Sandra Joan Boulding v Warrigal Care Limited & Ors

[2006] NSWSC 904

CITATION:	Sandra Joan Boulding v Warrigal Care Limited & Ors [2006] NSWSC 904 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 September 2006
JUDGMENT DATE :	11 September 2006
JURISDICTION:	Common Law Division - Administrative Law List
JUDGMENT OF:	Associate Justice Malpass
DECISION:	Summons dismissed. Plaintiff to pay costs of the proceedings.
CATCHWORDS:	Judicial review of appeal panel determination - construction of WorkCover guides - Clause 4.30 and Table 4.4
LEGISLATION CITED:	Workplace Injury Management and Workers Compensation (Act) 1998; Supreme Court Act 1970 s. 69
PARTIES:	Sandra Joan Boulding (Plaintiff) Warrigal Care Limited (First Defendant) Workers Compensation Commission (Second Defendant)
FILE NUMBER(S):	SC 30078/06
COUNSEL:	A. R.Cooley (Plaintiff T. M. Wardell( First Defendant)
SOLICITORS:	Bussoletti Lawyers , Wollongong (Plaintiff) Edwards, Michael Maroney, Solicitors (First Defendant) I.V. Knight, Crown Solicitor (Second Defendant)
LOWER COURT JURISDICTION:	Workers Compensation Commission
LOWER COURT FILE NUMBER(S):	WCC 18414-04
LOWER COURT JUDICIAL OFFICER :	Appeal Panel
LOWER COURT DATE OF DECISION:	16 May 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Sandra John Boulding v Warrigal Care Limited & Ors.

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

Associate Justice Malpass

11 September 2006

30078 of 06 Sandra Joan BOULDING v WARRIGAL CARE LIMITED

JUDGMENT

1 The plaintiff was employed as a nursing assistant. On 16 December 2002, she suffered back injury whilst assisting a patient.

2 The degree of the plaintiff’s permanent impairment as a result of the injury came to be assessed by an approved medical specialist (Dr Beer). The material placed before him included a report prepared by Dr Searle on behalf of the plaintiff. Dr Beer gave a certificate which assessed her whole personal impairment at 17%.

3 What is expressed to be an “appeal” was made by application to the Registrar. The appeal proceeded and there was a review by an appeal panel. The appeal panel revoked the earlier certificate. It issued a new certificate which gave an impairment assessment of 14%.

4 The Workplace Injury Management and Workers Compensation (Act) 1998 (NSW) does not contain any provision enabling a challenge to such a certificate. The plaintiff seeks relief pursuant to s.69 of the Supreme Court Act 1970 (NSW). It is contended that there has been error of law that appears on the face of the record of the proceedings. Section 69 provides a discretionary remedy.

5 For present purposes, there is no dispute that s.69 provides an avenue of challenge that is available to the plaintiff and that the certificate forms part of the record. At this stage, I should briefly mention certain other matters that were pertinent to these proceedings.

6 The plaintiff had undergone surgery on 27 June 2003. It was performed by Dr Dan. What was done is described in his report dated 30 June 2003 (exhibit A). The surgery affected two levels (L 4/5 and L5/S1). Two discs were excised.

7 The Act contains provisions concerning the matter of WorkCover guidelines (see inter alia Ss. 331,376 & 377). The WorkCover Authority of NSW has issued guidelines with respect to the assessment of the degree of permanent impairment of an injured worker as a result of an injury (“WorkCover Guides”). A copy of the relevant guide is in evidence. There is no dispute as to its application and content.

8 The copy contains provisions that describe, inter alia, how it came into being and its purpose (see, inter alia, the Foreword, the Introduction and what appears under the heading “Development of the WorkCover Guides”).

9 The contents comprise, inter alia, 16 numbered parts. Part 4 thereof deals with the spine (excluding spinal cord injury). It makes AMA5 chapter 15 applicable to the assessment of permanent impairment of the spine, subject to the modifications set forth therein. It contains a summary table (table 4.1). It also contains the following provisions:-

4.30 Effect of surgery: Tables 15-3, 15-4 and 15-5 (AMA5, pp384, 389 and 392), do not adequately account for the effect of surgery upon the impairment rating for certain disorders of the spine.
* Operations where the radiculopathy has resolved are considered under the DRE category III (AMA5, Tables 15-3, 15-4, 15-5);
* Operations with surgical ankylosis (fusion) are considered under DRE category IV (AMA5, Tables 15-3, 15-4, 15-5).
Table 4.4 indicates the additional ratings that should be combined with the rating determined using the DRE method where an operation for an intervertebral disc prolapse or spinal stenosis has been performed and where there is a residual radiculopathy following surgery.

Table 4.4: Modifiers for DRE categories where radiculopathy resists after surgery

Procedures	Cervical	Thoracic	Lumbar
Discectomy, or single-level decompression with residual signs and symptoms	3%	2%	3%
Multiple levels, operated on, with medically documented pain and rigidity	1% each level	1% each level	1% each level
Second operation	2%	2%	2%
Third and subsequent operations	1%	1%	1%

10 These provisions were regarded as being the material ones. For completeness, I should mention that clause 4.28 deals with “Multilevel structural compromise.” This term is said to imply fractures and/or dislocations at more than one spinal level.

11 I should digress to observe that little argument was directed to the question of the approach to be taken by the Court in addressing the task of construction. The view was taken that this case would be decided without dealing with that question and it is one better left for another day.

12 The certificate given by the appeal panel contains the following:-

"32. Error #2 – Incorrect application of 4.4. of the WorkCover Guidelines for Evaluation of Permanent Impairment.
33. Paragraph 4.30 of the WorkCover guides states that Table 4.4. indicates the additional ratings which should be combined with the rating determined using the DRE method where an operation for an [interveterbral (sic) disc prolapse] or spinal stenosis has been performed and where there is a residual radiculopathy following surgery.
34. Having found residual radiculopathy and applying a 3% modifier pursuant to Table 4.4 the AMS allowed an additional 2% WPI for a second operation pursuant to Table 4.4. The AMS provides little guidance as to his conclusion that a second operation has been carried out. The Panel does not accept the contention of the Respondent relating to Error #2 to the effect that because the double level laminectomy performed by Dr Dan on 23 June 2003 involved two discs, L4/5 and L5/S1, that the procedure involving the lumbosacral disc constitutes a “second operation” within the meaning or intent of Table 4.4. Two adjacent discs have undergone one procedure on the same day pursuant to the one anaesthesia. In the circumstances of this matter and for the purposes of considering the application of Tabel 4.4 modifiers the panel is satisfied that a second operation has not taken place.
35. In the alternative the Respondent asserts that an amount of 1% WPI ought to be allowed for each spinal level operated upon and as two levels were operated upon the correct assessment ought to be 2% (1% for each level) plus the 3% relating to the diskectomy(sic) to give a total of 5%. The Appellant asserts that the correct assessment pursuant to Table 4.4 is an allowance of 3% for diskectomy(sic), or single level decompression with residual signs and symptoms for the lumbar spine and an additional 1% for the other level operated upon giving a total applicable modifier of 4% pursuant to Table 4.4. It is noted that Dr Searle also appears to adopt this methodology to arrive at an assessment of 4%. It appears the AMS does not specifically express an opinion concerning this aspect of Table 4.4. in the MAC.
36. The panel notes that the wording provided in Tabe 4.4 is somewhat unclear however is of the view that, when considered in conjunction with the wording of paragraph 4.30, the interpretation proffered by the Appellant and recorded by Dr Searle is correct and that in this matter 4% is the appropriate assessment of the modifiers when applying Table 4.4.
37. Accordingly the panel is of the view that the AMS was incorrect in assessing a total modifier of 5% through application of the Table 4.4 and in this respect the MAC contains a demonstrable error."

13 The error alleged by the plaintiff is said to concern the construction given by the appeal panel of provisions of Table 4.4. Broadly speaking, two arguments are advanced on her behalf. They are put in the alternative. One argument is that the appeal panel erred in not allowing 2% for a second operation. The other argument is that it erred in not allowing 1% for each of the two levels operated on by Dr Dan (in addition to the 3% for discectomy or single-level decompression).

14 The first of the two arguments was not the subject of forceful presentation. Indeed, it seems to me to be an untenable submission which concerned a question of fact. The second of the two arguments was the one really relied on by the plaintiff. Whilst the relevant provisions are not without at least superficial ambiguity, I am not satisfied that the appeal panel erred in the application of those provisions.

15 The purpose of Clause 4.30 is to address the perceived inadequacy of AMA5 provisions (in respect of the effect of surgery). The function of Table 4.4. is expressed to indicate the additional ratings which should be combined with the rating determined using the DRE method. The threshold requirement for the application of table 4.4 is expressed to be where an operation for an intervertebral disc prolapse or spinal stenosis has been performed and where there is a residual radiculopathy following surgery.

16 In this case, it is common ground that there has been an operation for an intervertebral disc prolapse and that there is a residual radiculopathy following such surgery. Accordingly, the threshold requirement has been met and the table has application.

17 The intention appears to be that the table provides “modifiers” for DRE categories in respect of the procedures enumerated therein. Where any of these procedures have been performed the additional ratings specified therein are to be applied in the assessment of the permanent impairment of the spine.

18 The surgery performed on the plaintiff involved two spinal levels and the excision of two discs. Accordingly, she had undergone a “Discectomy or single-level decompression” and had been operated on at “multiple levels”. There was no second, third or subsequent operation. In my view, it was intended that in these circumstances she be given the additional 3% rating together with a further additional rating of 1% because the surgery encompassed a second level.

19 The First Defendant has also argued that for discretionary considerations, the court should not intervene in questions involving the construction of the guide. It is said that this is a matter which Parliament has intended to be left to the medical specialists. Whilst such an approach may not be without its attraction, in the circumstances of this case, it is unnecessary to further consider it.

20 The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The exhibit may be returned.

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