Apps v Secretary, Department of Communities and Justice (NSWPIC 2022)

Link to Decision

Key Takeaways

In this case, the Member considered that a worker’s claim for lump sum compensation, to the extent that it related to a body part that had been assessed by their Independent Medical Expert (IME) as 0% WPI, was not a valid claim. Therefore that body part could not be referred for assessment by a Medical Assessor (MA) of the Commission.

The Member also considered that identical assessments of 0% WPI for a particular body part from competing IMEs did not create a ‘medical dispute’ as defined by s319 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act).

Brief Facts

The worker sustained an injury on 2 December 2016 in the course of her employment. On 6 August 2021, she made a claim for lump sum compensation in respect of 18% WPI. The worker’s IME’s assessment included 0% WPI for an accepted injury to the lumbar spine.

The insurer’s IME’s assessment also included 0% WPI for the lumbar spine. The insurer disputed liability for the lump sum compensation claim on the basis that the worker’s degree of permanent impairment did not reach 11% WPI as required by s66(1) of the Workers Compensation Act 1987. The worker commenced proceedings in the Commission and sought to refer all body parts claimed to a MA for assessment of her permanent impairment, including the lumbar spine.

In issue was whether the worker had made a valid claim in respect of the lumbar spine given that the claim was for 0% WPI.

Judgment

The worker relied on the decision in Shankar v Ceva Logistics (Australia) Pty Ltd (NSWPICPD 2021) (Shankar), in that case, ADP Parker allowed the referral of a body part where there was an assessment of 0% WPI to a MA on the basis that there was a ‘medical dispute’ as defined by s319 of the WIM Act. In making that determination, ADP Parker found that a ‘medical dispute’ existed despite both parties’ IME’s assessing 0% WPI for a body part.

In this case, the respondent submitted that no valid claim was made (an issue which was not considered in Shankar). In the alternative, the respondent submitted that there was no ‘medical dispute’ in respect of the lumbar spine, given that both IMEs assessed 0% WPI. This was based on the application the NSWCA decision in Skates v Hill Industries Ltd (NSWCA 2021), which had been handed down subsequent to ADP Parker’s decision in Shankar.

The Member accepted the respondent’s submissions and found:

• The worker had not brought a valid claim for lump sum compensation in respect of the lumbar spine.
• The parties agreed the lumbar spine injury resulted in 0% WPI, and therefore there was no ‘medical dispute’ regarding the degree of impairment of the lumbar spine due to the workplace injury.

Based on those reasons, the Member found that the lumbar spine could not be referred for assessment by a MA.

Implications

The decision in Shankar effectively allowed workers to seek a permanent impairment assessment by a MA of the Commission in respect of a body part for which their own assessment was 0% WPI. However, a referral to a MA for a 0% WPI body part may be resisted where:

• no valid claim has been made for lump sum compensation (i.e. the body part is claimed at 0% WPI);
• no ‘medical dispute’ exists between the parties as to the extent of the WPI that resulted from that body part because the impairment assessments are identical.

This case highlights the importance of identifying when a worker’s lump sum compensation claim includes a body part that has been assessed with 0% WPI. The insurer should raise in a dispute notice or a compromise offer that a valid claim has not been made in relation to the body part claimed as 0% WPI. In addition, the insurer should identify that there is no ‘medical dispute’ in relation to any body parts where the parties’ IME’s assessed 0% WPI.