CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Fulmen v Marshalls Sydney Pty Ltd [2024] NSWPIC 525	
		
APPLICANT:	George Fulmen	
		
RESPONDENT:	Marshalls Sydney Pty Ltd	
		
PRINCIPAL Member:	Josephine Bamber	
		
DATE OF DECISION:	20 September 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury lump sum claim pursuant to section 66; initial Medical Assessment Certificate was revoked by the Medical Appeal Panel which also found the applicant had not reached maximum medical improvement; the self-represented applicant has now filed medical evidence that he has reached maximum medical improvement; Held – matter is remitted to the President for referral to a Medical Assessor to assess permanent impairment; findings made about evidence to be referred to the Medical Assessor.	
determinations made:	The Commission determines:
1.	The applicant has now filed medical evidence from Dr Rastogi dated 16 July 2024 that he has reached maximum medical improvement.
2.	The lump sum claim made by the applicant pursuant to s 66 of the Workers Compensation Act 1987 is remitted to the President to be referred to a Medical Assessor for assessment of permanent impairment on the following basis:
Date of injury: 		1 July 2019 (deemed).
Body system: 		psychological injury.
Method of assessment: 	whole person impairment.
3.	The Commission is to appoint the earliest available Medical Assessor not including Medical Assessors Hong, Glozier and Parmegiani as they have previously assessed the applicant.
4.	The documents to be referred to the Medical Assessor are to include the following:
(a)	Application to Resolve a Dispute and attachments;
(b)	Reply and attachments;
(c)	Certificates of capacity from Dr Rastogi dated by her on 22 May 2023, 
4 April 2024 and 3 June 2024;
(d)	South Eastern Local Health District discharge information relating to admission on 9 May 2024 signed by Dr Georgina Gadsby, Emergency Department Sutherland Hospital;
(e)	from A/Prof Michael Elliott undated:
(i)	headed Neck mass/neck dissection post operative instruction sheet;
(ii)	thyroidectomy/parathyroidectomy post operative instruction sheet;
(f)	Royal Prince Alfred Hospital Endocrine Discharge Referral dated 
29 August 2023;
(g)	Report Dr Shailendra Jhingran, general practitioner, Primus Medical Centre, dated 21 May 2024; 
(h)	Discharge Referral Sutherland Hospital Emergency Department dated 
9 May 2024 (two of three pages uploaded), and
(i)	report of Dr Rastogi dated 16 July 2024.
5.	A copy of the written transcript from the preliminary conference on 6 September 2024 is to be sent to the parties.
A brief statement is attached setting out the Commission’s reasons for the determination.	

STATEMENT OF REASONS
BACKGROUND
1.	Mr George Fulmen, the applicant, sustained a psychological injury in the course of his employment with the respondent, Marshalls Sydney Pty Ltd. The deemed date of injury is 1 July 2019.
2.	The only claim for compensation in these proceedings is for lump sum compensation. The only procedural action I can make is to remit the matter to the President for referral to a Medical Assessor as Mr Fulmen has now provided evidence he has reached maximum medical improvement.
3.	As Mr Fulmen is self-represented I have set out below the procedural history of his matter and dealt with his objection concerning the report of Dr Pignataro dated 14 April 2021.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
4.	Mr Fulmen’s solicitors, Kingsley Lawson Lawyers, filed the Application to Resolve a Dispute (Application) dated 24 August 2021. The claims for compensation made in that Application were for lump sum compensation for psychiatric and psychological disorders with a date of injury 1 July 2019 seeking 23% whole person impairment (WPI). A claim was also made for alleged property damage in the sum of $498.50 for the towing of Mr Fulmen’s vehicle when it was stopped by police on 20 April 2020 due to excessive speed alleged by the applicant to be due to a panic attack.
5.	The Reply dated 15 September 2021 was filed by Turks Legal, the solicitors for the respondent. Attached to the reply was a report from Dr Anthony Pignataro dated 14 April 2021 at page 26.
6.	On 22 September 2021 following a preliminary conference before Member McDonald a Certificate of Determination- Consent Orders was issued. The orders made included a discontinuance of the property damage claim and a referral to a Medical Assessor to assess the applicant's permanent impairment in relation to the lump sum claim. It was ordered that the Application and Reply be sent to the Medical Assessor.
7.	On 3 November 2021 the Medical Assessor appointed by the Personal Injury Commission (Commission), Dr Michael Hong, examined the applicant and provided his Medical Assessment Certificate dated 8 November 2021.
8.	On 6 December 2021 the respondent lodged an Application to Appeal Against the Decision of the Medical Assessor (the Appeal).
9.	On 18 January 2022 the President’s delegate Belinda Gamble issued a decision under s327(4) of the Workplace Injury Management and Workers Compensation Act 1998 referring the Appeal to a Medical Appeal Panel.
10.	The Commission then convened a Medical Appeal Panel (the Panel) comprised of Member McDonald and Medical Assessors Glozier and Parmigiani to deal with the Appeal.
11.	Before conducting a preliminary review, the parties were asked by the Panel if they objected to Member McDonald being a Member of the appeal panel because she had prepared the consent orders remitting the matter for referral to a Medical Assessor at a telephone conference on 22 September 2021. The parties indicated by email that they did not object.
12.	The Panel issued their Statement of Reasons for Decision of the Appeal Panel in Relation to a Medical Dispute dated 19 May 2022 and at [15] they referred to the submissions filed upon behalf of Mr Fulmen prepared by Mr Robison of counsel which included reference to the report of Dr Anthony Pignataro dated 14 April 2021.
13.	On 19 May 2022 the Panel revoked the Medical Assessment Certificate of Medical Assessor Hong and certified that Mr Fulmen’s condition has not reached maximum medical improvement and that the degree of permanent impairment is not fully ascertainable.
14.	On 21 June 2022 the Division Head, Glenn Capel, issued a Certificate of Determination  finding:
“(1)	The degree of permanent impairment resulting from injury to the applicant on
1 July 2019 is not fully ascertainable.
(2) 	The proceedings may be restored when the applicant has attained maximum medical improvement.”
15.	On 24 June 2024 Mr Fulmen filed the following documents without legal representation:
(a)	Certificate of capacity/ certificate of fitness from Dr Rastogi signed by the doctor on 22 May 2023 and signed by Mr Fulmen on 5 June 2023, and
(b)	South Eastern Local Health District discharge information relating to admission on 9 May 2024 signed by Dr Georgina Gadsby, Emergency Department Sutherland Hospital.
16.	On 4 July 2024 Mr Fulmen filed the following documents without legal representation:
(a)	From A/Prof Michael Elliott undated: 
(i)	headed Neck mass/neck dissection post operative instruction sheet, and
(ii)	thyroidectomy/parathyroidectomy post operative instruction sheet.
(b)	Certificates of capacity/ certificate of fitness from Dr Rastogi signed by the doctor on 4 April 2024, 3 June 2024.
(c)	Royal Prince Alfred Hospital Endocrine Discharge Referral dated 29 August 2023.
(d)	Report Dr Shailendra Jhingran, general practitioner, Primus Medical Centre, dated 21 May 2024.
(e)	EML review decision dated 28 May 2024 withdrawing the insurer’s decision of 29 April 2024.
(f)	Discharge Referral Sutherland Hospital Emergency Department dated 9 May 2024 (two of three pages uploaded).
17.	On 11 July 2024 a preliminary conference was held by Member McDonald at which time she informed Mr Fulmen, self -represented, and Mr Twohill, solicitor for respondent that she could not deal with the matter as she had been on the Medical Appeal Panel and that the matter would be referred to another Member.
18.	On 16 July 2024 the Division Head, Glenn Capel, conducted a preliminary conference with the parties. Mr Fulmen was self- represented and Mr Twohill appeared for the respondent. Following that conference a Certificate of Determination- consent orders was issued confirming the Certificate of Determination of 21 June 2022. It was noted that Mr Fulmen would obtain “medical evidence to confirm that his condition has reached maximum medical improvement. Upon receipt of same, he will approach the Commission and request that the proceedings be restored so that his claim can be referred for further assessment”.
19.	On 16 July 2024 Mr Fulmen lodged a report from Dr Rastogi dated 16 July 2024 stating he had reached maximum medical improvement.
20.	The Commission appointed a preliminary conference in the matter to be conducted by me on 6 September 2024. At that time Mr Fulmen was self-represented and Mr Twohill, represented the respondent instructed by Mr Carlin B from the insurer.
21.	The preliminary conference on 6 September 2024 was sound recorded and the recording is available to the parties should they request it. I have also obtained a written transcript of the recording which I have requested that the Commission send to the parties with this Certificate of Determination.
22.	The only claim for compensation in these proceedings is for lump sum compensation. The only procedural action I can make is to remit the matter to the President for referral to a Medical Assessor as Mr Fulmen has now provided evidence he has reached maximum medical improvement. Mr Fulmen does not wish to have another assessment but that is the only way his matter can be finalised, excepting if there was a settlement with the insurer.
23.	Accordingly, I have made orders to have the matter remitted to the President for a referral to a Medical Assessor.
24.	The reason I have written this decision is because Mr Fulmen raised an objection to the report of Dr Anthony Pignataro dated 14 April 2021 having been sent to the previous Medical Assessor and Medical Appeal Panel.
EVIDENCE
Documentary evidence
25.	I have listed all the documents that are before me in the procedural summary above.
FINDINGS AND REASONS 
26.	Mr Fulmen has taken issue with the fact that the respondent obtained and included in its Reply the report of Dr Pignataro dated 14 April 2021. Dr Pignataro was Mr Fulmen’s consultant clinical psychologist and the report is addressed to Dr Anna Levinson, his general practitioner at the time.
27.	Mr Fulmen expressed his concerns that the report was headed “Confidential Updated Review Report”. He was concerned on several levels. Firstly, how the insurer obtained the report, secondly, that the doctor had changed his opinion from earlier reports and finally the fact that it was sent to the Medical Assessor and the subject of the appeal.
28.	During the preliminary conference I explained to Mr Fulmen that this report was filed by the respondent in the Reply at a time when he was legally represented. No objection was taken to the inclusion of the report in the documents to be sent to the Medical Assessor. Furthermore, I now note that Mr Fulmen’s barrister, Mr Robison, made submissions on his behalf in the Appeal and no objection was raised to the report being in evidence. 
29.	In the preliminary conference the respondent advised the report was obtained by the insurer in the usual course of gathering treating documents utilising the authority that Mr Fulmen gave on his Certificates of Capacity. I accept this explanation as there is no evidence to the contrary.
30.	Mr Fulmen placed emphasis on the fact that the report is headed “Confidential Updated Review Report”. However, as I stated to Mr Fulmen in his own Application there are reports from Dr Pignataro to Dr Levinson also headed “Confidential Initial Report” dated 31 October 2019, “Confidential Review Report” dated 9 March 2020, “Confidential Updated Review Report” dated 11 February 2020, “confidential Updated Review Report” dated 28 March 2020, “Confidential Updated Review Report” dated 8 July 2020, and “Confidential Updated Review Report” dated 2 October 2020. Therefore, the very fact that a document is headed “confidential” does not stop it being used in compensation proceedings and the report in question is an update to those filed by and relied upon by his solicitors.
31.	Mr Fulmen expressed concerns that Dr Pignataro in the report dated 14 April 2021 had expressed views about his job prospects. I note that his treating psychiatrist , Dr Rajendran, in his report dated 6 October 2020 also discusses the same.
32.	In summary, to the extent it is necessary, I find that the report of Dr Pignataro dated 14 April 2021 was validly sent to the Medical Assessor and then to the Medical Appeal Panel and I reject any objection by Mr Fulmen that it should be excluded from the Reply documents.
33.	At the preliminary conference the respondent’s solicitor stated he wished to apply for an order for Directions for Production to update the treating documents. However, the conference ended prematurely as Mr Fulmen ended his connection and I did not deal with the application for Directions for Production in Mr Fulmen’s absence.
34.	Under s 324(b) of the Workplace Injury Management and Workers Compensation Act 1998 a Medical Assessor has the power to call for the production medical records he or she considers necessary or desirable to assess the dispute. The respondent, therefore, may not wish to persevere with an application for direction for production orders. 
35.	If however, the respondent seeks for the Commission to make Direction for Production Orders it needs to file and serve an Application to Admit Late Documents attaching a letter to that effect and identifying to whom records are sought from and advise the relevance of such material. Then Mr Fulmen will be given an opportunity to respond.