The Star Entertainment Group Ltd v Samaan - [2023] NSWPICPD 50

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	The Star Entertainment Group Ltd v Samaan [2023] NSWPICPD 50
APPELLANT:	The Star Entertainment Group Ltd
RESPONDENT:	Mamdoh Monir Sabet Samaan
INSURER:	Self-insured
FILE NUMBER:	A1-W1730/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	18 August 2023
ORDERS MADE ON APPEAL:	1. The appellant is granted leave to appeal the Member’s Decision dated 23 August 2022 pursuant to s 352(3A) of the 1998 Act. 2. The time for the lodging of the appellant’s appeal is extended to 23 September 2022 pursuant to s 353(4)(b) of the 1998 Act. 3. The Certificate of Determination dated 23 August 2022, as amended 30 August 2022, is revoked. 4. The matter is remitted to another member in the Workers Compensation Division to hear the dispute in accordance with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – referral to a medical assessor for an assessment of permanent impairment – s 293 of the Workplace Injury Management and Workers Compensation Act 1998 – Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L King SC, senior counsel
Hall & Wilcox
Respondent:
Mr J Jobson, counsel
Gergis Solicitors
DECISION UNDER APPEAL
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	23 August 2022, as amended on 30 August 2022

INTRODUCTION AND BACKGROUND

Mamdoh Monir Sabet Samaan, the respondent, was employed by The Star Entertainment Group Ltd, the appellant, as a cleaner. On 9 July 2014 the respondent was working for the appellant and while using a backpack vacuum cleaner, he bent under a table and chairs, suffering injury to his lumbar spine. Whilst the appellant did not contest injury, the appellant subsequently denied ongoing liability for weekly compensation and medical related treatment on 29 June 2015 on the grounds that the effects of the accepted injury had ceased.[1] This denial relied on the independent medical opinion of Dr James Vote, orthopaedic surgeon, who initially diagnosed the respondent with an aggravation of pre-existing degenerative disc disease in the lumbar spine by way of a “probable small central disc prolapse at L4/5”.[2] As of 18 May 2015, some 9 months after the incident, Dr Vote reported that the respondent’s symptoms were “mainly” related to the underlying degenerative condition,[3] and thus, liability was declined by the insurer.
[1] Notice issued pursuant to the since repealed s 74 of the Workplace Injury Management and Workers Compensation Act 1998 in Application to Admit Late Documents (AALD), 14 June 2022, p 1.
[2] Dr Vote’s report dated 14 August 2014, AALD, 14 June 2022, p 8.
[3] Dr Vote’s report dated 18 May 2015, AALD, 14 June 2022, p 22.
The respondent’s employment with the appellant ended in 2016. On 13 May 2020, the respondent underwent spinal surgery, specifically a discectomy, rhyzolysis and decompression at L4/5 and L5/S1 levels, performed by Dr Jaeger.[4] This all took place before the commencement of these proceedings in the Personal Injury Commission (the Commission).
[4] Application to Resolve a Dispute (ARD), p 18.
The respondent made a claim for permanent impairment compensation on the appellant on 15 February 2021, claiming 21 per cent whole person impairment (WPI) relating to the lumbar spine, scarring, urinary and reproductive systems. The respondent relied on the independent medical report of Dr Medhat Guirgis, consultant orthopaedic surgeon, dated 5 February 2021.[5] The appellant denied liability on 27 May 2021 in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), on the basis that the respondent was not suffering from any assessable impairment as the injury to the lumbar spine had resolved shortly after the incident, thus failing to reach the threshold of at least 10% WPI required for an entitlement to lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act).[6] The appellant relied on the independent medical opinion of Dr David Millons, general surgeon, in a report dated 10 May 2021.[7] In this report, Dr Millons confirmed the diagnosis of an aggravation of degenerative changes at the L4/5/S1 levels as a result of the incident, but concluded that the surgery conducted by Dr Jaeger treated the respondent’s underlying condition. The doctor did not consider the respondent’s symptoms continued to relate to the aggravation, and also did not believe the scarring claimed attracted a level of impairment or that he was appropriately qualified to assess the urinary tract/reproductive system.
[5] ARD, p 17.
[6] ARD, p 12.
[7] Reply to ARD, p 9.
Commission proceedings were then commenced. In the Application to Resolve a Dispute (ARD), the dispute identified was “lump sum compensation where degree of permanent impairment is in dispute”. The matter was allocated to the Member who made the following directions on 23 June 2022, after a teleconference during which the appellant argued that it was not liable for the cost of surgery, or scarring, and that the resolution of the aggravation injury was a “bar to the claim for lump sum payments”[8]:
“The Commission directs:
1. The parties are to lodge and serve written submissions by 4 July 2022 as to the following:
(a) whether there is any impediment to the claim for lump sum compensation with regard to the lumbar spine being referred to a Medical Assessor in view of the admission of liability made by Dr Vote and Dr [Millons];
(b) is there any impediment to the matter being assessed by a Medical Assessor as to the scarring caused by surgery on Mr Samaan’s lumbar spine on 13 May 2020.”
[8] Samaan v The Star Entertainment Group Ltd [2022] NSWPIC 471 (reasons), [18].
The parties supplied written submissions and the Member then issued a Certificate of Determination dated 23 August 2022 (amended on 30 August 2023) remitting this matter to me for referral to a medical assessor for an assessment of whole person impairment with respect to the lumbar spine. I note the other body parts claimed, being the scarring and urinary/reproductive tract, did not form part of this referral. It is from this interlocutory decision that the appellant appeals.
As will become evident, this appeal is relatively confined and challenges firstly whether the Member had the authority to decide the question of the referral, and secondly, if he was seized of that power, the appellant says it was a discretionary exercise of power which miscarried.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC 2 – Determination of matters ‘on the papers', and WC 3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There are three threshold matters that arise in this appeal. Firstly, the appeal is against an interlocutory decision and as a consequence leave is required under s 352(3A) of the 1998 Act. Secondly, there is a possible view that the appeal was filed one day late thus requiring the indulgence of the Commission under s 352(4)(b) of the 1998 Act. Thirdly, the respondent asserts that the s 352(3) of the 1998 Act thresholds are not satisfied.
In terms of the s 352(3A) requirement for leave to appeal, this can be dealt with very shortly. This is an argument about whether the respondent worker’s claim for lump sum compensation should be referred to a Commission medical assessor for assessment. The appellant says the matter ought not be referred until primary liability for the injury has been decided, the respondent worker argues that the claim should be referred regardless. The power under s 352(3A) of the 1998 Act is to grant leave if it is necessary or desirable for the proper and effective determination of the dispute. In my view leave should be granted. The appellant’s argument has merit and if successful, may have the result of saving the cost and delay associated with what may be an otiose medical assessment by one of the Commission’s medical assessors. Given the issues which this appeal has raised, the proper and effective determination of this dispute dictates that this appeal be decided. I grant the appellant leave to appeal pursuant to s 352(3A) of the 1998 Act.
Secondly, I refer to the appellant’s submissions dated 21 and 22 September 2022 seeking an extension of time in which to file the appeal. I would note that the respondent makes no submission on this issue. I have considered the appellant’s submissions, but for the purposes of this decision do not repeat them. The compliant appeal papers were accepted one day late, (on one view). I accept that the appellant was working diligently to file the appeal and that there is neither prejudice to, nor opposition from, the respondent on this issue. Pursuant to s 352(4)(b) of the 1998 Act, I extend time for the appellant to file its appeal to 23 September 2022.
Thirdly, I note the respondent’s amended submission to this appeal at paragraph [12] argues that the appellant has not made any submission on monetary thresholds, which is a reference to the thresholds provided for in s 352(3) of the 1998 Act. The respondent says that the threshold is not met and there can be no appeal. The appellant has dealt with this issue in its submissions.[9]
[9] Appellant’s submissions, 21 September 2022, [5].
Given the nature of an interlocutory decision, for example a refusal to admit documents or a referral to a medical assessor as in this matter, the requirement found in s 352(3)(b) may seldom be satisfied in the case of an interlocutory appeal. I agree with the appellant that the better view is that s 352(3A) applies to appeals against interlocutory decisions and the requirements contained therein specify what needs to be satisfied. The requirement that leave be granted is the sole gateway through which an appeal against an interlocutory decision must pass. In contrast, s 352(3)(a) and (b) of the 1998 Act specifies the requirements to be met for other appeals. There is therefore no threshold issue which would inhibit me from determining this appeal.

THE MEMBER’S REASONS

As I have noted, the Member invited written submissions from the parties in respect of whether there was “any impediment” to the claim for lump sum compensation being referred for medical assessment noting the “admission of liability” of Dr Millons and Dr Vote with respect to the injury sustained. The premise of this direction for written submissions, whilst not entirely clear, appears to follow the Member’s path of reasoning at [18] and [19] where he states:
“At teleconference, the [appellant] argued that it was not liable for the cost of surgery, nor for the claim for scarring. Moreover, it continued to claim that the alleged resolution of the aggravation was a bar to the claim for lump sum payments.
I accordingly made the above direction that written submissions be filed.”
The Member recounted that liability had initially been accepted for the respondent’s lumbar spine injury, and subsequently declined with reference to Dr Vote’s opinion of 18 May 2015 in which the doctor stated:
“I would consider at this point in time, nine months after his incident at work, Mr Samaan's problems at this point relate mainly to underlying degenerative change with a minimal input if any from the incident involving vacuuming”.[10]
[10] Reasons, [14].
The Member observed that since this initial declinature of liability, the respondent had taken no action to prosecute his claim other than the current claim for lump sum compensation, which had been declined on the basis of Dr Millons’ report of 10 May 2021.[11] The Member specifically extracted of this part of Dr Millons’ report:
“In the incident with the backpack vacuum cleaner on 8 July 2014, Mr Samaan appears to have been leaning over a lot, vacuuming under tables. There could have been some aggravation of the degenerate changes in the lower lumbar region but there does not appear to have been an [sic] particular disruptive pathology.
One would have hoped that, within a few months at most, any aggravation of the changes that are present in his back would have settled and any ongoing problems would relate to the normal activities of daily living playing on those attritional changes. I feel that that is probably the most appropriate diagnosis.
…
Constitutionally based degenerate changes L4/5/S1. Aggravated by the normal activities of daily living over a three months [sic] period prior to the incident on 9 July 2014.
There appears to have been an aggravation of those changes in the incident that day which had him off work for a very long time. One would have thought that any aggravation should have settled within a few months at most. He claims it did not …”[12]
[11] Reasons, [15].
[12] Reasons, [16].
The Member considered the written submissions filed by the appellant, who argued that the Commission had authority, in some cases, to determine claims for lump sum compensation without referral to a medical assessor, following the Workers Compensation Legislation Amendment Act 2018 (the 2018 amendments). It was submitted that these amendments affected various authority in respect of the jurisdiction of a medical assessor to determine WPI, with reference to Jaffarie v Quality Castings Pty Ltd[13] and Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd,[14] however Jaffarie remained to be authority that the Commission had jurisdiction to determine the “nature of the injury”. The appellant submitted that the Member was required to examine the pathology and surgery conducted as liability had not been accepted, arguing that the pathology causing the need for surgery was a “consequential condition”, and liability had only been conceded for an injury in the nature of the aggravation of a pre-existing condition in the lumbar spine. It was submitted that s 293 of the 1998 Act precluded a dispute involving the aetiology of a condition from being referred to the medical assessor. The Member understood the appellant to thus be submitting that the Commission was required to determine whether the “consequential condition” resulted from the subject injury, or formed “the nature of the injury”.[15]
[13] [2018] NSWCA 88 (Jaffarie).
[14] [2014] NSWCA 264 (Bindah).
[15] Reasons [20]–[25].
The Member briefly noted that the respondent did not consider there to be any impediment to referral of the claim to a medical assessor. While the Member did not recount these submissions, the crux of them is as follows – the s 78 notice of 28 May 2021 admitted that the respondent had sustained injury, and this superseded the prior dispute notice. Notwithstanding, the dispute notice of 26 June 2015 did not deny injury, nor was any denial supported by the opinion of Dr Vote. The respondent made reference to prior Practice Direction 11 of the Workers Compensation Commission and submitted that Jaffarie supported the proposition there was no dispute of liability that required determination by the Commission in the present case prior to referral to a medical assessor. In respect of the question of scarring, the respondent submitted that there was also no impediment for this to be referred to a medical assessor, noting that the determination of such a medical dispute was a matter for a medical assessor as the “Commission has no power in this matter”.[16]
[16] Respondent’s submissions before the Member, 30 June 2022.
In reply, the appellant maintained that a referral to a medical assessor could not take place until the consequential condition and scarring had been determined, and noted that the applicable Practice Direction before the Commission was now Procedural Direction PIC 6 – Medical assessments (PD PIC 6). Specifically, [23] and [25] of this Procedural Direction state:
“23. A liability dispute in relation to a claim for permanent impairment compensation must be resolved, either by agreement between the parties or determined by a member of the Commission, before the degree of permanent impairment is assessed.
…
25. A dispute in relation to the degree of permanent impairment may be referred to a member for conciliation, in appropriate circumstances. If the matter remains unresolved, a member may determine the dispute in accordance with the evidence. Alternatively, the member may refer the matter to a medical assessor for assessment.” (appellant’s emphasis)
The Member ultimately accepted with the respondent’s submissions that there was no impediment to the matter being referred for medical assessment. The Member referred to the 2018 amendments with respect to medical assessments, namely, s 65 of the 1987 Act, s 293 of the 1998 Act, the former s 321 and the current s 321A of the 1998 Act. The Member noted that s 65, on amendment, removed the provision (s 65(3)) which restricted the Commission from awarding permanent impairment unless it had been assessed by a medical assessor. The Member noted that that s 321A replaced a former s 321 (“Referral of a medical dispute for assessment”) which had contained a specific provision (s 321(4)(a)) stipulating that a medical dispute concerning permanent impairment may not be referred for medical assessment where liability is in issue and has not been determined by the Commission. Provisions of the same kind existed in the prior s 293(3)(a) of the 1998 Act but are no longer in the current s 293. The Member noted that s 321A now governs the “Referral of a medical dispute concerning permanent impairment”, which allowed “regulations” to make provisions in respect of when a medical assessment may or may not be referred for assessment, including where liability is in issue and has not been determined by the Commission (see s 321A(2)). The Member pointed out, however, that no such regulations had been promulgated to give effect to s 321A.[17]
[17] Reasons, [28]–[34].
The Member rejected the appellant’s submission “that the term ‘nature of injury’ extends jurisdiction to a member to assess an applicant’s medical condition”.[18] While the Member considered that the 2018 amendments provided the Commission with power to make decisions regarding lump sum compensation, he considered they did not provide the power to determine medical disputes, and referred to the decision of Parker SC ADP of Shankar v Ceva Logistics (Australia) Pty Ltd,[19] which the Member believed to be consistent with [25] of PD PIC 6, which provided for conciliation of disputes in relation to the degree of permanent impairment only “in appropriate circumstances”.[20]
[18] Reasons, [35].
[19] [2021] NSWPICPD 18 (Shankar).
[20] Reasons, [38]–[39].
The Member rejected the appellant’s submission that the 2018 amendments affected the authority of Jaffarie and Bindah.[21] Although the Member accepted that the Commission has exclusive jurisdiction to determine the nature of an injury in accordance with Jaffarie at [80], in considering the appellant’s submission that this canvassed injury as it related to surgical treatment and scarring, the Member “was unable to follow” the respondent’s argument that “such pathology is essentially in the realm of a consequential condition”.[22] The Member held that surgery was “no more than a form of treatment for the injury”, which was agreed by the doctors to consist of the aggravation to a pre-existing degenerative back condition. The Member thus rejected the respondent’s argument that there was an impediment to the claim being referred to a medical assessor for the lumbar spine and scarring, finding at [42] that:
“The causal nexus of treatment was plain, subject to the view of the [medical assessor] as to whether the aggravation had ceased by the time surgery took place some six years after the occurrence of the injury. That issue is clearly a medical dispute, as it pertains to the degree of permanent impairment of the worker as a result of an injury, as required by s 326(1)(a)”.
[21] Reasons, [37].
[22] Reasons, [41].

The Member held that there was “no legal basis on which not to make a referral”, and thus issued a Certificate of Determination on 23 August 2022, subsequently amended on 30 August 2022 to correct an error in the original document, which is not relevant for present purposes. The Amended Certificate issued on 30 August 2022 records:
“1. I remit this matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases:
(a) Date of Injury: 9 July 2014
(b) Matter for Assessment: Lumbar Spine
(c) Evidence:
(i) application to Resolve a Dispute and attached documents;
(ii) [appellant’s AALD] containing the reply and attached documents dated 19 April 2022, and
(iii) [appellant’s AALD] and attached documents dated 14 June 2022.”

GROUNDS OF APPEAL

The appellant relies on four grounds of appeal:
Ground One: The Member erred in proceeding upon the basis that he had power or jurisdiction to decide whether a medical assessment should take place.
Ground Two: The Member erred in deciding that he had power or jurisdiction to remit the matter to the President “… for referral to a medical assessor for an assessment of Whole Person Impairment …”
Ground Three: Alternatively or in addition to Ground Two, the Member erred in purporting to decide that it was open to him to make a determination committing the President to make a “… referral to a Medical Assessor for assessment of Whole Person Impairment …”
Ground Four: Alternatively to Grounds One–Three, if the Member had power or jurisdiction to decide whether a referral for medical assessment should take place:
(i) He erred in not treating his power as a discretionary one; or
(ii) If he did not so err, his discretion miscarried in that he failed to take account of all relevant surrounding considerations and circumstances and restricted himself to what was an irrelevant antecedent matter, namely the existence of a power of referral.

LEGISLATION

It is necessary to consider the legislative provisions relevant to the referral of a matter for medical assessment, as follows.
Section 293 of the 1998 Act provides:
“293 Medical assessment
(1)     When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the President may (subject to the regulations under section 321A (Referral of medical dispute concerning permanent impairment)) refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(2)     (Repealed)
(3)     The President may not refer for assessment—
(a) (Repealed)
(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
Section 321A of the 1998 Act provides:
“321A Referral of medical dispute concerning permanent impairment
(1)     The regulations may make provision for or with respect to—
(a) the circumstances in which a medical dispute concerning permanent impairment of an injured worker is authorised, required or not permitted to be referred for assessment under this Part, and
(b) the giving of notice of a referral to the parties to the dispute.
(2)     Without limiting subsection (1), the regulations may provide that a medical dispute may not be referred for assessment under this Part if the dispute concerns permanent impairment of an injured worker where liability is in issue and has not been determined by the Commission.
(3)     A medical dispute concerning permanent impairment of an injured worker that is authorised or required by the regulations to be referred for assessment under this Part may be referred by a court, the Commission or the President, either of their own motion or at the request of a party to the dispute.”

DISCUSSION

Before turning to the appeal grounds, it is worth remarking upon what transpired before the Member. The Member issued a Direction on 23 June 2022 (set out in paragraph [4] above), which invited submissions on two issues. In each question the Member sought views on whether there were any “impediments” with respect to the proposed referral to a medical assessor. The appellant, I think quite correctly, states that it “is not clear exactly what ‘impediment’ was taken to mean”.[23] The Member does refer to this in his decision at [18] and [19], but this is obviously after the Direction had been responded to. This is borne out in fact by virtue of the different approaches to answering the 23 June 2022 Direction taken by both parties. The respondent was firmly of the view that there was no impediment and that the “determination of a medical dispute is to be resolved by way of a medical assessor”.[24] The appellant submitted that the Member was precluded from referring the dispute until causation for what it had described as consequential conditions had been determined. As I have described above, the Member accepted the respondent’s submission that there was “no impediment to the claim being referred to the [medical assessor]”[25] and that this was a medical issue requiring “the application of medical expertise to determine”.[26]
[23] Appellant’s submissions, 21 September 2022, [2].
[24] Respondent’s submissions before the Member, 30 June 2022, citing Jaffarie.
[25] Reasons, [26].
[26] Reasons, [43].

As to Grounds One, Two, Three and Four

The parties accept that all four appeal grounds essentially rely upon the submissions advanced in Ground One. So, it is convenient to deal with all four grounds together.
The appellant asserts that the Member had no power to bring about the referral to the medical assessor. The appellant submits:
“If the Member was deciding on a discretionary basis that a referral should happen, such a decision was not for him but only for the President pursuant to s 293 [of the 1998 Act]. To the extent that part of the Member’s determination was to remit the matter to the President he recognised that, but read as a whole his determination is inconsistent with an acceptance that it was for the President to decide whether there should be a referral.”[27]
[27] Appellant’s submissions, 21 September 2022, [8].
The appellant says that the decision was beyond the Member’s power, purporting to compel the President to order a referral. As an alternate argument, the appellant contends that even if the Member had the power, its nature was discretionary and the exercise of discretion miscarried. In terms of Procedural Direction PIC 6 – Medical assessments (PD PIC 6), the appellant submits that PD PIC 6 is inconsistent with the legislation and thus struck down by s 21(a) of the 2020 Act. Pausing here, I assume that the reference to s 21(a) of the 2020 Act is meant to be a reference to s 21(2)(b) of the 2020 Act which states that procedural directions must be “consistent with this Act and enabling legislation” (which is defined in s 5 of the 2020 Act).
The respondent submits that the appellant has not given “any valid reasoning that the Member acted beyond his jurisdiction”.[28] The respondent says power existed in PD PIC 6 and in s 321A of the 1998 Act and that the Member’s decision adverted to all necessary discretionary factors. The respondent also states that the Member “determined the dispute in accordance with the evidence.”[29]
[28] Respondent’s amended submissions, 3 November 2022, [3].
[29] Respondent’s amended submissions, 3 November 2022, [7].
In reply, the appellant says that the respondent has not engaged with the argument. The debate, the appellant maintains, is not whether a referral may be sought, rather it is about whether one should be ordered and by whom.

CONSIDERATION

The decision reached by the Member was essentially a by-product of how he had characterised what he had been called upon to decide in his Direction dated 23 June 2022. In short, this Direction sought the answer to a fundamental question of whether the Member had the power to do what he was being asked to do by the respondent. It is clear from the Member’s decision,[30] that this question was answered in the affirmative and the referral was made.
[30] See reasons, [26] and [45].
In defence of this appeal, the respondent points to s 321A of the 1998 Act as being the source of the Member’s power of referral. That provision, which I have set out above, is limited to cases about permanent impairment. No regulations have been made on this provision and it does not seem that the Member relied on this section.
Before the Member, the appellant argued that a determination of liability for the “consequential conditions” (the surgery and resultant scarring) was required to be made by the Member before any referral.[31] The Member said as follows:
“The surgery was no more than a form of treatment for the injury, which was agreed by both Dr Vote, Dr Bodel and Dr Millons to consist of the aggravation of a pre-existing degenerative back condition. The causal nexus of treatment to injury was plain, subject to the view of the [medical assessor] as to whether the aggravation had ceased by the time the surgery took place some six years after the occurrence of the injury. That issue is clearly a medical dispute, as it pertains to the degree of permanent impairment of the worker as a result of an injury, as required by s 326(1)(a).”[32]
[31] Appellant’s submissions before the Member, 1 July 2022, [10]–[12].
[32] Reasons, [42].
The Member, at reasons [36], made reference to the decision of Acting Deputy President Parker in Shankar where the following was said:
“The scheme of the Act is well established. The Arbitrators determine matters affecting liability, leaving medical issues to be determined by appointed AMSs. This remains the overall scheme of the Act notwithstanding the amendments to s 65 of the 1987 Act.”[33]
[33] Shankar, [51].
I would record that the references in this paragraph of Shankar to “Arbitrators” and “AMSs” respectively apply equally to “members” and “medical assessors” as they are now designated under the 2020 Act. The Member at [42] has, with respect, conflated the respective roles of the member to determine matters of causation and the medical assessor to assess permanent impairment. At reasons [42] this conflation is apparent where he says: “The causal nexus of treatment to injury was plain, subject to the view of the [medical assessor] as to whether ...”. The Member was positing a view on the question of causation expressed to be subject to the view of the medical assessor. In the event that the medical assessor had stated a view on causation which the Member found determinative, this might have had the result of a challenge on the grounds of a denial of natural justice. Parties are not represented before a medical assessor, which is to be contrasted to a causation dispute taking place before a member with a subsequent right of appeal. Had the Member determined causation, as he is empowered to do after the 2018 Amendments, the referral may or may not have been necessary depending upon the answer to that question. In so doing, the Member has acted on a wrong principle in the House v The King[34] sense.
[34] [1936] HCA 40; 55 CLR 499.
A problem with the argument before the Member was the terminology used. The appellant made reference to ‘consequential conditions’ which was probably not an apt expression. The Member had the power to determine the ‘nature of injury’, which is a matter for the Commission member (see Jaffarie). The Member should have acted on this.
I would also remark that under the 2020 Act proceedings are to be conducted “justly, quickly, cost effectively and with as little formality as possible”.[35] The Member deciding the question of causation before considering a referral to a medical assessor is completely in simpatico with these objects.
[35] Section 3(c) of the 2020 Act.
I have found error on the Member’s part in the exercise of his discretion and will be revoking the Certificate of Determination. But before doing so I will say this about the appellant’s submissions on s 293 of the 1998 Act. That provision refers to ‘medical disputes’ as defined in Part 7. The definition then appears in s 319 of the 1998 Act, which defines a range of medical disputes, which includes inter alia permanent impairment disputes. The division of responsibility is that under s 293 of the 1998 Act, power in relation to all medical disputes (as defined in s 319 of the 1998 Act) resides with the President. But this power is not exclusive when it comes to permanent impairment disputes; s 321A vests limited power in a member’s hands with respect to that discrete category of medical dispute.
The problem with the Member’s decision is that it is not apparent which provision he was purporting to act under. He set out both provisions in his reasons. If it was s 321A, there is no need to remit the dispute to the President. If it was s 293 of the 1998 Act, he could within power remit it to the President and no more. The problem is that the Member seems to have gone beyond a mere remitter when he says in the Certificate of Determination that the remitter is for referral to a medical assessor. As I said, it is not clear which section was the operative provision for the Member’s decision and this is an error. My assumption is that the remitter must be for the purposes of s 293 of the 1998 Act, as remitter is not required if s 321A were the source of power being relied upon. If this is correct, the problems identified in the appellant’s submissions at paragraphs [8]–[12] arise. This is an error.
I would also remark that the respondent has pursued a claim in relation to three body systems; the lumbar spine, scarring, and urinary and reproductive systems. Yet the Direction and the Certificate of Determination only make reference to the lumbar spine. It is not obvious if this limitation was by design, agreement or error. This matter will need attention on remitter.
At reasons [42], the Member has posited a view about causation. In the circumstances, given that causation of what the appellant described as the ‘consequential condition’ had neither been accepted nor argued in full, the only submissions being about the Direction, it is preferable that the matter be remitted to another member to decide.

DECISION

The appellant is granted leave to appeal the Member’s Decision dated 23 August 2022 pursuant to s 352(3A) of the 1998 Act.
The time for the lodging of the appellant’s appeal is extended to 23 September 2022 pursuant to s 353(4)(b) of the 1998 Act.
The Certificate of Determination dated 23 August 2022, as amended 30 August 2022, is revoked.
The matter is remitted to another member in the Workers Compensation Division to hear the dispute in accordance with these reasons.

Judge Phillips
PRESIDENT

18 August 2023