Transdev NSW South Pty Ltd v Twining - [2024] NSWPICPD 12

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Transdev NSW South Pty Ltd v Twining [2024] NSWPICPD 12
APPELLANT:	Transdev NSW South Pty Ltd
RESPONDENT:	Danielle Twining
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W4252/22
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	19 February 2024
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 21 December 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – injury – whether Member proceeded on erroneous basis there were conceded consequential conditions – referral of lumbar spine to a Medical Assessor to assess whole person impairment where independent medical examiners assess 0% whole person impairment – Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18 discussed and applied – Skates v Hills Industries Limited [2021] NSWCA 142 discussed
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms N Tancred, solicitor
Hicksons Lawyers
Respondent:
Mr T Hickey, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr M Inglis
DATE OF MEMBER’S DECISION:	21 December 2022

INTRODUCTION

The appeal is from a Certificate of Determination dated 21 December 2022.
The Commission determined:
“1.     That the [worker] sustained injury to her right ankle and foot on 9 May 2017 and consequential injuries to the lumbar spine, toes of the right foot and digestive system.
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 1988 [sic] for assessment of whole person impairment as follows:
Date of injury: 9 May 2017
Body systems referred: right lower extremity (foot, ankle and toes); lumbar spine; digestive system, and scarring (TEMSKI).
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.”
The employer appeals on the following grounds:
(a) Ground 1: The Member erroneously proceeded on the basis the appellant conceded consequential conditions to the toes (peripheral nerve condition) and the Member erroneously determined the respondent suffered consequential condition to the toes (peripheral nerve condition).
(b) Ground 2: The Member has fallen into error by referring the lumbar spine for assessment of whole person impairment (WPI) where Dr Gehr has assessed 0% WPI for the lumbar spine.
For the reasons that follow I grant leave to appeal and dismiss the appeal. The Determination of the Member is confirmed.

MEMBER’S STATEMENT OF REASONS

The respondent, Danielle Twining, was employed by the appellant, Transdev NSW South Pty Limited, as a Team Leader.
On 9 May 2017 in the course of her employment she was going down a flight of stairs holding onto the rail. As she stepped down onto one of the lower stairs she slipped and fell sideways landing on her right side. She felt pain in the right foot.
Ms Twining claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of injuries to the right ankle, right knee, right foot, lower back, right hip and the nervous system.
The employer initially disputed injury to the right ankle and foot (together with scarring). However, at the hearing counsel for the employer informed the Member that the denial of injury was not pressed.
The parties agreed that the following injuries were in dispute to be determined by the Member:
(a)    consequential condition in the lumbar spine and activities of daily living (ADLs);
(b)    consequential condition in the right knee;
(c)    assessable consequential condition in the toes (peripheral nerve condition), and
(d)    consequential condition of the lower gastrointestinal tract.
The Member set out the relevant uncontroversial history under the heading “Applicant’s Evidence”. As there is no controversy as to this history I set it out from the Member’s statement of reasons.[1]
[1] Twining v Transdev NSW South Pty Ltd [2022] NSWPIC 734 (reasons).
The worker suffered immediate onset of pain in the right ankle which became swollen after the incident. After some assistance by colleagues she was taken to a medical centre at Parramatta and her ankle was strapped. She was referred to physiotherapy for three weeks and had one week off work.
The worker returned to employment but she experienced pain in the right foot. In July 2017 she underwent an X-ray but this did not reveal any fracture. She had consistent and radiating pain in the foot. She would limp and was prevented from walking for long periods of time.
On 14 July 2017 the worker ceased working with the respondent. She consulted Dr Ng who identified a fracture. He referred Ms Twining to Dr A Scott Newman, orthopaedic surgeon.
In August 2017 Dr Newman removed a bone fragment. In October 2018 a further operation was performed by Dr Newman. Subsequently Dr Martin, another orthopaedic specialist, removed the fusion hardware from the foot.
In June 2019 Ms Twining commenced employment at Comserv Pty Limited as a customer service officer three days a week. She was only able to work there for four weeks, ceasing in July 2019 as she was unable to handle the pain and did not have the capacity to continue.[2]
[2] Reasons, [12]–[34].
The Member recorded the detail of the respondent’s condition and medication relying largely on her two statements. The detail of these matters is not required for the purpose of the appeal.
The Member considered at length the medical evidence provided by the parties.[3] I provide an abbreviated summary of the relevant portions of this evidence from his comprehensive analysis of this evidence.
[3] Reasons, [35]–[71].
The Member set out extracts from the medico-legal reports of Dr Gehr, orthopaedic surgeon retained by the respondent, in paragraphs [35] to [39] of the reasons.
At paragraph [39] of the reasons the Member said this:
“… in a second report bearing the same date [24 August 2020] Dr Gehr assessed the [respondent’s] whole person impairment (WPI) including the right foot and ankle, right toes, peripheral nerves, lumbar spine, right knee and a surgical scar. Aggregating the various body parts he assessed the WPI at 20%. In his later report of 18 February 2022, Dr Gehr was asked to comment upon reports of Dr Phillip G Truskett and Associate Professor Michael Shatwell … In that report Dr Gehr says relevantly:
‘… It is my opinion that a right foot injury can cause problems in adjoining joints such as right knee, lumbar spine and right toes. Since it is simply a lever effect where injury to one joint with limited movement or stiffness produces abnormal movement (loads across nearby joints) …’.”
In relation to the lumbar spine, Dr Gehr said:
“I found the DRE of 1 related to the lumbar spine and for activities of daily living with WPI of 2[%].
However, I acknowledge that the ADL should not have been included. I will make a recalculation of my final permanent impairment.”
Dr Gehr, having discussed the assessments provided by A/Prof Shatwell, provided a revised assessment:
“My final revised permanent impairment combining 5%, 4%, 4%, 4% and 2%, WPI equals 18% [applying the combined values chart].”
The Member referred to the reports of the Sydney Pain Specialist Dr Jane Standen. Dr Standen diagnosed Complex Regional Pain Syndrome Type 1 in her report of 24 July 2020.
Dr Standen also commented upon A/Prof Shatwell’s assessment, expressing the following opinion:
“As per Associate Professor Shatwell’s assessment, he states that Danielle’s right foot has reached a maximum medical improvement. I am in agreement with this opinion.
He states that there is no link between the fracture of the right os calcis and low back pain. I am not in agreement with this statement.
His prognosis is guarded in view of the presentation. I am in agreement with this opinion.
He states that ‘there is no aggravation, acceleration, exacerbation, or deterioration of pre-existing disease condition affecting Ms Twining’s right foot as far as I am aware.’ I am in agreement with this statement.
He states that Ms Twining’s right foot injury is as a result of the fall described. It is not secondary to any other injury or disease process. It is not caused sequential [sic, consequential] to another injury. I am in agreement with this statement.”
The Member notes briefly the reports from the treating surgeon Dr A Scott Newman, the last report being 15 March 2019.
The Member then refers to Dr Greenberg’s (gastrointestinal surgeon) reports and opinion as follows:
“Ms Twining’s symptoms are consistent with:
• gastro-oesophageal reflux disease (GORD)
• a medication-inducted gastrointestinal motility disorder.
Ms Twining’s gastrointestinal symptoms are also complicated by her loss of mobility and excessive weight gain. Since her injury, Ms Twining has increased her weight by 30 kg.”
The Member summarised the appellant’s medical evidence from A/Prof Shatwell, orthopaedic surgeon, and Dr Truskett, general surgeon.
In relation to A/Prof Shatwell, the Member said:
“Associate Professor Shatwell records complaints only in relation to the right foot, ankle and back. The opinion expressed by A/Prof Shatwell is somewhat brief. He assessed the [respondent] as having some 8% WPI for fusion of the right foot.
In relation to the lumbosacral spine, he noted that there was no asymmetry in lateral flexion or [rotation] and that the WPI for the lumbosacral spine was therefore best described as DRE Lumbar Category 1 impairment which is 0% WPI.”[4]
[4] Reasons, [58]–[59].
In the report dated 15 December 2021, A/Prof Shatwell expressed the opinion that there was no link between the fracture of the right os calcis and the development of low back pain.
The Member referred to A/Prof Shatwell’s opinion at [63] of the reasons:
“… that there was no iatrogenic (surgical) damage caused by the operative procedures performed on the [respondent’s] right calcaneocuboid joint. He noted that neither Dr Newman, the treating surgeon or Dr Brian Martin who performed an ultrasound in September 2019 were of the view that there was any pathology in the sural nerve which runs below the incision site which Dr Newman identified as being protected. Accordingly, A/Prof Shatwell expressed the position that there was no loss of sensation in the territory of those nerves to justify any additional WPI.”
Dr Truskett focused principally upon the relationship between the injury suffered by the worker and her gastrointestinal symptoms. He was critical of Dr Greenwood’s examination technique based on a video assessment (because of COVID-19 restrictions) on the basis that on the video assessment he did not ask Ms Twining to press her abdomen and describe tenderness in the lower and upper abdomen. When Dr Truskett examined Ms Twining, he found no abdominal tenderness.
Dr Greenberg assessed Ms Twining as having a 3% whole person impairment of her upper digestive tract and a 3% whole person impairment of the lower digestive tract, giving a combined impairment of 6%.
Dr Truskett’s opinion was quoted by the Member as follows:[5]
“Dr Truskett expressed the following opinion:
‘As stated, her gastrooesophageal reflux is a constitutional disorder. The assessment of her irritable bowel syndrome will be addressed in whole person according to the WorkCover guidelines.
…
In relation to her gastrointestinal tract, it is my view that she has sustained maximum medical improvement. It is unlikely the condition will deteriorate or improve by more than 3% in the next year with or without medical treatment.’”
[5] Reasons, [68].
For the record, the Member referred to pain management specialist A/Prof Allan Malloy’s report that ketamine infusion therapy was not reasonably necessary and was not an appropriate treatment for the respondent.
The Member recorded the parties’ submissions at paragraphs [73] to [92] of the reasons.
The Member said:
“As previously noted, the [appellant] concedes injury to the right ankle and foot, which was subject to surgery was also injured [sic]. The [appellant] also concedes that the [respondent] is entitled to assessment pursuant to s 66 for scarring of the surgical site pursuant to the TEMSKI scale. What remains in dispute is the claimed consequential conditions in the [respondent’s] right knee, right toes, lumbar spine and the gastrointestinal symptoms.”[6]
[6] Reasons, [93].
The Member dealt then with each of those body parts in turn.
Under the heading “Right knee” the Member said:
“I am not satisfied that the necessary causal nexus is established by the evidence and accordingly I am not satisfied that the [respondent] suffers a consequential condition in the right knee relating as a result of the injury to her right foot and ankle.”[7]
[7] Reasons, [99].
In relation to the lumbar spine, the Member made dispositive findings. He said:
“It is not unusual for persons who have suffered foot or knee injuries which impacts upon their gait to develop symptoms in the lumbar spine. The nexus between the original injury and the development of those symptoms is also supported by Dr Standen. In his first report, A/Prof Shatwell seems to accept the [respondent] suffered from symptoms in the lumbar spine of which she complained. In his second report, A/Prof Shatwell opines that the symptoms of low back pain cannot be related to the accident at work and concludes that the development of back pain arose because of constitutional factors.”[8]
[8] Reasons, [101].
Having observed that increased weight can give rise to back symptoms, the Member said:
“Given the medical history of complaint since the injury to the right ankle and foot by the [respondent] of lumbar symptoms, the absence of a history of pre-accident symptoms in the lumbar spine and the continuity of complaints, I prefer the opinion expressed by Dr Gehr, supported by Dr Standen.
I am therefore satisfied that the [respondent] suffers from a consequential condition which is a direct consequence of the impact on her gait and [of] her weight gain.”[9]
[9] Reasons, [103]–[104].
With respect to the gastrointestinal disorders, the Member noted[10] that there was no evidence that the respondent suffered any symptoms of the type complained of by her prior to the work injury.
[10] Reasons, [105].
He said:
“Dr Anthony Greenberg, an acknowledged expert in gastrointestinal issues, was in no doubt that the symptoms complained of by the [respondent] were directly related to the consumption of the described medications. He noted further that chronic stress, loss of mobility and protracted pain aggravate gastrointestinal motility and more likely than not were compounding the [respondent’s] symptoms.
True it is that he did not get to physically examine the [respondent] as did Dr Truskett. However, Dr Greenberg does not say that his ability to diagnose and prognosticate as to causation suffered as a result of the lack of a physical examination.
I prefer the opinion expressed by Dr Greenberg in view of his expertise in this area of medical science and as the opinion fits with the objective evidence as to the onset and continuation of symptoms. Often, medication will affect individuals in different ways and the opinion of Dr Greenb[e]rg also has the attraction of common sense.
Accordingly, I am satisfied that the [respondent’s] gastrointestinal issues are more likely than not caused by the medication that she has been required to ingest.”[11]
[11] Reasons, [106]–[109].
The appellant submitted to the Member that it was inappropriate to refer the lumbar spine for medical assessment “as neither the [respondent] nor the [appellant] have evidence indicating that there is a WPI in respect to the lumbar spine that could be assessed”.
The Member rejected that submission on the basis of Shankar v Ceva Logistics (Australia) Pty Limited,[12] at [83].
[12] [2021] NSWPICPD 18 (Shankar).
The Member further said:
“It could be said that the matter currently before me is distinguishable in that the consequential condition climbed [sic, claimed] in respect of the lumbar spine was in dispute. However, consistent with the reasoning of Acting Deputy President Parker, I intend to refer assessment of the lumbar spine to the Medical Assessor for assessment.”[13]
[13] Reasons, [111].
The Member summarised his conclusions in the following paragraphs:
“The [respondent] sustained injury to her right foot and ankle on 9 May 2017.
Following the injury to the right foot and ankle, the [respondent] put on weight and developed an antalgic gait. As a result, the [respondent] suffers a consequential condition in the lumbar spine. The [respondent] also suffers a consequential condition in the form of peripheral nerve damage in the toes of the right foot. The [respondent] has also suffered a gastrointestinal consequential condition as a result of the ingestion of medication as part of the treatment for the injury to the foot and ankle.”[14]
[14] Reasons, [112]–[113].
Thereafter the Member made the orders noted in the Certificate of Determination.

THRESHOLD MATTERS

There is no dispute that the appeal was brought within 28 days of the making of the decision and that s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is satisfied.
There is no dispute that the amount in issue is more than $5,000 and that s 352(3) of the 1998 Act is met.

INTERLOCUTORY

Section 352(3A) of the 1998 Act provides that:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The parties in this matter have each submitted that the present decision is not an interlocutory decision.
In DGL (Aust) Pty Limited v Martino[15] Wood DP following decisions of Mosawi v Baron Forge (NSW) Pty Limited[16] and Moore v Greater Taree City Council[17] and South Western Sydney Area Health Service v Edmonds[18] found that a determination as to whether the worker suffers from a consequential condition of the back is interlocutory because there has been no final determination of the entitlement which is contingent upon the assessment by a medical assessor.
[15] [2023] NSWPICPD 30 (DGL (Aust) Pty Limited).
[16] [2022] NSWPICPD 48.
[17] [2009] NSWWCCPD 17.
[18] [2007] NSWCA 16.
The issue in the present matter is similarly interlocutory in the sense that until the medical assessment occurs, if it is to occur, no final determination has been made.
The appellant submits that the decision was not interlocutory because if the appeal is successful then the worker has no entitlement to compensation with regard to the toes and the right foot or with respect to the impairment of the lumbar spine.
The respondent accepts having regard to DGL (Aust) Pty Limited that the decision under appeal is interlocutory. The respondent further submits that the most practical way of dealing with the matter is that which was adopted by Deputy President Wood and to grant leave.
This is an example of a case in which the decision under appeal is interlocutory in its terms (because there is no final determination of the entitlement to compensation, merely a referral to a medical assessor) but not interlocutory where the original decision is against the body part being referred to a medical assessor. In this circumstance I doubt that the matter is properly regarded as an interlocutory matter given as the appellant correctly says the outcome of the appeal, if successful, would preclude the worker from recovering in respect of those body parts.
However, if it be assumed that the decision is interlocutory, then I would grant leave for the following reasons:
(a) the ambiguity as to whether or not the decision is interlocutory or final, and
(B) as the appellant correctly submits in its submissions on this point, to decline to grant leave may delay determination of the matter overall because when a final determination is delivered either party may appeal and arguably the appeal could extend to the determination not to refer the right foot and lumbar spine to the medical assessor.

IN MY VIEW IT IS DESIRABLE TO GRANT LEAVE TO APPEAL AS IT IS THE MORE EFFICIENT AND EFFECTIVE MANNER IN WHICH THE DISPUTE CAN BE DETERMINED. LEAVE TO APPEAL THE DECISION PURSUANT TO S 352(3A) OF THE 1998 ACT IS THEREFORE GRANTED.

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

The jurisdiction provided by subsection 352(5) of the 1998 Act is one limited to a determination of whether the decision appealed against was or was not affected by error of fact, law or discretion and to the correction of such an error. “The appeal is not a review or a new hearing.”

ON THE PAPERS

Neither party has requested an oral hearing.
Section 52(3) of the Personal Injury Commission Act 2020 provides that:
“(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.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am so satisfied in this matter and propose to determine the matter “on the papers” without holding any conference or formal hearing.

GROUND 1: THE MEMBER ERRONEOUSLY PROCEEDED ON THE BASIS THAT THE APPELLANT CONCEDED CONSEQUENTIAL CONDITION TO THE TOES (PERIPHERAL NERVE CONDITION) AND THE MEMBER ERRONEOUSLY DETERMINED THE RESPONDENT SUFFERED A CONSEQUENTIAL CONDITION TO THE TOES (PERIPHERAL NERVE CONDITION)

Appellant’s submissions

The appellant’s initial submissions were prepared without the official written transcript.
The appellant’s primary submission is at [7.7] of its written submissions:
“At no stage did the [appellant] resile from their position that the respondent did not suffer a consequential condition to the peripheral nerve in the respondent’s toes as suggested by the Member (Certificate of Determination paragraph [76]).”
The appellant refers to Moon v Conmah Pty Limited.[19]
[19] [2009] NSWWCCPD 134, [44]–[47].
The gravamen of the quotation would appear to be in the passage:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Where the death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted.”
The appellant submits that the respondent, having provided the statement of 20 February 2022,[20] does not address anywhere in that statement the “peripheral nerve injury to her toes”.
[20] Application to Resolve a Dispute (ARD), p 1.
The appellant quotes r 73 of the Personal Injury Commission Rules 2021 which is headed “Guiding principles for applicable proceedings”, and sets out authoritative statements from Hancock v East Coast Timber Products Pty Limited[21] and Makita (Australia) Pty Limited v Sprowles.[22] A further citation is provided from Heydon JA in Rhoden v Wingate,[23] and from Rolleston v Insurance Australia Limited.[24]
[21] [2011] NSWCA 11, 8 DDCR 399, [80]–[82].
[22] [2001] NSWCA 305; 52 NSWLR 705, [85].
[23] [2002] NSWCA 165, [61].
[24] [2017] NSWCA 168.
The appellant refers to the observations of Phillips P in Brannigan v Elbon Consulting Services Pty Limited.[25]
[25] [2021] NSWPICPD 27, [136].
Having regard to those statements of principle the appellant submits:
“The [appellant] submits that the opinion of Dr Gehr, relied upon by the respondent, does not conform to the basic requirements of expert evidence to which any weight can be given. Dr Gehr’s opinion should be rejected. The doctor does not provide any reasoning for his conclusion the respondent suffered a consequential condition to the toes (peripheral nerve injury).”[26]
[26] Appellant’s submissions, [7.21].
The appellant relies on Associate Professor Shatwell’s observation that there was no documentation of any injury to the right ankle or to any of the toes.
The appellant submits that Dr Gehr has not provided any evidence to support his opinion the respondent sustained a consequential peripheral nerve injury to the toes and the doctor’s report should be given little weight.
The appellant concludes:
“Further, the [appellant] reiterates strongly that at no stage did they resile and/or abandon the argument the respondent did not suffer a consequential peripheral nerve injury in the toes.”[27]
[27] Appellant’s submissions, [7.27].

Respondent’s submissions

The respondent’s primary submission is as follows:
“The appellant’s first ground in effect contains two sub-appeal points, namely (a) that the Member erroneously concluded the consequential (peripheral nerve condition) had been conceded and (b) that the Member has erroneously determined that the respondent had suffered a consequential condition. Neither contention is made good by reference to the submissions and the manner in which the matter proceeded.”[28]
[28] Respondent’s submissions, [16].
The respondent sets out at length the nature of the case with respect to toes and peripheral nerves as it was submitted to the Member.
The respondent submits that the appellant’s submissions before the Member included a contest as to whether there was a peripheral nerve condition to be referred to a medical assessor.
She says the appellant’s submission to the Member was that notwithstanding the stiffness in the toes, there was no pathology caused by the injury or as a consequence of the altered gait in the toes. It was conceded that “there was stiffness in the toes that had been referred to by Dr Gehr in his report of 24 August 2020”. The appellant’s position at the hearing was that this stiffness of the toes did not mean that it had anything at all to do with the injury.
The respondent submits in part:
“There was sufficient evidence for the Member to find a consequential condition on the basis of the treating evidence alone.
The report of Dr Gehr had complied with his evidentiary requirements in a Paric sense setting out his examination findings, an explanation of those findings and ultimately his determination as to the consequential conditions suffered. Dr Gehr formed the view that the evidence, and MRI and CT scans, clearly demonstrated that the respondent had sustained peripheral nerve injuries involving the right superficial nerve and deep peroneal nerve as well as joint issues in the toes.”[29]
[29] Respondent’s submissions, [19(l)–(m)].
The respondent submits:
“At the conclusion of the relatively detailed submissions of the respondent the appellant counsel was invited by the Member to make submissions in reply, to which counsel outlined an interpretation of the law pertaining to consequential conditions somewhat at odds with the respondent’s position.
The appellant thereafter made submissions as to the knee indicating there was, notwithstanding the material referred to by the respondent, a lack of complaint in any of the material in relation to the right knee. The following exchange then took place with respect to the toes … [The respondent then sets out a passage of the transcript at page 77, lines 5 to 15]”.[30]
[30] Respondent’s submissions, [20]–[21].
The respondent submits:
“In the context of the overall submissions, and in the ambit of the reply, it was quite clear that the appellant was conceding that the consequential condition to the toes had been established. Indeed, the appellant’s concession of a lack of argument in circumstances where the respondent had submitted that the toe condition could be established on the treating evidence alone makes it plain that the concession was made, there having been no argument expressed by the appellant in response in that regard.”[31]
[31] Respondent’s submissions, [27].
In relation to the complaint that Dr Gehr’s opinion should not have been accepted, the respondent submits:
“The ground of appeal is, rather, an attempt to cavil with the determination of the Member by disagreeing with his ultimate finding. That is simply not enough and on that basis the appellant has failed to demonstrate how the Member has fallen into error. The appellant’s complaint, in substance, is that Member Inglis has fallen into error by reaching a finding that differs to that which was advanced by the appellant. Notwithstanding the disappointment the appellant no doubt has with respect to those findings such a position does not, respectfully, constitute an appealable error.”[32]
[32] Respondent’s submissions, [31].
The respondent refers to the decisions of Raulston v Toll Pty Limited[33] and Young v Vietnam Veterans Keith Payne VC Hostel Limited,[34] for the proposition that what is required is a demonstration of error on the part of the Member.
[33] [2011] NSWWCCPD 25.
[34] [2020] NSWWCCPD 66, [129].
The respondent refers to Shellharbour City Council v Rigby[35] for the proposition that the weight of evidence is peculiarly within the province of the trial judge “unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”
[35] [2006] NSWCA 308, [144].
The respondent makes the submission:
“Other than disagreeing with the findings of the Member, the appellant cannot satisfy those requirements and the findings of fact ought not be disturbed. That aspect of the ground of appeal ought be dismissed.”[36]
[36] Respondent’s submissions, [36].
Having reached that conclusion the respondent goes on to make submissions that Kumar v Royal Comfort Bedding Pty Limited,[37] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan,[38] and State of New South Wales v Abdul[39] are authority for the proposition that “the Member can be satisfied that a consequential condition exists on the basis of the Applicant experiencing symptoms.”
[37] [2012] NSWWCCPD 8.
[38] [2016] NSWWCCPD 23.
[39] [2018] NSWWCCPD 41.
The respondent quotes from Paric v John Holland Constructions Pty Limited,[40] Hancock v East Coast Timber Products Pty Limited[41] and Australian Securities and Investments Commission v Rich,[42] submitting:
“The complaints that are purportedly made of the opinion of Dr Gehr are not established, the doctor quite clearly setting out the reasoning process underlying his opinion and the evidence by which that opinion was established. Moreover, that opinion is consistent with the treating evidence.”[43]
[40] [1984] 2 NSWLR 505, 509, per Samuels JA.
[41] [2011] NSWCA 11.
[42] [2005] NSWCA 152, [105].
[43] Respondent’s submissions, [44].

Appellant’s further submissions after receipt of the transcript

The appellant refers to paragraph [76] of the reasons and submits:
“The Member ultimately went on to deal with the matter on the basis that the alleged consequential condition in the toes (peripheral nerve condition) was conceded and did not otherwise give reasons or make findings as to why he was persuaded, on the balance of probabilities, that the alleged consequential condition in the toes, being the alleged peripheral nerve condition, had been made out on the evidence available.”[44]
[44] Appellant’s further written submissions, [2].
Thereafter the appellant submits:
“After the Respondent’s Counsel had made submissions, the [appellant’s] Counsel made further submissions in reply. At page 77, lines 5 to 9 [of the transcript], there is a query from the Member about the toes, in response to which the [appellant’s] Counsel indicated he did not have an argument to put. This may have been where the Member formed the view that there was some form of concession from the [appellant’s] Counsel in relation to the allegations relating to the toes. However, when read in the context of the previous pages and paragraphs of the transcript (see page 76, lines 26 to 35, and page 77, line 1) it is clear, in the [appellant’s] submissions, that the [appellant’s] Counsel had been dealing with references to symptoms recorded by the treating doctors in relation to the knee. The [appellant’s] Counsel was submitting there was no evidence of complaints in relation to the right knee. However, quite properly, the [appellant’s] Counsel then acknowledged that he could not make such an argument in relation to the toes as there was evidence of recorded complaints of symptoms in the toes. The [appellant’s] Counsel had previously dealt with those matters in his earlier submissions ...”.[45]
[45] Appellant’s submissions in reply, [5].
The appellant submits:
“The [appellant] submits that the Member clearly misunderstood the comments made by the [appellant’s] Counsel during his submissions in reply, and has failed to determine the dispute regarding the alleged consequential condition in the toes, or give any reasons for that decision.”[46]
[46] Appellant’s submissions in reply, [7].

RESPONDENT’S FURTHER SUBMISSIONS ON APPEAL

The respondent filed further submissions in reply to the appellant’s submissions following receipt of the transcript. The submissions through oversight were filed out of time. I grant leave to rely on the submissions.
In response to the appellant’s additional submissions the respondent relies on her original submissions in opposition to Ground 1.

CONSIDERATION

The appellant’s submission is that the Member proceeded to determine the matter on the basis of a concession which had not been made.
If that submission is made good, there is a denial of procedural fairness.[47]
[47] Seltsam Pty Limited v Ghaleb [2005] NSWCA 208, [9], [78].
The Member said at [76] of the reasons:
“Initially, Mr Perry [counsel for the appellant in the proceedings before the Member] submitted that I could not be satisfied that there was any peripheral nerve condition in the [respondent’s] toes. I understood him to resile from this position in reply following the detailed references to which I was taken by Mr Hickey [counsel for the respondent] in his submissions.”
The appellant in its submission refers to the transcript of the submissions made by its counsel at the hearing. It is necessary to consider these in some detail.
The first reference is at page 10 of the transcript, where the appellant’s counsel acknowledges that Dr Gehr’s material is to the effect that there is an assessable condition in the toes, but says:
“That is very much in contest. You should note that there is a contest about the proposition that there’s any peripheral nerve condition to be referred. That ought not to happen, in my submission, the evidence doesn’t support that.”[48]
[48] T 10.21–28.
The second reference is at T 24.26–31. The Member and counsel for the appellant are discussing the report of Dr Gehr dated 24 August 2020 (see T 23.19). Counsel for the appellant says:
“MR PERRY: … when it comes to the issue of the other body parts, and I particularly refer to the knee at the moment and I’ll come straight to the toes in a moment thereafter, there really is no basis for you finding that this report supports in any way a causal link and - - -
MEMBER: In relation to the right knee?
MR PERRY: In relation to the right knee …”.[49]
[49] T 23.30–24.4.
At T 24.26–31, the passage is as follows:
“MR PERRY: … Right. All of one is fine. Peripheral nerve injuries we dispute. I don’t see the basis upon which that is determined and lumbar spine pain. So in that first report consequential condition of the right knee simply does not appear …”.
At T 25.15–20 the Member and counsel for the appellant are referring to the history in Dr Gehr’s report and counsel says (quoting from the history in the report), “she developed pain again following with numbness of the big toe” and says:
“Well, that may be so but that doesn’t include – that does not indicate to you that there’s been an injury direct or consequential to the toe. There may well be [some] numbness in the toe which may be found to have connection to - - -
MEMBER: I was referring more to the right knee ...
MR PERRY: Yes, of course, of course.
MEMBER: But it’s relevant to both, the toe and the knee.”
The reference at T 26.8–18 needs to be understood having regard to what is said commencing at T 26.4: “She reports stiffness in her toes”.
“MEMBER: Stiffness of her toes, yes.
MR PERRY: And nothing, as you can see, either in the history or in the current symptoms of knee pain and you do have stiffness in the toes but no reason to say that there’s been pathology in the right toes caused by the injury … or caused [as] a consequence of altered gait causing the toes to be a problem and, of course, it’s not just a matter of pathology, it’s a matter of a condition but there is an absence, in my submission, of that and you would not accept a referral to the medical assessor to include the toes. Ankle, yes, foot, yes.”
The next passage is at T 27.34–35, continuing to T 28.1–17:
“MEMBER: And you say there’s no – following a Makita-type principle there’s no evidence that she has peripheral nerve injuries involving the superficial and deep peroneal nerves?
MR PERRY: Yes, absolutely.
MEMBER: But do you accept that that could be a basis for stiffness in the toes if she has peripheral nerve injuries involving the superficial and deep peroneal nerves?
MR PERRY: Yes. That could follow but it doesn’t overcome - - -
MEMBER: Do you say it’s not injury related?
MR PERRY: Thank you.”
Counsel for the appellant quotes a passage from Dr Gehr as follows:
“[The appellant’s right foot injury] can cause problems in an adjoining joint such as knee, lumbar spine and right toe. Since it is simply a lever effect where one injury to one joint with limited movement or stiffness produces abnormal movements loads across nearby joints.”[50]
[50] T 30.1–6.
The Member says:
“MEMBER: Except he does provide there a clinical basis in relation to the toes, at least, leaving aside the knee in that there is a lever effect where the injury to one joint with limited movement or stiffnesses produces abnormal movement loads across nearby joints. That would include the toes, if not the knee, would it not?
MR PERRY: Well I would be - - -
MEMBER: I’m just asking, Mr Perry.
MR PERRY: Yes, I know, I’d be submitting that it doesn’t get the worker there … that it’s my opinion that it can and look, the [respondent] bears the onus and has the opportunity of - - -
MEMBER: Yes. Yes.
MR PERRY: - - - saying that it has. In my submission, it’s certainly not - - -
MEMBER: Well, it falls short of the requisite test.”[51]
[51] T 30.11–43.
The passage at page 77 of the transcript needs to be seen in the context of what previously occurred at page 76:
“MEMBER: There’s a reference to numbness to the toes, the calf and the lumbar area was the note I made.
MR PERRY: That’s the point that I’m going to make. Thank you, Member.”[52]
Then:
“So clearly the [respondent] had the opportunity which she accepted from the pain specialist to say where else you got pain? And what’s not there, the knee. And this is two years later. You simply cannot, in my submission, accept that. My friend speaks of a biomechanical difficulty with the foot that has caused a problem in the knee. That’s no higher - - -
MEMBER: I understand your argument.
MR PERRY: No higher than speculation. With regard to - - -
MEMBER: Mr Perry, what about the toes?
MR PERRY: I can’t – I don’t have an argument to put.
MEMBER: All right. All right.”[53]
[52] T 76.13–17.
[53] T 76.26–77.9.
I am not satisfied that the Member misunderstood the submission. The context of what is being put at page 76 of the transcript is that the respondent developed pain at multiple sites and counsel for the appellant is pointing out that what is not complained of is pain in the knee. What is complained of is numbness to the toes, the calf and the lumbar area.[54] Because there is no reference to the knee, the submission is that there is no consequential condition of the knee, a proposition which is accepted by the Member.[55] But the Member is putting to counsel for the appellant that the toes are different.
[54] T 76.14.
[55] Reasons, [99].
Counsel for the appellant concedes, “I don’t have an argument to put”. That is to say, unlike the knee, in relation to the toes the appellant does not have a contrary argument.

In my view it was open to the Member to conclude that the appellant’s counsel was conceding that, unlike the knee where there was no complaint, there was a symptomatic complaint of numbness in the toes.
More importantly, it seems to me that Dr Gehr’s opinion of 24 August 2020 supports the conclusion as to causation with respect to the toes reached by the Member.
In the opinion section of that report, Dr Gehr says:
“This is a 48-year-old lady with injury to the right foot in the course of her employment on 9/5/2017, injury involving the right hindfoot and the right midfoot, and she underwent three surgical procedures. CT and MRI show a fracture involving the anterior process of the calcaneus and pathology involving the calcaneocuboid joint lift with residual pain and stiffness of the right ankle and hindfoot along with peripheral nerve injuries of the medial plantar nerve and the right superficial peroneal nerve. She has also had pain on the lateral aspect of the right hip …
Diagnosis: Injury involving the right ankle and hindfoot involving the calcaneocuboid joint with three surgical procedures and residual pain and stiffness over the right ankle and hindfoot. Peripheral nerve injuries involving the medial plantar nerve and superficial peroneal nerve. Soft tissue injury of right hip and right trochanteric bursitis with decreased range of motion found on the examination today. Requires assistance of four to six hours per week.”[56] (emphasis added)
[56] ARD, pp 77–78.
In my view the Member was entitled to understand the submissions made by the appellant’s counsel as he did.
Furthermore, the Member had the advantage of hearing the submissions and discussing their import with the appellant’s experienced and knowledgeable counsel.
I am not satisfied that the appellant has been denied procedural fairness by the understanding of the submissions set out at [76] of the reasons by the Member.
More importantly, as the passages from the report of Dr Gehr demonstrate, there was evidence from Dr Gehr that the worker had suffered damage to the peripheral nerves.
The appellant’s complaint in relation to the report of Dr Gehr that the report does not conform to the basic requirements of expert evidence to which any weight can be given and should therefore be rejected.[57]
[57] Respondent’s submissions, [7.21].
The Member at [101] and [104] of the reasons plainly accepted Dr Gehr’s opinion.
Indeed the Member says at [103]–[104]:
“103. Given the medical history of complaint since the injury to the right ankle and foot by the [respondent] of lumbar symptoms, the absence of a history of pre-accident symptoms in the lumbar spine and the continuity of complaints, I prefer the opinion expressed by Dr Gehr, and supported by Dr Standen.
104. I am therefore satisfied that the [respondent] suffers from a consequential condition which is a direct consequence of the impact on her gait and [of] her weight gain. …”
The appellant has not demonstrated that the opinion of Dr Gehr fails to comply with r 73. In my view, the report of 24 August 2020 is logical and probative and the reasoning process is adequately displayed.
The discussion between the Member and the appellant’s counsel at pages 27 to 28 of the transcript shows that the Member was aware of the argument now being advanced.
“MEMBER: But do you accept that that could be a basis for stiffness in the toes if she has peripheral nerve injuries involving the superficial and deep peroneal nerves.
MR PERRY: Yes. That could follow but it doesn’t overcome - - -
MEMBER: Do you say it’s not injury related?
MR PERRY: Thank you.”[58]
[58] T 28.7–17.
The point being made by the Member was that if he accepted that the toes were stiff, that could be explained by damage to the peripheral nerves – a proposition accepted by counsel for the appellant as correct.
Ground 1 of the appeal is dismissed.

GROUND 2: THE MEMBER HAS FALLEN INTO ERROR BY REFERRING THE LUMBAR SPINE FOR ASSESSMENT OF WHOLE PERSON IMPAIRMENT WHERE DR GEHR HAS ASSESSED 0% WHOLE PERSON IMPAIRMENT FOR THE LUMBAR SPINE

Appellant’s submissions

The appellant submits that the Member erroneously relied on the decision of Shankar without providing proper reasons why the lumbar spine should be referred for assessment where both the appellant’s and respondent’s medical evidence has assessed 0% whole person impairment.
The appellant says that the decision of Shankar is contradicted by Skates v Hills Industries Limited[59] and that that case is authority for the proposition that:
“No medical dispute exists between the parties as to the extent of the whole person impairment that resulted from the assessment of the lumbar spine because the impairment assessments were identical (0% whole person impairment).”[60]
[59] [2021] NSWCA 142 (Skates).
[60] Appellant’s submissions, [7.34].
The appellant submits that the lumbar spine should not have been referred for assessment of whole person impairment to the medical assessor.

Respondent’s submissions

The respondent submits that the reference to the decision of Apps v Secretary, Department of Communities and Justice[61] is misplaced and distinguishable. In Apps the employer sought to accept a 0% impairment assessment. The worker had refused to accept an impairment of 0%. The submission which was accepted was that a valid claim had not been made and that therefore there was no proper basis for referral.
[61] [2022] NSWPIC 190 (Apps).
The respondent furthermore submits that “that was not the manner in which the appellant sought to argue and/or frame the dispute.”[62]
[62] Respondent’s submissions, [49].
The respondent submits that the Member was obliged to follow Shankar unless it was established that the case was distinguishable. The appellant did not advance any meaningful argument that Shankar was distinguishable from the respondent’s case. The respondent submits “[o]n that basis, and having regard to the state of the law, the Member was bound to follow Shankar.”[63]
[63] Respondent’s submissions, [50].
The respondent submits that the appellant did not advance any argument before the Member relying on the decisions of Skates or Apps, nor did the appellant dispute the claim was a valid claim or advance an argument that it was not a valid claim.
The respondent submits that the appellant is bound by the case it made at first instance.[64] The respondent submits that the appellant cannot succeed on an argument that was not raised below.[65]
[64] Coulton v Holcombe [1986] HCA 33 (Coulton), [9].
[65] Brambles Industries Ltd v Bell [2010] NSWCA 162.
The asserted failure of the Member to properly consider the reasoning in Shankar is unsupported by an articulation of exactly what is complained of or how the error occurred and ignores the reasoning that was in fact provided by the Member.
The respondent’s submission is as follows:
“Finally, and as an alternative to the arguments above, the appellant’s approach to the evidence at both the Arbitration process and in this Appeal [proceeds] on a misstatement of the evidence. It is asserted that the appellant and the respondent each relied on evidence that assessed 0% permanent impairment in respect of the lumbar spine.
That is not the state of the evidence and was not the position put forward by the respondent at the Arbitration process. The evidence of the respondent with respect to the lumbar spine was that of Dr Gehr who assessed 2% permanent impairment of lumbar spine by reference to the activities of daily living. That point was made during the Arbitration process, the question of the assessment of that condition being a matter for the [medical assessor] the injury having been accepted.”[66]
[66] Respondent’s submissions, [57]–[58].

Appellant’s further submissions

The appellant relies on a number of first instance decisions of the Commission, to the effect that where the parties’ medical referees have assessed the affected part at 0% WPI there should be no referral of that part of the body to the medical assessor.
The appellant refers to Apps where the Member “commented that there was ‘substantial force’ to the respondent’s submission that Shankar was wrong at law, and that it appeared the Acting Deputy President had not been taken to all the relevant authorities”. In McPherson v Mitre 10 Australia Pty Limited,[67] Voudouris v TDV Constructions Pty Limited[68] and Welsh v Dandan Management Services Pty Limited,[69] Wall v Woolstar Pty Limited[70] the Member(s) found that there was no medical dispute in the meaning of s 319 because the unanimous opinion of the doctors who assessed the claimant on both sides was that she did not have any permanent impairment to the right lower extremity. In Jamal-Elddine v Big Catch Fishing Tackle Pty Limited[71] the Member concluded that “having regard to the Court of Appeal’s decision in Skates …, when considering the existence of a ‘medical dispute’ regard must be had to the extent to which there exist different valid claims about the degree of permanent impairment in respect of body parts the subject of the claim.”[72]
[67] [2022] NSWPIC 410.
[68] [2022] NSWPIC 596.
[69] [2022] NSWPIC 609.
[70] [2022] NSWPIC 622.
[71] [2022] NSWPIC 738.
[72] Appellant’s submissions in reply, [10].
The appellant relies on these decisions, and says the decision by the Member to include the lumbar spine as part of the referral to the medical assessor should be set aside.

Respondent’s further submissions on appeal

The respondent submits that the appellant ought not be able to advance submissions not put to the Member or to introduce new arguments on appeal.

CONSIDERATION

I accept the respondent’s submission at [50]. The Member was obliged to follow Shankar unless it was established that the decision was distinguishable or otherwise not available.
If the appellant wished to make the submission that Shankar is wrongly decided, the appellant was required to take that point before the Member.[73] The appellant not having done so, the point is not available on appeal.[74]
[73] Coulton.
[74] Metwally v University of Wollongong (No. 2) (1985) 60 ALR 68.
The appellate jurisdiction conferred by s 352(5) is not engaged unless the Member is shown to be in error. The Member was not in error in following an applicable Presidential decision. The appellant does not argue that Shankar does not apply on the facts to the present matter. It follows the Member was required to apply that decision. Indeed the Member would have been in error to not follow the decision if it was applicable.
The respondent makes the submission at [58] of her submissions that Dr Gehr in his supplementary report of 24 August 2020 assesses the lumbar spine impairment at 2% having regard to activities of daily living. Whether that was correct was a matter for the medical assessor. Counsel for the respondent specifically maintained that he had not withdrawn the respondent’s reliance on that assessment.[75]
[75] T 80.25–28.
To the extent that Skates is thought to conflict with Shankar I make the following observations.
Skates concerned an application for leave to appeal a judgment in the Supreme Court.
In the event, leave was granted on a very limited basis.[76] The decision of the primary judge was upheld.
[76] Skates, [42].
The issue sought to be raised in the appeal was whether the Approved Medical Specialist 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 primary Judge and a majority of the Court of Appeal (Basten JA, Leeming JA agreeing; McCallum JA dissenting) gave that question an affirmative answer.
Basten JA said:
“27. 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. The claim was made with respect to a specific injury that occurred in the course of employment on a specified date. …
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 injury in its review. The trial judge held it should have done and that was the basis on which she set aside its decision.
…
32. More broadly, this approach is confirmed by having regard to the statutory scheme, a matter which was fully developed by the primary judge in her reasons. Critically for present purposes, the concept of ‘whole person impairment’ is itself not found in the [1998 Act], which, reflecting s 66 of the [1987 Act] uses the term ‘permanent impairment’. As set out above, s 322 of the [1998 Act] requires that an assessment of the degree of permanent impairment ‘is to be made in accordance with the Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose’. Section 331, dealing with the promulgation of Guidelines has been noted.
33. Without attempting to set out the detail of the Guidelines and the AMA Guides, to which the Court was not taken, it is sufficient to note that the medical assessment certificate was required to identify the specific body part or system, together with the ‘chapter, page and paragraph number in WorkCover guides’ and the ‘chapter, page, paragraph, figure and table numbers in AMA 5 Guides’. Identification of the extent of impairment by a reference to individual body parts and body systems is required by the Guidelines and Guides which the statute obliges the AMS to follow.”
Basten JA referred to s 319 of the 1998 Act observing that there was “at least, a ‘medical dispute’” within the meaning of par (c) of the definition of that term in s 319 because it was a claim about “the degree of permanent impairment of the worker as the result of an injury”. It was not necessary for his Honour to further consider the construction of s 319.
In agreeing with Basten JA, Leeming JA added the following dicta:
“The starting point is a ‘medical dispute’. That term is defined in s 319 of the [1998 Act], reproduced in the other judgments. The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.”[77] (emphasis added)
[77] Skates, [44].
His Honour said at [46]:
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”
Later his Honour said at [47]–[48]:
“47. … All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute ...
48. The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist ...”.
In her dissenting judgment, McCallum JA (as her Honour then was) said:
“… The question is whether the medical specialist was confined to an assessment of the ‘body part/s referred’ by a delegate of the Registrar. In my view, the answer is that he was not. The task for the medical specialist was to assess permanent impairment, not body parts.”[78]
[78] Skates, [51].
McCallum JA referred to s 319 at [74] and [76], but as with Basten JA, her Honour did not provide a definitive construction of the provision.
There are a number of observations to be made about Skates:
(a)    There is, with respect to those who may hold a contrary view, no ratio decidendi in Skates addressing the construction of s 319.[79]
(b)    The “dispute” or “question” for the purpose of s 319 is between the worker and the insurer, not between the medical referees. The medical assessor forms his own assessment of the degree of impairment, it is not the function of the medical assessor to resolve the disagreement if any between the medical referees qualified by the parties. Agreement or disagreement is irrelevant to the engagement of s 319.
(c)    Leeming JA discussed s 319 in detail but the other members of the Court did not. Importantly, the majority of the Court did not express agreement with his Honour’s comments and therefore there is no considered dicta of the Court.
(d)    That discussion concerned itself with the subject matter(s) necessary to engage s 319. Leeming JA did not express any view as to the content of the dispute within the defined subject matters.
(e)    The Court was not concerned with the content of the “dispute” required to engage s 319 as there was no doubt that s 319(c) among other possibilities was engaged.
(f)    Section 319 is not engaged by assessment of body parts. As explained by Basten JA at [32] and [33], “[i]dentification of the extent of impairment by reference to individual body parts and body systems is required by the Guidelines and Guides which the statute obliges the AMS to follow.” But as demonstrated by McCallum JA in her Honour’s dissent at [81], “the focus on body parts is apt to distract attention from the precise matter to be assessed and certified by the approved medical specialist.” Leeming JA likewise did not limit s 319 to parts of the body, rather he said: “It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury.”
(g)    That the Court was not intending to provide a decision on the construction of s 319 is furthermore clear from the fact that no member of the Court addressed the concluding words in the chapeau “or a question” about any of the subject matters.
[79] cf. Voudouris v TDV Constructions Pty Ltd [2023] NSWPICPD 53.
There is no error on the part of the Member in following a previous Presidential decision. Ground 2 of the appeal is dismissed.

CONCLUSION

The appeal is dismissed.

DECISION

The Member’s Certificate of Determination dated 21 December 2022 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

19 February 2024