McKeough v Zoological Parks Board of New South Wales

[2017] NSWSC 868

Supreme Court

New South Wales

Medium Neutral Citation:

McKeough v Zoological Parks Board of New South Wales [2017] NSWSC 868

Hearing dates:

1 June 2017

Date of orders:

03 July 2017

Decision date:

03 July 2017

Jurisdiction:

Common Law - Administrative Law

Before:

Harrison AsJ

Decision:

The Court declares that

 

(1) The decision by the Approved Medical Specialist issued on 10 February 2016 is vitiated by jurisdictional error.

 

(2) The decision of the Medical Appeal Panel issued on 6 June 2016 is vitiated by jurisdictional error.

 

The Court makes an order:

 

(3) In the nature of certiorari removing into the Court the decision of the Approved Medical Specialist issued on 10 February 2016 and quashing that decision.

 

(4) In the nature of certiorari removing into the Court the decision of the Medical Appeal Panel issued on 6 June 2016 and quashing that decision.

 

The Court further orders that:

 

(5) The proceedings are remitted to the Registrar of the Workers Compensation Commission to be determined according to law.

 (6) The first defendant is to pay the plaintiff’s costs on an ordinary basis.

Catchwords:

ADMINISTRATIVE LAW – judicial review of medical appeal panel – workers compensation commission – whether jurisdictional error – workers compensation - procedural fairness

Legislation Cited:

Supreme Court Act 1970 (NSW) s 69
Workers Compensation Act 1987 (NSW) ss 66, 67
Workers Compensation Legislation Amendment Act 2001 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 281, 319, 321, 326, 327, 328

Cases Cited:

Borovac v Corporate Ventures Pty Ltd (1995) NSWCCR 84
Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192
McGinn v Ashfield Council [2012] NSWCA 238
New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
Pacific Dunlop Ltd v Krivec (1996) 12 NSWCCR 353
Walsh v Parramatta City Council [2007] NSWLEC 255

Category:

Principal judgment

Parties:

Rebecca Ann McKeough (Plaintiff)
Zoological Parks Board of New South Wales (First Defendant)
The Registrar of the Workers Compensation Commission of NSW (Second Defendant)
The Medical Appeal Panel of the Workers Compensation Commission constituted by Arbitrator John Wynyard and Approved Medical Specialists Dr Brian Noll and Dr Mark Burns (Third Defendant)

Representation:

Counsel:
E Grotte (Plaintiff)
S Blount (First Defendant)

  Solicitors:
Somerville Laundry Lomax (Plaintiff)
Stiles Lawyers ( First Defendant)
Crown Solicitor’s Office (Submitting Appearance Second and Third Defendants)

File Number(s):

2016/264917

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is a judicial review of a Medical Appeal Panel of the Workers Compensation Commission.

2. By further amended summons filed 6 December 2016, the plaintiff seeks firstly, a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for the decision of the third defendant and issued by the second defendant on 6 June 2016 is void and of no effect; secondly, an order setting aside the decision and the statement of reasons for the decision of the third defendant and issued by the second defendant on 6 June 2016; and thirdly, an order remitting the matter back to a differently constituted medical appeal panel pursuant to s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the Act) to determine the matter according to law.

3. The plaintiff is Rebecca Ann McKeough. She is also referred to as the claimant in the Workers Compensation Commission. The first defendant is the Zoological Parks Board of New South Wales. The second defendant is the Registrar of the Workers Compensation Commission of NSW (“the Registrar”). The third defendant is the Medical Appeal Panel of the Workers Compensation Commission constituted by Arbitrator John Wynyard and Approved Medical Specialists Dr Brian Noll and Dr Mark Burns (“the Appeal Panel”). The second and third defendants have filed submitting appearances.

4. The plaintiff relied upon the affidavit of Ben de Quetteville Robin filed 30 March 2017. All parties relied upon the joint court book.

Factual background

5. The plaintiff was born in September 1971. On 17 September 1990, she commenced employment as a zookeeper at Taronga Park Zoo (“the Zoo”). Her work included animal care and labouring tasks. During the course of this employment the plaintiff suffered three injuries. On 12 September 1993, the plaintiff was preparing a new set up replacing the Asiatic World Dog site with a desert and hills landscape to accommodate North American Bobcats. This involved shovelling and positioning of heavy fill, soil and sand. At the end of the day the plaintiff was aware of pain at the base of her neck on the right hand side with spasm. She reported the incident but continued to work.

6. On 13 September 1993, while wheeling a wheelbarrow fully laden with tussocks, the plaintiff momentarily lost control of the wheelbarrow; she experienced acute pain in her right scapular region. The plaintiff reported the incident and was placed on light duties. The plaintiff continued working on light duties but did not completely recover.

7. In July 1994, the plaintiff ceased working for the Zoo to pursue an acting career.

8. In 1996, the plaintiff resumed working at the Zoo. On 16 November 1996, the plaintiff retrieved an object which a visitor to the Zoo had dropped into the duck pond. In order to retrieve the object she had to enter the duck pond. As she clambered out of the duck pond onto a wooden bridge, she slipped and fell (approximately 1.5 metres) onto a sandstone rock landing heavily on her coccyx and onto her back. Liability for all three injuries was accepted.

9. In about February 1998, the plaintiff ceased work at the Zoo.

10. On 31 October 2002, the plaintiff was awarded lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW), 5% permanent loss of efficient use of the right arm at or above the elbow ($4,000), 6% permanent impairment of the neck ($2,400) and 7% permanent impairment of the back ($4,200). Pursuant to s 67 of the Workers Compensation Act, the plaintiff was awarded $4,400 for pain and suffering.

11. On 23 June 2008, the plaintiff made a claim for further losses.

12. On 19 November 2008, the plaintiff signed a complying agreement with Allianz, the Zoo’s insurer, pursuant to s 66A of the Workers Compensation Act. It was agreed that the plaintiff would be paid additional lump sum compensation for further losses in the order of a further 7% permanent impairment of the neck ($2,800) and a further 5% permanent loss of efficient use of the right arm at or above the elbow ($4,000) and for a further 2% permanent impairment of the back ($1,200).

13. On 8 April 2015, the plaintiff again made a claim for further lump sum compensation pursuant to s 281 of the Act on the basis that her injuries had deteriorated and impairments increased. She claimed a further 12% permanent impairment of the neck resulting from the injury on 12 September 1993, a further 5% permanent loss of efficient use of the right arm at or above the elbow resulting from the injury on 13 September 1993 and a further 28% permanent impairment of the back resulting from the injury on 16 November 1996.

14. On 8 July 2015, the plaintiff’s solicitors received a notice from Allianz disputing the plaintiff’s claim for further lump sum compensation on the basis that there had been no deterioration and no further losses.

The claimant’s latest application to the Workers Compensation Commission

15. I shall set out this judgment in chronological order and refer to the relevant statutory provisions where they are relevant.

16. On 16 July 2015, the claimant lodged an application to resolve a dispute with the Workers Compensation Commission.

17. On 21 August 2015, by consent, arbitrator Grahame Edwards remitted the matter to the Registrar for referral to an AMS to assess the following losses under the Table of Disabilities:

18. (a)   permanent impairment of the neck as a result of the injury of 12 September 1993;

19. (b)   permanent loss of efficient use of the right arm at or above the elbow as a result of the injury on 13 September 1993; and

20. (c)   permanent impairment of the back as a result of injury on 16 November 1996.

21. Pursuant to s 319 of the Act an:

approved medical specialist” means a medical practitioner appointed under this Part as an approved medical specialist.

“medical dispute” means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:

(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),

(b) the worker’s fitness for employment,

(c) the degree of permanent impairment of the worker as a result of an injury,

(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

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

(f) whether impairment is permanent,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.

and s 321(1) of the Act reads:

321 Referral of medical dispute for assessment

(1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.

22. The medical dispute referred for assessment is as follows:

1st Date of Injury:	12 September 1993
Body part/s referred:	Permanent impairment of the neck
2nd Date of Injury:	13 September 1993
Body part/s referred:	Loss of efficient use of the right arm at or above the elbow
3rd Date of Injury:	16 November 1996
Body part/s referred:	Permanent impairment of the back

23. The method of assessment for all three injuries is the Table of Disabilities. The medical dispute was referred to approved medical specialist Dr T Davies a general surgeon (the AMA).

24. Section 326 of the Act refer to medical assessments and reads:

326 Status of medical assessments

(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:

(a) the degree of permanent impairment of the worker as a result of an injury,

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

...

The decision of the AMS

25. On 2 February 2016, the claimant was examined by the AMS.

26. As set out in the consent order, the details of matters referred to the AMS for assessment pursuant to s 319 of the Act were correctly recorded as follows:

Date of injury:

12 September 1993

13 September 1993

16 November 1996

Body parts referred:

Neck

Right arm above elbow

Back

Method of assessment:

Table of Disabilities

27. The AMS took a history from the claimant of her present symptoms and recorded:

• Present symptoms:

Neck

There is pain in the neck which is present all the time. It varies in severity and can increase in severity for no apparent reasons. When the pain is most severe, there is a restriction in range of movement of the head and neck.

Right arm above the elbow

There is pain in the right arm above the elbow, concentrated in the superior/posterior aspect in the scapular region, extending down to the postero-lateral aspect of the arm and when most severe, extends down to the radial aspect of the right hand.

When the pain is most severe, there is also an associated restriction in range of movement.

Back

There is pain in the lower back which also varies in severity and when most severe, the claimant stated that it causes her to “black out”. It is concentrated predominantly in the coccygeal region.

When the back pain is most severe, she cannot sit comfortably or stand up straight and the pain radiates into the right buttock and right leg.

28. The AMS also made the following findings on physical examination:

Cervical spine

There is the normal lordosis without evidence of muscle wasting or muscle spasm.

Motor function: Flexion is 80% of the normal range, extension is 10% of the normal range, lateral extension and rotation to the right is 20$ and lateral extension and rotation to the left is 40%. All movements are allegedly limited by neck pain.

Sensory function: There is tenderness to palpation over the right trapezius muscle area, but no spasm was identified.

Right and left upper extremities

Neurological examination was normal.

Right upper extremity – shoulder

There is reduced muscle power as compared with the left side, but no evidence of muscle wasting for spasm.

Motor function: Flexion is 90º, extension 100º, abduction 90º, adduction 100º, external rotation 100º, internal rotationº.

Sensory function: There is tenderness to palpation over the postero-superior aspect of the joint.

Lumbar spine

There is the normal lordosis without evidence of muscle wasting or muscle spasm.

Motor function: Flexion 90º, extension 10º, lateral and rotation to the right and left is 50º, all allegedly limited by back pain.

Sensory function: There is alleged tenderness to palpation, maximum over the lower lumdosdacral/coccygeal region.

29. The AMS diagnosed an aggravation of cervical spondylosis, musculo-ligamentous injury to the right shoulder and arm above the elbow and aggravation of lumbar spondylosis.

30. So far as consistency of presentation is concerned the AMS made a finding that the claimant presented generally as a cooperative, credible witness.

31. The AMS stated that as a result of the nature and conditions of the claimant’s employment the claimant suffered injuries to her neck, right arm above the elbow and to her back. The AMS stated that these varying injuries had been treated conservatively, with the claimant receiving analgesic and anti-spasmodic medication and continued under the care of a pain management specialist, Dr L R Holford. The AMS diagnosed the claimant as suffering from aggravation of cervical spondylosis, musculo-ligamentous injury to the right shoulder and arm above the elbow and aggravation of lumbar spondylosis.

32. The AMS provided an explanation of his assessment of permanent impairment as follows:

An assessment of permanent impairment is made using the Table of Disabilities as compared with a most extreme case and excluding any pre-existing condition or incidents. There is a 10% impairment of the neck, of which 7% can be attributable to the incident of 12 September 1993 and 3% to the incident of 13 September 1993.

There is a 5% impairment of the right arm above the elbow, attributable to the incident of 13 September 1993, 2% of which is caused by the incident of 12 September 1993 and 3% for the incident of 13 September 1993.

There is a 5% impairment of the back due to the injury of 16 September 1996.

33. On 10 February 2016, three certificates of assessment were issued.

Claimant’s application to appeal and submissions

34. Section 327 of the Act deals with appeals against a medical assessment. It relevantly reads:

327 Appeal against medical assessment

(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

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

(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,

(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

(c) the assessment was made on the basis of incorrect criteria,

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

(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.

...

35. The claimant lodged an application to appeal against the AMS on two grounds. Firstly, that the assessment was made on the basis of incorrect criteria; and secondly, the medical assessment certificate contained a demonstrable error (s 327(3)(c) and (d)). The application indicated that the claimant requested to be re-examined by an AMS who was a member of the Appeal Panel. Submissions were attached to the application to appeal.

36. In the submissions the claimant addressed “incorrect criteria” as follows:

A. Incorrect criteria

2. As the Applicant’s injuries occurred on 12 and 13 September 1993 and 16 November 1996, the assessment of permanent impairment is to be made pursuant to the Table of Disabilities by way of a comparison with a most extreme case in terms of impaired functionality or “loss of use”. When making such an assessment, subjective factors, such as pain and symptoms, are to be taken into account. Therefore the correct criteria by which to make such an assessment must include those matters.

3. At page 1 of the Medical Assessment Certificate Dr Davis confirms that the method of assessment is the Table of Disabilities, however it is apparent that Dr Davis did not take account to any subjective factors, because he has used language that indicates that he did not accept the complaints of pain and how they impacted on function.

4. The following is noted in support of that contention:

4.1 Under the heading cervical spine at page 4, Dr Davis states the following:

“All movements are allegedly limited by neck pain.” (claimant’s emphasis added)

4.2 Under the heading lumbar spine at page 4, Dr Davis states the following:

“Motor function … all alleged tenderness to palpation, maximum over the lower lumbosacral/coccygeal region.” (claimant’s emphasis added)

5. We submit that Dr Davis did not take into account our client’s subjective complaints of pain. Accordingly, the Applicant respectfully submits that the criteria of the Table of Disabilities was not correctly applied in the above aspects of Dr Davis’ assessment. In this respect, it appears that the incorrect criteria of the WPI regime has been erroneously applied, and that as a result Dr Davis failed to properly perform the assessment assigned to him, and therefore failed to perform his statutory task.

6. We respectfully submit that the Applicant ought to be re-examined by an Approved Medical Specialist who is a member of the Appeal Panel to make an assessment based on the correct criteria of the Table of Disabilities, duly taking into account our client’s subjective complaints of pain.

37. The submissions in relation to demonstrable error are as follows:

B. Demonstrable error

7. It is also submitted that Dr Davis’ failure to carry out the assessment properly resulted in a demonstrable error as well.

8. Further it is submitted, that at page 6, Dr Davis states that there is a 10% impairment of the back, of which:

a. 7% can be attributable to the incident of 12 September 1993; and

b. 3% can be attributable to the incident of 13 September 1993.

9. The Medical Assessment Certificate states only 7% impairment for the neck for the date of injury of 12 September 1993.

10. It appears that 3% impairment of the neck attributable to the date of injury of 13 September 1993 is not included in the Medical Assessment Certificate.

11. We respectfully submit that the failure of 3% impairment to be included in the Medical Assessment Certificate is a demonstrable error and that this impairment ought to be included in accordance with the body of Dr Davis’ report.

38. The insurer filed a notice of opposition together with submissions.

39. On 11 April 2016, the delegate of the Registrar (the gatekeeper) upon the examination of the medical assessment certificate and on the face of the application and submissions made, was satisfied that a ground of appeal as specified in s 327(3)(d) was made out in relation to the AMS’s assessment of the claimant’s neck and back. On that day the appeal was referred to an Appeal Panel. (Ex 1).

40. In oral submissions, counsel for the defendant argued that the plaintiff on appeal can only rely upon s 327(3)(d), namely a demonstrable error as that was the only ground of appeal that the Registrar was satisfied was made out.

41. Both parties referred to New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 (NSW Police Force).

42. In NSW Police Force, Davies J at [49] stated:

49 The approved form of application to appeal against a decision of an approved medical specialist contains the notation that is set out in paragraph [10] above. Noting that the warning on the form appears to give a discretion where submissions are not filed with the application whereas the Guidelines do not, it is apparent that the submissions are, nevertheless, an integral part of the identification of the grounds of appeal. In that way if a party identifies in respect of a ground (d) appeal particular demonstrable errors, the appeal should be taken with the submissions will constitute “the grounds of appeal on which the appeal is made.” In my opinion, that result is most consistent with what the amendments in 2010 must be taken to have intended.

43. In NSW Police Force, Davies J explained that the Appeal Panel is confined to the grounds of appeal identified by the plaintiff, namely (c) and (d) together with the plaintiff’s submissions.

Correspondence – medical examination

44. On 1 March 2016, the delegate of Registrar wrote to the claimant’s solicitors (Ex A) stating:

At section 4.3 of the form you have failed to provide submissions addressing the need for a panel AMS to re-examine the worker.

I wish to give you the opportunity to provide a short addition to your submissions to clarify the points listed above in accordance with the Registrar’s guideline.

45. On 3 March 2016, the claimant’s solicitor wrote to the Registrar enclosing amended submissions which addressed the need for a panel AMS to re-examine the claimant.

46. Paragraph 7 of the amended submissions (Ex A) stated:

7. A re-examination is necessary in the present circumstances because Dr Davis failed to record the Applicant's subjective complaints of pain other than to say that some of her movements were restricted by "alleged pain" and in so doing, also failed to assess how her pain impacted on her functionality … There is thus insufficient information for the Medical Appeal Panel to conduct its own assessment from the findings recorded by Dr Davis.

The appeal

47. The procedure on appeal is set out in s 328. It relevantly reads:

328 Procedure on appeal

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

(2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can provide for the procedure on an appeal.

…

The decision of the Appeal Panel

48. It is the decision of this Appeal Panel dated 6 June 2016 that is the subject of this judicial review. The Appeal Panel was comprised of Arbitrator John Wynyard and approved medical specialists Drs Brian Noll and Mark Burns.

49. In so far as the claimant’s request for a re-examination is concerned, the Appeal Panel recorded at [9] the claimant sought to be re-examined by an AMS who was a member of the Appeal Panel, however for the reasons given below the Appeal Panel determined that a re-examination was not necessary. The Appeal Panel did not specifically refer to the claimant’s request for re-examination again. I will refer to this later in my judgment.

50. The Appeal Panel in its reasons continued:

22. In this matter the Registrar has determined that he is satisfied that at least one of the grounds of appeal under section 327(3) is made out. The Panel has accordingly conducted a review of the material before it and reached its own conclusion concerning the correct assessment of the impairments and losses suffered by the appellant.

23. The appellant submitted that the AMS fell into error in two respects. Firstly, she submitted that, as the assessment was governed by the Table of Disabilities, subjective complaints were matters that were relevant to the process….

24. In any event the allegation made in the appeal was that the AMS had not taken into account the subjective complaints of pain from the appellant.

25. The AMS noted the symptoms complained of by the appellant as follows:-

• Present symptoms:

Neck

There is pain in the neck which is present all the time. It varies in severity and can increase in severity for no apparent reason. When the pain is most severe, there is a restriction in range of movement of the head and neck.

Right arm above the elbow

There is pain in the right arm above the elbow, concentrated in the superior/posterior aspect in the scapular region, extending down to the posterolateral aspect of the arm and when most severe, extends down to the radial aspect of the right hand.

When the pain is most severe, there is also an associated restriction in range of movement.

Back

There is pain in the lower back which also varies in severity and when most severe, the claimant stated that it causes her to “black out”. It is concentrated predominantly in the coccygeal region.

When the back pain is most severe, she cannot sit comfortably or stand up straight and the pain radiates into the right buttock and right leg.

26. The error alleged was that, having heard the complaints, the AMS did not accept them. This was reflected in the language that the AMS used, the appellant argued. In examining the cervical spine the AMS noted that all movements are allegedly limited by neck pain.

27. The appellant also drew our attention to the comment by the AMS as to the lumbar spine, where he said that motor function was all allegedly limited by back pain and that there was “alleged tenderness to palpation.”

28. We concur with the submission by the appellant that the AMS did not accept the complaints made by the appellant to him, however we do not agree that the appellant is correct when she submitted that in effect the AMS must believe everything that he is told. The purpose of an assessment by an AMS is to obtain an impartial and unbiased opinion as to the true degree of impairment or loss. This requires the AMS to consider not only the complaints, but the documentary evidence that is before him and indeed to use his clinical judgment and experience in the course of the interview. It is plain from the language used by the AMS that he had reservations about the accuracy of the complaints given to him. He has based his opinion, as he said, on the facts as determined above and a review of the medical reports in the documentation supplied. The facts as determined above included the results of his physical examination.

29. The appellant also submitted that the AMS had made a demonstrable error because it was alleged that he had found that there was a 10 percent impairment of the back (sic) [this should be a reference to the neck, not the back], of which 7 percent could be attributed to the incident of 12 September 1993 and 3 percent to the incident of 13 September 1993. A perusal of page 6 of the MAC shows that in fact the AMS found that there was a 10 percent impairment of the neck, not the back. The appellant submitted (accurately) that the MAC stated only that there was a 7 percent impairment to the neck for the date of injury, 12 September 1993 and that the AMS fell into error when he failed to assess also a 3 percent impairment for the neck for the injury of 13 September 1993, in view of his finding.

30. We reject that submission. The AMS is bound by the terms of the referral as to the matters he is required to certify. In relation to the injury of 13 September 1993 he was only asked to assess the right arm at or above the elbow and not the neck.

31. The Commission routinely serves on the parties the proposed referral prior to the assessment taking place to give them an opportunity to object to its terms. There is no evidence that any objection was made to the referral as the AMS received it and accordingly no error has been shown.

32. For these reasons, the Panel has therefore determined that the Medical Assessment Certificate dated 10 February 2016 given in this matter should be confirmed.

51. On 6 June 2016, the Appeal Panel determined that the medical assessment certificate dated 10 February 2016 should be confirmed.

Grounds of review

52. The plaintiff seeks judicial review of the whole of the decision of the Appeal Panel dated 6 June 2016 on the basis that is contains both jurisdictional error and error on the face of the record. The grounds of review are that:

1. The Appeal Panel asked itself the wrong question in that it focused its attention on whether the AMS accepted the subjective complaints of the plaintiff instead of asking itself whether the AMS had carried out his statutory task correctly and whether the AMS had carried out the assessment of permanent impairment pursuant to the Table of Disabilities by way of a comparison with a most extreme case and in terms of impaired functionality (or loss of use), thereby committing a jurisdictional error;

2. The Appeal Panel failed to deal with a substantial, clearly articulated argument put to it by the plaintiff. The clearly articulated argument was that the AMS had failed to carry out the assessment of the degree of permanent impairment pursuant to the Table of Disabilities by way of a comparison with a most extreme case and in terms of impaired functionality (or loss of use) thereby committing a jurisdictional error:

3. The Appeal Panel failed to accord the plaintiff procedural fairness by failing to deal with a substantial, clearly articulated argument put to it by the plaintiff thereby committing an error of law on the face of the record.

4. The Appeal Panel failed to deal with a substantial, clearly articulated argument put to it by the plaintiff. The clearly articulated argument was that the AMS had applied incorrect criteria by inappropriately assessing the degree of permanent impairment using the whole person impairment regime.

5. The Appeal Panel failed to accord the plaintiff procedural fairness by failing to deal with a substantial, clearly articulated argument put to it by the plaintiff thereby committing an error of law on the face of the record.

6. The Appeal Panel misapprehended the claim of demonstrable error made to it by the plaintiff regarding the assessment by the approved medical specialist in respect of the neck, and thereby failed to deal with a substantial, clearly articulated argument put to it by the plaintiff that there had been no injury to the neck on 13 September 1993 and therefore the full 10% permanent impairment of the neck assessed ought to have been attributed to the date of injury of 12 September 1993.

7. The Appeal Panel failed to accord the plaintiff procedural fairness by failing to deal with a substantial, clearly articulated argument put to it by the plaintiff thereby committing an error of law on the face of the record.

53. The first defendant denies that the plaintiff is entitled to any of the orders sought and denies that the third defendant made jurisdictional error or error on the face of the record or was denied procedural fairness.

54. I shall deal with review grounds 6 and 7 followed by review grounds 1 to 5, if necessary.

Review Grounds 6 and 7

55. Review Ground 6 is that the Appeal Panel misapprehended the claim of demonstrable error made to it by the plaintiff regarding the assessment by the AMS in respect of the neck, and thereby failed to deal with a substantial, clearly articulated argument put to it by the plaintiff that there had been no injury to the neck on 13 September 1993 and therefore the full 10% permanent impairment of the neck assessed ought to have been attributed to the date of injury of 12 September 1993. Review Ground 7 is that the Appeal Panel failed to accord the plaintiff procedural fairness by failing to deal with a substantial, clearly articulated argument put to it by the plaintiff thereby committing an error of law on the face of the record.

56. The plaintiff submitted that the Appeal Panel asked “Was the AMS asked to provide an assessment for the neck in respect of the date of injury of 13 September 1993” rather than “Should the AMS have attributed the entire 10% assessment to the 12 September 1993 date of injury?”

57. The first defendant referred to the plaintiff’s submission on review that stated that the entire 10% ought to have been attributed to the 12 September 1993 incident, as that is when it was accepted that the plaintiff injured her neck and there was no evidence that she injured her neck on 13 September 1993. The first defendant argued that this submission could have been made to the Appeal Panel but was not and if it had the Appeal Panel could have directed its attention to the proposition that not all of the permanent impairment to the plaintiff’s neck was caused by the injury on 12 September 1993 and either confirmed the AMS’ decision, or substituted its own decision. I disagree. In the claimant’s submissions under the heading of “demonstrable error” at [7] to [9] the same issue in relation to the neck as has been raised in this Court was raised before the Appeal Panel.

Consideration

58. The medical dispute referred to the AMS for assessment was in respect of three injuries. The first injury occurred on 12 September 1993 and permanent impairment of the neck was to be assessed. The second injury occurred on 13 September 1993 for injury of loss of efficient use of the right arm at or above the elbow was to be assessed. The third injury occurred on 16 November 1996 and the injury of permanent impairment of the back was to be assessed. The method of assessment for all three injuries is the Table of Disabilities.

59. Both parties referred to the decision of Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192 (Haroun). The brief facts in Haroun are that an arbitrator made findings by consent that two falls at work “continued to contribute to any impairment” suffered by the worker made a referral for medical assessment pursuant to s 321 of the Act. The AMS disregarded the finding by the arbitrator that the falls at work continued to contribute to the worker’s impairment. An appeal by the worker to an Appeal Panel failed and the assessment of the AMS was confirmed. The worker sought certiorari to quash the Appeal Panel’s certificate for error of law on the face of its reasons which revealed that the Appeal Panel had disregarded the arbitrator’s findings.

60. In Haroun, Handley AJA (with McColl and McDougall JJA agreeing) at [11] stated:

11 The Panel noted (par 32) that the AMS had found, contrary to the Arbitrator’s findings, that there was no evidence of an injury to the worker’s right or left lower extremities as a result of her fall on 24 June. They said (par 24) that it was the Arbitrator’s function to determine whether there had been an injury as claimed, and that the task of the AMS was to determine whether that injury gave rise to any permanent impairment.

61. In Haroun, Handley AJAS explained the interrelationship of the statutory provisions at [16] to [22]:

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

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

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

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

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

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

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

62. In Haroun, the Court of Appeal held that the Appeal Panel had not erred in law because the arbitrator had no jurisdiction to determine the medical disputes and his findings made without jurisdiction could not bind the Appeal Panel or even be persuasive.

63. Returning to the judicial review before me, so far as the permanent impairment of the neck is concerned, the AMS stated that there is a 10% impairment of the neck, of which 7% could be attributable to the incident of 12 September 1993 and 3% to the incident of 13 September 1993. There was no medical dispute referred to the AMS concerning a neck injury that occurred on 13 September 1993 (referred by the AMS to as an incident). The 3% impairment to the neck that occurred on 13 September 1993 was not included in the medical assessment certificate. The AMS assessed a 7% impairment for the neck for the injury that occurred on 12 September 1993 and it was only this 7% that is included in the certificate of assessment issued in relation to the neck.

64. So far as the plaintiff’s neck is concerned, the Appeal Panel recorded that the plaintiff also submitted that the AMS made a demonstrable error because it was alleged that he had found that there was a 10% impairment of the back [this should be a reference to the neck, not the back], of which 7% could be attributed to the incident of 12 September 1993 and 3% to the incident of 13 September 1993. It stated that a perusal of page 6 of the MAC shows that the AMS found that there was a 10% impairment of the neck, not the back. (The Appeal Panel continued that there was a typographical error in the plaintiff’s submissions to the Appeal Panel. The plaintiff’s submissions referred to back when it should have been neck). The plaintiff submitted (accurately) that the MAC stated only that there was 7% impairment to the neck for the date of injury, 12 September 1993 and that the AMS fell into error when he failed to assess also a 3% impairment for the neck for the injury of 13 September 1993, in view of his finding.

62. The Appeal Panel pointed out that a perusal of page 6 of the MAC showed that the AMS had in fact found that there was a 10% impairment of the neck. The Appeal Panel recorded the plaintiff’s submissions that the MAC only stated that there was a 7% impairment to the neck for the date of injury, 12 September 1993 and that the AMS fell into error when he failed to also assess a 3% impairment for the neck for the injury of 13 September 1993. The Appeal Panel rejected that submission and determined that the AMS was bound by the terms of the referral as to the matter he was required to certify. According to the Appeal Panel, in relation to the injury of 13 September 1993 the AMS was only asked to assess the right arm at or above the elbow and not the neck.

63. I accept that the approach this Court should adopt is not to read the reasons of the decision maker with an eye finely tuned for error: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 (at [67]) per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at 291).

64. In Haroun, the arbitrator acted beyond power in determining that the two falls at work “continued to contribute to any impairment”. The arbitrator had no jurisdiction to determine medical disputes. The Court of Appeal held that both the AMS and the Appeal Panel correctly treated the arbitrator’s finding as irrelevant.

65. In this judicial review, the AMS’s task was to determine whether each injury gave rise to any permanent impairment. In assessing the permanent impairment of the plaintiff’s neck injury that occurred on 12 September 1993 the AMS did not have jurisdiction to attribute a percentage of that permanent impairment to the neck to an incident that occurred on the next day. The AMS in doing so acted beyond jurisdiction. It follows that the Appeal Panel by accepting this approach of the AMS as being correct also acted beyond jurisdiction.

66. Unlike Haroun, in these current proceedings before this Court, the arbitrator acted within power when he or she made the referral. It was the AMS who acted beyond his jurisdiction. It is for these reasons that the decision of the Appeal Panel should be quashed and be remitted to the Registrar of the Workers Compensation Commission to be determined according to law.

67. I should add that the Appeal Panel also stated that the Workers Compensation Commission routinely served on the parties the proposed referral to the assessment taking place to give them an opportunity to object to its terms. The Appeal Panel noted that there was no evidence that any objection was made to the referral as the AMS received it and accordingly no error had been shown. The first defendant submitted that this was an option open to the plaintiff but in my view this would not have provided any remedy because the referral of the arbitrator was in fact correct.

Table of disabilities

71. Before I deal briefly with review grounds 1 to 5, it is convenient that I set out some amendments made to the workers compensation legislation. In 2002 and 2012, there were significant amendments made to the workers compensation legislation. However, the regime for assessing the degree of permanent impairment pursuant to the Table of Disabilities resulting from injuries received prior to 1 January 2002 was preserved.

72. In these proceedings, the plaintiff’s injuries were received prior to 1 January 2002 and the assessment assessed using the Table of Disabilities (the Table) (former s 73 Table 5 of the Workers Compensation Act now replaced by the Workers Compensation Legislation Amendment Act 2001 (NSW)). The Table sets out the nature of the injury being a loss of something and the percentage of the maximum payable in compensation. The note at (a) at the end of the Table stated that “the maximum percentage is payable only in a most extreme case and the percentage payable in any other case shall be reasonably proportionate to that maximum percentage having regard to the severity of the matter.”

Review grounds 1 to 5

73. It is not necessary that I deal with these grounds of review but I will briefly deal with them and express my tentative views.

74. These grounds of review can be summarised as firstly whether the AMS applied the wrong methodology, secondly whether the AMS failed to take into account the plaintiff’s subjective complaints of pain; and finally whether the Appeal Panel did not offer procedural fairness. As these proceedings are to be remitted to the Workers Compensation Commission for determination according to law for reasons already given, it is not necessary that I deal with these issues, but I shall briefly refer to them. The first defendant argued that the plaintiff’s submission that the Table of Disabilities was not correctly applied expressly limits the plaintiff’s appeal on the Table of Disabilities to the issue of her subjective complaints of pain.

75. In submissions on appeal, the plaintiff stated that it was apparent that the AMS did not take into account any subjective factors, because he had used language that indicated that he did not accept the complaints of pain and how they impacted on function. However, the plaintiff submitted that in terms of the second ground of review the Appeal Panel ignored and failed to deal with the other part of the complaint being that the AMS failed to apply the correct methodology in that it failed to assess how her pain impacted on her functionality. The plaintiff submitted that the Appeal Panel misconstrued the complaint and therefore the task thereby misdirecting itself which amounts to jurisdictional error.

76. The AMS stated that the method of assessment he used was the Table of Disabilities. The plaintiff drew this Court’s attention to the AMS’s statement “An assessment of permanent impairment is made using the Table of Disabilities’ as compared with a most extreme case excluding any pre-existing conditions or incident.” I do interpret this statement the same way that the plaintiff urges me to. While the AMS misstated the test in the Table and had loosely referred to s 326(b) of the Act, overall I accept that the AMS did apply the Table of Disabilities.

77. As to subjective pain, the AMS made a finding that so far as the consistency of the plaintiff’s presentation is concerned, she presented generally as a co-operative, credible witness. The AMS then went on to make findings under the heading “cervical spine” at page 4 that “All movements are allegedly limited by neck pain.” Under the heading “lumbar spine” the AMS made a finding that “Motor function … all alleged tenderness to palpation, maximum over the lower lumbosacral/coccygeal region.” In other words, on the issue of subjective pain he did not accept the plaintiff’s complaints in relation to her neck and lumbar spine as being genuine.

78. However, the AMS did conduct a physical examination of the neck and lumbar spine. For both the neck and back he noted that there was the normal lordosis without evidence of muscle wasting or muscle spasm. He then tested motor function and sensory function. I shall briefly refer to two authorities, Pacific Dunlop Ltd v Krivec (1996) 12 NSWCCR 353 and Borovac v Corporate Ventures Pty Ltd (1995) NSWCCR 84 (Borovac).

79. In Borovac, the Court of Appeal stated at [37] that the injury may produce pain causing the worker to be able to do less with their spine than would otherwise be possible, or pain may be produced without affecting the functioning of the neck or back or there may be a combination of these effects.

80. The Appeal Panel stated it concurred with the submission by the plaintiff that the AMS did not accept the complaints made by the plaintiff to him. However it does not agree that the plaintiff is correct when she submitted that in effect the AMS must believe everything that he is told. It explained that the purpose of an assessment by an AMS is to obtain an impartial and unbiased opinion as to the true degree of impairment or loss. The Appeal Panel stated that this requires the AMS to consider not only the complaints, but the documentary evidence that is before him and indeed to use his clinical judgment and experience in the course of the interview. The Appeal Panel opined that it is plain from the language used by the AMS that he had reservations about the accuracy of the complaints given to him. Overall, the Appeal Panel concluded that the AMS had based his opinion, as he said, on the facts as determined above and a review of the medical reports in the documentation supplied and the facts as determined above included the results of his physical examination.

81. While the Appeal Panel did not specifically use the words “impaired functionality”, it concluded that the AMS had based his opinion on a number of factors, namely the review of medical reports and other documentation, his clinical judgment and experience in order to determine the true degree of the impairment to the plaintiff’s neck and lumbar spine. Procedural fairness was afforded to the plaintiff. It is my tentative view that the determination of the Appeal Panel on this issue is correct.

82. Although it is not clear, it seems to follow that because the Appeal Panel did not find any error in the AMS’s approach to the plaintiff’s subjective account of pain in her neck and back, it determined that there was no utility in it conducting its own re-examination.

Result

83. For reasons given earlier the Appeal Panel has acted beyond jurisdiction and the matter has been remitted to the Registrar of the Workers Compensation Commission to be dealt with according to law.

84. Even though the plaintiff has not sought an order that the decision of the AMS be quashed, the AMS made his decision that was without jurisdiction. It is my view that this decision should be quashed. I make such a declaration and order.

85. Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs on an ordinary basis.

The Court declares that

(1)   The decision by the Approved Medical Specialist issued on 10 February 2016 is vitiated by jurisdictional error.

(2)   The decision of the Medical Appeal Panel issued on 6 June 2016 is vitiated by jurisdictional error.

The Court makes an order:

(3)   In the nature of certiorari removing into the Court the decision of the Approved Medical Specialist issued on 10 February 2016 and quashing that decision.

(4)   In the nature of certiorari removing into the Court the decision of the Medical Appeal Panel issued on 6 June 2016 and quashing that decision.

The Court further orders that:

(5)   The proceedings are remitted to the Registrar of the Workers Compensation Commission to be determined according to law.

(6)   The first defendant is to pay the plaintiff’s costs on an ordinary basis.

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Decision last updated: 03 July 2017