Skates v Hills Industries Ltd [2021] NSWCA 142 (14 July 2021)

The Facts:

Mr Skates suffered a serious wrist fracture and injury to his left ring finger when he fell off a ladder during the course of his employment as an electrician. A claim was made for the left wrist, the left ring finger, and scarring.

A medical dispute as to the degree of permanent impairment resulting from those injuries was referred by the Registrar of the Workers Compensation Commission (as it then was) to an approved medical specialist (AMS – as he then was) who concluded that the applicant’s left upper extremity (left arm) had become functionally useless and assessed whole person impairment (WPI) of 61%. This assessment included the shoulder, elbow and other fingers and thumb including complex regional pain syndrome. The terms of the referral however were limited to the left ring finger and scarring, omitting the wrist.

The Employer appealed the Medical Assessment Certificate (MAC), primarily on the basis that the AMS had erred in assessing body parts that were not referred to him, although agreed that the wrist was omitted in error and should have been included. The Appeal Panel agreed, and revoked the MAC, and issuing a new MAC at 7% WPI- though surprisingly still omitted the left wrist.

An Arbitrator of the Commission thereafter issued a Certificate of Determination to the effect that Mr Skates suffers 7% permanent impairment resulting from the injury and that he has no entitlement to lump sum compensation.

Mr Skates sought judicial review of the decision of the Appeal Panel decision in the Supreme Court of New South Wales. The application was successful, but not on the issue that was most important to Mr Skates. The primary judge (Adamson J) held that the Appeal Panel was in error in not giving effect to the insurer’s concession that the left wrist ought to have been included in the referral to the AMS. However, her Honour held that the Appeal Panel was correct to determine that the AMS had gone beyond the terms of the referral in assessing parts of the upper limb other than the wrist and the ring finger: Skates v Hills Industries Ltd [2020] NSWSC 837.

Mr Skates then sought further review in the Court of Appeal, contending that the AMS was entitled to assess all of the impairment of the left upper limb resulting from the accepted injuries to the wrist, ring finger and scarring.

The Outcome:

Basten JA and Leeming JA found that the AMS’ assessment must be limited to the terms of the applicant’s referral of a dispute: this goes further than the terms of the AMS referral itself as a document, but must have reference to the claim made by the Applicant, determined by the Respondent, and pleaded in the Application to Resolve Dispute.

Basten JA found that the jurisdiction of the Commission in relation to a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 was not at large. The claim was made with respect to a specific injury which occurred in the course of employment on a specified date. The form for an application to resolve a dispute required identification of the date of the injury, a description of the injury, and a description of how the injury occurred. Medical reports relied upon referred to specific injuries, and the insurer offered to resolve the claim based on certain injuries. He agreed with the primary judge that this material defined the proper scope of the referral.

He found that the AMS’s MAC contained demonstrable error in failing to be limited to the terms of the claim.

Leeming JA placed significant emphasis on the term ‘medical dispute’ as a starting point. The dispute was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. He also found that 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.

McCallum JA (dissenting) would allow the appeal, accepting that as submitted by Mr Skates, properly read, the application sought an assessment of the permanent impairment of the entire left upper body limb as a result of Mr Skates’ injuries. He asserts that the medical evidence was replete with medical assessments of impairment in parts of the limb other than the wrist and ring finger, particularly the shoulder. He considered that the term ‘left upper extremity’ comfortably could have incorporated the whole of that limb under the terms of the referral.

The Lessons:

It is of critical importance to:

  1. Ensure the claim being determined is the claim brought by the Applicant;
  2. Ensuring the medical evidence relies upon correctly assessed the various body parts, and does not include other body parts;
  3. Ensure the ARD correctly reflects the claim as it was made, and
  4. Review the Medical Assessment referral carefully and ensure that you are satisfied it properly reflects the claim, and that this correlates with the accepted injury/ pleaded injury, and that all body parts are correct.

Doing so is not only a matter of good practice, but also avoids some of the issues experienced in this matter.

It is not required that the Medical Assessor (MA) referral specify specific body parts (eg: Left lower extremity- ankle and knee)- the MA itself is limited to the terms of the claim.

Otherwise, once a MAC is received, careful review is required in order to ensure the MA has not overstepped his or her jurisdiction and assessed body parts or injuries that ought not have been assessed. If he or she does so, it is grounds for appeal on the basis for a demonstrable error.


The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.