No referral to Medical Assessor without a permanent impairment claim

Marshall v Woolworths Group Ltd [2021] NSWPIC 473

The Applicant alleges that she suffered frank injuries to her cervical spine, thoracic spine and right upper extremity (shoulder) when she was standing on a ladder and lifting boxes of wine from an elevated shelf in the course of her employment on 26 June 2003.

The Respondent accepted liability for the thoracic spine injury, however disputed injuries to the cervical spine and right shoulder. A further issue in this matter related to whether a proposed referral to a Medical Assessor should include the thoracic spine injury for the purposes of whole permanent impairment (WPI) assessment. The body part had not been identified in the Applicant’s Independent Medical Examiner (IME) medico-legal report and the Respondent maintained that, absent any assessment, the body part cannot be the subject of a referral.

Issues

The parties agreed that the issues in dispute were as follows:

• Whether the accepted thoracic spine injury is capable of referral to a medical assessor.
• Whether the Applicant suffered injuries to her cervical spine and right shoulder.

Determination

In their submissions, the Applicant relied upon the decision of Acting Deputy President Parker SC in Shankar v Ceva Logistics (Australia) Pty Ltd [2021] NSWPICPD18 (Shankar) to support the argument that the Applicant’s thoracic spine injury should be referred for assessment. Member Cameron Burge noted that in Shankar it was held that an injury body system that was assessed with 0% WPI by an IME can still be referred to a Medical Assessor provided there is a medical dispute.

However, Member Burge was able to distinguish the facts of Shankar from the current matter based on a number of aspects. In the Applicant’s case, the Respondent has disputed the alleged injuries to the cervical spine and right shoulder. This was unlike Shankar, in which there was agreement that other body parts would be subject to a referral for assessment.

Member Burge also stated that unlike Shankar, in this matter there had been no assessment of 0% WPI provided with respect to the Applicant’s thoracic spine. In fact, the Applicant’s IME evidence did not reference any injury to the thoracic spine. The Member states at [20]:

“Were the Commission to allow a referral for assessment of the Applicant’s thoracic spine in circumstances where that body part is not even relied upon as part of her claim for whole person impairment, it follows it would be open for an injured worker to seek referral of any body system in a given set of proceedings, including those on which their own evidence is silent.”

Overall, Member Burge was of the view that there had been no claim for injury made with respect to the Applicant’s thoracic spine within the definition under section 4 of the Workplace Injury Management and Workers Compensation Act 1998. As there was no claim made, the Member determined that there is no dispute to refer to a Medical Assessor.

In regard to the second issue, Member Burge noted that the medical evidence revealed that the Applicant did not complain of neck or right shoulder pain at the time of injury in 2003. Further, the earliest radiological evidence was from March 2015, some 12 years after the injury. The clinical notes also indicated that the Applicant’s right shoulder complaints arose following an excessive amount of lifting at work in December 2004, which gave rise to a separate claim.

Having reviewed the available medical evidence, Member Burge was not satisfied that there was a causal link between the subject work incident in 2003 and the onset of neck pathology in 2015. The Member states at [45]

“In my view, it is not sufficient to simply say that there was no other incident which might explain the onset of the cervical spine and right shoulder symptoms. As Kirby P noted in Kooragang, the mere proof that certain events occurred which predisposed the worker to a subsequent injury will not, of itself, be sufficient to establish that such incapacity results from a work injury.”

Member Burge also importantly pointed out that the Applicant is claiming injury by way of frank injury, not as a result of a consequential condition. The Member also did not prefer the Applicant’s IME evidence, finding that the doctor did not record an accurate history. Member Burge therefore made an Award for the Respondent.

Implications

This case highlights that even an accepted injury may not necessarily be subject to a referral to a Medical Assessor in circumstances where there has been no previous permanent impairment assessment or it has not been properly addressed in the IME evidence.

The case also provides that proving causation with respect to a work-related injury requires more than an absence of any other cause of injury. There must be a sufficient causal link, supported by medical evidence, to establish that the subject work incident caused the injuries alleged.

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