impairment of the right lower extremity (ankle, hip, thigh, knee and calf) and TEMSKI/scarring. The issue for determination was whether the injury to the applicants’ right ankle formed part of the medical dispute to be referred to the Medical Assessor pursuant to s 319 of the 1998 Act. In support of his claim Mr Welsh relied on two reports of Dr Lee which were silent as to any assessed impairment of the right ankle. There were no other assessments of impairment in respect to the right ankle.
In Welsh Member Whiffin observed at [48] that a “medical dispute” as defined by s 319 of the 1998 Act can only occur once a “claim is made” and at [49] that a respondent is only required to determine a claim for lump sum compensation once relevant particulars have been provided. The relevant particulars include full details of all impairments arising from the injury. As there was no assessment of impairment of the right ankle arising from the injury Member Whiffin concluded at [50] that there was no arguable case by the applicant that he had provided any relevant particulars of any impairment to his right ankle arising from his injury and therefore at [51] the respondent was not required to determine any claim in respect to the right ankle.
Member Whiffin at [51] stated:
“A medical dispute can only arise therefore in relation to an impairment identified in the letter of claim that the respondent has either disputed or failed to make a decision in relation to.”
Applying Abou-Haidar and Stafford Member Whiffin concluded at [54] that Mr Welsh had not supported his claim for impairment compensation with an “impairment assessment in the proper form” and had therefore not made a claim for lump sum compensation with respect to the right ankle.
Member Whiffin found at [69]:
“There can be no medical dispute regarding any impairment to the applicant’s right ankle as there has been no valid claim made regarding any such impairment.”
In the current matter, unlike in the matter of Welsh, there is no dispute that a claim has been made for permanent impairment in respect to the relevant body systems.
In Bell an issue arose as to whether a consequential physical condition in respect to the endocrine system could be referred to Medical Assessor for assessment of permanent impairment when the assessment relied upon by the applicant for the endocrine system was 5% WPI. In addition to the impairment arising as a result of the consequential condition of the endocrine system the applicant claimed permanent impairment compensation for psychological injury relying on an assessment of 19% WPI. The applicant sought to aggregate the two assessments.
The applicant conceded that if the Commission was against him in respect to the consequential physical condition and the psychological condition being able to be aggregated then the physical condition should not be referred to a Medical Assessor as the greater than 10% WPI threshold had not been reached.
Member Homan determined that the physical and psychological conditions could not be aggregated for the purposes of claiming permanent impairment compensation. Citing the decisions in Abou-Haider and Stafford as well as the applicant’s concession Member Homan found that there was no basis to refer the endocrinological condition to the Medical Assessor for impairment assessment there being no evidence in respect to the endocrinological condition of an impairment of greater than 10%.
The decision in Bell does not assist the respondent. The claim particularised by Mr Steven’s satisfies the greater than 10% WPI threshold to claim permanent impairment compensation.
In Connolly the applicant made a claim for permanent impairment compensation for 26% WPI. The letter of claim did not particularise the body parts for which permanent impairment compensation was being sought but attached a report of Dr Patrick. The impairment assessments of Dr Patrick included 0% WPI in respect to scarring and 18% WPI cervical spine and 10% WPI in respect to the left shoulder. A Medical Assessor assessed 0% WPI in respect to the right shoulder finding that the symptoms were due to a neurological condition and assessed 1% WPI in respect to scarring but as scarring was not part of the referral did not include the assessment for scarring in the overall assessment.
Mr Connolly sought a reconsideration on the basis that there was an error in the Medical Assessor’s finding of no injury to the left upper extremity (shoulder). It was submitted that on the basis of his clinical findings the Medical Assessor was “obligated” to assess impairment arising as a result of scarring and occipital neuralgia.
President Judge Phillips at [76] referring to the decision Skates noted that Basten JA had stated that “The short explanation is that the jurisdiction of the Commission in relation to a claim for lump sum compensation under s 66 of the [1987 Act] was not at large.”
In Skates Basten JA observed that a claim had been made with respect to a specific injury. The injury description in the Application to Resolve a Dispute included injury to the left wrist however the claim for permanent impairment compensation in the Application to Resolve a Dispute referred to left upper extremity, joint ring finger and scarring without referring to the left wrist. The medical reports referred to specific injury to the left wrist and hand. President Judge Phillips at [77] observed that Basten JA stated “[as] the primary judge found, this material defined the proper scope of the referral.” Basten JA then granted the appeal, remitting the matter with the direction that the further referral to the Medical Assessor should identify the left wrist.
In Connolly President Judge Phillips concluded in accordance with Skates that neither the scarring nor occipital neuralgia formed part of the medical dispute notified in the matter. The applicant had made no claim for scarring and occipital neuralgia until after the MAC had been issued.
The decision in Connolly does not assist the respondent. As previously discussed the decision in Skates which was considered and applied by President Judge Phillips in Connolly does not assist the respondent. Mr Steven’s has particularised a claim for the relevant body parts/body systems.
I am of the view that the authorities cited by the respondent in support of its submissions do not assist the respondent. There is no dispute as to the validity of the applicant’s claim except to the extent that the respondent submits that the assessment of permanent impairment calculated by Dr Rosenberg contains an error and in fact should have been 10% WPI rather than the assessed 11% WPI. The authorities support that the parameters of the dispute are defined by the documents exchanged by the parties including the letter of claim, the medical evidence and any Application to Resolve a Dispute. Whilst the medical evidence can be considered for the purposes of identifying whether there is an assessment of permanent impairment which founds a valid claim for compensation, the authorities do not support that such consideration extends to the merits of the permanent impairment assessment.
I therefore find that the applicant has made a valid claim for 11% WPI and that there is a “medical dispute” within the meaning of s 319 of the 1998 Act which is capable of referral to a Medical Assessor.

Given the above finding and as there is no other dispute in respect to liability, I will remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act.

[2024] NSWPIC 496

6 September 2024