Ward v State of New South Wales (Central Coast Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ward v State of New South Wales (Central Coast Local Health District) [2023] NSWPIC 555
APPLICANT:	Lawrence Ward
RESPONDENT:	State of New South Wales (Central Coast Local Health District)
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	20 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the worker suffered separate work injuries in 2019 and 2021 and underwent fusion surgery to the low back; the referral only specified the 2021 injury; the Medical Assessor (MA), based on the referral, made a one-third deduction pursuant to section 323 which included the 2019 injury; applicant appealed the Medical Assessment Certificate; submissions on appeal raised the accuracy of the referral; discussion of principles in Skates v Hills Industries Ltd; inconsistencies in the various documents as to whether medical dispute included the 2019 injury; application pleaded the 2019 injury and 2021 injury as causative of impairment; doctor qualified by applicant found that 2019 injury contributed to impairment but included that in the section 323 deduction; respondent’s qualified doctor found that 2019 injury and 2021 injury contributed to impairment but otherwise made a one-half deduction for the previous condition; medical dispute related to both 2019 injury and 2021 injury based on particulars in the Application and a reading of both qualified doctors; demonstrable error by MA in including 2019 injury as part of section 323 deduction; Held – amended referral to be sent to MA for further assessment pursuant to section 329(1)(b) and as alternative to an appeal pursuant to section 327(6).
DETERMINATIONS MADE:	The Commission orders: 1. The matter is referred again to the Medical Assessor pursuant to s 327(6) and s 329(1) of the Workplace Injury Management & Workers Compensation Act, 1998 to assess impairment as a result of injuries on 24 February 2019 and 6 April 2021.

STATEMENT OF REASONS

BACKGROUND

Mr Lawrence Ward (the applicant) was employed by the State of New South Wales (the respondent).
Mr Ward suffered work injuries to the L5/S1 disc in the course of his employment with the respondent on 24 February 2019 and 6 April 2021. Proceedings were commenced seeking permanent impairment compensation pursuant to s 66 of the Workers Compensation Act, 1987 (the 1987 Act).
The matter was referred to a Medical Assessor for the assessment of the degree of permanent impairment as a result of injury. That referral specified a date of injury of 6 April 2021 and the assessment of the degree of permanent impairment of the lumbar spine and the skin.
The current dispute concerns the correctness of the referral to the Medical Assessor and the application of the principles discussed in Skates v Hills Industries Ltd.[1]
[1] [2021] NSWCA 142 (Skates).

MEDICAL ASSESSMENT CERTIFICATE

Medical Assessor Gothelf issued a Medical Assessment Certificate dated 9 August 2023 (the medical assessment certificate). The Medical Assessor noted the referral was limited to an injury on 9 April 2021 and noted back pain commencing in 2010 and various episodes of back pain in 2011, 2012, 2015, 2017, 2018 and 2019. The Medical Assessor stated:
“The deductible portion for the impairment is calculated with determination of any contribution to the current Impairment due to a pre-existing condition. In this case, I consider that there was a pre-existing condition of lower back pain. The history obtained indicated that there was a history of recurrent lower back symptoms since 2010. While the condition improved and may have been less severe then the condition resulting from the work place injury, the lower back condition recurred through the years leading up to the work place injury. Thus, the history established an ongoing condition of lower back pain that would have likely occurred again regardless of the work place injury 9 April 2021.
The incident at work 24 February 2019 was a frank injury which resulted in symptoms, and by history the symptoms of lower back pain worsened since the work place incident. The increased symptoms ultimately resulted in the need for surgery August 2022. An incident was described 9 April 2021 at work which resulted in persistent and worsening lower back pain.”
After assessing the impairment of the lumbar spine at 22% and the skin at 0%, the Medical Assessor made a one-third deduction for the “pre-existing lumbar recurrent back pain contributing to the ongoing condition and need for surgical treatment”. Accordingly, the Medical Assessor assessed permanent impairment resulting from injury on 9 April 2021 at 15%.

SUBMISSIONS ON THE MEDICAL ASSESSMENT CERTIFICATE

The applicant filed an Application to Appeal the Medical Assessment and submitted:
“The worker sustained an initial injury to his lumbar spine (s4) on 24 February 2019, in which his employment was a substantial contributing factor (s9). Subsequently, the worker suffered a further injurious event on 9 April 2021 which has contributed to the same pathology. As per the authority of Edmed, multiple injuries events that have a singular pathology are to be considered to have resulted from the initial injury.”
Later in its submissions the applicant referred to the “pleaded injurious events in 2019 and 2021” and submitted that the one-third deduction was an error.
The respondent filed submissions opposing the application to appeal the medical assessment certificate. The respondent’s submissions pertaining to the referral were:
“16. Whilst we do not disagree with that legal principle, it is noted that the separate frank incident on 24 February 2019 was not pleaded as an injury in the ARD, and as a result, was not included as part of the referral to the Medical Assessor.
17.    The Court of Appeal decisions in the matter of Skates v Hills Industries Ltd [2021] NSWCA 142 and Yates v Flavorjen Pty Ltd [2022] NSWSC 388 indicate the importance of the terms of referral to the medical assessor.
18.    The medical assessor’s jurisdiction is limited to the terms of that referral.
19.    In the recent decision of Secretary, New South Wales Department of Education v Connolly [2023] NSWPICPD 38, President Judge Phillips addressed the above Court of Appeal decisions. He concluded it was not open to the worker to be remitted for further assessment to include body systems did not form part of the claim for lump sum compensation and the resulting medical dispute between the parties.”
In his submissions in reply the applicant submitted:
“At its highest, the worker is willing to concede that there has been an oversight with respect to the acceptance of the referral document produced by the PIC, in its form, without a request for amendment of the date of injury to include specifically the date of 24 February 2019. It was assumed, and maybe naively so, that the pleadings in the ARD, would be referred to and the matter would proceed in context of an understanding that both dates of injuries were relevant and subject to the medical dispute.”

PRESENT APPLICATION

On 20 September 2023 the Personal Injury Commission (Commission) advised the parties that the matter would be referred to a Member to consider whether the referral dated 27 June 2023 was incorrectly framed by failing to refer to the injury dated 24 February 2019.
The matter was listed for telephone conference on 6 October 2023. The parties then made submissions on the issue of whether the referral was incorrectly described in accordance with the principles discussed in Skates and if so, whether I should exercise the discretion under s 327(6) of the Workplace Injury Management and Workers Compensation Act, 1998 (the 1998 Act) to “refer a medical assessment for further assessment under section 329 as an alternative to an appeal in circumstances where the appeal otherwise would have proceeded”.
On 16 October 2023 the parties were requested to make any submissions on the report of Dr Bosanquet dated 25 May 2023.

EVIDENCE/PLEADINGS

The claim letter for permanent impairment compensation dated 29 March 2023 refers to “injuries sustained in the course of employment with your insured as assessed by Dr Andrew Porteous in his report dated 27 March 2023.”[2]
[2] Application to Resolve a Dispute, p 6.
The letter refers to a claim number. The legal representatives advised that the claim number related to the 2019 injury. The claim letter otherwise does not refer to a date of injury.
Dr Porteous provided a report dated 27 March 2023.[3] The doctor obtained a history of injury at work on 24 February 2019 resulting in immediate back pain and right leg pain thereafter. The doctor noted that the scan dated 25 February 2019 “showed an L5/S1 posterolateral disc protrusion displacing the right S1 nerve root”.
[3] Application, p 8.
Dr Porteous was asked the following question and provided the following response.
“We refer you to our client’s injuries on 24 February 2019 and 6 April 2021. In light of the above, please kindly provide your opinion on the balance of probabilities as to whether the multiple incidents have caused/aggravated our client’s lumbar spine injury/condition that is to say, the multiple injurious events have led to the diagnosis of our client’s lumbar spine condition. Please kindly provide your reasoning addressing whether our client’s employment was the main contributing factor in causing/aggravating his lumbar spine condition.
Mr Ward had recovered from his February 2019 accident and injury and only has mild pain with occasional flare ups. As noted above, in April 2021, I believe he had a new injury to the lumbar disc at L5/S1, but also he had an aggravation of pre-existing injuries and degenerative change in the lumbar spine. In both cases, in my opinion, his employment was the main substantial contributing factor and causing a new injury and also aggravating or deteriorating pre-existing pathology.”
The doctor assessed permanent impairment at 23% for the lumbar spine and 1% for the scar. He made the following observation:
“There is evidence of pre-existing conditions, although he did not have any significant lumbar back pain prior to onset of his condition on 9 April 2021 and, in my opinion, therefore a one-tenth deduction is consistent with the evidence (after rounding this results in a 21% Whole Person Impairment).”
On 12 April 2023 the respondent requested particulars from the applicant. The request included the following observation:[4]
“Your letter of demand is not clear as to the date of injury/injuries relied upon with respect to the lump sum claim. We request clarification of the claim made in that respect.”
[4] Reply, p 4.
On 29 May 2023 the applicant replied that the date of injury was “9 April 2021”.[5]
[5] Reply, p 8.
Dr Bosanquet was qualified by the respondent and provided a report dated 25 May 2023.[6] The doctor note at the commencement of the report that the dates of injury were “24/02/2019 and 9/04/2021” and stated:
“It is my opinion that the two injuries are all part of the one pathology at L5/S1. His incapacity is a result of aggravation of pre-existing degenerative changes at L5/S1 that occurred in the first incident on 24 February 2019 and a further aggravation on 09/04/2021.”
[6] Reply, p 10.
Dr Bosanquet assessed permanent impairment at 21% and applied a 50% deduction pursuant to s 323 of the 1998 Act which resulted in impairment of 11% (after rounding up) due to injuries on 24 February 2019 and 9 April 2021.
The applicant’s statement dated 29 May 2023[7] was included in the documents attached to the Application. The statement referred to the work injury on 24 February 2019 when the applicant suffered low back and radiating pain into the right leg. The applicant referred to the further work injury on 9 April 2021 when he felt severe pain “in the same place” as the 2019 injury.
[7] Application, p 1.
The Application to Resolve a Dispute (Application) is dated 31 May 2023. It pleads a date of injury occurring on 9 April 2021 and then provides the following injury description/cause of injury:
“Whilst in the course of employment on 24 February 2019, the Applicant had been assisting a patient in getting up and out from his bed. Whilst attempting to retrieve the patient's walker, the patient began to fall and suddenly grabbed the Applicant's arm and pulled the Applicant to his left side.
Subsequently, the Applicant heard a crack in hiss lower back and felt immediate sharp pain in his lower back. The Applicant also experienced radiating pain and symptoms down his right buttocks and right leg.
Whilst in the course of employment on 9 April 2021, the Applicant and a work colleague had been transferring a patient from the patient's bed onto a wheelchair.
Before they were able to completely transfer the patient onto her wheelchair, the patient suddenly began to suffer from a panic attack and subsequently grabbed the Applicant's right arm.
As the patient grabbed the Applicant's right arm, the patient began to drop onto the wheelchair causing the Applicant to be dragged down.
The wheelchair was quite low and as a result, the force of the patient dropped down whilst grabbing the Applicant's arm caused him to experience a sudden jerking pain in his lower back in the same place where he felt pain following the incident of 24 February 2019.
The Applicant sustained an initial injury to his lumbar spine (s4) on 24 February 2019, in which his employment was a substantial contributing factor (s9). Subsequently, the Applicant suffered a further injurious event on 9 April 2021 which has contributed to the same pathology. As per the authority of Edmed, multiple injuries events that have a singular pathology are to be considered to have resulted from the initial injury.
Alternatively the Applicant suffered an aggravation to his lower back.”
The Reply did not raise any issue about the particularised dates of injury pleaded in the Application.
The referral dated 27 June 2023 sent to the Medical Assessor referred to a singular date of injury on 9 April 2021.

SUBMISSIONS

The respondent referred to Dr Porteous’ opinion which formed the basis of the letter of claim. It submitted that the letter of claim did not refer to a date of injury and the opinion of Dr Porteous related the impairment resulting from the 2021 injury. The respondent submitted that the 2019 injury was included as a previous injury which formed part of the one-tenth deduction assessed by Dr Porteous pursuant to s 323 of the 1998 Act.
After noting that the Application referred to the 2021 injury, the respondent conceded that the particulars of the injury favoured the applicant’s contention that the 2019 injury was part of the medical dispute.
The respondent also noted that the applicant’s response to the request for particulars were clear and referred only to the 2021 injury.
The respondent referred to the decision of the President in Secretary, New South Wales Department of Education v Connolly[8] which adopted relevant passages from Skates.
[8] [2023] NSWPICPD 38 (Connolly).
The applicant emphasised the particulars in the Application to which there was “no ambiguity” and referred to the decision of Sakr v Merrylands Christian Preschool Association Inc.[9] He otherwise submitted that a proper reading of the opinion of Dr Porteous was that the 2019 injury formed part of the assessment of permanent impairment. The applicant referred to the statement by Dr Porteous that he had “recovered” and submitted that this is not the same as contributing to impairment and must be read with the balance of the report.
[9] 2022 NSWSC 768 (Sakr) at [44] and [48].
The applicant initially submitted that he could only plead one date of injury in the application. That submission was subsequently withdrawn.[10]
[10] Email sent to the Commission with the respondent’s consent.
In reply to the Direction, the respondent relevantly submitted:[11]
“The Respondent submits that Dr Bosanquet’s consideration of the 24 February 2019 injury is not indicative of this injury forming part of medical dispute, but rather is consistent with Dr Bosanquet having previously provided his medical opinion with respect to both the prior claims made by the Applicant.”
[11] Respondent’s submissions dated 18 October 2023, [7].

FINDINGS

The applicant’s submissions on the appeal against the medical assessment fails to grasp with the obligation of legal practitioners to check the referral and take proper steps to ensure that it accurately particularises the medical dispute to be assessed by the Medical Assessor. The submission on appeal “that it was assumed, and maybe naively so, that the pleadings in the ARD, would be referred to and the matter would proceed in context of an understanding that both dates of injuries were relevant and subject to the medical dispute” fails to acknowledge that the present application would have been avoided if the applicant’s legal representatives had ensured that the referral was properly framed.
The present application reflects a continuing poor practice of lack of care in checking and ensuring that the referral sent to the Medical Assessor correctly identifies the medical dispute.
The respondent’s submissions on the opposition to the application to appeal the medical assessment are wrong,[12] and refer to authority that concludes the opposite. The statement that the “medical assessor’s jurisdiction is limited to the terms of that referral” is inconsistent with the reasoning of the Court of Appeal in Skates. As Leeming JA observed:[13]
“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.”
[12] See [10] herein.
[13] Skates at [48].
In Sakr, Garling J referred to the scope of the documents which described the medical dispute. His Honour stated:[14]
“This is because the scope of the medical dispute referred to the AMS is determined primarily by reference to the legal dispute between the parties evidenced by the Application to Resolve a Dispute and associated documents, and it would therefore be an error of law on the face of the record to, without notice or argument on the issue, limit the scope of the medical dispute by the strict terms of the referral.”
[14] Sakr at [44].
The respondent referred to the decision of the President in Connolly. That decision must be read in the context of those facts. The worker then relied on a claim for permanent impairment that did not include any assessment for scarring or occipital neuralgia. However, the further body parts were included in the medical assessment certificate and assessed by the Medical Assessor although not included in the overall assessment.
An application by the worker to include the further body parts for assessment was accepted by the Member who relied on the findings of the Medical Assessor.
The President held that the Member erred in accepting the medical assessment certificate as further evidence not available to the worker on the claim. The President otherwise held that the medical dispute did not include the assessment of scarring or occipital neuralgia.[15]
[15] Connolly at [84].
In response to the error made by the Member in amending the claim based on the opinion provided by the Medical Assessor, the President noted:[16]
“A fair reading of the [worker’s] claim, its supporting documentation and the ARD would plainly reveal the metes and bounds of the dispute, namely whole person impairment of the cervical spine and the left upper extremity (shoulder).”
[16] Connolly at [88].
The decision emphasises the matters in considering the scope of the medical dispute. That the medical dispute in Connolly did not include an assessment for scarring and occipital neuralgia does not, of itself, suggest that the medical dispute in this matter did not include the assessment of impairment due to both the 2019 injury and the 2021 injury.

The letter of claim does not specify a date of injury and referred to the opinion of Dr Porteous. The claim number referenced in the letter is to the 2019 injury. The inclusion of the 2019 injury was probably fortuitous given the inconsistency in which the case was presented, such as answering a particular in late May specifying that the injury relied upon was the 2021 injury.
I do not accept that much turns upon the inclusion of the claim number for the 2019 injury in the letter of claim.
The Application clearly particularised and relied on both the 2019 injury and the 2021 injury despite the reference to a singular date of injury in 2021 immediately above the description of injury. To the extent that the respondent referred to and relied on the applicant’s answers to particulars which only specified the 2021 injury, the answer to the particulars pre-date the filing of the application. The particulars of injury pleaded in the Application are compelling evidence that the medical dispute related to both injuries.
The opinion expressed by Dr Porteous is unclear. The doctor concluded that the 2019 injury caused discal injury at L5/S1 from which the applicant “only had mild pain with occasional flare ups”. The reference to “recovered” presumably means physical symptoms as the doctor did not suggest that the disc protrusion at L5/S1 displacing the right S1 nerve root had been absorbed. That conclusion is supported by the following sentence:
“As noted above, in April 2021, I believe he had a new injury to the lumbar disc at L5/S1, but also he had an aggravation of pre-existing injuries and degenerative changes in the lumbar spine.”
The reference to “an aggravation of pre-existing injuries” in the context of the doctor’s opinion would include an aggravation of the disc caused by the 2019 injury.
In the assessment of permanent impairment, the doctor concluded:
“There is evidence of pre-existing condition, although he did not have any significant lumbar back pain prior to onset of his condition on 9 April 2021 and, in my opinion, therefore a one-tenth deduction is consistent with the evidence …”
The doctor’s opinion shows a lack of understanding of the legal test of causation which is not solely determined by reference to pain. In the present case the causal connection of the 2019 injury to impairment is supported by the immediate onset of back and right leg pain following the 2019 injury with discal pathology at L5/S1 and subsequent surgery at that level. For the reasons outlined below, both Dr Porteous and Dr Bosanquet support a causal connection between the 2019 injury causing discal injury at L5/S1 and the overall impairment.
It appears that Dr Porteous has concluded that the impairment of 21% (after the s 323 deduction) results from the 2021 injury. He has also concluded, consistent with the respondent’s concession, that the 2019 injury, in part, contributed to impairment as this was included in the s 323 deduction.
The injury of the casual connection between the degree of permanent impairment and the injury is based upon common law principles of tort.[17] Accordingly, the doctor whilst expressing himself inconsistently and poorly, has concluded that the 2019 injury contributed to impairment, albeit considered as part of the s 323 deduction.
[17] Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [1], [53] and [55].
The opinion of Dr Porteous supports the conclusion that the 2019 injury contributed to the overall impairment although he did not assess the 21% as resulting from the 2019 injury. The opinion was sufficient to support the applicant’s contention that the 2019 injury also contributing to the overall assessable impairment before any s 323 deduction.
Dr Bosanquet was qualified by the respondent to assess permanent impairment resulting from both the 2019 and 2021 injuries. The doctor formed the view that both injuries contributed to the assessable impairment and made a s 323 deduction of one-half for injuries/condition prior to the 2019 injury. Dr Bosanquet stated:
“This 66-year-old Registered Nurse has had two injuries to his lumbar spine during the course of his work at Wyong Hospital. These have culminated into an anterior interbody fusion at L5/S1 following which there has been some improvement in his symptoms.”
The doctor concluded that the two injuries are part of the one pathology at L5/S1 and opined:
“It is my opinion that that there is a 50% contribution from the employment and 50% due to pre-existing degenerative changes.”
The doctor’s opinion that the employment contributed 50% of the impairment is obviously a reference to both the 2019 injury and the 2021 injury. I reject that part of the respondent’s subsequent submission to the extent that it submitted otherwise.
The respondent’s submission that its qualified medical report responding to the assessment of impairment did not form part of the medical dispute is inconsistent with the observations of Leeming JA in Skates. His Honour observed:[18]
“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.” (emphasis added)
[18] Skates at [46].
This is not to say that the applicant’s presentation of the claim for permanent impairment was clear. The claim is confusing and inconsistent. However, the particulars of injury specified in the Application read in the context of Dr Porteous’ report established that the medical dispute included the 2019 injury which contributed in some part to the impairment of the lumbar spine. This persuades me that the medical dispute between the parties related to impairment from both the 2019 injury and the 2021 injury. This conclusion is reinforced by Dr Bosanquet’s opinion that both the 2019 injury and the 2021 injury contributed to impairment.
Having considered the totality of the evidence referenced by the parties, I am satisfied that the medical dispute for the assessment of the degree of permanent impairment related to both the 2019 injury and the 2021 injury.
To the extent that the Medical Assessor has assessed impairment, he has undertaken that task solely based on the 2021 injury and included the 2019 injury as part of the s 323 deduction. The finding by the Medical Assessor was a demonstrable error as the medical dispute brought by the applicant relied on both the 2019 injury and the 2021 injury. It was a demonstrable error to include the contribution to impairment by the 2019 injury as part of the s 323 deduction.
I accept that any error by the Medical Assessor in assessing impairment reflected his reliance of the referral rather than the various materials which formed part of the medical dispute.
The applicant requested that the matter be referred again to the Medical Assessor pursuant to s 327(6) and s 329(1)(b) of the 1998 Act. He submitted that this course would reduce cost as the Medical Assessor had examined and would be able to provide an amended certificate based on the correct dates of injury.
The respondent made no submission on the appropriate step if I held that the referral did not properly describe the medical dispute.
Given the absence of contradiction on the second issue, I accept the applicant’s submission that the assessment be referred again to the Medical Assessor pursuant to s 327(6) and s 329(1) of the 1998 Act. I am satisfied that the matter be referred again under s 329(1) of the 1998 Act with an amended referral setting out both dates of injury. I accept the applicant’s submissions, not traversed, that this is an appropriate course as an alternative to an appeal.[19]
[19] Section 327(6) of the 1998 Act.
The Medical Assessor is to assess the impairment resulting from injury on 24 February 2019 and 9 April 2021 and to otherwise make any s 323 deduction.

CONCLUSION

The order is set out in the Certificate of Determination.

[2023] NSWPIC 555

20 October 2023