Kaefer Integrated Services Pty Ltd v Spohn
[2022] NTSC 45
•23 June 2022
CITATION:Kaefer Integrated Services Pty Ltd v Spohn & Ors [2022] NTSC 45
PARTIES:KAEFER INTEGRATED SERVICES PTY LTD
v
SPOHN, Shaun
And
NT WORKSAFE
And
SABETGHADAM, Reza (as chair of the panel appointed under s 72(3A) of the Return to Work Act 1986)
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2021-03115-SC
DELIVERED: 23 June 2022
HEARING DATE: 14 March 2022
JUDGMENT OF: Brownhill J
CATCHWORDS:
Workers’ Compensation – Reassessment of worker’s level of permanent impairment undertaken by a panel under s 72 of the Return to Work Act 1986 (NT) – Further reassessment undertaken to account for new information obtained on the panel’s suggestion – Whether the s 72(4) prohibition on ‘review’ of a reassessment applied – Whether the further reassessment denied the employer procedural fairness – Whether the panel failed to provide adequate reasons – Whether the employer’s request for information was contrary to the Act – No grounds upheld – Relief refused – Originating motion dismissed.
Cambelltown City Council v Vegan (2006) 67 NSWLR 372; Carruthers v Griffis (2000) 111 A Crim R 477; Collector of Customs v Pozzolanic (1993) 43 FCR 280; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Politis v Commissioner of Taxation [1998] FCA 446; (1988) 20 ATR 108; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, applied.
Clayton v Top End Wholesale Distributors (unreported, NTMC, Trigg SM, 22.3.1996); Frost v Kourouche (2014) 86 NSWLR 214; Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31; North Australian Helicopters v Gane [2021] NTLC 007; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; Rigby v Fuller [2021] NTSC 38; Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-147; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; Taylor Enterprises (NT) v Pointon & Work Health Authority [2009] NTMC 29, referred to.
Return to Work Act 1986 (NT) ss 2, 3, 70, 71, 72, 74, 85.
REPRESENTATION:
Counsel:
Plaintiff:T Moses
First Defendant: D Alderman
Second Defendant: D McConnel SC
Third Defendant: No appearance
Solicitors:
Plaintiff:Hunt & Hunt Lawyers
First Defendant: Halfpennys Lawyers
Second Defendant: Solicitor for the Northern Territory
Third Defendant: No appearance
Judgment category classification: B
Judgment ID Number: Bro2205
Number of pages: 47
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINKaefer Integrated Services Pty Ltd v Spohn & Ors [2022] NTSC 45
No. 2021-03115-SC
BETWEEN:
KAEFER INTEGRATED SERVICES PTY LTD
Plaintiff
AND:
SHAUN SPOHN
First Defendant
AND:
NT WORKSAFE
Second Defendant
AND:
REZASABETGHADAM (AS CHAIR OF THE PANEL APPOINTED UNDER S 72(3A) OF THE RETURN TO WORK ACT 1986)
Third Defendant
CORAM: BROWNHILL J
REASONS FOR DECISION
(Delivered 23 June 2022)
This case concerns a claim for workers compensation under the Return to Work Act 1986 (NT) and reassessment of the worker’s level of permanent impairment by a medical panel under s 72 of that Act. The issues are: (1) whether the prohibition on ‘review’ of a reassessment by a medical panel prevented a further reassessment by the panel of that level of impairment after an initial reassessment had been made by the panel; (2) whether the further reassessment denied the employer procedural fairness because the employer was not provided with a medical study relied on by the panel or invited to make submissions to the panel about the results of that study; (3) whether the panel failed to provide adequate reasons disclosing how the further reassessment was determined; and (4) whether the employer’s request, made after the further reassessment was done, for that study (which it subsequently obtained) and answers to various questions was permissible under the Act.
Background
The facts and procedural background are not in dispute.
The plaintiff (‘KIS’) was the employer of the first defendant (‘Mr Spohn’). On or about 31 July 2019, Mr Spohn suffered an injury to his right ankle, foot and leg arising out of, or in the course of, his employment with KIS. Mr Spohn made a claim for compensation (‘Claim’) under Part 5 of the Return to Work Act 1986 (NT) (‘the Act’). Pursuant to s 85 of the Act, KIS accepted liability for compensation in respect of the Claim.
The amount of compensation payable to Mr Spohn is to be determined in accordance with Div 3 of Part 5 of the Act. Pursuant to s 71 of the Act, a worker who suffers permanent impairment may be entitled to compensation for that impairment. ‘Permanent impairment’ means an impairment(s)[1] assessed, in accordance with the guides approved and published by the second defendant (‘NT Worksafe’), as being an impairment, or combination of impairments, of not less than 5% of the whole person (s 70). The approved guides are the Guidelines for the Evaluation of Permanent Impairment dated August 2018 (‘Guides’).
The entitlement and amount of compensation is determined on the basis of an assessment of the worker’s permanent impairment assessed at a percentage of the whole person (‘WPI’). A worker whose WPI is assessed at:
(a)less than 5% is not entitled to compensation for permanent impairment (ss 70, 71(3));
(b)between 5% and 14% is entitled to a specified percentage of 208 times average weekly earnings (s 71(3));
(c)between 15% and 85% is entitled to that assessed percentage of 208 times average weekly earnings (s 71(1), (2)); and
(d)85% or over is entitled to 208 times average weekly earnings (s 71(2)).
Section 72 provides for the assessment of the level of impairment for the purposes of s 71. In the first instance, the level of impairment is to be assessed by a medical practitioner (s 72(2)).
On 19 October 2020, Mr Spohn provided KIS with an initial assessment under s 72(2) which assessed his WPI at 18%.
A person aggrieved by an initial assessment may, within 28 days after being notified of the assessment, apply to NT Worksafe for a reassessment (s 72(3)). If satisfied that the assessment was properly conducted in accordance with the Guides (s 72(3B)), NT Worksafe is required to refer an application for reassessment to a panel of three medical practitioners to reassess the level of permanent impairment (s 72(3A)). An assessment made by a panel under s 72(3A) is taken to be the level of impairment suffered by the worker for the purposes of s 71 and is not subject to review (s 72(4)). The costs incurred in carrying out an assessment or reassessment under s 72 are to be paid by the employer (s 72(5)).
Where an application is made for a reassessment under s 72(3), compensation is payable under s 71 no later than 28 days after the applicant is notified of the reassessment (s 71(4)(b)).
On 4 November 2020, KIS applied for a reassessment. Between 10 and 14 December 2020, NT Worksafe convened a panel and referred the application for reassessment to the panel through an intermediary medical opinion and advisory service provider, eReports. Mr Spohn was separately examined by each of the three panel members between 4 and 18 January 2021. On 17 April 2021, eReports provided NT Worksafe with the panel’s reassessment (‘the Initial Reassessment’). On 21 April 2021, the Initial Reassessment was provided to Mr Spohn.
The Initial Reassessment assessed Mr Spohn’s WPI at 4%, based on 2% WPI for a scar over the ‘lateral malleolus’ (which is the foot end of the fibula, the smaller bone of the lower leg) and 2% WPI for restricted range of motion of the toes in the right foot. The Initial Reassessment stated that the neurological examination of Mr Spohn was inconsistent and to determine whether there was any neurological deficit, the panel would require an objective nerve conduction study of the ankle and foot to enable evaluation of possible peripheral neuropathy.
On 21 April 2021, Mr Spohn asked that a nerve conduction study be done. NT Worksafe directed Mr Spohn to obtain a referral from his treating doctor and said it would provide the referral to eReports to arrange a nerve conduction study for the panel’s consideration and so they could ‘review their evaluation accordingly’. NT Worksafe notified KIS of this the following day. KIS did not object to this proposal, nor seek to be heard in relation to it, nor seek to be provided with a copy of the nerve conduction study before it was provided to the panel, nor propose any further investigations, nor seek to put any other information before the panel.
On 13 July 2021, NT Worksafe informed Mr Spohn that the Initial Reassessment was ‘set aside’ and that the panel would provide a new report after considering the nerve conduction study results. At the same time, KIS was informed of this. KIS submitted to NT Worksafe that it did not have the power to set aside the Initial Reassessment, but accepted that the panel could provide an amendment to the Initial Reassessment following consideration of the nerve conduction study. NT Worksafe acknowledged to KIS that it did not have the power to set aside the Initial Reassessment.
On 3 August 2021, NT Worksafe provided Mr Spohn with a further reassessment of his WPI (‘Further Reassessment’). The Further Reassessment largely replicated the Initial Reassessment, but added consideration of the nerve conduction study (and other matters) and assessed Mr Spohn’s WPI at 15%, based on the 4% WPI identified in the Initial Reassessment, plus 10% WPI for ‘nerve injury’ and 1% for ‘need for future orthotics’. KIS argued that the Further Reassessment is a ‘review’ of the Initial Reassessment and is not permitted by s 72(4) of the Act, and alternatively alleged that the Further Reassessment was prepared without according KIS procedural fairness, and/or does not provide adequate reasons for the panel’s reassessment of Mr Spohn’s WPI.
On 3 August 2021, KIS requested NT Worksafe provide it with a copy of the nerve conduction study. NT Worksafe replied that it did not have a copy.
On 10 August 2021, KIS wrote to eReports seeking a copy of the nerve conduction study and clarification of various matters about the Further Reassessment (‘Request for Information’). The correspondence was copied to Mr Spohn and NT Worksafe.
On 11 August 2021, eReports responded to the Request for Information saying any response should be sought from NT Worksafe. On the same day, NT Worksafe responded that the Request for Information was an attempt to review the Further Reassessment contrary to s 72(4) of the Act and NT Worksafe had instructed eReports not to provide KIS’s letter to the panel.
Subsequently, KIS obtained a copy of the nerve conduction study directly from the medical practitioner who undertook the study. However, KIS did not receive answers to its questions about the Further Reassessment as sought in the Request for Information.
Relief sought
KIS claimed an order in the nature of certiorari quashing the Further Reassessment on the bases that it was ultra vires or contrary to s 72(4) of the Act or made in denial of procedural fairness to KIS; a declaration that the Further Reassessment is invalid; a declaration that the Request for Information was lawful and not contrary to s 72(4) of the Act; and a declaration that KIS is not required by s 72(5) of the Act to pay the costs of either the Initial Reassessment or the Further Reassessment.
NT Worksafe opposed KIS’s claims. Mr Spohn adopted the submissions of the second defendant. The third defendant took no active part in the proceedings.
Is the Initial Reassessment an ‘assessment’ within s 72(4)?
Section 72(4) of the Act provides as follows:
72 Assessment of permanent impairment
…
(4) An assessment made by a panel under subsection (3A) as to the degree of permanent impairment of a worker:
(a)is taken to be the level of permanent impairment suffered by the worker for the purposes of section 71; and
(b)is not subject to review.
KIS argued that the Initial Reassessment fell within s 72(4), with the consequence that the assessed WPI of 4% was, by s 72(4)(b), taken to be the level of permanent impairment suffered by Mr Spohn for the purposes of s 71, and that that assessment could not be varied by the panel.
NT Worksafe argued that the Initial Reassessment left open the prospect of a further reassessment on the provision of additional information (the nerve conduction study) and consequently was not a reassessment within s 72(4) without that information. It emphasised that the first instance assessment had included a percentage impairment for peripheral neuropathy, and argued that the Initial Reassessment was incomplete without consideration of that issue. Consequently, the assessed WPI of 4% was not the level of permanent impairment suffered by Mr Spohn for the purposes of s 71, and that reassessment could be varied upon consideration of the further information.
Resolution of this question turns significantly on construing the Initial Reassessment. It is trite that, on judicial review, the reasons of an administrative decision maker are ‘not to be construed minutely and finely with an eye keenly attuned to the perception of error’.[2] Furthermore, the Court should read the reasons as a whole and not read passages in isolation or take particular passages out of context.[3] That principle must be borne in mind when considering the meaning and effect of the Initial Reassessment.
KIS argued that, by s 72(4), a reassessment falling within its terms cannot be reopened or varied. The essential premise to that argument is that the Initial Reassessment is a reassessment falling within s 72(4).
The original assessment by the medical practitioner under s 72(2)[4] expressed the opinion that Mr Spohn’s injury was stable and permanent and assessed Mr Spohn’s WPI at 18% based on a 45% lower extremity impairment comprised of:
(a)5% for deformity from a fifth toe fracture resulting in loss of weight transfer involving the fifth toe;
(b)2% for metatarsalgia involving the second toe;
(c)7% for lower extremity impairment in extension range of motion between 0-10 degrees;
(d)5% for dysesthesia (nerve deficit) to each of the peroneal, medial plantar and lateral plantar nerves; and
(e)25% for skin loss to the heel covering.
The Initial Reassessment[5] was written by the third defendant (‘the chair of the panel’), an Occupational Physician. The other two members of the panel were Orthopaedic Surgeons. All three members of the panel conducted examinations of Mr Spohn. The examination by the chair of the panel was conducted over audiovisual link (referred to as a ‘Telehealth assessment’). The Initial Reassessment expressed the opinion that Mr Spohn’s injury had reached maximum medical improvement and assessed Mr Spohn’s WPI at 4% comprised of:
(a)2% WPI for scarring; and
(b)2% WPI for restricted range of motion of second, third, fourth and fifth toes.
The Initial Reassessment then stated as follows:
Neurological examination of Mr Spohn was inconsistent sensory loss in medial calcaneal nerve which based on Table 17-37, Page 552[6], there is no rateable impairment for this nerve. Mr Spohn[7] symptoms of sensory alteration was inconsistent and unreliable.
The inconsistent symptoms were not explanatory of any neurological deficit. However, if Mr Spohn believes that he suffers from a neurological deficit, in order to prove that the Panel would require an objective nerve conduction study of left ankle and foot for objective evaluation of any possible peripheral neuropathy.
The Panel did not consider Table 17.36 in relation to skin loss. The justification for that is the skin loss treated well with skin graft and the graft healed very well with minimal trophic changes that accordingly assessed for the impairment. The pictures are attached.
Final combined impairment rating is 4% whole person impairment.
KIS pointed to the final sentence and emphasised that the panel did give consideration to the neurological symptoms seen on examination. KIS argued that the panel concluded that those neurological symptoms did not demonstrate any rateable impairment, so the panel’s WPI assessment was complete and fell within s 72(4).
The difficulty with that argument is that the panel expressly raised the provision of further information which could bear upon its WPI assessment, namely, the nerve conduction study, which would enable evaluation of possible peripheral neuropathy. Considered in the context of the first instance assessment, which identified a component of WPI for nerve deficits, the Initial Reassessment must be construed as having assessed Mr Spohn’s WPI without finally determining whether there was peripheral neuropathy or whether that possible condition had an impact on Mr Spohn’s WPI. Consequently, it did not purport to be, and was not, a complete assessment ‘as to the degree of permanent impairment’ of Mr Spohn within s 72(4) of the Act. In these circumstances, the Initial Reassessment was not an assessment within s 72(4) because it was incomplete.
So much is confirmed by the Further Reassessment, which is in almost identical terms to the Initial Reassessment, save that it refers to the nerve conduction study report as an additional document, assesses Mr Spohn’s WPI as 15% and replaces the initial text regarding the neurological examination and skin loss set out in paragraph [27] above with the following:
On the neurological examination, Mr Spohn symptoms of sensory and motor alteration was inconsistent and unreliable. However, the nerve conduction study revealed Sensory loss in sural nerve and motor loss in peroneal nerve in right lower limb. Based on objective numbers calculation in the report of nerve conduction study and reported symptoms, the panel conclude conclude that Mr Spohn sustained approximately of grade 2 of sensory nerve injury based on table 16-10 AMA 5, which is equal to 70% injury to Sural nerve. He feels dysesthesia and sensory loss with some activities of the daily living and he receives 70% of sural nerve injury in either component. 70% X (2%) of sensory loss and 70% X (5%) of dysesthesia. It gives us (2%) LEI of sensory loss and (4%) LEI of dysesthesia. In regard to right peroneal nerve motor loss, he receives the grade 3 of motor loss he had complete range of motion against gravity in that dermatome which is approximately 50% of motor loss based on table 16-11 of AMA5. 50% X (42%) LEI related to motor branch of peroneal nerve he receives 21% of LEI. We combined the 21% with 4% and 2%. That provided 26% LEI which is equal to 10% WPI.
The Panel initially did not consider Table 17.36 in relation to skin loss. The justification for that is the skin loss treated well with skin graft healed very well with minimal trophic changes that accordingly assessed for the impairment. The pictures are attached. However, the panel reviewed the examination section of Mr Spohn done by the physiotherapist he suffered from liquidlike and soft texture in the heal. We did not examine him in person and this liquidlike and soft texture of the right heel if represents the loss of heel fat pad, it will receive an extra impairment rating due to skin scar. It. must be assessed based on table 17-36 of AMA 5. In that calculation he receives 25% lower extremity impairment converted to 10% WPI. Then it must be replaced with 2% WPI skin scar. This provides higher impairment rating. However, please note this is highly technical examination and could be judged only be an expert examiner. I am as the chair panel happy to do this face-to-face examination if it is requested, but there is no guarantee that examination confirms heel fat pad loss.
There would be two possible scenarios of WPI rating calculated:
1) 10% WPI related to nerve injury, combined with 2% WPI related to skin scar, combined with 2% WPI related to abnormal range of motion of the joints and combined with 1% WPI for need for future orthotics. It provides us a total of 15% WPI.
Final combined impairment rating is 15% whole person impairment.
There is potential in terms of face-to-face evaluation of heel fat pad that may increase the WPI.
That new section indicates that, having been provided with the nerve conduction study, the panel considered the presence of peripheral neuropathy, concluded it was present, and assessed it as contributing 10% WPI to Mr Spohn’s WPI of 15%.
In my view, s 72(4) does not, in its terms or otherwise, preclude a panel undertaking a reassessment of a person’s WPI in stages on the basis of initial information provided to it, and further information provided to it subsequently.[8] KIS conceded that it would have been open to the panel to provide, acknowledging a need for a further investigation, a preliminary or indicative reassessment of Mr Spohn’s WPI followed by a final reassessment on the basis of additional information. The argument was that this was not what the panel had done because the WPI as assessed by the Initial Reassessment was expressed to be ‘final’, there was no mention of it being an indicative or preliminary assessment, and the possibility of further consideration by the panel and revision of the assessed WPI was expressed to be contingent on Mr Spohn’s election to participate in a nerve conduction study.
The Initial Reassessment must be read as a whole and the reference to the ‘Final’ WPI must be read in the context of the panel’s observations about the nerve conduction study. That completion of the reassessment was contingent on Mr Spohn’s election to participate is neither surprising nor inconsistent with the legislative purpose of efficient and timely resolution of disputes between workers and employers about compensation payable under s 71.[9] It is not surprising because a nerve conduction study could not be undertaken without Mr Spohn’s participation and consent. It was not inconsistent, in this case, because Mr Spohn made the election the day the Initial Reassessment was provided to him, and the referral for the nerve conduction study from Mr Spohn’s doctor was provided to eReports a week later. Mr Spohn’s election did not cause any significant delay in the resolution of the dispute.
I note that the Guides provide that, as a general principle, the medical assessor should not order additional radiographic or other investigations purely for the purpose of conducting an assessment of permanent impairment ([1.37]). However, if the investigations previously undertaken are not as required by the Guides or are inadequate for a proper assessment to be made, the medical assessor should ‘consider the value of proceeding with the evaluation of permanent impairment without adequate investigations’ ([1.38]). A medical assessor may order an investigation in circumstances where the assessor considers that further investigation ‘is essential for a comprehensive evaluation to be undertaken and deferral of the evaluation would considerably inconvenience the claimant’ ([1.39]). These paragraphs, particularly [1.38], offer little guidance to a panel as to whether it should proceed with the assessment where an additional investigation could permit a complete assessment of permanent impairment. They do, however, offer some support for the construction of the Initial Reassessment as an incomplete assessment, with completion deferred until a nerve conduction study was done. To say, as KIS did, that the panel should not have written any report containing any WPI assessment if it considered that a nerve conduction study was necessary does not really address the situation that the panel wrote the Initial Reassessment as it did. These paragraphs of the Guides do not alter the construction of the Initial Reassessment referred to above, which takes into account the statement that a nerve conduction study would allow ‘objective evaluation of any possible peripheral neuropathy’. The implication is that such evaluation was not possible without that study.
When the Initial Reassessment is construed as an incomplete assessment of Mr Spohn’s WPI, it must be accepted that the Further Reassessment, which considered the existence and effect on Mr Spohn’s WPI of the possible condition identified in the Initial Reassessment, was not prohibited by s 72(4). In effect, the Initial Reassessment was not a complete or final reassessment within that provision.
It follows that the Further Reassessment is not ultra vires or invalid for being contrary to s 72(4).
Can a reassessment within s 72(4) be reopened or varied?
The above conclusion makes it unnecessary to consider this question because it disposes of the premise of KIS’s argument about the Initial Reassessment.
Given that the term ‘review’ is not defined in the Act, the word is capable of numerous ordinary meanings, the parties agreed that it does not preclude judicial review by the Supreme Court, and prior decisions of the Work Health Court have held that that Court has jurisdiction to inquire into and determine disputes as to the validity of the process commenced by the worker under ss 71 and 72 of the Act,[10] the question is not easily answered.
Furthermore, there are a wide variety of circumstances in which the question might actually arise for determination. For example, a panel may realise, immediately after its reassessment report is provided to the worker, that it made a simple arithmetical error in calculating the WPI figure set out in its report, and wish to correct that error. Alternatively, a worker may, upon reading the reassessment report, note that the panel omitted from its consideration one of the conditions suffered by the worker, and the worker may wish the panel to incorporate that consideration and revise its WPI assessment accordingly. Alternatively, an employer may note that the panel has applied the wrong table from the Guides to its assessment, and seek to have the panel revise its WPI assessment accordingly. The unnecessary determination of this question in this case could have broad implications.
Furthermore, NT Worksafe responded to KIS’s argument about the Initial Reassessment by attacking the premise (as it was entitled to do), so I did not hear full argument from both parties regarding this question, consideration of which requires the application to s 72 of authorities about the reopening of exercises of statutory power[11] and the legislative intention of s 72(4) as gleaned from the terms of the Act and extrinsic legislative materials.[12]
Consequently, it is not appropriate for the answer to this question to be determined in this matter, when it is not necessary because the Initial Reassessment was not an assessment within s 72(4) of the Act.
Further Reassessment and procedural fairness
Both parties accepted that a reassessment by a panel under s 72 affects the financial interests of both a worker and an employer, and that there is nothing in the Act to displace the general presumption that such a statutory power is to be exercised in a manner that affords procedural fairness to both the worker and the employer.[13]
KIS argued that there was a breach of procedural fairness because it was not given the opportunity to be heard in relation to the obtaining of a nerve conduction study, or the impact of the nerve conduction study on the panel’s assessment of Mr Spohn’s WPI. Further, KIS was not provided with the nerve conduction study before its consideration by the panel.
It is trite that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case, and the statutory framework within which a decision maker exercised the statutory power;[14] procedural fairness is essentially practical in that the concern of the law is to avoid practical injustice;[15] that notice and an opportunity to be heard before a decision is made are generally regarded as fundamental; and that the purpose of notice is to enable participation in whatever manner is appropriate in the particular circumstances of the case.[16]
KIS relied on the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak.[17] The case involved an opinion on medical questions given by a medical panel pursuant to workers’ compensation legislation in Victoria. An opinion was given by a panel in relation to a claim for statutory compensation and the Magistrates Court dismissed the worker’s claim on the basis of the panel’s opinion. The worker also made a serious injury claim and the issue was whether the County Court was bound by the panel’s opinions in determining the serious injury claim. The High Court held it was not. The High Court also held that the reasons of the panel were inadequate, comprising an error of law on the face of the record. In so doing, the Court held (at [47]) that the panel was obliged to observe procedural fairness so as to give an opportunity for parties who will be affected by the opinion to supply the panel with material which may be relevant to the formation of the opinion and to make submissions to the panel on the basis of that material, which submissions may seek to persuade the panel to adopt reasoning or conclusions expressed in the opinions of other medical practitioners.
Both KIS and NT Worksafe accepted that the legislative scheme for the obtaining of opinions from a medical panel in Victoria was more prescriptive and formal than the scheme laid down by ss 71 and 72 of the Act. In any event, NT Worksafe did not seriously dispute that the obligation of procedural fairness in s 72 included the opportunity to supply information to the panel and make submissions to the panel on the basis of that material. Essentially, NT Worksafe argued that KIS had that opportunity.
In seeking the reassessment pursuant to s 72, KIS provided to NT Worksafe, for provision to the panel, all the documents it wished the panel to have before it, and raised some matters it wished the panel to consider in relation to whether Mr Spohn’s injury had reached maximum medical improvement given a possible treatment option of amputation of Mr Spohn’s little toe.[18] These documents, and other documents provided by Mr Spohn, were provided to the panel.[19] One of the documents included a report in which such surgical treatment options were referred to.[20] The Initial Reassessment was provided to both Mr Spohn and KIS on 21 April 2021.[21] As set out in paragraphs [27]-[30] above, the panel identified the need for a nerve conduction study. On the same date, Mr Spohn emailed NT Worksafe (via his wife) asking that the panel consider a nerve conduction study.[22] On 22 April 2021, NT Worksafe emailed Mr Spohn (via his wife) advising him to obtain a referral from his treating doctor for a nerve conduction study, and stating that once the nerve conduction study was done it would be provided to the panel to consider and ‘review their evaluation accordingly’.[23] On the same date, NT Worksafe emailed the panel (via eReports) about this[24] and (separately) emailed KIS (via its insurer’s solicitors) noting that Mr Spohn had asked for a nerve conduction study to be done and advising that once the panel had considered the nerve conduction study, it would ‘review [its] evaluation accordingly’.[25] On 29 April 2021, NT Worksafe provided the referral for the nerve conduction study to the panel (via eReports) to arrange for an appointment for Mr Spohn to have the nerve conduction study done.[26] On 8 June 2021, KIS emailed NT Worksafe (via its insurer’s solicitors) noting that NT Worksafe had agreed to and was arranging the nerve conduction study and asked whether the nerve conduction study had been completed and whether the panel’s reassessment report was expected and, if so, when.[27] On the same date, NT Worksafe emailed KIS (via its insurer’s solicitor) advising that the nerve conduction study had yet to be done and that it would be followed up with eReports.[28] On 13 July 2021, NT Worksafe emailed Mr Spohn and copied in KIS (via its insurer’s solicitors) noting that the nerve conduction study had been ‘recently completed’ and stating that the Initial Reassessment ‘is set aside’ and that the panel would provide a new report once it had considered the nerve conduction study results.[29] On the same date, KIS (via its insurer’s solicitors) emailed NT Worksafe and copied in Mr Spohn, stating that NT Worksafe does not have the power to ‘set aside’ the Initial Reassessment, but that it was possible for the panel to provide an amended report following their consideration of the results from the nerve conduction study, and that KIS considered the Initial Reassessment remained ‘on foot’ but acknowledged that an amended report would be provided.[30] Confirmation that there was no power to set aside the Initial Reassessment was sought. On the same date, NT Worksafe emailed KIS (via its insurer’s solicitors) confirming that NT Worksafe was awaiting an amended report from the panel and acknowledging that it did not have power to set aside the Initial Reassessment.[31] On 3 August 2021, the Further Reassessment was sent to KIS (via its insurer’s solicitors) and Mr Spohn.[32]
KIS was aware, from the first instance assessment under s 72(2), that peripheral neuropathy was a matter the panel was likely to give consideration to. Despite being aware, from 21 April 2021, of the possibility of a nerve conduction study being ordered and provided to the panel to consider in its reassessment of Mr Spohn’s WPI, KIS did not raise any objection to that course, nor seek to have any other investigation done, nor seek to put any submission to the panel about the relevance or otherwise of such a study. Despite being aware, from 22 April 2021, that that possible course was to be undertaken, KIS did none of those things. Nor did it seek to be provided with a copy of the nerve conduction study report before it was sent to the panel, nor did it seek to put any submissions to the panel about the nerve conduction study or any other investigations that had been, or should be, done. From at least 13 July 2021, KIS accepted that the panel could ‘amend’ its report to take into account the results of the nerve conduction study. The only thing KIS raised or took issue with was the notion that NT Worksafe could ‘set aside’ the Initial Reassessment, a matter which NT Worksafe accepted. In this proceeding, KIS has not pointed to any concern it had with the nerve conduction study (a copy of which it had obtained sometime prior to 1 October 2021) or what it would have said to the panel if given the opportunity to be heard that it argued it was denied.
KIS was not expressly required or invited to indicate its position in relation to the proposed course of obtaining a nerve conduction study for the purpose of the panel’s consideration and reassessment of Mr Spohn’s WPI. However, KIS was informed of the proposed course, and had ample time and opportunity to object to the proposed course, to propose other investigations, to seek to be provided with the results of the nerve conduction study before its consideration by the panel, and to seek to put submissions to the panel about the nerve conduction study. KIS was represented and advised by a solicitor during the relevant period.
When KIS did take issue with the proposed course (‘setting aside’ the Initial Reassessment), it said so. It did not identify anything else it could have said that might have made a difference to the outcome. These matters indicate that KIS was aware of its ability to be heard about the proposed course, to seek a copy of the nerve conduction study before its consideration by the panel, and/or to put submissions to the panel, and chose not to do so, essentially (it must be inferred) because it had nothing to say.
In effect, by the opportunity to put its position in relation to the first instance assessment, by the Initial Reassessment and by the notifications from NT Worksafe about the proposed course for the nerve conduction study, KIS was given the opportunity to be heard in relation to the nerve conduction study and the panel’s consideration of it and was not denied procedural fairness.
KIS argued that it did not object to the proposal for the nerve conduction study and the panel’s consideration of it because that proposal was, in effect, a fait accompli. That argument sits uncomfortably with KIS’s expressed acknowledgement, while taking issue with NT Worksafe’s power to set the Initial Reassessment aside, that the panel could ‘provide an Amended Panel Report following their consideration of the results from the nerve conduction studies.’[33]
Provision of the nerve conduction study to KIS before it was considered by the panel was not a necessary part of the scope of what procedural fairness required in all the circumstances of this case. While it would have been prudent to provide KIS with the nerve conduction study at the outset, it was sufficient that KIS were informed that a nerve conduction study was to be put before the panel consequent upon the panel’s observations in the Initial Reassessment. KIS could then be heard in relation to that proposed course (if it chose to say anything), and could then have sought the nerve conduction study (if it wished to review it), supplied any additional information to the panel (such as another investigation) or put submissions to the panel about the nerve conduction study or the other investigations. In the circumstances, there was no denial of procedural fairness in relation to the nerve conduction study.
Even if there was a breach of the obligation to accord procedural fairness, the relevant question then would be whether it was unfair for the panel to consider the nerve conduction study without it being provided to KIS first, because that might have made a difference to the outcome. In circumstances where KIS did not point to anything in the nerve conduction study (which it obtained before commencement of these proceedings) or the panel’s consideration of its effect on the reassessment of Mr Spohn’s WPI with which it takes issue, it is not possible to conclude that the prior provision of the nerve conduction study to KIS might have made a difference to the panel’s reassessment.[34]
Further Reassessment and adequacy of reasons
Both KIS and NT Worksafe agreed that, notwithstanding the absence of an express requirement in the Act for the panel to give reasons for its reassessment under s 72, there was a duty to give reasons. The obligation is found in paragraphs [1.46]-[1.50] of the Guides, which is headed ‘Reports’ and refers to a ‘report of the evaluation of permanent impairment’. The debate between the parties was as to whether the Further Reassessment met the required standard and therefore comprised adequate reasons for the panel’s decision.
Both KIS and NT Worksafe also appeared to accept that, if the written reasons fail to meet the required standard for reasons, that failure is itself either an error of law on the face of the record[35] or otherwise a jurisdictional error, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the reassessment.
Standard of reasons of the medical panel
Both parties referred to the following descriptions of the standard of reasons of a medical assessment panel in workplace injury contexts from other jurisdictions. In Wingfoot, the High Court held (at [55]) that the medical panel’s reasons must explain the actual path of reasoning by which the panel in fact arrived at the opinion it formed on the medical question referred to it, and must explain that path in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. In Campbelltown City Council v Vegan,[36] Basten JA (McColl JA agreeing) held (at [121]-[122]) that findings of material facts (if any) should be set out in a medical panel’s reasons; if facts are in dispute some reference to evidence or material on which those findings are based may be necessary; and where more than one conclusion is open, the panel must give some explanation for its preference for one conclusion over another. However, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the panel, at least where the medical science is not controversial; if it is, a more expansive explanation may be required.
The point, however, was made by the High Court in Wingfoot (at [44]-[45]) that the standard required of written decisions to fulfil the statutory duty imposed on a medical panel is to be determined as an exercise of statutory construction and, if necessary, a process of implication. The Court observed that general observations drawn from cases decided in other statutory contexts about the functions served by the provision of reasons for administrative decisions are of limited utility. The Court observed (at [46]) that an important consideration in identifying the standard required of reasons is the nature of the function performed by the medical panel, and (at [47]) that the function of that medical panel was to form and give its own opinion on the medical question referred to it, which it could do by placing weight on a medical opinion supplied to it, but it was not the function of the panel either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function is neither arbitral nor adjudicative; it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on the medical question.
It must be accepted that the statutory contexts in Wingfoot and Vegan are similar, even though not identical, to the Act, which makes the observations set out in paragraphs [58] and [59] above of some assistance, particularly because the function of the medical panel under s 72 of the Act is essentially the same as was there identified. However, the Act requires that a reassessment be made in accordance with the Guides (s 70) and the Guides lay down standards for reports of the assessment of permanent impairment. Those standards, construed with the assistance of the observations of the courts set out in paragraphs [58] and [59] above, are the standards for reasons of a panel that has undertaken a reassessment under s 72 of the Act.
Paragraphs [1.46] to [1.50] of the Guides provide as follows:
1.46 A report of the evaluation of permanent impairment should be accurate, comprehensive and fair. It should clearly address the question/s being asked of the assessor. …
1.47 The report should contain factual information based on all available medical information and results of investigations, the assessor’s own history taking and clinical examination. The other reports or investigations that are relied upon in arriving at an opinion should be appropriately referenced in the assessor’s report.
1.48 As the Guidelines are to be used to assess permanent impairment, the report of the evaluation should provide a rationale consistent with the methodology and content of the Guidelines. It should include a comparison of the key findings of the evaluation with the impairment criteria in the Guidelines. If the evaluation was conducted in the absence of any pertinent data or information, the assessor should indicate how the impairment rating was determined with limited data.
1.49 The assessed degree of impairment is to be expressed as a % WPI.
1.50 The report should include a conclusion of the assessor, including the final % WPI.
Does the Further Reassessment meet the standard?
The first basis on which KIS argued that the Further Reassessment did not meet the standard for written reasons was that the Further Reassessment appeared, on its face, to be a report ‘of the chair of the panel only’. The Further Reassessment was on a letterhead of the chair, was signed by the chair, referred to the chair’s examination of Mr Spohn and his records, referred to the chair’s medical expertise and experience, and was often expressed in the singular first person: ‘I’.
However, the Further Reassessment noted that the chair was asked to chair the panel and ‘write the consolidated report’ with respect to examinations by himself and the two orthopaedic surgeons who made up the panel, stated that the chair had ‘consulted the records of [those two orthopaedic surgeons]’, and was expressed, in some parts, particularly the last two pages, using ‘we’, ‘us’, ‘our’ or ‘the panel’. The instructing letters from NT Worksafe to each of the panel members indicated that the panel was required to submit a single report written by the chair.[37]
KIS argued that it is unclear, on the face of the Further Reassessment, that it was an assessment by the panel, rather than the chair alone. Reading the Further Reassessment as a whole, it purports on its face to be a reassessment by the panel, the reasons for which have been written by the chair. That authorship explains the form of the document, the focus on the chair’s examination and expertise and the expression in the writing. The panel is referred to, the document is described as a ‘consolidated report’, it is written by reference to the notes of the panel members’ examinations and there is no basis otherwise to conclude that it was not endorsed by the other two members of the panel, who would not have fulfilled their duties as panel members if they did not do so.
The second basis on which KIS argued that the Further Reassessment did not meet the standard for written reasons was that ‘two possible scenarios of WPI rating’ were stated to exist, but only one was identified.
The relevant content of the Further Reassessment is set out in paragraph [31] above.
It is reasonably clear that the two possible scenarios referred to are the WPI calculation set out and numbered ‘1’, which includes 2% WPI related to ‘skin scar’, and the alternative higher WPI calculation which would result from replacing that 2% for skin scar with 10% WPI for skin loss, namely heel fat pad loss. This is apparent because: (a) under the heading ‘Determination of permanent impairment rating’, there were separate paragraphs dealing with: ‘scar’; ‘range of motion’; ‘neurological injury’; and then the paragraph about heel fat pad loss; (b) that paragraph commences by stating the panel did not initially consider skin loss because there had been a skin graft which healed well; (c) the skin loss (heel fat pad loss) scenario is the only alternative calculation scenario expressed in the Further Reassessment; (d) that expression appears after, and in a similar form to, the description of the bases for the WPI calculation that is set out as numbered scenario 1, which includes 2% for ‘skin scar’; (e) that expression is set out before the reference to two possible scenarios; and (f) the final sentence in the extract set out in paragraph [31] above confirms that the heel fat pad loss evaluation ‘may increase the WPI’. This structure demonstrates that two alternative calculation scenarios were considered in relation to the components of skin scar on the one hand; and skin loss, namely, heel fat pad loss, on the other. The reference to the ‘two possible scenarios’ then appears, and by way of summary they are listed as the scenario yielding 15% WPI numbered as ‘1’ and the alternative scenario (involving skin loss (heel fat pad loss) rather than skin scar) which may (depending on whether there was actually skin loss (heel fat pad loss)) ‘increase the WPI’ from 15% under scenario 1.
NT Worksafe initially submitted in writing that it did not matter that only one of the two scenarios was identified because all that mattered is the scenario on which the final percentage WPI yielded by the reassessment was based. NT Worksafe submitted orally that there were actually two scenarios identified: one relating to skin graft plus the other components, which yielded 15% in total; and one relating to skin loss, which did not include any of the other components and yielded only 10% WPI in total (but might be more if there was found to be heel fat pad loss). I do not accept that submission. On that construction, the skin loss scenario would exclude, for example, the 1% increase in WPI for orthotics, and there would be no basis to do so. It would also exclude the 10% for nerve injury, and the 2% for abnormal range of motion, which are not matters that would be captured by a WPI for the loss of skin. Furthermore, the only loss of skin referred to in the Further Reassessment is the possible heel fat pad loss. The construction suggested by NT Worksafe was not rationally open.
For the reasons set out in paragraph [67] above, both possible scenarios of WPI rating were identified in the Further Reassessment.
No party submitted that the inclusion of reference to the possibility of examination for heel fat pad loss meant the Further Reassessment was incomplete and was, consequently, not a reassessment within s 72(4) of the Act. Application of the reasoning set out in paragraphs [22] to [36] above might suggest that it was not a reassessment within s 72(4) of the Act. However, no steps have been taken for that examination to be done (noting that the Further Reassessment was circulated in July 2021), there is no suggestion that that examination is sought, and all parties have conducted themselves (including in this proceeding) on the basis that the Further Reassessment was either complete (Mr Spohn and NT Worksafe) or invalid (KIS). In the absence of an order in the nature of certiorari quashing the Further Reassessment and a declaration that it is invalid, on one or more of the grounds pressed by KIS in its originating motion, the Further Reassessment is a valid and legally effective reassessment within s 72(4) of the Act.
The third basis on which KIS argued that the Further Reassessment did not meet the standard for written reasons was that the 15% WPI calculation added 1% WPI ‘for need for future orthotics’. The first complaint was that the only thing left open in the Initial Reassessment was the nerve conduction study, and no reference was made to orthotics. Given the conclusion already reached above that the Initial Reassessment was incomplete and not a reassessment within s 72(4) of the Act, the panel is not precluded from including in its complete and final reassessment an additional matter which had been omitted from an incomplete initial reassessment. I note that the Initial Reassessment makes a number of references to Mr Spohn’s present use of orthotics the majority of the time and the significant pain he suffers in his heel area if barefoot. In that context, it appears that any consideration of Mr Spohn’s need for orthotics was simply overlooked by the panel in the Initial Reassessment.
The second complaint was that there is no expression in the Further Reassessment of the basis on which, by reference to the Guides, the need for orthotics is included in the reassessment. NT Worksafe argued that the basis is found in paragraph [1.32] of the Guides, which provides that the assessor may increase the percentage of WPI by 1, 2 or 3% WPI where the effective long term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn. Where the Further Reassessment identified Mr Spohn’s use of orthotics the majority of the time and his significant pain without them, the basis for the increase to the WPI is adequately explained by the phrase ‘for need for future orthotics’. It is apparent from that content that the panel were of the opinion that orthotics comprise a long term treatment of Mr Spohn’s injury, and have resulted in substantial elimination of his permanent impairment, which would revert to its original degree if those orthotics were withdrawn.
The third complaint was that the Further Reassessment does not set out any reasons as to why the WPI was only increased by 1%, as opposed to 2% or 3%. NT Worksafe’s response was that 1% is the minimum increase permitted under paragraph [1.32] of the Guides and, therefore, while Mr Spohn may have had an interest in knowing why the WPI reassessment was not higher, KIS did not and, consequently, from KIS’s perspective, the reasons were adequate.
At first blush, the notion that the adequacy of reasons for an administrative decision might vary as between the parties whose interests are affected by it sounds novel. That proposition is, however, consistent with the principles set out in paragraph [45] above, particularly that the concern of procedural fairness is practical injustice. Furthermore, the touchstone for reasons for a reassessment, as contained in paragraph [1.46] of the Guides, is that they be ‘accurate, comprehensive and fair’. Is it (relevantly) fair that KIS was not informed, by the Further Reassessment, of the reason why the panel considered that Mr Spohn’s use of orthotics did not warrant more than the minimum available increase in his assessed WPI? On the basis of the conclusion in paragraph [72] above that paragraph [1.32] of the Guides applied, the minimum increase was the best outcome KIS could hope for. It essentially argued that the Further Reassessment should be ordered to have no legal effect because KIS does not know why the outcome for it was not worse. In my view, the absence of an expressed reason why the outcome for KIS was not worse is not unfair in the relevant sense and does not deny characterisation of the Further Reassessment as ‘accurate, comprehensive and fair’.
The fourth complaint was that paragraph [1.32] of the Guides provides that the WPI percentage increase permitted is to be combined with any other impairment percentage using the Combined Values Chart, and there are no reasons in the Further Reassessment explaining how the 1% increase had been combined in accordance with the Combined Values Chart. It is clear from the possible scenario numbered ‘1’ in the Further Reassessment that the 1% for orthotics was simply added to the other WPI percentages for nerve injury, skin scar and abnormal range of motion to yield the WPI of 15%. While the Combined Values Chart is not expressly referred to, it is abundantly clear from this paragraph of the Further Reassessment whether that simple addition was or was not in accordance with the Combined Values Chart and, consequently, was or was not in error. No additional reasoning is required for KIS to know whether an error has been made in making that combination.
The fourth basis on which KIS argued that the Further Reassessment did not meet the standard for written reasons was that they did not express any reasons as to the opinion that Mr Spohn’s injury had reached maximum medical improvement, and made no mention of the possibility of other treatment options such as surgical amputation of the little toe. The Guides provide that assessing permanent impairment involves clinical assessment of the worker as they present on the day of assessment, taking account of the worker’s relevant medical history and all available relevant medical information in order to determine, amongst other things, whether the condition has reached maximum medical improvement ([1.6.1]). Further, assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the worker is unlikely to improve further and has attained maximum medical improvement, which is considered to occur when the worker’s condition is well established and is unlikely to change substantially in the next year with or without medical treatment ([1.15]). Further, if the assessor considers that the worker’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional/different treatment and/or rehabilitation ([1.16]).
Both the Initial Reassessment and the Further Reassessment stated that, in the opinion of the panel, the injury had reached maximum medical improvement as defined in the Guides. No basis is expressed for that opinion, but it follows a lengthy description of the reports from various scans, x-rays and other investigations, Mr Spohn’s reported symptoms, and the chair’s examination of Mr Spohn’s injury.
KIS argued that the Further Reassessment does not disclose whether the potential for further improvement in Mr Spohn’s injury by surgical treatment was considered by the panel in reaching its opinion that the injury had reached maximum medical improvement. There were two bases for this argument. The first was that the issue was not referred to in the Further Reassessment. The second was that KIS’s request to have the panel consider the issue was not provided to the panel. Even if the Further Reassessment did not refer to the issue of surgical treatment, it does not necessarily follow from a failure to refer to a matter in reasons for decision that the decision maker failed to consider the matter, and it may be assumed that all matters necessarily implicit in any conclusion reached have been considered.[38]
In any event, the Further Reassessment referred[39] to a report by Dr Miller dated 29 July 2019 as diagnosing Mr Spohn’s injury and noting referrals for pain management, podiatry and a plastic surgeon. Dr Miller was an orthopaedic surgeon. His report identified two possible surgical options to address Mr Spohn’s little toe and heel injuries, stated that Dr Miller’s main concern about those options was the development of chronic regional pain syndrome, and noted his recommendation that Mr Spohn see an orthotic specialist and a pain specialist and also suggested he see a plastic surgeon in relation to the heel.[40] Dr Miller’s report followed an earlier report by Dr Miller[41] in which Dr Miller stated that there was ‘no real good option surgically’ for the heel, identified the surgical options referred to in his later report, and referred to the risk of chronic regional pain syndrome from those surgeries. Prior to those reports, a report was prepared by Dr Steadman, an orthopaedic surgeon, dated 29 April 2019.[42] In that report, Dr Steadman referred to the possibility of further surgical treatment by way of amputation of the little toe. Subsequently, a report was prepared by Dr Richardson, also an orthopaedic surgeon, dated 17 April 2020.[43] In that report, Dr Richardson stated he had read Dr Miller’s and Dr Steadman’s reports, agreed with Dr Miller’s opinions regarding surgical treatment of Mr Spohn’s heel and little toe because the outcome of these surgeries is ‘quite variable’, observed that some patients prefer to have the little toe amputated, but in most situations the aim, and Dr Richardson’s recommendation, was to exhaust conservative management with footwear modifications ‘with the possibility of surgery to his fifth toe if it remained an ongoing concern’. Dr Richardson also expressed the opinion that Mr Spohn was unlikely to fully recover from the injury. Dr Richardson was the medical practitioner who undertook the original assessment of Mr Spohn’s level of permanent impairment under s 72(2) of the Act. In his report of that assessment, dated 12 October 2020,[44] Dr Richardson expressed the opinion that Mr Spohn’s injuries are stable and permanent, and went on to assess Mr Spohn’s WPI. In other words, Dr Richardson was of the view that the injury had reached maximum medical improvement. All of these reports went to the panel members. In those circumstances, particularly the reference to Dr Miller’s report in the Further Reassessment (which demonstrates that possible surgical treatment was considered by the panel), I do not accept that the reasons in the Further Reassessment are inadequate because it is unknown from the reasons whether the panel considered the issue of further surgical treatment of the heel or the little toe when determining that maximum medical improvement had been reached. In all the circumstances, it may be inferred that that issue was considered by the panel.
NT Worksafe argued that the possibility of surgical treatment was no more than a theoretical possibility and not sufficiently real to cast doubt on the opinion that Mr Spohn’s injury had reached maximum medical improvement, so that possibility was not a matter that the panel need to have considered in reaching its opinion. The reports of Dr Miller and Dr Richardson show that, while these surgical treatments were possible, the outcomes were variable and attended by significant risks, such that conservative management (i.e. non-surgical treatment) was the recommended course. The reports show a rational basis for the opinion of the panel that the injury had reached maximum medical improvement, i.e. was unlikely to change substantially in the next year, with or without treatment. To adopt the language from Vegan set out in paragraph [58] above, the medical science (on the material before the panel) was uncontroversial. Consequently, it is immaterial that Mr Spohn’s solicitor had indicated, after 1 April 2021 and ‘recently’ before 10 August 2021,[45] that Mr Spohn intended to have surgery.[46] The statement of an intention to undertake the surgical treatment does not make the medical science (on the material before the panel) controversial and give rise to a need to expressly refer to the possibility of surgical treatment in the panel’s reasons for its opinion that the injury had reached maximum medical improvement.
For the reasons set out above, the Further Reassessment meets the standard for written reasons of a medical panel undertaking a reassessment under s 72 of the Act.
Further Reassessment and Request for Information
KIS sought a declaration that the Request for Information was lawful and not contrary to s 72(4) of the Act. KIS argued that answers to the Request for Information were a permissible means by which the inadequacies in the written reasons in the Further Reassessment could have been cured, and that it should not have been denied obtaining that cure by NT Worksafe.
Given the above conclusion that the Further Reassessment met the standard for written reasons and was not inadequate, the Request for Information was unnecessary to cure any inadequacies.
However, KIS argued that, even if it was unsuccessful on its other grounds of relief, the declaration sought could be made on the basis that, in refusing to allow the panel to give answers to the Request for Information, NT Worksafe purportedly exercised a power in reliance on a provision which did not provide any basis for what was done.
For the reasons set out above, none of the grounds pressed by KIS to establish that the Further Reassessment is invalid and should be quashed have been made out. As foreshadowed in paragraph [70] above, the Further Reassessment is a valid and legally effective reassessment within s 72(4) of the Act.
On that basis, it is difficult to identify any legitimate purpose which the Request for Information served. The consequences in s 72(4) and (5) and s 73(4)(b) followed, and the only purpose which the Request for Information could have served was to go behind the panel’s reasons to seek further explanation of its reasoning. For example, one of the questions asked in the Request for Information was for identification of ‘the basis and references from the relevant guides for the provision of’ the 1% WPI in respect of orthotics. That is clearly a request for further reasons.
Similarly, the Request for Information inquired as to whether, in concluding that Mr Spohn’s injury had reached maximum medical improvement, the panel had considered the treatment option of surgical amputation of the little toe. The Request for Information asked the panel to advise if that option ‘affects the [p]anel’s views as to whether [Mr Spohn’s] injury has in fact reached maximum medical improvement, which is a prerequisite that has to be satisfied prior to the provision of a WPI assessment for the said injury’. Both the Initial Reassessment and the Further Reassessment stated that, in the opinion of the panel, the injury had reached maximum medical improvement as defined in the Guides. This query was, at least, a request for further reasons as to the basis for that opinion and was, effectively, a request that the panel take into account a particular matter not specifically referred to in the panel’s reasons, and reconsider its reassessment. The last point makes it clear that the Request for Information was inconsistent with the prohibition against ‘review’ in s 72(4)(b) of the Act. Whatever it may mean more broadly, the parties agreed that the term ‘review’ refers to review as to the merits of a reassessment.
Such queries or requests are not permissible under the Act, given the consequences which flow from the provision of a reassessment which falls within s 72 of the Act, and the prohibition against ‘review’ in s 72(4)(b).
That is not to say that a request for clarification of a matter in a reassessment may not be permissible to cure inadequacies in the reasons which would render the purported reassessment one outside s 72(4) liable to be declared invalid and quashed. In the context of the objects of fairness, affordability, efficiency and effectiveness in the scheme, and the degree of informality which the pursuit of those objects permits, there may well be good reasons for concluding that clarification could cure such inadequacies. This decision does not decide that question one way or the other. In this case, there were no such inadequacies so the Request for Information was not permissible. Questions could also arise as to the way in which that kind of clarification would be sought from the panel, and as to the role of NT Worksafe, as the convenor of the panel and the entity with apparent administrative responsibility to provide the panel with the information it needs to perform its task. However, those questions do not arise in this case.
For the above reasons, the Request for Information sought a review of the Further Reassessment precluded by s 72(4) of the Act and was not lawful.
Costs of the reassessments
The claim for a declaration that KIS was not required by s 72(5) of the Act to pay the costs of the Initial and Further Reassessments was pressed as consequential upon the relief sought quashing the Further Reassessment and declaring it to be invalid. For the reasons set out above, that relief is refused. It follows that the consequential relief is also refused. The Initial Reassessment was effectively part of the Further Reassessment so, together, the costs of both reassessments constitute the overall cost of the Further Reassessment, which s 74(5) of the Act obliges KIS to pay.
Disposition
None of the grounds pressed by KIS have been upheld. The relief claimed by KIS is refused and the originating motion is dismissed.
I will hear the parties as to costs.
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[1] ‘Impairment’ is defined by the Act to mean a temporary or permanent bodily or mental abnormality or loss caused by an injury (s 3(1)).
[2] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, citing Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.
[3] See Politis v Commissioner of Taxation [1998] FCA 446; (1988) 20 ATR 108 per Lockhart J.
[4] Affidavit of Peggy Cheong made 1 October 2021 (‘Cheong Affidavit’), Annexure A.
[5] Cheong Affidavit, Annexure C.
[6] This is a reference to the American Medical Association’s Guides for Evaluation of Impairment, Fifth Edition, rather than the Guides. The Guides generally adopt the American Medical Association’s Guides (see paragraph [1.1], Guides).
[7] There are numerous grammatical errors and oddities of expression throughout the Initial Reassessment and the Further Reassessment. I do not intend to identify each of those by use of the term ‘[sic]’. The extracts quoted in these reasons are quoted exactly as they stand in the originals.
[8] See, for example, North Australian Helicopters v Gane [2021] NTLC 007 at [49] per Neill J, where his Honour held that, after a panel conducted a reassessment of a worker’s orthopaedic injuries, it could then be asked in accordance with the Guides to merge its WPI assessment with the WPI assessment made by a neurologist and rehabilitation physician of the worker’s neuro-physical, neuro-psychological and cognitive injuries.
[9] Both parties accepted that this was the purpose of ss 71 and 72. See the object in s 2(c)(i) of the Act.
[10] See North Australian Helicopters v Gane [2021] NTLC 007 at [20]-[22] per Neill J, citing Clayton v Top End Wholesale Distributors (unreported, NTMC, Trigg SM, 22.3.1996) and Taylor Enterprises (NT) v Pointon & Work Health Authority [2009] NTMC 29 at [25], [43] per Lowndes SM.
[11] Such as Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, and such as Rigby v Fuller [2021] NTSC 38, Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31, Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 regarding the equivalent of ss 41 and 43 of the Interpretation Act 1978 (NT).
[12] Such as the ‘Report of the Working Group into the Northern Territory Workers Compensation Scheme’ tabled in the Legislative Assembly on 5 June 2001 and referred to in the Second Reading Speech to the Work Health Amendment Bill (No 2) 2002 in the Legislative Assembly Hansard of 20 June 2002, p 1824.
[13] See Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [74]-[75] per the Court.
[14] See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26] per the Court.
[15] See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]-[38] per Gleeson CJ; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [33]-[36] per Kiefel, Bell and Keane JJ; Frost v Kourouche (2014) 86 NSWLR 214 at [41] per Leeming JA (Beazley P and Basten JA agreeing).
[16] See M Aronson et al, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6th ed, 2017), [8.140]-[8.150].
[17] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (‘Wingfoot’).
[18] Cheong Affidavit, Annexure B.
[19] Affidavit of Kerry Lee-Anne Barnaart made 3 December 2021 (‘First Barnaart Affidavit’), Annexure KLB12.
[20] First Barnaart Affidavit, Annexures KLB3, p 185; KLB12.
[21] First Barnaart Affidavit, Annexure KLB14, p 480.
[22] First Barnaart Affidavit, Annexure KLB14, p 479.
[23] First Barnaart Affidavit, Annexure KLB15.
[24] First Barnaart Affidavit, Annexure KLB16.
[25] First Barnaart Affidavit, Annexure KLB17.
[26] First Barnaart Affidavit, Annexure KLB18.
[27] Affidavit of Kerry Lee-Anne Barnaart made on 14 March 2022 (‘Second Barnaart Affidavit’), Annexure KLB24.
[28] Ibid.
[29] Second Barnaart Affidavit, Annexure KLB25.
[30] Ibid.
[31] Ibid.
[32] First Barnaart Affidavit, Annexure KLB20.
[33] Second Barnaart Affidavit, Annexure KLB25.
[34] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-147 per the Court, cited in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [43] per Kiefel, Bell and Keane JJ, at [56] per Gageler and Gordon JJ.
[35] See Wingfoot at [55].
[36] Cambelltown City Council v Vegan (2006) 67 NSWLR 372 (‘Vegan’).
[37] First Barnaart Affidavit, Annexures KLB6, KLB7 and KLB8.
[38] Carruthers v Griffis (2000) 111 A Crim R 477 at [22] per Mildren J. This observation was made in the context of the decision of a magistrate the subject of an appeal, but it applies equally here in the context of a relatively informal process of decision making by a medical panel drawing conclusions about medical matters within their medical expertise.
[39] Cheong Affidavit, Annexure E, p 38.
[40] First Barnaart Affidavit, Annexure KLB2, p 165.
[41] First Barnaart Affidavit, Annexure KLB2, pp 161-162.
[42] First Barnaart Affidavit, Annexures KLB2, pp 156-157.
[43] First Barnaart Affidavit, Annexure KLB3.
[44] See paragraphs [7] and [26] above.
[45] This was after the panel completed the Initial Reassessment. There is nothing before the Court to establish that this was before the panel completed the Further Reassessment on 29 July 2021.
[46] Cheong Affidavit, Annexure F.
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