Cortese v Cumberland Ford Pty Ltd
[2011] NSWSC 1260
•27 October 2011
Supreme Court
New South Wales
Medium Neutral Citation: Cortese v Cumberland Ford Pty Ltd & Ors [2011] NSWSC 1260 Hearing dates: 21 October 2011 Decision date: 27 October 2011 Jurisdiction: Common Law Before: Adamson J Decision: Further Amended Summons dismissed with costs.
Catchwords: WORKERS COMPENSATION - Assessment of whole person impairment - Plaintiff seeks orders that the decision of an Appeal Panel in relation to a medical dispute be quashed - meaning of "additional information" in s 327 - relief under s 69 of Supreme Court Act - construction of reasons of an administrative decision maker - Court not to assume role of decision maker. Legislation Cited: - Supreme Court Act 1970 (NSW) - s 69
- Workplace Injury Management and Workers Compensation Act 1998 (NSW) - s 319, s 327(3)Cases Cited: - Collector of Customs v Pozzalanic Enterprises Pty Ltd (1993) 43 FCR 280
- Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259
- Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 ((2008) 73 NSWLR 366)Category: Principal judgment Parties: - David Cortese (Plaintiff)
- Cumberland Ford Pty Ltd (First Defendant)
- An Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Second Defendant)
- The Registrar of the Workers Compensation Commission (Third Defendant)Representation: Counsel:
J. Jobson (Plaintiff)
P. Perry (First Defendant)
Submitting Appearances filed for Second and Third Defendants
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Stephen Lee Legal (First Defendant)
I.V. Knight, Crown Solicitor (Second and Third Defendants)
File Number(s): 2011/012117
Judgment
This matter comes before me by reason of this Court's jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). The Plaintiff seeks an order that the decision of the Appeal Panel in relation to a medical dispute certified on 6July 2010 be quashed and consequential orders. The circumstances in which the proceedings are brought are as follows.
On 10 December 2004, the Plaintiff suffered an injury to his cervical spine ( the Injury ). On 20 December 2004, he was examined by Dr Maniam who recorded positive neurological signs in the Plaintiff's left upper limb. The Plaintiff was examined again by Dr Maniam in October 2007, by Dr Nair on 24 June 2008 and by Dr Bodel on 18 August 2009. He was, for present purposes, most recently examined on 3 November 2009 by Dr Matheson.
On 17 June 2010 the medical dispute between the Plaintiff and the Defendants (his employer and his workers compensation insurer respectively) as to the assessment of the whole person impairment affecting the Plaintiff's cervical spine as a consequence of the Injury was referred to an Approved Medical Specialist ( AMS ) within the meaning of s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act ).
Relevantly, the Plaintiff contended that he ought be classified DRE (Diagnosis Related Estimates) Cervical Category III ( DRE III ) and the Defendants contended that he ought to be classified DRE II. The meaning of these terms will be set out below.
It is common ground that the WorkCover Guidelines (as amended 3 rd Ed, 1 February 2009) ( the Guidelines ) govern the assessment. They provide that a DRE III classification can only be made where radiculopathy, as defined by Chapter 4.23, is found.
The definition of radiculopathy in Chapter 4.23 is:
"Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major ( major criteria )."
- Loss or asymmetry of reflexes
- Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
- Reproduceable impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
- Positive nerve root tension (box 15.1, page 382, AMA5)
- Muscle wasting - atrophy (box 15.1, page 382, AMA 5).
It is also common ground that a DRE II classification, by contrast:
a. does not require objective evidence, and embraces the diagnostic notion that symptoms (in contrast with objective signs) may be present which raise the possibility of radiculopathy but fall short of supportive evidence justifying that diagnosis; and
b. is applicable where there are symptoms which may be of radicular origin in the absence of the criteria outlined in the definition extracted above.
For present purposes the question to be determined by the AMS was whether the Plaintiff fell within DRE II or DRE III. The AMS reviewed the medical reports provided to him and conducted his own clinical examination of the Plaintiff. There is no issue between the parties that the findings on the clinical examination conducted by the AMS did not warrant a DRE III classification.
Dr Harrison, the AMS, issued a medical assessment certificate ( MAC ) on 6 July 2010 in which he relevantly determined that the Plaintiff had a 7% whole person impairment as a result of the Injury. This figure was based in part on his assessment that the Plaintiff ought to be classified DRE II.
The Plaintiff applied to appeal against the MAC by application dated 2 August 2010. Of the four grounds available under s 327(3) of the Act the Plaintiff relied on the following:
(b) availability of additional relevant information (being evidence that was not available to the Appellant before the medical assessment appealed against or that could not reasonably have been obtained by the Appellant before that medical assessment;
(c) the assessment was made on the basis of incorrect criteria; and
(d) the medical assessment certificate contains a demonstrable error.
As provided for by s 327(4) of the Act, the appeal was made by application to the Registrar. The Registrar was satisfied that on the face of the application and any submissions made to the Registrar at least one of the grounds for appeal specified in sub-section (3) was made out and accordingly the matter was referred to a Medical Appeal Panel constituted by an arbitrator, Mr Wynyard, and two approved medical specialists, Dr Isbister (orthopaedic surgeon) and Dr Mellick (neurologist) ( the Appeal Panel ).
The Appeal Panel's rejection of the report of Dr Bodel dated 26 July 2010
The evidence relied upon by the Plaintiff as "additional relevant information" under s 327(3)(b) was a report of Dr Bodel dated 26 July 2010. Dr Bodel had earlier provided a report of his examination of the Plaintiff on 18 August 2009 which was considered by the AMS. In his report dated 26 July 2010 Dr Bodel referred to his earlier examination and assessment of the Plaintiff which had taken place on 18 August 2009 and also referred to the Guidelines. He concluded:
"This more than satisfies the requirement for the presence of radiculopathy and it is on the basis of those findings that I gave my assessment. I see no reason to alter that assessment at this stage."
The Appeal Panel, by a decision dated 8 November 2010, unanimously rejected the report of Dr Bodel dated 26 July 2010. The Plaintiff contends that this amounts to an error of law in that it ought to have admitted the further report of Dr Bodel and taken it into account.
The Plaintiff put two principal arguments in support of this ground. First, he said that the evidence was, indeed, additional information that was not available to, and could not reasonably have been obtained, by him before the medical assessment appealed against within the meaning of s 327(3)(b). The Plaintiff contended that, although Dr Bodel had not examined the Plaintiff since August 2009, his report nonetheless fell within s 327(3)(b). The Plaintiff contended that it could not have been obtained earlier because Dr Bodel could not have envisaged that his initial report would be misinterpreted in the way the AMS is said to have misinterpreted it.
There are various difficulties with this argument. The first is that, although the AMS did not make an assessment which reflected Dr Bodel's classification, there is nothing in the reasons for the MAC to indicate that the AMS had misunderstood what Dr Bodel had said. Secondly, it cannot be the case that evidence falls within s 327(3)(b) if all it does is to restate evidence given before on the basis that if it had been put a different way it would have been accepted.
Further, in oral submissions, Mr Jobson, who appeared for the Plaintiff, contended that the Appeal Panel had applied the wrong test. He relied on the last sentence of [15] of the Appeal Panel's decision (which is highlighted in the extract below). The paragraph reads:
"In that regard Dr Bodel's report was simply a recitation of the WorkCover guidelines and an expression that when he examined the Appellant on 18 August 2009 the clinical signs of radiculopathy were present. Those observations do no more than echo the submissions made on behalf of the Appellant - indeed the Appellant reproduced Dr Bodel's opinion in its submissions. We reject the report of Dr Bodel as in our view it does seek to cavil, albeit subtly, with the findings of the AMS as to radiculopathy."
[Emphasis added.]
I can see that if one were to read the last sentence of [15] alone and without regard to the paragraphs that precede and follow it there may be some force in the Plaintiff's argument that the Appeal Panel rejected the report simply because they saw it as constituting an attempt by Dr Bodel to cavil with the MAC. However, I do not think that this approach is consistent with a fair reading of the reasons of the Appeal Panel.
The applicable principle is conveniently summarised by Mason P (with whom McColl and Bell JJA agreed) in Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 at [31]:
"The reasons of an administrative decision-maker (especially one who is not a judge) are not to be 'construed minutely and finely with an eye keenly attuned to the perception of error' (see Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 271-2, approving Collector of Customs v Pozzalanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287). A court should exercise restraint lest it mistakes looseness in language for errors of substance."
For the reasons given above I do not consider that either of the grounds relating to the rejection of Dr Bodel's report dated 26 July 2010 disclose any error of law.
Whether the Plaintiff ought be classified DRE II or DRE III
Although the Appeal Panel unanimously rejected the report of Dr Bodel dated 26 July 2010, there was a divergence in view as to the appropriate assessment to be made. The majority determined that the Plaintiff ought be classified DRE II and therefore upheld the assessment by the AMS. The minority, Mr Wynyard, considered that the Plaintiff should be assessed DRE III. The balance of the grounds of appeal concern the substance of the classification and the proper construction of the evidence that was before the AMS and the Appeal Panel. I do not consider that any of the matters raised by the Plaintiff in this regard can accurately be described as errors of law. In particular, it was argued by the Plaintiff that the Appeal Panel's assessment was against the weight of the evidence. The Plaintiff also alleged that the Appeal Panel had erred in finding that the report of Dr Matheson dated 3 November 2009 supported the proposition that there was no radiculopathy.
Matters concerning the weight of the evidence and how particular documents, including expert reports should be read, is pre-eminently a matter of fact. In circumstances where the administrative decision maker is comprised at least in part of experts, a court should be loath to go behind the expert opinion of such a panel, or too readily to characterise any alleged errors as errors of law rather than errors of fact.
The majority of the Appeal Panel set out the relevant Guidelines and in particular those matters which needed to be established before a DRE III classification was warranted. It said, at paragraph 39:
"The guidelines are very important for doctors because medical opinion sometimes includes a clear diagnostic conclusion, without adequate evidence justifying that conclusion. That propensity was amply exhibited in the medical evidence before us and emphasises the need to apply the directives of the guides."
The importance of the Guidelines in the instant case arises because there did not appear to be any real dispute that the Plaintiff suffered from radiculopathy associated with injury to his cervical spine. The issue was only whether he ought be classified DRE II or DRE III. In substance, the matters required to be established before a DRE III classification is warranted depend on objective matters discernible by clinical examination. This point appears to have been insufficiently appreciated by the minority member of the Appeal Panel.
Thus, although there was no significant dispute between the doctors who examined the Plaintiff as to whether he suffered radiculopathy, there were some divergences in the results on clinical examination. There was only one examination, Dr Bodel's on 18 August 2009, in which the clinical findings were sufficient to warrant the DRE III classification. In the course of argument at the hearing the Plaintiff's Counsel accepted as much.
Nonetheless, the Plaintiff's Counsel relied heavily on the report of Dr Matheson dated 30 November 2009. Plaintiff's Counsel did not dispute that the Plaintiff met none of the requirements for the DRE III classification on the basis of the examination conducted by Dr Matheson. I propose to set out Dr Matheson's findings on examination:
"He appeared a fit man. He was of short stature. The reflexes in all four limbs were normal. Going through sensation, there was no sensory loss in the upper limbs. Going through power, he tended to use reduced power on the left side globally but all modalities were present and, when encouraged, appeared full. There was no wasting. Arms measured equally at 32cms. He is noted to be ambidextrous. Thus there was no definite neurological loss."
On the basis of the findings on examination it must be concluded, and Mr Jobson accepted this, that a DRE III classification was not warranted. However, the Plaintiff relies upon other aspects of Dr Matheson's report and in particular the following passage:
"Dr Bodel has also reviewed him and I must say that there is really no disagreement between Dr Bodel and myself except in terms of his ADL assessment."
It will be recalled that Dr Bodel considered that the Plaintiff was entitled to a classification of DRE III based on his findings at clinical examination conducted on 18 August 2009, as referred to above.
There is a further conundrum in that, at the conclusion of his report, Dr Matheson (under the heading "Opinion as to Whole Person Impairment") says as follows:
"Turning to the WorkCover guides, in section 4.32 for radiculopathy he does qualify on the grounds that he has radiological changes appropriate to his lesion and he has complaints of radiculopathy in a dermatonal [ ? ] distribution ... Turning to AMA 5, page 392, table 15.6, he is in category 3 with whole person impairment."
Thus it appears there is an internal inconsistency within Dr Matheson's report in that, on the one hand, the findings on clinical examination do not warrant a DRE III classification and there is a reference in the opinion to radiological changes and complaints of radiculopathy which are germane only to DRE II. On the other hand, Dr Matheson expresses his agreement with Dr Bodel, notwithstanding that their findings on clinical examination are greatly at variance. Further, Dr Matheson expresses his conclusion that the Plaintiff is in category DRE III with whole person impairment. It appears from the Appeal Panel's decision that they have resolved the inconsistency by according precedence to Dr Matheson's clinical findings over his conclusions in so far as they are irreconcilable.
It is not for this Court in the exercise of its jurisdiction under s 69 of the Supreme Court Act 1970 to decide whether that was the correct or preferable decision. Suffice it to say that that was a mode of reasoning that was open to the Appeal Panel and is pre-eminently a matter of fact finding which does not raise any question of law, much less one which may be described as an error of law. The real difference between the assessment made by Dr Harrison and the majority of the Appeal Panel on the one hand and the assessment made by the arbitrator, Mr Pritchard, as a minority member of the Appeal Panel on the other, is that the former placed greater weight on the findings on clinical examination , and the latter placed greater weight on descriptions of radiculopathy which do not necessarily correspond with the Guidelines as set out above.
Conclusion
For the reasons given above I do not consider that the Plaintiff has identified any basis on which this Court ought disturb the decision of the Appeal Panel. In my view, no error of law has been shown either in the Appeal Panel's rejection of the report of Dr Bodel dated 26 July 2010 or in its decision to confirm the MAC.
Accordingly, I order that the Further Amended Summons be dismissed with costs.
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Decision last updated: 27 October 2011
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