Hutchison v Wyong Race Club Ltd

[2020] NSWSC 1592

Supreme Court

New South Wales

Medium Neutral Citation:

Hutchison v Wyong Race Club Limited and Ors [2020] NSWSC 1592

Hearing dates:

29 October 2020

Date of orders:

18 November 2020

Decision date:

18 November 2020

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

(1) Amended Summons dismissed.

(2) The Plaintiff is to pay the First Defendant’s costs of the proceedings.

(3) No order as to costs of the Second and Third Defendants.

(4) In the event that a party seeks a different costs order, application is to be made by email to Johnson J’s Associate (and copied to the other affected party or parties) before 4.00 pm on 25 November 2020.

Catchwords:

ADMINISTRATIVE LAW – judicial review – injuries sustained by plaintiff in workplace accident in 2011 – claim under Workplace Injury Management and Workers Compensation Act 1998 – challenge to decisions of Approved Medical Specialist and Appeal Panel – Approved Medical Specialist finds no causal link between 2011 workplace accident and any injury to plaintiff’s right shoulder – decision confirmed by Appeal Panel – claim of denial of procedural fairness and of legal unreasonableness in decision-making – held no denial of procedural fairness – legal unreasonableness not demonstrated – plaintiff’s claim for relief not established – Amended Summons dismissed

Legislation Cited:

Supreme Court Act 1970

Workers Compensation Act 1987

Workplace Injury Management and Workers Compensation Act 1998

Uniform Civil Procedure Rules 2005

Cases Cited:

Ah-Dar v State Transit Authority of NSW (2007) 69 NSWLR 468; [2007] NSWSC 260

Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 21

Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW (2010) 56 MVR 108; [2010] NSWSC 833

Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175

Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22

Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284

Cobar Shire Council v Harpley-Oeser [2018] NSWSC 964

Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235

Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39

Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Phillips v JW Williamson and RW Williamson trading as Williamson Bros [2016] NSWSC 1681

Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558

Sydney Night Patrol & Inc Co v Absolom [2015] NSWSC 60

Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254

Woolworths Limited v Michelle Howarth [2015] NSWSC 1624

Texts Cited:

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Category:

Principal judgment

Parties:

Bruce James Hutchison (Plaintiff)
Wyong Race Club Limited (First Defendant)
Appeal Panel constituted under s.328 Workplace Injury Management and Workers Compensation Act 1998 (Second Defendant)
Registrar of the Workers Compensation Commission (Third Defendant)

Representation:

Counsel:
Mr CAW Hart (Plaintiff)
Mr C Jackson (First Defendant)

Solicitors:
Michael Evers & Co (Plaintiff)
Leigh Virtue & Associates (First Defendant)

File Number(s):

2020/142537

Publication restriction:

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Judgment

1. JOHNSON J: By Amended Summons filed on 2 June 2020, the Plaintiff, Bruce James Hutchison, seeks relief by way of judicial review under s.69 Supreme Court Act 1970 with respect to decisions made under the Workplace Injury Management and Workers Compensation Act 1998 (“WIM Act”).

2. The Defendants in the proceedings are Wyong Race Club Limited (First Defendant), the Appeal Panel constituted under s.328 WIM Act (Second Defendant) and the Registrar of the Workers Compensation Commission (Third Defendant).

3. The First Defendant appeared to resist the Plaintiff’s claim for relief. In accordance with usual practice, submitting appearances were filed on behalf of the Second and Third Defendants.

The Amended Summons

4. In the Amended Summons, the Plaintiff seeks the following relief:

1. (1)   A declaration that the Medical Assessment Certificate dated 8 January 2020 given by an Approved Medical Specialist together with the decision dated 17 April 2020 of the Second Defendant (the Appeal Panel) are affected by procedural unfairness, error of law on the face of the record, legal unreasonableness and jurisdictional error such that the decisions were ultra vires.

2. (2)   An order in the nature of certiorari setting aside the Medical Assessment Certificate of the Approved Medical Specialist and the decision of the Appeal Panel, together with the certificate of determination issued by Michael Wright, Arbitrator, appointed by the Third Defendant on 20 May 2020.

3. (3)   An order in the nature of mandamus remitting the matter to the Third Defendant for reallocation of the matter to a different Appeal Panel for reassessment of the Plaintiff in person in accordance with the law.

4. (4)   Costs.

Hearing of the Amended Summons

5. The Amended Summons proceeded to hearing before me on 29 October 2020. Mr Hart of counsel appeared for the Plaintiff and Mr Jackson of counsel appeared for the First Defendant.

6. A court book containing relevant documents was tendered by consent (Exhibit A). Copies of the Workers Compensation Commission Approved Medical Specialist Code of Conduct and the Registrar’s Guideline (Appeal Against Medical Assessment) were also tendered (Exhibit B).

7. Written submissions had been provided by counsel and counsel spoke to those written submissions at the hearing.

Factual Background

8. On 8 June 2011, the Plaintiff (then aged 38 years) was engaged in duties as a groundsman and barrier attendant at the First Defendant’s track at Wyong. He had worked for the First Defendant in that capacity since 2009. The Plaintiff was injured in a workplace accident on 8 June 2011 when he was crushed against a gate by a restive horse as the horse was moving into the barriers.

9. The First Defendant admitted liability with respect to this incident for the purpose of the Workers Compensation Act 1987.

10. In due course, the Plaintiff made a claim for benefits based on whole person impairment (“WPI”) and the matter was referred by the Third Defendant to an Approved Medical Specialist under s.321 WIM Act.

11. On 16 December 2019, the Plaintiff was examined by Dr Philip Truskett, a specialist in general surgery and trauma, in his capacity as an Approved Medical Specialist under the WIM Act.

12. On 8 January 2020, Dr Truskett issued a Medical Assessment Certificate with respect to the Plaintiff pursuant to s.325 WIM Act. In that certificate, Dr Truskett reported 0% WPI with respect to each of the cervical spine, lumbar spine, right shoulder and digestive tract with a total 0% WPI.

13. The Medical Assessment Certificate had statutory force under ss.325 and 326 WIM Act. It is conclusively presumed to be correct in proceedings before a court or the Workers Compensation Commission concerning, amongst other things, the degree of permanent impairment of the Plaintiff as a result of the injury sustained in the workplace incident on 8 June 2011: s.326(1)(a) WIM Act.

14. On 7 February 2020, the Plaintiff submitted to the Third Defendant an application for leave to appeal to an Appeal Panel with respect to the assessment contained in the Medical Assessment Certificate of 8 January 2020.

15. On 17 March 2020, the Third Defendant allowed the Plaintiff’s application for leave to appeal to an Appeal Panel under s.327 WIM Act.

16. In accordance with s.328(1) WIM Act, the Plaintiff’s appeal was heard by an Appeal Panel constituted by two Approved Medical Specialists (Dr Richard Crane and Dr Gregory McGroder) and one Arbitrator (Ms Deborah Moore) chosen by the Third Defendant. The appeal was by way of review of the original medical assessment limited to the grounds of appeal on which the appeal was made. Having undertaken the appeal, an Appeal Panel may confirm the certificate of assessment or may revoke the certificate and issue a new certificate in accordance with s.328(5) WIM Act. It is a matter for the Appeal Panel to determine whether an injured worker is further examined by one or more members of the Appeal Panel which, of course, comprises two Approved Medical Specialists.

17. In a decision dated 15 April 2020, the Appeal Panel determined that the Medical Assessment Certificate dated 8 January 2020 should be confirmed.

18. On 13 May 2020, the Plaintiff filed a Summons in this Court seeking judicial review with respect to the Medical Assessment Certificate dated 8 January 2020 and the decision of the Appeal Panel dated 15 April 2020.

19. As noted earlier, the hearing in this Court proceeded by way of an Amended Summons filed on 2 June 2020.

Basis of the Plaintiff’s Claim for Relief

20. The Amended Summons contains a number of overlapping grounds which seek to challenge the two decisions made by the Approved Medical Specialist, Dr Truskett, and then the Appeal Panel.

21. The essence of the claim in this Court is that the Plaintiff was denied procedural fairness by the Approved Medical Specialist who issued the Medical Assessment Certificate by reference to findings made concerning the Plaintiff’s right shoulder and also by the Appeal Panel in the determination of the Plaintiff’s appeal.

22. It is submitted, as well, that the Approved Medical Specialist, and also the Appeal Panel, made findings which were unreasonable in the legal sense concerning the Plaintiff’s right shoulder so that those findings should be set aside with an order being made for the Plaintiff to be considered by a further Appeal Panel.

23. It is appropriate to set out parts of the Medical Assessment Certificate dated 8 January 2020 and the decision of the Appeal Panel dated 15 April 2020 before moving to consider the submissions made and determining the Plaintiff’s claim for relief.

Medical Assessment Certificate Dated 8 January 2020

24. Dr Truskett identified the matters referred for assessment under s.321 WIM Act as being the Plaintiff’s cervical spine, lumbar spine, right upper extremity (right shoulder) and digestive system with the assessment involving a WPI method of assessment.

25. A range of documents, reports and images were furnished to Dr Truskett for the purpose of his assessment.

26. The Plaintiff was examined by Dr Truskett on 16 December 2019. Dr Truskett noted that, at the time of the injury on 8 June 2011, the Plaintiff was employed by the First Defendant as a groundsman and barrier attendant, having worked for the First Defendant in that capacity from 2009 to 2012.

27. Under the heading “History Relating to the Injury”, Dr Truskett recounted a history of the incident, the onset of symptoms and of subsequent related events including treatment (Exhibit A, pages 51-52). In the course of that history, Dr Truskett said with respect to the Plaintiff’s right shoulder (Exhibit A, pages 51-52):

“In relation to his right shoulder, Mr Hutchison attended Dr Kemp of Broadmeadow, who also did injections into his right shoulder under ultrasound control. He did not advise surgery.

From a letter of Dr Kemp dated 6 September 2012, he stated that Mr Hutchison's right shoulder movement was limited in all directions. He recorded flexion to 140°, external rotation to 40°, internal rotation to the spinous process of L4. On x-ray, there was little evidence of rotator cuff wear. Ultrasound at that time confirmed the cuff was intact. Dr Kemp was of the view that Mr Hutchison had significant capsulitis.

From a subsequent report by Dr Kemp dated 18 March 2013, he stated, ‘Bruce reports very little discomfort in his right shoulder now. He still has trouble with his neck but is moving smoothly with a very close full range of movement and strength. He seems to have almost fully resolved his frozen shoulder. I will see again now only if he is having trouble.’

Dr Kemp did not review Mr Hutchison again.

Mr Hutchison then stated that he also attended John Hunter Hospital and saw Professor Scelly for pain management. He had physiotherapy and hydrotherapy at Gesman for at least 2 months.”

28. Dr Truskett then summarised the Plaintiff’s present treatment and present symptoms. With respect to the Plaintiff’s right shoulder, Dr Truskett said (Exhibit A, page 53):

“Right Shoulder

Mr Hutchison experiences pain at the front of his shoulder. Pain is there all the time and made worse with sleeping on it. It is also worse with activity. He would score it as 6/10 and this will get worse. It will be 8/10 when bad, which occurs on a weekly basis, which may be spontaneous. This has been since the accident.”

29. A little later, Dr Truskett said (Exhibit A, page 53):

“Details of any previous or subsequent accidents, injuries or condition:

Mr Hutchison has had arthroscopies to both knees in the past.

He also had a fracture of his left wrist, requiring a fusion in 1999. This was work related. He received $200,000. He said he was off work for years.

He has elevated cholesterol for which he is treated. He also has had blood pressure for the past 3 years.

He denied any symptoms or injuries relating to the body parts assessed today. He said he did have mild reflux before his injury.”

30. Dr Truskett recounted the following additional matters stated by the Plaintiff (Exhibit A, page 54):

“Mr Hutchison has been married since 1985. He and his wife have no children. He lives in a house which is rented on 40 acres. They have dogs, one horse and used to have sheep.

He describes himself as being severely incapacitated. He always uses a walking stick in his right hand and has done so for more than 18 months. He is unable to run or jog. He could walk for approximately 600m. He is able to climb stairs, one step at a time He has a flight of stairs at home. The bedrooms are upstairs. He can sit for 30 to 60 minutes. He can stand for 2 to 10 minutes. He is able to drive a car for 60 minutes. He is unable to do housework. He can use a ride-on mower for 15 to 30 minutes. He can water the garden. He is able to cook. He can go shopping. He does not socialise. He finds it difficult to wash himself and is assisted by his wife but does not use a chair in the shower. He said the shower is too small to do this.

He used to play golf, enjoyed fishing and sailing, and horse racing, but is no longer able to do these activities. He occasionally goes to dog shows with his wife when her dogs are being shown.”

31. Dr Truskett then recorded his findings on physical examination of the Plaintiff. He commenced that part of the certificate in the following way (Exhibit A, pages 54-55):

“Mr Hutchison was a man who appeared incredibly distressed throughout the interview with much groaning and puffing.

He walked with a waddling wide-based gait in a very slow fashion with a limp involving his right leg. This was in considerable contrast as I by chance, walked behind him in the street when he walked to attending the interview. He appeared to walk quite normally. I asked him why this was so. He had no explanation. He also limped on his right leg leaning on a walking stick in his right hand. This is his painful shoulder that would exacerbate his shoulder pain. He could easily walk with the stick using his pain free left upper limb. This would produce a preferable walking cadence. Patients are taught to use a stick in the hand opposite to support the impaired lower limb. This is almost instinctive. I asked why he did not use his pain free left upper limb to hold his walking stick. He had no explanation.

He climbed on and off the examination couch with the aid of his walking stick and sat incredibly awkwardly in a most uncomfortable fashion on the corner of the bench. I would describe this behaviour as marked illness behaviour.”

32. Dr Truskett recorded that the Plaintiff was 175 cm tall and weighed 130 kg. This provided him with a body mass index of 42.4 kg/square metre and placed him in the obesity Class 3 of 3. Dr Truskett noted “all movements during examination were extremely laborious and appeared to be very uncomfortable”.

33. Dr Truskett described the examination of the Plaintiff’s right upper limb in the following way (Exhibit A, page 55):

“Mr Hutchison had an intermittent tremor of his right upper limb and right lower limb. There was however no cogwheeling but appeared to have increased tone. This is most unusual and also add odd choice to carry a walking stick. Parkinson’s disease can start on one side of the body, but this tremor was not typically Parkinsonian.

On examining sensation at the right upper limb, there was increased sensation at the top of the right shoulder to the deltoid region, which extended onto the side of his neck. This was not of a radicular distribution. Reflexes could not elicited on his right arm due to his tremor. He appeared to have reduced grip strength on the right as compared to the left.

There was no wasting of the muscles of the upper limbs. Both arms measured 40cm in circumference, 10cm above the olecranon and both forearms measured 31cm at their widest point.”

34. The certificate continued with a description of other aspects of the physical examination of the Plaintiff.

35. The Medical Assessment Certificate then stated with respect to range of movement (Exhibit A, page 56):

“On examining both shoulders, there was reduction in right shoulder movement:

Active ROM Right	Active ROM Left
Flexion	100º	180º
Extension	30º	50º
Abduction	120º	180º
Adduction	10º	50º
Internal rotation	50º	90º
External rotation	50º	90º ”

36. Dr Truskett then outlined details and dates of special investigations including CT scans, MRIs, ultrasounds and x-rays performed in 2011. Thereafter, the Medical Assessment Certificate included the following summary (Exhibit A, pages 56-57):

“•    summary of injuries and diagnoses:

Mr Hutchison sustained the following injuries:

o   Soft tissue injury to the neck.

o   Soft tissue injury to the right shoulder.

o   Soft tissue injury to the lumbar spine.

o   He has gastroesophageal reflux.

•   consistency of presentation

As noted, there was considerable inconsistency when observing Mr Hutchison's gait outside the environment of the examination room. He was asked why this was so. He had no explanation. There was also a strange choice of use of a walking stick in his painful right upper limb when a pain free left upper limb was available.

He had a sensory loss over his right side of chin, neck and right shoulder that was not anatomical.

There was also inconsistency in his straight leg raising. He could only manage 30° when lying flat, but 90° when sitting. There seemed to be no discomfort.

He exhibited an inconsistent intermittent tremor of his right upper limb and right lower limb, which was not characteristic.

His movement and mobility seemed incredibly restrained without any convincing evidence of radiological abnormality.”

37. Dr Truskett then moved to an evaluation of permanent impairment, providing answers to specific questions posed in that respect. In the course of that evaluation, Dr Truskett identified a question to which he responded in the following way (Exhibit A, page 58):

“g.    Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury.

As outlined in my explanation below, it is my view that the current right shoulder impairment has occurred subsequent to his injury of June 2011. The reason for this conclusion is based on documentation provided from Dr Kemp, his treating shoulder specialist. In his letter of initial assessment dated 6 September 2012, he described limitation of right shoulder movement and commented that the ultrasound assessment demonstrated that the rotator cuff was intact. He stated that ‘I have no hesitation that there is evidence of significant capsulitis (frozen shoulder) in Bruce's shoulder’. From documentation provided, I agree with this diagnosis. In his subsequent letter dated 18 March 2018 [sic - agreed by parties this should be ‘2013’], he documents full recovery of right shoulder movement. This is the nature of ‘frozen shoulder’. The condition does not recur. Any current limitation of right shoulder movement would therefore be unrelated to his original injury in June 2011. The current impairment should, therefore, be fully deducted.”

38. In identifying the facts on which the assessment was based, Dr Truskett noted that the WPI assessment had been undertaken by reference to “physical examination and history taken today, in combination with documentation reviewed and imaging provided”.

39. The Medical Assessment Certificate then set out the reasons for the assessment which included Dr Truskett’s opinion of a total WPI of 0%. In explaining this opinion, Dr Truskett stated, by reference to the Plaintiff’s right shoulder (Exhibit A, page 59):

“Right Shoulder

Stable.

Reference is made to AMA 5, Chapter 16, Section 16.4i, Page 474, Figure 16-40, Page 476, Figure 16-43, Page 477 and Figure 16-46, Page 479, and Table 16-3, Page 439, and the WorkCover Guides, 4th Edition, 1 April 2016, Chapter 2, Page 10-12.

A whole person impairment of 8% is assigned.

According to the quoted pie charts, Mr Hutchison's limitation of movement equates to 13% impairment of his right upper limb, which when Table 16-3, Page 439, is consulted equates to an 8% whole person impairment.

However, as outlined in Q9. (g), this has been fully deducted as he demonstrated a full recovery of right shoulder funstion [sic] as described. Any impairment now must be considered a subsequent unrelated pathology.”

40. Dr Truskett then referred to other medical opinions and findings and set out his reasons concerning those opinions and findings (Exhibit A, pages 59-60):

“c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs

In a medicolegal report by Dr Ghabrial dated 15 July 2015, he assessed Mr Hutchison as having a DRE Category II of the cervical spine and DRE Category II of the lumbar spine. I could not demonstrate consistent muscle guarding, dysmetria or neurological signs that would support this decision. He assessed Mr Hutchison as having a whole person impairment of his right shoulder which was not at the level which was seen today.

In a medicolegal report by Dr James Bodel dated 6 May 2019, he assessed a similar impairment to Mr Hutchison's right shoulder as described today. However, he also assigned DRE Category II to the lumbar spine and cervical spine, on the basis of asymmetry which has not been demonstrated today.

In a medicolegal report by Dr Chris Harrington dated 6 August 2019, he did demonstrate a similar reduction in right shoulder movement but did describe this as being unrelated. He did not give a reason why this was unrelated.

In Dr Kemp's report on 18 March 2013, his shoulder specialist, he did state that Mr Hutchison's frozen right shoulder had resolved, and he demonstrated a full range of movement with good strength. Dr Kemp had made a diagnosis of ‘frozen shoulder’ which could well have been the consequence of this injury. The natural history of ‘frozen shoulder’ is that it at first becomes painful, then stiff and painful and then often resolves. It does not recur. It is quite conceivable that Mr Hutchison sustained a frozen shoulder which resolved. The only imaging provided of his Right shoulder is an Ultrasound dated 13 December 2011 which shows only minor changes and could be consistent with ‘frozen shoulder aka capsulitis’. If shoulder movement has deteriorated from that time it is most unlikely to be due to the initial shoulder injury of June 2011. He was not seen by Dr Bodel until 27 April 2015, some 2 years after Dr Kemp had demonstrated complete shoulder recovery. I must presume something must have happened to his right shoulder in these intervening years.

In a medicolegal report by Professor Terry Bolin dated 3 July 2018, he assessed Mr Hutchison as a 7% whole person impairment for upper digestive tract disease on the basis of symptoms provided. Professor Bolin, however, did not make reference to the WorkCover Guides, which demonstrated there needed to be symptoms and signs of upper digestive tract disease. This assessment therefore cannot be supported.”

41. Dr Truskett noted that there was no deduction or any proportion of the impairment that was due to previous injury or pre-existing condition of abnormality (Exhibit A, page 60).

42. The Medical Assessment Certificate issued for the purpose of s.325 WIM Act stated the following (Exhibit A, page 62):

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 to pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Cervical Spine	8 June 2011	Chapter 4, Page 24-30	Chapter 15, Table 15-5, Page 392	0	0	0
Lumbar Spine	8 June 2011	Chapter 4, Page 24-30	Chapter 15, Table 15-3, Page 384	0	0	0
Right Shoulder	8 June 2011	Chapter 2, Page 10-12	Chapter 16, Section 16.4i, Figure 16-40, Page 476, Figure 16-43, Page 477, Figure 16-46, Page 479, Table 16-3, Page 439	0	0	0
Digestive Tract	8 June 2011	Section 6, Page 78-79, Para 16-9	Table 6-3 Page 121
Total% WPI (the Combined Table Values of all sub-totals)	0%

Decision of Appeal Panel Dated 15 April 2020

43. As noted earlier, the Third Defendant referred the Plaintiff’s appeal to an Appeal Panel which proceeded by way of review under s.328 WIM Act. The reasons of the Appeal Panel dated 15 April 2020 commence with the following background (Exhibit A, page 71):

“1.   On 10 February 2020, Bruce James Hutchison lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Philip Truskett, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 8 January 2020.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

•   the assessment was made on the basis of incorrect criteria,

•   the MAC contains a demonstrable error.

3.   The Registrar is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.

4.   The Workers compensation medical dispute assessment guidelines set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the Workers compensation medical dispute assessment guidelines.

5.   The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).”

44. The Appeal Panel undertook a preliminary review which was described in the following way (Exhibit A, page 71):

“6.   The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Workers compensation medical dispute assessment guidelines.

7.   As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because we consider that we have sufficient evidence before us to enable us to determine the appeal.”

45. It was submitted for the Plaintiff in this Court that the Appeal Panel had erred in determining that it was not necessary for the Plaintiff to undergo a further medical examination for the purpose of the determination of the appeal. It was noted that the Plaintiff had ticked a box on the appeal form indicating that a further medical examination was sought. Although it was accepted by counsel for the Plaintiff that his client did not have an automatic right to further examination as part of the appeal, it was submitted that, in the circumstances of this case, a further medical examination of the Plaintiff was essential to allow procedural fairness to him where he could be asked questions by the examining practitioner concerning his right shoulder and any other incident or factor that may have contributed to his right shoulder problem.

46. The Appeal Panel stated that it had before it all the documents which had been before Dr Truskett and had taken them into account in making its determination. Also taken into account were written submissions made by the legal representatives for the Plaintiff and First Defendant. The Appeal Panel summarised the issue raised in the appeal in the following way (Exhibit A, page 72):

“10.   In summary, the appellant submits that the AMS erred in his assessment of all body parts referred, and in particular failed to draw to the attention of the appellant evidence of his apparent recovery from the injuries.

11.   In reply, the respondent submits that no errors were made.”

47. Under a heading “Findings and Reasons”, the Appeal Panel set out the procedures to be followed under s.328 WIM Act and the principles to be applied in accordance with the decision of the Court of Appeal in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284. The Appeal Panel stated (Exhibit A, page 72):

“13.   In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.”

48. The Appeal Panel then set out extracts from the Medical Assessment Certificate containing the history, findings on physical examination and other matters recounted by Dr Truskett including his opinions (Exhibit A, pages 72-76). These extracts included parts of the Medical Assessment Certificate reproduced earlier in this judgment (at [27]-[40]).

49. The Appeal Panel then recounted the Plaintiff’s grounds of appeal (Exhibit A, pages 76-77):

“24.   The appellant's grounds of appeal are as follows:

(a)   As regards the right upper extremity (shoulder) the AMS erred by applying a complete deduction of the range of movement score, when he did not, at any time, bring the applicant's attention to the alleged ‘recovery’ of his range of movement by March 2013 and when he did not, at any time, have evidence before him that the ‘frozen shoulder’ had ‘fully recovered’.

(b)   Further, the AMS erred by failing to bring to the appellant's attention to, or identify any cause, that would explain the presence of abnormal ROM, since March 2013, when he found [at 8g and page 10] the ROM finding ‘must now be considered a subsequent unrelated pathology’.

(c)   As regards the cervical and lumbar spines, the AMS erred when he did not, at any time, bring the applicant's attention to the alleged ‘recovery’ of his ‘asymmetric’ range of movement in the period from the examinations of Dr Ghabrial on 15 July 2015 and Dr Bodel on 6 May 2019.

(d)   The AMS erred when he applied a finding of an absence of ‘dysmetria’, an irrelevant enquiry for the purpose of the assessment.

25.   Dealing firstly with the right shoulder, the appellant submits that ‘the evidence on which [the AMS] relied appears to be the report of Dr Kemp... Dr Truskett's finding of 'full recovery of range of movement' at that time was clearly an unavailable conclusion’. It is illogical and unreasonable to find the applicant had fully recovered his range of movement and/or that the current range of movement was from a 'subsequent unrelated pathology'.

26.   The appellant goes on to refer to a number of authorities dealing with the correct interpretation of ‘incorrect criteria’ and ‘demonstrable error’ and the proper construction of s 323 of the 1998 Act.

27.   The appellant then said:

‘The applicant submits the applicant was not afforded natural justice to proffer an explanation for his 'changed ROM', or 'deterioration of ROM', between March 2013 and the date of the assessment by Dr Truskett, There is no evidence that Dr Truskett brought the content of the report of Dr Kemp to his attention at any time, although Dr Truskett had the report in his possession and intended (and did in fact) rely on its content (albiet [sic] erroneously) in his opinion. In denying him this opportunity, there has been procedural unfairness and the opinion and findings relating to the right shoulder 'were manifestly deficient and did not constitute compliance with the minimum obligation' of his delegated statutory power...’

28.   The appellant then makes the same submission as regards the difference between the reported findings of Dr Ghabrial on 15 July 2015 and Dr Bodel on 6 May 2019 and the date of the assessment by the AMS, adding: ‘There is no evidence that Dr Truskett brought the contents of the reports of Drs Ghabrial and Bodel to his attention at any time’.”

50. The Appeal Panel then considered the grounds of appeal (Exhibit A, pages 77-78):

“29.   The appellant seems to have assumed that the AMS has made a deduction in respect of the right shoulder under s 323 of the Act. This is not the case.

30.   The AMS was required to assess WPI that resulted from the injury on 8 June 2011 only. The AMS concluded that there was no impairment of the right shoulder from that injury. In making that assessment the AMS concluded that there must have been some other occurrence to explain the appellant's presentation on the day of his examination, given the findings by Dr Kemp in 2013.

31.   Such a conclusion was open to him.

32.   He did not make any deduction pursuant to s 323: he referred to his role in evaluating permanent impairment under the Guidelines at paragraph 8 (g) of the MAC.

33.   In our view, there was ample evidence to permit him to make such an assessment.

34.   We do agree however that the manner of explanation of his assessment in respect of the right upper extremity was not entirely clear.

35.   It would perhaps have been preferable for the AMS to simply state that there was no impairment as a result of the injury in June 2011.

36.   What he appears to have done is accept (to a degree) some restrictions, as did other doctors, particularly Dr Bodel. The AMS said of Dr Bodel: ‘he assessed a similar impairment to Mr Hutchison's right shoulder as described today.’ The AMS has essentially adopted his findings then made a ‘deduction’ because ‘he demonstrated a full recovery of right shoulder function as described.’

37.   As we said, although perhaps not clearly explained, the AMS' assessment and conclusions were open to him on all the evidence.

38.   The appellant's submissions really focus on an alleged failure by the AMS to bring what we may term ‘discrepancies’ or ‘inconsistencies’ in the evidence to the attention of the appellant.

39.   That is not the task of an AMS.

40.   In any event, we note that the AMS repeatedly asked the appellant about various inconsistencies, for example, the use of a cane in his right hand despite his apparent severe shoulder pain. The AMS said: ‘Patients are taught to use a stick in the hand opposite to support the impaired lower limb. This is almost instinctive. I asked why he did not use his pain free left upper limb to hold his walking stick. He had no explanation.’

41.   Similarly as regards his gait. The AMS said:

‘He walked with a waddling wide-based gait in a very slow fashion with a limp involving his right leg. This was in considerable contrast as I by chance, walked behind him in the street when he walked to attending the interview. He appeared to walk quite normally. I asked him why this was so. He had no explanation.’

42.   Allegations of a denial of natural justice and procedural fairness do not constitute neither the application of incorrect criteria nor a demonstrable error. The task of the Approved Medical Specialist is simply to carry out an examination and make an assessment of impairment (if any).

43.   As the respondent correctly points out, ‘there is no requirement for an AMS to seek an explanation from the worker concerning matters which are the subject of his physical examination and assessment. Indeed, to do so would be improper...’

44.   For these reasons, we cannot see any error in his assessment with respect to the right upper extremity.”

51. The Appeal Panel then considered matters relating to the cervical and lumbar spines and rejected the Plaintiff’s submissions on those matters which are not the subject of challenge in the present proceedings.

52. The Appeal Panel concluded that, for the reasons stated in the decision of 15 April 2020, the Medical Assessment Certificate dated 8 January 2020 should be confirmed.

Submissions for the Plaintiff

53. Mr Hart submitted that both the Approved Medical Specialist, Dr Truskett, and the Appeal Panel were required to afford procedural fairness to the Plaintiff and to ensure that decisions were made according to law and based on relevant and logically probative information. In this respect, counsel referred to the Approved Medical Specialist Code of Conduct (24 November 2009) and the Registrar’s Guideline (February 2011) (Exhibit B).

54. Counsel submitted that practical injustice to the Plaintiff had resulted in this case, applying the principles in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [30]; Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [31]-[39] and Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 at [112]-[121].

55. It was submitted that a statutory decision maker is required to act reasonably and not illogically or irrationally and that the final conclusion of the decision maker should not be “unreasonable in a legal sense”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [72].

56. Counsel for the Plaintiff submitted that the Approved Medical Specialist had acted in a procedurally unfair manner with respect to the Plaintiff’s right shoulder, in that a finding had been made of the existence of a subsequent injury to the right shoulder after 2013 which was said to explain the problem that the Plaintiff was experiencing with his right shoulder. It was submitted that Dr Truskett was obliged, as a matter of procedural fairness, to raise that issue with the Plaintiff during the medical examination before making an effective finding of a subsequent injury to the right shoulder and that he did not do so thereby constituting a denial of procedural fairness.

57. It was submitted that Dr Truskett had misread Dr Kemp’s report of 18 March 2013 which had not stated that the right shoulder had recovered. That error, it was argued, was carried through into other findings made in the Medical Assessment Certificate so as to constitute a finding that was unreasonable in the legal sense as well as a denial of procedural fairness.

58. The Plaintiff’s grounds of appeal as contained in the Amended Summons advanced these propositions in different ways in support or the argument that the Court should set aside the Medical Assessment Certificate of 8 January 2020.

59. With respect to the decision of the Appeal Panel dated 15 April 2020, counsel for the Plaintiff submitted that the denial of procedural fairness and process of unreasonable decision making had carried through from the Medical Assessment Certificate as a result of the Appeal Panel effectively adopting and confirming the reasoning contained in the Medical Assessment Certificate.

60. It was submitted that it was essential in this case that the Plaintiff be further examined medically for the purpose of the appeal to the Appeal Panel and that this was not done without the expression of any reasons for that position. Reliance was placed upon Ah-Dar v State Transit Authority of NSW (2007) 69 NSWLR 468; [2007] NSWSC 260 at [63]-[69]; Sydney Night Patrol & Inc Co v Absolom [2015] NSWSC 60 at [34]-[40] and Cobar Shire Council v Harpley-Oeser [2018] NSWSC 964 at [91].

53. Although it was acknowledged that no written submissions had been made to the Appeal Panel in support of further examination of the Plaintiff, it was emphasised that the Plaintiff had ticked the box seeking re-examination for the purpose of the appeal.

54. Contrary to the finding of the Appeal Panel that there was ample evidence to permit Dr Truskett to make the assessment of the Plaintiff in this case, it was submitted that there was no evidence to support this conclusion. Whilst the Appeal Panel had noted Dr Truskett’s raising of inconsistencies with the Plaintiff for comment, it was submitted that the Appeal Panel had erred in its acceptance of Dr Truskett’s approach to the Plaintiff’s right shoulder.

55. It was submitted that the Appeal Panel had erred (at paragraphs 43-44 of the Decision at [50] above) in stating that there was no requirement for an Approved Medical Specialist to seek an explanation from the worker concerning matters which are the subject of his physical examination and assessment. Mr Hart submitted that this was inconsistent with the requirement placed on Approved Medical Specialists to abide by the principles of procedural fairness and to ensure that decisions are made according to law and based on relevant and logically probative information (Exhibit B).

56. Counsel for the Plaintiff submitted that as the Medical Assessment Certificate and the decision of the Appeal Panel were affected by jurisdictional error, each should be quashed with the Plaintiff’s matter being remitted to the Third Defendant to refer his appeal to a fresh Appeal Panel.

Submissions for the Defendant

65. Mr Jackson submitted that the Plaintiff had not made good his claim for relief and that the Amended Summons should be dismissed.

66. Counsel for the First Defendant submitted that the Medical Assessment Certificate did not contain error, with the approach to the Plaintiff’s right shoulder and the conclusion reached by Dr Truskett not involving a denial of procedural fairness, nor any unreasonable approach to findings so as to entitle the Plaintiff to the relief he seeks by way of judicial review.

67. It was submitted that procedural fairness does not require a decision maker to disclose what they are minded to decide or to invite comment on their process of reasoning: Woolworths Limited v Michelle Howarth [2015] NSWSC 1624 at [32] (Hamill J). The Approved Medical Specialist was entitled to draw upon his expertise and to reach conclusions without disclosing his reasoning to the Plaintiff or giving him an opportunity to comment: Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235 at [62] (Studdert J). The Appeal Panel was entitled to draw upon the expertise of its members in exercising its function: Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors at [62].

68. With respect to the Plaintiff’s complaint that the Appeal Panel did not conduct a further medical examination of him, Mr Jackson relied upon the decision of the Court of Appeal in Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [34] in support of the proposition that the reasons of the Appeal Panel indicated that consideration had been given to a further medical examination of the Plaintiff, but it had been decided that the matter could be dealt with on the papers without one.

69. With respect to the Plaintiff’s reliance upon authorities concerning the exercise of discretionary power, Mr Jackson submitted that caution was needed in relying upon those authorities as the Appeal Panel was not exercising a discretionary power, but a statutory appellate function under the WIM Act. In that respect, it was submitted that, provided there is some logical basis for making the relevant decision, the Court will not interfere with it. Reliance was placed upon Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] with respect to a challenge to an administrative decision upon the basis that it was illogical or irrational.

70. Counsel for the First Defendant submitted that the Appeal Panel had acknowledged that part of the Medical Assessment Certificate could have been expressed more clearly (paragraphs 34-35, 37 at [50] above). However, the Appeal Panel explained its understanding of the Medical Assessment Certificate which did not reveal appellable error on the part of the Approved Medical Specialist. It was submitted that this approach was open to the Appeal Panel.

71. It was submitted for the First Defendant that the Plaintiff had not demonstrated an entitlement to relief and that the Amended Summons should be dismissed with costs.

Decision

72. The Plaintiff’s claim for relief is directed to the last operative decision being that of the Appeal Panel dated 15 April 2020. However, it is reasonable to have regard to the Medical Assessment Certificate of 8 January 2020 for the purpose of determining the Plaintiff’s challenge to the decision of the Appeal Panel. This is because the reasons contained in the Medical Assessment Certificate were confirmed, with some further explanation, in the decision of the Appeal Panel.

73. I accept that there is a requirement specified in the Approved Medical Specialist Code of Conduct (part Exhibit B) that Approved Medical Specialists should, amongst other things, abide by principles of procedural fairness and ensure that decisions are made according to law and based on relevant and logically probative information. This is a general statement which requires further consideration as to its content depending upon the particular circumstances under challenge.

74. In Phillips v JW Williamson and RW Williamson trading as Williamson Bros [2016] NSWSC 1681, Schmidt J summarised helpfully the relevant principles concerning procedural fairness as they apply to Approved Medical Specialists and an Appeal Panel and the need to read the decision under challenge fully and fairly. Her Honour said at [36]-[37]:

“36   The Appeal Panel’s reasons must be considered in the way discussed in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 291. They must thus be read as a whole, considered fairly and without ‘combing through the words with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law’. …

37   There was no issue between the parties that both the medical specialist and the Appeal Panel were each obliged to give both parties procedural fairness. That concept is essentially concerned with questions of practical justice (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] per Gleeson CJ and Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41]).”

75. In Woolworths Limited v Michelle Howarth, Hamill J considered the requirements of procedural fairness concerning an Approved Medical Specialist and an Appeal Panel under the WIM Act. His Honour said at [30]-[32]:

“30   It is established that an Appeal Panel reviewing a certificate issued by an AMS is required to afford the parties procedural fairness: see, for example, Markovic v Rydges Hotels Ltd [2009] NSWCA 181 at [34]-[35], Hatch v Peel Valley Exporters Pty Ltd [2010] NSWSC 23 at [39]-[41]. In those cases, the Appeal Panel introduced a new issue and procedural fairness required the party affected to be afforded an opportunity to be heard. In each case reference was made to the judgment of McColl JA in Siddick v WorkCover Authority of NSW [2008] NSWCA 116 at [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. It did not do so and, therefore misconceived its role, the nature of its jurisdiction and its duty.’

31   It is accepted that similar considerations arise as to a medical certificate issued by an approved medical specialist and that Dr Wong was required to provide the parties procedural fairness. However, the issues surrounding the plaintiff’s right shoulder were not new – it was raised by the doctor retained by the employer.

32   Procedural fairness does not require a decision maker to disclose what they are minded to decide or to invite comment on their process of reasoning: see, for example, Hoffmann-La Roche v Trade Secretary [1975] AC 295 at 369, Re Minister for Immigration and Multicultural Affairs and Anor; Ex Parte Miah [2001] HCA 22; 206 CLR 57 at [31], Sinnathamby v Minister for Immigration (1986) 86 ALR 502 at 506, Ansett v Minister (1987) 72 ALR 469 at 499, Asiamet (No 1) v Federal Commissioner of Taxation [2003] FCA 35 196 ALR 692. In Asiamet Emmett J explained at [79]:

‘A person who would be affected by the exercise of a statutory power is entitled to rebut or qualify further information, and comment by way of submission upon adverse material, from other sources that is before the decision-maker. A decision-maker is required to identify to the person affected any issue critical to the decision that is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion that has been arrived at, which would not obviously be open on known material. Subject to those qualifications, however, a decision-maker is not obliged to expose his or her mental processes or provisional views for comment before making the decision in question (Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591-592 (‘Alphaone Case’)). Nor is there any duty to disclose draft or preliminary views. Within the bounds of rationality, a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case. It is only if the decision-maker proposes to reach an adverse conclusion that is not an obvious and natural evaluation of the material supplied by the applicant, that the applicant is entitled to be told of the tentative conclusion (Alphaone Case at 591)’.”

76. The present proceedings do not involve merits review. As Brennan J said in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36; [1990] HCA 21:

“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

77. To the extent that relief is sought upon the basis of findings and reasons which are sought to be impugned, it is for the Plaintiff to demonstrate unreasonableness in the sense identified by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS at [130]:

“In the context of the Tribunal's decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”

78. In approaching the challenge to the Medical Assessment Certificate, it is necessary to keep in mind that an Approved Medical Specialist is a medical practitioner and not a lawyer. This aspect, of course, does not prevent legal obligations applying to Approved Medical Specialists exercising the important statutory function under ss.324-326 WIM Act. In Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254, Basten JA (McColl JA and Handley AJA agreeing) said at [34]-[36]:

“34   Questions as to the adequacy of the reasons given by an approved medical specialist are different in kind. Although reasons are required so that the unsuccessful party may know why he or she has failed, it does not follow that a medical specialist has to give reasons which are immediately comprehensible to a person with no medical expertise. For example, a medical expert speaking to other practitioners might say that some degree of impairment was self-evidently caused by a pre-existing condition, despite the fact that the person was asymptomatic prior to the injury. On the other hand, such a conclusion may be medically contestable. In order for the applicant to succeed in this Court in asserting inadequacy of reasons, there must at least be material properly before the Court which demonstrates that the opinion falls into the latter category. The Court was not taken to any material which indicated that to be the case.

35   Perhaps surprisingly, there is no express statutory requirement that the Appeal Panel provide reasons for its decision. However, in Campbelltown City Council v Vegan (at [20] above), this Court held that such an obligation should be implied: at [26] (Handley JA, McColl JA agreeing); [117] (in my judgment, Handley and McColl JJA agreeing generally).

36   It is at least arguable (although the issue was not fully addressed on the application) that the reasons required of the Appeal Panel differ in kind from those required of the specialist. While two members of the Appeal Panel are approved medical specialists, the third is an arbitrator. An arbitrator must be an Australian lawyer or someone having other relevant qualifications, skills or experience: s 369(3). He or she may therefore be expected to have some understanding of the kinds of reasons required to be given by quasi-judicial bodies. Further, no review of an Appeal Panel decision is available by other experts: the decision of the Appeal Panel is thus the final decision on the merits in respect of a medical dispute and is ‘conclusively presumed to be correct’ for the purposes identified in s 326(1), even though it is in form a confirmation of the certificate issued by the approved medical expert. Because the only forum for challenging such a decision is the Court, it might be considered appropriate that the reasons should be transparent to lawyers advising a claimant and to the Court. On the other hand, the reasons will resolve a ‘medical dispute’ and it is thus inevitable that they may adopt terminology and reach conclusions in terms which will not be fully comprehensible to persons without medical training or experience.”

79. It has not been demonstrated that Dr Truskett was required to do any more than he did for the purpose of ensuring procedural fairness to the Plaintiff during the examination on 16 December 2019 before issuing the Medical Assessment Certificate dated 8 January 2020. A good example of compliance with the requirement of procedural fairness which arose in the circumstances of the Plaintiff’s case is Dr Truskett’s chance observations of the Plaintiff before the examination, and his capacity to contrast that aspect with what he observed during the examination. Dr Truskett raised that issue directly with the Plaintiff for comment (see [31] above). Further, Dr Truskett raised for comment what appeared to be an unusual feature concerning the Plaintiff’s use of a walking stick (see [31] above). Had Dr Truskett not raised with the Plaintiff his own observations made before the examination commenced, there would have been practical injustice to the Plaintiff because the Approved Medical Specialist would have relied upon his own private observations of the Plaintiff outside the examination room without raising those observations for comment by the Plaintiff: cf Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW (2010) 56 MVR 108; [2010] NSWSC 833 at [21]-[25]; Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558 at [73]-[95].

80. With respect to the Plaintiff’s right shoulder, Dr Truskett undertook a physical examination of the Plaintiff and had regard to all the material furnished to him including the letters from Dr Kemp in 2012 and 2013 referred to in the Medical Assessment Certificate (see [27], [37] and [40] above). It should be kept in mind that the task being undertaken by Dr Truskett was to assess the degree of impairment of the Plaintiff arising from the workplace incident on 8 June 2011 by reference to a number of parts of his body including the right upper extremity (right shoulder). Dr Truskett undertook that task and reported on it in the Medical Assessment Certificate.

81. Dr Truskett was entitled to refer to the reports and materials which had been furnished to him for the purpose of his examination of the Plaintiff. He was entitled to rely upon the contents of Dr Kemp’s letters concerning the Plaintiff’s right shoulder. As Dr Truskett noted, Dr Kemp’s letter of 6 September 2012 referred to the Plaintiff’s right shoulder and the presence of “significant capsulitis”. Dr Kemp’s letter of 18 March 2013 recorded very significant improvement with the Plaintiff having “almost fully resolved his frozen shoulder”. Dr Kemp stated that he would only see the Plaintiff again “if he is having trouble” with the right shoulder. Dr Kemp did not review the Plaintiff again (see [27] above). It was open to Dr Truskett to note the absence of any follow-up medical treatment for the Plaintiff concerning the right shoulder after Dr Kemp’s 2013 letter. It was likewise open to Dr Truskett to conclude that the Plaintiff’s right shoulder injury reported on by Dr Kemp on 6 September 2012 and 18 March 2013 had later resolved with the result that there was no right shoulder injury to be linked causally to the workplace incident on 8 June 2011.

82. It should be noted that a medico-legal report of Dr Harrington dated 6 August 2019 pointed to a reduction in right shoulder movement which was said to be “unrelated” (see [40] above). The parties were on notice before Dr Truskett examined the Plaintiff that there was a live issue concerning the right shoulder.

83. It is not the case that the Medical Assessment Certificate, fairly read, involved a finding of impairment to the Plaintiff’s right shoulder which was sought to be explained directly by reference to some other subsequent incident. Rather, the Medical Assessment Certificate indicated that, if the Plaintiff was experiencing any problems with his right shoulder as at 16 December 2019 (which was an open question), there was no causal link between such an injury and the workplace incident on 8 June 2011.

84. It is true that Dr Truskett used infelicitous language in his conclusion with respect to the Plaintiff’s right shoulder. Dr Kemp’s letter of 18 March 2013 did not state expressly that there had been “full recovery” or “complete recovery” from the right shoulder injury (see [37] and [39]-[40] above). However, it was open to Dr Truskett to so conclude in light of Dr Kemp’s letter of 18 March 2013 and the absence of any follow up concerning the right shoulder.

85. It is important to keep in mind that Dr Truskett had been requested to determine, amongst other things, whether there was any impairment to the Plaintiff’s right upper extremity (right shoulder) as a result of the workplace incident on 8 June 2011. Dr Truskett did not find impairment to the right shoulder arising from the events on 8 June 2011 and he provided his reasoning for this conclusion.

79. It is also the case, as the Appeal Panel observed, that Dr Truskett used inapt language in using the term “deducted” with respect to the right shoulder (see [37], [39] above). As Dr Truskett stated correctly, there was no deduction for any previous injury or pre-existing condition (see [41] above). There was no deduction to be made for the purpose of s.323 WIM Act (see [42] above). The reasoning of Dr Truskett was that no WPI had been demonstrated for the Plaintiff’s right shoulder arising from the workplace incident on 8 June 2011.

80. I am not satisfied that there was a denial of procedural fairness nor unreasonableness in the conclusions reached in the Medical Assessment Certificate. Although, as the Appeal Panel noted, there may have been some looseness in the language used in this respect, this aspect was understood and explained sufficiently by the Appeal Panel in its decision (see paragraphs 29-37 at [50] above). The reasons of the Approved Medical Specialist, as contained in the Medical Assessment Certificate, are to be read fully and fairly in this respect.

81. The Appeal Panel was comprised of a legal practitioner (an Arbitrator) and two Approved Medical Specialists. As noted by Basten JA in Vitaz v Westform (NSW) Pty Ltd (see [78] above), this combination meant that the makeup of the Appeal Panel was different to that of an Approved Medical Specialist determining the assessment process alone.

82. It was open to the Appeal Panel to determine that a further medical examination of the Plaintiff was not necessary in this case: Bojko v ICM Property Service Pty Ltd at [34]. It is noteworthy that the written submissions prepared by counsel for the Plaintiff, in advance of the appeal undertaken by the Appeal Panel, did not themselves urge that a further medical examination was an essential feature of the appeal.

83. The Plaintiff, of course, had no automatic entitlement to a further medical examination merely because he ticked the box on the form asking that it occur. It was a matter for the Appeal Panel to determine whether that step ought be taken. The Appeal Panel determined that it was not necessary for the Plaintiff to undergo further examination (see paragraph 7 at [44] above). This conclusion was open to the Appeal Panel: Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [48]. The approach adopted by the Appeal Panel on this issue does not disclose any basis upon which the Plaintiff is entitled to relief nor does it provide assistance to that claim when considered in conjunction with other arguments advanced on the Plaintiff’s behalf.

84. Contrary to the Plaintiff’s submissions, no error is demonstrated in paragraphs 30-33 of the Appeal Panel’s decision (see [50] above). The Appeal Panel considered closely the reasons provided by Dr Truskett in the Medical Assessment Certificate. It is apparent that, having undertaken that task, the Appeal Panel brought its own independent scrutiny to bear in observing that greater clarity may have been appropriate in some features of the Medical Assessment Certificate (paragraphs 33-44 of the Appeal Panel’s decision at [50] above). This is not a case where the Appeal Panel has simply rubber stamped, without further consideration or scrutiny, the reasoning of the Approved Medical Specialist in the Medical Assessment Certificate.

85. I do not accept the Plaintiff’s submission that there was a fundamental misunderstanding on the part of Dr Truskett which was effectively endorsed by the Appeal Panel with respect to the Plaintiff’s right shoulder.

86. Rather, it is clear that careful attention was given by the Appeal Panel to the reasoning in the Medical Assessment Certificate in light of the submissions made by the parties to the Appeal Panel concerning that aspect which was under challenge in the appeal. The reasoning of the Appeal Panel serves to explain what Dr Truskett had actually found, whilst noting that the finding was open to him as an Approved Medical Specialist.

87. Fairly read, the extent of the finding made by Dr Truskett, and confirmed by the Appeal Panel, was that the Plaintiff’s right shoulder was not impaired as a result of any injury sustained in the workplace incident on 8 June 2011.

88. In my view, the decision of Dr Truskett does not rise above a limited level of untidy reasoning, which falls well short of the requirement for demonstrating unreasonableness in judicial review proceedings. It was open to the Appeal Panel to reach the conclusion which it did. The Plaintiff has not demonstrated illogicality or irrationality of the type which is required to found relief by way of judicial review.

89. It has not been demonstrated that the Plaintiff was denied procedural fairness by the Approved Medical Specialist or the Appeal Panel. Nor has it been demonstrated that there was unreasonableness in the legal sense in the decision making of the Approved Medical Specialist or the Appeal Panel in reaching a decision with respect to the Plaintiff’s right shoulder as part of the assessment process. The Plaintiff has not established jurisdictional error with respect to the decisions made under the WIM Act.

Conclusion

97. The Plaintiff has not made good his claim for relief as sought in the Amended Summons.

98. The ordinary rule is that costs should follow the event: Rule 42.1 Uniform Civil Procedure Rules 2005. There is no reason to depart from that rule so that an order will be made that the Plaintiff should pay the costs of the First Defendant. However, allowance will be made in the orders of the Court in case any party seeks a different costs order.

99. I make the following orders:

1. Amended Summons dismissed;

2. the Plaintiff is to pay the First Defendant’s costs of the proceedings;

3. no order as to costs of the Second and Third Defendants;

4. in the event that a party seeks a different costs order, application is to be made by email to my Associate (and copied to the other affected party or parties) before 4.00 pm on 25 November 2020.

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Decision last updated: 18 November 2020