Cincotta v Police Citizens Youth Clubs NSW Ltd & Ors

Factual background

1. On 7 September 2017, the plaintiff filed an Application to Resolve a Dispute (ARD) in the Commission. By the ARD, the plaintiff sought referral to an AMS in relation to "lump sum compensation where degree of permanent impairment in dispute". The primary injury, the subject of the ARD, occurred on 2 October 2015 when the plaintiff tripped on a raised section of carpet causing him to stumble and fall, twisting his back as he struck a cabinet with his body.
2. In the ARD the plaintiff gave the following description of the injury which he claimed had resulted from the fall. "Injury description 1. Low back, 2. Consequential post-surgical left foot drop. Describe how the injury happened The [plaintiff] was exiting his office at work when he tripped on an uneven section of carpet. His foot became caught in the carpet which caused him to stumble and suffer injury to his low back. Following surgery performed by Dr M Giblin on 8 December 2015, the [plaintiff] experienced consequential left foot drop."
3. The plaintiff claimed the following permanent impairment: "Lumbar spine/peripheral spinal nerve roots impairment (left)" (Tender bundle, Tab 1, pp 4 and 6)
4. The plaintiff claimed a degree of permanent Whole Person Impairment (WPI) of 22 per cent.
5. The plaintiff had undergone surgery to address the injury resulting from the fall on 8 December 2015 (the surgery) (TB Tab 1, p115). Dr Matthew Giblin, orthopaedic surgeon, who had treated the plaintiff in relation to an earlier injury (for which the plaintiff underwent surgery in 2007), removed a Wallis device (which had been inserted in response to the earlier injury), removed a fragment of bone from "underneath the posterior longitudinal ligament" and carried out a "neurolysis of the L5 nerve root". Dr Giblin also inserted a Corflex device (TB Tab 1, p 115).
6. Some weeks after the 2015 surgery, as the plaintiff's pain resolved, he reported to Dr Giblin that he "had some weakness in [his] left leg". Dr Giblin noted that the plaintiff "had a similar problem" following the earlier surgery (TB Tab 1, p 117). Over the following weeks and months, the plaintiff's weakness in his left leg increased, which Dr Giblin found "surprising" (TB Tab 1, p 118-125). Dr Giblin suspected that it "may be a vascular event to the nerve root". A later neurological report suggested diabetic neuropathy to be the cause, which Dr Giblin considered to be consistent with his initial view (TB Tab 1, pp 119, 123, 124 and 125).
7. In his ARD, the plaintiff relied primarily on a report by Dr Sheikh M Habib, dated 31 March 2017. Dr Habib diagnosed the plaintiff with "L4/5 discopathy with left radiculopathy requiring surgery and left foot drop". Dr Habib expressed the view that the plaintiff's left foot drop was caused by the 2015 surgery. Dr Habib acknowledged that the plaintiff had been compensated in 2008 for an injury to his lumbar spine in relation to an earlier injury (TB Tab 1, pp 11-18).
8. On 26 September 2017, the first defendant filed its Reply to the ARD in the Commission. The first defendant included with its Reply a letter from its insurer, GIO Insurance (GIO) to the plaintiff's lawyers, dated 11 September 2017 (TB Tab 2, pp 223-224).
9. Relevantly, the GIO's Reply was in the following terms: "It is noted that your client was already compensated for 24% total whole person Impairment in 2008 for lumbar spine. GIO has considered your lump sum claim and have made a decision that your client does not have an entitlement for further Section 66 compensation. Therefore GIO will not make an offer of settlement for further Section 66 in this matter. We make a nil offer on the following basis: • We dispute there has been a deterioration in your client's condition since the 2008 settlement; • We dispute that your client has reached maximum medical impairment for "Lumbar Spine, peripheral spinal nerve roots impairment (left)" as per Professor Miniter's report • Further, we dispute your client has sustained greater than 10% whole person impairment for "Lumbar Spine, peripheral spinal nerve roots impairment (left)" as per Professor Miniter's report • Further, we believe your lump sum claim is excessive."
10. The reference to Professor Miniter's report appears to be a reference to that doctor's opinion at p 5 of his report of 23 June 2017 where he said: "This matter is very interesting indeed and somewhat confusing to some practitioners. It would appear that Mr Cincotta has genuine weakness in both lower limbs and the comment by Dr Yiannikis that he has "pre-ganglionic" involvement which suggests to this observer that the current pathology whereby he has weakness in the left lower limb, is not likely to be related to the workplace injury. He seems to have had a nerve compression syndrome secondary to the injury that occurred in the workplace in October 2015 but the progression following surgery would suggest to this observer that the matter is not a surgical compression syndrome but rather either a combination of diabetic neuropathy and pre-ganglionic changes. …"
11. Two reports of Professor Miniter were included in the first defendant's Reply. In the June report, Professor Miniter set out his conclusions as follows: "2. What is the % wpi related to the injury? I do believe that a proportion of this is related to the workplace and a good proportion is not related to a workplace ... 7. What is the current diagnosis? The current diagnosis is a combination of diabetic neuropathy, the possibility of compression at the L4/5 level following a work related injury in October 2015 and "pre-ganglionic changes" which are mentioned by Dr Yiannikis. 9 Does the worker have the injury/condition claimed? [The plaintiff] has an injury but he also has a number of conditions which are entirely unrelated to die workplace injury. … 11 Is the worker still suffering from a work related injury? There are few features of [the plaintiff's] current presentation that relate to the workplace. The dominant presentation is the weakness of the lower limbs, which is unlikely to be related to the workplace. It is much more likely to be related to the pre-ganglionic changes ..."
12. In a report of 20 July 2017, Professor Miniter expressed the view that the plaintiff had a six per cent WPI: "a. the application of "DRE lumbar category III", leading to a 10% whole person impairment; b. an additional 2% for the additional operation (presumably a reference to the operation in December 2015), giving a total of 12% whole person impairment; c. disregarding "other features of neurological anomaly which are not related to the workplace"; and d. subtraction of a "50% moiety for pre-existing disease", leading to a final figure of 6% whole person impairment."
13. On 29 September 2017, a delegate of the Registrar of the Commission referred the medical dispute to the AMS. The referral was in the following relevant terms: "1. MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s 319 1998 Act) • the degree of permanent impairment of the [plaintiff] as a result of an injury (s 319(c)) • whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s 319(d)) • whether impairment is permanent (s 319(f)) • whether the degree of permanent impairment of the injured worker is fully ascertainable (s 319(g)) Date of injury: 2 October 2015 Body parts referred: Lumbar Spine peripheral spinal nerve root impairment [left] Method of assessment: Whole Person Impairment" (TB, Tab 3, p 225).
14. On the same date, the Registrar's delegate sent a copy of the referral to the parties and invited each to lodge any objection within three working days. No objection was lodged by either party.
15. On 25 October 2017, the AMS issued his certificate entitled "Medical Assessment Certificate: Assessment of Degree of Permanent Impairment" (MAC 1) (TB Tab 5, pp 227-238).
16. By letter dated 30 October 2017, the first defendant sought reconsideration of the MAC 1 by the AMS. By letter dated 31 October 2017, the plaintiff objected.
17. On 13 November 2017, the Registrar's delegate returned the MAC 1 to the AMS for reconsideration (TB Tab 8, p 242).
18. On 21 November 2017, the plaintiff made an application to appeal against the MAC 1.
19. On 22 November 2017, the AMS issued the MAC 2 (TB 11, pp 251-255). Under the Act this certificate prevailed over the earlier MAC (s 329(2)) of the Act.
20. On 24 November 2017, the plaintiff made an application to appeal against the MAC 2. The grounds of appeal were:

• The assessment was made on the basis of incorrect criteria; and
• That the Medical Assessment Certificate contains a demonstrable error (TB p 258)

1. On 16 December 2017, the first defendant lodged a Notice of Opposition.
2. On 8 March 2018, the Appeal Panel confirmed the MAC 2.
3. On 1 May 2018, the Commission issued a certificate of determination which was consistent with the MAC 2.
4. Relevant parts of the Appeal Panel's Reasons for Decision are as follows: "BACKGROUND TO THE APPLICATION TO APPEAL 1. On 24 November 2017 Anthony Cincotta lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Mohammed Assem, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 22 November 2017. 2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act): • the assessment was made on the basis of incorrect criteria, • the MAC contains a demonstrable error. 3. The Registrar is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made. … RELEVANT FACTUAL BACKGROUND 6. This matter has a rather complex history. 7. The appellant's Application to Resolve a Dispute (ARD) confusingly claimed lump sum compensation in respect of "lumbar spine/peripheral spinal nerve roots impairment (left)" resulting from an injury on 2 October 2015 relying on a 22% whole person impairment (WPI) assessment of Dr Habib. 8. In his report of 31 March 2017, Dr Habib noted that Mr Cincotta had been assessed with 24% WPI of the lumbar spine as a result of an injury in 2003, and had no further impairment of his lumbar spine, but then assessed 22% WPI in respect of "peripheral spinal nerve roots (left)". 9. The referral to the AMS again confusingly sought assessment of whole person impairment in respect of the "lumbar spine peripheral nerve root impairment (left)" resulting from an injury on 2 October 2015. 10. The AMS then issued a MAC on 25 October 2015 and assessed 14% impairment of the lumbar spine. 11. He was then asked to re-consider that MAC because it was determined that his assessment "was totally inconsistent with the referral and did not address the dispute between the parties." 12. He did so and issued a further MAC on 22 November 2017, and assessed 0% impairment of the peripheral nerve. 13. The appellant apparently appealed both MACs and in his decision dated 24 January 2018, a delegate of the Registrar determined that, because "there is a clear inconsistency between the two MACs" the later MAC prevails, and only the appeal lodged on 24 November 2017(against the later MAC) is to be considered by the Appeal Panel. … SUBMISSIONS 17. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 18. In summary, the appellant submits that the AMS wrongly used an analogous condition in making his assessment, and failed to examine the worker's power and motor deficit. 19. In reply, the respondent submits that no errors were made, and that it was open to the AMS to find, on the evidence, that the appellant's peripheral neuropathy was entirely constitutional. FINDINGS AND REASONS 20. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. … 22. By way of background, it is necessary to consider the history and findings made by the AMS in his initial MAC dated 25 October 2017. 23. The AMS obtained the following history: "Mr Cincotta has a previous history of a lower back injury... He required surgery on 15 June 2007 and states that he completely recovered. On 2 October 2015, Mr Cincotta tripped on an elevated piece of damaged carpet causing him to [f]all forwards. He experienced immediate severe pain in his lower back with left sided sciatica. An MRI scan of the lumbar on 25 November 2015 showed post-surgical changes at the L4-5 level anterior and left lateral recess with epidural fibrosis and a left paracentral disc annulus closely associated with the left L5 nerve root. On 8 December 2015, Dr Giblin admitted him ... for surgery. He removed the previous Wallis device and a sequestrated fragment from beneath the posterior longitudinal ligament. Neurolysis of the L5 nerve root was then performed and a Corflex device inserted. Post-operatively, the sciatica in his left leg had improved. He informed me that there was a slight foot drop before the operation that worsened ... He was required to wear a polypropylene ankle/foot orthosis. He underwent electrophysiological studies ... There was a suggestion of peripheral neuropathy and possible preganglion nerve root involvement ... There was a complete loss of sensation in his left lower leg. There is complete loss of movement to his left ankle and toes." 24. As regards the previous history of injury, the AMS said: "On 21 September 2003, he fell off a ladder... causing an injury to his lower back. His symptoms subsided with conservative management. On 15 June 2007, he experienced severe sharp pain across his lower back radiating to his left leg after a twisting injury. He was admitted to Nepean Hospital for four days. He came under the care of Dr Giblin who proceeded to perform a left L4-5 microdiscectomy on 28 June 2007. An MRI scan of the lumbar spine was arranged on 3 July 2007 for left sided sciatica. He was noted to have an extensive epidural mass compressing the spinal subarachnoid space and extending into the left lateral recess. A further MRI scan on 21 September 2007 confirmed post-surgical changes with a surgical interspinous fusion at the L4-5 level. According to the reports of Dr Giblin ... he continued to have residual lower back discomfort and persisting left sided foot drop. On 21 March 2011, Dr Selim documented severe lower back pain for three days and severe bilateral leg pain. He was prescribed narcotic analgesia and referred for further radiological imaging. On 19 February 2014, Dr Selim again noted sciatica for the past three weeks. On 30 June 2014, Dr Selim documented bilateral feet numbness followed by left hand numbness and recent anal numbness ... He came under the care of Dr Park, Neurologist, who performed nerve conduction studies that showed moderate bilateral carpal tunnel syndrome. He recommended a brain CT to exclude a cerebrovascular accident. Dr Hanna completed electrophysiological studies and noted that an asymmetrical peripheral neuropathy as a possible cause for his left sided foot drop. It is clear from review of the attached documentation that Mr Cincotta had pre-existing neurological problems affecting his feet and episodes of back pain associated with left sided sciatica ... Mr Cincotta suffered a left sided cerebrovascular accident in 2005 and developed left sided hemiparesis. He states that the stroke only affected his memory ... A report from Dr Dowla dated 8 July 2016 noted mild insulin dependent diabetes mellitus since 2014 with diabetic polyneuropathy." Relevant to the issues in dispute, on physical examination, the AMS said: "He was wearing a polypropylene left ankle/foot orthosis that was removed for the assessment. There was no movement possible in his left ankle or toes. There was complete sensory loss involving his left lower leg that was predominantly in a glove and stocking distribution consistent with a peripheral neuropathy. Active straight leg raising was 70 degrees on the right. On the left side, straight leg raising was barely above the examination couch due to proximal weakness of his muscles. There was possible slight diminution of the left knee and ankle jerk reflex compared to the right. There was 15 cm atrophy of his left calf compared to the right. Babinski sign was equivocal on the right and absent on the left due to complete loss of sensation." 25. The AMS then documented the extensive radiological material and concluded: "Mr Cincotta has a previous history of lower back problems after a work-related injury in 2003. He was initially treated conservatively until he experienced an exacerbation in 2007 requiring surgical decompression/laminectomy and L3-4/L4-5 microdiscectomy with the insertion of a Wallis device. From the attached documentation, it appears that he has experienced episodes of severe back pain and sciatica that would occur without any identifiable reason. There are also reports of numbness in his feet and hands with electrophysiological evidence of bilateral carpal tunnel syndrome. On 2 October 2015, he stumbled and fell forwards aggravating his back complaints. He developed severe pain across his lower back with left sided sciatica. There was an evolving left-sided foot drop that continued to worsen until he has no active motion present in his left foot and total sensory loss that is predominantly in a glove and stocking distribution. Electrophysiological studies suggested a proximal lesion but there were also clear features of a diabetic polyneuropathy." 26. As noted earlier, the AMS then proceeded to make an assessment of WPI in respect of the lumbar spine. He also added: "He suffers from peripheral neuropathy with complete motor and sensory loss in his left lower leg below the knee that increases more distally towards the foot. Although it is clearly a constitutional condition not related to his employment, there is radiological and possible electrophysiological evidence of a more proximal lesion that may be contributing to some of the neurological symptoms reported. I have therefore given him the benefit of the doubt and accepted that he has radiculopathy persisting after surgery 3 and awarded 3% Whole Person Impairment. The total Whole Person Impairment is 15%. I was also requested to provide an assessment of peripheral spinal nerve root impairment. I have included any possible contribution from the spinal nerve roots by accepting that he may have radiculopathy persisting after surgery. As far as the peripheral nerve roots are concerned, he has diabetic peripheral neuropathy which is a constitutional condition and not related to his employment." 27. In the MAC dated 22 November 2017 the AMS confirmed the previous history and findings, adding: "Mr Cincotta underwent a spinal fusion for lumbar radiculopathy and continues to have left L5 radiculopathy persisting after surgery. He therefore received a settlement for 24% Whole Person Impairment. He suffers from peripheral neuropathy with complete motor and sensory loss in his left lower leg below the knee that increases more distally towards the foot. Although it is clearly a constitutional condition not related to his employment, there is radiological and possible electrophysiological evidence of a more proximal lesion that may be contributing to some of the neurological symptoms reported. The proximal cause of his symptoms is due to lumbar disc pathology/ scarring impinging the proximal L5 nerve root. Any impairment arising from a proximal L5 nerve root injury has been included in the previous award of 24% WPI. That is, he was awarded an impairment for left L5 radiculopathy persisting after surgery as there was weakness, sensory changes, reflexes changes consistent with L5 nerve root injury with concordant evidence on radiological imaging of pathology at the same spinal level 1. It would be inappropriate to provide a further assessment for L5 nerve root impingement as it would be double dipping. The distal cause of his symptoms is clearly due to a peripheral neuropathy as noted by a progressive glove and stocking sensory loss, complete absence of motor power and absence of reflexes. There are many causes for the development of peripheral neuropathy but they are all due to constitutional medical conditions that affect multiple nerves distally rather than a spinal injury or a discrete nerve root injury that may have occurred as a complication of the surgical procedure to his lumbar spine. The most likely cause of his peripheral neuropathy is diabetes mellitus. Although there is a temporal relationship between the surgical procedure on the lumbar spine and the gradual worsening of his peripheral neuropathy leading to legal finding of causation, from a medical perspective, the relationship is purely incidental and there is no other possible cause except for pre-existing constitutional conditions. If the peripheral neuropathy is assessed, he would have total or 100% impairment in a glove and stocking distribution below the knee. The sensory changes were not confined to the L5 nerve root distribution as determined by Dr Habib. The degree of sensory loss is multiplied by the area of the leg involved. I have referred to AMA 5, Table 17-32 and determined that 70% of his left leg below the knee is involved. This is combined with complete motor loss to all muscle groups below the knee AMA 5, Table 16-11, p 484. Since the impairment value cannot exceed an amputation, he will have an impairment equivalent to an amputation below the knee or 70% LEI which converts to 42% WPI. As his condition is partially due to pre-existing pathology involving his lumbar spine that has already been settled and predominately due to constitutional medical conditions, the entire impairment was deducted to give 0% WPI. Total motor and partial sensory loss below the knee gives 70% LEI or 42% WPI. After deducting the entire amount, he has 0% WPI." NOT IMPLEMENTED: support for w:pgNum - 28. In commenting on other medical opinions, the AMS said: "… As I have noted above, Mr Cincotta has peripheral neuropathy partially involving the sensory fibres of multiple nerves below the knee and all of the motor fibres so that there is not even a flicker of movement possible in any direction. His condition is entirely constitutional and not related to the work injury or the surgery on his lumbar spine. For reasons that I have explained above, he clearly has a diabetic polyneuropathy that was symptomatic prior to the injury. According to the clinical notes of Dr Giblin, the left sided foot drop was noticed after the operation but then recovered. The further deterioration was suspected to be due to a vascular event involving the nerve roots. In other words, this would be due to microvascular disease in a diabetic patient that is not related to the subject injury. On 20 July 2016, Dr Giblin documented progressive deterioration following surgery which again indicates a constitutional cause. According to the WorkCover Guides, paragraph 1.6, the principles of permanent impairment assessment is to determine the degree of impairment that results from a work injury. After this level of impairment is calculated, a deduction is made for any previous injury, previous condition or abnormality. As the peripheral neuropathy is not related to the work injury, there was 0% Whole Person Impairment." 29. At the outset, we think it important to note that Mr Cincotta did not undergo a spinal fusion. In December 2015 Dr Giblin proceeded with "removal of his previous Wallis interspinous spacer revision microdiscectomy and inserted a similar device a Corflex spacer". The NSW Workers' Compensation Guidelines (4th edition) states at paragraph 4.40 that posterior spacing or stabilisation devices does not warrant any additional WPI. 30. The appellant's submissions are misconceived for reasons that follow. 31. The appellant emphasises that the referral was for "the lumbar spine peripheral nerve root impairment (left), not the left leg." That is correct, but the appellant appears to be confusing sciatic leg pain resulting from damage to the L5/S1 disc (S1 nerve root compression) with peripheral neuropathy. 32. We cannot see how the peripheral neuropathy could be associated with the lumbar spine and a spinal nerve root lesion. Dr Habib separately assessed sensory and motor disturbance resulting from L5 nerve root involvement. The rating for such disorder is included in table 4.2 of the NSW Workers' Compensation Guidelines (paragraph 4.37, p 29) for radiculopathy following surgery. This paragraph provides additional WPI where there are rateable conditions following surgery. 33. The AMS accepted that the appellant did indeed suffer from peripheral neuropathy with complete motor and sensory loss in his left lower leg below the knee, but he attributed this to his diabetes, noting that it was symptomatic prior to the injury. As he noted on physical examination, "there was complete sensory loss involving his left lower leg that was predominantly in a glove and sticking distribution consistent with a peripheral neuropathy". 34. Dr Giblin noted a slight foot drop prior to the operation which apparently worsened after the surgery, but the sciatic pain in the left leg improved. His notes suggest that the foot drop then recovered to a degree, but later deteriorated. 35. As the AMS explained, "this would be due to a microvascular disease in a diabetic patient that is not related to the subject injury". 36. The nerve conduction studies performed by Dr Yiannikas on 17 August 2016 disclosed (in part): "reduced left sural SNAP and absent left SP with absent peroneal conduction and active and chronic denervation in L4-S1 muscles on the left ... suggestive of preganglionic pathology ... The suggestion of neurogenic changes in TFL and Vastus Lateralis would argue against a sciatic nerve lesion ... the lower limb conduction may suggest a superimposed mild neuropathy". This suggests that the significant lesion causing a foot drop (L5 radiculopathy) is situated in the nerve root which is consistent with a disc prolapse. It would not be caused by a "mild peripheral neuropathy". 37. In our view, the AMS clearly explained his reasons for concluding that features of neurological abnormality were unrelated to the injury, and consistent with a diabetic polyneuropathy, and his findings were consistent with the totality of the evidence. 38. For these reasons, the Appeal Panel has determined that the MAC issued on 22 November 2017 should be confirmed."

Plaintiff's submissions

1. The plaintiff submitted that there was no issue of causation to be decided by the AMS and subsequently the Appeal Panel. The plaintiff submitted that the AMS and therefore the Appeal Panel should have proceeded to assess his foot drop on the basis that there was a causal nexus between it and the lumbar spinal injury. The plaintiff submitted that the sole question to be decided by the AMS and subsequently the Appeal Panel was what degree of permanent impairment existed on the assumption that the body part referred to, i.e. "lumbar spine peripheral spinal nerve root impairment [left]" had been injured as a result of the work injury. The plaintiff submitted that the AMS and subsequently the Appeal Panel had asked themselves the wrong question. The plaintiff submitted that there was no issue of causation to be decided by the AMS or the Appeal Panel because the causation issue had not been referred to it for assessment.
2. The plaintiff submitted that the Appeal Panel had erred in making a finding as to causation and in proceeding on the basis that there was no consequential injury as a result of the fall at work, being the left foot drop. The plaintiff submitted that the Appeal Panel had erred because it focused its attention on whether it was open to the AMS to find that there was no consequential injury in the form of a spinal nerve root injury causing left foot drop.
3. The plaintiff submitted that as a result, the Appeal Panel had misdirected itself in relation to its statutory task, thereby committing jurisdictional error. The plaintiff submitted that the Appeal Panel ought to have found that the AMS had erred in that he failed to determine the extent of any permanent impairment resulting from the consequential injury and instead determined whether there was a consequential injury. The plaintiff submitted that the Appeal Panel should have examined whether the AMS had performed his statutory task and having determined that he had not done so, proceeded to determine for itself the degree of permanent impairment resulting from the work injury.
4. In summary, the plaintiff's position was that there was no issue as to causation before the Appeal Panel and that the task of both the AMS and the Appeal Panel was to simply determine the degree of permanent impairment which existed without considering the question of causation. Put another way, the plaintiff submitted that the Appeal Panel had erred in concluding that the question of whether the permanent impairment was caused by the work injury was part of a medical dispute that may be determined by an Approved Medical Specialist or an Appeal Panel.

Consideration

1. The Reply by the first defendant's insurer sufficiently raised the issue of causation. It did so when it identified the following two matters:

• We dispute there has been a deterioration in your client's condition since the 2008 settlement.
• Further we dispute your client has sustained greater than 10% whole person impairment for "lumbar spine peripheral spinal nerve roots impairment [left]" as per Professor Miniter's report. The reference to Professor Miniter's report in that context included the matters set out at [19]-[21] hereof, which raised the issue of causation. Given the insurer's reliance on Professor Miniter's reports, it is plain that as at 11 September 2017 there was a dispute which included whether the plaintiff's left foot drop was relevantly related to, or caused by, the fall and the 2015 surgery.

1. It is true that liability was not in issue in relation to the fall and anything consequential upon it. As such, had there been a determination by the AMS/Appeal Panel that the plaintiff's left foot drop was caused by the fall and the 2015 surgery, liability for the plaintiff's left foot drop would not have been disputed. However, that does not mean that there was no dispute as to whether the plaintiff's left foot drop, being the condition said to cause the permanent impairment, was caused by the injury for which liability had been accepted. That was a matter very much in dispute and that was made clear by the insurer's Reply.
2. The scope of an AMS's task, and therefore that of the Appeal Panel, was defined by two factors - the dispute referred to the AMS/Appeal Panel and the relevant legislative provisions. In this case, the referral to the AMS/Appeal Panel included: 1. the plaintiff's degree of permanent impairment as a result of the fall and/or the 2015 surgery; and 2. the proportion, if any, of the plaintiff's degree of permanent impairment due to any previous injury or pre-existing condition or abnormality.
3. The referral was made in the context of a dispute as to whether the plaintiff's left foot drop was relevantly related to, or caused by, the fall or the 2015 surgery. The referral did not challenge the fact that the fall and the subsequent surgery in 2015 had occurred and were work injuries, but challenged the medical consequences, i.e. the extent to which the degree of permanent impairment was due to any previous injury or pre-existing condition or abnormality.
4. The relevant provisions of the Act are found in Part 7 of Chapter 7. This is headed "Medical Assessment". It concerns a referral of medical disputes to an AMS for binding determination, subject to limited appeal and reconsideration rights. Section 319 defines the terms "Approved Medical Specialist" and "Medical Dispute". "Medical Dispute" is defined relevantly as: Medical Dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: … (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion.
5. A "Medical Dispute" concerning permanent impairment may be referred to an AMS for assessment by the Registrar of the Commission (s 321(1), 321(4) of the Act). Upon completion of the assessment, the AMS issues a MAC (s 325 of the Act). In relation to the degree of permanent impairment resulting from an injury and the proportionate permanent impairment due to a previous injury or pre-existing injury or abnormality an assessment certified in a MAC is to be conclusively presumed to be correct (ss 326(1)(a), 326(b) of the Act). The Registrar of the Commission may refer a MAC to the AMS for reconsideration (s 329 of the Act). A MAC issued following reconsideration prevails over any earlier assessment certificate (s 329(2)).
6. Those sections and that process have been considered by the Court of Appeal. In Haroun v Rail Corporation New South Wales and Ors [2008] NSWCA 192 Handley AJA (with whom McColl JA and McDougall J agreed) said: "16 In my judgment the Panel were not only entitled to treat the finding as irrelevant, they were bound to do so if they independently came to a different conclusion. The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers' Compensation Act 1987 (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel. 17 Section 65(1) and (3) of the 1987 Act provides that in the event of a dispute the degree of permanent impairment that results from an injury is to be assessed in accordance with Part 7 of the 1998 Act. This includes ss 321, 323, 326, 327 and 328. 18 Section 326(1) provides that a MAC "is conclusively presumed to be correct … in any proceedings before a Court or the Commission" as to (a) "the degree of permanent impairment of the worker as a result of an injury" and (b) "whether any proportion of permanent impairment is due to any previous injury or pre-existing condition." This section also applies to a MAC issued by a Panel: s 328(5). 19 The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Part 7 of the 1998 Act and not otherwise. 20 If there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but "may refer it for assessment" by an AMS: s 321(1). That section confers a power which an Arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford (1885) App Cas 214, 235, 243, 244."
7. Further guidance was provided in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 where Emmett JA (with whom Ward JA agreed) said: "108 Mr Bindah contends that the primary judge erred in concluding that the question of whether permanent impairment is caused by an injury is not a factual or legal issue that must be determined by an arbitrator but is part of a medical dispute that may be determined by an approved medical specialist or an Appeal Panel. He contends that that conclusion is inconsistent with the statutory scheme. 109 Generally, the scheme for the settlement of compensation disputes established by the Management Act, read in conjunction with the Compensation Act, is to have factual and legal issues resolved by an arbitrator, subject to an appeal to a President or Deputy President of the Commission, and to have certain medical issues decided by an approved medical specialist, subject to an appeal to an Appeal Panel. That scheme is designed to ensure that the degree of permanent impairment that results from injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition, are assessed in accordance with Pt 7 of Ch 7 of the Management Act, and not otherwise. If there is a medical dispute within the meaning of that term in s 319 of the Management Act, an arbitrator would have no jurisdiction to decide it. However, an arbitrator may refer such a medical dispute for assessment by an approved medical specialist under s 321. Section 321 confers a power that, in a proper case, an arbitrator is bound to exercise in aid of the private rights of the parties. Thus, because an arbitrator has no jurisdiction to decide a medical dispute, an arbitrator has no jurisdiction to make findings that are binding on an approved medical specialist or on an Appeal Panel. A finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (see Haroun v Rail Corporation New South Wales [2008] NSWCA 192 at [16] and [19]-[21]). 110 However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of "medical dispute". Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]). 111 It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act. The Commission must also determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury. It is also the function of the Commission to determine by whom any compensation is payable. Jurisdiction is conferred on the Commission by s 105 of the Management Act. However, that jurisdiction is subject to the restriction contained in s 65(3) of the Compensation Act, which precludes the Commission from awarding permanent impairment compensation if there is a dispute about the degree of impairment, unless the degree of impairment has been assessed by an approved medical specialist. The fact that a medical dispute includes a dispute as to the degree of permanent impairment of a worker as a result of an injury is consistent with the entitling provision of s 66 of the Compensation Act in conferring an entitlement to receive compensation if the worker receives an injury that results in permanent impairment. The degree of permanent impairment that results from an injury is to be assessed as provided in Pt 7 of Ch 7."
8. In Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 White JA (with whom Macfarlan JA agreed) said: "67 Under s 321(4)(a) the Registrar may not refer a medical dispute concerning permanent impairment for medical assessment to an approved medical specialist if "liability" is in issue. That must extend to liability of the employer to pay compensation for permanent impairment under s 66. Under s 65 of the Workers Compensation Act the degree of permanent impairment that results from an injury is to be assessed as provided by Pt 7 of Ch 7 of the WIM Act. But under s 321 (which is in Pt 7 of Ch 7 of the WIM Act), except in the case of an expedited assessment under Pt 5 of Ch 7, a medical dispute concerning permanent impairment of an injured worker cannot be referred for assessment either by the Commission (s 321(3)), or by the Registrar, if "liability is in issue and has not been determined by the Commission" (s 321(4)(a)). Hence the question of whether a worker has suffered an injury as defined, that is, relevantly, a personal injury arising out of or in the course of employment, is a question to be determined not by an approved medical specialist, but by the Commission. If liability to pay compensation is in issue, and the Commission has determined that an injury said to have given rise to some degree of permanent impairment did arise out of or in the course of employment, then the degree to which the worker was permanently impaired is a medical dispute to be determined by an approved medical specialist (or on appeal by an Appeal Panel). Conversely, if the Commission determines that the injury was not an injury as defined in s 4 so that the employer is not liable to pay compensation, there will be no occasion for referral of a medical dispute concerning permanent impairment to be referred under s 321. … 69 Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd concerned a dispute in relation to a worker's claim for weekly compensation payment. The degree of permanent impairment of an injured worker is not determinative of such a claim. He also sought lump sum compensation for permanent impairment and for pain and suffering (at [65]). Sections 66 and 67 of the Workers Compensation Act provided that such compensation was not payable unless the "injury" resulted in a degree of permanent impairment of 10 per cent or more. Section 293 of the WIM Act provided: [His Honour then set out the provisions of s 293 of the Act and at [70] quoted paragraphs [109]-[111] of Bindah.] 71 There was no issue in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd that the worker had suffered injury as defined. An order had been made by consent that the applicant suffered injury to his right eye and that the employer had liability in respect of the injury. An order was also made by consent that the matter be remitted to the Registrar for referral to an approved medical specialist. Prior to his injury the worker had a cataract in his right eye. He suffered a trauma injury to the same eye when a door at his work closed hitting him on the face. He underwent cataract surgery on his right eye that resulted in complications leaving him with a complete loss of vision to that eye (at [5]-[6]). The approved medical specialist assessed his degree of permanent impairment as the result of his injury that occurred in the course of his employment as being nought per cent on the basis that his permanent impairment as a result of loss of vision to his right eye was due to the surgery and not to the injury suffered at work (at [13]). That assessment was confirmed by the Appeal Panel. The worker argued that it was not open to the approved medical specialist nor the Appeal Panel to so conclude. He argued that the consent order that he had suffered a work injury to his right eye for which the employer was liable connoted that the blow to his right eye had exacerbated the pre-existing cataract necessitating surgery, from the complications of which he lost his vision, so that the impairment resulting from the loss of vision was due to the work injury. He submitted that the only medical dispute was as to the degree of permanent impairment and whether there should be a deduction for any proportion of the impairment due to the pre-existing condition (at [18]). 72 That argument was rejected. Meagher JA, with whom Ward JA also agreed, said: "[26] The language of order 3 supports the conclusion that the 'injury' being referred to was the trauma injury and its pathology. In terms, it is a determination that the applicant 'suffered injury on 28 January 2009'. That injury was a trauma injury, aspects of the pathology of which were in dispute and remained to be assessed. The medical dispute as to that pathology was, by order 3, to be assessed under Pt 7 of Ch 7 of the WIM Act. If the position was otherwise, and the determination was that there had been an exacerbation injury, there would have been nothing of substance left for assessment because, as the earlier correspondence between the parties showed, it was not in issue that if the injury sustained on 28 January 2009 accelerated the need for the cataract surgery, the complications arising from that surgery including the subsequent retinal detachment and almost complete loss of vision, would have resulted from that injury." 73 Emmett JA also held that the approved medical specialist and the Appeal Panel had jurisdiction to determine the medical dispute that encompassed whether permanent impairment was the result of an injury (as defined) or whether any proportion of it was due to any previous injury or pre-existing condition. On the construction of the consent order his Honour said: "[107] The language of Order 3 should be construed as doing no more than recording acceptance by the parties that the Employer was liable for compensation for permanent impairment, if an approved medical specialist appointed by the Registrar determined that any permanent impairment suffered by Mr Bindah was the result of the incident that occurred on 28 January 2009, when he sustained a direct blow to his right eye by a closing metal door, as described in the Application of 24 August 2011. Order 3 should not be construed as a determination that that incident caused the impairment that he now suffers.""
9. As can be seen, the submissions of the plaintiff in these proceedings are similar to those put forward unsuccessfully by Mr Bindah and should fail for the same reasons. The degree of permanent impairment which the AMS and Appeal Panel were required to assess in this case was the degree of permanent impairment resulting from the injury in question, i.e. the fall and the 2015 surgery. Given paragraph (d) of the definition of "Medical Dispute" and the terms of the referral by the Registrar, the AMS and Appeal Panel were required to consider the degree of permanent impairment attributable to other causes and to differentiate between these and the degree of permanent impairment resulting from the fall and the 2015 surgery.
10. Once this is accepted, it is apparent that the AMS and Appeal Panel were required to engage in such assessment of causation as was necessary to discharge their statutory task of determining the degree of permanent impairment resulting from the injury in question. That is not to say that the whole of the question of causation is a matter for an AMS/Appeal Panel to determine. For example, in this case had the first defendant disputed liability on the basis that the fall was not itself caused by any relevant act or conduct by it, that aspect of causation would have been a matter for the Commission itself applying the relevant principles of causation.
11. It follows that the Appeal Panel did not commit jurisdictional error by misdirecting itself as to its statutory task, nor did it ask itself the wrong question. The Appeal Panel's statutory task was to consider whether the AMS had made the correct decision on the question referred to him. The question referred to the Appeal Panel was whether the MAC 2 assessment of the plaintiff's permanent impairment contained a demonstrable error. The only error identified by the plaintiff in that regard was the incorrect application of the relevant assessment table. That ground was abandoned at the hearing. The Appeal Panel's reasons must be understood in light of this process of referral.
12. As can be seen from the way in which the Appeal Panel's reasons were structured, it considered in detail the plaintiff's history and the findings made by the AMS. The Appeal Panel confirmed the decision of the AMS in the MAC 2 and the approach which the AMS followed. The Appeal Panel determined "we cannot see how the peripheral neuropathy could be associated with the lumbar spine and a spinal nerve root lesion …". This was confirmed by the Appeal Panel's reference to the results of the nerve conduction studies carried out by Dr Yiannakis. Doctor Yiannakis opined that the results he saw "would argue against a sciatic nerve lesion".
13. While the Appeal Panel did identify factual error (in relation to the AMS's comment concerning the plaintiff having undergone a spinal fusion) this was not material to the appeal and the task which the Appeal Panel had to perform. This is clear from the Appeal Panel's conclusion: "37. In our view, the AMS clearly explained his reasons for concluding that features of neurological abnormality were unrelated to the injury, and consistent with a diabetic polyneuropathy, and his findings were consistent with the totality of the evidence."
14. For the reasons set out above, the question for the Appeal Panel was whether there was demonstrable error in the MAC 2 involving as it did the AMS's application of various tables to the plaintiff's permanent impairment. The Appeal Panel confirmed the AMS's decision in this and in other respects, and in doing so asked itself the correct question and carried out its statutory task.

Conclusion

1. For the reasons set out above, the Summons ought to be dismissed. In its written submissions the first defendant expressly eschewed any claim for costs in these proceedings. Accordingly, the order which I make is that the Summons be dismissed.

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