Needham v Wollongong City Council

[2024] NSWSC 575

Supreme Court

New South Wales

Medium Neutral Citation:

Needham v Wollongong City Council [2024] NSWSC 575

Hearing dates:

7 May 2024

Date of orders:

16 May 2024

Decision date:

16 May 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1)   The appeal panel’s decision be set aside;

(2)   The matter be remitted to be considered by a differently constituted appeal panel; and

(3)   Unless the parties approach to be heard within 14 days with short written submissions, the Council is to bear Ms Needham’ s costs as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – judicial review of decision of medical appeal panel – medical dispute under Workplace Injury Management and Workers Compensation Act 1998 – where plaintiff had suffered injury to her left elbow in a fall – where defendant rejected plaintiff’s claim about resulting impairment of her left upper extremity – where plaintiff made an application for assessment of impairment of her left upper extremity – where medical assessor found impairment of ulnar nerve as well as elbow joint – where appeal against assessment upheld – whether appeal panel erred in finding that medical assessor had dealt with injury which went beyond the parties’ medical dispute which was confined to impairment of the left elbow – claim pursued in respect of impairment of left upper extremity included impairment of the ulnar nerve – appeal panel’s decision set aside

Legislation Cited:

Supreme Court Act1970 (NSW), s 69

Workers Compensation Act1987 (NSW), s 66

Workplace Injury Management and Workers Compensation Act1998 (NSW), ss 319, 327(2), 352, 376

Personal Injury Commission Rules 2021 (NSW), r 128

SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Guidelines 1.6, 1.7, 1.9,1.12, 1.17, 1.31-1.33, 2.3-2.8, 2.9-2.10

Cases Cited:

Amante v R [2020] NSWCCA 34

Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57

Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd (2014) 13 DDCR 156; [2014] NSWCA 264

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

Holland v Jones (1917) 23 CLR 149; [1917] HCA 26

Klement v Bull ‘N’ Bush Nurseries Pty Ltd [2024] NSWSC 466

MIMA; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792

Siddik v WorkCover Authority of NSW [2008] NSWCA 116

Skatesv Hills Industries Ltd [2021] NSWCA 142

Vitaz v Westform (NSW) Pty Limited [2010] NSWSC 667

Texts Cited:

American Medical Association (AMA), Guides to the Evaluation of Permanent Impairment (5th ed, 2002)

Category:

Principal judgment

Parties:

Tracey Jane Needham (Plaintiff)
Wollongong City Council (First Defendant)
Personal Injury Commission Medical Appeal Panel consisting of Member Carolyn Rimmer, Medical Assessor David Crocker and Medical Assessor Doron Sher (Second defendant)
President of the Personal Injury Commission of New South Wales (Third defendant)

Representation:

Counsel:
J W Dodd (Plaintiff)
Dr S Blount (First Defendant)
Solicitors:
McCabe Partners Lawyers (Plaintiff)
Integroe Partners (First Defendant)

File Number(s):

2023/420745

Publication restriction:

Nil

JUDGMENT

1. Ms Needham was working for the Council organising its 2020 Australia Day celebrations when she rolled her ankle while walking along a footpath, lost her balance and fell forward, landing on her left elbow and face. She was seriously injured, later requiring surgery on both her left elbow and right ankle. Ms Needham received various payments under the Workers Compensation Act1987 (NSW) and eventually pursued compensation under s 66, her whole person impairment, WPI, having been assessed by Dr Dixon in 2021 to total 16%.

2. Liability for Ms Needham’s injury was accepted by the Council, but her claimed WPI was not, the Council relying on the opinion of Dr Rimmer, formed in 2023, that she had suffered only 6% WPI in total, below the statutory threshold for the compensation she sought.

3. The parties’ resulting medical dispute was referred to Dr Ho for assessment. Having also examined Ms Needham in 2023, he concluded that her WPI totalled 17%. The Council successfully appealed that assessment, the Appeal Panel concluding that Dr Ho had erred in not confining his consideration of the impairment of her left upper extremity to her left elbow and including in the assessment the ulnar nerve. It concluded that Ms Needham’s total WPI was 12%.

4. This judgment deals with Ms Needham’s judicial review application under s 69 of the Supreme Court Act1970 (NSW), given the errors she contends the Panel fell into.

Conclusion

5. This matter raises for consideration different circumstances than those which arose to be considered either in Skatesv Hills Industries Ltd [2021] NSWCA 142 or Klement v Bull ‘N’ Bush Nurseries Pty Ltd [2024] NSWSC 466, where Skates recently had to be followed. But it also raises whether the Panel erred in its view that in assessing impairment, the assessor had impermissibly dealt with injury which went beyond the parties’ medical dispute, that being what the Commission’s jurisdiction turns on: Skates at [27].

6. Ms Needham first claimed that when she fell she injured her left arm. But the impairment for which she later made her compensation claim, eventually pursued by her application for assessment of the parties’ medical dispute, was impairment of her left upper extremity.

7. There is no issue about the serious injury which Ms Needham had suffered when she fell, injuring her elbow, or that it is one of the body parts to be found in the upper extremity. But there is no evidence about what the elbow is. Nor is that dealt with in the Guidelines which must be applied on an assessment.

8. But that is a matter about which judicial notice can be taken, given what is so generally known: Holland v Jones (1917) 23 CLR 149 at 153; [1917] HCA 26 recently discussed in Amante v R [2020] NSWCCA 34 at [66].

9. The elbow is one of the joints located in the upper extremity. Like others it is made up of bones and cartilage. Ligaments and tendons are attached to it, it is supplied with nerves and blood, and it is covered by skin. Those nerves not only signal the muscles, so that the elbow can work, but they also permit sensations such as touch and pain to be felt. There is no issue that the ulnar nerve is one of those nerves.

10. In neither Ms Needham’s claims, nor in her application for referral of the medical dispute, did she refer to injury to or impairment of her ulnar nerve. But not only did the documents accompanying her claim and application reveal that after her fall she had been treated for nerve damage in her left upper extremity, the experts who examined her had considered whether she had suffered any impairment as a result. On testing they found no such impairment, but the assessor later found on his examination and testing, that she had suffered impairment to her ulnar nerve and so included that in his assessment.

11. The Appeal Panel concluded that the assessor had erred, accepting the Council’s case that the medical dispute did not concern such impairment.

12. I have concluded that Ms Needham’s case, that the Appeal Panel erred in so concluding given the impairment of her upper extremity which was the subject of her assessment application, must be accepted.

13. Ms Needham was entitled to pursue compensation for all of the permanent impairment caused by the injuries which resulted from her fall. By her compensation claim and application for assessment of the medical dispute, she pursued the impairment of her left upper extremity. Neither was confined to the impairment of her elbow, although the ulnar nerve is to be found there. The supporting documents established that what she pursued encompassed the damage caused to that nerve, which unlike those who had earlier examined her, the assessor concluded on his testing, had contributed to the impairment of her upper extremity.

Issues

14. There is no remaining issue between the parties about the impairment resulting from the injury to Ms Needham’s ankle, or the scarring which she suffered. There is also no issue that both in parts of its reasons and its certificate the Panel incorrectly described the body part or system which had been assessed to be Ms Needham’s right upper extremity. It also incorrectly referred to injury to her shoulder, which she had not suffered or pursued compensation for.

15. The consequences of those errors were in issue, but that can be dealt with shortly.

16. Given what the Panel otherwise said in its reasons I am satisfied that these were errors of description, rather than ones which reflect any misunderstanding of what injuries Ms Needham had suffered or pursued by her claim or application and were assessed as a result. I am also satisfied that what is here really in issue between the parties, cannot turn on these errors.

17. In resolving those real issues, it must be borne in mind that under the applicable Guidelines, which both the assessor and the Panel had to follow, the “upper extremity” includes the elbow, as well as other body parts to be found there.

18. In issue was whether, as Ms Needham contends, the Panel also erred in:

1. wrongly applying what was decided in Skates;

2. its delineation of the parties’ medical dispute as being confined to the impairment of her elbow and not including any impairment resulting from damage to her ulnar nerve, despite both Dr Scott and Dr Rimmer having considered whether any impairment had resulted from such injury;

3. failing to comply with applicable Guidelines when undertaking its assessment; and

4. not finding that the medical assessor had denied the parties procedural fairness by assessing injury to her ulnar nerve, without first putting that diagnosis to them.

The parties’ cases

19. Both parties advanced written submissions.

20. Ms Needham contended that what the assessor was required to assess, given her application and the referral, was the injuries she had suffered to her elbow and the resulting impairment of her left upper extremity. The SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment required that this turn on clinical assessment undertaken on the day of her examination, the assessor exercising his clinical judgment to determine a diagnosis and then, when assessing her WPI, using the method of assessment that yielded the highest assessment: Guideline 1.6(a), (b) and (c).

21. The assessor found on examination not only Ms Needham’s obvious scarring from the surgery on her elbow and impairment resulting from the injury to the joint, but also positive signs of ulnar nerve damage. That included numbness over her little finger and the ulnar side of her forearm, the cubital tunnel area radiating to the little finger and obvious wasting of the dorsal interossei which is supplied by the ulnar nerve and was weak. Given the claim she was pursuing by her application in respect of impairment of her upper extremity, that diagnosis had to be included in his assessment in accordance with the Guidelines, which dealt with such impairment.

22. Ms Needham relied on what Basten JA observed in Skates at [33]:

“Without attempting to set out the detail of the Guidelines and the AMA Guides, to which the Court was not taken, it is sufficient to note that the medical assessment certificate was required to identify the specific body part or system, together with the “chapter, page and paragraph number in WorkCover Guides” and the “chapter, page, paragraph, figure and table numbers in AMA 5 Guides”. Identification of the extent of impairment by reference to individual body parts and body systems is required by the Guidelines and Guides which the statute obliges the AMS to follow.”

23. This was what the assessor had correctly done. The Panel had thus erred in concluding that the impairment to her ulnar nerve, diagnosed by the assessor on the day of his examination, had to be excluded from the assessment. Resolving the medical dispute required account to be taken of the injury caused to her ulnar nerve when she fell and injured her elbow when the impairment of her left upper extremity was assessed.

24. The Council resisted this, relying on what was decided in Skates at [29] and [46]. There Basten and Leeming JJA respectively observed:

“29 Medical reports enclosed with the application referred to specific injuries of the left wrist and hand; it was these injuries to which the insurer admitted liability and as to which a dispute arose concerning the precise extent of the injury. The insurer offered to accept a degree of permanent impairment calculated at 12%; the applicant sought a payment calculated by reference to 18%. These figures were supported by medical reports.

…

46 The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a “medical dispute” because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”

25. The Council contended that the Panel was correct in concluding that the medical dispute did not concern the ulnar nerve, such injury or any resulting impairment never having been claimed by Ms Needham. The Panel was thus also correct in concluding that the assessor had fallen into demonstrable error in including such injury in the assessment, it being the assessor’s function to find the degree of impairment resulting from an injury found by the Personal Injury Commission to have been suffered: Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd (2014) 13 DDCR 156; [2014] NSWCA 264 at [110].

26. Any dissatisfaction with the injuries found had to be pursued by an appeal under s 352 of the Workplace Injury Management and Workers Compensation Act1998 (NSW).

27. These cases were expanded orally. What was decided in Skates then led to the tender of some further relevant documents which had accompanied Ms Needham’s claim and application and the Council’s responses. That was because it was they which established what had been involved in the parties’ medical dispute which had been referred for assessment.

The assessor’s certificate

28. The reasons given by the assessor were succinct, but comprehensive.

29. After noting the medical dispute which had been referred for assessment, in respect of the impairment of Ms Needham’s left upper extremity, right lower extremity and scarring (TEMSKI), the assessor noted the documents to be reviewed, Ms Needham’s details and her history. That included:

“Mrs Tracey Jayne has worked for Wollongong City Council since 2007, in the first 10 years she worked part-time but sometimes, she also did overtime and in 2018, she became a full-time staff member. The injury happened on Australia Day, 26 January 2020, when she was the Team Leader of the event co-ordination and suffered a fall, in the early hours of the morning, of that day. She had a fracture dislocation of the left elbow which includes comminuted fracture of the proximal radius and fracture of the olecranon, together with ligament injury and minimally displaced medical malleolus fracture on the right ankle. She was under the care of Dr Stuart Jansen for the left elbow and an operation was done on 31 January 2020 with the internal fixation of the olecranon, radial head replacement and ligament reconstruction. While for the right ankle, she was operated on by Dr Meghan Dares on 3 February 2000 with percutaneous screw fixation of the undisplaced medical malleolus fracture. She receive appropriate conservative treatment, however, due to the residual problems, she was not able to return to her previous positions so she was put on suitable duties and now she is working full-time but as a Booking Officer instead. She has trouble lifting 2kg on the left upper limb because of the significant elbow problem so she cannot work in the event team anymore.”

30. The assessor explained his findings based on Ms Needham’s physical examination, as well as the results of radiological investigations, where reference was made to the ulnar nerve. He concluded that Ms Needham had been left with residual problems after her surgery, mainly with the left elbow. After answering questions posed in respect of her permanent impairment, the assessor explained the facts on which he had based his assessment of the medical dispute to be the detailed history he took, his physical examination and his review of the radiological and medical legal reports on file.

31. The reasons for his assessment were shortly given:

“a. My opinion and assessment

I believe she has reached maximum medical improvement as the injury was 3 years ago and there is little chance of further improvement, she is certainly suffering from whole person impairment in relation to both the right ankle and the left elbow.

b. An explanation of my calculations {if applicable)

To assess the whole person impairment of the right ankle, using Table 17-11, extension is only 5' so it will attract 3% whole person impairment and there is no whole person impairment relating to the hind-foot movement. For the elbow, Figure 16-34, extension lag of 40', is equal to 4% upper limb impairment, flexion to 120' is 2%. Using Figure 16-37, supination of 60' is equal to 1%.

Pronation of 80" is 0% so altogether, there is 7% upper limb impairment. Using Table 16-27, radial head replacement is 8% upper limb impairment. In relation to the ulnar nerve problem, using Table 16-15, the maximum upper limb impairment of combined motor and sensory deficit of ulnar nerve below the mid-forearm level is 40%. Using Table 16-11 and 16-10, I assess her to be Grade 4 power and Grade 4 sensory loss which I will assess as 20% loss which will give rise to 8% upper limb impairment. When this is combined with 7% from the stiffness, 8% for the radial head replacement, it will give rise to 21% upper limb impairment which will be equal to 13% whole person impairment while the ankle is 3%. For the scarring, using TEMSKI scale, I would give 1% whole person impairment so altogether it will be 17% whole person impairment.

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

My opinion is different from Dr Rimmer as I think there is stiffness in the ankle as well as ulnar nerve neuropathy which explains the assessment of mine being significantly higher than his. Even when compared with Dr Dickson, we came to more or less similar figures, but the difference between ours is that I gave a lower assessment for scarring and I don't think there is any loss of movement in the subtalar joint but there is a problem with the ulnar nerve which gives rise to a similar assessment at the end.

d. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.

I certify the impairment is permanent.”

32. The Council did not contend that the assessor had erred in his assessment of the impairment. Its case was rather that impairment found in respect of the ulnar nerve was irrelevant to the resolution of the medical dispute.

The Appeal Panel’s decision

33. After noting that the appeal was proceeding in accordance with r 128 of the Personal Injury Commission Rules 2021 and the applicable SIRA Guidelines and the American Medical Association (AMA), Guides to the Evaluation of Permanent Impairment (5^th ed, 2002), the Panel turned to the relevant factual background.

34. The Panel noted the injuries to Ms Needham’s left elbow and right ankle, assessed by Dr Ho, and his conclusion that Ms Needham had suffered 17% WPI. It explained that it had not re-examined her, because there was sufficient evidence on which to make its determination. It said that it took into account all the documents that were sent to the assessor, as well as the parties’ submissions, which it summarised in considerable detail: at [13]-[15].

33. The Panel then turned to its findings and reasons, noting its obligation to give reasons: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284. It then observed that it was held in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 that “while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard”: at [101].

34. The Panel then noted the later amendment to s 327(2) of the Workplace Injury Management and Workers Compensation Act 1987 (NSW), which confined an appeal to the grounds upon which the appeal was made, considered in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.

35. The Panel then quoted from the parts of Dr Ho’s medical certificate it considered relevant to the appeal: at [21]-[28]. It then noted that the Council’s submission was that there had been demonstrable error in assessing a degree of impairment resulting from injury to the “ulnar nerve condition” and, even if entitled to assess the ulnar nerve, the assessor had failed to provide proper reasons.

36. The Panel then turned to the background to the claim, noting aspects of the letter and report of Dr Dixon, Dr Rimmer, the insurer’s s 78 notice and Ms Needham’s reply, before returning to Skates, from which it quoted at [44], [46] and [49]. It concluded that it was clear “from the Reply and from the reports of Dr Dixon dated 26 October 2021 that there was a dispute between the parties concerning the degree of permanent impairment in the right ankle and left elbow as a result of the injury on 26 January 2020”: at [38].

37. It also observed that “Dr Rimmer's assessment of WPI of the left upper extremity was based on restriction of range of motion for flexion, extension, supination and pronation”.

38. This led the Panel to agree with the Council that the assessor had made a demonstrable error in assessing impairment which was not part of the medical dispute identified by the parties. Further, that it was unfair for the assessor to have concluded that the ulnar nerve condition resulted from the Australia Day injuries, without putting this issue to the parties. The result was a lack of procedural fairness, the parties not having had a chance to consider or address this issue, applying Vitaz v Westform (NSW) Pty Limited [2010] NSWSC 667.

39. The Panel also concluded that the assessment of the left upper extremity “should be limited to an assessment of the impairment of the upper extremity after arthroplasty of the elbow, upper extremity motion impairment due to lack of flexion and extension of the elbow joint impairment due to lack of pronation and supination.” It followed that the assessment of the ulnar nerve conditions had to be deducted from the assessment.

40. The Panel thus assessed Ms Needham as having 8% WPI of the left upper extremity, 1% for scarring/TEMSKI and 3% for the right lower extremity, a total of 12%. No other reasons were given for those conclusions.

What was referred for assessment?

43. This depends on the relevant documents.

What establishes what a dispute concerns?

44. The parties agreed that it was the November 2021 compensation claim letter, the Council’s response, Ms Needham’s later application for assessment of the parties’ resulting medical dispute, the Council’s response to that application and all the accompanying documents, which established what Ms Needham had pursued and what the parties’ resulting medical dispute concerned, given what been held in Skates.

45. There Basten JA, with whom Leeming JA agreed, explained that the Commission’s jurisdiction under s 66 was not at large: at [27]. It is confined by the claim made with respect to a specific injury which occurred in the course of employment on a specified date and the application pursued to resolve the medical dispute: at [27]. They may not be identical: at [28]. Accompanying medical reports are also relevant to determining what is admitted: at [29].

46. They all define the proper scope of a referral for assessment: at [30]. Such a referral is capable of restriction by reference to body parts/systems and what is referred may be a matter for an Appeal Panel’s professional judgment, but a referral is also capable of being misread by a Panel: at [31].

47. The assessment of the degree of permanent impairment resulting from what has been referred has to be made in accordance with the applicable Guidelines: at [32].

48. Leeming JA added, by way of emphasis, that the medical dispute will have been identified by a written exchange of competing claims: at [44]. That the dispute in that case was “crystallised” by correspondence attached to Mr Skates’ application: at [46]. The outcome of the assessment resolves such a medical dispute: at [47]. The referral for assessment is important, but “the fundamental legal concept is a dispute”: at [48]. “Infelicity” in a referral cannot stand in the way of the fact that it is “the dispute between the parties, crystallised in the documents attached”, which is referred for assessment in accordance with the statute: at [49].

49. In this case, what Ms Needham pursued, both by the November claim letter and the accompanying draft assessment application and by her final application, relevantly concerned permanent impairment of her left upper limb. The injuries she had suffered were described to have been “to her right ankle, facial bruising, broken nose, and left elbow”. The nature of those injuries and their ongoing consequences were more extensively disclosed in the accompanying documents. Including in relation to the scarring she had suffered and her ongoing nerve problems.

50. Section 78 regulated the Council’s response to the claim, it being required to give notice of any decision to dispute liability. It there identified the type of injury Ms Needham had suffered, relevantly, to be “left elbow”. It disputed that she had suffered 11% WPI as the result of the identified injuries or that she had any entitlement to lump sum compensation.

51. In the reasons given for its decision the Council relied on Dr Rimmer’s assessment. He had concluded that the impairment he found related entirely to the alleged injury of the left elbow. His report established that like Dr Dixon, he had considered, but not found, impairment resulting from nerve damage. That consideration accorded with the accompanying documents reflecting that Ms Needham had suffered more than injury to the bones in her elbow joint, that necessitating the testing for impairment as the result of nerve damage.

52. In its reply to the application for referral of the medical dispute the insurer said, however:

“1.   The respondent consents to the worker being referred to the medical assessor for assessment of the degree of permanent impairment resulting from the accepted injuries to her right ankle and left elbow.

2.   In the worker's ARD, additional conditions/injuries are alleged including facial bruising/broken nose and "consequential injuries, affecting the left hand and back.” We confirm that no assessment of permanent Impairment in respect of those injuries/conditions has been relied upon by the applicant, and there is accordingly no 'medical dispute' in respect or those Injuries. The respondent therefore disputes that those additional Injuries (that is injuries aside from the right ankle and left elbow) are capable of being referred to the medical assessor.

3.   The respondent would wish to be heard on that issue before a commission member in the event any dispute in relation to the above arises …”

53. Despite this response, the body parts referred by the delegate for assessment included, correctly, the “Left Upper Extremity” and so the assessment was not confined to the left elbow. There is no suggestion that the insurer then made any objection to this referral as going outside the parties’ medical dispute. It was this dispute which the assessor had to resolve.

54. This accorded with both Ms Needham’s claim and her application having been made in respect of impairment of her left upper extremity, not merely her left elbow. That reflected what the documents which had accompanied her claim and application, as well as those on which the insurer relied, had dealt with. The result was that the medical dispute was also not confined to impairment of her elbow.

The accompanying documents

55. The accompanying documents revealed histories Ms Needham had given those who had examined her, including in relation to the damage caused when she fell and injured her elbow, with resulting nerve damage; the investigations which had been undertaken as a result; the treatment she had received, including Lyrica for her ongoing nerve pain; the other ongoing consequences of that damage; with the result that what Dr Dixon and Dr Rimmer had investigated and concluded about her WPI, had included the results of the tests they undertook, not establishing that her nerves had been impaired.

56. Dr Dixon’s report recorded Ms Needham’s accident details to be:

“This 56 year old claimant was working in torrential rain on New Year's Eve in 2017 when she slipped at 9.30 am, hyper-extending her knees with internal derangement. She tried to continue on at work but on 26 January 2020 she slipped and fell in the dark at 5.00 am and sustained fractures to her right ankle which required open reduction and internal fixation and fractures of the radial head of the left elbow which needed radial head replacement and ORIF of the fracture of the left olecranon. She developed paraesthesia in her left hand.

She has developed post-traumatic stress disorder for which she has had counselling and had difficulty returning to work.”

57. Dr Dixon also described Ms Needham’s current treatment and then present symptoms. They included inability to lean on her elbow or scar; improved range of motion after physiotherapy exercises; ongoing difficulty with heavy lifting and carrying; elbow pain and stiffness. He described his findings on examination. They included full range of motion of the elbow, as well as her reported “intermittent paraesthesia in the index, middle and ring fingers of her left hand but when she performed the Tinel's test over the median nerve, it was negative and she reported the physiotherapist had done the same thing and that she had not had any nerve conduction test for carpal tunnel syndrome”.

58. There is no issue that paraesthesia is the result of damage to nerves.

59. Radiological investigations to which Dr Dixon referred included 2020 x-rays of Ms Needham’s left elbow, which amongst other things showed the replacement of the left radial head with a metallic anchor in the left distal humerus and metallic screw endplate fixation of the proximal ulna, as well as the visible proximal ulnar fracture and the later incomplete union of parts of the fracture, with a separate screw on the lateral humeral epicondyle with some elevation of the fat pads, consistent with the fusion. He also noted that Ms Needham reported some clunking of her left elbow at times with a feeling of partial instability, but he found no evidence of hardware failure.

60. Dr Dixon summarised her injuries and his diagnoses to include, relevantly:

“1 Healed fracture of her left olecranon and proximal ulna with hardware remaining in situ with radial head replacement (implant arthroplasty) with post traumatic stiffness;

…

3 Reliance on analgesics and anti- inflammatory

…

6 Impaction of her injuries on her activities of daily living.”

61. Future treatment Dr Dixon identified included ongoing analgesia and anti-inflammatories; that the benefits of physiotherapy were plateauing; an ongoing need for cleaning support recommended by her hand therapist, because of help she continued to require, her left elbow sustaining a painful clunk when she tried to scrub the shower; her elbow surgeon also noting episodes of elbow clunking when wiping, vacuuming and during physiotherapy and that she required Lyrica to sleep at night. Her condition had stabilised, but she could not return to her preinjury duties as an event manager, including because of the heavy lifting and carrying of materials that work required. She had also reported elbow and other pain on the day of her examination.

62. Dr Dixon concluded that Ms Needham had 8% upper extremity impairment for her implant arthroplasty and 7% for the post traumatic stiffness of her left elbow, that giving a combined value of 14% for the upper extremity and 9% WPI.

63. The hand therapist’s 2021 report referred to eight therapy sessions and Ms Needham’s requirement for a further eight, given her increased range of motion, but ongoing stiffness in the fingers and reduced grip strength, with advice given that she not engage in heavier cleaning because of painful clunks in the elbow.

64. The occupational therapist’s 2021 report dealt with ongoing problems with Ms Needham’s elbow, including pain which could extend both upwards and downwards to her wrist, when extended, her third left finger jumping and those fingers feeling tight, with pain disrupting her sleep.

65. Dr Rimmer’s 2023 report referred to Ms Needham’s then current symptoms including stiffness and occasional discomfort in her elbow. But he did not then find signs of nerve damage. He described her range of motion and diagnosed that she had a displaced radial head fracture, which had caused a significant restriction in her range of motion due to post operative stiffness, which had resulted in 7% upper extremity impairment and 4% WPI.

The claim Ms Needham pursued by her application did not exclude damage to the ulnar nerve

66. The accompanying documents did not permit the conclusion that Ms Needham’s claim in respect of impairment of her left upper extremity excluded the result of injury to her ulnar nerve, located as it is in the elbow and also damaged as it appears to have been when she fell.

67. The significant surgical repair which Ms Needham required for the damage done to the bones of her elbow joint, as well as the ongoing symptoms which she suffered afterwards, were consistent with nerves also having been damaged. As was the resulting treatment which she required. What was so “crystallised” as part of the medical dispute included the result of that damage. It thus could not be accepted that this dispute excluded any impairment resulting from injury to Ms Needham’s ulnar nerve.

68. That was precluded by the paraesthesia which Dr Dixon referred to and the Lyrica with which her ongoing pain was treated. There is no suggestion that this had been required before she fell.

69. In the result, that Ms Needham’s claim was not pursued in relation to all of the impairment of her upper extremity which resulted from her fall and the injury she suffered to her elbow, with the result that any nerve damage then suffered did not form part of the medical dispute, was not consistent with her written claim and application or the documents which accompanied them.

70. To the contrary, those documents explained why both Dr Dixon and Dr Rimmer tested Ms Needham to establish whether nerve damage had contributed to the impairment she had suffered.

71. While the Council was entitled to dispute Ms Needham’s claim, relying on the conclusions Dr Dixon and Dr Rimmer had reached, the statutory scheme did not empower it to confine the medical dispute by its response to her application for referral of her claimed impairment for assessment. Not even by contending that injuries to body parts found in the upper extremity, disclosed by accompanying documents, had not been relied on by Ms Needham. That was why it was the upper extremity which was referred for assessment, not just her elbow.

72. This reflects that the statutory scheme recognises that injuries which result in impairment can remain stable, improve or deteriorate over time. The assessor’s conclusions are consistent with deterioration of the ulnar nerve damage.

73. Assessors are obliged to make their assessments of the impairments the subject of the medical dispute in accordance with the Guidelines made under s 376 of the 1998 Act.

74. They specify the applicable principles of assessment: at 1.6. Assessors are there required to exercise their own clinical judgment, in determining a diagnosis, when assessing permanent impairment. Its degree must then be determined using specified tables, graphs and methodology: at 1.7.

75. Where pain is commonly associated with a condition, an allowance is made in the degree of impairment assigned in the Guidelines: at 1.12. Where multiple impairments arise from the same injury, they must be assessed together: at 1.17. Adjustments for the effects of treatment may also be required to be made: at 1.31-1.33.

76. Assessment of the upper extremity is dealt with in Chapter 2 of the Guidelines. It recognises that assessment of the structures of the upper extremities is complex. That is dealt with in ch 16 of the AMA’s Guides to the Evaluation of Permanent Impairment. There is no suggestion that the assessor departed from these requirements in his assessment.

77. The Guidelines also specify how range of motion of the upper extremity, including the hand, is to be assessed: at 2.3-2.8. Peripheral nerve disorders are dealt with at 2.9-2.10:

“2.9 If an upper extremity impairment results solely from a peripheral nerve injury, the assessor should not also evaluate impairment(s) from AMA5 Section 16.4 ‘Abnormal motion’ (pp 450–79) for that upper extremity. AMA5 Section 16.5 should be used for evaluating such impairments.

For evaluating peripheral nerve lesions, use AMA5 Table 16-15 (p 492) together with AMA5 tables 16-10 and 16-11 (pp 482 and 484).

The assessment of carpal tunnel syndrome post-operatively is undertaken in the same way as assessment without operation.

2.10 When applying AMA5 tables 16-10 (p 482) and 16-11 (pp 482 and 484) the examiner must use clinical judgement to estimate the appropriate percentage within the range of values shown for each severity grade. The maximum value is not applied automatically.”

78. Rule 2.9 thus recognises that nerve injury may be involved in an impairment of the upper extremity, but not be its sole cause. That was what the assessor concluded.

79. A defendant such as the Council is free to advance its case about an injured worker’s claim, which has become the subject of a medical dispute. But it cannot dictate what the subject of the medical dispute is. That is established by the documents accompanying the claim, the application and the responses it made to them.

80. It is the dispute which they crystallise which is referred for assessment.

81. The referred dispute was thus not confined to injury to Ms Needham’s elbow joint. It had to be resolved by application of the assessor’s clinical judgment, in order to arrive at a diagnosis. That required regard to be had not only to what the accompanying documents revealed about the injuries Ms Needham had suffered, but also to the history which she provided on examination and what that examination then established, including by the testing which the assessor also undertook, in order to arrive at his diagnosis.

82. Application of the Guidelines to what was diagnosed then led to a conclusion about the extent of the impairment which had been suffered, that resolving the medical dispute.

83. An assessor’s conclusions do not depend on opinions which other medical practitioners earlier formed, when they examined and tested the injured worker. It is rather the outcome of the application of the assessor’s clinical judgment which resolves the parties’ medical dispute about their competing claims: Skates at [50].

84. In Ms Needham’s case, given all that was addressed in the accompanying documents, it must be accepted that the medical dispute did encompass the damage to her ulnar nerve, which the assessor’s testing established and which he concluded had contributed to the impairment she had suffered as the result of the injury caused to her elbow, when she fell.

The Appeal Panel erred

85. It follows that the Panel erred in concluding that “the assessment of the upper extremity should be limited to an assessment of the impairment of the upper extremity after arthroplasty of the elbow, upper extremity motion impairment due to lack of flexion and extension of the elbow joint impairment due to lack of pronation and supination”.

86. The parties’ medical dispute depended on what Ms Needham had claimed and the Council disputed, in the way explained in Skates. That did not turn on the exercise of any discretion by the Panel, although clinical judgment might have been required to be exercised by the assessor and the Panel, in order to understand what was demonstrated by the accompanying documents which crystallised the parties dispute.

87. The Council’s reply to Ms Needham’s application established that it did not accept that she had suffered any compensable impairment to her left upper extremity as the result of her fall and that it considered that her claim did not include anything other than injury to her elbow. That was in issue.

88. But the Panel had to take into account what the accompanying documents established. They included that by which Ms Needham had first made a claim, shortly after her fall. She then described having suffered injury to her left arm. That was a document which the Council said it had regard to, when it rejected the compensation claim made by the November 2022 letter sent by her solicitors after her surgery.

89. That letter was also accompanied by the draft application for assessment of a medical dispute. There it was a claim for impairment to her left upper extremity which Ms Needham pursued. By then she knew more about the injuries she had suffered as the result of all of the damage caused to her elbow by the fall. That was also the claim she pursued when she later made her assessment application. They were supported by the other documents she relied on, which showed that the dispute was not confined in the way described by the Council in its response to her assessment application.

90. The Council had accepted liability for her injury to her elbow by its s 78 notice. But it rejected her compensation claim, relying on Dr Rimmer’s opinion that her WPI was below the compensable statutory threshold. The Panel could not overlook, however, that consistently with the claimed impairment Ms Needham was pursuing not being confined to her elbow, he had considered whether she had suffered impairment as the result of nerve damage. As had Dr Dixon.

91. This accorded with the histories Ms Needham gave, the investigations conducted and treatment she had received. They explained why Dr Dixon had identified paraesthesia.

92. Like Dr Rimmer, Dr Dixon had concluded that no impairment had resulted from nerve damage. But their conclusions about this were incapable of precluding Ms Needham from pursuing that aspect of her claim, given what she was still experiencing.

93. Nor did their opinions remove from her assessment application her claim for compensation in respect of the impairment of any of the body parts in her left upper extremity which had been damaged as the result of the injury caused to her elbow, when she fell.

94. By her application Ms Needham pursued her entire claim in respect of such impairment, as she was entitled to do. It was rejected. The result was that impairment resulting from damage to her ulnar nerve was included as part of the medical dispute. That did not depend on a reference to that nerve in her application, dealt with as her nerve damage was in the accompanying documents.

95. It follows that on the evidence which the Panel had to consider, the Council’s approach to the determination of what the medical dispute concerned was incorrect and ought not to have been accepted.

96. The Council’s reliance on Ms Needham’s claim and later application not referring to the ulnar nerve, could not have the result for which it contended, given what the accompanying documents established. Namely, that the injury caused to her elbow was so serious that it not only required the extensive surgery she had undergone, but it had also resulted in the paraesthesia for which she was treated.

97. That Ms Needham was not pursuing impairment of her elbow as the Panel accepted, but impairment of her upper extremity was why both Dr Dixon and Dr Rimmer had considered whether any impairment had resulted from such injury.

98. That neither found such impairment on their examination did not preclude Ms Needham’s pursuit of compensation for such impairment, nor exclude that aspect of her claim from the parties’ medical dispute, given what she was still experiencing.

99. “Medical dispute” is, after all, defined in s 319 to mean, relevantly, with my emphasis, “a dispute in connection with a claim” about “the degree of permanent impairment of the worker as a result of an injury”: s 319(c). That raising a question of causal connection: Bindah at [110]. It is the injured worker who makes the claim. Ms Needham’s claim concerned impairment to her left upper extremity. That was not a matter for the Council to determine. Nor did what claim she pursued require its consent.

100. The result of her claim was that it was the degree of impairment Ms Needham had suffered to her left upper extremity as the result of her fall and all the injury which it caused to her elbow, which the assessor had to consider, in accordance with the applicable Guidelines, on the day of his examination, in order to resolve the medical dispute.

101. That was why he also undertook similar testing to that which Dr Dixon and Dr Rimmer had undertaken in respect of impairment resulting from nerve damage.

102. That the assessor came to different conclusions given what he found on his testing, that resulting in a clinical diagnosis which they had not arrived at and, finally, different conclusions about the WPI Ms Needham had suffered, having found that her ulnar nerve had been impaired, established no error.

103. It follows that it must be accepted that the Panel erred in upholding the appeal and excluding from the calculation of Ms Needham’s WPI, the conclusions the assessor had arrived at about the contribution which the damage to her ulnar nerve had made to the impairment of her upper extremity.

What the Guidelines required

104. The Guidelines contemplate that there may be more than one method by which the degree of permanent impairment can be established: 1.9.

105. It was not finally suggested by the Council that the assessor had failed to comply with the applicable Guidelines in arriving at his conclusions. The Council’s case was rather that the ulnar nerve damage was irrelevant to the parties’ medical dispute about the impairment she had suffered and should thus not have been considered by the assessor at all, given what Dr Scott and Dr Rimmer had both concluded. The result of their conclusions being that there was no dispute about impairment resulting from nerve damage between the parties.

106. But their conclusions did not determine what claim Ms Needham could pursue. Despite both Dr Scott and Dr Rimmer not having found signs of nerve impairment, she was not required to confine her assessment application to impairment of her elbow joint. Suffering as she seemingly still was the results of the damage caused to her nerves when she fell and injured her elbow, she pursued, as she was entitled to do, the assessment of impairment of her upper extremity.

107. The result was that the assessor also had to look for signs of nerve impairment on his examination and, having found them on his testing, had to make a diagnosis which he then had to take into account, in arriving at her WPI, as the Guidelines required him to do.

108. The Panel did not itself examine Ms Needham and so had to take into account the assessor’s findings. It was not he, but the Panel which erred in concluding that damage to Ms Needham’s ulnar nerve did not arise to be considered on the assessment, because it was not part of the medical dispute which had been referred.

109. That conclusion did not reflect what had been decided in Skates, or what the accompanying documents which had to be considered established about the real extent of the parties’ medical dispute.

110. In the result the Panel’s decision must be set aside.

Procedural fairness

111. This issue was a little perplexing.

112. There was no issue that an assessor performing an assessment of permanent impairment is under some obligation to give the parties procedural fairness. The power being capable of destroying, defeating or prejudicing an injured worker’s rights or interests in recovering compensation under the 1987 Act: Vitaz at [78].

113. The rules of procedural fairness therefore apply to the exercise of such a power, they not being excluded by plain words of necessary intendment in the statute conferring the power: Annetts v McCann (1990) 170 CLR 596 at 598; [1990] HCA 57.

114. But also necessary to be considered is whether there has been any practical injustice in the approach an assessor adopts: MIMA; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37].

115. In this case, the assessor having undertaken the same testing as Dr Dixon and Dr Rimmer and having concluded that Ms Needham had suffered the nerve damage which he diagnosed, that had to be taken into account in the assessment of her resulting impairment. There can have been no practical injustice, so far as she was concerned, in the assessor doing so in accordance with what the Guidelines then required.

116. The Council may not have expected that outcome, given what it had said in its response to Ms Needham’s application, although it had not objected to the referral which was actually made. That referral requiring the testing which the assessor also undertook.

117. As the principles required, the assessor took into account the views of both Dr Rimmer and Dr Dixon, on which the Council had relied, in coming to his conclusions. He also explained why he arrived at a different view. That there was any practical injustice for the Council as a result, is not apparent.

118. Still the Panel considered that procedural fairness had been denied, that turning on its view that the ulnar nerve impairment was not part of the medical dispute and the assessor not having given either party the chance to consider the issue, or advance and address arguments in respect of it.

119. I do not agree, given what the accompanying documents dealt with and the testing Dr Scott and Dr Rimmer had already undertaken as a result. Given what was referred for assessment, the same testing was undertaken by the assessor, with different results. That is contemplated by the Guidelines, as is the result he arrived at, being different findings about impairment of Ms Needham’s upper extremity.

120. I can see no procedural unfairness in what unfolded, given the Council’s acceptance that the assessment had been undertaken in accordance with the applicable principles, given what the assessor had found.

121. In the result, the orders which Ms Needham sought must still, however, be made.

Costs

122. The usual costs order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event. In this case, that is an order that the Council pay Ms Needham’s costs, as agreed or assessed.

123. Unless the parties approach to be heard within 14 days with short written submissions, that will be the Court’s order.

Orders

124. For these reasons I order that:

1. The appeal panel’s decision be set aside;

2. The matter be remitted to be considered by a differently constituted appeal panel; and

3. Unless the parties approach to be heard within 14 days with short written submissions, the Council is to bear Ms Needham’ s costs as agreed or assessed.

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Decision last updated: 21 May 2024