Shankar v Ceva Logistics (Australia) Pty Limited (NSWPICPD 2021)

LINK TO DECISION

Key Takeaways

In this case, it was determined that as long as the injury itself is not in dispute, a body part can be referred to a Medical Assessor (previously known as an Approved Medical Specialist) for binding assessment, despite the fact that the available WPI assessments indicate 0% WPI.

Brief Facts  

The worker made a claim for WPI based on a report of Dr Wong. Injuries to the right and left shoulders as a result of the nature and conditions of employment were alleged with a deemed date of injury of 7 January 2015. In the alternative an injury on 22 December 2010 was pleaded as a frank incident giving rise to permanent impairment.

The respondent disputed that the nature and conditions claim should progress at all or be referred to an AMS. Alternatively, the respondent argued that there was no assessment of impairment of the left shoulder due to a nature and conditions/deemed date of injury.

Arbitrator Harris found that the respondent had not disputed an 'injury' to the cervical spine, left upper extremity and right upper extremity due to the nature and conditions of employment, with a deemed date of injury of 7 January 2015. The appellant was found to have made a claim for permanent impairment in relation to the cervical spine and right upper extremity however not in relation to the left upper extremity in respect of the deemed date of injury of 7 January 2015.

Arbitrator Harris’ findings were made on the basis that Dr Wong was not considered to have expressed the view that the nature and conditions of the worker’s employment had resulted in any assessable impairment.

The Arbitrator held that he would not be ‘referring a body part that has no assessable impairment, for assessment by an AMS’.

The worker appealed the decision of Arbitrator Harris.

Judgment on Appeal

The appeal was determined by Acting Deputy President Parker SC.

One of the grounds of appeal was that Arbitrator Harris had erred in law when he failed to include the left upper extremity in his orders remitting the matter to the Registrar for referral to an AMS. Parker ADP upheld this ground.

Parker ADP stated that the issue of permanent impairment could only be resolved by way of referral to an AMS. He found that there remained a 'dispute' within the meaning of s319 of the Workplace Injury Management and Workers Compensation Act 1998 and stated that this was supported by the reasoning contained in the Presidential decision of Guzman v Trade West Pty Limited (NSWWCCPD 2017). It was noted in that decision that ‘where no liability issues are raised, and the remaining issue is one going to assessment of permanent impairment…it is difficult to see a basis on which a view could be formed by an Arbitrator, that the matter is clearly not reasonably arguable’.

It was held by Parker ADP Arbitrator Harris had assumed that the ‘evidence of the qualified specialists would in the event carry the day’. However Parker ADP stated that Arbitrator Harris had no jurisdiction to assess that the degree of impairment of the left shoulder was 0% WPI.

Parker ADP similarly confirmed that the 2018 repeal of s65(3) had no effect on s65(1) which remained the controlling provision so far as assessments of WPI were concerned. Parker ADP stated that ‘the amendment to s65 does not authorise the Commission to make an assessment of the degree of permanent impairment. The assessment of the degree of permanent impairment remains the province of the AMS. It follows that notwithstanding the absence of subsection (3) in section 65, assessment of the left upper extremity could only be performed by the AMS’.

Parker ADP considered that it was not open to Arbitrator Harris to find that the assessment of the left upper limb was 0% WPI.

The second ground for appeal was that Arbitrator Harris had failed to give proper reasons for his decision that he would not refer a body part that had no assessable impairment for assessment by an AMS. This ground was also upheld.

Implications 

In light of this decision, an assumption should not be made that a body part will not be referred for assessment by a Medical Assessor purely because the medical evidence (including the IME report relied upon by the worker) contains a 0% WPI assessment. If liability for a particular injury (and the relevant body parts injured) is not in dispute, the accepted body parts may be referred for assessment by a Medical Assessor. This is irrespective of an assessment of 0% WPI of the relevant body part, even if that assessment has been made by the worker’s own IME.