Regency Realty Pty Ltd v Arzoumani (NSWPIC 2024)

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Key Takeaways

The provision of a medical assessment certificate (MAC) is the final determination in circumstances where an injured worker is referred to a PIC Medical Assessor (MA) for the purposes of a threshold dispute.

The worker filing an election to discontinue proceedings following the provision of a MAC does not prevent the employer/insurer lodging an appeal under s327 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

This case also confirms that an MA’s assessment of a body part for which there had been no valid claim, and which was not part of the MA referral, does not form part of the medical dispute.

Brief Facts

The worker suffered injuries to her bilateral elbows and right wrist in the course of her employment on 10 August 2015. She was assessed by Dr Soo, who assessed 16% WPI for the bilateral elbows, right wrist and scarring.

In March 2023, the worker’s solicitors served a copy of Dr Soo’s report, seeking a concession of the 11% WPI threshold, thus allowing the worker to claim treatment expenses for five years under s59A of the Workers Compensation Act 1987. The insurer did not concede the threshold.

In September 2023, the worker lodged an Application for Assessment by a MA, relying on the assessment of Dr Soo. The medical dispute was referred to MA Cyril SK Wong in respect of the right upper extremity, left upper extremity and scarring.

The MA later issued a MAC assessing 15% WPI for the right upper extremity, left upper extremity and scarring. The MAC included an assessment of the left wrist, not assessed by Dr Soo.

In November 2023, the employer lodged an appeal on the basis that the MA erred in assessing impairment of the left wrist. It was submitted that the worker had never formally alleged a left wrist injury or condition, nor had she produced a medico-legal report including an assessment of the left wrist.

In December 2023 and before the appeal could be determined, the worker lodged an Election to Discontinue Proceedings. The worker then objected to the appeal on the basis that the worker had the right to discontinue at any time before proceedings are finally determined, pursuant to r76 of the Personal Injury Commission Rules 2021 (PIC Rules).

The matter was listed for preliminary conference before Member Harris where the parties were directed to file written submissions. The worker’s solicitors requested a temporary stay of the appeal proceedings to investigate the left wrist claim. In the alternative, the worker’s solicitors made the following submissions:

• the worker could apply for a reconsideration to include the left wrist for assessment; or
• the MA was entitled to assess the left wrist, noting the MA referral identified the left upper extremity as a whole.

Judgment

Member Harris held that the worker’s election to discontinue had no effect as the proceedings were ‘finally determined’ within the meaning of r76 of the PIC Rules. In circumstances where the worker’s claim was limited to a threshold dispute, proceedings were determined with the provision of a MAC.

The Member also rejected the worker’s stay application, noting the worker did not provide a statutory basis for the stay or lodge an application for reconsideration. He noted that if there was a liability dispute in respect of the left wrist - that issue would have to be determined by a Member.

The Member also considered the worker’s submissions for reconsideration as inconsistent with the decisions of Secretary, New South Wales Department of Education v Connolly (NSWPICPD 2023) and Skates v Hills Industries Ltd (NSWCA 2021). In line with these authorities, the Member noted the use of the term ‘left upper extremity’ did not include a part of the arm in respect of which there had been no claim, no assessment and no medical dispute.

The Member also referred to the decision of Scone Racing Club Ltd v Cottom (NSWSC 2023), in which the Court of Appeal determined that it was too late to raise additional body parts outside of the claim once the medical dispute was before a MA and/or an Appeal Panel.

In circumstances where there was no claim and no medical dispute in relation to the left wrist, the Member was satisfied that the employer’s ground of appeal was capable of being made out and referred the matter to a Medical Appeal Panel.

Implications

This case reaffirms the principle that injured workers are entitled to only one assessment of permanent impairment, consistent with s322A of the 1998 Act. In this case, the injured worker’s election to discontinue had no effect on the binding nature of the MAC.

This case also reminds employers to be mindful of identifying the relevant body parts in dispute prior to any MA referral. Any assessment of permanent impairment should be limited to the body parts outlined in the MA referral that are the subject of a ‘medical dispute’, as defined under s321 of the 1998 Act.