JTE Enterprises Pty Ltd t/as Mount Gibraltar Preschool v Brown

Texts Cited: American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed, 2001)
NSW State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 2021)

Category: Principal judgment

Parties: JTE Enterprises Pty Ltd t/as Mount Gibraltar Preschool (Plaintiff)
Jenna Marie Brown (First Defendant)
Appeal Panel constituted by s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Second Defendant)
President of the Personal Injury Commission of New South Wales (Third Defendant)

Representation: Counsel:
K Balendra / J Krieg (Plaintiff)
B McManamey (First Defendant)
Solicitors:
Turks Legal (Plaintiff)
Turner Freeman (First Defendant)
The Crown Solicitors (Second & Third Defendant)

File Number(s): 2025/231575

Publication restriction: No

JUDGMENT

1. The first defendant began working for the plaintiff in 2018. She suffered an injury at work on 21 September 2020. She made a claim for workers compensation benefits. The plaintiff accepted liability for the injury.

2. The plaintiff operated a childcare centre. The first defendant was a childcare worker. The first defendant’s injury arose from her rolling her right ankle which in turn led to an injury to her lower back.

3. On 3 May 2023, Dr Assem, a rehabilitation specialist, assessed that the first defendant was suffering from a 43% whole person impairment (WPI). Relying on this assessment, the first defendant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (the WCA).

4. The plaintiff denied the lump sum compensation claim, asserting that the first defendant had not reached the 11% WPI threshold required by s 66(1) of the WCA.

5. The plaintiff retained an orthopaedic surgeon, Dr Rimmer, to assess the first defendant’s WPI. His assessment was 25%. The plaintiff invited the first defendant to accept this assessment.

6. Both Dr Assem and Dr Rimmer found that the first defendant, at the time of their respective assessments, was suffering from Complex Regional Pain Syndrome (CRPS).

7. The first defendant declined the invitation to accept Dr Rimmer’s assessment and lodged an Application to Resolve a Dispute on 26 August 2024, in the Personal Injury Commission (PIC).

8. The PIC referred the first defendant for assessment by a Medical Assessor. Dr Mastroianni, a Medical Assessor, examined the first defendant and made a WPI assessment on 29 October 2024 of 31%. He issued a Medical Assessment Certificate to that effect.

9. Fundamental to the plaintiff’s case is that the Medical Assessor:

10. did not find the first defendant was suffering from CRPS; and

11. included in his assessment a degree of impairment relating to the first defendant’s right knee.

12. On 28 November 2024, the plaintiff filed an appeal against the Certificate. On 5 February 2025, a delegate of the President of the PIC (the third defendant) referred the appeal to an Appeal Panel (the second defendant).

13. On 18 March 2025, the second defendant dismissed the plaintiff’s appeal and confirmed the correctness of the Medical Assessment Certificate.

14. On 17 June 2025, the plaintiff filed the current summons for judicial review. The second and third defendants have filed submitting appearances.

15. The plaintiff relies on an affidavit of Mr Lachlan McTackett dated 1 August 2025. Mr McTackett is a solicitor acting for the plaintiff. His affidavit is the vehicle through which the relevant documents have been put before the court.

16. The plaintiff alleged that the second defendant committed an error of law because it had “mischaracterised the nature of the ‘medical dispute’ between the Plaintiff and the First Defendant thereby misapplying s.319” of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIM Act).

17. Secondly, the plaintiff asserted that the second defendant made a jurisdictional error “by failing to limit its assessment to the ‘medical dispute’ between the Plaintiff and First Defendant as defined in s.319” of the WIM Act.

18. Both complaints allege errors stemming from the application of s 319 of the WIM Act. Section 319 is a definition section setting out the meaning of a “medical dispute”. The definition is as follows:

In this Act—

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—

(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),

(b) the worker’s fitness for employment,

(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,

(e) the nature and extent of loss of hearing suffered by a worker,

(f) whether impairment is permanent,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.

17. The plaintiff, in highlighting the need for the medical dispute to be properly identified, relied heavily on the decision of the New South Wales Court of Appeal in Skates v Hill Industries Ltd [2021] NSWCA 142. The decision of Mitchelmore J in Middleton v Hyett t/as Phoenix Rising Caf**e [2024] NSWSC 1201 was also submitted to be important because it contained a similar issue as in the present case.

18. Notwithstanding there being two grounds of review, in oral submissions, the plaintiff merged the asserted errors into one fundamental proposition. The plaintiff agreed with my description of this proposition as follows:

“The right knee should not have been included once CRPS was excluded”.

19. The first defendant’s response was equally concise:

“The right knee was always included”.

20. It is necessary to go back in time to see how the plaintiff’s proposition emerged.

21. The plaintiff submitted that Dr Assem’s assessment of 43% WPI was, at least to the extent of 40%, a product of his identification of a CRPS. The first defendant, on the other hand, said the assessment was not dependent on this finding, but rather was related to the application of Table 16-10 of the AMA5 Tables which converted an assessment of a lower extremity to a percentage. Table 17-3 was then used to convert this percentage to a WPI, the maximum being 40% WPI.

22. The plaintiff’s next step involved Dr Rimmer’s assessment of 25% WPI which, submitted the plaintiff, was also dependent on a finding of CRPS.

23. The difference between the assessments of Drs Assem and Rimmer led to the first defendant filing the Application to Resolve a Dispute. The application states that the only matter in dispute is “Lump sum compensation where degree of permanent impairment is in dispute”.

24. The next step, in the plaintiff’s case, is that the PIC delegate referred the dispute for assessment and described the relevant body parts as:

“Right lower extremity

Lumbar spine

Complex regional pain syndrome”

25. The description of the body parts led the plaintiff to request the delegate to change the referral so that it read, in respect of body parts:

“Right lower extremity (ankle), lumbar spine”

26. The first defendant’s solicitors did not respond to the request for an amendment, possibly because the email did not go to the right person. Whatever the case, the delegate did not change the referral, and it remained with the body parts having the same description as stated above.

27. The application for judicial review makes no complaint about the actions of the delegate. Rather, the focus of the complaint is on identifying the medical dispute (as referred to in Skate), notwithstanding the terms of the referral.

28. The Medical Assessor therefore was dealing with three body parts, one of which was the “right lower extremity” and another which, quite separately, was “complex regional pain syndrome”. This is reflected in the Medical Assessment Certificate which specifically states the three body parts that have been referred for assessment.

29. The Medical Assessor reached a conclusion that the WPI percentage should be 31%. The plaintiff was anxious for the first defendant not to exceed 30%, because this is a threshold for higher benefits. Accordingly, the plaintiff appealed against the decision of the Medical Assessor.

30. Returning to the medical assessment, the 31% WPI was not based on any finding of CRPS. In fact, there was a specific finding that “The claimant does not meet the criteria for CRPS 1”.

31. In reaching the 31% WPI, the Medical Assessor specifically included a WPI assessment in respect of the first defendant’s right knee. If the right knee had not been included, submitted the plaintiff, a 30% WPI would not have been reached.

32. In its appeal to the Appeal Panel, the plaintiff submitted that “The assessment was made on the basis of incorrect criteria” and “The medical assessment certificate contains a demonstrable error”. In its written submissions to the Appeal Panel, the plaintiff submitted that “There was no ‘medical dispute’ with respect to any alleged right knee injury”.

33. According to the plaintiff, the Appeal Panel should have allowed the appeal because the right knee should not have formed any part of the assessment. The Appeal Panel dealt with this argument in its decision and stated in clear terms the question to be answered:

“What is an issue is whether the Medical Assessor ought to have examined the respondent’s right knee and included a rating of impairment relating to her right knee in his assessment of the respondent’s permanent impairment from her injury.”

34. The Appeal Panel made this finding, at [47]:

“Indeed, it seems to the Appeal Panel this case is more akin to the circumstances in Klement v Bull ‘N’ Bush Nurseries Pty Ltd, in that the claim that the respondent advanced included impairments of her right lower extremity resulting from her right ankle injury. The claim, attaching Dr Assem’s report, made that apparent. The documents attached to the ARD, which include a statement the respondent signed on 22 August 2024, wherein she said at [12] that she ‘occasionally experienced pain in her right knee’ also made it apparent that her right ankle injury affected her right lower extremity beyond her right ankle.” (footnotes omitted)

35. The Appeal Panel then went on to find that the Medical Assessor “was correct not to limit himself to the respondent’s right ankle, as the appellant submitted he should have”. The Appeal Panel then dismissed the appeal.

36. The first defendant referred to mostly the same documents as the plaintiff but placed emphasis on different parts. Starting with Dr Assem’s report, the first defendant submitted that the assessment was not dependent on a finding of CRPS but rather arose, as stated above, from Table 17-3. This was consistent with the finding of a 40% WPI impairment in the lower extremity.

37. The first defendant pointed out that Dr Assem in his examination of the first defendant examined her “entire right leg”. This was confirmed in his assessment report where he states:

“As she experiences moderate pain and abnormal sensations that interferes with her mobility, I considered that she has a grade 1 sensory impairment or 100% sensory loss of the entire right leg giving 100% right lower extremity impairment. Although I was unable to examine her hip, knee and ankle due to complaints of severe pain, the maximum impairment for the right lower extremity is 40% WPI.” (footnotes omitted)

38. The just quoted paragraph was the basis upon which the first defendant submitted that the 40% was not derived from a finding of CRPS but rather from a finding of an examination of the first defendant’s entire right leg.

39. The first defendant then took me to the original Application to Resolve a Dispute in which the claim for “Permanent Impairment/Pain and Suffering” refers to the “Right lower extremity”.

40. The plaintiff submitted that the entry “Right lower extremity” was a product of a drop-down menu which did not permit a more subtle, or targeted, description. However, the Reply to the application, under the heading “Matters in Dispute” has a specific box for “Any other issues”. The plaintiff chose not to use this box to qualify the right lower extremity referred to in the application.

41. The first defendant submitted that because the right lower extremity was always a part of the first defendant’s case, and because the right knee is unquestionably a part of the right lower extremity, there was no mischaracterisation of the medical dispute. The dispute, according to the first defendant, was between the 43% WPI found by Dr Assem, which was not based on the CRPS finding, and the 25% WPI found by Dr Rimmer, which did have a CRPS component but was restricted to the right ankle.

42. In addition, said the first defendant, the referral specifically has right lower extremity and CRPS as separate body parts. The one is therefore not necessarily a constituent of the other.

43. As noted above, the plaintiff relied upon the decision in Skate. At [44] Leeming JA said:

“The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), reproduced in the other judgments. The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.”

44. Then at [48]:

“The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.”

45. The plaintiff submitted that based on these just quoted paragraphs from Skate I should look at the correspondence between the parties and should not give too much weight to the referral. The primary obligation was the identification of the dispute.

46. In Middleton, the first defendant referred me to [32] and the plaintiff referred me to [52]:

“32. Following an exchange with the plaintiff’s solicitor, the President’s delegate ultimately expressed the scope of the referral in the following terms:

‘Body part/s referred: right upper extremity (chronic pain to right thumb, right wrist, right elbow) CRPS - to be determined by the Medical Assessor.’

…

52. As I have noted above, although the injury that was identified on the plaintiff’s claim form was broadly expressed as ‘Right upper extremity’, it was accompanied by Dr Kwong’s report in which he diagnosed the injury as ‘Repetitive right wrist and right thumb injuries with tenosynovitis documented objectively by ultrasound and MRI-complicated by complex regional pain syndrome (CRPS)’. Consistently with his diagnosis, the application to resolve a medical dispute identified the injury as ‘right upper extremity (right thumb, right wrist, right elbow) causing CRPS’. Injury to the left shoulder formed no part of Dr Kwong’s diagnosis, and nor did any peripheral nerve injuries that were independent of CRPS.”

47. The point in Middleton was that the medical dispute did not include the worker’s shoulder and therefore should not have formed part of the WPI assessment.

48. As submitted by the first defendant, there is a significant point of distinction in the present case, because unlike Middleton*,* where in the referral of body parts the right upper extremity was confined to “chronic pain to right thumb, right wrist, right elbow”, in this case right lower extremity was not in any way qualified. I think this is a valid distinction. I do not think Middleton assists the plaintiff’s case.

49. Returning to Skate, I first of all note that Leeming JA describes the referral as “important”. When one adds to this document the Application to Resolve a Dispute, which refers to the right lower extremity and the absence of any qualification in the Reply, in particular where provision is made for such qualification, then I can see no basis upon which the knee, being part of the right lower extremity, should not be considered. I have already mentioned the referral distinctly separating CRPS from right lower extremity as being the relevant body parts.

50. In addition, I think it is clear from the respective reports of Drs Assem and Rimmer, that the medical dispute was fundamentally the difference between an examination of the whole of the right leg, as performed by Dr Assem, or only the right ankle, as examined by Dr Rimmer.

51. Put another way, the medical dispute was the resolution of the difference between the 43% assessment made by Dr Assem and the 25% assessment made by Dr Rimmer.

52. Accordingly, I do not think there has been a mischaracterisation of the medical dispute that was decided by the Appeal Panel. In turn, I am satisfied that notwithstanding the Medical Assessor not making a finding of CRPS, he was permitted to make a finding which included the assessment of the first defendant’s right knee because he was making an assessment of her entire right lower extremity.

53. Having regard to the manner in which the plaintiff refined the argument in oral submissions, it follows that no error of law or jurisdiction has been identified, and the summons must be dismissed.

54. I make the following orders:

55. The summons filed on 17 June 2025 is dismissed.

56. The plaintiff is to pay the first defendant’s costs of the proceedings.

57. No order is made as to costs in respect of the second and third defendants.

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Amendments

15 December 2025

Jnr Counsel surname changed from Kreig to Krieg