1. The Member's Certificate of Determination dated 11 December 2024 is confirmed.

WORKERS COMPENSATION - alleged error of law in failing to consider status of a Medical Assessment Certificate; where medical dispute referred for assessment by s 321(4) and Part 7 of the Workplace Injury Management and Workers Compensation Act 1998 (as it stood in March 2010) when liability was still in dispute; whether it followed from referral that liability can be taken as having been admitted with any relevant assessment being taken as conclusively presumed to be correct once the assessment occurs

Long v Tyco International Pty Ltd t/as O'Donnell Griffin [2024] NSWPIC 690

1. Jamie Long (the appellant) was employed by Tyco International Pty Ltd t/as O'Donnell Griffin (the respondent) between 4 February and 20 August 1995, assisting in erection of power poles in the outback around Broken Hill. He says he sustained injury to his lower back and hips on or about 14 August 1995 in the course of that employment. The respondent agrees he sustained a work-related injury at that time, but only to the back, not the hips.
2. On 9 September 1998, the respondent paid the appellant a lump sum pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for a 10% permanent impairment of his back. On 18 July 2007 a further s 66 sum was awarded with respect to a 10% loss of efficient use of the right leg at or above the knee and 30% loss of use of sexual organs.
3. On 27 September 2024 the appellant lodged an Application to Resolve a Dispute (ARD) in this Commission claiming medical, hospital and related expenses pursuant to s 60 of the 1987 Act, including for a total right hip replacement procedure (THR) proposed by Dr Robert Din, orthopaedic surgeon. The respondent denied liability for this claim on the basis that the appellant had not sustained a work-related injury to his right hip.
4. The dispute was determined by the Member in a Certificate of Determination (COD) dated 11 December 2024. She said the "live issues" were "issue estoppel, injury and causation, credibility and possible novus actus interveniens", but that the "ultimate issue" was whether the appellant had suffered a work-related right hip injury.
5. In the result, the Member determined an award for the respondent. The appellant appeals that determination and award.

1. Section 52(3) of the Personal Injury Commission Act 2020 provides that the Commission may exercise functions under that Act without holding any conference or formal hearing if sufficient information has been supplied. Both parties have submitted that the appeal can be dealt with on the papers. Having regard to Procedural Directions PIC2 and WC3; and the documents and submissions, I am satisfied I have sufficient information to proceed 'on the papers' without holding any conference or hearing.
2. There is no dispute that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

1. The evidence comprises the ARD and Reply (with attached documents), otherwise the evidence can be summarised when summarising the Member's reasons. This is also appropriate given the single ground of appeal, with the appellant's submissions being limited to Dr O'Keefe's evidence and the status of the medical assessment certificate (MAC) dated 3 March 2010 (the 2010 MAC). Further, neither party has questioned the accuracy of the Member's detailed summary of the evidence. In fact, they agree she "undertook a detailed examination of the evidence concerning the question of whether the right hip was injured on 20 August 1995".[1]

1. The Member summarised the evidence, including the appellant's (24 September 2024) statement, and forensic reports from orthopaedic surgeons, Dr Nigel Hope (dated 10 July 2023) engaged by the appellant, and Dr Robert Breit (dated 31 October 2023), engaged by the respondent. She said Dr Hope's report provided "few particulars" of what he said was a 'well described work related task' in August 1995, and that it "neglects to consider the contribution ... of domestic activities, other injuries, employment or aging over the ensuing three decades ... [nor] provide any real medical reasoning ... for his conclusion that the need for hip arthroplasty arose out of injury with the respondent".[2]
2. The Member noted[3] Dr Breit said:

"There has never been an injury to the hip, [the appellant] claims that his back has not settled, and he has been awarded increasing impairment assessments for what was a trivial episode ...

[THR] is not reasonably necessary because it is not related to his work. I also have doubts as to the true state of symptomatology in his right hip which would inevitably require replacement surgery".

1. The Member stated[4] that "where the experts differ, I am required to apply logic and common sense in deciding which view is to be preferred or which parts of the evidence are to be accepted ...". She implicitly preferred Dr Breit's opinion to Dr Hope's opinion, particularly given her finding[5] that:

"Overall, I find the contemporaneous and qualified medical evidence establish[es] the [appellant] did not sustain injury to the right hip whilst employed by the respondent".

1. The Member summarised the evidence from the treating medical and physiotherapy practitioners, starting with Dr Ronald Haig, orthopaedic surgeon who reported on 14 May 1996 to Dr Gan, the appellant's then GP. The Member said "[n]o findings were made with regards to the right hip" by Dr Haig. She also referred to a report of a physiotherapist, Mr Lovell dated 31 July 2002, noting it "is silent on any right hip symptoms". She also considered Mr Lovell's report of 15 November 2002, noting it "recorded ... right groin and right thigh pain and depression", and that he recorded the appellant was "suffering from chronic groin pain, the aetiology of which is unclear at present but may be back related".
2. The Member also referred to a report dated 7 June 2010 from Dr Ron Sekel, orthopaedic surgeon, noting he wrote (to Dr Nachiappan, the appellant's then GP) that "I doubt that his hip problem is related to any work injury fifteen years ago". The Member also referred to a report from Dr Abraszko, neurosurgeon, to Dr Nachiappan who recorded complaints from the appellant about both back and right hip pain and noted that surgery was being considered for the right hip.
3. The Member recorded[6] the clinical notes of Dr Nachiappan's practice, which commenced on 10 May 2006 with a complaint of ongoing back pain said to arise from a "1995 WC injury". She also noted consultations on 12 December 2006, where back pain was again recorded, and an MRI had indicated a right hip labral lesion; and on 20 March 2007 when a "right hip MRI indicated advanced OA changes and a labral tear". She then noted the records of the appellant's presentations to Dr Nachiappan between 2007 and 24 April 2024 which generally referred to both back and/or hip symptoms.
4. The Member noted[7] the Broken Hill Hospital (BHH) record on 1 April 1996 when the appellant presented with "Long H/of back pain ... had exacerbation of pain over the past 1-2 weeks", and a note of 16 November 1998 recording lower back pain only. She also referred to a BHH record in 2008, noting an injury "ten years ago to right hip and pelvis with chronic lower back pain", and a report of Dr Richard Crowley, orthopaedic surgeon on 18 November 1998, noting he examined the appellant but did not record any hip pain or pathology. A record of an assessment on 25 May 2006 by Dr Smith, surgeon at BHH, is also noted by the Member[8] to involve no report or record of hip pain.
5. The Member referred[9] to a report of 25 January 2023 from Dr Din, which said the appellant presented with right hip problems and that he recommended a THR. She said this report did "not provide any history of injury, mechanism of injury, opinion about the relationship between the need for surgery and any alleged work injury or matters external to the subject employment which may have contributed to pathology".
6. The Member also considered[10] the "Radiology", starting with an MRI of the lumbar spine and pelvis on 26 July 2006, where clinical details included "11 year old injury. Complaints of persistent right flank and groin pain. Right hip joint effusion was reported". She also noted[11] an x-ray of the hips and pelvis on 3 June 2010, and an MRI on 28 February 2014 referring to a "documented labral injury hip 2007 on the right ...".
7. The Member turned to what she described as the "Litigation history", firstly noting a 1996 award in the Compensation Court of NSW in favour of the appellant with respect to a 10% permanent impairment of the back, and another in the Workers Compensation Commission (WCC) with respect to a 2% loss of efficient use of the right arm at or above the elbow; 10% loss of efficient use of the right leg at or above the knee and 30% loss of use of sexual organs (relating to a COD on 18 July 2007, ARD, p 469).
8. The Member then addressed the matters which lay at the heart of the dispute remaining on appeal - a COD on 20 January 2010 by a WCC Arbitrator (the 2010 COD) and the 2010 MAC provided by Dr O'Keefe, noting consent orders as follows:

"53. On 20 January 2010, in [WCC] proceedings matter no 007969/09 a [COD] recorded the following (unedited):

1. The [appellant] elects to discontinue the claims for weekly benefits compensation, for additional lump sum compensation and for section 60 expenses and I dispense with the need to file a Notice of Discontinuance pursuant to Rule 15.7.
2. The Respondent is to pay the [appellant's] costs as agreed or assessed.

Notation (each emphasis in the Notations below were made by the Member)

1. The Respondent will continue to pay ... section 60 expenses in accordance with the Award of the Compensation Court dated 9 September 1998 but does not admit liability for treatment to the right hip.
2. By agreement the matter is to be referred by the Registrar to an Approved Medical Assessor [AMS] for assessment of the degree of [WPI] for the purposes of resolution of a threshold dispute for work injury damages. That assessment is to be made in respect of the lumbar spine, right upper extremity, and right lower extremity (including the hip) but without any admission as to causation of any condition of the right hip.'
3. Dr O'Keefe, [AMS] reported on 23 February 2010 and found a 13% [WPI]. He also reported (unedited):

'Whilst in the employ of Tyco International, this man sustained an injury to his right shoulder on 08.03.1995 consisting of a fractured right clavicle, and initially what he thought was an injury to his back in fact has turned out to be an injury to his hip and back pain is purely due to muscle spasm from his hip problem. His original hip injury occurred on 25.08.1995 and by the time he had had his MRI scans 10 and 11 years later in 06 and 07 he has developed arthritic changes in his right hip ...

I have read all the other medical reports and most agree that this man did in fact sustain a hip injury rather than a back injury at the time and this has developed into arthritis over the ensuing 10 to 12 years as evidenced on the most recent MRI scan.'"

1. The Member's remaining treatment of the MAC and/or Dr O'Keefe's opinion mainly appears at [83(g)] of the reasons where she states, "I acknowledge that Dr O'Keefe suggested that the right hip injury was related to workplace events in 1995, however this opinion is not binding and is at odds with the evidence summarised above". She also stated at the commencement of paragraph [83] that:

"Overall I find the contemporaneous and qualified medical evidence establish the [appellant] did not sustain injury to the right hip whilst employed by the respondent because ... (a) ... (g)."

1. The Member also referred[12] to a MAC issued in the WCC by Dr Beata M Byok on 25 October 2016, following a claim by the appellant for further entitlement to lump sum compensation for injury on 8 March and 20 August 1995. She noted that Dr Byok "found no increase in impairment from that previously awarded. In addition, Dr Byok recorded the [appellant's] recollection of injury was poor. She did not make any findings on the genesis of the hip complaint but diagnosed right hip osteoarthritis and a labral tear".
2. After noting the submissions by each party, the Member proceeded to apply authorities dealing with fundamental principles governing the finding of an injury within the meaning of the 1987 Act to the facts of the case, including Lyons v Master Builders Association of NSW Pty Ltd;[13] Kooragang Cement Pty Ltd v Bates[14] and Nguyen v Cosmopolitan Homes.[15]
3. She then said[16] that the "key issue for determination is whether the [appellant] suffered injury as a result of his employment with the respondent. To resolve that issue, I need to examine whether there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of the ... right hip. Here the [appellant] says that issue estoppel relieves me of the burden to make findings in relation to injury, as the respondent has, by its conduct in previous proceedings, accepted that the [appellant] sustained a hip injury".
4. The Member then said[17] that "careful review of the [2010 COD] and specifically the notations confirms the respondent stipulated it was not liable for treatment to the right hip and the matter was to be referred without the respondent admitting causation in relation to the right hip". The Member then found there was no "issue estoppel" in the circumstances, including by finding[18] that the:

"... matter was referred to an [AMS] for the purposes of [WPI] assessment for threshold purposes. I find it was not the same question and no formal findings were made with regards injury. Further the referral clearly articulated that treatment with regards to the hip was in dispute as was causation. I appreciate that the [appellant] maintains that the matter could not have been referred without the injury dispute being determined, however this is not reflected in the notations of the [COD]. In short, the same issue had not been determined and so issue estoppel does not arise".

1. The Member finally noted it was well-established that cases involving historical disputes and issues of fact "can distort events leaving little more than an impression from which plausible details, often subconsciously are constructed" and that this occurred here. She summarised examples, including inconsistencies between the appellant's statement and Dr Crowley's records. The Member noted that the foundation of the appellant's case were his statements, the first of which was in 2010, "which does not specifically express injury to the hip although does refer to pain down the leg including the hip". She also noted "a failure to disclose subsequent employment as recently as 2023" and "that he was certified unfit for work for one month after suffering an increase in back and hip symptoms".
2. Ultimately, the Member found that as the "contemporaneous and qualified medical evidence establish the [appellant] did not sustain injury to the right hip whilst employed by the respondent ...", she did not need to consider the question of whether the medical treatment proposed was reasonably necessary.

1. The appellant's single ground of appeal is that "[t]he Member made an error of law by finding the injury that occurred on 20 August 1995 did not include injury to the right hip either by way of an injury (s 4) or consequential condition."

1. This appeal is brought pursuant to s 352(5) of the 1998 Act. This section limits the appeal to a determination of whether or not the decision was affected by any error of fact, law or discretion, and to the correction of any such error. It is not a review or new hearing.

1. The appellant notes the Member set out the medical evidence to find no injury occurred as a result of injury on 20 August 1995, and that "more importantly", she stated (at [83(f)] sic, read as [83(g)]) "I have considered the evidence of Dr O'Keefe ... I do not accept this opinion and it is not binding" (appellant's emphasis). The appellant then says "This is true as far as the matters contained in the [MAC] that are not part of the finding of [WPI] is concerned [sic] ... [The] Member ... has not considered the status of the [WPI] found by Dr O'Keefe the AMS ...".
2. The appellant says s 321(4) of the 1998 Act (at the time of the 20 January 2010 referral and 3 March 2010 MAC) stated that the Registrar may not refer a matter for assessment of WPI where liability is in dispute, but an assessment for the purpose of determining WPI "was referred to the AMS and he then made a finding of WPI for the right hip which was then recorded in the [MAC]". The appellant says the operation of s 321(4) means that the respondent effectively admitted injury,

"... pursuant to the statute ... when a formal finding of a WPI was published in the MAC [and] any notation in the [2010] COD ... is of no consequence once a MAC is published. The MAC is deemed to be correct as to the matter of both injury as a result of s 321(4) and the [WPI] see s 326. S 326 clearly states that the MAC is conclusive evidence of the WPI which arise[s] from an injury and as a result of the operation of s 321(4) no assessment of WPI could have been undertaken ... if a dispute as to liability was in existence".

1. The appellant then says the Member erred as a matter of law for not finding injury to the right hip once the MAC of 3 March 2010 came into effect for those reasons.

1. The respondent says it agrees with and adopts paragraphs [1]-[7] of the appellant's submissions, (which essentially set out the background), but disputes paragraphs [8]-[9] of those submissions, which essentially contain the appellant's submissions that the Member did not consider the status of the WPI found by Dr O'Keefe in the 2010 MAC.
2. The respondent says the "ultimate issue for determination" was whether the appellant "suffered an injury to his right hip whilst employed by the respondent and if so whether the claimed treatment expenses were reasonably necessary ...". The respondent says the appellant's claim for treatment expenses under s 60 was denied by the insurer in a notice of a decision under s 78 of the 1998 Act.
3. The respondent noted the appellant's submission (at [17]) that s 321(4) provided "either a barring provision or an estoppel point in relation to the denial of liability", but says the 2010 COD contains an express note that the respondent did "not admit liability for the treatment to the right hip", and that the Registrar referred the matter to an AMS for assessment "for the purposes of resolution of a threshold dispute for work injury damages ... but without any admission as to causation of any condition of the right hip" (respondent's emphasis).
4. The respondent says the word "may" (not refer a WPI dispute) in s 321(4) of the 1998 Act should be read as indicating "permission or possibility" to refer such a dispute and also notes the Member's emphasis[19] of the following words in notation 2 of the 2010 COD, "without any admission as to causation of any condition of the right hip".
5. The respondent says the Member (at reasons [54] and [55]), "engages with the reports" of Drs O'Keefe and Dr Byok. The respondent also notes the Member's findings as to whether it was "estopped by its conduct in previous proceedings", saying the Member dealt with this at paragraph [71], and then determined the "injury" issue, considering all the evidence.
6. The respondent notes the Member said the foundation of the appellant's case was his statements and that the Member made adverse findings as to his credit and gave "greater weight to medical evidence at the time of injury and shortly thereafter". The respondent also notes the Member's statement (at [81]) that "the significant absence of complaint of hip injury between 1995 to 2006 causes me to find ... the [appellant] did not suffer any frank injury or ... aggravation to the hip whilst employed by the respondent".
7. The respondent also says the reference to "consequential condition to the right hip" referred to in the appeal ground and at paragraph [22] of his submissions, should be disregarded.

1. I issued a Direction on 4 July 2025 inviting further submissions, to be lodged on or before 11 July 2025, in the following terms:

"(a) As to the appellant's submissions at [8]-[9] and [19]-[21], in relation to the Member not having 'considered the status of the [WPI] ... for the MAC dated 3 March 2010', and the WPI finding being 'conclusive evidence of the WPI' having arisen as a result of an injury, parties are invited to consider any relevant authority in this respect, including Haroun v Rail Corporation NSW & Ors [2008] NSWCA 192 at [22] (Haroun), and make any further submission in that respect if they wish.

(b) The Commission is of the preliminary view that the above-mentioned submission falls within the appeal ground, that is, the Member allegedly erring 'by finding the (20 August 1995) injury did not include injury to the right hip ...'. While the appellant also summarises its submissions (at [20]) by putting that the Member erred 'for not finding injury to the right hip once the MAC of 3 March 2010 came into effect for the reasons given above' (emphasis added), each party is invited to provide, if they wish, any further submission contrary to that preliminary view; and if there be such submission, also providing submissions as to any prejudice that may exist if the Commission did so proceed.

(c) [Given that] the respondent's submissions appear not to engage, either adequately or at all, with the appellant's above-mentioned submission, the Commission invites each party to make any further submission with respect to the appellant's above-mentioned submission if they wish.

(d) In the context of the wide formulation of the appeal ground, it is the preliminary view of the Commission that the Member may not have, adequately or at all, conducted any analysis of Dr O'Keefe's evidence except (at [83]) to 'acknowledge that Dr O'Keefe suggested that the right hip injury was related to workplace events in 1995, however this opinion is not binding and is at odds with the evidence summarised above'. As such, the parties are also invited to make further submissions as to that preliminary view and/or the relevance of it".

1. On 9 July 2025, I issued a further Direction to the parties in the following terms:

"Further to the Direction issued on 4 July 2025, and having regard to the terms of ss 42 and 43 of the Personal Injury Commission Act 2020:

1. In the context of putting any submissions in relation to the 4 July 2025 Direction, the Commission invites the parties to also consider any relevance of the MAC issued by Dr Beata M Byok dated 25 October 2016 (particularly at ARD 427-430) when making any further submissions."
2. On the afternoon of 15 July 2025, the Commission sent a message to the parties through its electronic case management system noting that neither had lodged submissions that were due on 11 July 2025 with respect to the 4 and 9 July 2025 Directions, and that "We follow up the parties and enquire whether you will be lodging submissions". On 15 July 2025, the respondent sent a message to say it did not intend to put any further submissions. The appellant sent a similar message on 1 August 2025.

1. The appellant alleges a failure to consider the "status" of the 2010 MAC because s 321(4) provided that the Registrar may not refer a medical dispute about WPI for assessment where liability is in issue and not determined by the Commission, and that as a referral did occur, and findings were made in a MAC about the right hip WPI, the "operation of s 321(4) means" the respondent has admitted a work-related right hip injury, and any "notation in the COD ... is of no consequence". It then says the MAC is conclusive evidence as to injury and WPI. There is no development of this argument which essentially only comprises two or three bald assertions.
2. The appellant's submission can be taken as saying that because a referral did occur, the operation of s 321(4) means that the respondent can be taken as admitting the hip injury. I find this submission is without a basis and I reject it. There has been no such admission, nor has the appellant shown how s 321(4) would operate in such a way. In Singh v FTW Products Pty Ltd[20] the appellant submitted that because the matter was referred to an AMS prior to the determination of liability, the "AMS finding should be a nullity and should have not been considered ...". Roche DP said[21] the "submission that the MAC should be 'considered a nullity' on the basis of procedural breaches ... is unsupported by any authority". He also said[22] that submission was "without foundation and I have no power to make such a finding".
3. The relevant circumstances in Singh and the present case are not totally analogous as the appellant has not attempted to have the MAC assessment found to be a nullity. This is unsurprising as to do so would remove his argument regarding the status of the MAC. Instead, he seeks to cherry-pick one part of one notation to the 2010 COD. He seeks to maintain part of notation 2, providing for the referral to the AMS, but says the words "but without any admission as to causation of any condition of the right hip" can be ignored because "an admission of injury pursuant to the statute (s 321) was made when a formal finding of a WPI was published ...". But the above statements by Roche DP in Singh are still instructive with respect to the appellant's point, at least to the extent that he provides no explanation, let alone authority, as to a rational basis to support this submission, or any real attempt to engage in an interpretation of s 321. If he has so attempted, I find the words of s 321 do not authorise the Commission to ignore the non-admission words in the 2010 COD. Plainly, there was no admission, at least as to causation, in relation to the right hip.
4. Further, in Singh, Roche DP confirmed that "a MAC does not equate to a determination of the dispute".[23] In Milosavljevic v Medina Property Services Pty Ltd,[24] Roche DP also said:

"Whilst a MAC is 'conclusively presumed to be correct' in respect of the matters in section 326(1), it 'does not equate to a [determination] of the dispute by the Commission' (Jopa at [27]) as an AMS is not part of the Commission (section 368(1)) and all liability issues must be determined by a Commission Arbitrator (Issott v North Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSWWCCPD 38; Connor v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2006] NSWWCCPD 124 and Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131)."

1. The status of a MAC was similarly described by Brereton JA, with White JA and Simpson AJA agreeing, in Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [25] as follows:

"Thus the certificate is not an adjudication, but merely evidence, albeit conclusive evidence; it is not an award or determination which of itself operates to establish liability".

1. I thus reject the appellant's submission in this respect. This may be dispositive of the appeal, given the central tenet of the appellant's submissions (at [20]) being that "the Member was in error as a matter of law for not finding injury to the right hip once the MAC of 3 March 2010 came into effect ...". The point appears to be that a finding of injury naturally flows from an AMS accepting the fact of injury and/or making a WPI allowance. Such a proposition is clearly contrary to the established principles set out above. Further, for reasons which appear below, the appellant's argument also fails because he has not persuaded me that any assessments in the 2010 MAC has/have a status within the meaning of s 326(1) of the 1998 Act. In other words, any such assessment is not conclusively presumed to be correct, although it does have a status pursuant to s 326(2), that is, it is evidence, but not conclusive evidence. That point will be also dealt with below.
2. The submission (at [19]) that the non-admission notation in the 2010 COD is of no consequence, and the MAC is "deemed to be correct" as to injury and "conclusive evidence of the WPI which arise[s] from an injury", does not appear, at least clearly, to provide an independent argument that even though the MAC assessment is not able to automatically determine an injury issue, a WPI finding might still be a relevant factor to take into account when the Commission considers that issue. If it did so argue, one would expect to see the development of it, at least with a relevant proposition. The appellant did refer to s 326, but only in the context of putting "... s 326 clearly states that the MAC is conclusive evidence of the WPI which arise[s] from an injury ...". There is also no discussion about any relevance of s 326(2) in the event the assessment certified in the MAC might not be conclusive under s 326(1).
3. It would make no difference to the result even if I am wrong in believing the appellant did not present a clearly articulated argument that the MAC is conclusive evidence as to the WPI, and the Member erred by not considering "the status of the [WPI]". This was the first topic I directed the attention of the parties to in the 4 July Direction, in particular, "(a) ... parties are invited to consider any relevant authority, ... including Haroun ... at [22], and make any further submission in that respect if they wish". The underlining is to emphasise that the consideration of any authority was not limited to Haroun, where (at [22]), Handley AJA, McColl JA and McDougall J agreeing, stated that "[a] MAC which is conclusively presumed to be correct under s 326(1) trumps any inconsistent findings by an Arbitrator and such findings are neither final nor binding on the parties". Importantly though, his Honour's statement assumes a MAC assessment does have the status of being conclusively presumed to be correct under s 326(1), as was the case in Haroun.
4. As the appellant substantially bases his submission on the "status" of the MAC, one is entitled to infer that this refers to s 326 of the 1998 Act given that the heading of this section is "326 Status of medical assessments". However, the appellant's only submission in this context was:

"The MAC is deemed to be correct as to ... both injury [sic] as a result of s 321(4) and the [WPI] ... S 326 clearly states that the MAC is conclusive evidence of the WPI which arise[s] from an injury and as a result of the operation of s 321(4) no assessment of WPI could have been undertaken place [sic] if a dispute as to liability was in existence."

1. Contrary to the appellant's submission, the Member did refer to the status of the MAC assessment when acknowledging[26] that "Dr O'Keefe suggested that the right hip injury was related to workplace events in 1995, however this opinion is not binding and is at odds with the evidence summarised above" (emphasis added). She did consider it, however briefly. In the 4 July Direction, I expressed a preliminary view that the Member may not have at least adequately analysed Dr O'Keefe's evidence, but I added "except at [83]" and repeated the quote in the first sentence above. But on a full consideration, despite not being assisted with further submissions from either party, I find there has been adequate consideration of that evidence. Further reasons for that finding follow.
2. The appellant has not clearly articulated an argument that the Member's reasons were inadequate - except as referred to above in relation to the status of the MAC assessment. Even if he had, it would make no difference and the result would be the same, because in all the circumstances I would not find any error of law in this respect. The extent and scope of the duty to provide reasons depends on the circumstances of each case, and "reasons need not be lengthy or elaborate".[27] The obligation to give reasons also "has to be considered in the light of the issues raised for consideration by the parties".[28] In Fire and Rescue NSW v S,[29] Roche DP referred to various authorities in relation to the extent of the duty to give reasons, including Beale and Woolworths v Warfe[30] where it was explained by Kaye AJA (Tate and Whalan JJA agreeing), that:

"The adequacy of the reasons must depend upon the issues, and nature of the proceeding, in any individual case. In an appropriate case, reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated. Thus, as Neave JA and Beach AJA stated in Murray Goulburn Coop Co Ltd v Filliponi, 'In some cases, the path of reasoning which led to the ultimate conclusion is necessarily implicit in a sufficiently detailed recitation of the relevant material upon [which] the decision was based'."

1. I am not persuaded relevant error was involved in relation to the Member's consideration of the status of the 2010 MAC assessment. In the context of the limited issues raised in the appeal submissions, and before the Member, this is a case where there was consideration, however brief, of the status of the assessment in the MAC, and is a situation where the ultimate conclusion is also necessarily implicit in the Member's detailed recitation of the relevant material upon which she based her decision. In other words, her limited expression "however this opinion is not binding and is at odds with the evidence summarised above" needs to be read with the relevant submissions and evidence put before her. The transcript of the hearing before her shows the appellant's counsel put this:

"... there are a number of medical certificates, medical assessment certificates which have been entered into in this case and we say those assessments are important for a number of reasons, not the least of which is that they create, in effect, an estoppel on injury. ... when one looks at Dr O'Keefe's report ... [ARD p 435] ... there was a referral [the 2010 COD] ... clearly refers off the lower right limb including the right hip ... given that there's .. (not transcribable 00:16:03) .. determination to that effect it's not really possible for a respondent to deny - to now come along and deny injury without, in effect, setting aside that [COD].

... Dr O'Keefe's certificate ... it's quite clear that the doctor assessed ... the right hip. ... while the findings he's made, of course, are not binding, the actual content of them - of the MAC upon the certificate apart from the actual certificate and the percentages that have been awarded are not binding Dr O'Keefe refers to the injury to the right leg and the right hip. ... he says:

'... 'initially what he thought was an injury to his back was, in fact, turned out to be injury to his hip and his back pain is purely due to muscle spasm from the hip problem. The original hip injury occurred on 25 August, '95. By the time he had the MRI scans 10 or 11 years later in 2006 and 7 he had developed arthritic changes in his right hip.'

... The right extremity is assessed and as part ... of that ... assessment the hip was assessed ...

So, Member, it's our submission that given the [2010 COD] ... and the [WPI] findings in Dr O'Keefe's report that the injury [is] not at this stage able to be questioned ... It's quite clear that when one looks at the medical evidence from Dr Sekel, Dr Hope and Dr O'Keefe that the labral tear contributed or caused ... the arthritic condition in the hip which has given rise to the need for the surgery ...".[31]

1. The above submission about the "findings" being "not binding, the actual content of them ... apart from the actual certificate and the percentages that have been awarded are not binding" is not totally clear. Thus it was unnecessary for the Member to give any detailed reasoning, including because her comment at [83(g)] ("I acknowledge that Dr O'Keefe suggested that the right hip injury was related to workplace events in 1995, however this opinion is not binding and is at odds with the evidence summarised above") is placed within the judgement immediately below "the evidence summarised above" (at [83](a)-(f)). In other words, when placed in the context of her detailed treatment of the evidence, and read fairly, her brief reasons in this respect are adequate.
2. The Member's reasons or consideration also needs to be assessed in the context of s 294(2) of the 1998 Act, which relevantly provides that: "A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination".
3. It is also unclear whether or not the Member understood the appellant conceded that the MAC assessment did not have the status of being conclusively presumed to be correct as to the degree of permanent impairment of the appellant as a result the result of an injury.
4. The respondent's submissions mainly point to the Member's broader fact finding as to the receipt of injury. This is largely unnecessary as the appellant does not, except to the limited extent set out in his submissions, challenge that fact finding. One exception is the respondent's implicit submission that there was no irregularity in the 20 January 2010 COD and/or the Registrar making a WPI referral, including the right hip, given the terms of s 321(4). It says, "use of the term 'may' is an expression of a verb indicating permission or possibility ... if the legislature had contemplated a verb compelling the referral of a matter for assessment by an [AMS] it would have been normalised by using the term 'shall' connoting an expression of demand or assertion". I reject this argument. It is not based on any authority and is contrary to various authorities as well as a literal reading of the text of Division 5 Part 7, in particular s 321. For example, the words "[a] medical dispute may be referred for assessment" in s 321(1), [t]he parties ... may agree on the [AMS]" in s 321(2), immediately before s 321(3) providing "[t]he Commission may not refer for assessment ...", clearly show that "... a matter cannot be referred to an AMS for assessment if liability is in issue (section 321(4) of the 1998 Act) ...".[32]
5. While s 321(3) may appear to conflict at least with the terms of s 321(4), closer inspection shows that the term "may not" is mandatory and not discretionary, and the Registrar, pursuant to s 321(4), not the Commission, should make the referral.[33] The above emphases are mine. Otherwise, the term "may not refer", if one takes care to read s 321(4) in context, plainly refers to the opposite of the term "may be referred". In 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No. 73943,[34] Leeming JA (Basten and Barrett JJA agreeing) said:

"It is axiomatic that (a) the words in a sentence are not building blocks whose meaning is unaffected by the rest of the sentence, (b) the sentence is the unit of communication by which language works, and (c) the significance of individual words is affected by other words and the syntax of the whole sentence."

1. Various other authorities, apparently not considered by the respondent, support this interpretation of s 321(4).[35] This submission should not have been put.
2. The respondent does appear to have made a submission regarding the status of the MAC assessment, implying it is not provided under s 326(1), allowing for it to be conclusively presumed to be correct as to the degree of WPI of the worker as a result of an injury. I infer this from its following submission (at [13], quoting the 2010 COD): "... The matter is to be referred by the registrar to an [AMS] for assessment of the degree of [WPI] for the purposes of resolution of a threshold dispute for work injury damages ... (respondent's emphasis)." This has been put unhelpfully, but it is tolerably clear that the emphasis is intended to infer that the referral to the AMS is only for assessment of the degree of WPI for work injury damages purposes. Further, and however briefly, the respondent does put (at [2]) that it disputes the submissions for the appellant at paragraphs [8] and [9] - which relate to the appellant's essential argument on appeal about the status of the MAC.
3. This feeds into a further and fundamental reason standing in the way of the appeal succeeding. There is an unexplained assumption in the appellant's submissions - that the 2010 MAC assessment is conclusively presumed to be correct within the meaning of s 326(1). That assumption is incorrect, or at the least, the appellant has failed to persuade the Commission it is correct. Section 326 relevantly provides:

"(1) An assessment certified in a [MAC] pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before ... the Commission with which the certificate is concerned:

(a) the degree of permanent impairment of the worker as a result of an injury,

(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings." (emphasis added)

1. The 2010 COD shows the appellant elected to discontinue proceedings claiming weekly benefits, additional lump sum compensation and s 60 expenses, with the Arbitrator then noting agreement between the parties that the matter was to be referred to an AMS "for assessment of the degree of [WPI] for the purposes of resolution of a threshold dispute for work injury damages ..." (emphasis added). The present proceedings relate to a claim for treatment expenses pursuant to s 60 of the 1987 Act.
2. In JC Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW[36] Tobias JA (Campbell and Bell JJA) said:

"... a [MAC] ... is only conclusively presumed to be correct in any proceedings before a court or the Commission with which the certificate is concerned. Where such a certificate is given with respect to proceedings in the Commission for the determination of lump sum compensation under s 66, it cannot be conclusively presumed to be correct with respect to proceedings for work injury damages ... as the proceedings are clearly different ...

However ... the effect of s 326(1) is that a [MAC] ... is only conclusively presumed to be correct with respect to the proceedings for the purpose of which the certificate has been obtained, namely, for the purpose of a lump sum compensation claim on the one hand or a work injury damages claim on the other ..."

1. In Superior Formwork Pty Ltd v Livaja[37] Roche DP referred to and applied the principles in the above two paragraphs, and stated:

"A MAC issued in earlier proceedings does not bind the parties in later proceedings unless the Commission has determined the issues in dispute in the earlier proceeding. Nor does it create an estoppel that is binding in later proceedings between the same parties."

1. In the present case there was no determination of the issues, at least with respect to the right hip, nor has it been submitted otherwise. However, as was pointed out by Snell DP in Singh v B & E Poultry Holdings Pty Ltd,[38] JC Equipment and Livaja predated the insertion of s 322A into the 1998 Act, and in O'Callaghan v Energy World Corporation Limited[39] Roche DP stated:

"...it is difficult to see how the [relevant] part of JC Equipment ... can stand in the light of s 322A. That provision provides that only one [WPI] assessment may be made (s 322A(1)) and that the MAC given in connection with that assessment is the only MAC ... about the degree of permanent impairment as a result of the injury concerned (s 322A(2)).

This applies whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation, or a claim for work injury damages. It follows that the one MAC must be able to be used, and be binding, for purposes other than the purpose for which it was obtained."

1. The words emphasised immediately above faithfully follow those used in s 322A(2). They were relevant in Livaja, O'Callaghan, and Poultry Holdings as each of those cases involved a subsequent or further dispute in connection with a claim for permanent impairment compensation. But the present proceedings are in connection with a claim for medical, hospital and related treatment, and thus distinguishable from those three cases. While the present case is a "subsequent or further dispute", it is not a dispute in connection with a claim for permanent impairment compensation, or the commutation of a liability for compensation, or a claim for work injury damages. Further, s 322A does not impinge upon the issues in the appellant's case, nor has it been said by the parties or the Member to be in any way relevant to the issues.
2. Therefore, the principles (noted at paragraphs [63]-[64] above) in JC Equipment are applicable in this case. Thus I find the status of the assessment in the 2010 MAC is not conclusively presumed to be correct.
3. Section 326(2) still allows for that assessment to be treated as evidence. But the appellant's appeal ground and submissions do not, at least expressly or clearly, raise an argument that the Member erred in the way she dealt with the MAC as evidence. The submissions seem limited to the MAC assessment being conclusive evidence and "deemed to be correct" as to "both injury ... and the [WPI]". Nevertheless, if I am wrong about that, I refer to paragraphs [51]-[54] above to support the finding I would make that the Member's reasons in this regard, although brief, are adequate in all the circumstances.
4. The respondent also submits that the appellant's reference to the term "consequential condition to the right hip" in the ground of appeal and paragraph [22] of his submissions should be disregarded. I agree the reference to this term can be disregarded, but contrary to what the respondent puts, the appellant did not put it as a submission. All he has done is to include it as part of the ground of appeal and the orders sought. The term played no part in the arbitration and reasons of the Member and should be disregarded.

1. The Member's Certificate of Determination dated 11 December 2024 is confirmed.

[2] Long v Tyco International Pty Ltd t/as O'Donnell Griffin [2024] NSWPIC 690 (reasons), [17].

[13] (2003) 25 NSWCCR 422.

[14] (1994) 35 NSWLR 452.

[15] [2008] NSWCA 246.

[20] [2007] NSWWCCPD 230 (Singh), [28].

[23] Singh, [36], following Jopa Pty Ltd t/as Tricia's Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (Jopa), [27].

[24] [2008] NSWWCCPD 56, [48]-[49].

[25] [2020] NSWCA 113, [36].

[27] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, [443].

[28] Brambles Industries Limited v Bell [2010] NSWCA 162, [22] and [30].

[29] [2015] NSWWCCPD 50.

[30] [2013] VSCA 22, [131].

[31] Transcript of proceedings 14 November 2024, pp 7-8.

[32] Filippou v Northern Sydney Central Coast Area Health Service (Manly Hospital) [2009] NSWWCCPD 35, [35].

[33] Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy [2009] NSWWCCPD 47, [64]-[66].

[34] [2014] NSWCA 409; 88 NSWLR 488, [82].

[35] Favetti Bricklaying Pty Ltd v Benedek [2017] NSWSC 417, [80]-[81] and [89]; Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1, [107]; Singh, [33]; The Bright Group Pty Ltd v Akdeniz [2009] NSWWCCPD 113, [98].

[36] [2008] NSWCA 43; 5 DDCR 403 (JC Equipment), [38]-[39].

[37] [2009] NSWWCCPD 158, (Livaja), [95].

[38] [2018] NSWWCCPD 52 (Poultry Holdings), [57].

[39] [2016] NSWWCCPD 1 (O'Callaghan), [99]-[100].