Pateman v Peninsula Village Limited trading as Peninsula Village Retirement Centre

[2007] NSWSC 586

CITATION:	Pateman v Peninsula Village Limited trading as Peninsula Village Retirement Centre and Ors [2007] NSWSC 586
HEARING DATE(S):	14 March 2007
JUDGMENT DATE :	8 June 2007
JUDGMENT OF:	Johnson J at 1
DECISION:	1. Amended Summons dismissed; 2. Plaintiff to pay costs of First Defendant.
CATCHWORDS:	WORKERS COMPENSATION - claim for relief in nature of certiorari under s.69 Supreme Court Act 1970 - medical assessment certificate issued under s.325 Workplace Injury Management and Workers Compensation Act 1998 - appeal by worker under s.328 to Appeal Panel against medical assessment certificate - claim that Appeal Panel fell into error of law on face of record or jurisdictional error - claim that decision of Appeal Panel not to refer worker for further medical assessment or to examine her itself was manifestly unreasonable - claim that Appeals Panel had failed to give reasons as required by law - claim that Appeal Panel had failed to conduct review do novo - no error established - proceedings dismissed
LEGISLATION CITED:	Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Supreme Court Act 1970 Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005
CASES CITED:	Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275 Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 Zuanic v Gypro-Tech (Australia) Pty Ltd (In Liq) (2006) 66 NSWLR 206 Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 Cross v McHugh [1974] 1 NSWLR 500 Craig v South Australia (1994-1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Saville v Health Care Complaints Commission [2006] NSWCA 298 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Absolon v New South Wales TAFE [1999] NSWCA 311 YG v Minister for Community Services [2002] NSWCA 247 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296; [2005] NSWCA 86 Buck v Bavone (1976) 135 CLR 110 Bruce v Cole (1998) 45 NSWLR 163 Campbelltown City Council v Vegan [2004] NSWSC 1129 Campbelltown City Council v Vegan [2006] NSWCA 284 Crawford v Registrar of the Workers Compensation Commission [2007] NSWSC 44 Mahenthirarasa v State Rail Authority of NSW [2007] NSWSC 22 Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 Sittik v WorkCover Authority of NSW [2007] NSWSC 129
PARTIES:	Joanne Pateman (Plaintiff) Peninsula Village Limited trading as Peninsula Village Retirement Centre (First Defendant) Registrar of the NSW Workers Compensation Commission (Second Defendant) An Appeal Panel Constituted Pursuant to Section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Third Defendant)
FILE NUMBER(S):	SC 30108/05
COUNSEL:	Mr F Austin (Plaintiff) Mr T Rowles (First Defendant) Mr L Apostle (submitting appearance) (Second and Third Defendants)
SOLICITORS:	Lyons and Lyons (Plaintiff) Ellison Tillyard Callanan (First Defendant) IV Knight, Crown Solicitor (Second and Third Defendants)
LOWER COURT JURISDICTION:	Appeal Panel under s.328(5) Workplace Injury Management and Workers Compensation Act 1998
LOWER COURT FILE NUMBER(S):	Matter No: 14270-2004
LOWER COURT JUDICIAL OFFICER :	Appeal Panel constituted by Mr Philip Harvey (Arbitrator), Dr George Weisz and Dr Geoffrey Coffey (approved medical specialists)
LOWER COURT DATE OF DECISION:	12 September 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Johnson J

8 June 2007

30108/05 Joanne Pateman v Peninsula Village Limited trading as Peninsula Village Retirement Centre and Ors

JUDGMENT

1 JOHNSON J: The Plaintiff, Joanne Pateman, seeks relief in the nature of certiorari under s.69 Supreme Court Act 1970 with respect to a decision dated 12 September 2005 of an Appeal Panel under s.328(5) Workplace Injury Management and Workers Compensation Act 1998 (“WIM Act”).

Factual Background

2 The Plaintiff was born on 29 September 1967. Between 1998 and early 2002, the Plaintiff worked in a nursing home at Umina run by the First Defendant, Peninsula Village Limited trading as Peninsula Village Retirement Centre, as a care-service employee performing a range of kitchen and general cleaning duties. On 18 October 2001, the Plaintiff reported discomfort in her back as a result of pushing a trolley. On 25 October 2001, the Plaintiff reported a tearing feeling in her back and down her right buttock and leg to above her right knee, as a result of lifting milk crates.

3 The Plaintiff lodged an application to resolve a dispute with the Workers Compensation Commission, claiming lump sum compensation under ss.66 and 67 Workers Compensation Act 1987 (“WC Act”) in respect of the injuries said to have been sustained to her lower back arising out of the incidents on 18 and 25 October 2001 and generally between 1998 and 9 January 2002, when the Plaintiff took voluntary redundancy and her employment with the First Defendant came to an end.

4 The First Defendant disputed the claim for permanent impairment and, pursuant to s.321 WIM Act, the Registrar referred the matter for medical assessment under Part 7, Chapter 7 of the WIM Act, appointing Dr Roger Pillemer as the approved medical specialist. It is common ground that Dr Pillemer is an orthopaedic surgeon.

5 The Plaintiff underwent medical examination by Dr Pillemer on 19 April 2005 and, on or about 29 April 2005, the Workers Compensation Commission published Dr Pillemer’s medical assessment certificate given under s.325(1) WIM Act.

6 On 20 May 2005, the Plaintiff lodged an application to appeal against Dr Pillemer’s medical assessment under s.327(1) WIM Act. The Registrar determined, under s.327(3) and (4) WIM Act, that the appeal should proceed. The appeal was heard by an Appeal Panel constituted under s.328(1) WIM Act, comprising Mr Philip Harvey, Arbitrator, and Dr George Weisz, orthopaedic surgeon, and Dr Geoffrey Coffey, neurologist, as approved medical specialists.

7 On 12 September 2005, the Appeal Panel gave reasons for its decision under s.328(5) to confirm the certificate of assessment given in connection with the medical assessment of Dr Pillemer.

8 On 30 November 2005, the Plaintiff commenced proceedings by Summons in this Court seeking prerogative relief with respect to the decision of the Appeal Panel. The First Defendant has appeared to resist the claim for relief. The Registrar of the Workers’ Compensation Commission was joined as a party to the proceedings (the Second Defendant) as was the Appeal Panel (the Third Defendant). In accordance with usual practice, the Registrar and the Appeal Panel have filed appearances submitting to the orders of the Court, except as to costs.

Section 328 WIM Act

9 Section 328 WIM Act, as it stood in September 2005, was in the following terms:

“ 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. The WorkCover Guidelines may provide for the procedure on an appeal.

(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment.

(4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.

(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.

(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.”

Relief under s.69 Supreme Court Act 1970

10 The present proceedings involve a claim for relief in the nature of certiorari under s.69 Supreme Court Act 1970. It is claimed, in substance, that there was error of law on the face of the record and/or jurisdictional error on the part of the Appeal Panel.

11 Relief under s.69 may be granted in the case of error of law on the face of the record: Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275 at [28]. The face of the record includes the reasons expressed by the Appeal Panel for its ultimate determination: s.69(4) Supreme Act 1970.

12 The Plaintiff bears the onus of proving the facts grounding an entitlement to such relief: Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 at 259.

13 The present proceedings invoke the exercise of the supervisory jurisdiction of this Court. There is no statutory appeal from the determination of the Appeal Panel to this Court: Zuanic v Gypro-Tech (Australia) Pty Ltd (In Liq) (2006) 66 NSWLR 206 at 217 [30].

The Confines of Judicial Review

14 The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way:

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

15 This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44].

16 The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40-41.

17 The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

Relief in the Nature of Certiorari

18 Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.

19 In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

20 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia, and continued at 351 [82]:

“Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

21 To invoke error of law based upon a failure to take account of relevant considerations, it is necessary to identify matters the consideration of which is mandated by law: Saville v Health Care Complaints Commission [2006] NSWCA 298 at [55]. Where error is alleged by way of taking into account irrelevant considerations, legal error is demonstrated only where a matter is taken into account which the law prohibits: Saville v Health Care Complaints Commission at [57].

22 A finding of fact may reveal error of law where it appears that the decision maker has misdirected himself or herself or where there is no evidence to support a finding: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155-6; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357.

23 A failure on the part of an administrative tribunal to give any or any adequate reasons does not, without more, establish that the decision involved some error, although there may be cases that warrant the inference that the relevant tribunal has failed in some respect to exercise its powers or jurisdiction according to law: Absolon v New South Wales TAFE [1999] NSWCA 311 at [67]; YG v Minister for Community Services [2002] NSWCA 247 at [37]. As will be seen later in this judgment (at paragraphs 62 to 66), the Court of Appeal in Campbelltown City Council v Vegan [2006] NSWCA 284 considered the duty of an Appeal Panel under s.327 WIM Act to give reasons.

24 Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79].

25 In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 41.

26 Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-199: Bruce v Cole (1998) 45 NSWLR 163 at 183-184.

The Plaintiff’s Grounds

27 In her Amended Summons filed on 14 March 2007, the Plaintiff claims an order that the decision of the Appeal Panel be set aside, and that the matter be remitted to the Registrar of the Workers’ Compensation Commission to constitute a new Appeal Panel for the purpose of reviewing the decision of the original medical assessment according to law.

28 The Amended Summons recites the following grounds in support of the claim for relief:

(a) the Appeal Panel erred in failing to exercise its statutory power in accordance with law;

(b) the Appeal Panel erred in reviewing the decision of the approved medical specialist rather than conducting a hearing de novo, that is, reviewing the medical evidence afresh;

(c) the Appeal Panel erred in failing to exercise its discretionary power reasonably;

(d) the Appeal Panel erred in exercising its discretionary power in accordance with the overriding policy and purpose of the WIM Act;

(e) the Appeal Panel erred in failing to provide any proper reasons or adequate reasons, for its decision to confirm the certificate of assessment.

Dr Pillemer’s Medical Assessment Certificate

29 To place the arguments advanced by the Plaintiff in context, it is necessary to refer to the medical assessment certificate given by Dr Pillemer. Although it is the decision of the Appeal Panel, and not the certificate of Dr Pillemer, which is under direct challenge in these proceedings, it will be seen that the Appeal Panel directed attention to Dr Pillemer’s certificate in exercising its appeal function.

30 A central issue on the appeal to the Appeal Panel, and in the present proceedings in this Court, is the reference in Dr Pillemer’s certificate to the possible existence of a renal condition or urinary symptoms in the Plaintiff. It was common ground before me that none of the medical reports before Dr Pillemer referred to such a condition.

31 The certificate stated that it was a “Combined Medical Assessment Certificate of Permanent Impairment” concerning injuries received both before and after 1 January 2002. Dr Pillemer explained in the certificate (page 1) that the matters referred for assessment were the back injury of 18 October 2001, the back injury of 25 October 2001 and “nature and conditions between 1998 and 2002” and that “in view of the fact that Ms Pateman took voluntary redundancy on 9 January 2002, and the Arbitrator has requested nature and conditions of employment from 1998 to 2002, the Combined Certificate has been used”.

32 In the course of reciting the clinical history of the Plaintiff’s back injury and back pain, Dr Pillemer stated the following in the medical assessment certificate (page 4) (emphasis added):

“Ms Pateman does not feel that there has been any improvement in her condition, and if anything she feels she is probably getting worse.

She indicates the discomfort being felt on both sides of her back with intermittent radiation into her buttock regions and into her groins, and down her thighs. She describes the pain as being constantly present, but the intensity fluctuates. On an average of once per week she gets pain that is so severe that she actually has to stop what she is doing for three-quarters of an hour to an hour, and simply try and get into a comfortable position until the pain settles down again. After that she is able to continue with her normal pain which she can, in the main, cope with.

She does not get any pain or discomfort In her lower limbs, although she says occasionally with driving her toes tend to ‘go numb’.

Symptoms are aggravated by sitting or standing for long, by driving, bending and lifting, and she cannot really think of anything that gives her relief of symptoms apart from trying to get into a comfortable position, and lying on her right side and using a hot water bottle.

She says she often has difficulty standing up straight and tends to stoop.

It was noted on examination that Ms Pateman does in fact have renal angle percussion tenderness; and on going into her history, she has been having urinary symptoms for a number of years now, with frequency and a feeling that her bladder is full, but being unable to pass water. She has apparently been investigated for these symptoms in the past, and she informs me that her general practitioner is thinking of doing some further tests on her .

When asked to describe the nature of her pain, particularly when it is very severe, she 'feels as though there is a ‘tightness’ in her back, and indicates this by holding up her hand and tending to close her fingers, very reminiscent of a patient with colic.”

33 Later in the certificate, Dr Pillemer stated (page 6):

“Interestingly Ms Pateman only complained of mild discomfort to palpation in the lower lumbar region despite repeated and firm pressure, but did complain of significant discomfort to renal angle percussion on both sides. Similarly she complains of discomfort to palpation in the abdomen on either side, possibly in relation to the course of her ureters.”

34 Dr Pillemer provided the following summary of the Plaintiff’s injuries and diagnoses (page 6) (emphasis added):

“Ms Pateman developed discomfort in her back in October 2001, especially on the right side, but as noted subsequently, also extending to the left side. There has been some radiation to both buttock and groin regions and occasionally to her posterior thigh areas.

Despite treatment and the passage of time symptoms are not improving.

While it is certainly possible that she is getting symptoms from a mild disc lesion at the L4/5 level of her low back, her presentation of the moment cannot be explained on the basis of a mechanical low back problem .

In my opinion her symptoms are very suggestive of bilateral renal problems, as evidenced mainly by the percussion tenderness. In both renal angles as well as the tenderness along the ureters on both sides of her abdomen, and as noted she has had urinary symptoms for many years .

Similarly, the attacks she describes as occurring on an average of once per week and immobilising her, are also very suggestive of colic, and I would suggest the most likely explanation is that she has renal stones .

• my brief comments on consistency of presentation and relationship between the lesion or lesions diagnosed and the incidents or incidents described are (my detailed discussion on the other medical opinions is addressed under ‘Reasons’):

I note that reports suggest that there is a significant functional component present, but in my opinion Ms Pateman comes across as being a straight forward and open person and I did not feel that there was any attempt on her part to exaggerate her physical signs. I think a lot of the findings suggestive of functional component are due to apprehension. In my opinion her presentation is consistent.”

35 Dr Pillemer turned to answer a number of standard questions concerning the s.66 WC Act claim in the medical assessment certificate (page 7) (emphasis added):

“My answers to the following questions regarding the assessment of the percentage of permanent loss of efficient use or permanent impairment with respect to the injuries suffered before the I January 2002 in accordance with the Table of Disabilities are:

a) Is the worker claiming for any body part outside your field of expertise? If so, please indicate which body part.
Yes. As noted while I feel Ms Pateman may well have a mild mechanical problem in the lower lumbar region at the L4/5 level, l feel her main symptoms are arising in her urinary system .
… ”

36 Thereafter, Dr Pillemer certified that the Plaintiff’s injury had resulted in loss of efficient use or impairment and that this loss related to her accidents. Dr Pillemer certified that the loss of efficient use or impairment was permanent. Dr Pillemer answered Question 7(l) and (m) in the following way (page 8) (emphasis added):

“(n) Is any proportion of the permanent loss of efficient use or impairment due to any pre-existing injury, abnormality or condition?

Yes.

(m) If the answer to the above is yes, please identify the pre-existing injury, abnormality or condition.
As noted I feel that Ms Pateman may well have a mild mechanical problem in the low back but feel the majority of her symptoms are due to an underlying unassociated renal condition .”

37 Dr Pillemer answered a further set of standard questions concerning the s.323 WIM Act assessment in the following way (pages 9-10) (emphasis added):

“8. My answers to the following questions regarding the assessment of whole person impairment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment and AMA5 with respect to the injury suffered in the accident are:

a) Is the worker claiming for any body part outside your field of expertise? If so, please indicate the body part.
Yes
b) Has the worker's injury resulted in impairment?
Yes
c) Is the worker claiming that he/she suffered more than one injury to any body part?
Yes
d) Is the impairment related to the accident or accidents?
Yes
e) Is apportionment between the several accidents necessary?
Where applicable, I have apportioned the impairment between the various accidents in columns 4 & 5 in Table 2 below.
f) Have all body parts reached maximum medical improvement?
Yes
g) If not, please list those injuries not yet at maximum medical improvement.
Not applicable
h) If maximum medical improvement of any or all injuries has not been reached, when, in your opinion, will this occur?
Not applicable
i) Is the impairment permanent?
Yes
j) What is the total assessed whole person impairment?
(Where applicable, I have use the Combined Values Chart of the AMA5 Guides to combine the whole person impairment ratings for all injuries)
I have indicated the total % WPI in column 5 in Table 2 below
k) Is any proportion of whole person impairment due to a pre-existing injury, abnormality or condition?
Yes
I) If so, please indicate which body part is affected by the pre-existing injury, abnormality or condition.
As noted in 7(m) I feel she has an underlying bilateral renal condition .
m) What is the % of this "deductible proportion"?
(Section 323 formerly s68A provides that in some cases this may not be known or will be difficult to determine. In such cases, the deduction is one-tenth of the whole person impairment.)
I have indicated the % amount of pre-existing impairment in column 6 in Table 2 below
n) What is the total whole person impairment as a result of the injury after all deductions:
I have indicated the total % WPl as a result of the injury in column 7 in Table 2 below.”

38 Dr Pillemer provided the following reasons for his opinion and assessment in the certificate (pages 10-11) (emphasis added):

“10. Below are the reasons for:-

a. my opinion and assessment of the percentage of permanent loss of efficient use and/or whole person impairment,

In my opinion Ms Pateman falls into DRE Category II(1) (see 10b) of her lumbar spine resulting in a 5% whole person impairment. This would be on the basis of the mild disc degeneration and annular tear at the L4/5-level noted on the MRI scan. I have not added any additional impairment for interference with activities of daily living as I feel her main impairment is in fact due to an unrelated urological condition. I feel that further investigations of her renal system are therefore indicated. In my opinion all of this impairment is due to her injuries at work and the nature and conditions of her work prior to 1 January 2002 .
As noted in Summary Table 1 I have suggested that Ms Pateman has an 8% permanent impairment of her back compared to a most extreme case as a result of her injuries at work in October 2001, and I feel it would be reasonable to suggest that half of this impairment is due to each of the injuries mentioned. There is no loss of lower limb function .
In summary then, I feel that Ms Pateman's main ongoing complaints are due to symptoms arising in her urinary system which need further investigation .
For the purpose of assessment today, l have elected to award an impairment for mechanical low back problem without any nerve root irritation, although it is certainly possible that if an accurate diagnosis and effective treatment can be carried out, her symptoms may well settle down.

b. an explanation of my calculations in addition to the worksheet or actual calculations attached

American Medical Association Guides to the Evaluation of Permanent Impairment: Fifth Edition.
(1) page 384, table 15-3. History and examination findings compatible with a specific injury associated with asymmetric loss of range of motion.”

39 Thereafter, Dr Pillemer commented upon medical opinions and findings contained in the various reports provided to him for the purpose of the assessment (certificate, pages 11-12).

40 The certificate concluded, in Table 1, with an assessment, for the purpose of s.66 WC Act, in accordance with the Table of Disabilities for injuries received before 1 January 2002. With respect to the back injury on 18 October 2001, Dr Pillemer assessed the total amount of permanent loss of efficient use or impairment at 4% with a nil proportion due to pre-existing injury, abnormality or condition, resulting in a total percentage of permanent loss of efficient use or impairment attributable to that injury of 4%.

41 With respect to the back injury on 25 October 2001, Dr Pillemer assessed the total amount of permanent loss of efficient use or impairment at 8%, discounted by half by reference to pre-existing injury, abnormality or condition (the back injury on 18 October 2001), leading to a total percentage of permanent loss of efficient use or impairment attributable to that injury of 4%.

42 Dr Pillemer assessed, in Table 2, whole-person impairment (“WPI”), for the purposes of s.323 WIM Act, for injuries received on or after 1 January 2002 with respect to the lumbar spine, by reference to the nature and conditions of employment from 1 to 9 January 2002, as a percentage WPI of 5% with a 100% deduction for pre-existing injury, condition and abnormality leading to a WPI of 0%.

The Plaintiff’s Appeal to the Appeal Panel

Plaintiff’s Grounds of Appeal to Appeal Panel

43 In written submissions filed with the Plaintiff’s application to appeal to the Appeal Panel, the focus of attention was Dr Pillemer’s reference to the Plaintiff’s renal condition in the medical assessment certificate. It was contended that the medical assessment certificate contained a demonstrable error (s.327(3)(d) WIM Act), and the assessment was made on the basis of incorrect criteria (s.327(3)(c)) with respect to the renal condition. Additional relevant information (s.327(3)(b)) was provided in the form of a renal ultrasound report dated 13 February 2003 of Dr Graham Milne.

44 The Plaintiff sought to have Dr Milne’s report admitted as fresh evidence on the appeal to the Appeal Panel. It was contended that the Plaintiff had been denied procedural fairness as a result of Dr Pillemer’s reliance upon the renal condition in the medical assessment certificate. It was submitted that the matter should be referred for further assessment by the Appeal Panel or, in the alternative, that the Plaintiff should be re-examined by the Appeal Panel. It was submitted that the matter was not suitable for determination by the Appeal Panel on the papers, upon the basis that significant legal issues were raised which required oral submissions to the Appeal Panel. The significant issues were said to be “interpretation of the WorkCover Guides” and “procedural fairness and/or natural justice”.

Reasons of the Appeal Panel

45 To understand the challenges to the decision of the Appeal Panel, it is appropriate to set out parts of the Appeal Panel’s statement of reasons of 12 September 2005.

46 The Appeal Panel stated that a preliminary review of the original medical assessment had been undertaken, in the absence of the parties and in accordance with the WorkCover Guidelines (paragraph 7). As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the Plaintiff to undergo a further medical examination because there was sufficient information to allow the Appeal Panel to make an assessment of the loss suffered by the Plaintiff (paragraph 8).

47 The Appeal Panel determined that fresh evidence ought be received, in accordance with s.328(2) WIM Act, in the form of the ultrasound report of Dr Milne dated 13 February 2003 (paragraphs 9-10).

48 It was stated that the Appeal Panel had before it all the documents that were sent to Dr Pillemer for the original assessment, and had taken them into account in making its determination (paragraph 11).

49 The Appeal Panel noted that the Plaintiff had sought an order that the matter be referred for further assessment or, in the alternative, that the Plaintiff should be re-examined by the Appeal Panel. It was noted that the Plaintiff submitted that the matter should not be dealt with on the papers, whilst the First Defendant submitted otherwise. The Appeal Panel expressed the view that the matter was suitable for determination on the papers (paragraph 12).

50 The Appeal Panel then summarised the written submissions made on behalf of the Plaintiff and the First Defendant in support of the appeal (paragraph 12).

51 Given the challenge to the decision of the Appeal Panel, it is appropriate to set out that part of its reasons in which the function of the Appeal Panel was summarised (paragraphs 13-15):

“13. The role of the Appeal Panel was considered by the Supreme Court in the case of Campbelltown City Council v Vegan [2004] NSWSC 1129. The Panel's task is to conduct a review of the merits of the Approved Medical Specialist's assessment. Mr. Justice Wood determined in Vegan that the Panel's task is not to consider whether an error exists, but is to conduct a review de novo. It is free to conduct a review upon the basis of the material before it, without the need to make a formal finding itself as to the existence of an error falling within an available ground of appeal, and without being confined to the correction of that error.

14. Though the power of review is far ranging, it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the AMS certificate is binding.

15. In this matter the Registrar has determined that at least one of the grounds of appeal exists. The Panel has accordingly conducted a review of the material before it and reached its own conclusion concerning the impairments and losses suffered by the Appellant.”

52 Thereafter, the Appeal Panel summarised the assessments made by Dr Pillemer in the medical assessment certificate. The Appeal Panel noted that Dr Pillemer had issued a “Combined Medical Assessment Certificate of Permanent Impairment” that considered injuries that occurred both before and after 1 January 2002, “so as to apply the Table of Disabilities to the pre-2002 injuries, and the Whole Person Impairment table to injuries occurring on or after 1 January 2002” (paragraph 16). The Appeal Panel described Dr Pillemer’s findings and conclusions in the following way (paragraphs 17-18):

“In respect of the Table of Disabilities, Dr Pillemer assessed the percentage of permanent loss of efficient use of the back following the injury of 18 October, 2001, as 4%, with nil relating to pre-existing injury, abnormality or condition. In respect of the back injury on 25 October, 2001, he found that the Appellant’s permanent impairment of the back was 8%, but that half of this percentage was attributable to pre-existing injury, abnormality, or condition, and thus the percentage attributable to this particular injury was 4%.
In respect of the injury to the lumbar spine claimed as a result of the nature and conditions of employment from 1 January, 2002, to 9 January, 2002, Dr Pillemer found that whilst she had a 5% whole person impairment, the entirety of this related to pre-existing injury, condition or abnormality, and that Ms Pateman was not entitled to any percentage of whole person impairment.”

53 The Appeal Panel then turned to the submissions for the Plaintiff on appeal concerning Dr Pillemer’s reference to a suspected renal condition. Given the significance of this issue in the present proceedings, which includes a submission that error of law and/or jurisdictional error are revealed (including error in the adequacy of reasons provided), it is appropriate to set out the totality of the reasons provided by the Appeal Panel on these issues (paragraphs 19-32):

“19. The Appellant contends that the reductions allowed for pre-existing injury related to Dr. Pillemer's opinion that the Ms. Pateman had a suspected renal condition which he was not qualified to express an opinion on. The Panel accepts that, at first glance, it would be possible to interpret his assessments in that manner.

20. The potential ambiguity arises from the fact that, on a number of occasions, Dr. Pillemer answered ‘Yes’ to the question ‘is the worker claiming for any body part outside your field of expertise’.

21. For example, at paragraph 7(a), he answered `yes’ to that question and went on to say that whilst he felt that Ms. Pateman may well have a mild mechanical problem in the lower lumbar region at the L4/5 level, he felt her main symptoms are arising in her urinary system.

22. However, the Appellant is not in fact making a claim in respect of anything other than her back injury, and it is clear that Dr. Pillemer's answer to this question is incorrect.

23. Furthermore, at paragraph 7(l), he answered the question `is any proportion of the permanent loss of efficient use or impairment due to any pre-existing injury, abnormality, or condition' in the affirmative and in Paragraph 7(n) identified the pre-existing injury, abnormality or condition in the following terms again ‘As noted I feel that Ms. Pateman may well have a mild mechanical problem in the low back but feel the majority of her symptoms are due to an underlying unassociated renal condition’.

24. Again, in paragraph 8(a), he answers ‘Yes' to the question ‘Is the worker claiming for any body part outside your field of expertise? If so, please indicate the body part’ when again there has been no claim in respect of any body part other than the back and the lumbar spine.

25. At paragraph 8(k) he says there is a proportion of whole person impairment due to a pre-existing injury, abnormality or condition, and when asked in 7(l) to indicate the body part that is affected by the pre-existing injury he says ‘As noted in 7(m) I feel she has an underlying bilateral renal condition.’ He then goes on in 8(m) and (n) to indicate the amount of pre-existing impairment and the total %WPI after all deductions.

26. To the extent that he has considered the possible underlying bilateral renal condition as being the subject of a claim, then the report is clearly in error.

27. However, in paragraph 10, Dr. Pillemer clarifies the situation. In paragraph 10(a), he states that in his opinion, Ms. Pateman falls into DRE Category II of her lumbar spine resulting in a 5% whole person impairment. He has not added any additional impairment for interference with activities of daily living as he feels her main impairment is in fact due to an unrelated urological condition, but does say ‘In my opinion all of this impairment is due to her injuries at work and the nature and conditions of her work prior to 1 January, 2002’. Thus the finding of 5% whole person impairment is reduced to nil in Table 2 not because of the urological condition, but because all of the impairment was due to her injuries at work and the nature and conditions of her work prior to 1 January, 2002.

28. Similarly, in respect of Table 1, he indicates that the two injuries in October 2001 amount to a total of 8% permanent impairment of her back and that this should be proportioned equally to each of them. Thus again, the reduction by half of the 8% finding in respect of the injury of 25 October, 2001, is not because of the suspected renal condition, but because she had sustained a 4% injury to the back as a result of the injury on 18 October, 2001.

29. Having regard to the ambiguity to be found in the body of the report, the Panel gave considerable thought to whether or not the ultimate assessment by Dr. Pillemer was fair and reasonable in the circumstances, or whether the matter should be referred for a further assessment or whether the Appellant should be re-examined by the appeal panel. The medical members of the Panel considered that leaving aside completely the question of any symptoms that may relate to a possible urinary problem, the ultimate determinations by Dr. Pillemer were, if anything, somewhat generous, but not such as would require a further assessment.

30. In so far as the errors in the Medical Assessment Certificate were concerned, the Panel felt that because the ultimate findings were appropriate, there was no necessity to revoke the Certificate and to issue a fresh one.

31. The Panel considers that despite the errors contained in the Certificate, it is apparent that in the final analysis Dr. Pillemer made his assessments independently of his opinion that the Appellant was suffering a urological illness, and that there is nothing to justify a finding that he acted unfairly.

32. For these reasons, the Panel has therefore determined that the Medical Assessment Certificate relating to the examination of the Appellant on 19 April, 2005 given in this matter should be confirmed.”

54 The Appeal Panel concluded that, for the reasons set out in the statement of reasons, the medical assessment certificate should be confirmed (paragraph 33).

Nature of Appeal to Appeal Panel and Duty to Give Reasons

55 The central issues raised by these proceedings focus upon the nature of the appeal to an Appeal Panel under s.328 WIM Act, and the duty of an Appeal Panel to give reasons on such an appeal.

56 With respect to both issues, the relevant legal principles emerge from the decision of the Court of Appeal in Campbelltown City Council v Vegan [2006] NSWCA 284.

Nature of Appeal to Appeal Panel

57 With respect to the nature of an appeal to the Appeal Panel, Handley JA (McColl JA agreeing) observed at [15] that s.327 WIM Act authorises an appeal from the assessment of a medical expert to a panel including other medical experts. As the Appeal Panel is entitled to receive additional evidence, its jurisdiction is original and not strictly appellate when such evidence is acted on (at [19]).

58 It appears that the decision at first instance of Wood CJ at CL in Campbelltown City Council v Vegan [2004] NSWSC 1129 concerning the nature of an appeal to an Appeal Panel is unaffected by the decision of the Court of Appeal, which overturned the decision of Wood CJ at CL on other grounds. This was the view of the parties in Crawford v Registrar of the Workers Compensation Commission [2007] NSWSC 44 at [22], and the parties before me.

59 In Vegan, Wood CJ at CL observed that the Appeal Panel conducts a review afresh and is not itself required to determine whether any of the grounds referred to in s.327(3) WIM Act have been made good. Although there was a restriction concerning the use of fresh evidence before an Appeal Panel under s.328(3) WIM Act, Wood CJ at CL considered that the review remained a review de novo (at [77]).

60 I note that s.327 WIM Act has been amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005: cf Mahenthirarasa v State Rail Authority of NSW [2007] NSWSC 22 at [12]ff. It was common ground before me that this amendment, which took effect after the decision of the Appeal Panel in this case in September 2005, has no bearing on the present proceedings.

61 It was common ground before me that the Appeal Panel identified correctly its statutory task in paragraphs 13 to 15 of the statement of reasons of 12 September 2005 (set out at paragraph 51 above). The Plaintiff contends that the Appeal Panel fell into jurisdictional error thereafter, by not fulfilling its statutory function to conduct a review de novo.

Duty of Appeal Panel to Give Reasons

62 With respect to the duty to give reasons, Handley JA (McColl JA agreeing) observed in Vegan at [20] that a duty to give proper reasons is a legal incident of the judicial process, but is not normally a legally incident of administrative decision making, nor is it a legal incident of expert assessment pursuant to law such as that provided for in the WIM Act. His Honour concluded that the Appeal Panel does not have an express duty to give proper reasons, but such a duty should be implied for two reasons. Firstly, since the approved medical specialist has a duty to give proper reasons, the Appeal Panel, exercising a power and duty to correct error, should do what the medical specialist should have done, that is make the right decision and give proper reasons for it (at [26]). Secondly, a statement of reasons may be necessary to enable a party to exercise a right of appeal, or such rights as he or she may have, to contest the decision. This reasoning applies where there is an appeal from an administrative decision maker to a panel or from an expert to a panel of experts, such as the Appeal Panel (at [24]).

63 In a separate judgment in Vegan, Basten JA (Handley and McColl JJA agreeing) held that the justification for an obligation to give reasons is derived from the right of appeal granted in relation to an exercise of judicial power (at [105]). The assessment of permanent impairment undertaken by the Appeal Panel involves the application of a statutory test, by which legal rights as between an employee and employer are determined. It is an exercise in the nature of a judicial function, whatever the precise name or status of the Appeal Panel itself (at [109]). Accordingly, the Appeal Panel was subject to an implied statutory obligation to give reasons (at [117]).

64 With respect to the adequacy of reasons, Basten JA (Handley and McColl JJA agreeing) said at [121]-[122]:

“Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant’s condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.

On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273–274 (Mahoney JA) and 281–282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.”

65 In circumstances where the reasons of the Appeal Panel in Vegan demonstrated no attempt to explain significant departures from the assessment by the approved medical specialist, nor any attempt to explain errors which were said to exist in that specialist’s reasons and findings, Basten JA held that it was clear that the reasons of the Appeal Panel were manifestly deficient and did not constitute compliance with the minimum requirement of the obligation to give reasons (at [128]-[129]).

66 Basten JA observed that a failure of the part of a tribunal exercising judicial functions to give reasons for its decision will constitute an error of law, and it is sufficient for the purposes of relief under s.69 Supreme Court Act 1970 that an error of law has been identified which appears on the face of the record. Because the record includes the reasons of the Appeal Panel, inadequacy of reasons will inevitably be such an error and the decision of the Appeal Panel may be set aside (at [130]).

The Plaintiff’s Submissions

67 Mr Austin, counsel for the Plaintiff, submits that it is important, at the outset, to note that injuries after 1 January 2002 are assessed differently from injuries prior to that date. Injuries after 1 January 2002 are assessed as a percentage of “whole person impairment”, whilst injuries prior to that date are assessed under a table or disabilities and were reflected as individual body part permanent losses of efficient use or impairments.

68 Mr Austin submits that the Plaintiff’s “nature and conditions of employment injury” spans this temporal divide. For the purpose of these proceedings, however, Mr Austin does not take issue with the findings of the approved medical specialist or the Appeal Panel with respect to this particular injury, and this aspect may therefore be placed to one side.

69 In approaching the errors alleged by the Plaintiff with respect to the Appeal Panel’s decision, Mr Austin emphasises that there was no reference in any of the medical reports before the approved medical specialist to any renal condition of the Plaintiff. Mr Austin submits that Dr Pillemer introduced this concept into the medical assessment certificate.

70 Mr Austin emphasises Dr Pillemer’s acknowledgment in the certificate that any renal condition or symptoms arising from the urinary system, lay outside his field of expertise.

71 Mr Austin submits that a fair reading of the medical assessment certificate leads to a conclusion that Dr Pillemer had taken into account the suspected renal condition, the diagnosis of which lay outside his expertise, in reaching his conclusions with respect to permanent impairment.

72 It was submitted for the Plaintiff that Dr Pillemer’s reasoning was infected by his finding that the Plaintiff suffers from a urological condition, and that the “majority of her symptoms are due to this underlying unassociated renal condition”. Mr Austin notes that Dr Pillemer had power under s.324(1)(a) and (b) WIM Act to consult with the Plaintiff’s treating medical practitioners and/or to call for production of radiological or other records, but Dr Pillemer did not take this step before issuing his certificate.

73 Mr Austin submits that the unavoidable inference is that Dr Pillemer had taken the urological condition into account in evaluating and assessing the Plaintiff’s percentage permanent impairment under s.66 WC Act, as opposed to his finding under s.323 WIM Act.

74 Mr Austin submits that the Appeal Panel had addressed the s.323 finding (at paragraph 27 of its judgment), but not the s.66 finding. It was submitted that it followed logically that the whole reasoning process by which Dr Pillemer arrived at his assessment was vitiated by this error and that the assessment could not stand.

75 Mr Austin acknowledges that the present proceedings challenge the decision of the Appeal Panel, and not that of Dr Pillemer. Nevertheless, he submits that the approach of the Appeal Panel to Dr Pillemer’s certificate made it both relevant and necessary to identify what, he submits, was a clear defect in Dr Pillemer’s approach, so that the Plaintiff’s challenge to the decision of the Appeal Panel could be understood and addressed.

76 Mr Austin submits that the Appeal Panel had failed to exercise its jurisdiction to review the certificate de novo, and that this failure was demonstrated by a number of features of the Appeal Panel’s decision. Although the Appeal Panel directed itself correctly by reference to the decision of Wood CJ at CL in Vegan, and stated that it had read and considered all the documentary material provided for the purpose of the appeal, he submits that the Appeal Panel confined its attention thereafter to the question of whether there was error in the approach of Dr Pillemer. It was submitted that it was for the Appeal Panel to form its own independent view on the evidence before it, as to whether the certificate of assessment of Dr Pillemer ought be confirmed or revoked.

77 Mr Austin submits that, in truth, the Appeal Panel confined its attention to the renal condition issue, and then only with respect to the assessment for the purposes of s.323 WIM Act and not that under s.66 WC Act. In the result, he submits that the manner in which the Appeal Panel approached this case was more akin to an appeal from a judge in the strict sense or from a judge by way of rehearing, rather than an exercise of original jurisdiction by the Appeal Panel comprised, as it was, of two medical experts and a legal member: Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298; Vegan at [19] (per Handley JA).

78 Mr Austin submits that a further flaw in the Appeal Panel’s reasoning process arose from the characterisation of the reference in Dr Pillemer’s certificate to a “suspected renal condition” as a matter giving rise to “potential ambiguity”. Mr Austin submits that Dr Pillemer’s reliance upon the renal condition had unambiguously been taken into account in his assessments for the purposes of s.323 WIM Act and s.66 WC Act. As a result, he submits that the Appeal Panel has misunderstood the approach taken by Dr Pillemer with respect to this issue. Further, this approach of the Appeal Panel, he submits, demonstrated that a review de novo was not being undertaken, but rather an examination of Dr Pillemer’s reasons to see if error existed.

79 Mr Austin acknowledges that the Plaintiff does not disagree with the finding of the Appeal Panel in regard to s.323 WIM Act. It was sufficiently clear, he submits, that Dr Pillemer had excised any renal condition from his reasoning in that respect. However, the Plaintiff takes issue with the diagnosis, evaluation and assessment of permanent impairment under s.66 WC Act. Mr Austin submits that the Appeal Panel misunderstood Dr Pillemer’s certificate and had no regard to the fact that the alleged renal condition was taken into account, adversely to the Plaintiff, in Dr Pillemer’s assessment under s.66. The Appeal Panel had wrongly concluded that Dr Pillemer made his assessment independently of his opinion that the Plaintiff was suffering from a urological illness.

80 Invoking the principles in Craig v South Australia at 179 (see paragraph 19 above), Mr Austin submits that the reasons of the Appeal Panel were affected by legal error in a number of respects.

81 Firstly, he submits that the Appeal Panel failed to identify the relevant primary findings of fact upon which the permanent impairment assessment of Dr Pillemer was based. He submits that these primary findings were critical to the evaluation and assessment process by the approved medical specialist.

82 Mr Austin submits that this represents a demonstrable mistake in the identification of the relevant issue for determination, a mistake which was critical to the resolution of the central issue in dispute and that this error vitiated the decision.

83 Secondly, it was submitted that the Appeal Panel premised this ultimate conclusion on irrelevant considerations. In this regard, the Appeal Panel placed reliance on the reasons and actual assessments of Dr Pillemer as if they were findings of fact which underpinned the permanent impairment assessment. It was submitted that, contrary to the view of the Appeal Panel, the renal condition weighed heavily of the mind of Dr Pillemer in terms of symptomology and restriction of movement.

84 Thirdly, Mr Austin submits that the Appeal Panel came to its ultimate conclusion premised on the erroneous finding that Dr Pillemer did not take the alleged renal condition into account in diagnosing, evaluating and assessing the Plaintiff’s permanent impairment. In particular, he emphasised that the reference to a renal condition had tainted the assessment under s.66 WC Act.

85 A separate basis for relief was said to arise from the Appeal Panel’s decision not to send the Plaintiff for reassessment or to itself examine the Plaintiff. It was submitted that this discretionary decision, in circumstances where there was a palpable error in Dr Pillemer’s reasoning process, was manifestly unreasonable (in the Wednesbury sense) and was so unreasonable that no reasonable decision maker could properly have arrived at it.

86 Given the nature of the rights and liabilities which the Appeal Panel was determining, the Plaintiff submits that the only reasonable exercise of discretion open to it was to send the Plaintiff for re-examination or to re-examine the Plaintiff itself.

87 Finally, Mr Austin submits that the reasons of the Appeal Panel were so inadequate as to constitute error of law on the face of the record in the sense recognised by the Court of Appeal in Vegan. He points to the conclusions at paragraph 29 and 30 of the reasons of the Appeal Panel that, putting to one side entirely any suggestion that the Plaintiff suffered from a renal condition, Dr Pillemer’s determinations were nonetheless “somewhat generous” and his “ultimate findings were appropriate”. Mr Austin submits that cryptic statements of this type did not discharge the Appeal Panel’s implied obligation to give reasons for its decision.

88 It was submitted that a proper review of the medical assessment certificate called for an evaluation of the medical evidence before Dr Pillemer, an evaluation of his findings on examination, an evaluation of the radiological investigations, including the renal ultrasound, and then a reasoned adjudication of the assessment. At the least, Mr Austin submits that a sufficient explanation must be given as to why the order was made: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 273.

89 Whilst acknowledging that a trier of fact need not detail every step in the reasoning process, Mr Austin submits that where a finding is central to the resolution of the issue in dispute, the reasoning process undertaken ought enable the reader to understand the essential steps in that process. He submits that the reader of the Appeal Panel’s decision would be left wondering why Dr Pillemer’s assessment was “somewhat generous”.

90 Bearing in mind that the Appeal Panel is determining legal rights as between an employee and employer, he submits that the decision cannot stand. Although the direct monetary consequences of the assessment of impairment may not be very substantial (s.66 WC Act), Mr Austin submits that the s.66 assessment may have an impact upon the Plaintiff’s future rights with respect to weekly payments, which can endure up to the age of 65 years, and also medical expenses for a lifetime.

91 Mr Austin acknowledges that relief under s.69 Supreme Court Act 1970 is discretionary in nature, but submits that no basis exists for a discretionary refusal of relief to which the Plaintiff was otherwise entitled.

The First Defendant’s Submissions

92 Mr Rowles, counsel for the First Defendant, submits that the focus of attention must be upon the decision of the Appeal Panel which is under challenge, and not that of the approved medical specialist. He submits that the Plaintiff was, in reality, attempting to appeal to this Court (in the guise of a claim for prerogative relief) from the original decision of Dr Pillemer, which has been overtaken by the decision of the Appeal Panel.

93 Mr Rowles submits that the Appeal Panel properly understood its appellate function and had exercised it. The Appeal Panel had turned its mind to the question whether a further medical examination of the Plaintiff ought take place, or whether there was sufficient information to allow the Appeal Panel to make an assessment of the Plaintiff’s loss. The Appeal Panel had a discretion in this respect. Mr Rowles submits that no error had been demonstrated on the Appeal Panel’s part in reaching this conclusion.

94 The Appeal Panel had determined to admit Dr Milne’s ultrasound report as fresh evidence under s.328(2) WIM Act. Thereafter, the Appeal Panel had regard to the report. Once again, Mr Rowles submits that this points to a clear understanding by the Appeal Panel of its statutory function.

95 The Appeal Panel considered the Plaintiff’s submission to it that further assessment ought take place, or that the Plaintiff ought be re-examined by the Appeal Panel itself, but determined that these steps were not required. Once again, it was submitted that this discretionary determination was open to the Appeal Panel and no relevant error is revealed.

96 Mr Rowles submits that although minds may reasonably differ as to whether a further examination of the Plaintiff was desirable, it was open to the Appeal Panel to reach the conclusion which it did, and that such a conclusion was not manifestly unreasonable.

97 Mr Rowles submits that the Appeal Panel understood the obligation to undertake a review de novo and stated that it had “conducted a review of the material before it and reached its own conclusion concerning the impairments and losses suffered by the [Plaintiff]“ (paragraph 15 of reasons of Appeal Panel).

98 Mr Rowles submits that it was for the Appeal Panel to determine how the appeal should proceed, and that no error had been demonstrated in the decision of the Appeal Panel to proceed in the manner in which it did: Estate of Heinrich Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 at [57]-[58]; Sittik v WorkCover Authority of NSW [2007] NSWSC 129 at [15]-[20].

99 Mr Rowles submits that the Appeal Panel considered the submissions for the Plaintiff concerning Dr Pillemer’s reference to a renal condition and determined that, fairly read, Dr Pillemer’s certificate did not take into account in his assessments, in a manner adverse to the Plaintiff, the possible existence of a renal condition.

100 It was submitted that the Appeal Panel had reached the conclusion that Dr Pillemer, despite some ambiguity in the certificate, had not factored in the renal condition to the relevant assessments. In any event, Mr Rowles submits that the Appeal Panel considered all the material, and had turned its own mind to the question of appropriate assessments, excising any suggestion of a renal condition as a relevant factor. Having done so, Mr Rowles submits that the Appeal Panel had formed its own view that Dr Pillemer’s ultimate determinations were, if anything, “somewhat generous” and that his “ultimate findings were appropriate”. As a result, there was no necessity to revoke the certificate and to issue a fresh one. Mr Rowles submits that none of this reveals error of the type which could attract relief under s.69 Supreme Court Act 1970.

101 With respect to the adequacy of reasons, Mr Rowles submits that the Appeal Panel had explained itself clearly and concisely. The Appeal Panel excised the issue of any renal condition entirely from consideration. Having examined all reports and reached its own conclusion concerning the impairments and losses suffered by the Plaintiff, the Appeal Panel concluded that Dr Pillemer’s ultimate determinations “were, if anything, somewhat generous, but not such as would require a further assessment”.

102 Further, insofar as errors in the certificate were concerned, the Appeal Panel felt that “because the ultimate findings were appropriate there was no necessity to revoke the certificate and to issue a fresh one”. Mr Rowles submits that these conclusions, properly understood, indicate that the Appeal Panel’s own assessment of the Plaintiff’s claim may have resulted in calculations and conclusions less favourable to the Plaintiff then that concluded by Dr Pillemer. Nevertheless, the Appeal Panel determined to confirm the certificate, despite these apparent misgivings.

103 Mr Rowles submits that no more elaborate reasons were required, to comply with the implied duty to give reasons, in the circumstances of this case. The Appeal Panel did not find that Dr Pillemer had erroneously taken into account any renal condition in reaching his assessment. Nevertheless, the Appeal Panel had put the issue of any renal condition to one side entirely, and had formed its own view on all the material before it. Having done so, it concluded that the assessments and conclusions of Dr Pillemer involved no error, and certainly no error which operated unfavourably to the Plaintiff. In these circumstances, no breach of the duty to give reasons had been established.

104 Mr Rowles submits that no basis for relief had been demonstrated by the Plaintiff.

Resolution of Competing Submissions

105 It is necessary to have regard to the reasons contained in Dr Pillemer’s certificate, as well as the reasons of the Appeal Panel, for the purpose of determining the present proceedings. It is apparent that an understanding of the decision of the Appeal Panel involves comprehension of Dr Pillemer’s reasoning.

106 In my opinion, a fair reading of the medical assessment certificate of Dr Pillemer suggests that he has not, in fact, taken into account for the purpose of the assessments under s.66 WC Act or s.323 WIM Act, the renal condition which he attributed to the Plaintiff. It is true that the manner in which Dr Pillemer referred to the suspected renal condition, at different points in the medical certificate, raised for consideration the question whether he had taken such a condition into account for the purposes of either, or both, of the assessments which he was required to make for the purpose of the combined certificate. So much was acknowledged in the reasons of the Appeal Panel where an analysis of the certificate was undertaken to determine whether Dr Pillemer had, in fact, taken into account in his assessments the suspected renal condition in a manner unfavourable to the Plaintiff. The Appeal Panel concluded that Dr Pillemer had not, in fact, utilised his suspicion of a renal condition in such an impermissible way. Having considered carefully the terms of Dr Pillemer’s certificate and the reasons of the Appeal Panel on this point, I agree with the conclusions of the Appeal Panel.

107 I am satisfied that a fair reading of Dr Pillemer’s certificate reveals that he did not take into account, for the purpose of his assessments under s.66 WC Act or s.323 WIM Act, any suspected renal condition of the Plaintiff. That part of Dr Pillemer’s certificate which identified the injuries for which assessments were being made identified specifically the back injuries which were the subject of the claim.

108 The Appeal Panel approached its task by examining Dr Pillemer’s certificate to determine whether he had, erroneously, taken into account the renal condition adversely to the Plaintiff. The Appeal Panel determined that he had not. In my view, no error is revealed in the reasoning of the Appeal Panel on this point.

109 It is clear that the Appeal Panel gave close consideration to the terms of Dr Pillemer’s certificate and acknowledged that some parts of it suggested that the author had impermissibly taken into account the suspected renal condition for the purpose of the assessments to be made. However, having carefully considered the terms of the certificate, the Appeal Panel concluded that Dr Pillemer had not done so. Having undertaken the same process of construction of Dr Pillemer’s certificate as that carried out by the Appeal Panel, I understand the conclusion of the Appeal Panel and agree with it.

110 Consistent with the exercise of its de novo review function, the Appeal Panel did not stop there. The Appeal Panel proceeded to form its own conclusions with respect to the Plaintiff. The Appeal Panel stated that it had examined all the documentary material and had reached its own conclusions with respect to the Plaintiff’s impairment. Having done so, the Appeal Panel concluded, somewhat pithily, that Dr Pillemer’s ultimate determinations were “somewhat generous” and that his “ultimate findings were appropriate”.

111 In considering Mr Austin’s submission that the Appeal Panel failed to give reasons on these matters, it is important to consider the reasons of the Appeal Panel as a whole. The Appeal Panel had summarised Dr Pillemer’s findings and conclusions. Having determined that Dr Pillemer had not taken into account the suspected renal condition in the assessments and determinations to be made under s.66 WC Act and s.323 WIM Act, the Appeal Panel had regard to the totality of the documentary evidence before it, leading to the conclusions expressed in paragraphs 29 to 32 of the reasons of the Appeal Panel (set out at paragraph 53 above). In particular, the medical members of the Panel (see paragraph 29) applied their minds and expertise to these matters.

112 Unlike Vegan, this is not a case where a medical assessment certificate was revoked by the Appeal Panel and where there is an implied obligation to give reasons for reaching a different view to that of the approved medical specialist. Rather, the Appeal Panel has formed the view that Dr Pillemer’s ultimate percentage determinations were appropriate and, indeed, generous to the Plaintiff, putting aside entirely any question of a renal condition. It may be taken that the Appeal Panel was otherwise endorsing and adopting the reasoning and conclusions of Dr Pillemer.

113 Although minds may differ as to whether a further medical assessment of the Plaintiff or an examination of the Plaintiff by the Appeal Panel itself may have been desirable, this was a discretionary matter for the Appeal Panel to consider. It is clear that the Appeal Panel considered this step and decided that an examination should not occur. A substantial hurdle lies in the way of the Plaintiff in demonstrating that such a discretionary determination is manifestly unreasonable (see paragraph 24 above). I am not satisfied that the Plaintiff has demonstrated that it was in this case.

114 I am not satisfied that there has been a failure to give reasons in this case. The conclusions of the Appeal Panel are clear enough. In reality, the Appeal Panel has determined, on all the evidence, that no better result should arise than that determined by Dr Pillemer, despite the Appeal Panel’s view that this outcome may have been more favourable to the Plaintiff than was warranted. I do not consider that error of the type identified in Vegan is demonstrated in this case.

115 Having regard to the detailed submissions made for the Plaintiff, it is appropriate to summarise my conclusions in the following way.

116 Firstly, the Appeal Panel understood the nature of its task to conduct a de novo review with respect to the medical assessment certificate issued by Dr Pillemer.

117 Secondly, in the exercise of its statutory function, the Appeal Panel considered whether a further medical examination of the Plaintiff should take place or whether the Plaintiff should be examined by the Appeal Panel itself. The Appeal Panel determined that these steps ought not be taken in this case and this conclusion was open to the Appeal Panel in the exercise of discretion and was not manifestly unreasonable.

118 Thirdly, the Appeal Panel determined to proceed with the review upon the basis of the documents which had been provided to it. This discretionary conclusion was open to the Appeal Panel and no error has been demonstrated with respect to it.

119 Fourthly, the principal focus of the appeal to the Appeal Panel was the contention that Dr Pillemer had taken into account in his assessments, impermissibly, and in a manner adverse to the Plaintiff, the suspected renal condition to which reference was made. It was open to the Appeal Panel, and it constituted an appropriate approach to its task to examine, as a starting point, Dr Pillemer’s certificate to ascertain whether the suspected renal condition had, in fact, been relied upon impermissibly in the assessment and determination process. The Appeal Panel concluded that it had not been relied upon by Dr Pillemer in this way. This conclusion was open to the Appeal Panel and was, in my view, the correct construction of Dr Pillemer’s certificate.

120 Fifthly, to take this approach, as a starting point, did not involve any error in law or jurisdictional error on the part of the Appeal Panel. The review process under s.328 WIM Act does not require the Appeal Panel to ignore the certificate under challenge. After all, the question whether the Appeal Panel ought require further medical examination or conduct its own examination of an appellant may depend, in some way, upon the content of the certificate. Likewise, the question whether the Appeal Panel ought make its own detailed findings of fact, will depend upon the issues raised on appeal and, in particular, whether the Appeal Panel intends to reach a different conclusion to that revealed in the certificate under challenge.

121 Sixthly, the Appeal Panel’s conclusion that Dr Pillemer had not taken into account in his assessments, impermissibly and in a manner adverse to the Plaintiff, the suspected renal condition operated against the need for any further medical examination of the Plaintiff or an examination of the Plaintiff by the Appeal Panel itself.

122 Seventhly, once again displaying an understanding of its statutory function, the Appeal Panel proceeded to consider the documentary material before it, including fresh evidence admitted on appeal (the ultrasound report) and to form its own conclusions with respect to the Plaintiff, excising completely from the picture any suggestion of a suspected renal condition. In undertaking this function, it was not essential that the Appeal Panel spell out in detail its own findings and conclusions concerning the Plaintiff. The Appeal Panel had determined already that Dr Pillemer’s findings, properly and fairly read, had excised the suspected renal condition from his determinations. The Appeal Panel was not reaching a different conclusion to that reached by Dr Pillemer. To the contrary, having formed its own independent view based upon the material before it, the Appeal Panel reached the same conclusions as did Dr Pillemer, with the exception that the Appeal Panel observed that Dr Pillemer’s ultimate determinations were “somewhat generous” and his “ultimate findings were appropriate”. These variations, which suggest that the Appeal Panel’s conclusion would have led to a determination less favourable to the Plaintiff, did not require further elaboration as a matter of law. It is clear enough, from the totality of the reasons of the Appeal Panel, why it reached its decision to confirm Dr Pillemer’s certificate. The Appeal Panel was not required, as a matter of law, to give more detailed reasons than those actually given and no breach of the duty to give reasons has been established in accordance with the principles arising from the decision of the Court of Appeal in Vegan.

Conclusion

123 Proceedings by way of judicial review seeking relief under s.69 Supreme Court Act 1970 are limited in their scope (see paragraphs 10 to 26 above). This Court is not exercising a general appellate function with respect to the decision of the Appeal Panel, let alone that of Dr Pillemer. I am not satisfied that the Plaintiff has demonstrated error of law on the face of the record or jurisdictional error in this case. The Appeal Panel understood the nature of the jurisdiction which it was exercising and no error of law or jurisdictional error has been demonstrated with respect to the exercise of its functions. It has not been demonstrated that the Appeal Panel failed to give reasons as required by law. The discretionary determinations of the Appeal Panel to proceed with the review on the papers, and not to direct a medical examination of the Plaintiff or to examine her itself, were both open and appropriate. It has not been demonstrated by the Plaintiff that these decisions were manifestly unreasonable.

124 In my view, the Appeal Panel heard and determined the Plaintiff’s appeal according to law. The Plaintiff has not demonstrated any entitlement to relief as sought in the Amended Summons.

125 I make the following orders:

(a) the Amended Summons is dismissed;

(b) the Plaintiff is to pay the costs of the First Defendant.

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