Welsh v Dandan Management Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Welsh v Dandan Management Services Pty Ltd [2022] NSWPIC 609
APPLICANT:	Shane Welsh
RESPONDENT:	Dandan Management Services Pty Limited
Member:	Gaius Whiffin
DATE OF DECISION:	3 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for injury to right lower extremity; claim for lump sum compensation for permanent impairment pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act); claim disputed by respondent and medical assessment required pursuant to section 319 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); injury to right ankle conceded by respondent but no assessment of any permanent impairment made (where assessments of permanent impairment otherwise made regarding the right hip, thigh, knee, calf, and scarring); consideration of applicant’s statement, medical reports and other treatment records and claim correspondence; consideration of whether the injury to the applicant’s right ankle forms part of the medical dispute to be referred to a Medical Assessor pursuant to section 319 of the 1998 Act; Shankar v Ceva Logistics (Australia) Pty Limited, Guzman v Trade West Pty Limited, Skates v Hills Industries Limited, Woolworths Limited v Stafford, Abou-Haidar v Consolidated Wire Pty Limited, Apps v Secretary, Department of Communities and Justice, McPherson v Mitre 10 Australia Pty Limited, Sukkar v Adonis Electrics Pty Limited and Etherton v ISS Property Services Pty Limited considered; Held – the injury to the applicant’s right ankle does not form part of the medical dispute to be referred to a Medical Assessor in accordance with section 319 of the 1998 Act as it does not form part of the applicant’s valid claim for lump sum compensation pursuant to section 66 of the 1987 Act; the medical dispute in relation to the other body systems/parts which had permanent impairment assessments made is remitted to the President for referral to a Medical Assessor in accordance with section 319 of the 1998 Act.
determinations made:	1. The injury to the applicant’s right ankle does not form part of the medical dispute to be referred to a Medical Assessor in accordance with s 319 of the Workplace Injury Management and Workers Compensation Act1998, as it does not form part of the applicant’s valid claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.
ORDERS MADE:	2. The dispute is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as follows: (a) date of injury: 4 May 2020, and (b) body systems/parts: right lower extremity (hip, thigh, knee, and calf), scarring (TEMSKI). 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) respondent’s Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Shane Welsh (the applicant) is 39 years old. He was employed by Dandan Management Services Pty Limited, trading as Quest Collision Centre (the respondent) as a quality control checker, from 4 May 2019. He no longer works for the respondent, having sustained injury to his right lower extremity on 4 May 2020.
The respondent has accepted that the applicant sustained a right lower extremity injury on 4 May 2020, which arose out of or in the course of his employment pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act), and it has also accepted that his employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act.
By way of a letter from his solicitors dated 27 January 2022 (letter of claim), the applicant claimed compensation pursuant to s 66 of the 1987 Act, with respect to the 4 May 2020 injury. With that letter, medical evidence from Dr Lee was provided. The letter of claim claimed compensation for 19% whole person impairment, but it is accepted that Dr Lee only assessed 17% whole person impairment.
The respondent replied to the letter of claim with a notice dated 28 April 2022, advising that it had assessed the applicant’s whole person impairment at 14%, in accordance with a report from Dr Diebold dated 11 March 2022.
The applicant is not willing to accept the respondent’s assessment in this regard, and by way of an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (the Commission), he requests that the Commission determine the level of his whole person impairment as a result of the 4 May 2020 injury.
The resultant dispute as to the level of the applicant’s whole person impairment is a medical dispute to be referred to one of the Commission’s Medical Assessors in accordance with s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The terms of that referral however need to be determined, as they could not be agreed between the applicant and respondent.

ISSUES FOR DETERMINATION

The parties have agreed that the issue in dispute in the proceedings before me is:
(a) whether the injury to the applicant’s right ankle forms part of the medical dispute to be referred to a Medical Assessor pursuant to s 319 of the 1998 Act.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have 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 have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
A preliminary conference was held in the dispute on 15 September 2022. Following that conference, an order was made requesting that each party lodge a written outline of submissions regarding the dispute. Both sets of submissions were lodged with the Commission on 17 October 2022 (by Mr Lehmann on behalf the applicant, and by Mr Myles on behalf the respondent), and I am grateful for the assistance provided in this regard.
The dispute then proceeded towards an arbitration hearing before me on 24 October 2022. On that occasion, Mr Tom Grimes of counsel appeared for the applicant, instructed by Mr Lehmann, and Mr Simon McMahon of counsel appeared for the respondent, instructed by Messrs Myles and McCann. The applicant was also present during the arbitration hearing, as was a representative from the respondent’s insurer, Ms Chung.
Prior to oral submissions commencing on 24 October 2022, the parties agreed:
(a) the applicant’s claim for lump sum compensation pursuant to s 66 of the 1987 Act was made by the letter of claim (page 4 of the ARD);
(b)    the respondent replied to that claim by way of a notice dated 28 April 2022 (page 6 of the ARD);
(c) the respondent did not dispute that the applicant had sustained injury to his right ankle pursuant to s 4 of the 1987 Act on 4 May 2020;
(d)    the respondent consented to the following body parts/systems being part of the relevant Medical Assessor referral – right lower extremity (hip, thigh, knee, and calf) and scarring (TEMSKI), and
(e)    once I determined the issue before me, the dispute could be referred to a Medical Assessor - it was agreed that the Medical Assessor would have access to the ARD and all its attachments, as well as the respondent’s Reply (Reply) and all its attachments.

EVIDENCE

Documentary evidence

The following documents were in evidence before me and considered in making this determination:
(a) the ARD and attached documents, and
(b) the Reply and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Evidence consideration

Considering the discrete issue which I need to determine, I do not need to and I do not intend to review the evidence relied upon by each party in detail. I have considered all the evidence before me, but in these reasons, I will only refer to the evidence which I am referred to during the parties’ submissions or which I find to be relevant to the issue which I need to determine.
First, there is the letter of claim (page 4 of the ARD). That letter is relatively brief. It encloses medical evidence from Dr Lee dated 17 January 2022, and it then relevantly says:
“In accordance with the findings of Dr Lee our client claims permanent impairment compensation of $43,000 for 19% whole person impairment under section 66 of the Workers Compensation Act 1987.
In accordance with section 281 of the Workplace Injury Management and Workers Compensation Act 1988 we request you determine our client’s claim within 2 months of receipt of this notice or, should you require our client attend an IME, and provide notice of this request within 14 days, 2 months from the date of the IME.
We note you already have claims and medical records pertaining to our client’s injury and consider this, alongside the report Dr Lee, comfortably satisfies the requirement under section 282 to provide full and proper particulars to enable you to make a proper assessment of our client’s claim.”
Dr Lee has in fact provided two reports (dated 17 January 2022 and 10 January 2022), and although the letter of claim only refers to the report dated 17 January 2022, I am able to infer that the letter also attached the 10 January 2022 report, as Dr Diebold (who was qualified by the respondent to assess the applicant’s whole person impairment following its receipt of the letter) in his 11 March 2022 report specifically refers to reviewing both reports from Dr Lee.
The report of Dr Lee dated 17 January 2022 is found at page 10 of the ARD. In relation to the applicant’s right ankle, the doctor took a history that it was injured on 4 May 2020, but there was no fracture. The applicant had to use a ‘Moon Boot’ following the accident. The ankle remained painful on the date when the doctor examined the applicant.
On physical examination of the ankle, the doctor found stiffness and restriction of movement (when compared with the left ankle) in flexion and inversion. The doctor diagnosed a soft tissue injury of the ankle.
The doctor’s 10 January 2022 report is found at page 17 of the ARD. The report is essentially an assessment of the applicant’s whole person impairment. Scarring is assessed at 1% whole person impairment, and the doctor also assessed 40% lower extremity impairment in the right lower extremity, which equated to 16% whole person impairment. Of the 40% lower extremity impairment, the doctor found 20% lower extremity impairment due to right hip stiffness and restriction of range of movement, and he also found 20% lower extremity impairment due to flexion contracture with the right knee. His report is silent as to any assessed lower extremity impairment or whole person impairment in relation to the applicant’s right ankle, although it noted in relation to the applicant’s calf:
“Measuring the calf at the widest point, there was 38 cm on the right side and 39 cm on the left. There is also stiffness in the right ankle. The LEI for mild wasting of calf muscle is 6% (AMA5 Table 17-6; p 530).”
The respondent’s reply to the letter of claim is found at page 6 of the ARD. It is a notice dated 28 April 2022 which advises the applicant that his claim for lump sum compensation for permanent impairment has been assessed, and because of the assessment, he is entitled to a lump sum payment of $33,550. The notice also advises that, after considering Dr Diebold’s report dated 11 March 2022, “the degree of permanent impairment, expressed as a percentage of whole person impairment (WPI) resulting from your injury is 14%”.
Dr Diebold’s report dated 11 March 2022 is found at page 20 of the ARD. In relation to the applicant’s right ankle, the doctor took a history of pain in the ankle and a “sprain injury of the right ankle” in the applicant’s 4 May 2020 accident, following which the applicant was treated in a ‘Moon Boot’ for about six weeks. A MRI scan of the right ankle on 11 February 2021 was “normal”.
On physical examination of the ankle, the doctor found tenderness, but no swelling. In relation to range of movement, the doctor found no difference between the right ankle and the left ankle with regard to flexion, extension, inversion, and eversion.
The doctor diagnosed that the applicant sustained a lateral ligament injury to his right ankle on 4 May 2020. In assessing whole person impairment, the doctor only assessed the applicant’s right hip and his right knee. His report is also silent as to any whole person impairment or lower extremity impairment in relation to the applicant’s right ankle.
The applicant’s statement dated 14 July 2022 (page 1 of the ARD) refers to him continuing to “experience pain and swelling in my ankle”. The determination for me is however not whether the applicant continues to experience symptoms in his ankle (which I accept that he does), but whether his ankle should be referred to a Medical Assessor for assessment.

Applicant’s submissions

The applicant’s written outline of submissions was supplemented by oral submissions. Those submissions have been recorded and I will not repeat them in detail.
The thrust of the submissions was the applicant’s reliance upon the decision of Parker ADP in Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18 (Shankar).
In the context of the applicant making a valid claim for lump sum compensation pursuant to s 66 of the 1987 Act, and in the context of the applicant suffering an undisputed right ankle injury on 4 May 2020, it matters not if the claim does not include a specific assessment of right ankle impairment under the relevant guidelines or if there is a 0% assessment of that impairment. In either case, when applying Shankar, the ankle injury needs to be referred to the Medical Assessor. “The lack of assessment by Dr Lee is not important when you apply Shankar”.
For there to be a medical dispute within s 319 of the 1998 Act, there is no requirement for there to be a medical dispute in relation to each body part injured. There needs to be only a dispute regarding the overall degree of permanent impairment of the applicant as a result of the injury. Whether there is a specific medical dispute regarding the right ankle injury is irrelevant, and is not the question to be asked in determining the terms of the referral to the Medical Assessor.
For the referral not to include the right ankle injury, it would involve me considering the persuasiveness of the medical evidence, and determining a “lack of viability of the permanent impairment claim on quantum”, which was not a matter for me to determine in accordance with Guzman v Trade West Pty Limited [2017] NSWWCCPD 44 (Guzman). In this regard, the respondent was asking me to look behind Dr Lee’s assessment to determine whether it could be upheld. That was not my function, but was the function of a Medical Assessor in accordance with s 319 of the 1998 Act.
When questioned as to the relevance in the letter of claim to reliance upon the “findings” of Dr Lee in making the claim (and whether that terminology limited the extent of the claim in the letter to only the impairments assessed by the doctor), the applicant pointed out that although the doctor did not assess any right ankle whole person impairment, he did make findings of stiffness and restriction of movement (see paragraph 18 above). In any case, the doctor’s impairment findings had not been accepted by the respondent, and as a result there was a medical dispute, and therefore all the applicant’s injuries should be assessed by the Medical Assessor in accordance with Shankar. The applicant submitted:
“we are not required to provide a claim solely based on WPI assessments…we are entitled to refer a medical dispute for undisputed injuries irrespective of whether they form part of the WPI assessment”.
When questioned as to the relevance of the respondent’s reliance upon the decision in Skates v Hills Industries Limited [2021] NSWCA 142 (Skates), the applicant submitted that the decision was concerned with whether a Medical Assessor had erred by determining matters outside the terms of the relevant referral, and had “nothing to do with” whether a referral should include certain body parts. The applicant submitted that the comments in paragraph 44 of the decision (which I will quote later) were obiter.
In the applicant’s written outline of submissions, it was also argued that in determining the parameters of “the claim” in Skates, reference was made to the pleadings and evidence as a whole – the Court of Appeal in that case did not restrict “the claim” to specific body parts assessed as resulting in whole person impairment.
The applicant also submitted that when the relevant guidelines are considered (and especially Table 17.2, which dealt with different methods of assessment and how those methods were to be applied), it was possible that when Dr Lee assessed the applicant’s calf wasting, the assessment in fact related to the ankle.
In the applicant’s written outline of submissions, the above submission was made more forcefully, it being asserted that “it is clear from Dr Lee’s report that the assessment of impairment for wasting of the calf relates directly to his assessment of the right ankle”.
Finally, the applicant also pointed out:
(a)    Dr Diebold was clearly on notice of the need for him to assess the applicant’s right ankle, as he assessed its range of movement (see paragraph 22 above) – the respondent cannot complain in this regard that it has not had the opportunity to have the right ankle assessed;
(b)    in the letter of claim, the applicant stated that he did not just rely upon Dr Lee’s report, but also upon “claims and medical records” already in the possession of the respondent, and
(c)    (in the applicant’s written outline of submissions) the beneficial purpose of workers compensation legislation – which required (where two constructions in relation to a particular issue were possible) the more favourable construction to the worker to be preferred: see Woolworths Limited v Stafford [2015] NSWWCCPD 36 (Stafford).

Respondent’s submissions

The respondent’s written outline of submissions was also supplemented by oral submissions. Those submissions have been recorded and I will not repeat them in detail.
In its written outline of submissions, the respondent summarised its position as follows – no claim for lump-sum compensation had been made with respect to the right ankle, and therefore there was no medical dispute concerning the right ankle, and therefore it was inappropriate to refer the right ankle for consideration by a Medical Assessor. It detailed the following history:
“The Applicant’s claim for lump-sum compensation pursuant to section 66 of the 1987 Act does not refer to specific body parts they are claiming. There is no mention of the right ankle in the correspondence serving the claim. The claim annexed the report of Dr Yuk Kai Lee, did not assess any impairment in relation to the right ankle. There was accordingly no need for the respondent to meet such a claim.”
In its written outline of submissions, the respondent then referred to Abou-Haidar v Consolidated Wire Pty Limited [2010] NSWWCCPD 128 (Abou-Haidar) and Stafford, as well as s 260 of the 1998 Act (and the guidelines made pursuant to that section). It submitted that:
“There can be no ‘claim’ within the meaning of the definition as there is no claim for lump-sum compensation pursuant to section 66 the Applicant has made or indeed is entitled to make concerning the right ankle. There is no assessment of WPI (either in the Applicant’s camp or the Respondent’s camp) for the right ankle which might entitle the Applicant to receive lump-sum compensation concerning the right ankle”.
And:
“In this matter, there is no medical evidence of a dispute as to impairment. Dr Lee did not assess any impairment at the right ankle. There is no ‘medical dispute’. There is no evidence before the PIC of any impairment of the right ankle arising from the injury. The consequence is there is no ‘medical dispute’ pursuant to Section 319 in respect of any permanent impairment of the right ankle arising from injury”.

In its written outline of submissions, the respondent finally sought to distinguish Shankar as it “did not consider the issue of whether there had been a ‘valid claim’ or a proper dispute”.
In its oral submissions, the respondent also sought to distinguish Shankar from the applicant’s case on the basis that in the applicant’s case, there had been no valid claim for permanent impairment compensation with respect to the applicant’s right ankle because there was no assessment of that impairment, whereas in Shankar there was found to have been a valid claim for permanent impairment compensation with respect to the left upper extremity and there was found to have been a permanent impairment assessment of 0% (an assessment had been conducted rather than there being no assessment at all) with respect to the left upper extremity. The submission was made that if I found a “claim that’s validly made, then it (Shankar) would apply, but we don’t actually get to that point… if there is no claim, then we don’t even get into the territory of Shankar”.
The fundamental consideration for me was to determine whether there had been any assessment of the right ankle that might attract an entitlement to the applicant to lump-sum compensation, and the answer in this regard was that Dr Lee had not conducted such an assessment. The respondent referred to Abou-Haidar, and submitted that there cannot be a claim unless there is an entitlement to lump-sum compensation. The submission was made that “if there is no assessment pursuant to the relevant table…there cannot be an entitlement to compensation for lump-sum compensation…therefore there is no claim made”.
As there is no assessment of the right ankle, there can be no actual medical dispute concerning it, and in the absence of such a medical dispute, the ankle cannot be referred for assessment by a Medical Assessor. The submission was made that “the issue that enlivens a medical dispute at the most simple level is a valid claim, and there cannot be a valid claim in this circumstance concerning the right ankle”.
In its oral submissions, the respondent also:
(a)    referred to the applicant’s submissions detailed at paragraphs 33-34 above, and argued that those submissions might gain traction if the calf was not being referred to Medical Assessment - the calf (rather than the ankle) was the body part that Dr Lee assessed, and therefore it is the part to be included in that referral;
(b)    conceded that Dr Lee made clinical findings regarding the right ankle, but argued that despite those findings, in the absence of the doctor finding an assessable impairment, there could be no valid claim made for the right ankle or medical dispute in relation to it;
(c)    argued that if the applicant’s submissions were correct, the Commission would be required to refer to Medical Assessment “each and every body part” injured in an accident even if there was only, for example, bruising involved;
(d)    argued that Skates did address why a Medical Assessment referral needed to be carefully worded and “points to the importance of a claim properly being made”, and
(e)    referred me to recent decisions of the Commission where Shankar was distinguished including Apps v Secretary, Department of Communities and Justice [2022] NSWPIC 190 (Apps) and McPherson v Mitre 10 Australia Pty Limited [2022] NSWPIC 410 (McPherson).

FINDINGS AND REASONS

Section 281 of the 1998 Act reads as follows:
“(1) The person on whom a claim for lump sum compensation or work injury damages is made must, within the time required by this section, determine the claim by--
(a) accepting liability and making a reasonable offer of settlement to the claimant, or
(b) disputing liability under Division 3 of Part 2 of Chapter 4.
(2) A claim must be so determined--
(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by a medical assessor, or
(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim,
whichever is the later.”
Under s 282(1) of the 1998 Act, the relevant particulars required include:
“(1) The ‘relevant particulars about a claim’ are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement on the claim--
(a) the injury received by the claimant,
(b) all impairments arising from the injury,”.
Also, pursuant to s 260 of the 1998 Act, a claim must be made in accordance with the applicable requirements of the Workers Compensation Guidelines (the Guidelines). The current guidelines were published by the State Insurance Regulatory Authority on 1 March 2021, and they include section 8.1.1, which provides:
“8.1.1 For injuries received on or after 1 January 2002
A claim for lump sum compensation must be accompanied by a report from a permanent impairment assessor listed on the SIRA website, for the body system(s) being assessed.
The assessor’s report must include:
·a statement about whether the condition has reached maximum medical improvement
·an assessment of the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (version current at the time of the assessment)
·where the claim relates to hearing loss, a copy of the audiogram used for the medical report.”
Under s 319 of the 1998 Act, a medical dispute is defined as including:
“‘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.”
Importantly, a medical dispute can only occur once a claim (emphasis added) has been made, and a dispute arises in relation to any of the matters referred to in s 319.
A claim for lump-sum compensation is only required to be determined by a respondent once relevant particulars of it are provided. These relevant particulars include full details of all (emphasis added) impairments arising from an injury, and are required to be provided in accordance with the Guidelines.
As such, I do not believe that it is arguable by the applicant that he has provided any relevant particulars of any impairment to his right ankle arising from his injury. There is simply no assessment of impairment at all to satisfy the requirements in s 282 and the Guidelines. The fact that Dr Lee mentions ongoing restrictions with the applicant’s right ankle does not solve the applicant’s problem that no particulars are provided of the level of its impairment. Instead Dr Lee has provided a report that complies with the Guidelines in that it assesses impairment in relation to the applicant’s right lower extremity (the part or system of the body being assessed) by referencing his hip, thigh, knee and calf, but not his ankle.
The respondent is therefore not required to determine the claim made by the letter of claim except insofar as the letter identifies impairments (which the letter does in relation to the applicant’s right lower extremity, by Dr Lee referencing only his hip, thigh, knee and calf). A medical dispute can only arise therefore in relation to an impairment identified in the letter of claim that the respondent has either disputed or failed to make a decision in relation to.
In Abou-Haidar, Roche DP (in determining whether to refer a further claim for lump-sum compensation to medical assessment) said at [55]:
“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.”
The Deputy President also considered the need for a valid claim in Stafford when he said at [66]:
“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). There are a number of reasons for adopting this interpretation.”
And at [72]:
“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.”
Applying Abou-Haidar and Stafford to the applicant’s case, he has not supported any lump sum compensation claim in relation to his right ankle “with a whole person impairment assessment in the proper form”. As a result, he has not demonstrated any such claim to be a claim for a “monetary benefit”. Applying these authorities, the applicant has not made a valid claim for lump-sum compensation with respect to his right ankle.
This position was also made clear by the Court of Appeal in Sukkar v Adonis Electrics Pty Limited [2014] NSWCA 459, in which McColl JA described (at [78]) as a “prohibited claim” the appellant’s claim for 9% hearing loss, as it did not satisfy the threshold for compensation to be payable under s 66(1) of the 1987 Act.
Although Skates was concerned not so much with whether the appellant had made a valid lump sum compensation claim, but rather whether a medical assessment was limited to the identified medical dispute, the Court of Appeal provided the following reasoning in the judgment of Leeming JA at [44]:
“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.”
And at [46]:
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”
Applying Skates to the applicant’s case, neither the letter of claim nor the respondent’s response to that letter dealt with any assessment regarding the applicant’s right ankle. The medical dispute therefore “crystallised” without any claim being made in relation to the right ankle. I do not regard the comments quoted above from Skates as obiter, and I intend to follow them.
In relation to the applicant’s reliance upon Shankar, I do not believe that it is authority for the proposition put by him (and referred to at paragraphs 27, 28 and 30 above), that his lump sum compensation claim does not need to include a right ankle assessment in order for the right ankle to be part of a medical dispute capable of referral to a Medical Assessor. Such a proposition would be clearly inconsistent with not only s 282 of the 1998 Act and section 8.1.1 of the Guidelines, but also with the authorities of Abou-Haidar, Stafford, Sukkar, and Skates.
Unlike in the applicant’s case, the reasoning of Parker ADP in Shankar presupposed that Mr Shankar’s claim was a valid claim for which compensation may be payable.
In my opinion, Shankar was decided as a result of its own unique facts, which involved the applicant’s argument for an aggregation of three injuries for the purpose of a whole person impairment assessment, and an inference in relation to causation of the level of left upper extremity impairment flowing from those injuries that was drawn by the Workers Compensation Commission’s Arbitrator, on the medical evidence presented. Parker ADP in Shankar determined at [65] that the Arbitrator in this regard “had no jurisdiction to assess the degree of ‘permanent impairment’” as that was a dispute which could only be resolved by a Medical Assessor. Member McDonald in McPherson also highlighted the unique facts in Shankar when she said at [46]:
“That very brief summary highlights a significant difference between Shankar and this case. It does not stand for the simple proposition that Ms Magee contends for – that an assessment of 0% can be referred to a Medical Assessor. There was a claim for compensation in respect of Mr Shankar’s 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 evidence provided an assessment of 0% and in which there was no claim for compensation as a result of impairment of the relevant body part.”
I also accept the submission of the respondent that Shankar is distinguishable from the applicant’s case as in Shankar, it was accepted that a valid claim had been made for lump-sum compensation in relation to the left upper extremity, and that there was an assessment of that extremity (even if it was 0%). However, in the applicant’s case, it is not accepted that a valid claim has been made for lump-sum compensation in relation to the right ankle, and there has been no assessment whatsoever of the impairment in that ankle in accordance with the Guidelines.
Guzman also in my opinion is distinguishable from the applicant’s case as:
(a)    there was no dispute in Guzman that a valid claim had been made;
(b)    Guzman did not involve a body part where there had been no assessment of impairment, and
(c)    Guzman was decided prior to the repeal of s 65(3) of the 1987 Act and the introduction of ss 322A(1A) and 322A(3)(b) of the 1998 Act - as confirmed in Etherton v ISS Property Services Pty Limited [2019] NSWWCCPD 53, Members of the Commission may now make assessments of the degree of permanent impairment.
I also do not agree with the applicant’s submission (see paragraph 30 above) that it was sufficient for Dr Lee to make findings of stiffness and restriction of movement in the ankle. The doctor needed to provide an assessment of impairment of the ankle (which he did not do) in order for the ankle to form part of the claim made by the letter of claim.
Similarly, the applicant’s submission (see paragraphs 33-34 above) that in assessing the applicant’s calf wasting, that assessment may have related to the ankle, ignores the specific requirements under both s 282 of the 1998 Act and section 8.1.1 of the Guidelines to provide full details of all impairments, as well as an assessment of percentage permanent impairment. The submission also requires me to speculate in circumstances where Dr Lee should have been asked to clarify his opinion. In any case, it is relevant to note that when Dr Lee assesses the applicant’s calf wasting, he notes in the next sentence that there is also (emphasis added) stiffness in the right ankle. It seems to me that the doctor has clearly differentiated in his assessment between the applicant’s calf wasting and his ankle symptoms.
Further, the applicant’s submission (see paragraph 35 above) does not assist me in circumstances where I will be finding that he has not made a valid claim in relation to any impairment in his right ankle.
In determining this case, I have found the recent decisions of Member Read in Apps and Member McDonald in McPherson to be of assistance. Both decisions involved similar issues to this case, although both decisions dealt with body parts where there had been an assessment of 0%, rather than body parts which had not been assessed at all. I quote from Apps at [53]-[54]:
“Ms Apps’ submissions fail to adequately address why the claim for 0% WPI of the lumbar spine ought to be considered a valid claim for compensation to which the insurer was obliged to respond in the first place. In my view, the medical dispute that crystallised, and formed the basis of Ms Apps’ application to the Commission, was not a dispute that involved consideration of permanent impairment to the lumbar spine. The claim was made on the basis of Dr Bodel’s combined assessment, which did not incorporate the 0% WPI assessment of the lumbar spine.
I accept the respondent’s submission that there has been no valid claim for lump-sum compensation pursuant to section 66 of the 1987 Act in relation the lumbar spine and therefore there is no ‘medical dispute’ concerning the degree of permanent impairment of the lumbar spine”.

SUMMARY

In summary, I find that the applicant has not made a valid claim for any impairment to his right ankle, as:
(a)    relevant particulars of the impairment are not provided by the letter of claim, in accordance with s 282 of the 1998 Act;
(b)    the impairment has not been assessed by Dr Lee or any other doctor, in accordance with section 8.1.1 of the Guidelines;
(c)    there is no assessment of the impairment “in the proper form from a WorkCover trained assessor”, in accordance with Abou-Haidar, and
(d)    the impairment has not been assessed in order to entitle the applicant to a monetary benefit.
The letter of claim makes a valid claim for impairment to the applicant’s right hip, right thigh, right knee, and right calf, but it does not incorporate any valid claim for any impairment to his right ankle.
Therefore, the medical dispute which has crystallised is confined to a dispute regarding the impairment to the applicant’s right hip, right thigh, right knee, and right calf. There can be no medical dispute regarding any impairment to the applicant’s right ankle as there has been no valid claim made regarding any such impairment. Indeed, there has been no assessment of any such impairment.
In those circumstances, I find that the injury to the applicant’s right ankle does not form part of the medical dispute to be referred to a Medical Assessor in accordance with s 319 of the 1998 Act, as it does not form part of the applicant’s valid claim for lump sum compensation pursuant to s 66 of the 1987 Act.
The medical dispute will be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as follows:
(a) date of injury: 4 May 2020, and
(b) body systems/parts: right lower extremity (hip, thigh, knee, and calf), scarring (TEMSKI).

The documents to be reviewed by the Medical Assessor are:
(a) the ARD and attached documents, and
(b) the Reply and attached documents.

[2022] NSWPIC 609

3 November 2022