McKee v Allianz Australia Insurance Ltd - [2008] NSWCA 163

No judgment structure available for this case.

Reported Decision: 71 NSWLR 609

New South Wales

Court of Appeal

CITATION: McKEE v ALLIANZ AUSTRALIA INSURANCE LTD [2008] NSWCA 163

HEARING DATE(S): 17 June 2008

JUDGMENT DATE:
14 July 2008

JUDGMENT OF: Allsop P at 1; Giles JA at 10; Basten JA at 41

DECISION:
1. Grant leave to appeal and direct that the notice of appeal be filed within seven days.
2. Dismiss the appeal with costs.

CATCHWORDS: ADMINISTRATIVE LAW – exercise of discretion by review panel – exercise of professional judgment by review panel - ADMINISTRATIVE LAW – grounds of review – scope of review – whether review panel restricted to considering matters identified in application for review – whether composition and nature of review panel affects scope of powers - MOTOR ACCIDENTS – medical assessment – powers of review panel under the Motor Accidents Compensation Act 1999 (NSW), s 63 – purpose and structure of Act – whether review panel restricted to considering matters identified in application for review – comparison of schemes for resolution of medical disputes by approved medical specialists under the Motor Accidents Compensation Act 1999 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Motor Accidents Compensation Act 1999 (NSW) Part 3.4, s 63 – Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 326, 327 - STATUTORY INTERPRETATION – delegated legislation as an interpretation tool – whether guidelines on review procedures affect the scope of review panel’s powers - WORDS & PHRASES – “review”

LEGISLATION CITED: Interpretation Act 1987 (NSW), ss 33, 34
Motor Accidents Compensation Act 1999 (NSW), ss 5, 6, 44, 57, 58, 59, 60, 61, 62, 63, 64, 65, 108, 131, 132, Parts 3.4, 4.4
Supreme Court Act 1970 (NSW), ss 69, 101
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 325, 326, 327, 328, 352, Part 7

CATEGORY: Principal judgment

CASES CITED: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245
Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52
Kalil v Bray [1977] 1 NSWLR 256
Kioa v West (1985) 159 CLR 550
NSW Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; 56 NSWLR 691
Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7, 59 CLR 369
Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88
Siddik v WorkCover Authority of New South Wales [2008] NSWCA 116
State Transit Authority of New South Wales v Chemler [2007] NSWCA 249
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
Tomko v Palasty (No. 2) [2007] NSWCA 369

PARTIES: John Charles McKee (Appellant)
Allianz Australia Insurance Ltd (First Respondent)
Motor Accidents Compensation Appeal Panel (Second Respondent)
Motor Accidents Authority of New South Wales (Third Respondent)

FILE NUMBER(S): CA 40740/07

COUNSEL: C Jackson (Appellant)
J Griffiths SC/E Romniuk (First Respondent)
Submitting appearances (Second and Third Respondents)

SOLICITORS: Rishworth Dodd & Co (Appellant)
TL Lawyers (First Respondent)
I V Knight, Crown Solicitor (Second and Third Respondents)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 30038/07

LOWER COURT JUDICIAL OFFICER: James J

LOWER COURT DATE OF DECISION: 4 October 2007

LOWER COURT MEDIUM NEUTRAL CITATION: McKee v Allianz Australia Insurance Limited [2007] NSWSC 1067

CA 40740/07
SC 30038/07

ALLSOP P
GILES JA
BASTEN JA
14 July 2008

John Charles McKEE v ALLIANZ AUSTRALIA INSURANCE LTD & ORS

Headnote

Following a motor vehicle accident on 9 June 2003, the appellant, Mr McKee, received injuries to both knees, his left shoulder and his spleen. He made a claim for damages, to which the respondent (Allianz Australia Insurance Ltd) was the defendant. The matter was referred for medical assessment, pursuant to ss 58(1) and 60 of the Motor Accidents Compensation Act 1999 (NSW) (‘MAC Act’).

On 23 June 2006, a medical assessor certified that the appellant’s degree of permanent impairment was not greater than 10%, thereby disentitling him to damages for non-economic loss under s 131 of the MAC Act. The medical assessor allowed 1% permanent impairment for the left shoulder, 8% for impairment to the left lower leg and nothing for the injury to the right knee and the spleen. The appellant applied for review of the medical assessment on the basis that the assessor was incorrect in his assessment of the spleen injury: MAC Act, s 63(1). A proper officer of the Motor Accidents Authority of New South Wales referred the application to a review panel: MAC Act, s 63(3).

On 28 November 2006, the review panel accepted that the assessment of the spleen injury was incorrect and attributed 3% permanent impairment to this injury. The review panel also reassessed the medical assessor’s percentage for the left knee and reduced it from 8% to 6%. The degree of permanent impairment of the appellant was reassessed at 10%. Since this figure was not greater than 10%, the appellant was still not entitled to damages for non-economic loss.

The appellant filed a summons in the Common Law Division of the Supreme Court seeking judicial review of the review panel’s decision, pursuant to s 69 of the Supreme Court Act 1970 (NSW). On 4 October 2007, James J dismissed the summons. The Court of Appeal granted the appellant leave to appeal: Supreme Court Act, s 101(2)(r).

The issues for determination on appeal were:

(i) whether the review panel erred in considering all aspects of the medical assessment, rather than only the spleen injury which was identified as an error in the appellant’s application for review; and

(ii) whether the review panel erred in exercising their discretion (if any) about whether to review the entire medical assessment.

The majority held, dismissing the appeal:

In relation to (i)

(per Giles JA, Allsop P agreeing)

1. The text and structure of s 63 indicate that the review of a medical assessment by a review panel extends to the whole of the initial medical assessment, not just part of the medical assessment: [1], [6]–[7], [11], [25], [27].

2. Given the extra-curial nature of resolving medical disputes, particularly the medical expertise of the adjudicators, it would be wholly inappropriate if the review panel had to confirm a certificate or issue a new certificate by only considering the matters identified in an application for review, despite the professional opinion of its members that the certificate was incorrect in a different material respect: [1], [7], [29]–[30].

3. There was no error in the review panel’s approach that it should “consider all aspects of the assessment under review”: [1], [11], [28], [39].

(per Allsop P, Basten JA)

4. The procedural Guidelines with respect to review of medical assessment, issued pursuant to s 44(1)(d) of the MAC Act, do not help in understanding the limits of the power of the review panel in s 63: [6], [95].

(per Basten JA dissenting)

5. The provision for referral of an application for review in s 63(2) and (3) of the MAC Act indicates a clear purpose: to notify the review panel of the extent of the dispute which it is being asked to resolve. To effect that purpose, the review panel is restricted to considering the errors identified in the application for review: [65]–[68].

6. Restricting the review panel to considering only the questions raised by the parties is consistent with the statutory purpose of the MAC Act and structure of Part 3.4: [69], [74]– [77].

7. Section 63(4) merely confers a power on a review panel allowing it to give effect to whatever conclusion it has reached as a result of the review. If the review panel varies the initial certificate on the basis of a ground raised by one of the parties, reasons would explain that fact and justify the basis for the issue of a new certificate: [63].

8. The fact that a tribunal is comprised of specialists does not assist in determining the limits of its power to determine disputes: [88]. However, the panel is not required to ignore aspects of an assessment not sought to be reviewed, but which the panel believes to be interconnected: [90]–[91].

9. The “review” required under s 63, identifiable by reference to specified aspects of assessment said to be incorrect, invites a more restricted construction than the term “review” taken in the abstract might otherwise attract: [64], [78].

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; NSW Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; 56 NSWLR 691; Siddik v WorkCover Authority of New South Wales [2008] NSWCA 116, considered.
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245; Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52; Tomko v Palasty (No. 2) [2007] NSWCA 369, referred to.

10. In reconsidering the impairment to the left knee, the review panel went beyond its statutory jurisdiction because it did not limit itself to considering only the error identified in the application for review: [91], [98].

In relation to issue (ii)

(per Giles JA, Allsop P agreeing)

11. It is not correct to divide a review under s 63 into what the review panel is obliged to review and what it has discretion to review. Instead, the review panel has one task: to review the medical assessment referred to it and either confirm the medical assessor’s certificate or revoke it and issue a new certificate. In undertaking this task, the tribunal may exercise their professional judgment about the degree to which they consider certain matters: [1], [38], [39].

12. The review panel did not exercise their discretion, but exercised their professional judgment, when they gave fresh consideration to the medical assessor’s assessment of the left knee injury: [1], [11], [37].

(per Basten JA)

13. In light of the findings in (i), this issue did not need to be resolved: [96]–[97].

CA 40740/07
SC 30038/07

ALLSOP P
GILES JA
BASTEN JA
14 July 2008

John Charles McKEE v ALLIANZ AUSTRALIA INSURANCE LTD & ORS

Judgment

1 ALLSOP P: I have had the considerable advantage of reading the reasons of both Giles JA and Basten JA. I agree with the orders proposed by Giles JA, for the reasons that he has given. I only wish to add the following comments.

2 The resolution of the present question of statutory interpretation is not easy. There is, if I may respectfully say, significant force in the reasons of Basten JA, in particular insofar as his Honour emphasises the roles of the medical assessor and the review panel of medical assessors as parts of a non-curial dispute resolution process.

3 I agree that the secondary material in relation to the legislation is of no particular assistance.

4 The objects of the Motor Accidents Compensation Act 1999 (NSW) (the “MAC Act”) set out in s5 of the MAC Act are not apt to be undermined or better promoted by either of the ways of looking at the role and power of the review panel under s63 of the MAC Act that have been the subject of argument in this appeal.

5 The essential consideration is the examination of the text and structure of the MAC Act, in particular Part 3.4, in order to ascertain whether, within that Part, and especially s63, there is a limit on the power of the review panel such that it has no authority to consider any aspect of an injury of the person as it may affect his or her permanent impairment, unless such aspect is encompassed within the expression of the grounds on which the assessment was said to be incorrect contained in, or referable to, the application for review.

6 Whilst there may be sensible policy reasons for limiting the review in that way, I do not extract from the text and structure of Part 3.4, or from s63, any such limitation of power. The limitation of power is not, in terms, provided for in Part 3.4. Thus, one needs to ascertain it necessarily within the text and structure of Part 3.4. Subsections 63(1), (2) and (3) make clear that the application can only be made on the ground that the assessment was incorrect by reference to particulars set out in the application. The word “application” in s63(3) refers to the document or documents that is or are the application. Subsections 63(1) and (2) refer to the process of request that is the application. The notion that there is a limit of power in the review panel requires some clarity in identifying the source of the expression of the limits of the subject of review. There may be one or more documents reflecting the request (that is, the application); there may be oral elaboration of it; there may be amendment of it. There is no necessary clarity in the statute to help identify what is the source of the expression of the limits of the dispute, and so, on this hypothesis, of the limits of the power of the review panel. Guidelines issued under the MAC Act, s44(1)(d) might deal with procedures for the referral of review of assessments or the procedure for assessment, but any such guidelines would not help in understanding the content of the MAC Act, by reference to which the limits of the power of the review panel are to be identified.

7 The text and structure of the MAC Act tends, on the other hand, to support a conclusion that the reach of the review panel’s power reflects or mirrors its task. Its task is set out in ss63(1) and (4) – to review the medical assessment and to confirm it, or to revoke it and issue a new certificate as to the matters concerned. The “matters concerned” are the matters referred for assessment, being the medical dispute referred for assessment, being the disagreement between the claimant and insurer about any of (a) to (e) in s58(1), relevantly here (d): “the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident”. See generally the inter-relationship between the definition of “medical dispute” in s57, and ss63(4) and (5), 61 and 60(1). The three medical professionals are required to review the medical assessment and come to a professional view about it. If they do not agree with it, they must issue a new certificate as to the degree of permanent impairment. One would not easily constrict the authority of those professionals in a way which would prevent them from considering any aspect of the injured person’s condition which in their professional judgment might bear upon that assessment and certificate.

8 No doubt, if their consideration of the matters referred for assessment went beyond the evident dispute thrown up by the claimant and the insurer, procedural fairness would require any and all necessary steps to ensure a fair hearing. Such necessity to provide procedural fairness can be assumed to exist either as part of the common law and as such part of the legal context in which the MAC Act was passed, or to exist interstitially within the MAC Act as an implied condition of the powers of the review panel:Kioa v West (1985) 159 CLR 550 at 582 and 610-611, and thus be a feature that informs the construction and interpretation of these provisions of the MAC Act.

9 In my view, the form or content of the application for review (whether viewed as a document or as a process) does not govern or limit the power or authority of the review panel in the manner contended for by the appellant.

10 GILES JA: The circumstances in which the questions in the application for leave to appeal arise are described in the reasons of Basten JA, which I have had the advantage of reading in draft. I agree that the questions are of importance in relation to the administration of the Motor Accidents Compensation Act 1999 (“the Act”), and that leave to appeal should be granted.

11 For the reasons which follow, in my opinion the review of the medical assessment was not limited to the grounds for incorrectness in a material respect in the application for referral of the medical assessment to the review panel, and there was no failure to exercise a discretion in the review panel issuing the new certificate.

Part 3.4 of the Act

12 Part 3.4 of the Act provides for resolution by medical assessment of a “medical dispute”, in s 57 defined to mean “a disagreement or issue to which this Part applies”.

13 Section 58 sets out the application of the Part -

(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,

(b) whether any such treatment relates to the injury caused by the motor accident,

(c) whether an injury has stabilised,

(d) the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident,

14 Section 59 provides for the appointment of “medical practitioners and other suitably qualified persons” to be medical assessors for the purposes of the Part.

15 Referral for assessment and (initial) certification by medical assessors are dealt with in ss 60 and 61 -

“ 60 Medical assessment procedures

(1) A medical dispute may be referred for assessment under this Part by either party to the dispute or by a court or claims assessor.

(2) If the insurer disputes all liability under a claim the dispute cannot be referred for assessment under this Part by the claimant alone.

(3) The request for a referral is to be made to the officer of the Authority designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority ).

61 Status of medical assessments

(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

(a) whether the degree of permanent impairment of the injured person is greater than 10%, or

(b) whether any treatment already provided to the injured person was reasonable and necessary in the circumstances, or

(b1) whether any treatment to be provided to the injured person is reasonable and necessary in the circumstances, or

(c) whether an injury has stabilised,

(3) Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.

(4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party.

(5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings.

(6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part.

(7) Except as provided by subsection (6), a court may not substitute its own determination as to any matter referred to in subsection (2) (a), (b), (b1) or (c).

(a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and

16 As envisaged in s 61(7), s 62 provides for further assessment in certain circumstances -

“ 62 Referral of matter for further medical assessment

(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or

17 Section 63, with which this appeal is principally concerned, provides for review of a medical assessment -

“ 63 Review of medical assessment by review panel

(1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

(3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

(4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

18 The definitions in s 57 include that “medical assessors review panel means a panel of medical assessors convened under this Part to review an assessment under this Part”. Section 63 does not pick up the precise defined phrase, but the intention is clear. The MAA Medical Guidelines (“The Guidelines”) next mentioned, which are issued pursuant to s 44 of the Act, provide in para 10.14.1 for convening a review panel consisting of at least three medical assessors to undertake the review.

19 Section 65 provides -

“ 65 MAA monitoring and oversight

(1) Medical assessments under this Part are subject to relevant provisions of MAA Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment.

The significance of medical assessments

20 While s 60(1) provides that a medical dispute “may” be referred for assessment, referral is commonplace. Proceedings in respect of a motor accident claim may not be commenced unless the claim has been assessed by a claims assessor pursuant to Pt 4.4 of the Act or a certificate of exemption has been issued (s 108). A claims assessor can refer a medical dispute for assessment (s 60(1)), and there is often referral by the parties to a medical dispute or by a claims assessor. Further, there is a threshold degree of permanent impairment before damages for non-economic loss may be awarded (s 131), and if there is dispute about whether the degree of permanent impairment is sufficient for an award the court may not award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Pt 3.4 (s 132). There is often a practical necessity for medical assessment.

21 Medical assessments are thus an important part of arriving at the claimant’s entitlement to damages. Their importance is magnified by their status as conclusive evidence in some respects, including whether the degree of permanent impairment exceeds the threshold, (s 61(2)) and as evidence in other respects (s 61(3)). The court or a claims assessor may refer a matter for further assessment (s 62), but that prospect does not detract from the significance in the ordinary case of a medical assessment.

22 Part 3.4 seeks to provide extra-curial resolution of medical disputes but, recognising the significance of a medical assessment, provides through s 63 that a dissatisfied party can obtain review of the medical assessment of a single medical assessor.

Construction of s 63

23 Section 63 only applies when there has been a medical assessment by a single medical assessor; it does not apply if, as ss 60(4) and 61(1) permit, there has been assessment by more than one medical assessor. The occasions for a fresh medical assessment presented by ss 61(4) and (5), s 61(8) and s 62 are limited. The plain purpose of s 63 is that the collegiate professional expertise of three or more medical assessors should be applied in the review, resulting in an assessment which is more likely to be correct and to be accepted by the parties to the medical dispute.

24 A key concept in Pt 3.4 is that of a matter. A medical assessment is an assessment of a medical disagreement about any of the “matters” described in s 58. All the matters are medical in nature; there is possible enlargement so far as the degree of impairment of earning capacity requires knowledge of workplace requirements, but medical professionals frequently express opinions on impairment of earning capacity. The certificate given by a medical assessor is “as to the matters referred for assessment” (s 61(1)). The concept is continued in s 61, and in s 62, with reference both to a “matter certified” and to a “matter referred” and variants on that language. The certificate must set out reasons for the medical assessor’s findings “as to any matter certified in the certificate in respect of which the certificate is conclusive evidence” (s 61(8)).

25 Under s 63 the party applying in accordance with s 63(1) applies for referral of the medical assessment, not for referral of part of the medical assessment. Section 63(2) also speaks of referral of a medical assessment, and of grounds that the medical assessment was incorrect in a material respect, not that part of the medical assessment was incorrect. Section 63(4) returns to the key concept, providing that the result of the review panel’s review is either confirmation of the certificate of assessment or revocation of the medical assessor’s certificate and issue of a new certificate “as to the matters concerned”. “The matters concerned” picks up the matters in s 58. It must mean the matters referred for assessment as a whole. The medical assessor’s certificate is revoked, s 63(5) provides that s 61 applies to the new certificate, and so the new certificate must entirely replace the medical assessor’s certificate. The new certificate must therefore express the review panel’s own assessment of the matter or matters referred for assessment.

26 To this point, the review panel has power to carry out whatever assessment is necessary in order to come to its own conclusions upon the matter or matters referred for assessment. Are its powers confined by s 63(2) and (3)? Those provisions implicitly require a statement of grounds of incorrectness in a material respect, which the proper officer can consider in order to be satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect “having regard to the particulars set out in the application” (s 63(3)). Diverging from the language of s 63(1), which speaks of reference of a medical assessment, the proper officer arranges for “any such application” to be referred to a review panel, that is, the application itself. Does reference of the application carry with it only the grounds of incorrectness in a material respect, and confine the review panel’s assessment to that incorrectness?

27 In my opinion, that is not the proper construction of s 63. The referred application is still an application to refer the medical assessment. There is inelegance in referring to the review panel an application to refer a medical assessment to the review panel, but the review panel plainly does more than decide whether it will accede to the application to refer the medical assessment to it. What the review panel receives is a reference to it of the medical assessment. Section 63(2) and (3) do not cut this down. Section 63(3) provides a filter mechanism. Section 63(2) in terms limits the grounds for making an application, although no doubt its effect is that a review panel can not issue a new certificate if it considers that any incorrectness in the medical assessment was not in a material respect, but it does not otherwise affect the performance by the review panel of its task of either confirming the medical assessor’s certificate or issuing a new certificate expressing its own assessment of the matter or matters referred for assessment.

28 The review panel is in my opinion not limited to the grounds for incorrectness in a material respect particularised in the application for referral of a medical assessment. There are sound reasons why this construction of s 63 should be preferred to one by which the review panel can not go beyond those grounds.

29 I have described the significance of medical assessments. A medical assessment can have a profound effect on a claimant’s recovery, to the perceived detriment of the claimant or the insurer. The legislature has provided for review by a review panel so that a dissatisfied party to a medical dispute can seek redress, as is appropriate given the significance. The dissatisfied party may have particularised the grounds for incorrectness in a material respect, but it would be harsh if the review panel did not have power to entertain altered, added or substituted grounds. (The Guidelines, to which medical assessments are procedurally subject (s 65), provide that application under s 63(1) must be made within thirty days of receipt of the medical assessor’s certificate (para 10.1), without ability to extend time (para 10.3)). Ignorance or mistake should not be penalised, and there can be second thoughts; the significance of a medical assessment is such that restrictions on getting it right should not readily be found to have been intended by the legislature.

30 Perhaps of greater significance is the nature of the review panel. The members of a review panel are medical practitioners or other suitably qualified persons. The review panel is to be convened by the proper officer “having regard to the nature of the injury and any continuing disabilities [and] the nature of the dispute” (Guidelines para 10.14.1), underlining that it is to apply the expertise of medical professionals to its review of a medical assessment initially made by a medical professional. The review panel must confirm the certificate of assessment or issue a new certificate replacing it, and as I have earlier explained the new certificate must deal with the matter or matters referred for assessment as a whole and express the appeal panel’s assessment of those matters. It would not be a sensible operation of Pt 3.4, and would be at odds with use of the expertise of the medical professionals in extra-curial resolution of medical disputes, that the review panel could not go beyond the particularised incorrectness in a material respect. In particular, it would be wholly inappropriate if the review panel had to confirm a certificate or issue a new certificate despite the professional opinion of its members that the certificate was incorrect in a different material respect.

31 There is a broadly similar scheme for medical assessments in Pt 7 of the Workplace Injury Management and Workers Compensation Act 1998 (“the WIM Act”). In Siddik v WorkCover Authority of New South Wales [2008] NSWCA 116 it was held that in an appeal to an appeal panel against a medical assessment under s 328 of the WIM Act, the appeal panel could consider grounds other than those permitted by the Registrar to proceed under a filter mechanism akin to that in s 63(3) of the Act. The reasons of McColl JA, with whom Mason P agreed, included -

Chemler

Kalil v Bray

99 Such an approach recognises the importance of the medical assessment in the process of determining an injured worker’s rights to, and an employer’s obligation to pay, workers’ compensation and/or damages. Although the legislature has deliberately separated determination of those issues from the curial decision-maker, it would be a curious to find it intended that the Appeal Panel could not cure an error in a conclusive certificate merely because the parties had not identified it, with the result that a court could be required to determine the parties’ rights on the basis of what, in the Appeal Panel’s view, was an erroneous MAC. The inclusion of two specialists on the Appeal Panel must have been intended, in part, to permit them to bring their expertise to bear on the contents of the MAC.”

32 The language of the WIM Act is different from that of the Act, although the concept of a matter also plays a key part. The analysis of its provisions did not focus on that concept, including in my own reasons, but the view I take of s 63 is consistent with that taken of s 327 and with her Honour’s reasons paying regard to the nature of the reviewing tribunal.

33 The reasons of James J discussed at some length remarks concerning review of a medical assessment under the WIM Act in Campbelltown City Council v Vegan [2006] NSWCA 284 and references to those remarks in subsequent decisions. What was said in those cases is now subject to the later decisions in Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 and Siddik v WorkCover Authority of New South Wales. His Honour considered that differences between the Act and the WIM Act rendered the remarks inapplicable, and came to his decision essentially because s 63 did not provide that the review panel was to determine whether the medical assessment was incorrect in the material respect of which the proper officer was satisfied and the expression “as to the matters concerned” referred back to the matters in s 58. In my opinion, his Honour came to the correct decision.

34 It should be said that the review panel put the appellant on notice that it would conduct a fresh assessment of the medical dispute, and there was no question of denial of procedural fairness such as arose in Siddik v WorkCover Authority of New South Wales.

Failure to exercise a discretion?

35 The review panel’s reasons for its findings which accompanied the new certificate include the statement, “The panel noted that all aspects of the assessment under review are to be considered afresh by the review panel”. This may have reflected para 10.17.1 of the Guidelines, which as part of a prescription of what a review panel is to do provides that it is to “consider afresh all aspects of the assessment under review”.

36 The appellant submitted that, if the review panel was entitled to go beyond the particularised grounds of incorrectness in a material respect, it was nonetheless not obliged to do so; and that the review panel had erred in that it had considered itself obliged to consider afresh all aspects of the medical assessment and had not exercised a discretion in relation to the extent of its review. The appellant said that so far as para 10.17.1 of the Guidelines prescribed that the review panel was to conduct a full fresh assessment it was invalid, because s 63 of the Act did not impose such an obligation and the Guidelines could not affect the review panel’s task as found in s 63.

37 It is likely that the review panel had para 10.17.1 of the Guidelines in mind. The immediately following parts of the reasons were concerned with re-examination of the claimant and additional information, topics the subject of paras 10.17.2 and 10.17.3. It does not follow that the review panel erred in failing to exercise a discretion.

38 I do not think it correct to divide a review under s 63 into what the review panel is obliged to review and what it has a discretion to review. The review panel has the one task, to review the medical assessment referred to it and either confirm the medical assessor’s certificate or revoke it and issue a new certificate. In the manner earlier explained, the members of the appeal panel bring their expertise to that task, and the confirmation or the new certificate embodies their professional opinion as to the matters referred for assessment in whole. In order to come to its decision to confirm the medical assessor’s certificate or revoke it and issue a new certificate the review panel must give consideration to the matters referred for assessment in whole. The consideration as to some aspects of the matters may be brief if there is a discrete particularised incorrectness in a material respect and no other incorrectness in a material respect is apparent to the professional gaze of the members of the review panel, and depending on perceived occasion to go further the review panel may then focus on the particularised incorrectness in a material respect. If that occurs, it is not failure in an obligation or the exercise of a discretion. It is the exercise of professional judgment.

39 There was no error in the review panel’s approach that it should “consider afresh all aspects of the assessment under review”. Whether the fresh consideration gave cause to question the medical assessor’s assessment for incorrectness in relation to the left knee injury was a matter for its professional judgment, and did not involve the exercise of a discretion. The review panel said in its reasons that for the left knee the medical assessor had assessed the 8 per cent whole person impairment on the impermissible basis of arthroscopy findings, and made its own assessment based on x-ray films. The impermissible basis is the kind of incorrectness in a material respect which would have been apparent to the review panel, leading to its reassessment.

Orders

40 I propose the orders -

1. Grant leave to appeal and direct that the notice of appeal be filed within seven days.

41 BASTEN JA: The primary issue raised by this application for leave to appeal is whether a review panel constituted under the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”) is restricted to correction of error in the respect identified in the application, or whether the review extends to the whole of the initial medical assessment.

42 The issue arose out of a medical dispute following an accident in which the appellant suffered a number of injuries. A medical assessor certified that his degree of permanent impairment was not greater than 10%, thereby disentitling him to damages for non-economic loss. The appellant sought review on the basis that the assessor was incorrect in his assessment of one specific injury. The review panel agreed with the appellant in that respect and corrected the error. Absent any other variation in the assessment, the appellant’s degree of permanent impairment would then have been in excess of 10%, allowing him to recover non-economic loss. However, the review panel reassessed the degree of impairment flowing from a separate injury and reduced the proportion ascribed to that injury by the medical assessor. As a result, the appellant remained unable to obtain damages for non-economic loss.

43 The appellant commenced proceedings for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) asserting that the review panel had exceeded its statutory jurisdiction in purporting to interfere with the initial medical assessment of impairment with respect to the second injury, no dispute in that regard having been raised by the parties.

44 The summons was heard by James J on 6 September 2007, his Honour holding that the review panel was not so restricted and that it was entitled, as it did, to review all aspects of the question of whole person impairment which had been the subject of a medical assessment under Part 3.4 of the MAC Act. By judgment delivered on 4 October 2007, his Honour dismissed the summons: see McKee v Allianz Australia Insurance Limited [2007] NSWSC 1067.

45 On the appeal (though not, it would seem, before the primary judge), the appellant raised a second point which involved a number of component steps. The first step was that if the review panel were not confined to the error identified in the application for review, the review panel was nevertheless not obliged to review the whole of the medical assessment, but had a discretion as to the extent of the review undertaken. In reply the respondent (being the third party insurer responding to the claim) argued that both the MAC Act and the relevant procedural Guidelines made under it required a full review of the initial medical assessment.

46 The second step arose from the respondent’s reliance upon the Guidelines, the appellant asserting that if only the relevant clause in the Guidelines obliged the panel to conduct a full review in any case, it was invalid.

47 A third step, which depended upon the review panel having a power, but no obligation, to review the whole of the medical assessment, was that the panel had erred in the present case by treating itself as obliged to undertake such a review, rather than noting that it had a power and considering whether it was appropriate in the circumstances of the case to exercise the power.

Background

48 The appellant was injured in a motor vehicle accident which occurred on 9 June 2003. He received injuries to both knees, his left shoulder and his spleen, which was surgically removed. He made a claim for damages, to which the respondent was the defendant. A dispute arose between the parties as to the degree of permanent impairment suffered by the appellant. That being a matter identified in s 58(1) of the MAC Act, the matter was referred for medical assessment pursuant to s 60. The MAC Act provides that no damages can be awarded for non-economic loss unless the degree of permanent impairment is greater than 10%: s 131.

49 The medical assessor was required to apply the Guidelines for the assessment of the degree of permanent impairment (1 September 2005) (“the permanent impairment Guidelines”), issued by the Motor Accidents Authority of New South Wales (“the Authority”) pursuant to s 44(1)(c) of the MAC Act. These guidelines required assessment of each separate injury as a percentage of “whole person impairment”. The medical assessor allowed 1% for impairment of the left shoulder and 8% for impairment of the left lower leg. He allowed nothing for the injury to the right knee, nor for the loss of the spleen. This gave a total whole person impairment of 9%, being a figure “not greater than 10%”. That conclusion, identifying the injuries taken into account, was recorded in a certificate dated 23 June 2006.

50 On 14 July 2006, the appellant filed an application for review of that assessment on the basis that it was incorrect in a material respect. The error was identified in the following terms, by reference to the statement of reasons provided by the assessor:

“Page 4 top paragraph – ‘His spleen (was) removed’.

Page 10 last paragraph – ‘… as well as a ruptured spleen requiring splenectomy.’

Page 13, third paragraph – ‘Diagnosis: Status post-splenectomy for splenic rupture. Impairment: 0% impairment.’

Page 14, Table of Body Parts; paragraph 2, Abdomen – splecectomy [sic] – 0% WPI.’”

51 The next part of the application asked “[w]hat is the error or mistake”, which was answered in the following terms:

“The Assessor should have allowed a 3% whole person impairment assessment for post-traumatic splenectomy in accordance with paragraph 8.13 of the MAA Impairment Assessment Guidelines issued 1 September 2005 referred to on p 51, a copy of which is enclosed for your attention.”

52 The third question asked in the application form was “[h]ow is this material to the outcome of the assessment”, to which the appellant responded:

“Assessor Long has assessed the claimant as suffering from 9% WPI. If the 3% WPI is added for the loss of the spleen then the claimant would have a 12% WPI entitling him to non-economic loss.”

53 The matter was referred by the proper officer of the Authority to a review panel. The review panel accepted the need for correction with respect to the loss of the spleen and included 3% permanent impairment for that item. However, it also reassessed the assessor’s percentage with respect to the left knee and reduced it from 8% to 6%. The result was that the degree of permanent impairment of the injured person was reassessed at 10%, a figure still not greater than 10%, thus continuing to exclude the recovery of damages for non-economic loss.

Proceedings in the Court

54 The matter came before this Court by way of an application for leave to appeal, the amount in issue not being shown to have a value of $100,000: Supreme Court Act, s 101(2)(r). However, the questions raised by the application are of general importance in relation to the administration of the MAC Act and leave is not opposed by the respondent. Accordingly, there should be a grant of leave to appeal.

55 The appeal is concerned primarily with the limits of the statutory jurisdiction (or power) of the review panel. There was no dispute as to the course in fact taken by the review panel, nor was there any dispute but that there would be jurisdictional error, warranting intervention by the Court, if the appellant’s construction of the power conferred on the panel were correct.

56 Before the primary judge much attention appears to have been focused on the scope of the review available under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the Workplace Injury Act”), and remarks in that regard in the judgments of this Court in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372. Submissions on the appeal referred in addition to the decision in Siddik v WorkCover Authority of New South Wales [2008] NSWCA 116, also concerned with the provisions of that Act, but delivered after the judgment of the primary judge in this matter. Although it will be necessary to refer to the reasoning in Siddik in due course, the primary focus of this appeal must be the powers of the review panel, determined by reference to the relevant statutory provisions (and in particular s 63) of the MAC Act. Section 63 provides:

63 Review of medical assessment by review panel

57 Section 57 contains a number of definitions, including medical dispute, which “means a disagreement or issue to which this Part applies”. Section 58 provides:

58 Application

(2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor.”

58 The term “the proper officer of the Authority” is defined to mean “the officer designated by the Authority for the purpose”: s 60(3). Section 61 then provides:

61 Status of medical assessments

(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

(2) Any such certificate as to:

(a) whether the degree of permanent impairment of the injured person is greater than 10% …

is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.”

59 The approach of the respondent, accepted by the primary judge, was that the subject-matter of review was “the assessment” and not the error identified in the grounds of application for review. Thus at [62] the primary judge stated:

“Under sub-s (3) and sub-s (4) of s 63 the proper officer is required to be satisfied that there is reasonable cause to suspect that the assessment by the medical assessor was incorrect in a material respect but the section does not provide that the function of the review panel is to determine whether the assessment was incorrect in that respect. What sub-s (4) of s 63 provides is that the review panel may confirm the certificate of assessment of the assessor or revoke that certificate and itself issue a new certificate.”

60 Subsection 63(4) identifies the power of the review panel by reference to the certificate: it is silent as to the scope of the review. However, the point relied upon by the respondent on the appeal was that if the certificate were to be that of the review panel, the review panel must form an opinion as to whether the degree of permanent impairment was or was not greater than 10% and give reasons for its conclusion: s 61(9). It could neither form the necessary opinion nor give proper reasons, the respondent contended, unless it formed a view as to all matters relevant to the conclusion expressed in the certificate. The respondent also sought support in s 63(5), providing that the certificate would form conclusive evidence as to the matter certified, being, relevantly, whether the degree of permanent impairment was greater than 10%: see s 61(2).

61 Taken in isolation, sub-s 63(1) may provide support for the conclusion reached by the primary judge. The application for which it provides is for referral of “a medical assessment under this Part” to a review panel for review. It might be inferred from that provision, taken alone, that the medical assessment as a whole was to be reviewed.

62 Support may also be provided by the terms of s 63(4). A certificate pursuant to which three medical assessors express a conclusion that the degree of permanent impairment of an injured person is less than or greater than 10% could be thought to be misleading if the assessors had considered only one aspect of the assessment and had formed no view as to other material findings. Indeed, the respondent argued that the certificate could be even more misleading if the assessors had formed a view about other aspects of the assessment but, because of the restricted scope of the review, were not able to give effect to their opinions in those respects in the certificate.

63 However, that characterisation of s 63(4) has an element of circularity. In its terms, it merely confers a power on the review panel allowing it to give effect to whatever conclusion it has reached as a result of the review. To confirm the initial certificate is not necessarily to endorse, whether upon reconsideration or not, each of the material findings of fact of the initial medical assessor. Thus, the review panel may make different findings as to individual injuries but without any variation to the conclusion that the degree of permanent impairment was not more than 10%. There is no reason to suppose that the panel may not, in such circumstances, confirm the certificate of the single medical assessor, although for different reasons. Similarly, if a specific error does result in a variation to the certificate, the certificate must be revoked and a new certificate issued. If the variation resulted from the consideration only of the ground on which the initial assessment was said to be incorrect, the reasons would explain that fact, thereby justifying in unexceptionable terms the basis for the issue of a fresh certificate. Indeed, if the power of the review panel were restricted to the error raised by the application, the panel would exceed its authority in forming views about other aspects of the assessment. The certificate would thus only appear to be misleading to a person who thought that it involved a reassessment of all of the injuries; if a more limited reassessment had been undertaken, in conformity with the Act, no informed recipient of the new certificate would be misled. Nor does sub-s 61(5) take the matter any further: it merely gives to the new certificate the statutory consequences and status that apply to any such certificate. Indeed, given the language of s 61(1), it is strictly otiose.

64 It is arguable that the effect sought by the respondent to be derived from sub-s 63(4) might more plausibly arise from the fact that the process is described as a “review”. In some circumstances the term “review” may connote a fresh consideration of a matter, without the need to determine the existence of error, in contrast to the usual meaning of “appeal”. This reasoning appears to have been relied upon by McColl JA (with whom Mason P agreed) in Siddik at [70]-[90]. Nevertheless, her Honour accepted the comment of Burchett J in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 63-64 that the word “review” may be said to have “a quite amorphous meaning”, the content of which must be derived from the particular statutory context, referring to remarks to that effect in Tomko v Palasty (No. 2) [2007] NSWCA 369 at [43] and adding the authority of Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 at 261 (Mason CJ, Brennan and Toohey JJ): Siddik at [68]. Thus, although an appeal by way of review may sometimes invoke a fresh hearing by a body untrammelled by findings made at first instance and entitled to look at material not presented to the first instance tribunal, the term “review” nevertheless indicates that the issues will be limited to those addressed by the first decision: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [30]. The next question is whether any further constraint is imposed in the specific statutory context.

65 Accordingly, it is necessary to consider what inference should be drawn from sub-ss (2) and (3), taken in their statutory context and having regard to their apparent purpose: see Interpretation Act 1987 (NSW), s 33. The application for referral of a medical assessment must be made on grounds “that the assessment was incorrect in a material respect”: sub-s (2). When the question of referral is considered by the proper officer, he or she must first be satisfied at the prescribed level that the assessment “was incorrect in a material respect having regard to the particulars set out in the application”: sub-s (3). Having formed the relevant opinion, what is then referred to the review panel is the application. No doubt the review panel will have the assessor’s certificate and reasons before it, but it is the application, being the document which has been referred to it, which identifies the error required to be considered and hence the subject-matter of the review.

66 If the medical assessment were at large before the review panel, there would be a limited purpose in referring the application to it. By contrast, the provision for referral of the application indicates a clear purpose, namely to notify the review panel of the extent of the dispute which it is being asked to resolve. To effect that purpose, the review panel should be understood to be restricted to considering the errors identified in the application.

67 If it had been intended that a party was entitled to a fresh consideration of all matters presented to the initial medical assessor, one would have expected the legislature to say so. To require as a sole precondition of review that there be grounds that the assessment was incorrect in a material respect is inconsistent with that approach, unless it can be said that the precondition is merely a matter for the proper officer of the Authority, and not a matter to be addressed by the review panel. However, the structure of s 63 does not readily allow such an inference for four reasons. First, the natural role for a “gatekeeper”, who is not required to determine the outcome of an application, is to avoid waste of resources, including the time of medical assessors and the concomitant expense which would result from the need to consider appeals which appeared to be frivolous or without substance. If error is irrelevant to the outcome of the appeal (because it is a fresh consideration of all issues), the need to demonstrate to the proper officer that there is at least “reasonable cause to suspect” error (or more precisely that the assessment was “incorrect”) involves a degree of incongruity with the hypothesised scope of the review.

68 Secondly, not only must the application identify material respects in which the assessment was incorrect, but it must, at least by inference, set out “the particulars” in respect of which that claim is made. That conclusion follows from the fact that the proper officer is to have regard to such particulars: sub-s (3). Thirdly, the matters particularised are required to be “material”, which should be understood to mean, in the context, that if made good they will result in a variation to the certificate. Fourthly, as already noted, it is the application for review which is to be referred to the review panel. It is that application which contains grounds on which the assessment below was said to be incorrect and particulars of the respects in which error is alleged. Moreover, those incorrect aspects are required to be material in the sense just mentioned.

69 These factors, taken together, reveal a coherent statutory purpose and structure. Part 3.4 of the MAC Act is designed to provide a non-curial process for resolving medical disputes. The scope of the dispute is identified as (relevantly for present purposes) a “disagreement between a claimant and an insurer” in relation to any of the matters identified in s 58(1). That disagreement is referred to a medical assessor and, unless the assessment is sought to be reviewed, is resolved by the assessment. The purpose of a review is to resolve any outstanding element of disagreement, as identified by the claimant or the insured. Neither the Authority nor a review panel (nor any other body) has a right to apply for a review: s 63(1). It follows that no one other than a party to a medical dispute is able to define the scope of any on-going disagreement. The Part thereby permits a narrowing of the issues involved in a medical dispute and provides for the economic and efficient use of resources required to resolve matters in dispute. On that approach, the language of s 63 is consistent with the appellant’s submission, namely that the statutory function of the review panel is to determine whether a medical assessment was indeed incorrect in the particular respects identified by the applicant for review.

70 Because there were seen to be alternative readings of s 63 available, the Court was taken to extrinsic material, being the explanatory note to the Motor Accidents Compensation Bill 1999, which first contained Part 3.4, and the Minister’s second reading speech with respect to the Bill: Parliamentary Debates (NSW), Legislative Council, 3 June 1999 at 901ff. Reference to such material is no doubt permissible pursuant to s 34 of the Interpretation Act, but, as the respondent conceded, it provided little by way of assistance.

71 On the other hand, the respondent contended that assistance could be obtained from the objects of the MAC Act and, to the extent that a particular construction would promote the objects, that construction should be preferred to one which did not, pursuant to s 6: cf Interpretation Act, s 33. The objects of the Act are set out in s 5(1). (Section 5(2) contains a number of “acknowledgments”, which were not relied upon and the precise purpose of which is obscure.)

72 Relevantly, s 5(1) provides:

5 Objects of Act

(1) The objects of this Act are as follows:

(a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities,

(e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities …”

73 For what it is worth, one of the matters which “must be acknowledged in the application and administration of this Act”, as identified in s 5(2), is:

“(b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries ….”

74 Even without reference to the objects, two important legislative purposes may be divined from the provisions of the MAC Act. One is that damages for non-economic loss are unavailable in respect of injuries which do not involve the specified degree of permanent impairment: s 131. Secondly, in assessing degrees of permanent impairment, a form of non-curial dispute resolution has been adopted with respect to disputes involving matters which are capable of resolution by medical assessors: see particularly s 58 and, generally, Part 3.4.

75 It may readily be accepted, both from the objects and the specific provisions, that disputes were to be resolved, not manufactured; that a cheaper mechanism for resolution was to be preferred to a more expensive one and that an expeditious resolution was to be preferred to one involving complexity or delay.

76 To these factors may be added reference to s 64 of the MAC Act which imposes the costs of medical assessments under Part 3.4 on the insurer: s 64(1). The costs include the remuneration of medical assessors, expenses incurred by the injured person and by a parent or other carer who accompanies the injured person in attending a medical assessor: s 64(3). As the section makes explicit, it is intended to cover the costs both of an initial medical assessment and of the review of medical assessments: s 64(4).

77 Despite the reliance by the respondent on the objects of the Act, it would seem that a construction of s 63 which limited reviews to questions actually raised by the parties and therefore to the resolution of actual disputes should be preferred to an alternative which allowed a review of a medical assessment in respect of injuries about which no ground involving incorrectness had been raised. Similarly, a review which was limited to discrete injuries involving specific medical specialities might be seen to be briefer, more expeditiously resolvable and less demanding of the parties than one which imposed on the parties and the review panel an obligation to review every aspect of what might be quite complex injuries and impairments, even though neither party, and particularly not the party which had an interest in expanding the review, but which would bear the additional costs, had sought it.

78 Unlike other statutory provisions, the review required in the present case, identifiable by reference to specified aspects of assessment said to be incorrect, invites a more restricted construction than the term “review” taken in the abstract might otherwise attract. A related issue arose as to the jurisdiction of the Racing Appeals Tribunal considered in NSW Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; 56 NSWLR 691. An appeal to the Tribunal was limited by a regulation to the grounds identified by the applicant, unless extended by leave of the Tribunal, but implicitly at the request of the applicant. The Court held that for the Tribunal to go beyond correction of an error so identified by the applicant would be for it to exceed its statutory jurisdiction: at [11]-[13] (Handley JA, Santow JA agreeing).

79 A question then arises whether that approach is inconsistent with the approach adopted in relation to the Workplace Injury Act by this Court in Siddik. Siddik was concerned with a comparable scheme of internal review in relation to claims for compensation under the Workers Compensation Act 1987 (NSW). In common with the MAC Act, the Workplace Injury Act has a scheme for resolution of medical disputes (as defined in s 319) by an approved medical specialist. The specialist is required to give a certificate as to matters referred for assessment (s 325) and the certificate is “conclusively presumed to be correct” in relation to particular issues identified in s 326. An appeal is provided against a matter so certified if it is a matter which is conclusively presumed to be correct. The appeal is limited to specified categories of grounds set out in s 327.

80 Siddik involved an appeal lodged by the WorkCover Authority (which was responsible for paying compensation to Mr Siddik as an employee of an uninsured employer) identifying two grounds, the second of which alleged that the assessment was made on the basis of “incorrect criteria” and that the certificate contained “demonstrable error”, being grounds of appeal available under s 327(3)(c) and (d) respectively. Particulars of the grounds were provided, although the particulars were not narrow, being summarised by McColl JA at [21] as follows:

“[The WorkCover Authority] asserted that it was unclear from the [certificate] whether [the medical specialist] had taken into account specialist and medical reports, and various other documents which formed part of its Application to Resolve a Dispute and other documents it had lodged with the Worker’s Compensation Commission under cover of a letter dated 15 February 2005. It asserted that if there had been a failure to take all the evidence into account, there must be a new assessment. This appears to have constituted its demonstrable error ground, although it also asserted that if the assessment was made without regard to this material it was made on the basis of incorrect criteria.”

81 The ground related to an assessment of 5% impairment with respect to an injury of the neck. The appeal panel rejected the specific complaint about failure to take account of various reports but found that the finding made by the medical specialist, pursuant to the relevant guidelines, did not entail a 5% impairment.

82 The Court held that, although it was open to consider a matter not specifically identified in the notice of appeal, the appeal panel was required to notify the parties of its intention to deal with the additional issue and give the parties an opportunity to respond. Because the appeal panel failed to take that step, its decision was set aside: at [104] (McColl JA, Mason P agreeing). Giles JA adopted similar reasoning at [9]-[12].

83 How the reasoning in Siddik should apply in relation to the MAC Act was not the subject of detailed submissions in this Court. That was no doubt understandable, because, although the reasoning may have supported the approach adopted by the respondent, before the primary judge the respondent had been anxious to distinguish the scheme under the Workplace Injury Act because of observations less supportive of its position made in Campbelltown City Council v Vegan at [131] and [137]. It had succeeded in that endeavour. Given that history, it might have seemed opportunistic for the respondent to place weight upon the conclusions reached in Siddik. Nevertheless, it is important that this Court adopt coherent readings of similar legislation and it is therefore necessary to address the approach adopted in Siddik.

84 To carry out this exercise, it is necessary to identify with some precision the issue which arose in Siddik and also specific aspects of the statutory scheme under the Workplace Injury Act. With respect to the issue, although the appellant in Siddik alleged error on the part of the appeal panel “in conducting a full review” after rejecting the errors identified in the notice of appeal (see [32] in Siddik), the concept of a “full review” must be understood in its factual context. Although the claimant had suffered a number of injuries, the subject-matter of the appeal was the assessment of the injury to his neck. The appeal panel did not, it would appear, embark upon any review of the other impairments identified in the certificate, being injuries to his right foot and his left knee. In other words, the review was restricted to consideration of the injury identified in the notice of appeal.

85 Secondly, the notice of appeal identified an error involving the application “of incorrect criteria” being a statutory ground identified in s 327(3). The appeal panel also identified an error involving that ground. Thus, the only aspect of the appeal which went beyond that identified by the appellant was the precise particular in respect of which error was said to have arisen. Furthermore, the scope of the inquiry undertaken by the appeal panel in reaching its finding of error appears not to have extended beyond that which was required to deal with the error particularised. In order to determine whether the medical specialist had failed to take account of some of the material before him, it would have been necessary for the appeal panel to consider both the terms of his findings (which referred to the criteria he had identified as relevant) as well as the material before him, so as to consider whether the findings were in conformity with the expert evidence.

86 In relation to the respective schemes, there are numerous differences in the statutory language, which suggest that the approach with respect to the Workplace Injury Act does not necessarily apply in relation to the MAC Act, but which may involve no clear point of distinction. For example, s 327 of the Workplace Injury Act provides for an appeal which is described as an “appeal … by way of review” in s 328(2). Under the MAC Act, s 63 provides for an application “for review”. Of greater importance is the requirement under the MAC Act that the application identify a respect in which the medical assessment was “incorrect”: s 63(2). That Act separately provides for a further medical assessment in circumstances where there has been a deterioration of the injury: s 62(1). By contrast, the Workplace Injury Act identifies “deterioration of the worker’s condition” as a ground of appeal: s 327(3)(a). It also provides that the appeal panel may hear additional evidence in certain circumstances: s 328(3). This was treated as significant in respect of the jurisdiction conferred on the appeal panel which, as noted by McColl JA at [96], was “not only an error-based jurisdiction”. (See also Giles JA at [9].)

87 Turning to the reasoning of the Court, the fact that the statutory tribunal was constituted by experts was identified as a significant factor in Siddik. Thus, McColl JA stated:

Chemler

Kalil v Bray

88 The reference to the remarks of the Chief Justice in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [30] must be understood in context. Spigelman CJ was dealing with the powers of a presidential member carrying out a review of the decision of an arbitrator on the merits, pursuant to s 352 of the Workplace Injury Act. The question did not involve the scope of the review, but whether, having identified error, the Deputy President should have remitted the matter to the arbitrator, rather than making a finding himself upon the issue under consideration. The case did not concern an appeal panel, nor review by a specialist. The second authority, Kalil v Bray, was concerned with the propriety of an expert tribunal drawing upon its own specialist knowledge and experience. However, Street CJ did not suggest that such a tribunal had some general mandate “to resolve questions within its expertise”; rather, his Honour noted that it was entitled “to resolve such questions of expert science as might emerge from the objective, or lay facts proved in evidence before it”: at 262. With respect, the fact that a tribunal is comprised of specialists does not assist in determining whether it was given some power of roving inquiry to determine the truth of a matter, or whether its statutory remit was limited to the resolution of an issue in dispute, as identified by a party to the dispute.

89 Two matters of practical significance arise from a consideration of Siddik. A conclusion that the powers of the review panel established under the MAC Act are limited to the respects in which the applicant has identified that the assessment was incorrect may be limited in its practical operation, both with respect to the nature of the error identified and with respect to the subject matter of the assessment. In relation to the error, although identified by way of particulars, it may have a broad consequence for the scope of the review. For example, where a medical specialist has certified whether an injury has stabilised (pursuant to s 58(1)(c)), the error may be particularised as failure to take account of the most recent report of the treating doctor. Assuming the omission is made good, the review panel will need to take that report into account, together with the earlier material, in order to decide whether the assessment was incorrect. In undertaking that task, the review panel will not be bound by inferences drawn from the earlier material by the medical specialist.

90 Similarly, where the subject matter of the application for review is a particular injury, the medical assessment of which is not severable from the assessment of a related injury, the review panel will not be restricted from considering the assessment of the other injury. However, as a practical matter, it is clear that the permanent impairment Guidelines define with a high degree of independence the injuries which must be separately assessed and the consequences, sometimes by reference to a specific percentage and sometimes by reference to a range, which must be applied in respect of each independent injury. Finally, the permanent impairment Guidelines require that the relevant level of whole person impairment be calculated by an arithmetical exercise with respect to the component parts.

91 No doubt there will be a need in particular cases to make an evaluative judgment as to whether and to what extent the scope of a particular review is restricted by the terms of the application: it is likely that, in such a case, the review panel would be entitled to make its own judgment, so long as it understood the principle by which its jurisdiction was limited: see Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7, 59 CLR 369 at 377 and 391-2. However, no such issue arose in the present case. It was clear beyond doubt that the respect in which the assessment was said to be incorrect was limited to the assessment of the impairment resulting from the splenectomy. There was no suggestion that a consideration of that issue involved reconsideration of the degree of impairment of the appellant’s left knee. In relation to the impairment of the left knee, any dispute between the parties had been resolved by the initial medical assessment. Neither party sought to challenge that assessment. In reconsidering the assessment in that respect, the review panel was not resolving a dispute between the parties but embarking on an exercise of its own, which was beyond its statutory jurisdiction. It was in error and its decision should have been set aside. In failing to take that step, the primary judge was in error.

Operation of procedural Guidelines

92 Before leaving this issue, two further matters should be noted, which were raised in the course of argument. First, it was not contended that the respondent lacked an opportunity to put in issue the assessment in respect of the degree of impairment resulting from the injury to the left knee. Even if, the overall assessment being favourable to it, it had not sought to initiate an application for review, it had the opportunity to raise the issue by way of reply, once notified of the application by the appellant. Given that correction of the error identified by the appellant was clearly likely to lead to an assessment of impairment greater than 10%, the respondent was on notice that it was at risk if other aspects of the assessment were not reduced. The procedures with respect to reviews of medical assessment are set out in procedural Guidelines issued pursuant to s 44(1)(d) of the MAC Act. It would appear that cl 10.4 would be broad enough to have permitted the respondent to lodge its own application with, if necessary, an extension of the period specified for such applications.

93 Secondly, the respondent drew attention to cl 10.17 of the same guidelines which, by virtue of s 65(1), imposed binding obligations on the review panel. Clause 10.17 relevantly provided:

“10.17 The review panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to:

10.17.1 consider afresh all aspects of the assessment under review ….”

94 The respondent contended that this provision had two aspects to it. The term “afresh” indicated that the reconsideration was at large, with respect to the material to which reference could be made by the review panel. Secondly, the fact that consideration was to be given to “all aspects of the assessment” was said to demonstrate an obligation to consider all aspects of the assessment, and not merely those issues raised in the application for review.

95 There are three reasons why this guideline provides no assistance to the respondent. The first is the general proposition that a guideline issued under the MAC Act, although it may have effect as delegated legislation (see s 44(7)), cannot provide a basis for construing a provision of the Act so as to confer a broader jurisdiction on the review panel than that conferred by the Act, absent express statutory power to that effect. The second reason why the procedural Guidelines provides no assistance is that it is at best neutral in the relevant respect. It requires the review panel to “consider afresh” the matters which it must consider and in that sense conveys the intention that there should be a fresh hearing. However, it is ambiguous as to the whether the words “under review” simply qualify the words “the assessment” or, the clause being read as a whole, qualify the words “all aspects of the assessment” so as to be neutral as to which aspects are in fact under review. If thought to be ambiguous, the latter construction should be adopted as being consistent with the Act. The third reason is, pursuant to s 44(1)(d) of the MAC Act, the Authority is empowered to issue guidelines with respect to “the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment, under Part 3.4”. A guideline which purported to affect the scope of the assessment, as provided for in the Act, would be invalid.

Other matters

96 Because the appellant is entitled to succeed on his primary submission, there is no need to resolve his alternative argument based on the existence of a power, but no obligation, on the part of the review panel to assess aspects of the medical assessment not put in issue by the applicant.

97 Whether cl 10.17 of the procedural Guidelines could properly impose an obligation on the review panel in circumstances where the statute left the matter as a question of discretionary power need not be addressed. Nor is it necessary to consider whether, if the review panel did possess a power to reconsider aspects of the assessment not dealt with in the application for review, the panel erred in treating the further consideration as a matter of obligation, rather than a matter requiring the exercise of discretion. Nevertheless, there is substance in the appellant’s contention that the panel treated the matter as one requiring consideration of “[t]he degree of whole person impairment”, as noted in section 2B of the panel’s reasons, a document which the appellant is entitled to rely upon as forming part of the record for the purpose of demonstrating error of law on the face of the record: Supreme Court Act, s 69(4).

98 Because the review panel did not limit its consideration to the error identified in the application for review, but reassessed a separate injury suffered by the appellant, it exceeded its jurisdiction and the primary judge should properly have so concluded and set aside its decision. Accordingly, I would propose the following orders:

(1) Grant leave to appeal and treat the notice of appeal with appointment filed on 26 October 2007 as being properly filed pursuant to the grant of leave.

(2) Allow the appeal and set aside the judgment below dismissing the summons.

(3) In lieu thereof, order that the certificate issued by the review panel on 28 November 2006 be set aside and the appellant’s application for review of the certificate issued on 23 June 2006 be remitted to the Authority for referral to a review panel, to be determined according to law.

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Citations

McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163

Most Recent Citation

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Statutory Material Cited

4

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New South Wales Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55

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CITATION:	McKEE v ALLIANZ AUSTRALIA INSURANCE LTD [2008] NSWCA 163
HEARING DATE(S):	17 June 2008
JUDGMENT DATE:	14 July 2008
JUDGMENT OF:	Allsop P at 1; Giles JA at 10; Basten JA at 41
DECISION:	1. Grant leave to appeal and direct that the notice of appeal be filed within seven days. 2. Dismiss the appeal with costs.

CATCHWORDS:	ADMINISTRATIVE LAW – exercise of discretion by review panel – exercise of professional judgment by review panel - ADMINISTRATIVE LAW – grounds of review – scope of review – whether review panel restricted to considering matters identified in application for review – whether composition and nature of review panel affects scope of powers - MOTOR ACCIDENTS – medical assessment – powers of review panel under the Motor Accidents Compensation Act 1999 (NSW), s 63 – purpose and structure of Act – whether review panel restricted to considering matters identified in application for review – comparison of schemes for resolution of medical disputes by approved medical specialists under the Motor Accidents Compensation Act 1999 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Motor Accidents Compensation Act 1999 (NSW) Part 3.4, s 63 – Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 326, 327 - STATUTORY INTERPRETATION – delegated legislation as an interpretation tool – whether guidelines on review procedures affect the scope of review panel’s powers - WORDS & PHRASES – “review”
LEGISLATION CITED:	Interpretation Act 1987 (NSW), ss 33, 34 Motor Accidents Compensation Act 1999 (NSW), ss 5, 6, 44, 57, 58, 59, 60, 61, 62, 63, 64, 65, 108, 131, 132, Parts 3.4, 4.4 Supreme Court Act 1970 (NSW), ss 69, 101 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 325, 326, 327, 328, 352, Part 7
CATEGORY:	Principal judgment
CASES CITED:	Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 Kalil v Bray [1977] 1 NSWLR 256 Kioa v West (1985) 159 CLR 550 NSW Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; 56 NSWLR 691 Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7, 59 CLR 369 Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 Siddik v WorkCover Authority of New South Wales [2008] NSWCA 116 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Tomko v Palasty (No. 2) [2007] NSWCA 369
PARTIES:	John Charles McKee (Appellant) Allianz Australia Insurance Ltd (First Respondent) Motor Accidents Compensation Appeal Panel (Second Respondent) Motor Accidents Authority of New South Wales (Third Respondent)
FILE NUMBER(S):	CA 40740/07
COUNSEL:	C Jackson (Appellant) J Griffiths SC/E Romniuk (First Respondent) Submitting appearances (Second and Third Respondents)
SOLICITORS:	Rishworth Dodd & Co (Appellant) TL Lawyers (First Respondent) I V Knight, Crown Solicitor (Second and Third Respondents)

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 30038/07
LOWER COURT JUDICIAL OFFICER:	James J
LOWER COURT DATE OF DECISION:	4 October 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	McKee v Allianz Australia Insurance Limited [2007] NSWSC 1067