Robbie v Strasburger Enterprises Pty Ltd t/as Quix Food Stores

[2017] NSWSC 363

Supreme Court

New South Wales

Medium Neutral Citation:	Robbie v Strasburger Enterprises Pty Ltd t/as Quix Food Stores & Ors [2017] NSWSC 363
Hearing dates:	7 February 2017
Decision date:	07 April 2017
Before:	N Adams J
Decision:	(1) Dismiss the plaintiff’s summons. (2) The plaintiff is to pay the first defendant’s costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – decision of a delegate of the Registrar of the Workers Compensation Commission – construction of the Workers Compensation Guidelines – proper use of the Combined Values Chart in AMA5 when combining whole person impairment value for spinal injury involving persisting radiculopathy with two modifiers for spinal surgeries
Legislation Cited:	Interpretation Act 1987 (NSW), s 8 Motor Accidents Compensation Act 1999 (NSW) Supreme Court Act 1970 (NSW), s 69 Workers Compensation Act 1987 (NSW), ss 66, 151H Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 321, 322, 323, 327, 376
Cases Cited:	ADCO Constructions Pty Limited v Goudappel (2014) 254 CLR 1; [2014] HCA 18 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Bird v Commonwealth (“The Maralinga Case”) (1988) 165 CLR 1; [1988] HCA 23 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 51 Insurance Australia Limited t/as NRMA Insurance v Helou [2008] NSWCA 240 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Texts Cited:	American Medical Association, Guides to the Evaluation of Permanent Impairment, Fifth Edition NSW workers compensation guidelines for the evaluation of permanent impairment, Fourth Edition – 1 April 2016 State Insurance Regulatory Authority, Permanent Impairment Guidelines Table 4.2 Interpretation and Application
Category:	Principal judgment
Parties:	Melissa Robbie (Plaintiff) Strasburger Enterprises Pty Ltd t/as Quix Food Stores (First Defendant) Registrar of the Workers Compensation Commission of NSW (Second Defendant) Delegate of the Registrar of the Workers Compensation Commission of NSW (Third Defendant) Deputy Registrar of the Workers Compensation Commission of NSW (Fourth Defendant)
Representation:	Counsel: Mr C Tanner (Plaintiff) Mr T Boyle (First Defendant)   Solicitors: Turner Freeman (Plaintiff) Moray & Agnew (First Defendant) NSW Crown Solicitor (Second, Third and Fourth Defendants)
File Number(s):	2015/284576
Publication restriction:	Nil

Judgment

1. These proceedings for judicial review concern the proper method of calculating an injured worker’s Whole Person Impairment (“WPI”) for a lumbar spine injury in circumstances where successive surgeries have resulted in persisting radiculopathy.

2. By summons filed on 22 September 2016, Melissa Robbie (“the plaintiff”) invokes this Court’s supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW), in respect of a decision made on 17 June 2016 by the third defendant. The third defendant is a delegate of the Registrar of the Workers Compensation Commission of New South Wales, who determined, pursuant to s 327(4) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the WIM Act”), that an internal appeal brought by the plaintiff should not proceed because the Medical Assessment Certificate (“MAC”) did not contain a “demonstrable error”. The plaintiff claims, inter alia, declaratory relief and relief in the nature of certiorari quashing that determination.

3. The second, third and fourth defendants in this matter have all filed submitting appearances, leaving the plaintiff’s employer as the sole contradictor.

Background

4. An affidavit of the plaintiff’s solicitor was read at the hearing annexing, inter alia, the documents that were before the third defendant and are relevant to these proceedings and the reasons of the third defendant. This background is taken from that material.

5. At the relevant time, the plaintiff was employed by Strasburger Enterprises Pty Ltd trading as Quik Food Stores (“the first defendant”). She initially sustained injury on 26 June 2003 when she was placing soft drink bottles in a fridge and felt pain in her lower back. She resumed her pre-injury duties on 2 July 2003. On 16 May 2005, whilst moving milk crates, she felt severe aching in her lower back. She underwent physiotherapy but her condition deteriorated. She returned to work although she never fully recovered. She underwent an L4/5 discectomy in November 2012 and a further discectomy in May 2014.

6. On 7 July 2015, the plaintiff made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act1987 (NSW). She relied upon an assessment of Associate Professor Michael Fearnside (“AP Fearnside”) dated 15 May 2015 that she had a 17% WPI resulting from her injury. AP Fearnside made the following assessment:

“Ms Robbie is assessed as DRE Lumbar Category III, range 10-13% WPI. She is assessed as DRE Lumbar Category III because she has undergone surgery for radiculopathy caused by herniated disc. The herniated disc is on the same side and the same level as would be suggested by the radiology.

Within the range of 10-13% WPI, I have assessed 2% WPI for the effect of the injury on activities of daily living. Although independent in self care, she struggles with a number of domestic chores and has some problems with mobility in particular standing and walking. This gives 12% WPI. There is objective evidence of persistent radiculopathy after the surgery. She has organic weakness of dorsiflexion of the right great toe and ankle and has dermatomal sensory loss. There is reflex asymmetry (medial hamstring reflexes). This satisfies the criteria in the WorkCover Guides for a persisting radiculopathy. 3% is assessed giving 15% WPI. Ms Robbie underwent a second operation for which a further 2% is rateable, giving 17% WPI.

Reference: AMA5 Chapter 15 page 384, table 15.3, Workcover Guides pages 31-2, paragraph 4.33, table 4.2 (effect of surgery).”

7. The acronym “DRE” stands for “diagnosis-related estimates”.

8. The first defendant’s workers’ compensation insurer, QBE Workers Compensation (NSW) Ltd (“QBE”), did not accept AP Fearnside’s assessment. On 2 September 2015, QBE wrote to AP Fearnside requesting further consideration be given to an earlier assessment by him. On 10 September 2015, AP Fearnside provided a revised assessment of 15% WPI to allow a deduction of 10% (1.7%) for events other than the plaintiff’s workplace injury. QBE also arranged for the plaintiff to be medically examined by Dr Vidyasagar Casikar, who assessed the plaintiff as at a WPI of 18%.

9. Agreement could not be reached as to the plaintiff’s WPI and, on 18 March 2016, the plaintiff lodged an Application to Resolve a Dispute in the Workers Compensation Commission. The first defendant lodged a Reply on 6 April 2016 and on 7 April 2016 the plaintiff was referred to Approved Medical Specialist (“AMS”) Dr William Bye by the third defendant for an assessment of her WPI.

10. The plaintiff was subsequently examined by Dr Bye. On 6 May 2016, the third defendant issued a MAC assessing the plaintiff’s WPI as 14%.

11. On 23 May 2016, the plaintiff lodged an application to appeal against the decision of the AMS. On 27 May 2016, the first defendant lodged submissions opposing such an appeal.

12. On 17 June 2016, the third defendant determined that the appeal should not proceed. It is this decision in relation to which judicial review is sought.

Relevant legislation

13. Before turning to consider the issue in dispute as between the parties, it is necessary to set out some of the relevant legislation and guidelines that govern the assessment of workers’ compensation in New South Wales. Part 7 of Chapter 7 of the WIM Act provides for the medical assessment of an injured worker seeking workers’ compensation where the worker’s and employee’s medical experts cannot agree on the extent of any impairment and there is thus a “medical dispute”. Section 321 provides for the referral of a medical dispute for assessment.

14. Section 322(1) of the WIM Act requires that the assessment of an injured worker be made in accordance with the Guidelines issued by the State Insurance Regulatory Authority (“SIRA”) (previously the WorkCover Authority) pursuant to s 376(1) of the WIM Act.

15. Section 323 of the WIM Act allows for a deduction in WPI due to impairment for other previous injury. It relevantly provides as follows:

“323 Deduction for previous injury or pre-existing condition or abnormality

(1)  In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.

(2)  If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”

16. Section 327 of the WIM Act sets out the appeal rights from or against a medical assessment under this Part. It is in the following terms:

“327 Appeal against medical assessment

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

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

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

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

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

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

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

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

(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.

(6) The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).”

17. Section 376(1)(a) of the WIM Act provides that, “The Authority may issue guidelines with respect to…the assessment of the degree of permanent impairment of an injured worker as a result of an injury.” Section 376(4) provides that, “Workers Compensation Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.” Section 376(5) provides, inter alia, that Workers Compensation Guidelines (including any amendment, revocation or replacement) are to be published in the Gazette.

18. Section 377 of the WIM is in these terms:

“377 Special requirements relating to Workers Compensation Guidelines relating to impairment

(1)  This section applies to Workers Compensation Guidelines that relate to the assessment of the degree of permanent impairment of an injured worker as a result of an injury.

(2)  Those Guidelines must be developed in consultation with relevant medical colleges, including the Royal Australasian College of Physicians, the Royal Australasian College of Surgeons, the Australian Orthopaedic Association and other relevant colleges and associations.

(3)  Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to those Guidelines in the same way as those sections apply to statutory rules.”

The Workers Compensation Guidelines

19. Pursuant to s 376(1) of the WIM Act, SIRA has issued a document entitled NSW workers compensation guidelines for the evaluation of permanent impairment, Fourth edition – 1 April 2016 (“the Guidelines”).

20. The foreword to the Guidelines states that the methodology in the Guidelines is largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition (“AMA5”). Those guides are described in the Guidelines as being “the most authoritative and widely used in evaluating permanent impairment around the world”. It is also noted in the foreword that AMA5 is extensively reviewed by Australian medical specialists to ensure that it aligns with clinical practice in Australia.

21. The Guidelines consist of an introductory chapter followed by chapters dedicated to each body system. The foreword explains that the introduction is divided into three parts as follows:

“The first outlines the background and development of the Guidelines, including reference to the relevant legislative instrument that gives effect to the Guidelines. The second covers the general assessment principles for medical practitioners applying the Guidelines in assessing permanent impairment resulting from work-related injury or disease. The third addresses administrative issues relating to the use of the Guidelines.”

22. In the second section of the introduction, under the heading “Principles of Assessment”, the Guidelines provide as follows:

“1.17 Impairments arising from the same injury are to be assessed together. Impairments resulting from more than one injury arising out of the same incident are to be assessed together to calculate the degree of permanent impairment of the claimant.

1.18 The Combined Values Chart in AMA5 (pp 604-06) is used to derive a percentage of whole person impairment (WPI) that arises from multiple impairments. An explanation of the chart’s use is found on pp 9-10 of AMA5. When combining more than two impairments, the assessor should commence with the highest impairment and combine with the next highest and so on.”

23. The introduction to the Guidelines also provides for the assessment of the impact of the injury on the activities of daily living (“ADL”):

“Activities of daily living

1.24 Many tables in AMA5 (eg in the spine section) give class values for particular impairments, with a range of possible impairment values in each class. Commonly, the tables require the assessor to consider the impact of the injury or illness on activities of daily living (ADL) in determining the precise impairment value. The ADL which should be considered, if relevant, are listed in AMA5 Table 1-2 (p 4). The impact of the injury on ADL is not considered in assessments of the upper or lower extremities.

1.25 The assessment of the impact of the injury or condition on ADL should be verified, wherever possible, by reference to objective assessments - for example, physiotherapist or occupational therapist functional assessments and other medical reports.”

24. Chapter 4 of the Guidelines applies to assessment of permanent impairment of the spine. It sets out the method by which an assessor is to apply AMA5 to evaluate such impairment. Impairments are to be expressed as a percentage of WPI. In addition, ADL percentages of 1 to 3% may be added to the impairment range in the relevant DRE category if there is a difference in activity level as recorded when compared with the worker’s status prior to the injury.

25. Paragraph 4.27 is in these terms:

“Radiculopathy is the impairment caused by the malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold)

loss of asymmetry of reflexes

muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

reproducible impairment or sensation that is anatomically localised to an appropriate spinal nerve root distribution

positive nerve root tensions (AMA5 Box 15-1 p 382)

muscle wasting – atrophy (AMA5 Box 15-1 p 382)

findings on an imaging study consistent with the clinical signs (AMA5 p 382).”

26. Paragraph 4.37 of the Guidelines addresses the separate assessment of the effect of surgery. It is the relevant provision for the purposes of this application and accordingly it is extracted in full:

“Effect of surgery: AMA5 tables 15-3 to 15-5 (pp 384, 389 and 392) do not adequately account for the effect of surgery on the impairment rating for certain disorders of the spine. The assessor should note that:

Surgical decompression for spinal stenosis is DRE category III (AMA5 Table 15-3, 15-4 or 15-5)

Operations where the radiculopathy has resolved are considered under the DRE category III (AMA5 Table 15-3, 15-4 or 15-5)

Operations for spinal fusion (successful or unsuccessful) are considered under DRE category IV (AMA5 Table 15-3, 15-4 or 15-5)

DRE category V is not to be used following spinal fusion where there is a persisting radiculopathy. Instead, use Table 4 2 in the Guidelines

Radiculopathy persisting after surgery is not accounted for by AMA5 Table 15-3, and incompletely by tables 15-4 and 15-5, which only refer to radiculopathy that has improved following surgery.

Table 4.2 indicates the additional ratings which should be combined with the rating determined using the DRE method where an operation for an intervertebral disc prolapse, spinal canal stenosis or spinal fusion has been performed.

Example 15-4 in AMA5 (p 386) should therefore be ignored.

Table 4.2: Modifiers for DRE categories following surgery

Procedures	Cervical	Thoracic	Lumbar
Spinal surgery with residual symptoms and radiculopathy (refer to 4. 27 in the Guidelines	3%	2%	3%
Second and further levels	1% each additional level	1% each additional level	1% each additional level
Second operation	2%	2%	2%
Third and subsequent operations	1% each	1% each	1% each

In summary, to calculate whole person impairment (WPI) for persisting radiculopathy (as per definition) following surgery:

Select the appropriate DRE category from Table 15-3, 15-4, or 15-5;

Determine a WPI value within the allowed range in Table 15-3, 15-4 or 15-5 according to the impact on the worker's ADL;

Combine this value with the appropriate additional amount from Table 4.2 to determine the final WPI.”

[emphasis added]

The AMA5 Guides

27. The relevant part of AMA5 is the “Combined Values Chart” at p 604. That Chart is explained at paragraph 1.4 of AMA5 (at p 9), which is headed “Philosophy and Use of the Combined Values Chart”, as follows:

“The Combined Values Chart (p. 604) was designed to enable the physician to account for the effects of multiple impairments with a summary value. A standard formula was used to ensure that regardless of the number of impairments, the summary value would not exceed 100% of the whole person.

According to the formula listed in the combined values chart, multiple impairments are combined so that the whole person impairment value is equal to or less that the sum of all the individual impairment values.”

28. After setting out some of the difficulties in arriving at a scientific formula that can combine multiple impairments, the following is noted at paragraph 1.4 (at p 10):

“In general, impairment ratings within the same region are combined before combining the regional impairment rating with that from another region. For example, when there are multiple impairments involving abnormal motion, neurologic loss, and amputation of an extremity part, these impairments first should be combined for a regional extremity impairment. The regional extremity impairment then is combined with an impairment from another region, such as from the respiratory system. Spinal impairments in multiple regions are combined.”

29. The lumbar spine DRE categories are summarised in Table 15-3 of AMA5. That table is headed “Criteria for Rating Impairment Due to Lumbar Spine Injury”. It contains five columns, each of which pertains to a category of WPI. Category I is 0% WPI, Category II is 5%-8% WPI, Category III is 10%-13% WPI, Category IV is 20%-23% WPI and Category V is 25%-28% WPI. Apart from Category I, each category includes a range to account for the resolution or continuation of symptoms and their impact on the ability to perform ADL. It is Category III that is of relevance in the present matter. DRE Lumbar Category III is described, relevantly, as follows:

“Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, loss of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location; impairment may be verified by electrodiagnostic findings.”

30. The “Combined Values Chart” is set out at page 604 of AMA5. It contains the following instruction:

“The values are derived from the Formula A + B (1 - A) = combined value of A and B, where A and B are the decimal equivalents of the impairment ratings. In the chart all values are expressed as percents. To combine any two impairment values, locate the larger of the values on the side of the chart and read along that row until you come to the column indicated by the smaller value at the bottom of the chart. At the intersection of the row and the column is the combined value.

For example, to combine 35% and 20% read down the side of the chart until you come to the larger value, 35%. Then read across the 35% row until you come to the column indicated by 20% at the bottom of the chart. At the intersection of the row and column is the number 48. Therefore, 35% combined with 20% is 48%. Because of the construction of this chart, the larger impairment value must be identified at the side of the chart.

If three or more impairment values are to be combined, select any two and find their combined value as above. Then use that value and the third value to locate the combined value of all. This process can be repeated indefinitely, the final value in each instance being the combination of all previous values. In each step of this process the larger impairment value must be identified at the side of the chart.”

31. The Combined Values Chart at p 604 starts at number 1 on the top left hand side and runs vertically down to the number 50. Underneath it and running horizontally along the bottom of the page are the numbers 1-50. On every row and in every column other numbers appear. Those numbers are percentages of WPI when there is more than one impairment rating.

Other relevant legislation

32. Both parties relied on s 8 of the Interpretation Act1987 (NSW) insofar as it pertains to the singular and plural form of words. Section 8(b) provides that a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form. Section 8(c) provides that a reference to a word or expression in the plural form includes a reference to the word or expression in the singular form. Section 5(2) of the Interpretation Act provides, relevantly, that that Act applies to an Act or instrument except in so far as the contrary intention appears in the Act or instrument concerned.

The MAC

33. None of the history as set out by the AMS in the MAC is in dispute as between the parties in this matter. Nor are most of the conclusions in the MAC challenged by the plaintiff. In particular, the plaintiff does not challenge the following findings:

1. The plaintiff’s injury and presentation fall into baseline DRE Lumbar Category III (AMA 5 Table 15-3), with a WPI of 10%;

2. The impact on the plaintiff’s ADL amounts to an ADL WPI of 2%. Thus, prior to applying the modifiers in Table 4.2, the plaintiff’s WPI is 12%.

3. There was radiculopathy persisting after surgery that had to be taken into account. Table 4.2 of the Guidelines (extracted above at [26]) provides an additional rating of 3% for the first surgery and an additional rating of 2% for the second surgery; and

4. A deduction of 10% (amounting to 1.6%) was necessary for events outside the plaintiff’s work history (s 323 of the WIM Act, extracted above at [15]).

34. After making the findings at (1) – (2) above and arriving at a WPI of 12%, the AMS then added together the two additional ratings in Table 4.2 (3% for the first surgery and 2% for the second surgery) to arrive at a rating of 5%. He then applied the Combined Values Chart in AMA5 to combine the WPI of 12% with the “additional rating” of 5% to arrive at 16%. He then reduced that number by 10% (1.6%) and arrived at a WPI of 14% (rounded down from 14.4%).

35. The AMS referred to the three medical opinions before him: that of AP Fearnside, who assessed the plaintiff’s WPI as 15%, that of Dr Neil Barry, who assessed the WPI as 16%, and that of Dr Casikar, who assessed the WPI as 18%. He explained why he had arrived at a conclusion that differed from theirs. As for AP Fearnside he simply noted that, “I believe there is an error in the total Whole Person Impairment, which is judged at 17% and as such I disagree with his subsequent apportionment figure of 1.7% and his subtotal impairment at 15%.”

36. Section 151H of the Workers Compensation Act 1987 provides that an injured worker is only entitled to damages if the injury results in the death of the worker or a degree of permanent impairment that is at least 15%. The finding of the AMS thus means that the plaintiff is not entitled to damages for her workplace injury.

The proposed appeal

37. Although it is not expressly addressed by the AMS in the MAC, the only reason that he and AP Fearnside arrived at different WPI ratings was the method that each adopted to increase the plaintiff’s WPI to take account of the modifiers in Table 4.2. There was no dispute that the two relevant modifiers were 3% for the first operation and 2% for the second one. The AMS added those two values together and then used the Combined Values Chart in AMA5 to combine them in one step. AP Fearnside used the Combined Values Chart in AMA5 to combine the 3% modifier with the WPI of 12%, which resulted in a WPI of 15%, and then combined that 15% with the second modifier of 2% to arrive at a WPI of 17%. On his methodology, the final WPI, with a 10% reduction for events outside the plaintiff’s work history, is 15%.

38. On 23 May 2016, the plaintiff lodged an Application to Appeal Against the Decision of an AMS on the ground that the MAC contained a demonstrable error within the meaning of s 327(3)(d) of the WIM Act. She took issue with the method of calculation used by the AMS and submitted that the impairment ratings from the two surgeries should not have been combined prior to the application of the Combined Values Chart. That approach would have resulted in a WPI of 17%, prior to the 10% deduction.

The reasons of the Delegate of the Registrar   

39. The third defendant in these proceedings delivered his reasons for determining that the appeal would not proceed on 17 June 2016. He considered whether the MAC contained a “demonstrable error” within the meaning of s 327(3)(d) of the WIM Act. After setting out the matters that were not in dispute, he stated the following:

“13. According to clause 4.37 of the Guidelines, Table 4.2 ‘indicates the additional ratings which should be combined with the rating determined using the DRE’. The reference to “ratings” means that the additional ratings must be added together before they are combined with rating [sic] determined using DRE. This is clearly consistent with the steps set out in clause 4.37 of the Guidelines, including the reference to “additional amount” in the third bullet point:

“In summary, to calculate whole person impairment (WPI) for persisting radiculopathy (as per definition) following surgery:

• Select the appropriate DRE category from Table 15-3, 15-4, or 15-5;

• Determine a WPI value within the allowed range in Table 15-3, 15-4 or 15-5 according to the impact on the workers ADL

• Combine this value with the appropriate additional amount from Table 4.2 to determine the final WPI.”

“14. The AMS’s application of Table 4.2 is also consistent with the methodology utilised by the appellant’s doctors, including Dr Michael Fearnside (page 9 of the ARD) Dr Neil Berry (page 15 of the ARD).

…

16. Accordingly, the appellant’s submissions do not make out demonstrable error on the face of the MAC, and the appeal is not to proceed on this point.”

[emphasis added]

The grounds of review

40. The plaintiff pleaded seven errors in respect of the decision of the third defendant in her summons as follows:

“(a) The Third Defendant [the Delegate of the Registrar] erred in failing to determine that at least one of the grounds of appeal in section 327(3) of the 1998 Act had been made out, in particular, a demonstrable error by the AMS.

(b) The Third Defendant erred in failing to determine that the Plaintiff had made out a basis to appeal in that it was apparent from the Medical Assessment Certificate that the AMS had failed to attend to the combination of the Plaintiff’s impairments in accordance with the Fourth Edition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (“the Guidelines”) as read with the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA5”); in particular, the Third Defendant (like the AMS) erred in interpreting paragraph 4.37 of the Guidelines as requiring combination of the ratings in respect of surgery prior to combination with the DRE rating - contrary to the method prescribed by the Guides and AMA5, in terms of which there is to be a succession of combinations of impairment values in accordance with the Combined Values Chart of AMA5, commencing with the highest value, which is to be combined with the next highest value, before attending to a further combination, in which the first combined value (constituted by the highest value combined with the second highest value) is then combined with the third highest value.

(c) The Third Defendant erred in failing to determine that the Plaintiff had made out a basis for appeal in that it was apparent from the Medical Assessment Certificate that the AMS had failed to attend to the combination of the Plaintiff’s impairments in accordance with the Guidelines as read with AMA5, which failure had, pursuant to an erroneous combination of impairment ratings, resulted in an ultimate assessment of 14% WPI, when an assessment of 15% WPI would have resulted had the AMS performed a correct assessment in accordance with the Guidelines as read with AMA5.

(d) The Third Defendant erred in failing to determine that the Plaintiff had made out a basis for appeal in that it was apparent that the Plaintiff’s impairments, assessed in accordance with the Guidelines as read with AMA5, should have been calculated as follows:

(i) Step 1: Combine the DRE rating of 12% with the rating of 3% for spinal surgery to the lumbar spine with residual symptoms, resulting in a combined value of 15%;

(ii) Step 2: Combine the value of 15% derived from Step 1 with 2% for the second operation, resulting in a combined value of 17%; and

(iii) Step 3: Deduct 1/10 (or 1.7%) pursuant to section 323 of the WIM Act in respect of the Plaintiff’s pre-existing condition, resulting in a final assessment of 15%.

(e) The Third Defendant erred in failing to determine that a Medical Appeal Panel should be constituted to provide an assessment of WPI in accordance with the Guidelines as read with AMA 5;

(f) The Third Defendant erred in failing to determine that the Plaintiff had made out a basis for appeal in that it is open to a Medical Appeal Panel to find that the AMS fell into error in failing to attend to combinations of the respective values of 12% (pursuant to the DRE criteria), 3% (in respect of spinal surgery to the lumbar spine with residual symptoms), and 2% (in respect of the Plaintiff’s second operation), in the order specified at paragraph 1.18 of the Guidelines.

(g) The Third Defendant erred in failing to determine that the Plaintiff had made out a basis for appeal in that it is open to a Medical Appeal Panel to find that the Medical Assessment Certificate should be revoked and replaced with a certificate recording that, in accordance with the Guidelines as read with AMA five, the Plaintiffs degree of impairment resulting from the subject injury is 15%, not 14% as assessed by the AMS.

41. Counsel for the plaintiff, Mr Tanner, accepted at the hearing of this matter that the grant of relief turns on whether I am satisfied that the third defendant correctly interpreted the Guidelines as they pertain to the proper addition of the moderators in Table 4.2. The seven errors could thus be distilled into one: that the third defendant erred in not referring the plaintiff’s appeal to the Medical Appeal Panel (“MAP”) because he misinterpreted paragraph 4.37 of the Guidelines (extracted above at [26]).

The plaintiff’s submissions

42. Mr Tanner identified the issue for the Court as being the proper interpretation of paragraph 4.37 of the Guidelines. The plaintiff’s position was that the methodology adopted by AP Fearnside was correct and that the AMS erred in the manner in which the “Modifiers for DRE categories following surgery” were added on to the plaintiff’s WPI of 12% to obtain the final WPI. Accordingly, the reasons of the third defendant demonstrate either jurisdictional error or error of law on the face of the record.

43. The plaintiff contended that the entries in Table 4.2 should be treated as multiple impairments and combined with the DRE/ADL rating using the methodology of successive combinations (consistent with paragraph 1.18 of the Guidelines).

44. It was further submitted that the provisions of paragraph 4.37 of the Guidelines should be interpreted in the context of the Guidelines as a whole, read with AMA5 and the legislative scheme of which they form a part. The plaintiff placed particular reliance upon the fact that paragraph 1.1 of the Guidelines provides that AMA5 is to be adopted in most cases and that, “Where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail.” Having regard to ss 322 and 376 of the WIM Act, the Guidelines as read with AMA5 constitute delegated legislation.

45. The plaintiff submitted that individual guidelines should be construed so that they are “consistent with the language and purpose of all the provisions of the statute” (or in this case, the Guidelines as a whole): Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 381-382 ([69]-[70]). It was further submitted that paragraph 4.37 of the Guidelines exists as part of a system that provides for the combination of different impairment ratings in accordance with both the Combined Values Chart in AMA5 and paragraphs 1.17 to 1.20 of the Guidelines. Accordingly, paragraph 4.37 should be read consistently with paragraph 1.18. If it were so interpreted, it would present no exception to the method that generally applies to the combination of more than two impairment ratings (that is, combining the highest with the next highest and so on).

46. It was submitted that if there were to be a departure from the general procedure described in paragraph 1.18, such a clear intention would have been articulated. There is no indication of any departure from this method contained in paragraph 4.37.

47. The plaintiff relied upon the use of the plural in the reference in Table 4.2 the combination of “additional ratings” (emphasis added). Further, the third bullet point in Table 4.2 states that it is necessary to combine “this value” with “the appropriate additional amount” from that table to determine the final WPI. It was submitted that the phrase “appropriate additional amount from Table 4.2” requires the AMS to consider the respective procedures or categories in the left-hand column of Table 4.2 and to assess an appropriate amount relevant to each of the procedures and the affected level of the spine. The plaintiff relied upon s 8 of the Interpretation Act to submit that the phrase “appropriate additional amount” includes “appropriate additional amounts” as the singular includes the plural.

48. Finally, the plaintiff submitted that, as the instrument is one made for a beneficial purpose, its provisions should be construed beneficially: ADCO Constructions Pty Limited v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [29].

The first defendant’s submissions

49. Mr Boyle of counsel submitted that the plaintiff’s interpretation should be rejected on three bases.

50. First, the terms of paragraph 4.37 envisage a sole amount for the “effect of surgery” when the radiculopathy persists after surgery or surgeries. This is set out in the summary of the methodology included in that paragraph, which directs the AMS to “Combine this value with the appropriate additional amount from Table 4.2 to determine the final WPI.” The use of the phrase “additional amount” is in the singular and envisages one amount.

51. Second, paragraph 1.18 is a general paragraph appearing in the introduction to the Guidelines. It addresses separate impairments at a general level, whereas Table 4.2 specifically relates to a sole impairment relating to radiculopathy that persists after spinal surgery or surgeries. As a matter of statutory interpretation, the general provision is read subject to the specific provision.

52. Third, SIRA has subsequently provided clarification of Table 4.2 in collaboration with permanent impairment assessors of the spine, who are also members of the NSW Permanent Impairment Co-ordinating Committee: “SIRA, Permanent Impairment Guidelines Table 4.2 Interpretation and Application.” That document is available online. The clarification addresses the precise issue raised by the plaintiff in these proceedings. It is in these terms:

“HOW IS WHOLE PERSON IMPAIRMENT (WPI) FOR THE SPINE CALCULATED WHEN MODIFIERS APPLIED FROM TABLE 4.2?

The WPI from Table 4.2 is calculated separately and then combined with the DRE:

1. Select the appropriate DRE category from Table 15-3, 15-4, or 15-5.

2. Determine an impairment value within the allowed range in Table 15-3, 15-4, 15-5 according to the impact on the worker’s ADLs.

3. Combine this value with the appropriate amount from Table 4.2 to determine the final whole person impairment, i.e. modifiers from Table 4.2 must be combined and the total amount from Table 4.2 combined with the total of the DRE category.”

53. As for the plaintiff’s reliance upon s 8 of the Interpretation Act, it was submitted that the application of that section “cuts both ways”. The plaintiff relies upon s 8 to base a submission that the words “appropriate additional rating” in the last bullet point of paragraph 4.37 can be read as plural, yet relies upon the words “ratings” and “modifiers” to support her argument. The application of s 8 means that neither party is assisted by the use of the singular and the plural in paragraph 4.37.

54. Finally, it was submitted that interpreting Table 4.2 such that the additional ratings are combined into one amount is harmonious with the legislated scheme as a whole. The plaintiff’s interpretation places paragraph 1.18 in a position of prominence that is not warranted when it is read with paragraph 4.37 and Table 4.2. Paragraphs 1.17 and 1.18 are simply general assessment paragraphs that set out the requirement that multiple impairments from one work injury are combined to create a sole WPI using the Combined Values Chart.

Consideration

55. The issue in dispute in this matter is a narrow one. It involves identification of the proper methodology to adopt when making allowance for the effect of multiples surgeries on the calculation of WPI for certain spinal impairments. The Guidelines allow for multiple modifiers to be applied in such circumstances, as set out in Table 4.2 within paragraph 4.37 of the Guidelines. The plaintiff’s claim is that the terms of paragraph 4.37 allow for a different construction from that applied by the AMS in this case.

56. It is not disputed that it was appropriate for the AMS to increase the plaintiff’s WPI to take into account her two surgeries, after which her radiculopathy had persisted. The question is how those two separate modifiers, being 3% and 2% respectively, are to be “combined” with the 12% WPI figure.

57. There is a statutory right to appeal against a MAC to a MAP under s 327 of the WIM Act. The plaintiff attempted to exercise this statutory right to appeal, but was prevented from doing so because the third defendant was not satisfied, on the face of the application and the submissions made to him, that “demonstrable error” within the meaning of s 327(3) of the WIM Act had been made out. The role of the third defendant in this regard has been described as ensuring that the appeal is on its face valid and apparently credible: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [8].

58. There is no statutory right of appeal from a MAC to this court. These are proceedings for judicial review in which this court is being asked to exercise its supervisory jurisdiction. The plaintiff will only be able to obtain the relief sought, which is discretionary in nature, if she can establish that the third defendant either fell into jurisdictional error or made an error of law apparent on the face of the record, being the reasons for his decision: s 69(4) of the Supreme Court Act.

59. The third defendant determined the question of whether the MAC contained demonstrable error by focusing on the expression “additional amount”, in the singular, in the last bullet point in paragraph 4.37 of the Guidelines. The reasons of the third defendant state that:

“The reference to “ratings” means that the additional ratings must be added together before they are combined with rating [sic] determined using DRE. This is clearly consistent with the steps set out in clause 4.37 of the Guidelines, including the reference to “additional amount” in the third bullet point.”

60. The reasons then state that the method adopted by the AMS is consistent with the methodology utilised by the plaintiff’s medical experts, including AP Fearnside. It was submitted by counsel for the plaintiff that AP Fearnside in fact adopted the same approach upon which the plaintiff now relies. I have had regard to AP Fearnside’s report and, although it is clear that when he combined the 3% and 2% modifiers to the WPI of 12% he arrived at 17% (before deducting 1.7%), he does not describe the process that he applied. I am prepared to accept the plaintiff’s submission in this regard as the first defendant did not advance a contrary submission. It would appear that the third defendant did not apprehend that AP Fearnside used the process for which the plaintiff now contends. However, this misstatement of fact is insufficient to establish error of law on the face of the record. In order to make out a basis for relief, the plaintiff must establish that the third defendant’s construction of paragraph 4.37 is incorrect such that his reasons demonstrate either error of law on the face of the record or jurisdictional error.

61. Paragraph 4.37 is found in that part of the Guidelines dealing with spinal impairments. Although the Guidelines are not a statute, they are a statutory instrument created pursuant to s 376 of the WIM Act and gazetted like other delegated legislation. The ordinary principles of statutory interpretation apply to the construction of the Guidelines as an instrument made under the WIM Act: ss 3(1) and 5(2) of the Interpretation Act. The Guidelines have the force of delegated legislation: per Campbell JA in Insurance Australia Limited t/as NRMA Insurance v Helou [2008] NSWCA 240 at [23], in the context of analogous guidelines made under Motor Accidents Compensation Act 1999 (NSW).

62. I accept, as the plaintiff submitted, that paragraph 4.37 should be read so that it is consistent with the language and purpose of the Guidelines overall. It was also submitted on behalf of the plaintiff that paragraph 4.37 should be construed in the context of the general purpose and policy of the workers compensation statutory scheme. Again, I accept that any provision must be read in context, but such context cannot displace the meaning of the language in paragraph 4.37, which is the “surest guide to legislative intention”. The task of construing paragraph 4.37 begins and ends with a consideration of the text itself: Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 51 at [39]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47].

63. I have had regard to the text of paragraph 4.37 and construed it in the context of the Guidelines. I have also had regard to the competing arguments of the parties. I am not satisfied that error is disclosed for two reasons. First, the text of paragraph 4.37 of the Guidelines does not support the plaintiff’s construction. Second, I am not satisfied that paragraph 1.18 is relevant to the interpretation of paragraph 4.37 in the manner that the plaintiff contends.

64. The text of paragraph 4.37 is extracted in full above at [26]. It is relevant to the plaintiff’s WPI because, in the fifth bullet point, it is noted that, “Radiculopathy persisting after surgery is not accounted for by AMA5 Table 15-3.” The text of 4.37 then reads:

“Table 4.2 indicates the additional ratings which should be combined with the rating determined using the DRE method where an operation for an intervertebral disc prolapse, spinal canal stenosis or spinal fusion has been performed.”            

[emphasis added]

65. The plaintiff placed reliance on the words “additional ratings” (in the plural) in the above passage, but the reference is in the plural because it is referring to the list of additional ratings enumerated in Table 4.2. The passage would make no sense if the description of what was contained in Table 4.2 was one “rating” rather than “ratings” in the plural. Furthermore, some workers may only be able to rely on one rating, whereas others may be able to rely upon more than one rating, depending on, inter alia, how many surgeries they undergo. I am not persuaded that the reference to “additional ratings” informs the question of the way in which the plaintiff’s two additional ratings are to be taken into account.

66. The instruction in the passage from paragraph 4.37 extracted at [65] goes on to state that the additional ratings are to be “combined” with the DRE rating. There was no dispute between the parties that the reference to the ratings being “combined” is a direction to use the Combined Values Chart in AMA5. It was not suggested by the first defendant that the language of paragraph 4.37 means that the two modifiers in Table 4.2 are combined by simple addition (that is, 12% plus 3% plus 2% is 17%). However, the fact that paragraph 4.37 of the Guidelines requires the Combined Values Chart in AMA5 to be used does not of itself answer the question of how the two ratings in Table 4.2 are to be combined with the plaintiff’s initial 12% WPI to arrive at her final WPI.

67. The contentious part of paragraph 4.37 concerns the calculation of WPI for persisting radiculopathy. The paragraph sets out three steps. There is no dispute as to the first two of these three steps, which involved selecting the appropriate DRE category from Table 15-3 (10%) and then allowing for the impact of ADL (another 2% resulting in a WPI of 12%). It is the third of the three steps that allows for competing interpretations. It is in these terms:

“Combine this value [12%] “with the appropriate additional amount from Table 4.2 to determine the final WPI.”            

[emphasis added]

68. Had the plaintiff had only one operation, this third step would have been clear, in that the “appropriate additional amount” would be 3%. The WPI of 12% would then have been combined, using the Combined Values Table in AMA5, with the 3% modifier for a first operation. The third defendant stated in his reasons that the reference in the third step to combining the “appropriate additional amount” envisages a single amount being combined with the existing WPI. I am not satisfied that error is disclosed in that interpretation of what is contemplated by the third step. The words “appropriate additional amount” clearly envisage one amount being arrived at after regard is has to Table 4.2 and the relevant moderators identified in that table.

69. I have had regard to the plaintiff’s argument that, consistent with the principle of construction in s 8 of the Interpretation Act, the words “additional rating” should also be read to include a reference to the plural, namely, “additional ratings”. That principle only apples unless a contrary intention can be shown. In any event, even if the phrase is read in the plural as “appropriate additional amounts”, that still falls short of requiring that a multiple step process be adopted for combining the amounts provided for persisting radiculopathy. The use of the words “appropriate additional amount” describes the figure that is to be combined. If it had been intended that a two-step process would be undertaken at that stage, it would have been described in those terms. It is giving the words “appropriate additional amount” a great deal of work to do to suggest that they imply that a multiple-step process be undertaken.

70. I have had regard to the plaintiff’s reliance on paragraph 1.18 of the Guidelines. Paragraph 1.18 pertains to a situation in which a worker has “multiple impairments”, such as both to the arm and the leg. The instruction in paragraph 1.18 is: “When combining more than two impairments the assessor should commence with the highest impairment and combine with the next highest and so on.” The difficulty with this argument is that it requires each of the modifiers in Table 4.2 to be viewed as a separate “impairment”. The plaintiff’s entitlement to have her WPI assessment increased under paragraph 4.37 is based upon the fact that she has one additional impairment, being persisting radiculopathy. The value attributed to that impairment is increased as the worker undergoes more surgeries, but it is still the same single impairment. I am not persuaded that the separate ratings in Table 4.2 equate to separate impairments.

71. It is to be noted that, not only is each “impairment” dealt with separately in paragraph 1.18 of the Guidelines, but p 10 of AMA5 (extracted above at [28]) further provides that, “In general, impairment ratings within the same region are combined before combining the regional impairment rating with that from another region” (emphasis added). By way of example, it is explained that if there are multiple impairments in the same region of the body those impairments are first combined together and then combined with impairments from other regions. This is the description of the way in which the Combined Values Chart is to be used when combining different impairments in the same part of the body. It provides some further textual support for the methodology that the AMS adopted in this matter.

72. The first defendant’s argument as to why paragraph 1.18 did not apply is that it is a general provision in the introduction to the Guidelines, whereas paragraph 4.37 is a specific provision dealing with a particular issue. Accordingly, paragraph 1.18 is to be read subject to paragraph 4.37. As a matter of general principle this is correct, but it assumes that the two provisions are dealing with the same subject matter; namely, multiple impairments. I am not satisfied that that is the case. Similarly, the plaintiff’s reliance upon the fact that paragraph 4.37 does not expressly exclude the methodology for which paragraph 1.18 provides (whereas paragraph 1.19 does) is misplaced, as paragraph 4.37 is not concerned with multiple impairments.

73. It is relevant to have regard to the fact that the purpose of the creation of the Combined Values Chart is to avoid a situation whereby an injured worker who has multiple impairments is assessed at a WPI of over 100%. That is why the process described at paragraph 1.4 of AMA5 and paragraph 1.18 of the Guidelines is necessary. Such a process is not necessary to avoid a person arriving at a WPI of over 100% by adding the small modifiers in Table 4.2.

74. For these reasons, I am not satisfied that either jurisdictional error or error on the face of the record is disclosed in this matter.

75. I have reached this conclusion without any reference to the document published on 24 January 2017, upon which the first defendant relies, setting out SIRA’s description of the proper methodology to be adopted in applying paragraph 4.37. That document was published after these proceedings were commenced and a hearing date was fixed. There are thus two significant difficulties in the first defendant’s reliance upon it here. First, it was not in existence at the time of the relevant decision. Second, it does not form part of the Guidelines in any event. For that document to have had any significance, it would need to have been formally incorporated into the Guidelines at paragraph 4.37 as at the time of the decision of the third defendant.

76. Finally, I note that, in reaching the conclusion that I have, I have proceeded upon the basis that the workers compensation legislation is remedial in character: see for example ADCO Constructions Pty Ltd v Goudappel at [29]. The plaintiff’s argument proceeded upon the basis that I was thus required to construe paragraph 4.37 beneficially. I accept that the legislation and paragraph 4.37 in particular are beneficial in nature. There was no dispute as between the parties that the purpose of paragraph 4.37 of the Guidelines is to extend a benefit to workers with spinal impairments who have had surgery beyond that for which AMA5 provides. The plaintiff would have been assessed as having a lower WPI but for the operation of paragraph 4.37 of the Guidelines.

77. The principle that beneficial legislation is to be construed beneficially is well established. The principle is stated, for example, by Deane and Gaudron JJ in Bird v Commonwealth (“The Maralinga Case”) (1988) 165 CLR 1; [1988] HCA 23 at 5. However, the fact that a provision is beneficial in nature is only relevant if there is more than one interpretation of the relevant provision available. In circumstances where I am satisfied that the text in paragraph 4.37 allows for only one outcome, I must construe the provision accordingly, whether or not it favours the plaintiff.

78. The plaintiff’s summons should be dismissed.

oRders

79. I make the following orders:

1. Dismiss the plaintiff’s summons.

2. The plaintiff is to pay the first defendant’s costs.

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Decision last updated: 07 April 2017