Voudouris v TDV Constructions Pty Ltd - [2023] NSWPICPD 53

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Voudouris v TDV Constructions Pty Ltd [2023] NSWPICPD 53
APPELLANT:	Tom Voudouris
RESPONDENT:	TDV Constructions Pty Ltd
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-W3227/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	31 August 2023
ORDERS MADE ON APPEAL:	1. The appellant’s application for leave to appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is declined. 2. The Certificate of Determination dated 25 October 2022 is confirmed. 3. This matter is referred to a medical assessor in accordance with the terms of the Certificate of Determination dated 25 October 2022.
CATCHWORDS:	WORKERS COMPENSATION – whether injuries with 0% permanent impairment can be included in a referral to a medical assessor – medical assessment for the purpose of s 39 of the Workers Compensation Act 1987 – principles regarding a ‘claim’ and ‘medical dispute’ considered – s 319 of the Workplace Injury Management and Workers Compensation Act 1998 – Shankarv Ceva Logistics (Australia) Pty Ltd [2021] NSWPICPD 18 discussed – Skates v Hills Industries Ltd [2021] NSWCA 142 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B Necovski, counsel
Parnell Legal
Respondent:
Mr A Combe, counsel
Rankin Ellison Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr A Scarcella
DATE OF MEMBER’S DECISION:	25 October 2022

INTRODUCTION AND BACKGROUND

Mr Tom Voudouris, the appellant, was a builder and sole director of the respondent. He sustained multiple injuries in the course of his employment on 26 July 2016, when he fell several metres through a void in a building he was working in. He received workers compensation benefits for his injuries, including payment of weekly compensation and medical or related treatment expenses.
On 14 December 2021, Mr Voudouris ceased receiving weekly compensation by operation of s 39 of the Workers Compensation Act 1987 (the 1987 Act), on the basis that his injuries did not result in permanent impairment of more than 20% for an entitlement to weekly compensation beyond 260 weeks. In ceasing his weekly compensation, the respondent’s insurer relied on an independent medical report of Dr Stephen Rimmer, orthopaedic surgeon, dated 27 April 2021.[1] In this report, Dr Rimmer assessed the appellant with a combined 8% whole person impairment (WPI), comprised of 2% WPI in respect of the right elbow and 6% WPI in respect of the left wrist. Dr Rimmer also found there to be nil impairment (0%) to the right femur and right knee.
[1] Reply to Application for Assessment by a Medical Assessor (reply), p 10.
On 24 February 2022, the appellant wrote to the respondent’s insurer by email seeking they review the decision to terminate his weekly payments under s 39 of the 1987 Act. In this request, the appellant’s representative submitted that s 39 did not apply to the appellant and the “insurer should be satisfied that the degree of permanent impairment is likely to be more than 20% (whether or not the degree of permanent impairment has previously been assessed)”.[2] This request was framed to be sought under s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[2] Application for Assessment by a Medical Assessor (AAMA), p 8.
Attached to this request was an independent medical report of Dr Roger Pillemer, orthopaedic surgeon, dated 17 February 2022, who assessed the appellant with a combined 33% WPI. This assessment was comprised of 20% WPI in respect of the right lower extremity (knee), 1% WPI in respect of the right upper extremity (elbow), 14% WPI in respect of the left upper extremity (wrist), and 2% WPI in respect of scarring on the wrist and forearm. Dr Pillemer also assessed the appellant’s lumbar spine, but found there to be nil (0%) impairment, noting that the appellant fell into DRE Category I.
In response, the respondent’s insurer issued a letter to the appellant on 10 March 2022,[3] clarifying that the notice ceasing payments was not a dispute notice issued pursuant to s 78 of the 1998 Act, and rather, notification of the operation of s 39 ceasing his payments as he had not reached the requisite threshold. The letter noted, nonetheless, that there were now two competing opinions on the assessment of permanent impairment, and they did “not concede” that the appellant had an entitlement to ongoing weekly compensation.
[3] AAMA, p 21, incorrectly dated 17 May 2022.
The appellant commenced proceedings in the Personal Injury Commission (the Commission), by way of an Application for Assessment by a Medical Assessor (AAMA), to assess whether the degree of permanent impairment is more than 20% pursuant to s 39 of the 1987 Act. The AAMA identified the following body parts for assessment: the face (right maxillary sinus & orbital nasal fracture), right elbow, left wrist, right leg, right knee, left index finger and the lumbar spine.[4] The additional body system of scarring was later added by consent. The injury details in the AAMA were described as “facial fractures (right maxillary sinus, and orbital floor nasal fractures), fractured right elbow, comminuted fracture to the left wrist, fractured right femur, displaced fractures of the distal femoral shaft of right knee, damage to the extensor tendon of the left index finger, and injury to lumbar spine”.[5]
[4] AAMA, p 2.
[5] AAMA, p 5.
In support of the AAMA, the appellant filed the report of Dr Pillemer, as well as an independent medical report of Dr Nigel Curtis, oral and maxillofacial surgeon, who found there to be nil (0%) impairment in respect of orofacial injuries sustained. It is unclear when this report was served on the respondent.[6]
[6] AAMA, p 37.
In proceedings before the Member, a preliminary issue was raised as to whether a body system assessed at 0% WPI could be referred to a medical assessor for an assessment, being the face and lumbar spine. The Member issued directions for written submissions in respect of this preliminary issue. The Member was ultimately satisfied that these injuries could not be included in the referral for medical assessment. It is against this finding the appellant appeals.

THE MEMBER’S REASONS

The Member invited submissions from the parties on the following authorities: Abou-Haidar v Consolidated Wire Pty Ltd;[7] Woolworths Limited v Stafford;[8] Sukkar v Adonis Electrics Pty Ltd;[9] Shankar v Ceva Logistics (Australia) Pty Ltd;[10] Skates v Hills Industries Ltd,[11] and Apps v Secretary, Department of Communities and Justice.[12]
[7] [2010] NSWWCCPD 128 (Abou-Haidar).
[8] [2015] NSWWCCPD 36 (Stafford).
[9] [2014] NSWCA 459 (Sukkar).
[10] [2021] NSWPICPD 18 (Shankar).
[11] [2021] NSWCA 142 (Skates).
[12] [2022] NSWPIC 190 (Apps).
The appellant submitted that his claim was not a claim for lump sum compensation made pursuant to s 66 of the 1987 Act; rather, it was a claim for one assessment pursuant to s 39. The above authorities primarily dealt with the necessity of bringing a valid claim for permanent impairment compensation as a precondition to a referral to a medical assessor. In the present case, no valid claim had been made. The appellant submitted that the principles in Shankar were sound and ought to be applied, and Apps, which was critical of Shankar, should not be adopted as it was not Presidential authority. The appellant submitted that the respondent’s insurer had raised a dispute as to the level of impairment in circumstances contemplated by Shankar, thus satisfying the s 319 definition of a medical dispute. Accordingly, the referral should include all body parts.[13]
[13] Voudouris v TDV Constructions Pty Ltd [2022] NSWPIC 596 (reasons), [49]–[64].
The respondent agreed that this claim was not made under s 66 of the 1987 Act, and as such, was not subject to the provisions contained under Div 4 of the Act. The respondent referred to Part 7 of the 1998 Act which concerned medical assessments and referrals for same, specifically, the definition of a medical dispute under s 319. Whilst the respondent noted that Shankar allowed the referral to a medical assessor of a body part assessed at 0% WPI if there was a live medical dispute, it was argued that Apps ought to be accepted and applied. In that case, parties had agreed that the body part in question was assessed at 0% WPI, and thus, no medical dispute arose within the meaning of the 1998 Act. In the absence of a medical dispute in the present matter, there was no medical dispute to be referred to a medical assessor in respect of the lumbar spine and face.
The Member was ultimately not persuaded by the appellant’s submission that a “medical dispute” existed under s 319 simply because the respondent had disputed that the appellant’s impairment was more than 20% in accordance with Shankar. In coming to this decision, the Member considered several lines of authority and the legislation relevant not only to s 39, but also medical assessments under s 65 of the 1987 Act and Part 7 of the 1998 Act, and specifically, the definition of a medical dispute under s 319.
The Member referred to Abou-Haidar as authority for the proposition that there is no basis for a medical assessment referral where an injured worker does not have evidence of permanent impairment beyond that which had already been the subject of compensation.[14] The Member referred to Sukkar as authority for the proposition that a claim for permanent impairment compensation that did not satisfy the s 66(1) threshold could not be referred to a medical assessor.
[14] Reasons, [91], [112].
The Member referred to Stafford, where Roche DP considered the meaning of the word “claim” in the context of one claim for permanent impairment pursuant to s 66(1A) to mean a valid claim which was capable of payment in accordance with the 1987 Act, or a “monetary benefit”.[15] The Member considered Apps, which adopted this approach. In Apps, Member Read found that a claim for 0% WPI was not valid, as no monetary benefit could be payable under the 1987 Act, nor was there a “medical dispute” capable of resolution by a medical assessor. Specifically, the Member noted Member Read’s findings at [43]–[45] that Abou‑Haidar, Stafford and Sukkar were powerful lines of authority to support this position, and did not agree with the line of authority in Shankar.[16]
[15] Reasons, [93], [113].
[16] Reasons, [103]–[107].
In turning to Shankar, the Member noted it concerned a decision of an arbitrator of the then Workers Compensation Commission to refuse to refer a body part to an approved medical specialist, as the arbitrator was not satisfied that employment had caused impairment to that body part. On appeal, Parker ADP overturned the arbitrator’s decision.
The Member referred specifically to Parker ADP’s following findings at [62]–[65] as “presupposing” that an assessment of 0% WPI can form the basis of a claim:
“The respondent’s submission is that because the specialists qualified by the parties have each assessed the appellant as having 0% impairment of the left upper extremity, there is no medical dispute within s 319 of the 1998 Act. It follows, so the argument runs, there is no jurisdiction to refer the matter to the Registrar for referral to an [approved medical specialist].
The premise of the argument is that s 319 is not engaged unless at least one of the qualified specialists has assessed the worker to have a percentage impairment of the relevant body part. In my view, that premise of the respondent’s argument is incorrect.
Section 319 is concerned with a dispute between ‘a claimant and the person on whom the claim is made’. It is engaged when the claim is refused by the person on whom the claim is made by reason of the topics specified in paragraphs (a) to (g).
In this matter, by the s 78 Notice, the respondent disputed that the appellant is ‘entitled to permanent impairment compensation for injury resulting from the nature and conditions of [Mr Shankar’s] employment.’ The Arbitrator resolved the issue concerning whether the appellant has sustained injury resulting from the nature and conditions of employment, but he had no jurisdiction to assess the degree of ‘permanent impairment.’ That issue could only be resolved by referral to an [approved medical specialist].”[17]
[17] Shankar at [62]–[65], cited at reasons [97]–[98].
The Member noted that Shankar interpreted a medical dispute as defined by s 319 of the 1998 Act to be engaged where a claim is refused by the person on whom the claim is made.[18] The Member noted Parker ADP’s view in Shankar was inconsistent with my decision in Ethertonv ISS Property Services Pty Ltd[19] regarding the repeal of s 65(3) of the 1987 Act authorising the Commission to determine the degree of permanent impairment, following the 2018 legislative amendments. The Member referred to ss 322A(1A) and 322A(3)(b) of the 1998 Act, finding that they “clearly” allowed the Commission to determine the degree of permanent impairment without referral to a medical assessor.[20]
[18] Reasons, [115].
[19] [2019] NSWWCCPD 53.
[20] Reasons, [99]–[100].
The Member considered there to be a significant difference between Shankar and the present case, and rejected the submission that Shankar stood for the simple proposition that an assessment of 0% WPI could be referred to a medical assessor. Rather, Shankar concerned a claim for compensation where an arbitrator had determined there was 0% WPI in respect of an injury – it was not a case where the “worker’s own uncontradicted medical evidence provided assessments of 0% ...”.[21]
[21] Reasons, [122].
The Member applied the Court of Appeal authority of Skates, which discussed the concept of a “medical dispute” (which I repeat in detail in my consideration below). Skates emphasised that a “medical dispute” arose when parties made different claims regarding the degree of permanent impairment. This was relevant, as the appellant was assessed by his own independent examiners as having no impairment to his face or lumbar spine. In considering the correspondence exchanged between the parties, the Member noted there was no contrary evidence adduced by the respondent when it responded to this claim in respect of the face or lumbar spine, nor were there differing assessments in respect of these body parts, nor a dispute in respect of those body parts.
The Member held:
“[It would be] difficult to comprehend why [the respondent’s insurer] would dispute those assessments, particularly in circumstances where the available medical evidence opined that no impairment had been sustained to particular body parts that were capable of forming part of a combined assessment. There were no competing claims in respect of the lumbar spine or the orofacial injuries (Skates).
Despite the Application identifying the medical dispute to be referred for assessment to include the face (right maxillary sinus and orbital nasal fracture), right elbow, left wrist, right leg and knee, left index finger and lumbar spine; the medical dispute was crystalised in the exchange of documents between the parties as referred to above”.[22]
[22] Reasons, [101]–[102], [117]–[121].
On this basis, the Member held that the face and lumbar spine did not form the basis of a medical dispute, and thus could not be included in a referral to a medical assessor.[23] The Certificate of Determination issued on 25 October 2022 therefore records:
[23] Reasons, [123]–[124].
“The Commission determines:
1.     The orofacial and lumbar spine injuries cannot be included in a referral to a Medical Assessor for assessment.
The Commission orders:
2.     The matter is remitted to the President for referral to a Medical Assessor pursuant to the Workplace Injury Management and Workers Compensation Act 1998 for assessment as to whether the degree of permanent impairment is more than 20% (s 39 of the Workers Compensation Act 1987) as follows:
Date of injury: 26 July 2016.
Body system: The right upper extremity (right elbow); left upper extremity (left wrist and left index finger); right lower extremity (right femur and right knee), and the skin (scarring – TEMSKI).
Method of assessment: Whole person impairment.
3.     The following documents are to be provided to the Medical Assessor:
(a)Application to Resolve a Dispute dated 24 May 2022 and attached documents;
(b) Reply dated 16 June 2022 and attached documents, and
(c) this Certificate of Determination and Statement of Reasons.”

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 PIC2 – Determination of matters ‘on the papers', and WC3 – 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.

GROUND OF APPEAL

The appellant pursues a single ground of appeal which is framed in the following way:
Ground One: “The Member erred in refusing to refer the lumbar spine and orofacial injuries to a Medical Assessor, thereby disregarding the Presidential Decision in Shankar which he was bound to follow.”

LEGISLATION

These proceedings concern an Application for Assessment by a Medical Assessor for an assessment as to the degree of permanent impairment for the purposes of s 39 of the 1987 Act, which provides:
“39    Cessation of weekly payments after 5 years
(1)     Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
(2)     This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Note—
For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
(3)     For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).”
Section 65 of the 1987 Act provides:
“65 Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
Section 319 of Part 7 of the 1998 Act defines a medical dispute as follows:
“319 Definitions
In this Act—
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim—
(a)     the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b)     the worker’s fitness for employment,
(c)     the degree of permanent impairment of the worker as a result of an injury,
(d)     whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e)     the nature and extent of loss of hearing suffered by a worker,
(f)      whether impairment is permanent,
(g)     whether the degree of permanent impairment of the injured worker is fully ascertainable.”

THRESHOLD MATTERS

Before proceeding to consider the single ground of appeal, there are two threshold issues raised in this matter. The first issue is quantum. The respondent asserts that the monetary limit provided for by s 352(3) of the 1998 Act is not satisfied. The second issue relates to the interlocutory character of the Member’s decision. The respondent submits that as the decision of Member Scarcella did not finally determine rights, it is interlocutory and leave to appeal is therefore required pursuant to s 352(3A) of the 1998 Act. The appellant does not contest this characterisation of the decision as being interlocutory and has furnished submissions seeking leave to appeal.[24]
[24] Appellant’s submissions in reply, 16 January 2023, [2]–[3].

First Issue - quantum

Section 352(3) of the 1998 Act provides as follows:
“There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
The respondent asserts that this appeal relates to two body parts only, the orofacial and lumbar spines where the appellant’s own assessments specify that there is 0% whole person impairment. The argument is that a 0% assessment returns a nil value on appeal, thus not satisfying the threshold.
In reply, the appellant says that the appellant was earning $1,154 gross per week for a 40 hour working week. The appellant was paid weekly compensation until 14 December 2021 when payments ceased. The appellant asserts that the value of weekly compensation from 14 December 2021 until the date of the Member’s decision of 25 October 2022, assuming 25 hours per week, well exceeds the threshold of $5,000.
I would note that neither party has made reference to any of the cases that construe and apply s 352(3) of the 1998 Act.

Consideration

There have been a number of cases which have considered the question of monetary thresholds in circumstances where the member (or arbitrator before the establishment of the Commission) was referring body part(s) to a medical assessor (formerly an approved medical specialist). These cases include Fleming DP in Fletchers International Exports Pty Ltd v Regan,[25] Roche DP in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services[26] and Snell ADP in Trustees for the Roman Catholic Church for the Diocese of Maitland-Newcastle v Barrett.[27] More recently, Snell DP said the following in Ausgrid v Parasiliti:[28]
“The appellant’s submissions do not adequately deal with the threshold in s 352(3) of the 1998 Act. The reference to 15 per cent would appear to be a reference to the threshold for the recovery of work injury damages in s 151H of the Workers Compensation Act 1987 (the 1987 Act). If that be the case, this is not a factor taken into account in dealing with the threshold in s 352(3). No compensation was awarded in the Arbitrator’s decision. In those circumstances it is settled practice in the Commission that whether the threshold in s 352(3) is satisfied is determined by reference to the claim as particularised by the worker.^[[29]] The claim was particularised in the current matter at $25,781.25, in respect of 17 per cent whole person impairment. The assessment of 17 per cent in Dr Giblin’s most recent report (on which the claim is based) is impairment of 7 per cent, 6 per cent and 4 per cent in respect of the lumbar spine, left upper extremity and right upper extremity respectively.
In Fletchers International Exports Pty Limited v Regan Fleming DP said:
‘While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSWWCCPD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCCPD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34) do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3), in issue in the appeal ...’. ^[[30]](emphasis in original)
The monetary value of the particularised impairment in respect of the right upper extremity, which was the component of the claim in issue, exceeds $5,000. The appeal has the capacity to affect recovery of the whole of that amount, if the finding that the condition of the right upper extremity is secondary to the left upper limb injury is set aside. The requirements of s 352(3) of the 1998 Act are satisfied.”[31] (emphasis added)
[25] [2004] NSWWCCPD 7 (Regan).
[26] [2007] NSWWCCPD 227.
[27] [2010] NSWWCCPD 62.
[28] [2020] NSWWCCPD 51 (Parasiliti).
[29] Grimson v Integral Energy [2003] NSWWCCPD 29, [30].
[30] Regan, [27].
[31] Parasiliti, [9]–[11].
Applying this dictum to the present case means that the threshold is surpassed. This matter is also a decision not involving an award of compensation. The respondent’s submission has concentrated on the two body parts which bear a 0% assessment. As I have described above, whilst these two body parts were in contest, the appellant’s “claim” was broader than just these two issues. The appeal has the capacity to affect an amount over $5,000. I find that the threshold is exceeded. This threshold challenge is not successful.

Second issue – interlocutory decision

The respondent to the appeal asserts that the Member’s decision is interlocutory. The appellant accepts that this is “likely” to be the case.
The decision is clearly interlocutory. In no way could the Member’s determination be said to have finally determined rights.[32] Consequently, the appellant requires leave to appeal under s 352(3A) of the 1998 Act. This provision provides as follows:
“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.”
[32] Licul v Corney [1976] HCA 6.
The appellant deals with the necessity to seek leave under s 352(3A) of the 1998 Act in his submissions in reply dated 16 January 2023.[33] The submissions in support of leave (at paragraph [3(a)–(e)]) in broad terms refer to the need for the Commission to resolve what the appellant says are apparent “inconsistent decisions” on the issue of whether a 0% assessment of a body part can be referred to a medical assessor. This submission substantially mirrors the arguments made by the appellant in support of his single ground of appeal, which states “there is presently substantial tension in the various cases handed down by Members and Presidential Members in relation to what constitutes a ‘dispute’.”[34] The appellant states that the Member was bound to follow the Presidential decision of Shankar, relying upon the doctrine of stare decisis.[35] The appellant relied extensively upon the Acting Deputy President’s reasoning in that matter in support of his submissions.[36]
[33] See paragraphs [2]–[3].
[34] Appellant’s submissions, 16 November 2022, [16].
[35] Appellant’s submissions, 16 November 2022, [27].
[36] Appellant’s submissions, 16 November 2022, [18]–[20], [25]–[34].
Notably, the appellant has made no submission in relation to the effect that the Court of Appeal decision in Skates may have upon this matter.
The respondent, in defence of the appeal ground, relies heavily on Skates.[37] Skates discussed the nature of a medical dispute, which remarks I will refer to below in my decision on the question of leave.
[37] Respondent’s submissions, [20]–[21].
The respondent also takes issue with the claim as it relates to the lumbar spine and orofacial injuries as not being a valid claim. The respondent argues that given the 0% assessment, this assessment is non compensable and thus cannot form a basis of a claim for compensation.[38] I would note that the appellant has not submitted any argument on this discrete issue.
[38] Respondent’s submissions, [22].
The respondent also says that the Presidential decision of Shankar can either be distinguished (in that it was a claim for benefits under s 66 of the 1987 Act) or that it was wrongly decided, pointing to the single member’s decision in Apps.

A few principles regarding the making of a valid claim

In Yildiz v Fullview Plastics Pty Limited[39] I discussed the requirements for the making of a claim under the workers compensation legislation:
“A ‘claim’ is defined in s 4 of the 1998 Act. It means a ‘claim for compensation or work injury damages that a person has made or is entitled to make’. ‘Compensation’ is also defined in s 4 of the 1998 Act. It means ‘compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts’. The term ‘made’ is not defined in the Act.
As discussed in the Presidential decision in Ottomen Pty Ltd ATF Labour ADM t/as Otto Design Interiors v Lee-Chee [[2013] NSWWCCPD 42], the provisions dealing with the manner of making a claim for compensation have had a long history of legislative amendment.The relevant claim provisions are those contained in Ch 7 of the 1998 Act, in particular ss 260 and 261 of the 1998 Act. Section 260 provides for how a claim is to be made and s 261 provides the time within which a claim for compensation must be made. Relevantly, s 261(1) provides that compensation cannot be recovered unless a claim for compensation has been made.”[40]
[39] [2019] NSWWCCPD 24 (Fullview Plastics).
[40] Fullview Plastics, [67]–[68].
Before proceedings were filed in this matter, the appellant’s solicitor served a copy of the report from Dr Pillemer upon the respondent’s insurer in response to a notification that his weekly payments would be coming to an end by operation of s 39 of the 1987 Act.[41] Dr Pillemer had assessed that the appellant suffered a 33% WPI as a result of his injuries and the appellant applied for a review of the insurer’s decision, relying upon Dr Pillemer’s opinion.[42] Dr Rimmer for the respondent, in his report dated 27 April 2021,[43] assessed the appellant’s right and left wrists, right elbow, right femur and right knee as producing a total WPI figure of 8%. The dispute in this matter was therefore about whether the appellant exceeded 20% WPI for the purposes of s 39 of the 1987 Act. This was apparent from the respondent’s letter to the appellant dated 17 May 2022, in which the discrepancy in the medical opinions regarding the right knee was noted, and the respondent stated:
“In light of these two competing opinions and assessment of permanent impairment, we do not have sufficient medical evidence to concede that there is entitlement to ongoing weekly payments of compensation beyond 260 weeks on the basis of more than 20% whole person impairment resulting from the injury …”.[44]
[41] AAMA, p 8.
[42] AAMA, p 9.
[43] Reply, p 10.
[44] AAMA, p 21.
As noted above, the appellant filed an AAMA which sought an assessment of whether his degree of permanent impairment was greater than 20% (s 39 of the 1987 Act). The body parts were specified at page 2 of the AAMA in the following manner, “face (right maxillary sinus & orbital nasal fracture), right elbow, left wrist, right leg & knee, left index finger, and lumbar spine.”
In support of these claims the appellant relied upon reports from Dr Pillemer dated 17February 2022[45] and Dr Curtis dated 15 February 2022.[46] Dr Pillemer assessed the appellant’s right lower extremity, the right upper extremity, the left upper extremity, the lumbar spine and scarring. At page 7 of his report,[47] a table appears containing Dr Pillemer’s calculations of the various whole person impairment percentages he has assessed. The combined total produces a WPI percentage of 33%. With regards to the appellant’s lumbar spine, Dr Pillemer assessed 0% WPI, having earlier noted “at this stage Mr Voudouris falls into DRE Category 1 of his lumbar spine with no residual impairment”.[48]
[45] AAMA, p 12.
[46] AAMA, p 37.
[47] AAMA, p 18.
[48] AAMA, p 17.
In terms of the orofacial injuries, Dr Curtis found that “[i]n relation to the orofacial injuries[,] [t]here does not appear to be any ongoing complaints or impairments related to any of the injuries.”[49] Dr Curtis then assesses that “[t]here is no resultant impairment in relation to orofacial injuries in this case”.[50]
[49] AAMA, p 38.
[50] AAMA, p 39.

A few principles in respect of a medical dispute

I have set out in the section entitled “Legislation” (above) the provisions contained in s 319 of the 1998 Act. The Court of Appeal in Skates had cause to review these provisions. Leeming JA said as follows:
“44. 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.
45.    In the present case Mr Skates’ ‘Application to Resolve a Dispute’ was received by the Commission on 8 August 2017. It described his injury as ‘Injury to left wrist, ring finger and scarring’ and stated that he had a permanent impairment of 18% by reference to ‘Left upper extremity, joint ring finger and scarring’. A medical report accompanying Mr Skates’ application from Dr O’Keefe stated that the whole person impairment had been assessed according to the ‘new WorkCover 4 guidelines’, and that insofar as it was based on his ‘left upper extremity’ it comprised impairment to the wrist and ring finger by reference to particular figures in the AMA5 Guide. Mr Skates’ application also included a letter from the workers compensation insurer dated 11 July 2017. The letter referred to the claim and Dr O’Keefe’s assessment of whole person impairment of 18% based on ‘Left upper limb (wrist, ring finger) 15% WPI’, ‘Scarring 3% WPI’. The letter stated that it had arranged for Mr Skates to be examined by Dr Panjratan, whose assessment was ‘Left upper limb (wrist, ring finger) 11% WPI’ and ‘Scarring 1% WPI’ yielding a total of 12% WPI, and it made a settlement offer on that basis.
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.
47.    Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences ‘Referral of medical dispute’ and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate.
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 is but an aspect of the statutory scheme to resolve the dispute.
49.    The document signed by the Registrar’s delegate and dated 1 September 2017 described itself as a ‘Referral for Assessment of Permanent Impairment to Approved Medical Specialist’. Its first numbered subheading was ‘Medical Dispute Referred for Assessment’ and there it stated, wrongly, ‘Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)’. That was wrong insofar as it did not include Mr Skates’ wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. The Appeal Panel was correct to state that the Approved Medical Specialist had gone beyond assessment of the medical dispute which had been referred to him.
50.    The foregoing substantially corresponds with the first explanation given by Basten JA for confirming the correctness of the result reached by the Appeal Panel and the primary judge, with a heavier emphasis upon the purpose of the statutory regime being to resolve a medical dispute and that a dispute is identified by the disputants’ competing claims.” (italicised emphasis in original, underlined emphasis added by me)
As can be gleaned from His Honour’s remarks (above) that I have highlighted, the essence of the Commission’s power to entertain a medical dispute is the existence of a dispute.

Consideration

I will commence this consideration by dealing with the argument pertaining to Skates. As I have highlighted above, the “fundamental legal concept is a dispute.” In this case, just as His Honour described the process in Skates at [45]–[46], the dispute was crystallised by the exchange of material between the parties, principally the exchange of medical opinions and the appellant’s application for review of the insurer’s decision based on Dr Pillemer’s opinion and his 33% WPI assessment, that included the 0% assessment for the lumbar spine. The various WPI assessments are clearly ascertainable from a review of the material and I have set them out above. As I have set out, the assessments provided with respect to the two body parts in question were 0%. The respondent provided no medical opinion or notice which took issue with either 0% WPI assessment. Axiomatically there was no medical dispute with respect to either the orofacial injury or the lumbar spine. The condition precedent for the exercise of the Commission’s power with respect to a medical dispute had never arisen in relation to these two body parts. As a consequence, I am of the opinion that the grant of leave is neither necessary or desirable for the proper and effective determination of this dispute. It would not be proper or effective to facilitate a medical assessment of matters which are not in dispute.
Turning to whether the claim in relation to the orofacial injury and lumbar spine is a valid claim, I refer to the extract from Fullview Plastics I have set out above. A valid claim, inter alia, involves a claim for compensation. In this matter the dispute about whether the appellant surmounts the s 39 threshold I accept is a claim for compensation. But the constituent parts of the claim are made up of the various WPI assessments, including two assessments of 0%. The individual assessments of 0%, by definition, cannot form part of the claim for compensation as neither contributes to the WPI percentage necessary to surmount the s 39 threshold. As a result, neither is a valid claim.

It would not be proper or effective for the determination of this dispute to permit a claim which is not valid to proceed to a medical assessment. By claim, I refer to the orofacial and lumbar spines only. The balance of the appellant’s claims pursued in this matter are valid claims.
I decline to grant the appellant leave to appeal pursuant to s 352(3A) of the 1998 Act.

DISCUSSION – AS TO GROUND ONE

As is evident, I have declined to grant the appellant leave to appeal the Member’s interlocutory decision. For the reasons that I declined leave to appeal, this also has the effect of dismissing Ground One. The argument seeking leave by the appellant was in substantially the same terms as those supporting Ground One.
However, this appeal ground raises an issue about what the appellant describes as apparent inconsistencies and ‘substantial tension’ in various Commission decisions as to whether a 0% WPI assessment is capable of referral to a medical assessor. The tension as described by the appellant is between the Presidential decision in Shankar on one hand and on the other a number of other cases, namely Abou-Haidar, Stafford, Sukkar, Skates and Apps.[51] The appellant asserts that the Member in this case was bound to follow Shankar, as it was a Presidential decision and the doctrine of stare decisis required the Member to follow Shankar.
[51] Appellant’s submissions, 16 November 2022, [12(a)].
Notwithstanding my decision not to grant leave to appeal, it is necessary for me to deal with this argument.
As a preliminary matter, it is worth noting the timing of the issuing of the various decisions. Abou-Haidar was a 2010 decision, Stafford 2015 and Sukkar 2014. Two were Presidential decisions and Sukkar was decided by the Court of Appeal. Shankar was decided on 16 June 2021. Skates was decided by the Court of Appeal on 14 July 2021, so shortly under a month later. Apps was decided on 29 April 2022. Apps is the only single first instance member decision in this group of decisions. The decision in this matter was by a single member delivered on 25 October 2022.
The doctrine of stare decisis is the doctrine of precedent, literally “to stand by decided matters.” In Burwood Council v PD Mayoh Pty Ltd,[52] Clarke AJA (Priestley and Beazley JJA agreeing) said as follows:
“Although discussion of the doctrine of precedent usually focuses on the difficulty in some cases of identifying the ratio decidendi ... it is clear, in my opinion, that in appropriate cases the actual decision binds an inferior court. Where that decision takes the form of a declaration that a statutory instrument is invalid it would seem clearly to follow that no inferior court is thereafter entitled to say that the instrument is valid or partly valid. The position was expressed, in [terms] with which I agree, by Lord Diplock in Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at 365:
‘Under our legal system, however, the courts as the judicial arm of government do not act on their own initiative. The jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter [partes] either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus [standi] to initiate proceedings to challenge the validity of the instrument. Unless there is such a challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed. It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings (cf Ridge v Baldwin [1964] AC 40). Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in reliance on the law which the statutory instrument purported to declare.’
This authority is consistent with the dictum of Viscount Dunedin in Great Western Railway Co v Owners of SS Mostyn (The Mostyn) [1928] AC 57 at 73:
‘Now, when any tribunal is bound by the judgment of another court, either superior or co-ordinate [sic, subordinate], it is, of course, bound by the judgment itself. And if from the opinions delivered it is clear … what the ratio decidendi was which led to the judgment, then that ratio decidendi is also binding.’” (emphasis added)
[52] [1997] NSWCA 53.
It is beyond doubt that the Commission’s members, both presidential and non-presidential, are bound to follow decisions of the Court of Appeal.[53]
[53] Section 8 of the 2020 Act.
At the time the learned Acting Deputy President decided Shankar, the Court of Appeal’s decision in Skates had not yet been delivered. The Acting Deputy President decided Shankar, for the purposes of this discussion, principally on the basis of a construction of s 319 of the 1998 Act.[54] Whilst there are some similarities in the approach taken by the Acting Deputy President and that of the Court of Appeal in Skates, the principal difference is this. The Acting Deputy President noted that the dispute as framed by the claimant in that matter had been disputed in full in the s 78 notice and that the dispute as framed, which included all body parts, even those with a 0% assessment, could only be resolved by the medical assessor (then termed an approved medical specialist). In Skates, Leeming JA went further and found “[i]t 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 so doing was to resolve the dispute.”[55] In this case there was no dispute at all inter partes about the orofacial injury and lumbar spine. This fact is directly affected by the decision in Skates.
[54] See Shankar, [50]–[77].
[55] Skates, [46].
Once Skates was decided, Commission members were bound to follow that authority and to not follow Presidential authority (Shankar) which is contrary to a decision of the Court of Appeal. By the time Apps was decided, the Member, consistent with the principle of stare decisis, was bound to apply Skates and not Shankar where the two decisions relevantly diverged. Looked at in this manner, there are no inconsistent decisions as asserted by the appellant. Rather, the doctrine of stare decisis was meticulously observed and applied. There was no error on the Member’s part in that regard.
Ground One is dismissed for the reasons set out in this section of the decision and for the reason that I have declined to grant leave to appeal.

DECISION

The appellant’s application for leave to appeal pursuant to s 352(3A) of the 1998 Act is declined.
The Certificate of Determination dated 25 October 2022 is confirmed.
This matter is referred to a medical assessor in accordance with the terms of the Certificate of Determination dated 25 October 2022.

Judge Phillips
PRESIDENT

31 August 2023