Voudouris v TDV Constructions Pty Ltd
[2022] NSWPIC 596
•25 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Voudouris v TDV Constructions Pty Ltd [2022] NSWPIC 596 |
| APPLICANT: | Tom Voudouris |
| RESPONDENT: | TDV Constructions Pty Limited |
| Member: | Anthony Scarcella |
| DATE OF DECISION: | 25 October 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Application for assessment by a Medical Assessor (MA) as to whether the worker’s degree of permanent impairment is more than 20%; section 39 of the Workers Compensation Act 1987 (1987 Act); worker sought referral in respect of accepted orofacial and lumbar spine assessed on his behalf at 0% whole person impairment; Abou-Haidar v Consolidated Wire Pty Ltd, Woolworths Limited v Stafford, Sukkar v Adonis Electrics Pty Ltd, Shankar v Ceva Logistics (Australia) Pty Ltd, Skates v Hills Industries Ltd, Apps v Secretary, Department of Communities and Justice, Guzman v Trade West Pty Ltd, Caulfield v Kartaway Pty Ltd and Etherton v ISS Property Services Pty Ltd considered; Held – the orofacial and lumbar spine injuries cannot be included in a referral to a MA for assessment; 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) remitted to the President for referral to a MA 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%; section 39 of the 1987 Act. |
determinations made: | 1. The orofacial and lumbar spine injuries cannot be included in a referral to a Medical Assessor for assessment. |
| orders made: | 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. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Tom Voudouris, is a 49-year-old man who was employed by the respondent, TDV Constructions Pty Limited (TDV), as a builder. Mr Voudouris is also the sole director of TDV.
On 26 July 2016, Mr Voudouris alleges that, whilst at a worksite in Cronulla, he fell 3.2 m through a void in the building to the concreted ground below and sustained facial fractures (right maxillary sinus and orbital nasal fractures), a fractured right elbow, a comminuted fracture to the left wrist, a fractured right femur, displaced fractures of the distal femoral shaft of the right knee, damage to the extensor tendon of the left index finger and an injury to the lumbar spine.
Mr Voudouris lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act) and received benefits.
On 12 May 2021, AAI Limited t/as GIO (GIO), acting as the agent of NSW Self Insurance Corporation (icare), issued a letter to Mr Voudouris advising that injured workers with a permanent impairment of 20% or less are entitled to weekly payments for up to a maximum of 260 weeks; that, to date, he had been paid 229 weeks of payments; that, on 16 April 2021, Dr Stephen Rimmer, orthopaedic surgeon, determined his whole person impairment to be 8%; and that, therefore, he would no longer be receiving weekly benefits from
14 December 2021 but that medical expenses would be covered for up to two years after the cessation of his weekly benefits.[1][1] Application for Assessment by a Medical Assessor at pages 6-7
On 13 September 2021, GIO issued a letter by way of a final notice advising Mr Voudouris of the cessation of the payment of weekly benefits compensation under s 39 of the 1987 Act.[2] The letter informed Mr Voudouris that, based on the assessment of Dr Rimmer on
16 April 2021, Mr Voudouris’ whole person impairment had been assessed at 8% and that he would have no entitlement to weekly benefits after a total of 260 weeks being, on14 December 2021. The letter also advised that approved medical expenses would be covered for up to two years after the cessation of weekly benefits compensation.[2] Response to Application for Medical Assessment at pages 8-9.
On 24 February 2022, Mr Voudouris, through his lawyers, requested a review of GIO’s decision to terminate weekly compensation payments on 14 December 2021 under s 39 of the 1987 Act. The request for a review was purportedly made under s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The request for a review was based on a report by Dr Roger Pillemer, orthopaedic surgeon, dated
17 February 2022, who assessed Mr Voudouris’ whole person impairment at 33%.[3][3] Application for Assessment by a Medical Assessor at pages 8-11.
In a letter incorrectly dated 17 May 2022 attached to an email dated 10 March 2022, GIO responded to Mr Voudouris’ request to review its decision under s 39 of the 1987 Act.[4] GIO stated that s 287A of the 1998 Act timeframes did not apply as there was no dispute and that a s 78 notice had not been issued. GIO asserted that its letter dated 12 May 2021 was not a dispute notice but rather, it informed Mr Voudouris of the statutory provisions regarding weekly payments of compensation and that, as the work injury had not resulted in a degree of permanent impairment of more than 20%, he would not be entitled to ongoing workers compensation payments in accordance with s 39 of the 1987 Act. The letter went on to state as follows:
“Nonetheless, we have considered the information served supporting the contention that there is entitlement to weekly payments of compensation beyond 260 weeks. You have provided the report of Dr Roger Pillemer, Orthopaedic Surgeon, dated 17 February 2022. Dr Pillemer has assessed a combined whole person impairment of 33% WPI in respect of the right elbow, right knee, left wrist and scarring due to the work injury of 25 July 2016.
We note that Dr Pillemer has assessed the right knee as having 20% whole person impairment and appears to rely on radiological imaging which allegedly reveals that there is bone on bone in the right knee on weight-bearing. We have not been provided with this particular radiological imaging. Please provide this as a matter of urgency.
We note that Orthopaedic Surgeon Dr Rimmer assessed the right knee as having a 0% permanent impairment. He assessed a combined whole person impairment of 8% of the accepted workplace injury.
In the 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 of 25 July 2016.
In the light of the new evidence provided, we propose to request a supplementary report from Dr Rimmer. We would be pleased if you would provide the above-mentioned radiology and any other medical evidence considered by Dr Pillemer in providing the assessment. We will reconsider our position on receipt of Dr Rimmer’s further opinion.”[5]
[4] Application for Assessment by a Medical Assessor at page 21.
[5] Application for Assessment by a Medical Assessor at page 21.
Mr Voudouris’ lawyers provided GIO with a copy of the medical imaging report it requested in respect of the right knee and offered to provide the X-ray images upon receiving an undertaking to return the same. Thereafter, there were numerous email exchanges in respect of facilitating the delivery of the X-ray images to Dr Rimmer. It was unclear whether the X-ray images were ever received by Dr Rimmer. There was no supplementary report by Dr Rimmer in evidence.
Mr Voudouris, through his lawyers, lodged an Application for Assessment by a Medical Assessor dated 24 May 2022 (the Application) in the Workers Compensation Division of the Personal Injury Commission (the Commission) seeking an assessment by a Medical Assessor as to whether the degree of permanent impairment as a result of the injury sustained in the course of his employment with TDV on 26 July 2016 was more than 20%
(s 39 of the 1987 Act).In the Application, Mr Voudouris identified the medical dispute to be referred for assessment to include the following body parts:
(a) face (right maxillary sinus and orbital nasal fracture);
(b) right elbow;
(c) left wrist;
(d) right leg and knee;
(e) left index finger, and
(f) lumbar spine.
In respect of Mr Voudouris’ face (right maxillary sinus and orbital nasal fracture), Dr Nigel Curtis, oral and maxillofacial surgeon, opined that there was no resultant whole person impairment in relation to those orofacial injuries. There was no reduction in the ability to chew, no disfigurement and no sensory loss identifiable.[6] Dr Curtis was engaged as an independent medical examiner for Mr Voudouris.
[6] Application at page 39 at [5].
In respect of Mr Voudouris’ lumbar spine, Dr Pillemer opined that Mr Voudouris fell into DRE Category I with no residual impairment[7] and assessed the lumbar spine at 0% whole person impairment.[8] Dr Pillemer was engaged as an independent medical examiner for Mr Voudouris.
[7] Application at page 17.
[8] Application at page 18.
ISSUES FOR DETERMINATION
The parties agreed that the issue for determination is whether a body system which has been assessed at 0% whole person impairment can be referred to a Medical Assessor for assessment.
PROCEDURE BEFORE THE COMMISSION
The parties participated in a teleconference on 30 June 2022. Ms Ann Parnell, solicitor appeared for Mr Voudouris and Mr Declan Rainer appeared for TDV.
At the teleconference, Mr Rainer advised that injury to Mr Voudouris’ lumbar spine was in dispute and the matter was set down for a conciliation conference and arbitration hearing on 28 September 2022, well outside the Commission’s timeframe because Mr Voudouris was going to be overseas in August and September 2022.
At the teleconference, it was agreed that an additional body part that had been omitted for assessment in the Application was the skin (scarring – TEMSKI).
On the intervention of the Commission’s Division Head, the conciliation/arbitration was brought forward to 10 August 2022 to deal with the disputed injury to the lumbar spine. I issued directions for written submissions on the preliminary issue as to whether a body system which had been assessed at 0% whole person impairment could be referred to a Medical Assessor for assessment prior to the scheduled conciliation conference and arbitration hearing. At the conclusion of the time allowed for submissions, the preliminary issue was to be determined ‘on the papers’. By way of notation in my directions for written submissions, I drew the parties’ attention to the following authorities:
(a) Abou-Haidar v Consolidated Wire Pty Ltd[9] (Abou-Haidar);
(b) Woolworths Limited v Stafford[10] (Stafford);
(c) Sukkar v Adonis Electrics Pty Ltd[11] (Sukkar);
(d) Shankarv Ceva Logistics (Australia) Pty Ltd[12] (Shankar);
(e) Skates v Hills Industries Ltd[13] (Skates), and
(f) Apps v Secretary, Department of Communities and Justice[14] (Apps).
[9] Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128.
[10] Woolworths Limited v Stafford [2015] NSWWCCPD 36.
[11] Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459.
[12] Shankarv Ceva Logistics (Australia) Pty Ltd (2021) NSWPICPD 18.
[13] Skates v Hills Industries Ltd [2021] NSWCA 142.
[14] Apps v Secretary, Department of Communities and Justice [2022] NSWPIC 190.
On 22 July 2022, I vacated the conciliation conference and arbitration hearing on
10 August 2022 because TDV’s lawyers notified the Commission that liability in respect of injury to Mr Voudouris’ lumbar spine was no longer in dispute.I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application dated 24 May 2022 and attached documents;
(b) Response to Application for Medical Assessment (Response) dated
16 June 2022 and attached documents;(c) Mr Voudouris’ written submissions dated 11 July 2022, and
(d) TDV’s written submissions dated 18 July 2022.
Mr Tom Voudouris’ evidence
In evidence, there is a statement by Mr Voudouris dated 31 March 2022.[15] I will now refer to the relevant parts of that statement.
[15] Application at pages 1-5.
Mr Voudouris stated that, on 26 July 2016, whilst at a worksite in Cronulla, he fell 3.2 m through a void in the building to the ground below. He was unconscious for some time. He stated that as a result of the fall, he sustained facial fractures being right maxillary sinus and orbital nasal fractures; a dental fracture to tooth 47; a fractured right elbow; a comminuted fracture to the left wrist; a segmental fracture of the right femur; damage to the extensor tendon of the left index finger; displaced fractures of the distal femoral shaft of the right knee, and an injury to the lumbar spine.
Mr Voudouris stated that, following the fall on 26 July 2016, he was conveyed by ambulance to St George Hospital, where he was admitted for nine days, transferred to Waratah Private Hospital for recovery and then to Kareena Private Hospital for rehabilitation. He was an inpatient in those hospitals for a total of about six weeks. Thereafter, he continued to attend Kareena Private Hospital as an outpatient three times per week for about 14 weeks. He also underwent treatment at Southern Hand Therapy twice per week for about 14 weeks. He was on crutches for about 14 weeks.
Mr Voudouris stated that, whilst an inpatient at St George Hospital, he underwent an internal fixation of his right elbow fracture; an internal fixation to the right proximal and distal femur fracture; and an open reduction and internal fixation to the distal radius fracture of the left wrist. He was under the care of Dr Geoffrey Smith, orthopaedic surgeon. He also underwent repairs to his facial fractures by Dr Shearing at St George Hospital.
Mr Voudouris stated that, on 15 August 2016, he underwent a revision of his left wrist procedure with a repair of the extensor tendon of the left index finger. On
14 November 2016, he underwent a surgical removal of a locking screw in the right femur. On 20 February 2017, he underwent a removal of the hardware in his left wrist and a bone graft of the distal radius. On 28 August 2017, he underwent a right knee arthroscopy and removal of screws and nails in his right knee. Dr Smith recommended and he obtained an orthosis because his right leg was about 12mm [incorrectly referred to as 12cm] shorter than his left leg. On 8 September 2020, he underwent a release of the first dorsal compartment and extensor tenosynovectomy of the left wrist; excision of the radial styloid of the left wrist; and partial denervation of the left wrist by Dr Mark Nabarro, hand and micro surgeon.Mr Voudouris stated that, in about June/July 2017, he experienced sensitivity in his teeth. He consulted Dr Venkata Mudunuri, dental surgeon, in about October 2017. Dr Mudunuri examined his teeth, took some X-rays and advised him that there was a crack at tooth 47, which would require a crown. In about July 2020, he sought treatment for tooth 47 with Dr K Nouris, dental surgeon, who recommended root canal therapy and a crown. GIO denied liability for the required dental treatment. In about July 2021, Mr Voudouris underwent the treatment recommended by Dr Nouris at his own expense with some contribution from his private health fund.
Mr Voudouris stated that in about March 2018, he experienced severe pain to the left side of his lower back. He underwent an X-ray of his lower back on 12 April 2018 and an MRI scan of his lower back on 30 April 2018. Thereafter, he was referred to Dr Mark Davies, neurosurgeon for treatment of his persistent back pain.
Dr Stephen Rimmer’s evidence
On 16 April 2021, Mr Voudouris consulted Dr Rimmer at the request of GIO. In evidence, there is a report by Dr Rimmer dated 27 April 2021.[16] I will now refer to the relevant parts of that report.
[16] Response at pages10-17.
Dr Rimmer did not examine Mr Voudouris or provide an opinion in respect of his orofacial injuries as he was not requested to do so.
Dr Rimmer was requested by GIO to provide a “s 39 whole person impairment”[17] in respect of the injuries to Mr Voudouris’ right olecranon, right elbow fracture, comminuted fracture of the left distal radius, segmental fracture of the right femur, left index finger, right knee and lumbar spine on 25 July 2016.
[17] Response at page 15.
Dr Rimmer recorded Mr Voudouris’ current symptoms in his right lower limb, right knee and left wrist. He did not record any symptoms in respect of the lumbar spine.
Despite having been requested to include an impairment assessment of Mr Voudouris’ lumbar spine, Dr Rimmer did not report on having examined the lumbar spine. Dr Rimmer reported on his observations on examination of Mr Voudouris’ cervical spine, bilateral shoulders, right elbow, right hip, right knee and left wrist. Dr Rimmer did not refer to any medical imaging in respect of Mr Voudouris’ lumbar spine.
Dr Rimmer opined that Mr Voudouris’ injuries had reached maximum medical improvement and made the following assessments of whole person impairment:
(a) right elbow: 2% whole person impairment;
(b) left wrist: 6% whole person impairment;
(c) right femur – hemi-femoral shaft fracture: 0% whole person impairment, and
(d) right knee: 0% whole person impairment.
Dr Rimmer made no whole person impairment assessment in respect of Mr Voudouris’ lumbar spine.
Dr Rimmer, combining the right elbow and left wrist assessments, assessed Mr Voudouris’ whole person impairment at 8%. There was no deduction under s 323 of the 1998 Act.
Dr Nigel Curtis’ evidence
On 11 February 2022, Mr Voudouris consulted Dr Curtis at the request of his lawyers. In evidence, there is a report by Dr Curtis dated 15 February 2022.[18] I will now refer to the relevant parts of that report.
[18] Application at pages 37-40.
Dr Curtis was engaged to provide his opinion in respect of Mr Voudouris’ orofacial and dental injuries.
Dr Curtis took a history from Mr Voudouris that was consistent with the evidence.
On clinical external facial examination, Dr Curtis observed no evidence of disfigurement or scarring; no loss of sensation in the distribution of the right infra-orbital nerve; no reduction of nasal breathing; a nasal tip deviation from a previous nasal fracture; some mild dysfunction and clicking in the left temporomandibular joint that did not reduce any ability to chew hard foods.
On intraoral examination, Dr Curtis observed the 17 to 27 teeth present in the maxilla and the 37 to 47 teeth present in the mandible; the 47 tooth had a crown in situ; all dental treatment carried out appeared to be of good quality; there were no other soft tissue abnormalities; and oral hygiene appeared good.
Dr Curtis was requested to provide an opinion as to the percentage of whole person impairment assessed in respect of Mr Voudouris’ facial and dental injuries. In response, Dr Curtis opined:
“There is no resultant impairment in relation to orofacial injuries in this case, with no reduction in ability to chew, no disfigurement and no sensory loss identifiable.”[19]
[19] Application at page 39 at [5].
Dr Roger Pillemer’s evidence
On 17 February 2022, Mr Voudouris consulted Dr Pillemer at the request of his lawyers. In evidence, there is a report by Dr Pillemer dated 17 February 2022.[20] I will now refer to the relevant parts of that report.
[20] Application at pages 12-19.
Dr Pillemer took a history from Mr Voudouris that was, in the main, consistent with the evidence.
Dr Pillemer recorded Mr Voudouris’ current symptoms in his left wrist, right knee, lumbar spine and right elbow. He noted that Mr Voudouris had sustained facial injuries and deferred to his treating specialist’s reports in this regard.
On examination of Mr Voudouris’ lumbar spine, Dr Pillemer observed an excellent range of back movement being easily able to touch his toes; other movements were satisfactory; straight leg raising was normal; reflexes were present and equal; motor power was good in all groups tested; and there was some hypoaesthesia to pin prick of the soles of the feet, particularly on the left side due to his previous neuropathy.
Dr Pillemer opined that Mr Voudouris’ condition had stabilised and reached maximal medical improvement and made the following assessments of whole person impairment:
(a) right lower extremity: 20% whole person impairment;
(b) right upper extremity: 1% whole person impairment;
(c) left upper extremity: 14% whole person impairment;
(d) lumbar spine: 0% whole person impairment, and
(e) scarring (TEMSKI): 2% whole person impairment.
Combining the impairment assessments referred to above, Dr Pillemer assessed a total of 33% whole person impairment without making any deduction for pre-existing conditions.
In respect of Mr Voudouris’ lumbar spine, Dr Pillemer stated:
“As noted at this stage Mr Voudouris falls into DRE Category I of his lumbar spine with no residual impairment.”[21]
SUBMISSIONS
[21] Application at page 17.
Mr Voudouris’ submissions
Mr John Gaitanis of counsel prepared submissions for Mr Voudouris and his written submissions dated 10 July 2022 were lodged with the Commission. I only propose to provide an outline of those written submissions.
Mr Voudouris’ claim is not made pursuant to s 66 of the 1987 Act for payment of lump sum compensation. Mr Voudouris’ application is one for assessment by a Medical Assessor as to whether the degree of permanent impairment is more than 20% (s 39 of the 1987 Act).
The authorities cited in the Member’s directions for written submissions deal, to a significant extent, with the necessity of bringing a valid claim for permanent impairment compensation as a precondition to a referral to a Medical Assessor: (Apps). The Member in Apps was critical of Parker ADP’s decision in Shankar and concluded that his reasoning was flawed and the decision incorrect.
The Commission should accept that the principles in Shankar are sound and ought to be applied in this case.
In these proceedings, a valid claim as recited in authorities such as Apps has not been made.
The present case is distinguishable from Abou-Haidar, Stafford, Sukkar, and Skates, which all involved claims for lump sum compensation and where the issue of a valid claim as a precondition to referral to a Medical Assessor loomed large. The present dispute is one involving an assessment to determine whether Mr Voudouris’ whole person impairment exceeds 20%.
Dr Pillemer examined Mr Voudouris for the purposes of these proceedings and provided a report dated 17 February 2022. It was clear from Dr Pillemer’s opinion that he accepted that Mr Voudouris had sustained an injury to the lumbar spine. However, at the time of examination, he categorised the injury as a DRE Category I of his lumbar spine with no residual impairment.
These proceedings were commenced as a result of GIO’s notification dated 12 May 2021 to Mr Voudouris that he would have reached 260 weeks of payments on or about
14 December 2021. The notification further indicated that, based on the assessment of GIO’s independent medical examiner, Dr Rimmer, who assessed whole person impairment at 8%, Mr Voudouris would have no further entitlement to weekly benefits after a total of 260 weeks compensation had been paid.Dr Rimmer’s report dated 27 April 2021 failed to deal with Mr Voudouris’ lumbar spine notwithstanding that he was requested to provide an assessment in respect of it.
On 24 February 2022, Mr Voudouris’ lawyers invited GIO to consider that the degree of permanent impairment was likely to be more than 20%. On 17 May 2022, GIO responded in the terms referred to in [7] above.
Mr Gaitanis submitted that a dispute had been raised because GIO had disputed that whole person impairment exceeded 20%. Accordingly, s 319 of the 1998 Act applies as contemplated by Parker ADP in Shankar and for the reasons expressed in Shankar, the Member does not have any work to do in this matter other than refer the claim to a Medical Assessor for assessment.
Mr Gaitanis set out what he submitted to be Parker ADP’s reasoning in Shankar from [51] to [76] in that decision.
In these proceedings, TDV has disputed that Mr Voudouris’ degree of permanent impairment is more than 20%. This satisfies s 319 of the 1998 Act that a medical dispute exists. TDV prefers the assessment of Dr Rimmer and ceased payments of weekly compensation at the end of 260 weeks. Mr Gaitanis submitted that TDV has therefore issued a dispute.
Mr Gaitanis submitted that the principles in Guzman v Trade West Pty Ltd[22] (Guzman) ought to be applied. That is, it is not just the evidence of the parties that is decisive but that the assessment made by the Medical Assessor that will be based on, not only the evidence of the parties, but also on the Medical Assessor’s own medical experience and expertise and it cannot be known before the assessment is carried out. Further, questions as to liability and injury remain within the province of the decision-maker but questions as to impairment are to be dealt with by a Medical Assessor: Caulfield v Kartaway Pty Ltd[23] (Caufield).
[22] Guzman v Trade West Pty Ltd [2017] NSWWCCPD 44.
[23] Caulfield v Kartaway Pty Ltd [2014] NSWCCPD 34 at 54.
Mr Gaitanis respectfully submitted that the decision of Apps is a non-Presidential one. Shankar is the most recent Presidential decision and the reasoning in Shankar should be applied in this matter. The criticisms by the Member in Apps should not be adopted until such time as the reasoning in both Apps and Shankar are tested in a superior jurisdiction. Therefore, for the time being, Shankar prevails.
Notwithstanding Dr Pillemer’s assessment as of 17 February 2022, the lumbar spine should be referred together with the other body parts claimed for assessment of impairment by a Medical Assessor as at the time of the assessment.
TDV’s submissions
Mr Rainer prepared submissions for TDV and lodged written submissions with the Commission dated 18 July 2022. I only propose to provide an outline of those written submissions.
TDV initially sought to dispute liability for the lumbar spine. However, it has since withdrawn the dispute and now concedes that liability has been established in regard to the lumbar spine for the subject injury of 26 July 2016.
TDV confirmed that the only matter in dispute now is the subject of this preliminary issue, being whether a body part which has been assessed at 0% whole person impairment can be referred to a Medical Assessor.
Mr Voudouris relied on the report of Dr Pillemer dated 17 February 2022. Dr Pillemer noted that, at that stage, Mr Voudouris fell into DRE Category I of his lumbar spine with no residual impairment and assessed the lumbar spine at 0% whole person impairment. There was no other permanent impairment assessment of Mr Voudouris’ lumbar spine other than that provided by Dr Pillemer.
TDV agreed with Mr Voudouris’ submission that his claim was not made under s 66 of the 1987 Act for payment of lump sum compensation. As such, TDV submitted that this claim was not subject to the provisions contained in Division 4 of the 1987 Act.
Part 7 of Chapter 7 of the 1998 Act concerns itself with medical assessments, including provisions for referrals for medical assessments. TDV referred to the meaning of a medical dispute in the relevant parts of s 319 and in particular, subsections (c), (d), (f) and (g). TDV also referred to ss 321, 321A and 329 of the 1998 Act concerning referrals of medical disputes for assessment by a Medical Assessor.
In Shankar, Parker ADP held that an injured body system that was assessed with a 0% whole person impairment by an independent medical expert could still be referred to a Medical Assessor provided there was a medical dispute within the meaning of the 1998 Act.
In Apps, the Member found that, as the parties agreed that the lumbar spine injury in that case resulted in 0% whole person impairment and therefore, there was no medical dispute within the meaning of the 1998 Act regarding the degree of impairment of the lumbar spine due to the workplace injury, the lumbar spine could not be referred for assessment by a Medical Assessor.
Mr Rainer submitted that the principle in Apps ought to be accepted and applied in this matter.
TDV did not dispute Dr Pillemer’s assessment of 0% whole person impairment, being the evidence Mr Voudouris’ relied on.
Mr Rainer submitted that there is no medical dispute within the meaning of s 319 of the 1998 Act specifically in regard to Mr Voudouris’ lumbar spine. Therefore, there is no medical dispute in respect of the lumbar spine to be referred for an assessment by a Medical Assessor under either ss 321 or 321A of the 1998 Act.
Accordingly, the lumbar spine should not be referred for an assessment of impairment by a Medical Assessor.
Further issue
Following the lodgement of the parties’ written submissions, a further issue came to my attention. Mr Voudouris’ independent medical examiner, Dr Nigel Curtis, oral and maxillofacial surgeon, found no resultant impairment in relation to Mr Voudouris’ orofacial injuries.
The Commission contacted the parties advising that my preliminary view was that the issue in relation to the referral of the latter mentioned body system to a Medical Assessor involved the same question as Dr Pillemer’s assessment of 0% for the lumbar spine, that is, can the orofacial injuries be referred to a Medical Assessor for assessment in circumstances where Dr Curtis found no resultant impairment of the body system relevant to his specialty?
As the issue had not been raised at the teleconference, the parties were offered the opportunity of addressing it by way of further written submissions.
Ms Parnell, on behalf of Mr Voudouris, advised that Mr Voudouris relied on the written submissions prepared by Mr Gaitanis in respect of the orofacial injuries as the issues were the same, even though the respondent had not previously raised it. Mr Voudouris did not wish to make any further submissions.
Ms Emily Angwin, the solicitor who had taken over the carriage of the matter from Mr Rainer for TDV, advised that TDV relied on its previous written submissions in respect of the orofacial injuries, noting that it involved the same question as that in respect of the lumbar spine.
REASONS
The legislation and legal principles
Mr Voudouris has not made a claim under s 66 of the 1987 Act for payment of permanent impairment lump sum compensation. Mr Voudouris’ application is one for assessment by a Medical Assessor as to whether the degree of permanent impairment is more than 20%. The purpose of the assessment is to determine whether Mr Voudouris has an entitlement to weekly payments of compensation under Part 3, Division 2 of the 1987 Act in respect of an injury after an aggregate period of 260 weeks, which would classify him as a “worker with high needs” within the meaning of s 32A of the 1987 Act.
Section 39(1) of the 1987 Act provides that, despite any other provision of the relevant Division, a worker has no entitlement to weekly payments of compensation under the 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.
Section 39(2) of the 1987 Act provides that the 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%.
Section 39(3) of the 1987 Act provides that, for the purposes of the section, the degree of permanent impairment that results from an injury is to be assessed as provided by s 65 of the 1987 Act (for an assessment for the purposes of Division 4).
Section 65(1) of the 1987 Act provides that, for the purposes of Division 4, the degree of permanent impairment that results from an injury is to be assessed as provided by s 65 and Part 7 (Medical Assessment) of Chapter 7 of the 1998 Act.
Section 65(2) of the 1987 Act provides that if a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of Division 4.
Part 7 of the 1998 Act provides for medical assessment. Section 319 of the 1998 Act defines medical dispute:
“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.”
Sections 321 and 321A of the 1998 Act deal with the referral of a medical dispute for assessment and the referral of a medical dispute concerning permanent impairment.
Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker: s 322(3) of the 1998 Act. The purpose of s 322(3) of the 1998 Act is to address the state of permanent impairment of an injured worker produced by a single incident, with all injuries arising out of the incident being treated as a single injury and all resultant impairments being assessed together.
In Abou-Haider, Roche DP dealt with a matter where the injured worker sought a referral to an Approved Medical Specialist (AMS), now a Medical Assessor, in circumstances where he did not have evidence of impairment beyond that which had already been the subject of compensation. The issue was whether, in such an application, it is necessary for injured workers to establish a deterioration in their condition since the initial claim prior to a matter being referred to an AMS for assessment. Roche DP said:
“...It is not necessary for the Commission to determine, as a threshold issue, whether the worker has demonstrated that his or her condition has deteriorated before the matter is referred to an AMS for a further assessment. A worker must make a claim under s 282 and support that claim with a whole person impairment assessment in the proper form from a WorkCover trained assessor. If the assessment is the same as in a previous award or order of the Commission, there will be no basis for referral to an AMS. If the assessment is higher than in a previous award or order, then, assuming that there are no liability issues in dispute, the Registrar will refer the matter to an AMS for further assessment.”[24]
[24] Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128 at [55].
In Sukkar, McColl, JA found that a claim for 9% whole person impairment did not satisfy the threshold in s 66(1) of the 1987 Act and was therefore, prohibited.[25] It was found there was no entitlement to have such a claim referred for assessment by an AMS.[26]
[25] Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 at [78].
[26] Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 at [91].
In Stafford, Roche DP considered the meaning of the term “claim” applying the principles of statutory interpretation and having regard to the context of the 1998 Act, including disentitling provisions and said:
“If, by the making of one claim for permanent impairment compensation, a worker is to be prevented from making any further claim for such compensation, the word ‘claim’ should be interpreted to mean, at the least, a valid claim. On this approach, consistent with the Arbitrator’s conclusion, Mr Stafford’s demand on 7 April 2014 was not a valid claim because it was not capable of payment in accordance with the 1987 Act. As a result, it does not qualify as ‘one claim’ for the purposes of s 66(1A).”[27]
And
“Third, the definitions of ‘claim’ and ‘compensation’ strongly favour the conclusion I have reached. That is because a ‘claim’ for permanent impairment compensation is, by definition, a claim for a ‘monetary benefit under’ the legislation. A monetary benefit under the legislation is compensation that is paid or payable. If the claim cannot succeed, because it is under the s 66(1) threshold, it cannot be a ‘claim’ for a monetary benefit under the Act. That is because, in respect of that claim, no compensation is payable.”[28]
[27] Woolworths Limited v Stafford [2015] NSWWCCPD 36 at [66].
[28] Woolworths Limited v Stafford [2015] NSWWCCPD 36 at [72].
In Shankar, Mr Shankar sought that injuries on three dates be aggregated for referral to an AMS for an assessment of permanent impairment. He made claims in respect of a frank injury to his cervical spine and right upper extremity, a disease injury and a nature and conditions injury to his cervical spine, left upper extremity and right upper extremity. The insurer disputed that there was a nature and conditions injury and relied on a report which stated that there was no permanent impairment arising from that injury.
The Commission’s Arbitrator (as he then was) was satisfied that Mr Shankar had suffered an injury as a result of the nature and conditions of employment. He noted that there was an issue as to whether the doctor on whose assessment the claim was based had made an assessment of permanent impairment in respect of the left upper extremity resulting from the nature and conditions of employment. The Arbitrator inferred that Dr Wong’s reference to 7% whole person impairment related to the left upper extremity but noted that he clearly stated that the nature and conditions of employment, whilst causing injury, was not substantial enough to cause symptoms or range of motion restrictions. The Arbitrator did not accept that Dr Wong had expressed the view that the nature and conditions of employment caused any whole person impairment of the left upper extremity. The Arbitrator concluded that he would not be referring a body part that had no assessable impairment, for assessment by an AMS.
The Arbitrator did not refer the left upper extremity to the AMS because he found that the doctor’s opinion was that the nature and conditions of employment had not caused a whole person impairment of that body part. The other injuries were referred to an AMS.
The respondent in Shankar had adopted the Arbitrator’s finding that the worker had 0% permanent impairment of his left upper extremity as a result of the accepted injury resulting from the nature and conditions of employment. Parker ADP said:
“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 AMS.
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 AMS.” [29]
[29] Shankarv Ceva Logistics (Australia) Pty Ltd (2021) NSWPICPD 18 at [62]-[65].
The passages quoted above presuppose that an assessment of 0% whole person impairment can form the basis of a claim.
Parker ADP stressed that the overall scheme of the legislation remained the same after the repeal of s 65(3) of the 1987 Act and that the repeal did not authorise the Commission to assess the degree of permanent impairment. Such view is inconsistent with the decision in Etherton v ISS Property Services Pty Ltd[30] (Etherton), where Phillips P stated:
“As can be seen, the relevant alteration is that prior to 1 January 2019 the Commission was prohibited, by virtue of the terms of s 65(3) of the 1987 Act, from awarding permanent impairment compensation absent an assessment by an Approved Medical Specialist. That prohibition was removed and the Commission was then empowered to determine such matters itself.
Mr Etherton relies upon Guzman in support of Ground Two, in that in Guzman the Arbitrator exceeded jurisdiction by resolving a medical dispute. It is to be noted that Guzman was decided prior to the 2018 amending Act which commenced on 1 January 2019. …”[31] (emphasis added)
[30] Etherton v ISS Property Services Pty Ltd [2019] NSWWCCPD 53.
[31] Etherton v ISS Property Services Pty Ltd [2019] NSWWCCPD 53 at [105]-[106].
Parker ADP in Shankar did not refer to the above passages in Etherton. Parker ADP did not refer to ss 322A(1A) and 322A(3)(b) of the 1998 Act. Section 322A(1A) of the 1998 Act clearly allows for a Member of the Commission to determine the degree of permanent impairment without referral to a Medical Assessor. Section 322A(3)(b) of the 1998 Act also refers to a determination by the Commission under Part 4.
Skates, which was decided by the New South Wales Court of Appeal after Shankar, was an appeal from an application for judicial review of a Medical Appeal Panel decision and concerned a determination of whether the AMS was confined to an assessment of the body parts set out in the referral that omitted the left wrist, which the insurer accepted should have been assessed. Leeming JA (who agreed with Basten JA) said:
“The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), 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.
…
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.”[32]
[32] Skates v Hills Industries Ltd [2021] NSWCA 142 at [44] and [46].
Skates places emphasis on a medical dispute being based on different claims about the degree of permanent impairment.
In Apps, Ms Apps made a claim for permanent impairment compensation. The claim was for compensation arising from multiple body parts. The claim was made on the basis of there being no impairment that was medically identified by Dr James Bodel in the lumbar spine. Dr Bodel’s combined assessment, upon which Ms Apps’ claim for permanent impairment was brought, did not incorporate any impairment assessment of the lumbar spine.
Member Read found that Ms Apps’ claim for compensation for permanent impairment of the lumbar spine was not a valid claim because there was no rateable impairment assessment of the lumbar spine incorporated in the claim. There was no impairment to the lumbar spine that was capable of being assessed together, with other body parts, as required by s 322(2) of the 1998 Act.
Member Read further found that Ms Apps’ claim was not a valid claim because no monetary benefit could be payable under the 1987 Act on the basis of a 0% whole person impairment for the lumbar spine.
Member Read explained:
“In making this finding I rely upon Abou-Haidar, Stafford and Sukkar. By analogy, these cases create a powerful line of authority that a claim for 0% WPI, is not a valid claim and therefore cannot be the basis of a medical dispute under section 319 of the 1998 Act. This includes circumstances where a 0% assessment forms part of a wider claim for lump sum compensation. I accept the respondent’s submission that no valid claim has been made for permanent impairment to the lumbar spine that is capable of referral to a Medical Assessor.
Further, in my view, there is no “medical dispute” in respect of the lumbar spine that is capable of resolution by way of referral to a Medical Assessor.
The dispute between Ms Apps and the respondent was crystallised by the correspondence attached to Ms Apps’ ARD and the Reply. The documents referred to the Commission set out the parameters of the medical dispute.”[33]
[33] Apps v Secretary, Department of Communities and Justice [2022] NSWPIC 190 at [43]-[45].
Member Read formed the view that there was substantial force in the submission that the reasoning in Shankar was incorrect and that the decision is wrong at law in light of the case law regarding the need to make a valid claim and the subsequent decision in Skates. In this regard, Member Read stated:
“Upon reading the decision of Shankar, it is quite apparent that ADP Parker was not directed to the relevant case law regarding the necessity to make a valid claim for compensation. The crux of the debate before ADP Parker concerned whether there was a medical dispute that was capable of being referred to a Medical Assessor and did not focus on the validity of the claim in the first place.
Further, in my view it is difficult to understand in what circumstances an insurer would ‘refuse’ a claim for 0% WPI. A claim for 0% WPI is not a claim that is capable of being compensated. It would be unusual for an insurer to expressly refuse a claim for 0% WPI, especially in the circumstances where medical experts agree that no impairment has been sustained to the particular body part that is capable of being assessed or forming part of a combined assessment.”[34]
[34] Apps v Secretary, Department of Communities and Justice [2022] NSWPIC 190 at [51]-[52].
Consideration and findings
Mr Voudouris has not made any application for permanent impairment compensation in respect of the subject injuries under s 66 of the 1987 Act.
Mr Voudouris’ application is one for assessment by a Medical Assessor as to whether the degree of permanent impairment is more than 20%. The purpose of the assessment is to determine whether Mr Voudouris has an entitlement to weekly payments of compensation under Part 3, Division 2 of the 1987 Act in respect of an injury after an aggregate period of 260 weeks, which would classify him as a “worker with high needs” within the meaning of s 32A of the 1987 Act.
For the reasons stated below, I am not persuaded by the submission made by Mr Voudouris’ counsel that, because GIO disputed that the degree of permanent impairment is more than 20%, a medical dispute existed under s 319 of the 1998 Act and that all the body systems injured should be referred to a Medical Assessor for assessment in accordance with Shankar.
Abou-Haidar, Stafford, Sukkar, Shankar, Skates and Apps all involved claims for permanent impairment compensation under s 66 of the 1987 Act.
Abou-Haidar is authority for the proposition that where the injured worker does not have evidence of permanent impairment beyond that which had already been the subject of compensation, there will be no basis for referral to a Medical Assessor.
Stafford and Apps dealt with the making of a valid claim for permanent impairment compensation. In Apps, Member Read found that, by way of analogy in Abou-Haidar, Stafford and Sukkar, a claim for 0% whole person impairment was not a valid claim and therefore, could not be the basis of a medical dispute under s 319 of the 1998 Act.
Sukkar is authority for the proposition that a claim for permanent impairment compensation that did not satisfy the threshold in s 66(1) of the 1987 Act had no entitlement to have such claim referred for assessment by a Medical Assessor.
In Shankar, Parker ADP found that s 319 of the 1998 Act is engaged when the claim is refused by the person on whom the claim is made by reason of the matters specified in paragraphs (a) to (g) of the section.
In Skates, Leeming JA found that the medical dispute between the parties was crystallised by the correspondence attached to Mr Skates’ application and that 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.
Skates is relevant in this case because Mr Voudouris was assessed by his own independent medical examiners as having no resultant impairment in relation to the accepted orofacial or lumbar spine injuries and there was no medical evidence to the contrary adduced by GIO. There were no differing assessments in respect of the orofacial or lumbar spine injuries.
Whilst in the Application Mr Voudouris identified the medical dispute to be referred for assessment included the face (right maxillary sinus and orbital nasal fracture), right elbow, left wrist, right leg and knee, left index finger and lumbar spine; there was no evidence supporting a medical dispute in respect of the orofacial and lumbar spine injuries on the basis of the findings in Skates. GIO, relying on Dr Rimmer’s report, disputed Dr Pillemer’s permanent impairment assessments in respect of the right upper extremity, the left upper extremity, right lower extremity and the skin (scarring – TEMSKI).
In seeking a review of GIO’s notice that weekly benefits compensation would cease under s 39 of the 1987 Act on the basis of Dr Rimmer’s whole person impairment assessment of 8%, Mr Voudouris attached the report of Dr Pillemer. The report of Dr Curtis was not attached to the request for review but was attached to the Application. GIO was entitled to consider the medical evidence produced supporting the request for a review of its s 39 notice, that is, Dr Pillemer’s assessments of whole person impairment to the right lower extremity, the right upper extremity, the left upper extremity, the lumbar spine and scarring (TEMSKI) as set out in his report.
GIO did not dispute Dr Pillemer’s assessment in respect of the lumbar spine injury or Dr Curtis’ assessment in respect of the orofacial injuries. It is difficult to comprehend why GIO 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 crystallised in the exchange of documents between the parties as referred to above.
There is a significant difference between Shankar and Mr Voudouris’ case. Shankar does not stand for the simple proposition that Mr Voudouris’ counsel contended, namely, that an assessment of 0% whole person impairment can be referred to a Medical Assessor. In Shankar, there was a claim for compensation in respect of the left upper extremity but the Arbitrator determined that there was 0% permanent impairment in respect of that injury. It was not a case where the worker’s own uncontradicted medical evidence provided assessments of 0% whole person impairment in respect of the subject body systems.
In the circumstances of this case, I find that the orofacial and lumbar spine injuries did not form the basis of a medical dispute.
Accordingly, Mr Voudouris’ orofacial and lumbar spine injuries cannot be included in a referral to a Medical Assessor for the reasons stated above and I decline to make such order.
CONCLUSION
My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons
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