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Key Takeaways

In this case, President Judge Phillips explored what constitutes a ‘medical dispute’ and whether injuries with 0% WPI could be included in a referral to a Medical Assessor (MA). In the present case there was no dispute that a particular body system was 0% WPI. The condition precedent to enliven the PIC’s power, that is a ‘medical dispute,’ was therefore absent and those body systems could not be referred to a MA for assessment.

Brief Facts

The Appellant sustained multiple injuries after falling several meters through a hole in a building he was working on while working for the Respondent. He received workers compensation benefits for his injuries, including payment of weekly compensation and medical and related treatment expenses.

On 14 December 2021, the Appellant’s weekly benefits ceased as he had received an aggregate period of 260 weeks of weekly benefits and he had not been assessed with greater than 20% whole person impairment (WPI) (s39 of the Workers Compensation Act 1987).

The Appellant sought a review of the insurer’s decision to cease weekly benefits on the basis that the insurer should have been satisfied that the degree of permanent impairment was likely greater than 20%. Attached to the request for review was a report from Dr Roger Pillemer, orthopaedic surgeon, which assessed 33% WPI, and included an assessment of 0% WPI for the lumbar spine.

The insurer declined to concede an ongoing entitlement to weekly benefits and an Application for Assessment by a MA was filed by the Appellant.

The issue before the Member was whether a body system assessed at 0% WPI could be referred to a MA for an assessment, in this case the lumbar spine and also for orofacial injuries (assessed at 0% WPI by Dr Nigel Curtis in a report attached to the application).

At first instance, Member Scarcella noted that a medical dispute arose when parties made different claims regarding the degree of permanent impairment. He found the lumbar spine and orofacial injuries, which had been assessed at 0% WPI, did not form the basis of a ‘medical dispute’ and could not be referred to a MA for assessment. The decision was appealed by the worker.

Judgment

Medical dispute

The Appellant sought leave to appeal the interlocutory decision, arguing that there was a need for the PIC to resolve asserted ‘inconsistent decisions’ on the issue of whether a 0% WPI assessment of a body part could be referred to a MA.

President Phillips, referring to the Court of Appeal Decision of Skates v Hills Industries Ltd (NSWCA 2021) (Skates) noted that the starting point was a ‘medical dispute’ as defined by s319 of the Workplace Injury Management and Workers Compensation Act 1998. President Phillips quoted Leeming JA in Skates who found;

‘[i]t 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 so doing was to resolve the dispute.’

In this case, President Phillips noted that the insurer provided no medical opinion or notice which took issue with either of the 0% WPI assessments in relation to the lumbar spine or the orofacial injuries. Accordingly, he found, there was no medical dispute between the parties in relation to those body parts. President Phillips found that the condition precedent for the exercise of the PIC’s power with respect to a medical dispute had never arisen in relation to those body parts.

In the circumstances, President Phillips declined to grant leave to appeal the Member’s decision on the basis that it would not be proper or effective to facilitate a medical assessment of matters which were not in dispute.

Valid claim

President Phillips also commented upon whether a valid claim had been made in relation to the body part’s which had been assessed as 0% WPI. Quoting an earlier decision of his in Yildiz v Fullview Plastics Pty Ltd (NSWWCCPD 2019), President Phillips noted that a valid claim involved a claim for compensation.

He found that the dispute in this case was whether the Appellant exceeded the s39 threshold, which he accepted was a claim for compensation. But, President Phillips found, the constituent parts of the claim are made up of the various assessments of WPI, including in this case, two assessments of 0% WPI. Those assessments could not form part of the claim for compensation as neither contributed to the WPI percentage necessary to surmount the s39 threshold. As a result, the claim in relation to those body parts was not a valid claim.

Implications

For the PIC to exercise its power to refer particular assessments of WPI to a MA for assessment, there must be a ‘medical dispute’ between the parties in relation to the constituent parts making up the assessment of WPI. In circumstances where there is no dispute between the parties, there is no medical dispute to be determined by the PIC.

A valid claim involves a claim for compensation. Constituent parts of a WPI assessment which do not contribute to the overall assessment of WPI (eg assessments of 0% WPI) are unable to form part of a valid claim.