Gardner, John v Rail Corporation New South Wales

[2013] NSWSC 649

Supreme Court

New South Wales

Medium Neutral Citation:

Gardner, John v Rail Corporation New South Wales [2013] NSWSC 649

Hearing dates:

19/02/2013

Decision date:

30 May 2013

Jurisdiction:

Common Law - Administrative Law

Before:

Harrison AsJ

Decision:

(1) The summons filed 5 June 2012 is dismissed.

(2) The plaintiff is to pay the first defendant's costs as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW - judicial review - whether Registrar's decision to allow appeal to panel error of law - whether panel applied wrong test of causation - whether plaintiff not given opportunity to be heard

Legislation Cited:

Civil Liability Act 2002
Supreme Court Act 1970
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

Bunnings Group Limited v Hicks & Ors [2008] NSWSC 874
Campbelltown City Council v Vegan [2004] NSWSC 1129
Galluzzo v Little [2013] NSWCA 116
Haroun v Rail Corporation of New South Wales & Ors [2008] NSWCA 192
Owen v Motor Accidents Authority of NSW [2012] NSWSC 650
Peric v Chu/Lee Hyang Ho Shin Jong Lee t/as Pure & Delicious Healthy & Anor [2009] NSWWCCPD 47
Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149
Siddick v Workcover Authority of NSW [2008] NSWCA 116
Wikaira v Registrar of the Workers Compensation Commission [2005] NSWSC 954
Zeineddine v Matar [2009] NSWSC 646

Texts Cited:

American Medical Association's Guides to the Evaluation of Permanent Injury (5th edition)
WorkCover Guides for the Evaluation of Permanent Impairment (3rd edition)

Category:

Principal judgment

Parties:

John Gardner (Plaintiff)
Rail Corporation New South Wales (First Defendant)
The Registrar, New South Wales Workers Compensation Commission (Second Defendant)
Medical Appeal Panel, New South Wales Workers Compensation Commission (Third Defendant)

Representation:

Counsel:
I R Harrington (Plaintiff)
J Dodd (First Defendant)
Solicitors:
Carroll & O'Dea (Plaintiff)
Sparke Helmore Lawyers (First Defendant)
I V King, Crown Solicitor (Submitting Appearance, Second & Third Defendants)

File Number(s):

2012/178224

 Decision under appeal 

Before:

The Registrar, Workers Compensation Commission;
Medical Appeal Panel

File Number(s):

M1-007881/11

Judgment

1. HER HONOUR: By summons filed 5 June 2012, the plaintiff seeks, firstly, an order that the decision of the second defendant issued on 2 February 2012 be quashed; secondly an order that the decision of the third defendant dated 23 April 2012 be quashed; and finally, an order that the matter be remitted to the Registrar for determination according to law.

1. The plaintiff is John Gardner. The first defendant is Rail Corporation New South Wales ("RailCorp"). The second defendant is the Registrar of the New South Wales Workers Compensation Commission ("the Registrar"). The third defendant is the Medical Appeal Panel of the New South Wales Workers Compensation Commission.

1. The plaintiff relied on the affidavit of his solicitor Tom Mithieux dated 20 July 2012. The Registrar and the Medical Appeal Panel have filed submitting appearances.

Judicial review generally

1. It is common ground that this Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970.

1. The plaintiff seeks a judicial review and a declaration pursuant to s 69 of the Supreme Court Act 1970 on the following grounds: that the decision by the Registrar on 2 February 2012 involved an error of law on the face of the record and/or jurisdictional error and was therefore beyond power; and that the decision of the Medical Appeal Panel dated 23 April 2012 involved an error of law on the face of the record and/or jurisdictional error and was therefore beyond power.

Background

1. On 21 May 2003, the plaintiff sustained a work-related injury when, during a self-defence training exercise, he was spear tackled. This occurred during his employment with RailCorp. On 20 December 2009, an application to resolve the dispute was filed in the Workers Compensation Commission ("the Commission"). That application sought a whole person impairment ("WPI") in relation to the plaintiff's right shoulder.

1. On 28 May 2010, Arbitrator Charlton determined that the plaintiff had sustained injuries to his neck and right shoulder which were compensable under the Workers Compensation Act 1987. The Arbitrator made adverse credit findings in relation to the plaintiff. It is important to note that when the Arbitrator made his determination no claim has been lodged for a WPI resulting from the plaintiff's neck injury.

1. On 25 May 2011, the plaintiff made his first claim for WPI of his neck based upon reports of Dr Bodel, an orthopaedic surgeon. Dr Bodel based his opinion upon the plaintiff's reporting of neck pain dating back to 21 May 2003 but commented that he had not seen any contemporaneous treating documentation in relation to the plaintiff's medical history at the time he made his report. On examination, Dr Bodel noted that the plaintiff had tenderness in the trapezius muscles at the base of his neck on the right hand side and a reduced range of neck flexion, extension and rotation in all directions. This was most restricted on rotation to the left and there was asymmetry of movement. However, Dr Bodel stated that it appeared, based on the history given to him by the plaintiff, that there was a causal link between the injury in May 2003 and his neck complaints. Likewise, Dr Fearnside reported that he was reliant upon the plaintiff for the assessment of whole person impairment. Dr Fearnside noted that on examination, cervical movements were limited by 20% and pain was reported at extremes of movement. There was no para spinal muscle guarding. The Arbitrator assessed the plaintiff on DRE Cervical Category I, 0% WPI.

1. The plaintiff's claim in respect of his neck injury was referred to Dr Hyde Page, the Approved Medical Specialist.

1. The status of a medical assessment is contained in s 326 of the Workplace Injury Management and Workers Compensation Act 1998 ("the Act"). It reads:

"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,

(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,

(c) the nature and extent of loss of hearing suffered by a worker,

(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."

The decision of the Approved Medical Specialist dated 24 November 2011

1. On 7 September 2010, Dr Hyde Page, the Approved Medical Specialist issued a Medical Assessment Certificate which assessed the plaintiff's WPI in relation to the right shoulder at 10% (this decision is not the subject of judicial review). In that decision, Dr Hyde Page reported that upon examination there was no abnormality found in the plaintiff's neck.

1. The Approved Medical Specialist, in his written reasons, reported the history given by the plaintiff. It is:

"Through this period of time he [the plaintiff] states that he had neck pain and stiffness as well. However the neck pain and stiffness in this early period was not as severe or as significant as his shoulder, where he eventually also developed the reflex sympathetic dystrophy. He is quite adamant that the neck pain and stiffness was separate to his shoulder condition and occurred on 21 May 2003."

1. On examination the Approved Medical Specialist noted the plaintiff showed significant stiffness with muscle guarding in the cervical spine associated with stiffness in the right shoulder. There was no evidence of any radiculopathy in his upper limbs.

1. The Approved Medical Specialist then summarised the findings of various treating doctors, including Dr Bodel that had examined the plaintiff since the injury in 2003. He referred to the reports by Dr Fearnside, a neurological surgeon. Dr Fearnside noted in his reports in October 2005, June 2007 and November 2009 that the plaintiff reported severe neck pain.

1. The Approved Medical Specialist concluded:

"Overall, it is obvious from all the doctor's reports that John Gardner did have an injury to his cervical spine following the spear tackle that occurred to him in May 2003. It would appear that in the last couple of years his neck complaint has deteriorated due to the fact that he is doing a lot of computer and clerical work in the course of his on-line university course. I agree with the findings of Dr Bodel that there is now evidence of DRE Category II cervical spine injury or complaint that has significant effect on his activities of daily living to give 7% whole person impairment. Dr Fearnside was more focused on this man having a Complex Regional Pain Syndrome but most of the symptoms suggesting that diagnosis have now settled and it now comes back to his original neck and right shoulder injury."

1. On 24 November 2011, the Approved Medical Specialist issued a Medical Assessment Certificate, which assessed the plaintiff's permanent impairment in relation to the cervical spine at 7%.

1. It is fair to say that the Approved Medical Specialist firstly, considered the history relating to the injury; secondly, examined the cervical spine and recorded his findings; thirdly, obtained a history from the plaintiff that since 2003, the plaintiff had symptoms in his cervical spine which were exacerbated in the last two or three years when he undertook computer and clerical work associated with on-line university studies; and finally, determined the degree of permanent impairment that resulted from the accepted injury to the neck.

1. RailCorp appealed the decision in relation to the cervical spine. On 2 February 2012, a Delegate of the Registrar made a decision pursuant to s 327 of the Act that the appeal proceed to a Medical Appeal Panel. It is not in dispute that the Registrar may delegate her powers (s 371(2)). This is the first decision, the subject of judicial review.

(1) The Registrar's decision dated 2 February 2012

1. The right to appeal from a medical assessment is contained in s 327 of the Act. It reads:

"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.

...

(3) The grounds for appeal under this section are any of the following grounds:

...

(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,

(d) the medical assessment certificate contains a demonstrable error.

(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is 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 subsection (3) has been made out.

..."

1. On 24 November 2011, Railcorp appealed the decision of the Approved Medical Specialist in relation to the cervical spine. RailCorp made the following submissions to the Registrar:

• That the Approved Medical Specialist provided an opinion in respect of injury and causation and had as such gone beyond the powers provided under the legislation and had determined an issue of injury and causation.

• That any issue in respect of injury and causation was within the sole jurisdiction of an Arbitrator of the Workers Compensation Commission.

• That the medical assessment certificate contained a demonstrable error on the basis that the Approved Medical Specialist provided a determination in respect of injury and causation that the Approved Medical Specialist was not entitled to determine.

• That the history obtained by Dr Hyde-Page in the Medical Assessment Certificate dated 24 November 2011 was not previously disclosed to it.

That the injury was not sustained in the course of employment on 21 May 2003 but rather was related to a novus actus event. Alternatively, the neck injury was unrelated to injury sustained or arising out of the course of employment.

1. The delegate's reasons for her decision are short. They are as follows:

"4. Section 327(4) of the 1998 Act provides that an appeal is not to proceed unless the Registrar is satisfied that, on the face of the Application and the submissions made to the Registrar, at least one of the grounds of appeal as satisfied in section 327(3) of the 1998 Act has been made out.

5. Upon examination of the MAC and the face of the application and the submissions made, I am satisfied that, on the face of the application and the submissions made, I am satisfied that a ground of appeal as specified in s 327(3)(d) is made in out in relation to the AMS's assessment of the respondent worker's whole person impairment of the cervical spine."

1. The Registrar applied the correct test set out in s 327(4) of the Act. She was satisfied that a ground of appeal as specified in section 327(3)(d) had been made out in relation to Dr Hyde Page's assessment of the plaintiff's WPI of the cervical spine. That is, she was satisfied that the ground that the medical certificate contained a demonstrable error had been made out.

1. The plaintiff submitted to this Court that it was not open to the Registrar, on the basis of the application and submissions by the parties, to be satisfied that an identified error was capable of being demonstrated to the Medical Appeal Panel. According to the plaintiff, the only error identified by RailCorp relates to an allegation that the Approved Medical Specialist, Dr Hyde Page, made findings in relation to causation and injury which he was not entitled to make. While this was Railcorp's main concern, it did raise other issues that have been identified above.

1. RailCorp submits that there was sufficient evidence and submissions made to satisfy the Registrar that at least one of the grounds of appeal has been made out, that the Medical Assessment Certificate contained a demonstrable error.

1. However, whether or not this Court can intervene depends upon whether or not the Registrar is required to give reasons.

1. The starting point is Campbelltown City Council v Vegan [2004] NSWSC 1129, where it was held by Wood CJ in CL, in relation to the former wording of s 327(4), that the role of the Registrar is that of a "gatekeeper", the criterion for the appeal proceeding to a Medical Appeal Panel being the opinion of the Registrar that one of the grounds of appeal "existed" (at [74]).

1. In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149, Campbell JA (with whom Hodgson and Handley JJA agreed) decided that under the original legislation, it was unnecessary for the Registrar to give reasons because in reaching an opinion that a ground for appeal exists because (a) the Registrar (or her delegate) is not making a decision of a judicial character (it might be otherwise if the decision is to refuse to allow the appeal to proceed); (b) in reaching the necessary opinion and in deciding to allow an appeal to proceed, the Registrar (or her delegate) is not finally deciding any legal rights or duties, beyond that the application was entitled to a "reassessment" by the Appeal Panel; and (c) there is no provision for any appeal from decisions under s 327(4). The Court of Appeal held in Riverina Wines that a decision under the prior version of s 327(4) did not require the Registrar to give reasons.

1. In Bunnings Group Limited v Hicks & Ors [2008] NSWSC 874, Simpson J analysed the requirements for an appeal to proceed under the current wording of s 327(4). Her Honour stated at [58]:

"In my opinion, the change of terminology has not altered the role of the Registrar as gatekeeper; it has varied or altered the test that she must apply in determining whether the gates are to be opened, and the appeal permitted to proceed."

1. Her Honour in Bunnings stated that the reasoning of Campbell JA in Riverina Wines applied in precisely the same way to the amendments to 327(4). Therefore, her Honour concluded that under the current s 327(4) the Registrar is not required to give reasons.

1. As the Registrar is not required to give reasons her for decision to refer the matter to a Medical Appeal Panel on 2 February 2012, there is no error of law on the face of the record nor is there a jurisdictional error. This ground of judicial review fails.

(2) Decision of the Medical Appeal Panel dated 23 April 2012

1. On 23 April 2012, the Medical Appeal Panel made a decision to revoke the Medical Assessment Certificate issued by the Approved Medical Specialist, Dr Hyde Page, which assessed the plaintiff's WPI in relation to his cervical spine as 7%. The Medical Appeal Panel issued their own certificate finding that the plaintiff's WPI was 0%. This is the second decision, the subject of judicial review.

1. Section 328 of the Act sets out the procedure on appeal. It reads:

"328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.

(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. The WorkCover Guidelines can provide for the procedure on an appeal.

(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."

1. The Medical Appeal Panel comprised of an arbitrator Ms S Natasha Serventy and two approved medical specialists, Drs Brian Noll and Phillipa Harvey-Sutton. The parties agreed to the determination of the matter without holding an assessment hearing. Both parties made written submissions to the Medical Appeal Panel (reasons [8] - [9]). The Medical Appeal Panel conducted a preliminary view and as a result it determined that it was not necessary for the plaintiff to undergo a further medical review because there was sufficient information on file.

1. The Medical Appeal Panel accepted that the plaintiff suffered a neck injury on 21 May 2003 but found that any impairment cannot be related to that injury saying:

"22. The AMS notes that Mr Gardner's cervical spine symptoms have worsened over the past couple of years as a result of studying for an on-line degree. The appellant submits that this is a new cause of injury for which no claim has been made, and that any impairment due to it cannot be related to the injury in 2003. The Panel accepts this submission and notes that the extent that Mr Gardner's cervical spine impairment was due to the subsequent study must be determined. The AMS should have discussed the matter in the MAC.

23. The Panel has considered the evidence and finds that it was most unlikely that the current disorder of Mr Gardner's cervical spine (that manifested in 2010) results from his original injury in 2003. There is no medical evidence that relates the current impairment to the injury."

1. The Medical Appeal Panel discussed the medical evidence at [24] to [27] of its decision by stating:

"24. In 1995 Mr Gardner's cervical spine was painful but investigations were negative. In 1997 Mr Gardner's cervical spine was so painful that he was prescribed a very large dose (200mg) of pethidine for it. This indicates he had severe neck pain in 1997. Despite this, Mr Gardner told the AMS he had no previous neck injury or complaint.

25. The Panel notes that no neck pain was mentioned post injury in Mr Gardner's clinical notes until three years later in 2006, when Mr Gardner's GP noted right-sided neck pain 'for 3 weeks'. The normal CT scans taken in 1995 and 2006 indicate that there was no structural abnormality caused to Mr Gardner's cervical spine in the injury.

26. In 2007 Dr Fearnside noted symmetrical movement and made an assessment of 0% whole person impairment (WPI) for Mr Gardner's cervical spine. In 2009 Dr Rimmer found no organic pathology. In 2010 Dr Hyde-page, acting as an AMS, found no abnormality of the neck and recorded no neck symptoms.

27. Despite the AMS' history and findings in 2010, Mr Gardner's cervical spine symptoms are stated to have increased over the past couple of years, due to his study habits. The Panel notes that there were no neck complaints or investigations made following the injury in 2003, and finds that any injury to the cervical spine at that time was not severe. Any problems appear to have settled. Investigations in 2006 showed no structural abnormality. The Panel finds that Mr Gardner's current cervical spine condition does not result from the injury."

1. The plaintiff challenges the Medical Appeal Panel's decision on two bases, which I will address in turn. They are:

a. The appeal panel made findings on causation which were expressly contrary to the findings of the Arbitrator.

b. The decision to revoke the AMS's decision was not confined to the grounds for appeal identified by the Defendant, and the Plaintiff was not given the opportunity to be heard.

(a) Causation

1. The plaintiff submitted that the Medical Appeal Panel was of the view that the 2003 compensable injury and the injury related pathology had resolved, such that none of the current cervical spine symptoms and complaints were related to the compensable injury. According to the plaintiff, the Medical Appeal Panel applied the wrong test of causation, the correct test being that as a result of the injury in 2003, on the balance of probabilities using a commonsense point of view, was there a reasonable connection that is not inconsistent between the injury and the impairment as at 2012.

Workcover Guides and case law

1. In relation to causation, it is necessary to briefly refer to the WorkCover Guides for the Evaluation of Permanent Impairment (3rd edition) which are based on the American Medical Association's Guides to the Evaluation of Permanent Injury (5th edition). The definition of "causation" is found in the Glossary of the 5th edition and defined as:

"an identifiable factor (eg accident or exposure to hazards of a disease) that results in a medically identifiable condition."

1. Chapter 1, at p 11, of the 5th edition provides the following guide to the assessment of causation:

"Medical or scientifically based causation requires a detailed analysis of whether the factor could have caused the condition, based upon scientific evidence and, specifically, experienced judgment as to whether the alleged factor in the existing environment did cause the permanent impairment."

1. Section 5D of the Civil Liability Act 2002 also applies. It relevantly reads:

"5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)." [emphasis in original]

1. In Owen v Motor Accidents Authority of NSW [2012] NSWSC 650, Campbell J had this to say about causation at [27] and [50]:

"27 Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p. 500 [87] that the Assessors will derive practical assistance from this part of the permanent impairment guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s.5 D. (See s.3B(2)).

...

50 The statement of the Review Panel that the material before it had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident is only explicable on the basis that the panel misdirected itself as to law. As the extract from Clause 1.9 of the MAA Guidelines set out at page 8 of Exhibit A makes clear - albeit in the context of the left shoulder - in general terms (subject to 5D Civil Liability Act 2002) it is sufficient if the injury ... was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible. The absence of a reference by the Review Panel to this important matter suggests that in relation to the back, it did not direct itself as to the law as required. This impression is reinforced by the emphasis the Panel placed upon the construct as a result of the injury caused by the motor accident at the top of page 8. The emphasised language suggests to me that the panel of experts, as legal laymen, looked to a more direct or proximate relationship than that mandated by the relevant legal principles."

1. Although Campbell J, in Owen, was referring to the Motor Accidents Authority Guidelines, they are based on the AMA 5 Guides, as are the equivalent WorkCover Guides. The test referred to in the plaintiff's submissions is incorrect. The correct question to be answered by the Medical Appeal Panel was whether the current injury or disorder of the cervical spine was caused or materially contributed to by the accident in 2003. The Medical Appeal Panel determined that the current disorder to the plaintiff's cervical spine could not be related to the injury in 2003. The Medical Appeal Panel posed and answered the correct question.

The Arbitrator's decision

1. The plaintiff submitted that the Medical Appeal Panel has strayed into an area, that of causation, which was solely the jurisdiction of the Arbitrator and the Medical Appeal Panel should have referred to that decision in detail and explained why they came to a different conclusion.

1. RailCorp submitted that the Medical Appeal Panel was obliged to treat the Arbitrator's finding as irrelevant on the basis of the Court of Appeal decision in Haroun v Rail Corporation of New South Wales & Ors [2008] NSWCA 192 where the Court held that an arbitrator had no jurisdiction to decide the medical dispute and had no jurisdiction to make findings which were binding on the AMS or the Medical Appeal Panel.

1. RailCorp further submitted that the finding of the Medical Appeal Panel did not purport to relate any WPI in respect of the neck injury of 2003, which had not been claimed before the Arbitrator. In addition, it submits that the decisions in Haroun and Zeineddine v Matar [2009] NSWSC 646 make it clear that it is the jurisdiction of the Medical Appeal Panel to determine the extent of any WPI and the degree to which it results from the injury as found.

1. RailCorp also highlighted that the history obtained by Dr Hyde Page in relation to the plaintiff's neck symptoms, and the disclosure by the plaintiff that he attributed his increasing neck pain and stiffness to doing online university studies, was not obtained by any of the other medical specialists that provided reports; and secondly, this history obtained by Dr Hyde Page in the MAC dated 24 November 2011 had not been able to be tested or considered by RailCorp prior to the issuing of the whole person impairment on 24 November 2011.

1. The plaintiff referred to Wikaira v Registrar of the Workers Compensation Commission [2005] NSWSC 954. Wikaira was decided before Haroun. In that case, an arbitrator had recorded a concession by the defendant that the plaintiff had sustained an injury and that the consensus of the medical evidence was that the plaintiff was not fit to perform the type of work that she had been doing. The plaintiff was then referred to an Approved Medical Specialist to determine the degree of permanent impairment. The Approved Medical Specialist determined there was no permanent impairment and issued a Medical Assessment Certificate to that effect. The Registrar then refused the plaintiff's appeal against the Approved Medical Specialist's assessment. Malpass AsJ determined that the Registrar had fallen into error in not allowing the appeal and that the Medical Assessment Certificate contained a demonstrable error, stating at [29]:

"29 It seems to me, whether or not regard is had to what was done by the arbitrator, that the medical assessment certificate contained a demonstrable error. The contents of the certificate show that Dr Matheson had come to the view that there was no permanent impairment because of his view there was no evidence of an injury. Not only was there evidence of injury, the fact of injury had been established. It was referred to him to make an assessment on the basis of agreement between the parties that the medical evidence showed that the plaintiff's orthopaedic injuries arose from the incident of 22 August 2000. The task he had to perform was to determine whether that injury gave rise to permanent impairment."

1. RailCorp submitted that contrary to the decision in Wikaira where the Approved Medical Specialist came to the view that there was no evidence of an injury when there were agreed findings made by the Arbitrator in that matter as to injury, in this matter, the Medical Appeal Panel have accepted that the plaintiff did suffer a neck injury in May 2003 but found that any current impairment cannot be related to that injury. RailCorp submitted that it is solely within the jurisdiction of the Approved Medical Specialist and Medical Appeal Panel to determine both the extent of the permanent impairment and the degree of which that permanent impairment results from the injury as found by the Arbitrator.

1. The plaintiff also relied on the decision of Deputy President O'Grady in Peric v Chu/Lee Hyang Ho Shin Jong Lee t/as Pure & Delicious Healthy & Anor [2009] NSWWCCPD 47:

"77 I am of the opinion that a question as whether an injury proven in proceedings before the Commission has caused ongoing disability or whether such injury has had a pathological effect limited to a particular period of time is a legal question (namely one of causation), which remains within the exclusive jurisdiction of the Commission (an arbitrator) to decide. Such question arise for determination in various circumstances on a regular basis before the Commission (for example whether aggravation of a disease is permanent or otherwise; whether incapacity results from one or more identified injuries; ...). The fact that a claim may involve a question of the degree of permanent impairment as a result of an injury in terms of section 319 does not, in my view, deprive an arbitrator of jurisdiction to determine questions as to the duration of pathological consequences of an injury."

1. In so far as the plaintiff submitted that the Medical Appeal Panel acted beyond power, in Haroun v Rail Corporation of NSW [2008] NSWCA 192, an arbitrator made findings by consent that two falls at work sustained by the worker "continued to contribute to any impairment" suffered by the worker. The Approved Medical Specialist and the Medical Appeal Panel disregarded the consent finding by the Arbitrator and found that there was no WPI in respect of particular body parts. In Haroun, Handley AJA (with whom McColl and McDougall JA agreed) stated at [16] - [22]:

"16. In my judgment the Panel were not only entitled to treat the finding as irrelevant, they were bound to do so if they independently came to a different conclusion. The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers' Compensation Act 1987 (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel.

17 Section 65(1) and (3) of the 1987 Act provides that in the event of a dispute the degree of permanent impairment that results from an injury is to be assessed in accordance with Part 7 of the 1998 Act. This includes ss 321, 323, 326, 327 and 328.

18 Section 326(1) provides that a MAC "is conclusively presumed to be correct ... in any proceedings before a Court or the Commission" as to (a) 'the degree of permanent impairment of the worker as a result of an injury' and (b) 'whether any proportion of permanent impairment is due to any previous injury or pre-existing condition.' This section also applies to a MAC issued by a Panel: s 328(5).

19 The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Part 7 of the 1998 Act and not otherwise.

20 If there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but 'may refer it for assessment' by an AMS: s 321(1). That section confers a power which an Arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford (1885) App Cas 214, 235, 243, 244.

21 Since the Arbitrator had no jurisdiction to decide the medical dispute he, referred had no jurisdiction to make findings which were binding on the AMS or the Appeal Panel. The finding of a person without jurisdiction cannot bind the person or persons with jurisdiction, and cannot even be persuasive.

22 Section 350(1) of the 1998 Act provides that "Except as otherwise provided by this Act" a decision of the Commission [which includes an Arbitrator] 'is final and binding on the parties and is not subject to ... review'. This section did not make the consent findings of the Arbitrator binding on the parties because the Act otherwise provides. A MAC which is conclusively presumed to be correct under s 326(1) trumps any inconsistent findings by an Arbitrator and such findings are neither final nor binding on the parties."

1. As previously stated, at [24] the Arbitrator, in his reasons dated 28 May 2010, stated that there was no evidence to establish that the injury to the plaintiff's cervical spine had resolved and the medical evidence suggested that the plaintiff was still suffering restriction in his cervical spine, even if such restriction did not rate for permanent impairment. The Arbitrator stated that he could not be satisfied that the injury to the plaintiff's cervical spine had resolved. Importantly, when this decision was made, they were made in relation to the application of WPI of the plaintiff's right shoulder not his cervical spine. This factual situation differs from Wikaira in that the application in relation to the cervical spine was made about one year after the Arbitrator's decision (ie 25 May 2011). It should also be noted, that decision in Wikaira was made in 2005, prior to the Court of Appeal decision in Haroun.

1. The Medical Appeal Panel conducted a review of the material before it and came to the conclusion that the plaintiff's current cervical spine condition did not result from the 2003 injury. It concluded that any injury to the cervical spine at the time of the injury was not severe and any problems appeared to have settled. While the Arbitrator had found that there was no evidence to establish that the injury to the plaintiff's cervical spine had not resolved, as Haroun makes it clear, it was open to the Medical Appeal Panel to come to a different conclusion. The Appeal Panel did not act beyond power.

1. In my view there is no error in the approach of the Appeal Panel in relation to causation. This ground of review fails.

(b) Whether the plaintiff was not given the opportunity to be heard

1. Recently in Galluzzo v Little [2013] NSWCA 116, the Court of Appeal per Barrett JA (with whom Ward JA and Tobias AJA agreed) considered how procedural fairness should be afforded by the Appeal Panel under s 328 (reproduced earlier). Barrett JA stated at [65]-[72]:

"65 Three features of this provision should be noted. First, s 328(1) refers to an appeal being "heard by" an Appeal Panel. Second, s 328(4), dealing with an injured worker's "attending an Appeal Panel for the purposes of an assessment", says that the worker is entitled to be accompanied by a person "to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel". Third, s 328(2) says that the WorkCover Guidelines may provide for the procedure on an appeal. This last aspect is reinforced by s 331 which says that appeals under Part 7 are "subject to relevant provisions of the WorkCover Guidelines" relating to certain matters, including "the procedure on appeals".

66 Relevant provisions of the WorkCover Guidelines, as in force at the material time, are paragraphs 45 and 46. Paragraph 45 reads, in part, as follows:

"The Appeal Panel may adopt any of the following procedures in accordance with the needs of the individual case:

preliminary review (in all matters),

'on the papers' review,

further medical examination by an approved medical specialist on the appeal panel,

assessment hearing."

67 The balance of paragraph 45 deals with the case where a further medical examination is required. Paragraph 46 then provides:

"Where the Appeal Panel determines a matter is not capable of determination on the papers either with or without a further medical examination, an assessment hearing will be arranged."

68 The remainder of paragraph 46 deals with procedure at the hearing itself.

69 The effect of the applicable provisions was, in my respectful opinion, correctly summarised by Studdert J in Estate of Brockmann v Brockmann Metal Roofing Pty Ltd [2006] NSWSC 235 (at [57]-[58]):

"In context, I do not consider that s 328(1) of the WIMWC Act compels the conduct of an adversarial hearing. An appeal is to be 'heard' by a three person panel, but the Practice Direction and, more importantly, the Guidelines contemplate that the Appeal Panel may determine how the Appeal is to proceed. Under para 43 of the Guidelines, the Appeal Panel is authorised either to set a date for an assessment hearing, or to decide the appeal on the papers, without further involvement from the parties. The Guidelines do not specifically mandate an assessment hearing if the Panel decides that there ought to be a medical examination.

Nor do I consider s 328(4) ought to be construed as making an assessment hearing obligatory. What the subsection does is to entitle an injured worker to be accompanied to an Appeal Panel hearing, if such a hearing is conducted."

70 Those observations were expressly endorsed by Hall J in Symbion Health Ltd v Hrouda [2010] NSWSC 295.

71 Pertinent features of the applicable provisions are that:

(a) it is the Appeal Panel that decides which of the several procedures described in the Guidelines is to be adopted;

(b) the Appeal Panel's decision is to be informed by its assessment of the needs of the particular case;

(c) a hearing will be arranged if the Appeal Panel determines that the matter is not capable of determination on the papers; and

(d) the reference to an appeal being "heard" does not imply that there must invariably be an oral hearing.

72 Having regard, in particular, to (c), the general expectation is that there will be a determination on the papers. This is reinforced by the prescribed form by means of which an appeal is initiated. The form says, in relation to a request to present oral submissions:

"If yes, attach reasons why the appeal should not be determined by the Appeal Panel on the papers, and why the presentation of oral submissions is necessary. Failure to attach submissions may result in the application being rejected.""

1. The plaintiff filed submissions opposing RailCorp's appeal. Those submissions addressed the issue of the extent of WPI arising from the neck injury that had been caused by the 2003 injury, as opposed to the more recent university studies. Neither party had requested an assessment hearing be conducted in relation to the appeal.

1. The plaintiff submitted that the Medical Appeal Panel made no findings in relation to the demonstrable error identified by the defendant as grounds for the appeal. Rather, the plaintiff says that as the basis for the Medical Appeal Panel's findings was lack of evidence, he should have been given an opportunity to be heard on this issue and by not doing so, the Medical Appeal Panel misconceived the nature of its jurisdiction. Thus, according to the plaintiff, the Medical Appeal Panel failed to provide adequate reasons and decided issues which were not before them. Further, the plaintiff says that the Medical Appeal Panel considered irrelevant material and failed to consider relevant material, namely the reports of Dr Fearnside and Dr Bodel that related his current impairment to the injury.

1. Counsel for the plaintiff submitted that the Medical Appeal Panel were not looking at whether the plaintiff's current complaint in relation to his neck had any relationship with his injury in 2003, that they were looking at his use of a keyboard as the starting point. The plaintiff also submitted that there was evidence of injury, continuing symptoms and a flair up of those symptoms as a result of activities such as using a keyboard which had to be considered and related his current impairment to the injury, and that the Medical Appeal Panel ignored relevant material.

1. RailCorp submitted that the basis of the Medical Appeal Panel's finding was not a lack of evidence but that the Medical Appeal Panel accepted RailCorp's submission that any WPI resulted from the nature of the plaintiff's university work in 2010/11 and could not be related to the injury in 2003. RailCorp submitted that this was not a new issue but one that had been raised by RailCorp in its grounds of appeal and that the plaintiff had been afforded procedural fairness.

1. In Siddick v Workcover Authority of NSW [2008] NSWCA 116, McColl JA said (Mason P agreeing) in respect of review under s 328 of the Act:

"101 In my view it is inappropriate to resolve the issues by applying prescriptive labels to the nature of the s 328 review. I am, however, of the view that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. This is not a backdoor resurrection of the appellant's abandoned third ground of appeal, simply a recognition of the proposition that determinations, which affect the "rights, interests and legitimate expectations" of the parties, attract requirements of procedural fairness: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (at 584) per Mason J. This includes giving a party an opportunity to deal with material which can be characterised as credible, relevant and significant and adverse to the interests of that person: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 (at [14]-[18]) per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.

...

104 In my view, therefore, while it was open to the Appeal Panel to depart from the grounds of appeal the respondent had identified, it could only do so if it notified the parties and gave them an opportunity to be heard."

1. It is my view that the Medical Appeal Panel did not depart from the issues raised on appeal. The parties did not request that an assessment hearing take place. In these circumstances, the plaintiff was afforded procedural fairness.

1. While there was medical evidence to the effect that upon examination the plaintiff's cervical movements were limited and there was stiffness and muscle guarding, the issue that had to be determined by the Medical Appeal Panel was whether these symptoms were caused by the 2003 accident. The Medical Appeal Panel considered this issue and determined that they were not. The Medical Appeal Panel did not consider irrelevant material nor did it fail to consider relevant material.

1. The result is that application for judicial review fails. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendant's costs as agreed or assessed.

The Court orders that:

(1) The summons filed 5 June 2012 is dismissed.

(2) The plaintiff is to pay the first defendant's costs as agreed or assessed.

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Decision last updated: 31 May 2013