Kendall v Woollahra Municipal Council (NSWPIC 2024)

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Key Takeaways

The decision confirms the power of a PIC Member to determine the extent of a worker’s whole person impairment (WPI) without the need for referral to a Medical Assessor (MA).

The Member determined the worker’s WPI in circumstances where the insurer obtained an assessment of 31% WPI and the worker sought to accept this assessment, despite it being lower than that claimed.

It was concluded that to refer the matter to an MA would be wasteful of costs and would delay the matter unnecessarily, contrary to the objects of the Personal Injury Commission Act 2020 (the PIC Act).

Brief Facts

The worker made a claim for 53% WPI in respect of impairment to the right upper extremity and due to Complex Regional Pain Syndrome (CRPS).

In response to the claim, the insurer arranged for the worker to be examined by A/Prof Courtenay, who assessed 31% WPI for the right upper extremity only A/Prof Courtenay did not provide any assessment with respect to CRPS, however agreed with the diagnosis of CRPS.

On 17 January 2024, the insurer issued a dispute notice on the basis that further clarification was being sought from A/Prof Courtenay. The notice advised that until that clarification was provided, there was insufficient evidence to determine the worker’s claim.

On 22 May 2024, the insurer issued a further dispute notice with respect to a separate body part (which is irrelevant for current purposes). No reference was made to the lump sum claim for the right upper extremity or CRPS or to A/Prof Courtenay’s supplementary report of 6 February 2024.

The worker then commenced proceedings in the PIC and sought to accept the assessment of the insurer’s expert, A/Prof Courtenay, being 31% WPI.

The insurer took issue with A/Prof Courtenay’s diagnosis of CRPS, arguing that he did not adequately address the requisite diagnostic criteria set out under Table 17.1 of the Guidelines for Evaluation of Permanent Impairment Fourth Edition.

The insurer submitted that no weight could be given to A/Prof Courtenay’s report with respect to his assessment of WPI. On that basis, it was requested that the matter be referred to an MA.

The issue before the Member was whether it was appropriate for her to determine the worker’s WPI in circumstances where the worker sought to accept the insurer’s assessment of 31% WPI, or whether the worker should be referred to an MA for assessment of WPI.

Judgment

The Workers Compensation Legislation Amendment Act 2018 (the 2018 Amending Act) repealed s65(3) of the 1987 Act which previously prevented the Commission from determining an award for WPI unless the worker had been assessed by an approved medical specialist. The second reading speech in relation to the Bill introducing the 2018 Amending Act stated:

“…This amendment recognises that, in certain circumstances, the requirement to refer all permanent impairment disputes to an approved medical specialist was unduly delaying proceedings in the Workers Compensation Commission. The amendment will allow arbitrators to make determinations of permanent impairment by removing section 65 (3) from the 1987 Act, which requires all permanent impairment disputes to be referred to an approved medical specialist prior to the Workers Compensation Commission awarding permanent impairment compensation.”

Similarly, s322A(1A) of the 1998 Act permits a Member of the PIC to determine a worker’s WPI without referral to a MA.

Member Bamber noted a previous decision of hers, being Boga v Carpet Call (Vic) Pty Ltd t/as Carpet Call [2019] NSWWCC 127 (Boga). In Boga, Member Bamber determined the worker’s WPI at 23% based on the assessments of both parties’ qualified experts. In that matter, Member Bamber determined that it would be wasteful of costs and would cause unnecessary delay if there was a referral to an MA for assessment of WPI. Member Bamber considered Boga relevant to the current dispute and found that where a worker wishes to accept a lower assessment made by the insurer’s expert, that should be encouraged to save costs and delay and to abide by the objects of the PIC Act.

Member Bamber noted the insurer’s concerns regarding the assessment of A/Prof Courtenay and his diagnosis of CRPS. Despite these concerns, Member Bamber highlighted that A/Prof Courtenay assessed the worker’s impairment based on loss of motion in the right shoulder, elbow, wrist and hand, and had not assessed WPI in respect of CRPS. Member Bamber did not agree that the assessment was invalid, nor did it render the assessed loss of range of motion as inaccurate. Indeed, A/Prof Courtenay’s range of motion findings were identical to those found by the worker’s qualified experts. It followed that there was no dispute between the parties about this aspect of the WPI assessment.

Member Bamber found, noting all experts assessed 51% upper extremity impairment due to loss of range of motion, that the worker had 31% WPI.

Applying Boga, Member Bamber concluded that if the worker wished to compromise his claim and accept the lower assessment of the insurer, rather than his own higher assessment, given he was legally represented, she should give effect to that when taking into account the objects of the PIC Act.

Implications

This decision confirms the power of a PIC Member to determine a worker’s WPI.

If an insurer issues a dispute notice pending further clarification from their qualified expert in respect of a WPI claim where there is no issue with respect to the body parts claimed, there is a significant risk that if proceedings are commenced in the PIC, that a Member may determine WPI.

Where a worker wishes to compromise their claim and accept the assessment of the insurer, rather than a higher assessment by the worker’s qualified expert, the PIC should, ordinarily, give effect to that wish taking into account the objects of the PIC Act.