Yates v Flavorjen Pty Ltd

Dr Bodel's Report

1. On 25 November 2019, the plaintiff was examined by orthopaedic surgeon, Dr Bodel (Ex A(1), 17-24). He took a history of the plaintiff which stated that he developed a gradual onset of neck, shoulder girdle pain and bilateral upper limb pain, the right worse than the left, associated with the nature and conditions of his work. He recorded that the symptoms began within three weeks of the plaintiff starting work with the employer and resulted from the intense, heavy and repetitive nature of the work that he was doing.
2. Dr Bodel described the plaintiff as having developed a very complex set of injuries which include aggravated degenerative change in the cervical spine; a complex regional pain syndrome ("CRPS") involving both upper limbs, mainly the right arm, probable carpal tunnel syndrome in both wrists and rotator cuff pathology in the region of both shoulders. Dr Bodel further stated that the plaintiff's prognosis remained very guarded. He recorded that there was clinical symptoms that suggested that the CRPS is improving, but there was still florid signs of this condition on testing. Dr Bodel stated that the plaintiff is likely to continue to have symptoms indefinitely. However, he stated that he does not anticipate further complications, and was hopeful of further improvement over time: see Ex A(1), 23-24.
3. Dr Bodel's report was accompanied by an impairment assessment dated 25 November 2019 (Ex(1), 25). With regards to his opinion on the whole person impairment ("WPI") of the plaintiff, Dr Bodel made the following findings: "He has a rateable restriction of shoulder movement on both sides. This is assessed using Figure 16-40 on Page 476, Figure 16-43 on Page 477 and Figure 16-46 on Page 479. The degree of recorded restriction of movement constitutes a 10% Upper Extremity Impairment for the right upper extremity and a 4% Upper Extremity impairment for the left upper extremity. On the left-hand side, this converts to a 2% Whole Person Impairment using Table 16-3 on Page 439. On the right-hand side, there is also the rateable restriction of right wrist movement. This is assessed using Figure 16-28 on Page 467 and Figure 16-31 on Page 469. This accounts for a 7% Upper Extremity Impairment for the right wrist. There is also the residual sign of the Grade IV sensory loss in the median nerve distribution in the right upper limb, but not the left. The Grade IV rating is assessed using Table 16-10 on Page 482 and accounts for 25% of the total loss to apply. The total is taken from Table 16-15 on Page 492 and that is a 39% Upper Extremity Impairment. One-quarter of that is 9.75% Upper Extremity Impairment, and after rounding, a 10% Upper Extremity Impairment for the residual median nerve compression of the wrist. There is no motor weakness. This leaves a total of three individual ratings for the right upper extremity and they are 10% for the restricted range of shoulder movement on the right, 10% for the residual sign of the sensory loss in the median nerve distribution and 7% for the right wrist. These three are combined using the Combined Values Chart on Page 604 of AMA5 and give a total of a 25% Upper Extremity Impairment for the right upper extremity. This converts to a 15% Whole Person Impairment using Table 16-3 on Page 439. There are clinical signs also of the complex regional pain syndrome in the right upper extremity. This is assessed using Table 17-1 on Page 81 of the SIRA WorkCover Guidelines, Fourth Edition. There is a complex regional pain syndrome Type II present in this circumstance as there is evidence of the specific involvement of the median nerve on the right-hand side. I have followed the criteria mentioned in Table 17-1 on Page 81 and there is continuing pain which is disproportionate to the causal event that has led to the symptoms in the right upper limb. There are sufficient symptoms to satisfy Part 2 of the Table and signs to satisfy Part 3 of the Table. Part 4 indicates that there is no other diagnosis that better explains the signs and symptoms and that is the case in this circumstance. Following the regime therefore, for the assessment of a complex regional pain syndrome Type II, I have measured the ranges of motion and also the specific sensory loss involving the median nerve. There is no motor deficit in this circumstance."
4. As can be seen from this exerpt, Dr Bodel's assessment included the left upper extremity, the right upper extremity, cervical spine and CRPS. In respect of the right upper extremity, Dr Bodel assessed impairment in the shoulder, wrist and a sensory loss in the median nerve distribution which constituted 15% WPI. With respect to the cervical spine, Dr Bodel assessed a WPI of 7%. In relation to the left upper extremity he assessed the plaintiff's WPI at 2%. He assessed a total WPI of 23%. Dr Bodel also considered that the criteria in Table 17-1 of the WorkCover Guidelines had been met to allow assessment on the basis of CRPS.
5. On 4 February 2020, the plaintiff made a claim for permanent impairment compensation (Ex A(1), 29). The permanent impairment claim form described the plaintiff's injury as 'cervical spine, left and right upper extremities' and relied upon the reports of Dr Bodel.
6. On 16 March 2020, Dr Rimmer, Orthopaedic surgeon, examined the plaintiff (Ex A(2), 227). In his report dated 23 March 2020, Dr Rimmer notes that the plaintiff's symptoms included numbness and pins and needles in both hands, an increasing resting tremor in his right upper limb and intermittent pain in his cervical spine. According to Dr Zimmer, the plaintiff did not suffer from the effects of any injury on 13 October 2015, or due to his employment and the overwhelming issue was his current and ongoing narcotic use. Dr Rimmer's opinion was that it was likely that the plaintiff suffered from Parkinson's disease however he notes that this is not his area of expertise. As a result of this, Dr Rimmer assessed the plaintiff's WPI at 0% as a result of the 13 October 2015 injury.
7. On 6 April 2020, by way of notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("Workplace Injury Act"), the employer declined liability in respect of the claim for permanent impairment compensation (Ex A(1), 33). This declinature relied upon the opinion of Dr Rimmer and stated that as the plaintiff did not suffer from the effects of any injury on 13 October 2015 or due to his employment with the employer, the plaintiff did not qualify for any compensation for permanent impairment. It should also be noted that the notice stated (Ex A(1), 34): "It is not in issue that you suffered an injury to your neck and bilateral wrists as a result of the work incident on 13 October 2015."
8. On 1 August 2019, the plaintiff had a follow up consultation with Dr Tisch (Ex A(1), 193). Dr Tisch recorded: "[the plaintiff's] tremor persists predominately in the right arm and causes considerable interference and disability. The tremor combined with chronic pain principally in the right hand and upper limp prevents him from resuming normal activities or returning to work. He has engaged with physical therapy but improvements have been unsustained."
9. On 21 July 2020, the employer arranged for the plaintiff to be examined by a neurologist, Dr Mellick (Ex A(1), 214). In his report dated 7 August 2020, Dr Mellick recorded the plaintiff's tremor was of considerable severity, is variable and impairs normal function of his dominant right hand. Dr Mellick disagreed with Dr Rimmer's comments as to the diagnosis of Parkinson's Disease and agreed with the comments of Dr Tisch regarding the absence of that disease. Dr Mellick considered that the plaintiff had suffered from bilateral carpal tunnel syndrome and also agreed with Dr Tisch's diagnosis of a functional tremor. Dr Mellick stated that the tremor obstructed testing of motor and sensory function in the right hand which prevented from making a valid WPI assessment.
10. On 17 August 2020, the employer filed a second s 78 notice with the additional information following Dr Mellick's examination of the plaintiff (Ex A(1), 61). As Dr Mellick was unable to provide an assessment of permanent impairment, the employer maintained their position that the degree of impairment resulting from the injury was not more than 10% WPI and therefore the plaintiff did not qualify for compensation.
11. On 28 September 2020, the plaintiff lodged an Application to Resolve a Dispute ("ARD") with the Workers Compensation Commission (Ex A(1), 38). The ARD describes the injury as "gradual onset of symptoms affecting the neck, right and left shoulder and right and left arms, wrists and hands due to the vigorous, repetitive manual work duties." The claim for permanent impairment identified the cervical spine, left upper extremity, right upper extremity, nervous system and chronic pain as the 'body systems' claimed. The ARD specified that the total WPI claimed is 23%.

Referral to the Approved Medical Specialist

1. On 13 October 2020, the employer's solicitor wrote to the plaintiff's solicitors submitting that the correct terms of the referral to the Approved Medical Specialist ("AMS") should be as follows (Ex A(1), 195): "1. Cervical spine 2. Chronic regional pain syndrome (right arm) 3. Left upper extremity (shoulder) Your assessor, Dr Bodel provided impairment assessment as follows: (a) 7% WPI for the cervical spine, DRE category II, inclusive of 2% loading for ADL; (b) 15% WPI for the right upper extremity (complex regional pain syndrome - Ch 17 SIRA Guides); (i) 10% UEI right shoulder (ii) 7% UEI right wrist (iii) 10% UEI median nerve (c) 2% WPI for the left upper extremity (shoulder) Thus, Dr Bodel assessed the cervical spine, CRPS (CH 17 SIRA Guides), and the left shoulder. The proper terms of the referral for these injuries are noted above. …"
2. On 14 October 2020, the plaintiff consented to the amendment of the referral to the AMS (Ex A(1), 196). The plaintiff's solicitor replied by way of email: "The applicant agrees to the terms of the referral to the AMS being amended as per the email below: 1. Cervical Spine 2. Chronic regional pain syndrome (right arm) 3. Left upper extremity (shoulder)" [the words 'chronic' and 'complex' are used interchangeably with regards to CRPS]
3. The amendment meant that with regards to the right upper extremity, the assessment was to be confined to an assessment with regards to CRPS and with regards to the left upper extremity the assessment was to be confined to the shoulder.
4. On 19 October 2020, the employer lodged a reply to the ARD (Ex A(1), 198). Under the heading 'Matters in Dispute' the employer selected 'confirmed as per dispute notice(s) attached to the application'.
5. On 19 October 2020, Mr Dray, Delegate to the Arbitrator ("the Delegate") referred the matter for assessment by the AMS (Ex A(2), 410). They described the body parts referred as 'cervical spine, left upper extremity, right upper extremity, nervous system, chronic pain.'
6. On 20 October 2020, the employer's solicitor emailed the Delegate requesting that the referral be amended as per the agreement between the parties (Ex A(2), 411). On that day the Delegate prepared an amended referral (Ex A(2), 414). The described body parts in the referral were amended to 'Cervical Spine, Chronic Regional Pain Syndrome (right arm), Left upper extremity (shoulder)'.

The AMS reasons dated 16 November 2020

1. On 9 November 2020, Dr Assem, the AMS, examined the plaintiff and on 16 November 2020 issued a Medical Assessment Certificate (Ex A(2), 415).
2. Under the heading 'Summary of injuries and diagnoses' the AMS stated: (Ex A(2), 419-420): "Mr Yates is a 41-year old right hand dominant man who sustained a work related injury to both wrists due to the repetitive nature of his work. He was diagnosed with moderate severe bilateral carpal tunnel syndrome that was relieved following surgical decompression. He later developed symptoms suggestive of complex regional pain syndrome. The predominant symptom was severe tremors involving his right upper extremity. There was no hypersensitivity, allodynia, swelling or colour changes observed at the time of my assessment. There was increased perspiration in both hands. He did not satisfy the diagnostic criteria for CRPS. [my emphasis] He has prominent tremors involving his entire right arm as a complication of sympathetic dysfunction developing following the surgical procedure to both wrists. Although there may be a functional component, the tremors have been present for several years are now a permanent manifestation of his condition. He also has a global loss of sensation in both hands that probably occurred as a complication of sympathetic dysfunction, but the symptoms are more prominent in the median nerve distribution. I have therefore considered it was reasonable to provide an impairment rating for loss of motion, tremors involving his dominant right upper extremity and residual symptoms of carpel tunnel syndrome following surgical decompression."
3. Under the heading 'My opinion and assessment of whole person impairment' the AMS made findings in relation to the plaintiff's WPI: (Ex A(2), 421-422). The AMS assessed the impairment of the cervical spine as 0%. In respect of the right upper extremity, he found limitation of motion in the right shoulder, right elbow and right wrist. He assessed the sensory symptoms as analogous to residual carpal tunnel syndrome present after surgery and he assessed the tremor applying AMA-5, Table 13-16. In respect of the left upper extremity, the AMS assessed restriction of motion in the right shoulder, right elbow and right wrist to which he added an additional assessment for the sensory symptoms similar to residual carpel tunnel syndrome. The AMS assessed the plaintiff's WPI at 24%.

The Appeal

1. On 1 December 2020, the employer lodged an appeal from the Medical Assessment Certificate (Ex A(2), 428). The grounds of appeal were that, firstly, the assessment of impairment for the left upper extremity, in particular the left elbow, wrist and nerves were not available to the AMS based on the terms of the amended 'Referral for Assessment of Permanent Impairment.' Secondly, it was argued that the assessment for impairment for CRPS (right arm) was an assessment based on incorrect criteria, and a demonstrable error, given the diagnostic findings of the AMS that the plaintiff did not meet the criteria under chapter 17 for a diagnosis of CRPS.
2. On 18 December 2020, the plaintiff lodged a notice of opposition to the appeal (Ex A(2), 437). The plaintiff submitted the dispute between the parties was the degree of impairment to be ascribed in respect of the cervical spine and the left and right upper extremities. As such, the assessment made by the AMS was referable to the body parts and systems in respect of which the claim was made. The plaintiff submitted that this was not a case where the assessment went beyond the limits of the dispute between the parties. It was also submitted that the reference to CRPS in the referral did not prevent the AMS from assessing the right upper extremity, applying other chapters of the Guides.
3. On 19 January 2021, the principal lawyer as Delegate of the Registrar found that a ground of appeal had been made out and referred the matter for consideration by the Appeal Panel (Ex A(2), 446).
4. On 27 January 2021, the plaintiff, through his solicitor, requested that the Proper Officer, Anne Macleod, amend the terms of the referral to the AMS and the Appeal Panel to read as follows: (Ex A(2), 447) "1. Cervical spine; 2. Left upper extremity; 3. Right upper extremity; 4. Nervous system; and 5. Chronic pain."
5. This request may be viewed as a proposal to widen the scope of the dispute to the terms of the original referral. As can be seen, this would involve a separate assessment of the right upper extremity and CRPS, as well as an assessment of the entire left upper extremity.
6. On the 27 January 2021, the solicitor for the employer wrote back to the Proper Officer saying that there was no basis for the plaintiff's request (Ex A(2), 449).
7. On the same day, the parties were advised by the Proper Officer that the referral could not be amended (Ex A(2), 452): "I accept the respondent's submissions concerning the amendment of the referral. The parties agreed to the terms of the referral, per the emails attached to the reply lodged by the respondent, and was in accordance with the evidence relied on by the applicant. The original referral no longer exists as it has been amended. There are not two referrals in the matter. The referral will not be amended for the purpose of the Medical Appeal Panel's consideration of the issues raised in the Appeal."

The Appeal Panel decision

1. On 23 February 2021, the Appeal Panel delivered their decision and statement of reasons (Ex A(2), 453). At [16] to [18] the Appeal Panel stated: "[16] The respondent commenced proceedings in the Commission seeking lump sum compensation where degree of permanent impairment is in dispute. In accordance with the Application to Resolve a Dispute (ARD) dated 28 August 2020 commencing those proceedings, the matter was on 19 October 2020 referred to Dr M Assem, AMS, for assessment in respect of the following body parts: "Cervical spine, Left Upper Extremity, Right Upper Extremity, Nervous System, Chronic Pain." [17] On 20 October 2020, after an exchange of emails between the solicitor for the appellant and the solicitor for the respondent in which the solicitor for the respondent consented to an amendment requested by the solicitor for the appellant, an "Amended Referral for Assessment of Permanent Impairment to Approved Medical Specialist" (the Amended Referral) was issued to Dr Assem listing injury to the following body parts on 13 October 2015 to be referred for assessment of WPI: "Cervical Spine, Chronic Regional Pain Syndrome (right arm), Left Upper Extremity (shoulder)." [18] On 9 November 2020 Dr Assem examined Mr Yates and issued a MAC dated 16 November 2020 containing an assessment of 24% WPI as a result of injury to the cervical spine, right upper extremity and left upper extremity on 13 October 2013."
2. Under the heading 'Findings and reasons' at [56], [58], [66] and [72]-[74] the Appeal Panel stated: "[56] In Skates v Hills Industries Ltd Adamson J in the Supreme Court held at [69]-[71] that the AMS is bound by the terms of referral to confine the matters determined to those which have been referred. In this regard her Honour noted the finding of Malpass AJ in Aircons v Registrar of the Workers Compensation Commission of NSW & Anor. At [20] in that case his Honour said at [20]: "The prescription contained in subsection (1) of s 325 requires the approved medical specialist (AMS) to give a certificate as to the matters referred for assessment. It is significant that the provision appears to distinguish between 'a medical dispute' and 'the matters referred for assessment'. The statutory function of the AMS is to give a certificate as to those matters." … [58] At [70] in Skates the Court noted that the claimant in that case (through his solicitors) was given an opportunity to review the referral and make submissions as to whether it correctly stated the dispute to be referred. In this case the respondent's solicitor agreed to the amendment to the referral proposed by the solicitor for the appellant, perhaps relying on the assessment of the respondent's WPI by Dr Bodel. On examination of Mr Yates, Dr Bodel found signs consistent with the diagnosis of CRPS "...which does appear to be resolving over time." He also then noted that: "...this gentleman has a tremor in the right upper limb. This appears to be intermittent and it does settle at times, but it is most evident when he is not actively trying to do any movement or concentrate on any particular aspect of the examination." … [66] The main thrust of the respondent's submissions is that the expression "with respect to" in s 325(2)(b) of the 1998 Act is a phrase of wide import and ought not be interpreted in such a way as to frustrate the proper assessment of the degree of WPI that results from an injury. The Appeal Panel does not accept that submission. Quite clearly, those words in subsection (2)(b) of s 325, refer to the "details of the matters referred for assessment" in subsection (2)(a). The details of the matters referred for assessment are set out in the Amended Referral, the terms of which are set out in [17] above. The AMS was asked to assess the "Cervical Spine, Chronic Regional Pain Syndrome (right arm) and Left Upper Extremity (shoulder)". Dr Assem found the respondent did not satisfy the diagnostic criteria of CRPS (Complex Regional Pain Syndrome). … [72] The Appeal Panel does not accept the respondent's submission that the use of the words "with respect to" in s 325(2)(b) of the 1998 Act allows the AMS to assess the respondent with reference to injury in the body parts and systems in respect of which the claim was originally made in the ARD, namely, cervical spine, left upper extremity, right upper extremity, nervous system and chronic pain. The AMS is bound by the terms of the referral of the matter to him." [73] The Appeal Panel finds that the MAC contains a demonstrable error in that the AMS has assessed the left upper extremity by reference to loss of range of motion in the left elbow and left wrist, and for sensory symptoms, when the referral was for the left shoulder only. [74] The Appeal Panel finds that the MAC contains a demonstrable error and that the assessment has been made on the basis on incorrect criteria in respect of the assessment of the right upper extremity. Having found that the respondent did not satisfy the diagnostic criteria for CRPS, the AMS was not at liberty to go beyond the terms of his referral and determine permanent impairment by way of analogy in accordance with paragraph 1.6 of the Guidelines. Paragraph 1.6 d is as follows: "The referral for an assessment of permanent impairment is to make clear to the assessor the injury or medical condition for which an assessment is sought - see also paragraphs 1.43 and 1.44 in the Guidelines.""
3. The Appeal Panel revoked the Medical Assessment Certificate of 16 November 2020 and issued a new certificate which assessed a 2% WPI.

Relevant legislation

1. Section 288 of the Workplace Injury Act governs the referral of disputes for determination by the Commission. It reads: "288 Referral of disputes to Commission (1) Any party to a dispute about a claim may refer the dispute to the President for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute. Note : A medical dispute concerning the claim can also be referred for assessment under Part 7 (Medical assessment). (2) The President may not accept a dispute for referral for determination to the Commission if the dispute is a dispute that, under this Part, cannot be referred for determination by the Commission."
2. Where there is a medical dispute, the Registrar (now the President) can refer the dispute for assessment pursuant to s 293 which reads: "293 Medical Assessment (1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the President may (subject to the regulations under section 321A (Referral or medical dispute concerning permanent impairment)) refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment. … (3) The President may not refer for assessment - (b) A medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment)."
3. The term 'medical dispute' is defined by s 319 of the Workplace Injury Act. This provision reads: "319 Definitions 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."
4. An assessment of permanent impairment is to be made in accordance with ss 322 and 323 of the Workplace Injury Act. They read: "322 Assessment of Impairment (1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose. (2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker. (3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker. Note: Section 64A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury. (4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made. 323 Deduction for previous injury or pre-existing condition or abnormality (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. Note: So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%). (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter. (4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section."
5. A medical assessor issues a medical assessment certificate in accordance with s 325 that reads: "325 Medical Assessment Certificate (1) The medical assessor to whom a medical dispute is referred is to give a certificate (a "medical assessment certificate") as to the matters referred for assessment. (2) A medical assessment certificate is to be in a form approved by the President and is to - (a) Set out details of the matters referred for assessment, and (b) Certify as to the medical assessor's assessment with respect to those matters, and (c) Set out the medical assessor's reasons for that assessment, and (d) Set out the facts on which that assessment is based. (3) If the President is satisfied that a medical assessment certificate contains an obvious error, the President may issue, or approve of the medical assessor issuing, a replacement medical assessment certificate to correct the error. (4) A medical assessor is competent to give evidence as to matters in a certificate given by the assessor under this section, but may not be compelled to give evidence."
6. Sections 326-328 apply to the Medical Assessment Certificate. They relevantly read: "326 Status of Medical Assessments (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned - (a) The degree of permanent impairment of the worker as a result of an injury, … (d) Whether impairment is permanent, (e) Whether the degree of permanent impairment is fully ascertainable. (2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings. 327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds - … (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out. 328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows - (a) 2 medical assessors, (b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission. (2) 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. (2A) To avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. (4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel. (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel."
7. Section 331 of the Workplace Injury Act requires the Appeal Panel to apply the Guidelines in conducting its review. Section 331 relevantly reads: "331 Guidelines Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments." The Guidelines The Guidelines are set out in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016). Clause 1.6 of the Guidelines provides "a basic summary of some key principles of the permanent impairment assessment." They include: (a) The assessment of the impairment involves a clinical assessment as they present on the day of assessment. … (b) Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions."

The Guidelines

1. The NSW workers compensation guidelines for the evaluation of permanent impairment (4th edition) ("the guidelines") are the relevant guidelines in this Judicial Review. The guidelines adopt the 5th edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (5th ed) ("AMA5").
2. Chapter 17 of the guidelines concerns the assessment of impairment resulting from CRPS. Chapter 17 of the Guidelines relevantly reads: "Complex Regional Pain Syndrome Type 1 For Complex Regional Pain Syndrome Type 1 (CRPS1) to be present for the purposes of assessment: a) the diagnosis is to be confirmed by criteria in Table 17.1 b) the diagnosis has been present for at least one year (to ensure accuracy of the diagnosis and to permit adequate time to achieve maximum medical improvement) c) the diagnosis has been verified by more than one examining physician d) other possible diagnoses have been excluded. e) CRPS1 is to be assessed as follows: ○ Apply the diagnostic criteria for complex regional pain syndrome type 1 (Table 17.1). Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2 1. Continuing pain, which is disproportionate to any casual event. 2. Must report at least one symptom in each of the following four categories: i) Sensory: Reports of hyperaesthesiae and/or allodynia. ii) Vasomotor: Reports of temperature assymetry and/or skin colour changes and/or skin colour assymetry. iii) Sudomotor/oedema: Reports of oedema and/or sweating increase or decrease and/or sweating asymmetry. iv) Motor/trophic: Reports of decreased range of joint motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin). 3. Must display at least one sign* at time of evaluation in all of the following four categories: i) Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement). ii) Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes. iii) Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry. iv) Motor/trophic: Evidence of decreased active joint range of motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin). 4. There is no other diagnosis that better explains the signs and symptoms. * A sign is included only if it is observed and documented at time of the impairment evaluation. Then consider the following in assessing CRPS1: • If the criteria in each of the sections 1, 2, 3 and 4 in Table 17.1, above, are satisfied, the diagnosis of CRPS1 may be made. • Rate the extremity impairment resulting from loss of motion of each individual joint involved. • Rate the extremity impairment resulting from sensory deficits and pain, according to the grade that best fits the degree or amount of interference with ADL, as described in AMA5 Table 16.10a (p 482). Use clinical judgement to select the appropriate severity grade and the appropriate percentage from within the range shown in each grade. The maximum value is not automatically applied. The value selected represents the extremity impairment. A nerve value multiplier is not used. • Combine the extremity impairment for loss of joint motion with the impairment for pain or sensory deficit using the Combined Values Chart (AMA5, p 604) to obtain the final extremity impairment. • Convert the final extremity impairment to WPI using AMA5 Table 16.3, (p 439) for the upper extremity and AMA5 Table 17.3 (p 527) for the lower extremity."

Relevant law

1. Both parties referred to Skates v Hills Industries Ltd [2020] NSWSC 837 ("the primary judge's decision") and Skates v Hills Industries Ltd [2021] NSWCA 142 ("Skates"). It should be acknowledged that while the Appeal Panel referred to the primary judge's judgment decision, the Court of Appeal decision had not yet been handed down.
2. In Skates, Basten and Leeming JJA at [29]-[30], [33], [35]-[36], [38], [43]-[44], [46] and [48]-[49] stated: "[29] Medical reports enclosed with the application referred to specific injuries of the left wrist and hand; it was these injuries to which the insurer admitted liability and as to which a dispute arose concerning the precise extent of the injury. The insurer offered to accept a degree of permanent impairment calculated at 12%; the applicant sought a payment calculated by reference to 18%. These figures were supported by medical reports. [30] As the primary judge found, this material defined the proper scope of the referral. However, the referral by the Registrar omitted reference to the left wrist. The insurer accepted that this was an error, as was noted by the Appeal Panel. However, the Appeal Panel did not see fit to include an assessment of the wrist injury in its review. The trial judge held that it should have done and that was the basis on which she set aside its decision. … [33] Without attempting to set out the detail of the Guidelines and the AMA Guides, to which the Court was not taken, it is sufficient to note that the medical assessment certificate was required to identify the specific body part or system, together with the "chapter, page and paragraph number in WorkCover Guides" and the "chapter, page, paragraph, figure and table numbers in AMA 5 Guides". Identification of the extent of impairment by reference to individual body parts and body systems is required by the Guidelines and Guides which the statute obliges the AMS to follow. ... [35] Further, it is apparent that the referral by the Registrar was in a standard form, as was the application to resolve a dispute. There was no suggestion that these forms were not in appropriate terms. It follows that the primary judge was correct in finding that the Appeal Panel (subject to the identified concession which it was held should have been taken into account in assessing the claim) was correct in concluding that Dr Machart's assessment contained demonstrable error in failing to be limited to the terms of the claim. Conclusions [36] The failure of both parties to raise with the Registrar the error in excluding the left wrist is inexplicable. The error first occurred in the referral dated 1 September 2017. The referral made in 2019 identified the date of the request as 13 March 2017 (when it should have been 13 March 2019), but thereafter contained the same error. Indeed, the only variation to the earlier referral was the inclusion of the certificate granted on 13 October 2017 and two subsequent documents. Further, the earlier medical assessment certificate contained the same assessment of severely diminished movement in the elbow and shoulder and in other fingers to which objection was taken when those assessments appeared in the further certificate issued on 15 May 2019. In short, there were numerous opportunities for both parties to raise the issues which have now become the subject of ongoing disputation in the courts. The fact that neither party did so in what is a relatively small claim, would provide a sound reason for refusing leave to appeal even if error had been demonstrated on the part of the primary judge which, in my view, it has not. It has not been necessary to repeat the reasoning of the primary judge in full, but it provides further arguments in support of these conclusions. … [38] Leave should be granted for two limited purposes. The first is to make an order setting aside the decision of the arbitrator, so as to permit further steps to be taken in the Commission. The second is to remit the matter with a direction that any further referral to be made to an AMS should identify the left wrist as an affected body part. That is appropriate because it is likely that the Appeal Panel took a stricter view of its function, which did not allow it to extend the scope of the assessment required by the Registrar's referral, even with consent of both parties. It is not necessary to determine whether it was correct in that regard, because there is no challenge to the primary judge's finding that led to the setting aside of its decision. However, the Registrar's referral did not cover the full extent of the dispute. … [43] LEEMING JA: I agree with the reasons of Basten JA and the orders he proposes. I would add the following by way of emphasis, in light of the different approach adopted by McCallum JA. [44] 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. … [46] The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates' application; indeed, it was why the documents setting out both sides' claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a "medical dispute" because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute. … [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. [49] The document signed by the Registrar's delegate and dated 1 September 2017 described itself as a "Referral for Assessment of Permanent Impairment to Approved Medical Specialist". Its first numbered subheading was "Medical Dispute Referred for Assessment" and there it stated, wrongly, "Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)". That was wrong insofar as it did not include Mr Skates' wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. The Appeal Panel was correct to state that the Approved Medical Specialist had gone beyond assessment of the medical dispute which had been referred to him."
3. In dissent, McCallum JA stated at [51], [76], [80] and [82]-[83]: "[51] MCCALLUM JA: The applicant seeks leave to appeal from a decision of the Supreme Court (Adamson J) concerning the determination of his entitlement to compensation for permanent impairment resulting from injuries he sustained when he fell off a ladder at work. The proposed appeal raises a narrow but important question concerning the scope of the medical assessment that was permitted to be undertaken by an approved medical specialist to whom a medical dispute was referred by the Registrar of the Workers Compensation Commission under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act). The question is whether the medical specialist was confined to an assessment of the "body part/s referred" by a delegate of the Registrar. In my view, the answer is that he was not. The task for the medical specialist was to assess permanent impairment, not body parts. … [76] Nowhere in those provision or indeed anywhere in either statute is there any reference to the assessment or referral of "body parts" or "body systems". The process contemplated by the legislation is that the Registrar will refer a "medical dispute", which means a dispute about a "matter" specified in the definition in s 319. The task of the approved medical specialist is to certify his or her assessment with respect to the "matter" referred; that is the statutory function to be performed. The certificate is then conclusive as to any of the "matters" listed in s 326 which are the subject of the certification. As already noted, they include "the degree of permanent impairment of the worker as a result of an injury". … [80] The comparison between a referral (drawn by an employee of the Commission) and initiating process (which is drawn by a claimant) was inapt. The document that should be regarded as being in the nature of an initiating process is the worker's application to resolve a dispute. In any event, there was no suggestion in Aircons that there was any discrepancy between the terms of the referral and the terms of the worker's application to resolve a dispute. The point of Master Malpass' remarks was to rein in a rogue medical specialist who went beyond the terms of the referral agreed between the parties. The decision does not hold that the Registrar has power to circumscribe the scope of the medical dispute between the parties. … [82] Since preparing this judgment, I have had the benefit of reading the judgment of Basten JA in draft. His Honour's reasoning has prompted me to clarify my position as to the status of the Registrar's referral. I do not mean to suggest that an approved medical specialist is free to ignore the terms of the referral. However, the medical dispute referred must be the medical dispute the parties have sought to have resolved." [83] Here, the applicant sought resolution of a medical dispute as to the degree of impairment in the body parts and systems specified in part 5.6 of the application to resolve a dispute, which were "left upper extremity, joint ring finger and scarring." The change in punctuation in the referral ("Left Upper Extremity (joint ring finger), scarring") had the effect of excluding not only the wrist but the whole of the left upper extremity apart from "joint ring finger" and scarring. The Registrar's punctuation should not have determined the parameters of the medical dispute. In my view, the medical dispute referred, and indeed the only medical dispute the Registrar had power to refer to the approved medical specialist, included a dispute as to impairment in the left upper extremity."
4. The result was that, despite the appeal ultimately being dismissed, the matter was remitted to the President of the Personal Injury Commission for determination according to law.

The grounds of judicial review

1. The grounds of Judicial Review set out in the plaintiff's summons are as follows: 1. The Appeal Panel erred in point of law and made a jurisdictional error when it held that the AMS had erred by assessing impairment of the right upper extremity on the basis of loss of range of motion; 2. The Appeal Panel erred in point of law and made a jurisdictional error when it held that the AMS had erred by assessing impairment in the left elbow and left wrist; 3. The Appeal Panel erred in point of law and made a jurisdictional error when it held that the AMS was restricted by the referral to only assessing the left shoulder and CRPS in the right arm; 4. The Appeal Panel erred in point of law and made a jurisdictional error when it held that the AMS could not assess the impairment resulting from CRPS when the AMS was required to accept that the injury was CRPS, and he was required to assess the degree of impairment resulting from that injury; and 5. The Appeal Panel erred in law and made a jurisdictional error when it held that the AMS was confined to assessing the body parts mentioned in the Referral and not the degree of impairment resulting from the injuries as agreed between the parties being the neck, right and left shoulder and right and left arms, wrists and hands as set out in the ARD and not disputed in the Reply.
2. As can be seen from these Judicial Grounds, the central issue of this matter is the scope of the medical dispute. There are two positions taken by the plaintiff. Firstly, grounds (1)-(3) argue that the AMS was entitled to look beyond the scope of the dispute defined by the referral form ("scope of the dispute"). Grounds (4)-(5) argue that, in what may be viewed as a fallback position, that the Appeal Panel erred when it did not find that the AMS was required to accept that the plaintiff had the injuries deposed in the referral form and was confined to assessing the permanent impairment resulting from those injuries ("nature of the dispute"). I will group the submissions of the parties accordingly.

Judicial grounds (1), (2) and (3) - Scope of the dispute

The plaintiff's submissions

1. The plaintiff submitted that the initiating ARD made a claim in respect of an injury which was described as including the right shoulder, right arm, wrist and hand. The claim for permanent impairment compensation claimed impairment in respect of the right upper extremity. The medical dispute was the extent of the impairment in the body parts claimed as a result of the injuries alleged. There was no dispute about the injury, only about the extent of the impairment.
2. The status of the Registrar's referral was considered recently by the Court of Appeal in Skates. In that matter, the appellant had made a claim for permanent impairment compensation in respect of injuries to the left wrist, left ring finger and scarring. The AMS had assessed an impairment in the entirety of the left upper extremity on the basis that the appellant now had a functionally useless left arm. The Appeal Panel had found a demonstrable error by the AMS on the basis that the referral had only requested an assessment of the ring finger and scarring. Before the primary judge, the employer had conceded that the Appeal Panel should have included an assessment of the left wrist because there was no dispute about the injury to that body part. The worker appealed, arguing that, properly read, the dispute had been in respect of the impairment in the entirety of the left upper extremity. The appeal was unsuccessful with Basten JA and Leeming JA both holding that the medical dispute had only been in respect of the wrists and ring finger. McCallum JA, in dissent, considered that the dispute had been in respect of the entirety of the left upper extremity.
3. With respect to the status of the referral document, Basten JA said (at [35]) the primary judge was correct in finding that the Appeal Panel (subject to the identified concession which was held should have been taken into account when assessing the claim) was correct in concluding that Dr Machart's assessment contained demonstrable error in failing to be limited to the terms of the claim. His Honour considered that other than the failure to include the left wrist, the referral had been consistent with the terms of the claim. It is clear from His Honour's reasoning that the limitation placed on the AMS was from the nature of the medical dispute and not from the wording of the referral.
4. Leeming JA said at [44] "the starting point is a 'medical dispute.' The term is defined by reference to the existence of a 'dispute between a claimant and a person on whom the claim is made' about any 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 or competing claims. His Honour went on to consider that the dispute had been crystalised by the correspondence attached to the plaintiff's application. His Honour observed (at [48]) 'the paperwork associated with the administration of the legislation seems to have led to a tendency to give to that document comprising the 'referral' to an AMS a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. 'His Honour observed (at [51]) that the purpose of the statutory regime was to resolve a medical dispute and that 'a dispute is identified by the disputants' competing claims.'
5. McCallum JA took a different view as to the scope of the dispute as identified by the ARD and the medical reports. She considered that the terms of the referral did not reflect Mr Skates' case. Her Honour held (at [82]) that the medical dispute referred must be the medical dispute that the parties have sought to have resolved. She said (at [83]) "in my view, that medical dispute referred, and indeed the only medical dispute the Registrar had power to refer to the AMS, included a dispute as to the impairment in the left upper extremity".
6. All of the judges were of the view that the role of the AMS was to make an assessment to resolve the dispute between the parties. The dispute was to be determined by reference to the claim, the medical evidence relied upon and the ARD. The Registrar's only power was to refer that dispute. The Registrar did not have the power to otherwise constrain the AMS when performing their role in accordance with the Workplace Injury Act.
7. In this matter, the relevant claim was for the entirety of the right upper extremity including the shoulder, wrists and hands. The report of Dr Bodel had made an assessment of the entirety of the right upper extremity and in particular made assessments of the right shoulder and the right wrist. The employer had not disputed any of the injuries. The dispute had been limited to the degree of permanent impairment that resulted from those injuries.
8. Chapter 2 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment provides that the impairment assessment of the upper extremities is to be carried out in accordance with Chapter 16 of AMA-5. When carrying out the assessment, the AMS applied Chapter 16 to assess the loss of range of movement in the right upper extremity. That assessment was in accordance with the Guidelines. Otherwise, the AMS assessed the tremor by analogy applying Chapter 15. The employer did not challenge that methodology but merely argued that the AMS was only entitled to assess the right upper extremity applying Chapter 17.
9. It is the plaintiff's submission that the Appeal Panel considered the question of the assessment of the right upper extremity (at [66]-[72]). The Appeal Panel took the view that the referral in s 325 to 'details of the matters referred for assessment' is a reference to the body parts of systems identified in the referral form. The Appeal Panel took the view (at [68]) that the only referral to the AMS was for a CRPS in the right arm. It considered that there was no other referral in respect of the assessment of this limb. More particularly, at [72], the Appeal Panel expressly rejected the contention that the AMS was entitled to assess the plaintiff with reference to injury in the body parts and systems in respect of which the claim was originally made in the ARD, namely, cervical spine, left upper extremity, right upper extremity, nervous system and chronic pain. The Appeal Panel was of the view, incorrectly, that the AMS was restricted by the terms of the referral form completed by the Delegate.
10. Under the statutory scheme, the Registrar only has the power to refer a dispute. The Registrar does not have the power to determine questions of injury or to determine any aspect of the dispute. Accordingly, to the extent that any referral is inconsistent with the medical dispute between the parties, it is the terms of the dispute which prevail and not the terms of the referral form. This much is clear from their Honours' reasoning in Skates.
11. The plaintiff submitted that the Appeal Panel was wrong in law when it held that it was the terms of the referral which prevailed, and it rejected the submission that the AMS was to assess the dispute by reference to the claim originally made in the ARD. The Registrar did not have the power to in effect direct that the AMS could only carry out an assessment applying Chapter 17 of the Guidelines.
12. The Appeal Panel misinterpreted the effect of the referral form. The effect of the referral was that the parties had agreed that the plaintiff's injury had included CRPS. The task for the AMS would be to assess the impairment that results from the fact that the plaintiff had suffered from CRPS as a result of the work injury.
13. An assessment of impairment of the upper extremity is carried out applying Chapter 16 of AMA-5. In circumstances where the criteria for CRPS persist at the time of the examination by the AMS, Chapter 17 provides for an assessment whereby two assessments are able to be combined. Those two assessments are an assessment on the basis of loss of range of movement and a separate assessment for sensory deficit and pain. Both are carried out applying Chapter 16. However, in the absence of a finding of CRPS, the two separate assessments cannot be combined. Properly read, the Guideline does not prevent an assessment on the basis of loss of range of movement in respect of the consequences of a previously diagnosed CRPS. The chapter allows an assessment whenever there is a loss of range of movement as a result of the compensable work injury. There was no error by the AMS when he made that assessment.
14. In relation to Judicial Ground (2), the plaintiff submitted that the ARD alleged injury to the left upper extremity including the shoulder, wrist and hand. The claim for permanent impairment compensation was also in respect of the left upper extremity as a whole.
15. The AMS assessed the left arm in the same way that he assessed the right. He considered the loss of range of movement in the arm and made an additional allowance because of the tremor in the arm.
16. The employer did not challenge the methodology or the accuracy of the assessment. The challenge was again limited to an assertion that because of the terms of the referral document, the AMS was only entitled to make an assessment of the loss of movement in the left shoulder. As with the right shoulder, the Appeal Panel did not refer to and consider the terms of the claim made either in the claim letter or in the ARD. The Appeal Panel again considered that the referral form defined the terms of the medical dispute and in effect where there was inconsistency between the other documentation and the referral form, it was the referral form which prevailed. As with the right upper extremity, this approach was wrong in law.
17. In relation to Judicial Ground (3), the Appeal Panel held that, because of the terms of the referral, the AMS could only assess impairment in the left shoulder when assessing the left upper extremity. It also found that an assessment of the right arm could only be made on the basis of the Chapter applying to CRPS and not with respect to any other chapter. The Appeal Panel was of the view that because of the terms of the referral form the only assessment that could be made in the right arm was for a CRPS in the right arm.
18. The medical dispute as defined by the claim and the ARD was in respect of the impairment in the left and right upper extremities as a result of accepted injury to the left and right arms, shoulders, wrists and hands. That was the only dispute which the delegate of the Registrar could refer for assessment. It was that dispute which the AMS assessed.
19. The delegate did not have the power to redefine the dispute or to refer a different dispute for assessment. The delegate's only power was to refer the dispute which existed between the parties.
20. The reference to CRPS in the referral form is problematic. The referral form merely refers to 'body part(s) referred.' CRPS is not a body part. The body part referred is the right arm. The ARD had not claimed that the injury was CRPS. It is accepted that Dr Bodel had found that the criteria for an assessment based on CRPS were present and had assessed impairment applying Chapter 17.
21. The referral form had been amended at the request of the employer. It was the employer who wished the referral to specifically refer CRPS for assessment. That amendment can only have one of two meanings.
22. The first and most likely meaning is that the injury to the plaintiff's right upper extremity was CRPS. It is accepted that the reference to CRPS should be read as a reference to CRPS. If it is accepted that the concession concerned injury then the task for the AMS was to assess the impairment that resulted from that injury. That would include an assessment of loss of range of movement. The other alternative is that the employer accepted that the criteria for CRPS in Chapter 17 had been met. In those circumstances, the AMS was then free to make an assessment of the right upper extremity involving both restriction of range of movement and the nerve restriction, applying Chapter 17.
23. The Appeal Panel had interpreted the referral as meaning that the AMS could only assess applying Chapter 17 and then only if the criteria for CRPS were independently established at the examination by the AMS. This was not what the referral said and it was not an interpretation that was available to the Appeal Panel.
24. The dispute between the parties was for the assessment of WPI resulting from injuries to the left and right upper extremities and that is what the AMS assessed. The Appeal Panel erred in law when it held otherwise.

The employer's submissions

1. The employer submitted that each of the grounds in the summons stems from the same central issue, namely, what are the bounds of the medical dispute referred to the AMS. It is convenient to address that issue in broad terms before turning to the specific grounds of review.
2. In Skates, the Court of Appeal recently emphasised the importance of understanding the bounds of the relevant medical dispute. At [29], Basten JA referred to the medical dispute arising from medical reports enclosed with the application, concluding at [30] that "this material defined the proper scope of the referral." His Honour also upheld the primary judge's conclusion "that [the AMS's] assessment contained demonstrable error in failing to be limited to the terms of the claim": at [35].
3. Leeming JA, agreeing with Basten JA, held at [43]: "infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute."
4. While McCallum JA dissented in the result (in the sense that her Honour reached a different conclusion as to what the medical dispute was), Her Honour held at [82]: "I do not mean to suggest that an AMS is free to ignore the terms of the referral. However, the medical dispute referred must be the medical dispute the parties have sought to have resolved." To the extent Her Honour's interpretation can be said to give rise to the potential for a broader understanding of the medical dispute, that was in the context where the worker in that case had specified injuries in his application to the Commission and where his description of those injuries was "not disputed by the insurer" (at [54]).
5. Here, contra the plaintiff's written submissions, the medical dispute "crystallised in the documents" which "defined the proper scope of the referral", being "the medical dispute the parties have sought to have resolved", was entirely consistent with the terms of the referral itself, having regard to the full factual background.
6. The starting point in this respect is the plaintiff's original claim on this issue, made on 4 February 2020. That claim was based on two reports by Dr Bodel dated 25 November 2019, which were included as part of the plaintiff's ARD. In those reports, while Dr Bodel considered the range of movement in the plaintiff's shoulders and wrists (noting no restriction of elbow movement), he used that consideration to opine as to a diagnosis of CRPS in relation to the plaintiff's right upper extremity and impairment in his left shoulder. Those diagnoses then formed the basis for his assessment of the plaintiff's degree of permanent impairment. Specifically, Dr Bodel assessed the plaintiff's degree of permanent impairment in relation to his right upper extremity on the basis of the diagnosis of CRPS and his degree of permanent impairment in relation to his left shoulder. No separate assessment was made in relation to range of motion alone in relation to the right upper extremity, and no assessable impairment was identified in relation to the plaintiff's left elbow or wrist.
7. Dr Bodel's assessment formed the basis of the plaintiff's claim to GIO on 4 February 2020 and his ARD.
8. That claim, incorporating the underlying assessment, is the claim to which the employer, through its insurer, responded, by way of: 1. the s 78 notice dated 6 April 2020; 2. the s 78 notice dated 17 August 2020; 3. the independent medical investigations GIO obtained which underlay the s 78 notices; 4. the early proposal as to the correct terms of the referral to the AMS made by its solicitor; and 5. its reply to the ARD (Barlow, Annexure G, which included the correspondence concerning the correct terms of the referral.
9. The claim and the s 78 notices (including the independent medical investigations underlying them) are particularly critical, because a dispute about a claim for lump sum compensation could only be referred to the Commission, where there was either a dispute as to liability or a failure to determine a claim: Workplace Injury Act s 289(3). That is, the dispute which was referred could not go beyond the claim itself.
10. Having regard to the above, on the basis of the reasons given by each of Basten JA and Leeming JA in Skates, the medical dispute as crystallised between the parties was precisely that reflected in the amended referral. In relation to the plaintiff's right upper extremity, that was limited to CRPS. In relation to the plaintiff's left upper extremity, it was limited to his shoulder.
11. Even if McCallum JA's judgment does give rise to a broader interpretation of the medical dispute as referred, her Honour's reasons do not assist the plaintiff. As set out above, the dispute cannot be broader than the claim itself (that is, the claim as originally made), and her Honour does not suggest otherwise.
12. While it is true that, in his ARD, the plaintiff identified, relevantly, the "right upper extremity" and the "left upper extremity" as systems in respect of which he had claimed, an important distinction between this case and the circumstances of Skates is that the employer did dispute the descriptions of the relevant injuries, and did so immediately: first in correspondence, and then in its reply to the ARD. Moreover, the plaintiff, through his solicitors, agreed to the terms proposed the employer, even before it filed its reply to the ARD. He did not object when the employer's solicitor drew attention to the agreed terms of the referral, and he did not object to the referral as amended.
13. As such, even if the plaintiff could rely on a claim in his ARD which travelled beyond the claim described in Dr Bodel's reports which formed the basis of his claim for lump sum compensation, which is not a course available to him in light of s 289 of the Workplace Injury Act - or, to put it another way, even if it is the terms of the ARD which should be treated as setting the terms of the medical dispute - the employer's actions in immediately seeking a correction of the terms of the referral and the plaintiff's agreement to that correction constituted an effective amendment of the claim as made in his ARD.
14. In Skates, both Basten JA and Leeming JA considered it material that the parties had ample opportunity to ventilate the dispute: at [36], [43].
15. The AMS made a positive finding that the plaintiff "did not satisfy the diagnostic criteria for CRPS". That resolved the aspect of the medical dispute that related to the plaintiff's right upper extremity, notwithstanding the AMS' findings in relation to loss of range of motion, because there was no separate referral of the plaintiff's impairment in his right upper extremity on the basis of a loss of range of motion.
16. The Appeal Panel accepted that, in relation to the right limb, "the only referral of [the plaintiff] to the AMS was for a CRPS in the right arm" (at [68]) and, consequently, found that the AMS erred in making an assessment on the basis of loss of range of motion in relation to the right limb (at [74]).
17. In relation to Judicial Ground (2), the employer submitted that the Appeal Panel correctly identified that Dr Bodel "assessed the left upper extremity as a result of loss of range of movement in the shoulder only" and that the AMS's assessment went beyond that (at [64]). The Appeal Panel further identified that the terms of the referral, vis-à-vis the left upper extremity, were limited to the shoulder.
18. In the circumstances, the Appeal Panel was correct to find "that the MAC contains a demonstrable error in that the AMS has assessed the left upper extremity by reference to loss of range of motion in the left elbow and left wrist, and for sensory symptoms, when the referral was for the left shoulder only". While the Appeal Panel there made reference only to the terms of the referral, that should be understood in light of its correct identification of the limits of the claim as made by the plaintiff, that is, to the terms of the assessment made by Dr Bodel.
19. In relation to Judicial Ground (3), the employer submitted that the Appeal Panel accepted, correctly, that, in relation to the right upper extremity, the "only referral of the respondent to the AMS was for a CRPS in the right arm. There was no other referral in respect of the assessment of this limb". The referral, in relation to the left arm, "was for the left shoulder only". As the Appeal Panel observed, the assessment of the AMS in relation to the left shoulder equated to the same percentage WPI as the assessment by Dr Bodel (though a 1% difference in the calculation of upper extremity impairment).
20. The Appeal Panel also acknowledged that the plaintiff's cervical spine was also the subject of the referral to the AMS, but this was not an issue on appeal.

Resolution

1. As stated above, the central issue of this judicial review is the scope of the 'medical dispute' which was referred to the AMS. The recent Court of Appeal decision of Skates provides guidance on this subject. However, for the reasons I will outline below, the factual circumstances of the case before this Court provide a significant point of difference.
2. The term 'medical dispute' is defined by s 319 of the Workplace Injury Act, reproduced earlier in this Judgment. In Skates, His Honour found that the scope of the dispute between the parties was crystallised by the correspondence attached to the ARD which set out each side's claim (at [46]).
3. From my reading of the evidence, the scope of the dispute can first be ascertained by the report of Dr Bodel. In his report, he assesses the plaintiff's WPI with respect to injuries sustained to the right upper extremity, left upper extremity, cervical spine and CRPS. In the plaintiff's ARD, each of these areas of injury were listed as the 'systems claimed' in the dispute. I interject here that the terms 'body parts' and 'systems' are used interchangeably and are problematic as these terms do not appear in the Statute. However, identification of the extent of impairment by reference to individual body parts and body systems is required by the Guidelines and Guides which the statute obliges the AMS to follow: see Skates as per Basten JA at [33].
4. In the employer's two s 78 notices, while the fact that the plaintiff did suffer an injury on 18 October 2015 was not disputed, the extent and nature of each of those injuries was disputed. The Delegate referred the dispute listing the 'body parts' of the dispute in correspondence with the plaintiff's ARD. The terms read: "Cervical Spine, Left Upper Extremity, Right Upper Extremity, Nervous System, Chronic pain".
5. On 14 October 2020, following email correspondence from the employer's representatives, the plaintiff, through his solicitor, agreed that the 'body parts' listed on the referral form should read: "Cervical Spine, Chronic Regional Pain Syndrome (right arm), Left Upper extremity (shoulder)." It is quite clear through a comparison between the original referral and the amended referral that the dispute as to right upper extremity was now confined to a consideration of CRPS and with regards to the left upper extremity the dispute was confined to the left shoulder. In other words, by consent of the parties, the scope of the dispute had been narrowed.
6. In assessing the plaintiff with respect to Ch 17 of the guidelines, the AMS made a finding that the plaintiff "did not satisfy the diagnostic criteria for CRPS". That resolved the aspect of the medical dispute that related to the plaintiff's right upper extremity. The AMS then provided an impairment rating for loss of range of motion to the right upper extremity, a consideration outside of Ch 17 of the Guidelines and therefore outside of the scope of the dispute as per the consent agreement of the parties: see Ex A(2), 498. With regards to the left upper extremity, the AMS made an assessment by reference to loss of range of motion in the left elbow and left wrist, and for sensory symptoms, when the referral was confined to an assessment of the left shoulder only.
7. On 27 January 2021, the plaintiff requested that the Proper Officer amend the terms of the referral to read as the original referral read, listing the injuries as "Cervical Spine, Left upper extremity, right upper extremity, nervous system and chronic pain". However, by this time the AMS had already conducted their assessment with regards to the amended referral. This request was refused by the Appeal Panel who stated that the original referral no longer existed as it had been amended (Ex A(2), 452). In my view, the Appeal Panel was correct in making this decision as the legislation stipulates that there can be only one assessment of the degree of permanent impairment that results from an injury or collection of injuries arising from a single accident: see s 322A of the Workplace Injury Act.
8. In its decision, the Appeal Panel found that in relation to the right upper extremity, the only referral of the plaintiff for assessment by the AMS was for CRPS and, consequently, found that the AMS erred in making an assessment on the basis of loss of range of motion in relation to the right limb: see Appeal Panel decision at [72]. In their decision, the Appeal Panel also found (at [64]) that in relation to the plaintiff's left upper extremity, that as per the referral, the assessment was to be confined to the shoulder only and the AMS's assessment went beyond that.
9. As can be seen above, the factual circumstances of the present case differentiate from that of Skates. In Skates, a significant factor in Basten JA's (with whom Leeming JA agreed) decision to remit the matter for redetermination was that, through the specific wording in the referral form completed by the Delegate, the dispute was defined in a way that omitted a key body part of the plaintiff's claim for assessment: See Skates at [38]. This was also a significant factor in McCallum's dissenting decision (at [51]), in which Her Honour found that the Registrar was not confined to an assessment of the body part/s referred by the Delegate and could be informed by the ARD and the attached correspondence between the parties.
10. In my view this does not apply in a situation, such as in the present case, where the parties have expressly agreed to the terms of the dispute. To say otherwise would be to undermine the ability of parties to mediate and come to an agreement as to the boundaries of the dispute. This is a key characteristic of administrative law that enables the quick and efficient resolution of disputes.
11. In this case, the parties expressly agreed to the narrowing of the terms of the dispute. Under s 321 of the Workplace Injury Act, it is the statutory duty of the Delegate to refer the medical dispute to the AMS. The Delegate correctly adopted the exact words of this agreement in the terms of the referral form to the AMS as the parties had agreed to define the terms of the dispute in that way. In this case, the dispute between the parties was 'crystallised' by the consent agreement.
12. While it is true that one must look beyond the referral form to be informed as to the true nature of the medical dispute, one also cannot ignore the terms set out in the referral form: See Skates at [82] as per McCallum JA. Furthermore, in my view the importance of the referral form is exacerbated where, such as in the present case, the parties had agreed to the terms of the referral.
13. As such, it is my view that, in accordance with the decisions of Basten and Leeming JJA in Skates, the Appeal Panel was correct to state the AMS should have been constrained to an assessment within the scope of the referral. Judicial Grounds (1), (2) and (3) fail to establish error on behalf of the Appeal Panel.

Judicial Grounds (4) and (5) - Nature of the dispute

The plaintiff's submissions

1. The plaintiff submitted that if the referral form was to be given the standing that was given to it by the Appeal Panel, then the form could only be read as involving an agreement between the parties that the plaintiff suffered from CRPS in the right upper extremity. When the AMS examined the plaintiff, he did observe that at the time of his examination the plaintiff did not satisfy the diagnostic criteria in Table 17.1 of the Guidelines. He accepted, however, that the plaintiff had developed symptoms suggestive of CRPS following the surgery to decompress the bilateral carpal tunnel syndrome. As previously outlined, he then went on to assess impairment on the basis of loss of range of movement with an additional allowance for the tremor.
2. In their decision, the Appeal Panel found (at [68]) that the only referral was for a CRPS in the right arm. It did not go on to consider what that referral actually meant. It merely referred to Part 17 of the Guidelines. It then held without further reasoning that because the plaintiff did not satisfy the diagnostic criteria for CRPS, the AMS was not at liberty to go beyond the terms of his referral and determine permanent impairment by way of analogy. The Appeal Panel does not explain why or how the referral could be interpreted in the way that it did. It also erred when it said that the AMS had assessed the right arm by way of analogy. The assessment of loss of range of movement was not an analogy and the AMS did not conduct all of the assessment by analogy. In any event this was not one of the grounds of appeal and the Appeal Panel erred when it considered a matter that was not before it.
3. The bulk of the assessment in the right upper extremity was for loss of range of movement. It was only the tremor that was assessed by way of analogy.
4. The employer did not dispute that this was an appropriate way to assess the tremor. The employer's sole position was that the AMS could not assess the right arm at all once he had found that the criteria in Table 17.1 of Chapter 17 of the Guides did not exist on the day of the assessment. No explanation was ever given as to why this would be so other than a view that the Delegate had the power by means of the referral form to restrict the medical dispute referred to the AMS in a way that meant something other than the medical dispute between the parties which was referred for assessment. The delegate did not have the power to say that an assessment could only be carried out applying Chapter 17. By finding that the AMS was restricted in that way, the Appeal Panel made an error of law.
5. In relation to Judicial Ground (5), the plaintiff submitted that the ARD had claimed injuries to the entirety of both upper extremities. Those injuries are not disputed. The medical dispute was the degree of impairment that resulted from those injuries. It was only that dispute which could be referred to the AMS. The Delegate's only power was to refer that dispute for assessment. The Appeal Panel proceeded on the basis that it was only specific matters referred to in that part of the referral form labelled 'body parts referred' that could be considered by the AMS. It did this without any consideration of what constituted the dispute or what the referral powers of the Delegate were.
6. It also failed to conduct any analysis of what was actually meant by the referral. Rather, without reference to any of the other material, the Appeal Panel held that the AMS could only make an assessment of the degree of impairment resulting from the accepted injury to the right upper extremity if he found signs and symptoms sufficient to make a diagnosis of CRPS applying Table 17-1. No reasons were given as to why this is so. Similarly, the Appeal Panel held that the AMS could only assess the left shoulder despite the fact that the accepted injury was to the entirety of the left upper extremity. Again, no reason was given as to why this is so. As has been explained, the task for the AMS was to assess the impairment resulting from the accepted injuries. This is precisely what the AMS did. The Appeal Panel erred in law when it held otherwise and particularly when it held that the AMS was constrained to making an assessment in respect of only the left shoulder and CRPS.

The employer's submissions

1. The employer submitted that it had not at any stage accepted Dr Bodel's diagnosis of CRPS. In the s 78 notice dated 6 April 2020, GIO referred to a medical report of Dr Rimmer that concluded that the plaintiff had 0% WPI as a result of the October 2015 injury.
2. In the s 78 notice dated 17 August 2020, GIO also referred to a subsequent report of Dr Mellick. The consequence of the s 78 notices was that Dr Bodel's diagnosis of CRPS was very much in dispute as between the parties.
3. The parties corresponded about the terms of the referral and agreed that they should reflect the question of whether or not the findings made by Dr Bodel were correct. The email from the employer, by its solicitor, to the plaintiff's representatives on 13 October 2020 expressly stated, after setting out terms of a proposed referral (with which the plaintiff subsequently agreed): "Dr Bodel assessed the cervical spine, CRPS (Ch 17 SIRA Guides) and the left shoulder. The proper terms of referral for these injuries are noted above."
4. As such, the question of whether that diagnosis was correct was part of the medical dispute referred to the AMS, whether on the terms of the referral or otherwise.
5. As the Appeal Panel noted, the AMS had concluded that the plaintiff did not meet the diagnostic criteria for CRPS. This is consistent with the view expressed at all stages by employer and its representatives.
6. In relation to Judicial Ground (5), the employer submitted that the terms of the referral were agreed between the parties, and accurately reflected the terms of the dispute: broadly, whether or not the injuries diagnosed and assessed by Dr Bodel existed and, if so, what was the appropriate assessment of the plaintiff's degree of permanent impairment. In those circumstances, the Appeal Panel was correct in determining "[t]he AMS is bound by the terms of the referral of the matter to him" (at [72]), particularly when understood in the context, set out above, of the medical dispute as crystallised between the parties, which was accurately reflected in the referral.

Resolution

1. In these Grounds, the plaintiff submits that the Appeal Panel fell into error when it did not find that the AMS was required to accept that the plaintiff had the injuries deposed in the ARD and simply assess the degree of impairment resulting from these injuries.
2. For the following reasons, I do not accept these submissions. The starting point is McCallum JA's decision in Skates where at [82] Her Honour states "I do not mean to suggest that that an approved medical specialist is free to ignore the terms of the referral. However, the medical dispute referred must be the medical dispute the parties have sought to have resolved." By extension, this can be taken to mean that while the AMS may be informed as to the nature of the dispute from the ARD and other correspondence between the parties, they cannot ignore the referral form. As stated above, in my view, the importance of the referral form is amplified when the parties have expressly agreed to its construction as is the case here.
3. When the plaintiff's ARD and the employer's response to it are considered, the s 78 notices lodged by the employer on 6 April and 17 August 2020 state that while it is not disputed that the plaintiff suffered injuries on 13 October 2015 the nature and extent of these injuries is in dispute (Ex A(1), 33, 61). In particular, the plaintiff's diagnosis of CRPS is disputed by the employer.
4. The amended referral form sets out s 319(c) of the Workplace Injury Act as one of the 'matters' of the medical dispute to be assessment by the AMS. Section s 319(c) involves a consideration of the degree of permanent impairment of the worker as a result of the injury. It was therefore the task of the AMS to assess the permanent impairment resulting from the plaintiff's injuries in accordance with the corresponding chapter, page or paragraph number of the Guidelines and AMA5 Guides that correspond with the 'body parts/systems' set out in referral form as agreed by the parties: See Skates at [33] as per Basten JA.
5. In relation to CRPS, the task of the AMS was to assess the plaintiff in accordance with Ch 17 of the SIRA guidelines, as specified in the agreed referral form which stated "Chronic Regional pain syndrome (right arm)" (Ex A(2), 414). The AMS made an assessment that the plaintiff did not satisfy the diagnostic criteria for CRPS (Ex A(2), 420). Put differently, the AMS assessed the plaintiff to have 0% WPI in relation to CRPS in the right upper extremity. The AMS was not required to make any further assessments and in doing so, fell into error. In my view the Appeal Panel was correct in making this finding.
6. In relation to the left upper extremity, the task of the AMS was to assess permanent impairment resulting from the plaintiff's injury in an assessment that was to be confined to a consideration of the shoulder region. This is articulated in the referral form to which the parties agreed which states "Left upper extremity (shoulder)" (Ex A(2), 414). The AMS' assessment included the plaintiff's right wrist and elbow, areas outside of the agreed scope of the dispute (Ex A(1) 422). The Appeal Panel correctly found that in doing so, the AMS fell into error, and concluded that the correct WPI for the left upper extremity was 2%.
7. In regards to Judicial Ground (5), I do not accept the plaintiff's submission that the Appeal Panel erred in law and made a jurisdictional error when it held that the AMS was confined to assessing the body parts mentioned in the Referral and not the degree of impairment resulting from the injuries as agreed between the parties being the neck, right and left shoulder and right and left arms, wrists and hands as set out in the ARD and not disputed in the Reply.
8. For these reasons, it is my view that Judicial Grounds (4) and (5) fail to establish error on behalf of the Appeal Panel.

Result

1. The result is that the application for judicial review fails. The summons filed 21 May 2021 is dismissed.

Costs

1. Costs are discretionary. Costs follow the event. The plaintiff is to pay the first defendant's costs on an ordinary basis.

The Court orders that: (1) The summons filed 21 May 2021 is dismissed. (2) The plaintiff is to pay the first defendant's costs on an ordinary basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2022