Siddik v Workcover Authority of NSW - [2008] NSWCA 116

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Siddik v WorkCover Authority of NSW [2008] NSWCA 116

HEARING DATE(S): 7 February 2008

JUDGMENT DATE:
30 May 2008

JUDGMENT OF: Mason P at 1; Giles JA at 2; McColl JA at 15

DECISION: 1. Grant leave to appeal. 2. Notice of appeal to be filed within 7 days. 3. Appeal allowed. 4. Judgment and orders of his Honour, Associate Justice Malpass set aside and in lieu thereof: (i) quash the decision of the Third Respondent, dated 27 March 2006; (ii) remit the matter to the Appeal Panel to be dealt with according to law. 5. First respondent to pay the appellant’s costs of the appeal and of the hearing before Associate Justice Malpass. 6. Save as to order 5, no order as to costs.

CATCHWORDS: WORKERS COMPENSATION — claim for workers compensation — dispute about level of permanent impairment — injured worker referred for assessment by approved medical specialist — medical assessment certificate issued — Registrar permitted challenge to certificate to proceed to an Appeal Panel on specified grounds — Appeal Panel determined appeal on grounds not raised by either party — Nature and scope of appeal by way of review — Workplace Injury Management and Workers Compensation Act 1998, s 328 - ADMINISTRATIVE LAW – statutory review — procedural fairness — whether Appeal Panel obliged to inform parties if proposed to determine appeal on new grounds

LEGISLATION CITED: Compensation Court Act 1984
Racing Appeals Tribunal Act 1983
Supreme Court Act 1970
Workers Compensation Act 1987
Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005
Workplace Injury Management and Workers Compensation Act 1998
Conciliation and Arbitration Act 1904 (Cth)
WorkCover Medical Assessment Guidelines

CATEGORY: Principal judgment

CASES CITED: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Attorney-General v Sillem (1864) 10 HL Cas 704; 11 ER 1200
Australian Gas Light Company v Samuels (1993) 9 NSWCCR 616
Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580
Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616
Campbelltown City Council v Vegan [2004] NSWSC 1129
Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372
CDJ v VAJ (No 1) [1998] HCA 67; (1998) 197 CLR 172
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Crampton v R [2000] HCA 60; (2000) 206 CLR 161
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 244 ALR 257
Estate of Heinrich Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235
Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283
Horne v Locke [1978] 2 NSWLR 88
Kalil v Bray [1977] 1 NSWLR 256
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287
Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88
New South Wales Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; (2003) 56 NSWLR 691
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476
Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267
Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales [2007] NSWCA 149; (2007) 4 DDCR 607
Siddik v WorkCover Authority of New South Wales [2007] NSWSC 129
State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249
Strange-Muir v Corrective Services Commission (NSW) (1986) 5 NSWLR 234
The Commonwealth of Australia v Bank of New South Wales [1950] AC 235
Tomko v Palasty (No. 2) [2007] NSWCA 369
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190

TEXTS CITED: AMA Guides to the Evaluation of Permanent Impairment, 5th edition

PARTIES: Hussein Hussein Siddik - Appellant
WorkCover Authority of NSW - First respondent
Registrar of the Workers' Compensation Commission - Second respondent
Appeal Panel - Third respondent

FILE NUMBER(S): CA 40528 of 2007

COUNSEL: Mr C D Jackson - Appellant
Mr S B Marsh - Respondent

SOLICITORS: M. D. Di Re -Appellant
DLA Phillips Fox - First Respondent
I V Knight, Crown Solicitor - Second and Third Respondents - submitting appearances

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 30057 of 2006

LOWER COURT JUDICIAL OFFICER: Malpass AsJ

LOWER COURT DATE OF DECISION: 1 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 129

CA 40528 of 2007
DC 30057 of 2006

MASON P
GILES JA
McCOLL JA
30 May 2008

Hussein Hussein Siddik v WorkCover Authority of New South Wales & 2 Ors

The appellant, who was employed as a painter, suffered an injury to, inter alia, his neck when he fell off a ladder. His employer was uninsured. He made a claim for workers compensation against the WorkCover Authority of New South Wales (“WorkCover”) as administrator of the Uninsured Liability and Indemnity Scheme. WorkCover accepted liability. There was a dispute between the parties as to the level of the appellant’s permanent impairment. WorkCover lodged an Application to Resolve a Dispute in the Workers Compensation Commission which led to the appellant being assessed by an Approved Medical Specialist (“AMS”) under s 325 of the Workplace Injury Management and Workers Compensation Act 1998 (the “Workplace Injury Act”). The AMS issued a Medical Assessment Certificate (“MAC”) assessing, inter alia, 5 per cent permanent impairment in respect of the appellant’s neck injury. The Registrar of the Commission permitted WorkCover to appeal against the medical assessment on two grounds. An Appeal Panel constituted under s 328 of the Workplace Injury Act heard the appeal. It rejected both grounds of appeal relied upon by WorkCover, but revoked the MAC because it concluded, by reference to the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition (“AMA 5”), that it was based on incorrect criteria. It did not inform the parties prior to its decision of its intention to revoke the MAC upon a ground which differed from those relied upon by WorkCover. The appellant challenged the decision of the Appeal Panel. An Associate Judge dismissed his challenge. He sought leave to appeal from that decision. Two issues arose:

Held, giving leave and allowing the appeal, in relation to (a):

per McColl JA (Mason P agreeing)

1 Neither the expression “appeal” or “review” has a settled meaning. Their meaning depends on the context in which they are used as well as relevant legislative history.

Dwyer v Calco Timbers Pty Ltd

Brandy v Human Rights & Equal Opportunity Commission

2 Prescriptive labels should not be applied to a s 328 appeal by way of review;

s 328 should be seen to have created a flexible model for an appeal which may, depending on the circumstances, involve either a hearing de novo or an appeal by way of rehearing (at [1], [100] – [101]

Campbelltown City Council v Vegan

Aluminium Louvres & Ceilings Pty Limited v Zheng

State Transit Authority of New South Wales v Fritzi Chemler

Marina Pitsonis v Registrar of the Workers Compensation Commission

3 Prima facie, the Appeal Panel is confined to the grounds of appeal the Registrar has permitted to proceed, however it can consider other grounds which fall within one of the s 327(3) grounds of appeal if it complies with the requirements of procedural fairness: (at [1], [101]).

Kioa v West

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

4 History of powers of review in workers compensation legislation considered.

Watson v Hanimex Colour Services Pty Ltd

Boston Clothing Co Pty Ltd v Margaronis

Australian Gas Light Company v Samuels

Litynski v Albion Steel Pty Ltd

per Giles JA:

5 The Appeal Panel's powers of review of an assessment on a permitted ground for appeal are not confined to the ground stated by the appealing party.

per McColl JA (Mason P agreeing, Giles JA not deciding)

6 The Appeal Panel appeared to have treated AMA 5 as laying down a prescriptive approach, whereas it used language of illustration. It was not open to the primary judge to make his own finding that the MAC fell short of AMA 5 (at [114] – [115]).

Attorney-General (NSW) v Quin

(2) Notice of appeal to be filed within 7 days.

(3) Appeal allowed.

(4) Judgment and orders of his Honour, Associate Justice Malpass set aside and in lieu thereof:

(ii) remit the matter to the Appeal Panel to be dealt with according to law.

(6) Save as to order 5, no order as to costs.

**********

CA 40528/07
SC 30057/06

MASON P
GILES JA
McCOLL JA

Friday 30 May 2008

Siddik v WorkCover Authority of New South Wales & 2 Ors

Judgment

1 MASON P: I agree with McColl JA.

2 GILES JA: In explaining why I agree with the orders proposed by McColl JA, I assume familiarity with her Honour’s reasons.

3 By s 327(1) of the Workplace Injury Act the first respondent could appeal to the Appeal Panel “only on the grounds for appeal under this section”. The grounds for appeal under the section were, by s 327(3), “any of the following grounds”, with the grounds set out in paras (a) to (d).

4 The first respondent appealed to the Appeal Panel purportedly on the grounds for appeal in s 327(3)(b), (c) and (d). In its “statement setting out all grounds for appeal” it said -

(i) that fresh evidence was available, being a report of Dr Colin Davis (para (a));

(ii) that the assessment of the AMS was based on incorrect criteria and contained a demonstrable error, in that the AMS had not taken into account all the evidence filed by the parties (paras (c) and (d)); and

5 The Appeal Panel did not accept any of the grounds for appeal as given content in the first respondent’s statement of the grounds. It did, however, find that the assessment of the AMS was based on incorrect criteria in that the AMS had misapplied the criteria in the AMA 5 guidelines.

6 The question for this Court is not answered, it seems to me, by analysis of the nature of the appeal to the Appeal Panel as an appeal strictly so-called, an appeal by way of rehearing or a hearing de novo. The Appeal Panel did not purport to conduct a rehearing regardless of error, but found error in what the AMS had done. It did not purport to act on material additional to that before the AMS, or to consider circumstances or law other than as at the time the AMS made his assessment. The question for this Court arises from s 327. In the “appeal … by way of review of the original medical assessment”, these words being found in s 328(2), could the Appeal Panel act upon the ground for appeal in s 327(3)(c) by finding that the assessment was made on the basis of incorrect criteria in a respect other than as had been stated by the first respondent?

7 I respectfully agree with McColl JA that the nature of the appeal by way of review is to be found in the terms of the Workplace Injury Act. Such an appeal plainly empowered the Appeal Panel, in reviewing the original medical certificate, to find that the assessment was made on the basis of incorrect criteria, and to revoke the certificate and issue a new certificate “as to the matters concerned” (s 328(5)). This the Appeal Panel did; but were its powers confined to the complaint of assessment on the basis of incorrect criteria as stated in the first respondent’s statement of the ground for appeal?

8 The so-called “gateway” in s 327(4) did not relevantly confine the Appeal Panel’s powers. The first respondent’s appeal had been made by application to the Registrar, and the Registrar had been satisfied that at least one of the grounds for appeal specified in s 327(3) existed. That was past history, and the prohibition on the appeal proceeding in s 327(4) did not apply. The question is what the Appeal Panel could then do.

9 For a number of reasons, I do not think that as a matter of its powers the Appeal Panel was confined to the ground of appeal as stated in the first respondent’s statement of the grounds.

· While essentially neutral on the question, the description of the appeal as “by way of review of the original medical certificate”, did not suggest a narrow power of review.

· As McColl JA has explained, resolution of medical disputes by the system of assessments with provision for appeals is integral to the Commission’s determinations, and can significantly affect common law remedies. While subject to s 327, the importance of the MACs also does not indicate a narrow power of review.

· Accepting that s 327 is intended to reduce the opportunity to contest an AMS’s assessment, once an appeal is proceeding on a ground for appeal under the section the Appeal Panel with its special expertise should not be hamstrung if it emerges that the ground for appeal has poorly stated or misstated by the party appealing, nor would it be just that an assessment of impairment open to appeal on a ground for appeal under s 327 had to be left intact for that reason.

· Once an appeal is proceeding, it is difficult to see why the deterioration in the worker’s condition (s 327(3)(a)) to which the Appeal Panel pays regard should be limited to that stated in the application to the Registrar, when there may have been further deterioration by the time the Appeal Panel conducts its review. Similarly, further additional relevant information (s 327(3)(b)) may become available. If the Appeal Panel is not tied on these grounds for appeal to what was stated in the appealing party’s grounds for appeal, it should not be tied to what was stated in the appealing party’s grounds for appeal on the other permissible grounds for appeal.

10 These are similar to reasons given by McColl JA in coming to her Honour’s conclusion. In my opinion, there was no want of power in the Appeal Panel finding that the assessment of the AMS was based on incorrect criteria in that the AMS had misapplied the criteria in the AMA5 guidelines.

11 The problem in what occurred was not want of power, but that the Appeal Panel so found without notice to the appellant, or the first respondent, that it had taken under consideration this different error in assessment on the basis of incorrect criteria.

12 It is self-evident that the Appeal Panel was obliged to afford procedural fairness to the appellant in this respect, and if support for that be needed it can be seen in s 328(4) in relation to presentation by a worker of his or her case in the Appeal Panel. Presentation of a case includes knowing what the worker must answer. There was a denial of procedural fairness to the appellant. For that reason, its decision can be quashed: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476. There is no discretionary reason why it should not be quashed.

13 The extent of the Appeal Panel’s powers of review was not relied on in argument before Malpass AsJ, and in this Court the associated matter of procedural fairness arose only in the course of submissions. The first respondent did not oppose reliance on these matters in this Court.

14 I concur with the orders proposed by McColl JA.

15 McCOLL JA: This is an application for leave to appeal heard concurrently with the appeal. The appellant, Hussein Siddik, seeks to challenge the decision of Malpass AsJ dismissing his application for judicial review pursuant to s 69 of the Supreme Court Act 1970 of the decision of an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (the “Workplace Injury Act”): Siddik v WorkCover Authority of New South Wales [2007] NSWSC 129. The Registrar of the Workers Compensation Commission and the relevant Appeal Panel were joined as parties and submitted to such orders as the Court may make save as to costs.

16 The case raises important issues concerning the nature of appeals in respect of medical assessments pursuant to Part 7 of the Workplace Injury Act which, in my view, warrant leave to appeal being granted. I shall refer to the parties as the appellant and the first respondent respectively.

Statement of the case

17 The appellant was employed as a painter by Australia’s Architectural Coatings Pty Ltd (“ACC”). He was injured on 20 September 2002 when the ladder from which he was painting a wall started to fall, he jumped from it as it was falling and landed on his left ankle and right foot on the concrete floor. The ladder struck him across his right shoulder and neck.

18 ACC was uninsured. The appellant made a claim for compensation from the respondent, the WorkCover Authority of New South Wales, which administers the Uninsured Liability and Indemnity Scheme for persons whose employers are, inter alia, uninsured: see Div 6, Pt 4 of the Workers Compensation Act 1987 (the “1987 Act”).

19 The first respondent accepted liability and paid weekly benefits. However the parties were unable to agree on the level of the appellant’s permanent impairment. The appellant’s doctor, Dr R J Deveridge assessed his whole person impairment at 14 per cent, while the first respondent’s assessed it at 1 per cent. Accordingly, on 24 November 2004, the first respondent lodged an Application to Resolve a Dispute in the Workers Compensation Commission in respect of that issue.

20 The application was referred to Dr Bosanquet, an Approved Medical Specialist (“AMS”), pursuant to s 325 of the Workplace Injury Act. Dr Bosanquet examined the appellant on 29 April 2005. On 2 June 2005 he issued a medical assessment certificate (“MAC”) which relevantly stated:

“ Present symptoms:
Current symptoms include pain in his neck and restricted movement. He feels he has restricted movement in his right shoulder. He has swelling in his right foot and numbness in his left leg.

His sleep is disturbed.

Most of his pain is in his neck and right shoulder and he does not have any painfree days.

He gets pain in his left knee when kneeling and squatting though the knee does not give-way.

…

Findings on physical examination

Cervical Spine: He was tender in the right trapezius muscle. He had 75% of flexion and extension and 50% of rotation and lateral bending bilaterally. Reflexes were brisk and there was no motor deficit.

…

Summary of injuries and diagnoses:

…

The diagnosis is one of healing fractures in his right foot and left knee and a soft tissue injury to his cervical spine.

My brief comments on consistency of presentation and relationship between the lesion or lesions diagnoses and the incidents or incidents described are:

Mr Siddik gave a clear history of the injury. I felt there was an exaggerated response to examination, particularly of his right shoulder, where he tended to resist movement, which was otherwise full.

…

9. Below are my reasons for:-

a. My opinion and assessment of whole person impairment,
I have assessed Mr Siddik as having a total WPI of 10%. This is using the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition.
As he has had an injury to his neck and some restriction of movement I have put him into DRE Cervical Category II, 5 to 8%, and allotted the lower amount because his activities of daily living are not significantly restricted due to this.
Because he has a full range of movement in his right shoulder (albeit resisted) I have not given him any whole person impairment for his right shoulder.
Likewise, there is no abnormality in his thoracic spine to allot any permanent impairment.
Although he has few symptoms in his right foot he has had an intra-articular minimally displaced fracture and using AMA Guides (page 546, Table 17-33) this converts to a 3% whole person impairment.
The same applies to his left knee (page 546, Table 17-33). With a condylar fracture in his knee undisplaced this is a 2% impairment.
Combining the various impairments gives a total of 10% WPI.”

21 The first respondent appealed against the medical assessment on two grounds. First, it alleged that there was additional relevant information that was not available to it, or which could not have reasonably been obtained, before the medical assessment. It relied on a medical report by Dr Davis, prepared after Dr Bosanquet’s assessment, to assess the appellant’s capacity for employment after the expiration of benefits he had been receiving pursuant to s 38 of the 1987 Act. Secondly, the first respondent contended that Dr Bosanquet’s assessment was based on incorrect criteria and that the assessment contained a demonstrable error. It asserted that it was unclear from the MAC whether Dr Bosanquet had taken into account specialist and medical reports, and various other documents which formed part of its Application to Resolve a Dispute and other documents it had lodged with the Worker’s Compensation Commission under cover of a letter dated 15 February 2005. It asserted that if there had been a failure to take all the evidence into account, there must be a new assessment. This appears to have constituted its demonstrable error ground, although it also asserted that if the assessment was made without regard to this material it was made on the basis of incorrect criteria. It also complained that the date of injury had been incorrectly recorded as 21 and not 20 September 2002. In his reply the appellant stated he was uncertain what medical reports were before Dr Bosanquet at the time of his assessment and suggested the Registrar should “ascertain whether or not the AMS had all the medical reports before him and therefore proceeded according to the rules”.

22 The first respondent suggested the appeal could be determined on the papers “provided the Appeal Panel considers this suitable and provided all the material noted above is taken into consideration”. The appellant also accepted the appeal could be dealt with on the papers.

23 The Registrar permitted the appeal to proceed to an Appeal Panel on both bases relied upon by the first respondent: see s 327(4), Workplace Injury Act. The Appeal Panel was constituted to include at least one AMS with the same speciality as Dr Bosanquet. The notice to the parties advising them of the referral stated:

“Should the Appeal Panel require the worker to be re-examined by the Appeal panel, or set the matter down for hearing, separate advice in relation to this will be issued.”

24 The Appeal Panel directed itself that its task was “to conduct a review of the Approved Medical Specialist’s assessment”. It referred to Wood CJ at CL’s decision in Campbelltown City Council v Vegan [2004] NSWSC 1129 and stated:

“25 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.

26 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 impairment and loss suffered by the Appellant [sic, Mr Siddik, being the respondent to the appeal].”

25 The Appeal Panel rejected both of the first respondent’s grounds of appeal. It refused to admit Dr Davis’s report because it was not persuaded that the information was either not available or could not have been obtained prior to Dr Bosanquet’s assessment. It was also satisfied that Dr Bosanquet had properly considered the history provided and the medical reports which accompanied the Application and the Reply. It rejected the complaint about the date of injury as a typographical error with no bearing on the integrity of the MAC.

26 However, it determined that Dr Bosanquet’s decision about the appellant’s cervical spine was based on incorrect criteria for the following reasons:

“32 In considering the MAC the Panel observed that the AMS categorised the injury to the Respondent’s cervical spine as DRE Cervical Category II and allocated 5% whole person impairment in this regard.

33. The Panel confirmed the requirement for this category according to the AMA 5th edition is for a clinical finding of non-specific radiculopathy or an asymmetrical range of movement.

some restriction of movement

35 The Panel finds the history, symptoms and investigations to demonstrate a category of DRE I as provided at table 15.4** page 389 of the AMA 5th edition. In this regard the Panel has determined to revoke the MAC and issue a new MAC.”

27 Attached to the Appeal Panel’s reasons was a table in all respects substantially the same as that issued by Dr Bosanquet, save that in the columns dealing with impairment of the neck, the figure “5%” had been replaced by “0%”.

Challenge to the Appeal Panel’s decision

28 The appellant challenged the Appeal Panel’s decision in the Supreme Court of New South Wales. He relied on the Court’s power to grant certiorari for an error of law on the face of the record: s 69, Supreme Court Act.

29 The matter came before Malpass AsJ who described the appellant’s submissions as follows:

include’

14. Section 328 mandates that the assessment be made in accordance with the WorkCover Guidelines. The Guide has not been followed, the error appears on the face of the record (which extends to the reasons), and it is thus reviewable pursuant to section 69(3) of the Supreme Court Act.

15. It also represents a failure to comply with a procedure mandated by the Act, it is thus invalid, and may be quashed for jurisdictional error (SAAP v MIMIA (2005) 205 ALR 162).’” (emphasis in original)

30 His Honour dismissed the proceedings stating:

“8 In my view, the plaintiff has failed to make out this challenge. I consider that it is misconceived and does not come to terms with what was done by the Appeal Panel.

9 The substance of the view taken by the Appeal Panel of the original medical assessment was that of lack of findings by Dr Bosanquet and of assessment by him using incorrect criteria. Further, I do not understand it as being one of taking an ‘exhaustive list’ construction as contended by the plaintiff.

10 The Guidelines have a propensity to throw up problems of construction (some of which may be regarded as being difficult) …

11 In the present case, whilst the relevant provisions may have been capable of more felicitous expression, the intention seems to be reasonably clear.

12 I consider that those provisions have application only where there is clinical history and examination findings, which are comparable with a specific injury. This opening expression of criteria is then followed by a non-exhaustive definition of ‘findings’ (‘findings may include’).

31 His Honour described (at [15]) the thrust of the appellant’s complaint that s 328 of the Workplace Injury Act had not been complied with as a complaint that the Appeal Panel should have “embarked upon a hearing”. He rejected that argument for two reasons. First, the parties had consented to the appeal being dealt with on the papers. Secondly, he noted (at [17]) that “the argument was put to Studdert J in Estate of Heinrich Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 and rejected by him (see paragraphs 57 and 58 of the judgment)” and (at [18]) he was “not persuaded that His Honour erred in rejecting the argument”. In his view (at [19]) s 328 did not stipulate a hearing of an appeal such as could be expected to take place in a court of law.

Grounds of Appeal

32 The appellant relies on two grounds of appeal. He contends the primary judge ought to have found that the Appeal Panel erred in law and thus in the exercise of its jurisdiction in conducting a full review after rejecting the errors the subject of the Registrar’s grant of leave. He also complains that the primary judge erred in holding that the Appeal Panel applied the WorkCover Guides for the Evaluation of Permanent Impairment (1st ed, June 2002) (the “WorkCover Guides”). He contends that the primary judge ought to have found that the Appeal Panel erred in applying table 15-5 as if it were prescriptive, rather than illustrative, of matters which had to be found to bring an injury within that category. A third ground of appeal, that the primary judge erred in failing to find that s 328 mandated an oral hearing and that the Appeal Panel had erred in failing to conduct such a hearing, was abandoned.

33 The appellant conceded that the argument going to the extent of the review the Appeal Panel could conduct was not pressed before the primary judge although it was pleaded in the Summons. He sought leave to rely on it in this Court on the basis that it raised a point of statutory construction. The first respondent did not oppose that course.

Submissions

34 The rival contentions can be shortly stated. Mr C Jackson, who appeared for the appellant, submitted that the Appeal Panel was limited to the correction of the errors the subject of the Registrar’s grant of leave. He contended that, in failing to so limit its review and finding its own error, the Appeal Panel erred in law and exceeded its jurisdiction. He submitted that once the Registrar let the “sheep” through the gate permitted by s 327(3) of the Workplace Injury Act, the Appeal Panel could only “shear” those “sheep”.

35 Mr S B Marsh, who appeared for the first respondent, submitted that once the s 327 gate was opened, s 328 of the Workplace Injury Act and the WorkCover Medical Assessment Guidelines (New South Wales Government Gazette, No 197, 19 December 2003, at 11564) required the Appeal Panel to conduct a fresh and full review of the matter based on the material properly before it. Without doing his argument an injustice, it was that once the Registrar at the s 327(4) stage opened the gates to a review, s/he had opened the floodgates and the whole medical assessment could be, although did not necessarily have to be, conducted afresh.

36 Both parties submitted their contentions were supported by passages in Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372. Mr Jackson relied on Basten JA’s observations at [131] and [137]. Mr Marsh pointed to Handley JA’s statement at [15]. I shall return to Vegan.

37 As to the second argument, Mr Jackson submitted that the primary judge erred in failing to find that the Appeal Panel treated the list in DRE Cervical Category II as exhaustive. He submitted that his Honour’s reference (at par [9]) to what he saw as the substance of the Appeal Panel’s view failed to deal with the fact that the Appeal Panel stated that there needed to be a finding of “non-specific symptoms of radiculopathy or an asymmetrical range of movement”. He contended that his Honour had erroneously substituted his clinical judgment to discern the substance of the Appeal Panel’s reasoning.

38 Mr Marsh submitted that the primary judge correctly concluded that the Appeal Panel had identified and corrected a “demonstrable error” in the MAC, namely the deficiency in Dr Bosanquet’s findings and his application of incorrect criteria. He argued that the Court should be restrained in interpreting the reasons of a body primarily comprised of medical practitioners.

Legislative framework

39 The purpose of the Workplace Injury Act is “to establish a workplace injury management and workers compensation system with the following objectives”: s 3. Those objectives include providing injured workers and their dependants with payment for permanent impairment (s 3(c)) and delivering the objectives efficiently and effectively: s 3(f). The Commission’s objectives include providing a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts (the Workplace Injury Act and the 1987 Act, see s 4): s 367(1)(a).

40 Part 7 of the Workplace Injury Act deals with medical assessments. A medical dispute may be referred for assessment under Pt 7 by a Court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. If it is referred, the Registrar is to give the parties notice of the referral: s 321.

41 The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose: s 322(1).

42 The approved medical specialist assessing a medical dispute has the powers set out in s 324, which include the power to require the worker to submit himself or herself for examination by the approved medical specialist: s 324(1)(c). Section 324 extends to the assessment of a medical dispute in the course of an appeal or further assessment under P 7. An AMS who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under s 324 on an assessment of a medical dispute: s 324(3).

43 The approved medical specialist to whom a medical dispute is referred is to give a medical assessment certificate as to the matters referred for assessment: s 325. Section 325 provides:

325 Medical assessment certificate

(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a ‘medical assessment certificate’) as to the matters referred for assessment.

(2) A medical assessment certificate is to be in a form approved by the Registrar and is to:

(b) certify as to the approved medical specialist’s assessment with respect to those matters, and

(c) set out the approved medical specialist’s reasons for that assessment, and

(d) set out the facts on which that assessment is based.

(4) An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence.”

44 The status of medical assessment certificates is set out in s 326 as follows:

326 Status of medical assessments

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

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

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

(d) whether impairment is permanent,

(e) whether the degree of permanent impairment is fully ascertainable.

45 Section 327 of the Workplace Injury Act determines the nature of an appeal from the decision of an approved medical specialist:

“327 Appeal against medical assessment

(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.

(b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment),

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

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

(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 or reconsideration under section 329 as an alternative to an appeal against the assessment.

(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.

(8) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.”

46 Section 328 provides for the procedure on appeal:

“328 Procedure on appeal

(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.

(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.”

47 A person is eligible to be appointed as the Registrar or as an Arbitrator only if the person is either an Australian lawyer, or has such qualifications, skills or experience as may be determined by the Minister: s 369(3). The appointment of a person who is not an Australian lawyer as an Arbitrator may be made on terms that limit the person to dealing with matters of a particular type or types: s 369(4).

48 A matter may be referred for further medical assessment or reconsideration in accordance with s 329:

329 Referral of matter for further medical assessment or reconsideration

(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:

(b) a court or the Commission.

49 Medical assessments, appeals and further assessments under Pt 7 are subject to relevant provisions of the WorkCover Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments: s 331. The reference to the “WorkCover Guidelines" is a reference to the guidelines issued under s 376.

50 Sections 327 and 328 were amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005, with the amendments commencing from 1 November 2006. I have set out the provisions in force at the time of the medical assessment and the Appeal Panel’s decision which are those which must be considered for the purposes of the appeal: Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales [2007] NSWCA 149; (2007) 4 DDCR 607 (at [59] per Campbell JA (Hodgson JA agreeing, and Handley AJA relevantly agreeing)).

51 Medical assessments play a key role in determining an injured worker’s rights to compensation and/or damages in respect of permanent impairment.

52 The provisions concerning medical assessments appear in Ch 7 of the Workplace Injury Act which deals with the making of a “new claim” under the Workers Compensation Acts. It is unnecessary to explain the meaning of “new claim”, save to note that it means a claim for compensation under the Workers Compensation Acts: s 4. It was uncontroversial that Ch 7 applied to the appellant.

53 Part 4 of Ch 7 deals with “Compensation Dispute Determination”. Section 288, which appears in that part, entitles any party to a dispute about a claim to refer the dispute to the Registrar for determination by the Commission. If the dispute concerns the degree of permanent impairment of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Pt 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment: s 293(2).

54 Part 6 of Ch 7 deals with “Court Proceedings for Work Injury Damages”, being damages recoverable from a worker’s employer in respect of either an injury to the worker caused by the negligence or other tort of the employer, or the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer (see s 250). If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Div 3 of Pt 7 unless the degree of permanent impairment has been assessed by an approved medical specialist under Pt 7: s 313.

55 Part 7, Ch 7 is also relevant to determinations under the 1987 Act. Part 3, Div 4 of that Act deals with compensation for non-economic loss. For the purposes of Div 4, the degree of permanent impairment that results from an injury is to be assessed as provided by s 65 and Pt 7 of Ch 7 of the Workplace Injury Act: s 65(1). If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist: s 65(3).

56 Part 5 of the 1987 Act deals with common law remedies. No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15 per cent: s 151H. The degree of permanent impairment that results from an injury is to be assessed as provided by s 151H and Pt 7 of Ch 7 of the Workplace Injury Act: s 151H(4).

57 The integral role the resolution of a medical dispute may play in decisions of the Commission and, I would add, common law proceedings, was one of the factors which persuaded Basten JA that the Appeal Panel, as well as the approved medical specialist, was obliged to give reasons for its decision: see Vegan (at [115]).

58 In the Legislative Assembly the Minister for Police, the Honourable Paul Whelan, said in the Second Reading Speech to the Bill which became the Workplace Injury Act (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2001, at 14772):

“Proposed part 7 of chapter 7 will establish a system of medical assessment, through which arbitrators will be able to obtain advice on medical questions arising in the course of proceedings … The registrar or an arbitrator in proceedings will be able to refer medical questions to approved medical specialists for consideration and advice. …

The panel will take submissions from the parties and review the original decision,

The role of the arbitrator will be limited to ensuring procedural fairness given that most issues arising in appeals will call for the exercise of medical judgement and expertise

The bill also includes numerous protections to ensure that the parties are afforded procedural fairness. This includes notification of a proposed referral of a medical question, and requirements for detailed reasons to be given in support of certificates

Nature of a s 328 review: consideration

59 The appellant’s contention is, in effect, that a s 328 review is confined to correcting error in the MAC, and that the error must be one which has been the subject of the grant of s 327(3) leave. This suggests an appeal by way of rehearing. The first respondent’s submission that, once leave is granted, the Appeal Panel starts, in effect, with a blank page, suggest an appeal de novo. Both submissions proceed on the premise that by using the word “appeal” the legislature has invoked the concept of an appeal in the judicial context. It is convenient to commence an examination of the nature of a s 328 review by examining that concept. It will be necessary too to consider the concept of a “review”. It is also necessary to bear in mind that the s 328 appeal is from an expert’s assessment of the injured worker’s medical condition to an expert panel, comprised of two medical specialists, and an Arbitrator who may or may not be a lawyer.

60 An appeal is the right to enter a superior court, and invoke its aid and interposition to redress the error of the court below: Attorney-General v Sillem (1864) 10 HL Cas 704 at 724; 11 ER 1200 at 1209 per Lord Westbury LC; CDJ v VAJ (No 1) [1998] HCA 67; (1998) 197 CLR 172 (at [111]) per McHugh, Gummow and Callinan JJ. It is the formal proceeding by which an unsuccessful party seeks to have the formal order of a court set aside or varied in his favour by an appellate court: The Commonwealth of Australia v Bank of New South Wales [1950] AC 235 (at 294); Vegan (at [16]).

61 These apparently simple expositions of the concept of an appeal are somewhat confounded by the multiple senses in which the concept of an appeal is understood. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 (at [11]), Gleeson CJ, Gaudron and Hayne JJ commented that “[t]here is … no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another”. Kirby J (at [68]) quoted with approval Glass JA’s statement in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 (at 297) that the word “appeal” encompasses “different litigious processes which have few unifying characteristics”.

62 An appeal is always a creature of statute: Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 244 ALR 257 (at [2]) per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. Mason J (with whose judgment Barwick CJ and Stephen J agreed) outlined four categories of appeal in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 (at 619 - 622) but, as was pointed out in Dwyer (at [2]):

Eastman v The Queen:

‘Which of these meanings the term 'appeal' has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be.’

63 In Sperway (at 619 – 620), Mason J explained the distinction between an appeal stricto sensu and an appeal by way of rehearing. In the former, “the question considered is whether the judgment complained of was right when given … that is whether the order appealed from was right on the material which the lower court had before it”. In the latter, there is:

de novo

64 In an appeal by way of rehearing the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order the subject of the appeal is the result of some legal, factual or discretionary error. In a hearing de novo the appellate tribunal’s powers may be exercised regardless of error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ; Coal and Allied Operations (at [14]).

65 Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo: Sperway (at 621); Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283 per Jordan CJ. However this is not an absolute rule as Mason J explained in Sperway (at 621 – 622):

de novo

But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.”

66 Conferring discretion on an appellate body to admit further evidence is indicative of a rehearing function. Such a power is of a remedial nature conferred “to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures”. Its purpose is to give the appellate body a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous or, too, what is “in practice [a] subsidiary purpose is to give the [appellate body] a discretion to admit further evidence to buttress the findings already made”: CDJ v VAJ (No 1) (at [109]).

67 In Strange-Muir v Corrective Services Commission (NSW) (1986) 5 NSWLR 234 (at 249) McHugh JA considered the nature of the hearing by one administrative body of an appeal against the decision of another administrative body. In his Honour’s view (at 250) “there is a presumptive rule that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made. The hearing is not de novo. This is so whether or not the tribunal is empowered to hear additional evidence”. His Honour drew that presumptive rule from Horne v Locke [1978] 2 NSWLR 88 and Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 which, he said, were consistent with “the principle that, in the absence of a contrary legislative indication, the conferring of a right of appeal to an administrative tribunal against an administrative decision is not a grant of jurisdiction to make a fresh or original decision”. This observation was referred to with apparent approval by Deane, Gaudron and McHugh JJ in Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 (at 273) where, however, their Honours added, “whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right”.

68 The concept of a review per se is attended by no greater clarity than that of an appeal. In Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 (at 261) Mason CJ, Brennan and Toohey JJ observed that while “the expression ‘review’ is commonly used in the context of judicial control of administrative action and in the context of comprehensive administrative review by an administrative tribunal of administrative decisions … ‘review’ has no settled pre-determined meaning [and] … takes its meaning from the context in which it appears”. In like vein, in Tomko v Palasty (No. 2) [2007] NSWCA 369 (at [43]), Basten JA (Hodgson and Ipp JJA agreeing) observed that the “term [review]… may be said to have ‘a quite amorphous meaning’ [which] will often depend upon the statutory context”.

69 In Re Coldham s 88F(1) of the Conciliation and Arbitration Act 1904 (Cth) required leave to be given before the Australian Industrial Relations Commission could entertain an appeal from the decision of a Registrar to register an organization of employees. The High Court (at 275) held that the appeal was by way of rehearing. However it also held that although leave could only be granted if there was an arguable case that the Registrar had erred, once leave was granted, the Commission was bound to make its own decision on the evidence. The consequence was that the Commission could entertain an objection to registration of the organisation which had not, and could not have, been relied upon before the Registrar. In Coal and Allied Operations (at [14]), Gleeson CJ, Gaudron and Hayne JJ explained (at [15]) the conclusion in Re Coldham as flowing from the requirement that the Commission “make such order as it [thought] fit”, which “indicated that the Commission's appellate powers were not constrained by the need to identify error on the part of the primary decision-maker, but, rather, that the Commission was obliged to give its own decision on the evidence before it.”

Review in the workers compensation environment

70 With these general observations in mind, it is convenient to return to the concept of a review in the workers compensation environment.

71 Section 36 of the Compensation Court Act 1984 conferred on a member of the Compensation Court a power to review a Commissioner or Registrar’s decision in the following terms:

“36(1) Where a commissioner or registrar makes a decision or does any other act in any proceedings, the Court may, on application by any party, review the decision or act, and may make such order by any of confirmation, variation or discharge or otherwise as the Court thinks fit…”

72 The nature of the review contemplated by s 36 was considered in a number of decisions soon after that provision was inserted in the Compensation Court Act, the first being Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190. Kirby P (with whose reasons Handley JA and Hope A-JA relevantly agreed) concluded (at 199 - 200) that the use of the word “review” in s 36 of the Act indicated that Parliament intended a procedure different from an appeal of the nature of those referred to by Glass JA in Turnbull v New South Wales Medical Board.

73 His Honour inferred (at 202) from the scheme of the Compensation CourtAct, including the fact that Commissioners could be non-lawyers and were, like Registrars, subordinate officers of the Court, the straightforward nature of the work expected to be assigned to them, the informality of proceedings before Commissioners, the fact that there was no “appeal” from their decisions, only a “review”, and the power to confirm, vary, discharge or make other orders provided by s 36(1), that “the Judge constituting the Court for the purpose of the ‘review’, has a very large power which he or she must exercise in disposing of the review jurisdiction”. It is apparent his Honour did not regard the review as involving a de novo hearing because he was of the view that s 36 required the aggrieved party to provide a proper basis for disturbing the decision under challenge and the Commissioner’s decision remained valid unless the Judge, on review, otherwise ordered. He accepted, however, (at 205 – 206) that it was open to the parties on review to call evidence including either that which was led before the Commissioner, or “entirely fresh evidence”. He concluded (at 205) that it was “undesirable to attempt to delimit exactly the scope of a ‘review’ as contemplated by s 36”, apart from accepting that “that something wider than the narrow form of reconsideration on an appeal, strictly so called, is contemplated”.

74 Handley JA (with whose qualification on this point Hope A-JA agreed) did not wish to indicate a view on whether an applicant for review was entitled as of right, or as of course in the exercise of the Court’s discretion, to re-call before a judge all the witnesses called in his or her case before the Commissioner to give the same oral evidence again, in the hope of securing different findings on credibility: Watson (at 210 – 211). In his view, it was arguable that an applicant for review was only entitled to a hearing de novo before the judge “on a proper case”.

75 The issue arose again in Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580. Kirby P (with whom Waddell A-JA and Samuels A-JA agreed) noted (at 586) that Handley JA’s remarks in Watson concerning the tender of fresh evidence and the conduct of a hearing de novo were obiter. He rejected (at 587) the employer appellant’s submission that a s 36 review involved a narrower function than an appeal by way of rehearing and that the Commissioner’s decision should only be disturbed “in an extreme case”. In so doing he emphasised (at 587) the “large consequences” decisions of the Commission had both for the worker and the employer in determining “substantive entitlements under a statute often intended to provide a means of sustenance for injured workers”.

76 In Australian Gas Light Company v Samuels (1993) 9 NSWCCR 616 (at 622) Kirby P held that Watson was authority for the proposition that on a s 36 review “a reviewing judge would be entitled to substitute his opinion for the Commissioner’s, even if the latter was said to be based on a question as to credibility, if displaced by incontrovertible evidence indicating that the Commissioner was mistaken”. He emphasised the “special” nature of such a review as a “special procedure, established within a specialised tribunal, to recognise the particular skills which judges of that tribunal enjoy and refine by years of considering very large numbers of like claims, many of them in large part (as here) determined on paper without oral evidence”. In that light he reiterated the view he had expressed in Boston Clothing that it was inappropriate to apply to a review all of the principles applied by the courts to appeals by way of rehearing. Meagher JA accepted (at 625) that Watson was authority for the proposition that the reviewing judge had wider powers than would be involved in a mere appeal, but not so wide as to treat the primary decision as if it did not exist. It is clear his Honour was of the view that the reviewing judge had to give weight to the Commissioner’s credit finding. Handley JA (at 630) was of also of that view, concluding that the reviewing judge had misdirected himself as to the nature of the review function that he had been asked by the parties to undertake. His Honour appears to have treated the review as, in a sense, an appeal of a rehearing nature, holding that it was not open to the reviewing judge to disregard the credit based findings of the Commissioner on the critical issues in the absence of the worker demonstrating that the Commissioner’s decision was inconsistent with established facts or glaringly improbable.

77 Finally, in Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287 (at 292) Gleeson CJ (with whom Handley JA agreed) said that none of the authorities which considered the s 36 review suggested that it contemplated “a procedure similar to that involved in so called appeals from magistrates to judges of the District Court, which proceed as hearings de novo”. Nor (at 296) did those authorities deny the need for finality of litigation, and the undesirability of allowing a party dissatisfied with the outcome of a case at first instance to set out to make a new and different case when given an opportunity for appeal or review. In his Honour’s view (at 297), while s 36 permitted an unfettered reconsideration of the decision below, and while the concept of review was wider and more flexible than most forms of appeal, a s 36 appeal was not an appeal of the nature of an appeal from a magistrate to a District Court judge.

The concept of “review” in the Workplace Injury Act

78 In addition to the power of review reposed in the Appeal Panel by s 328, s 352 of the Workplace Injury Act enables appeals to the Commission, by leave of the Commission constituted by a Presidential member, such appeals to be “by way of review of the decision appealed against.” Leave may only be granted if the amount of compensation at issue on the appeal is both (a) at least $5,000 (or such other amount as may be prescribed by the regulations), and (b) at least 20 per cent of the amount awarded in the decision appealed against: s 352(2). Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission: s 352(2). On appeal, the decision may be confirmed or may be revoked and a new decision made in its place; alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission: s 352(7).

79 A series of cases has held, applying Boston Clothing, that the review contemplated by s 352 “is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider”: Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 at [38] per Bryson JA (Handley JA and Bell J agreeing) and the authorities collected in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 (at [29]).

80 In Chemler the Court considered whether the Commission entertaining a s 352 review and considering what action to take to reverse findings of fact, should remit the matter to the primary decision-maker unless it was satisfied that there could not be a different result. Spigelman CJ (with whom Basten JA and Bryson AJA agreed) (at [22]) described the appeal as “an internal merits review by a Presidential member [which] is an important safeguard for the proper operation of the legislative scheme”. He rejected (at [28]) the appellant’s submission that a s 352 review was not a hearing de novo, holding that “[t]he concept of a review on the merits is wider than the concept of an appeal in a judicial context”. In his Honour’s view:

“30 A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”

81 Basten JA delivered additional reasons for agreeing with the Chief Justice. He interpreted (at [63]) the appellant’s argument as a contention that the appeal undertaken by the Deputy President was in the nature of a “review” and was therefore not a hearing de novo, with the consequence that the Presidential member considering the appeal was required to identify error on the part of the arbitrator. In his Honour’s view (at [64]) the nature of the appeal by way of review should not be seen to be constrained by the principles which depend upon the classification of appeal referred to in Builders Licensing Board and Coal and Allied Operations. He observed (at [65]):

“65 The precise scope of a provision such as s 354 will depend upon the circumstances in which its operation arises. No doubt the Commission is required to apply substantive rules of law applicable to its jurisdiction and to comply with rules of procedural fairness, although the content of the latter may be affected by the terms of the provision… So long as each party has notice of, and a reasonable opportunity to address, the case against it, there is no reason to suppose that the Commission is not at liberty to determine how it will proceed and whether it should make a new decision…”

Section 328 authorities

82 There are no decisions of this Court whose ratio identifies the nature of the s 328 review. The question arose in Vegan, but as the following discussion reveals, not in a determinative manner.

83 As I have said, the Appeal Panel referred to, and applied, Wood CJ at CL’s conclusions in Vegan concerning the nature of the s 328 review. His Honour held (at [80]) that the fact that “the powers of the Panel are confined to revoking the certificate of the AMS, or to issuing a ‘new certificate as to the matters concerned’, [are] powers which are consistent with an appeal being a review de novo of the original assessment”. He concluded that:

82 This gives rise to a somewhat novel form of appeal, but being a statutory appeal it has to be understood in the light of the relevant provisions, and in the light of the Legislative intent, in so far as that can be identified.”

84 In his Honour’s view (at [83] – [84]) it was more consistent with a review by a Panel of Experts, that, once a ground for appeal had been identified, it should be free to conduct a full review de novo on the available material. To confine a lay panel, even though chaired by an Arbitrator, to an appeal conducted by a court of law, would, in his view, be contrary to the intent of the Act, or to the objective of dealing with the claims efficiently and effectively, and in a timely way.

85 It was not necessary to resolve this issue on appeal in Vegan. However Basten JA made observations in Vegan (at [131] ff) about the power of the Appeal Panel to review the whole of the matter on the merits, once invested with jurisdiction, which the appellant urged the Court to adopt. His Honour also suggested (at [133]) that if only one ground for appeal existed in the opinion of the Registrar, “it would appear that the whole of the appeal may proceed and that, being satisfied as to one ground, the Registrar is not required to address other grounds”. His Honour acknowledged (at [135]) however, the difficulties which had arisen in other situations from the tendency of the legislature “to identify the available grounds for an appeal, without separately determining the scope of the appellate tribunal”.

86 Basten JA tentatively concluded (at [137]) that “the powers of the Appeal Panel may be limited to addressing, and if thought necessary, correcting, errors identified in the certificate granted by the approved medical specialist, as specified by the appellant”. His Honour’s tentative observations were approved by Mason P (McColl and Bell JJA agreeing) in Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 (at [48]), where Mason P also observed that “the ‘appeal’ to the Appeal Panel is not intended as the opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than the Appeal Panel being invited to decide the application afresh”.

87 The first respondent contends that s 328 of the Workplace Injury Act required the Appeal Panel to conduct a fresh and full review of the matter based on the material properly before it and that it was not restricted to correcting error in the assessment, although it also contended that the Appeal Panel had, in fact, corrected an error in the MAC. However its primary submission was that the Court should adopt Handley JA’s observations in Vegan (at [18]) apparently contending that they described the Appeal Panel’s power on review as in effect a de novo hearing:

“Since an appeal is a means of redressing or correcting an error of the primary decision maker a successful appeal should produce the correct decision, that is the decision the original decision maker should have made. It is therefore an inherent feature of the appellate process that the appellate decision maker exercises, within the limits of the right of appeal, the jurisdiction or power of the original decision maker.”

88 In my view Handley JA’s observation did not indicate a view that a s 328 review is an appeal de novo. Rather they are consistent with the proposition that the power of a court, entertaining an appeal by way of rehearing to give such judgment as ought to be given and to make such further or other order as the case may require, means that such an appeal may involve the exercise of original jurisdiction: Crampton v R [2000] HCA 60; (2000) 206 CLR 161 (at [149]) per Hayne J.

89 In Riverina Wines Campbell JA (Hodgson JA agreeing and Handley AJA relevantly agreeing) approved Wood CJ at CL’s observation in Campbelltown City Council v Vegan [2004] NSWSC 1129 (at [74]) that s 327 provides a “gatekeeper role” for the Registrar, that being (in terms of s 327(3) as it stood before November 2006), to determine whether it appears to the Registrar that one or other of the grounds in that subsection “exists”. In Pitsonis (at [20]) Mason P agreed that the role of the Registrar under s 327 is that of a gatekeeper.

90 The issue in Riverina Wines concerned the nature of the power the Registrar exercises when considering whether one of the grounds of appeal “exists” under s 327(4) of the Workplace Injury Act as it stood prior to the 2006 amendments. Campbell JA did not expressly consider the nature of the appeal power conferred by s 328. Nevertheless his Honour’s observation about the gatekeeping role of the Registrar in considering the s 327 grounds cast some light on the significance of the role the grounds play in permitting the appeal to go forward to the Appeal Panel.

Nature of the s 328 review: conclusion

91 The legislature has combined two terms to describe the process contemplated by s 328, neither of which has a settled meaning. At first blush, however, it might be thought that describing the “appeal” as “by way of review” was intended to invoke the notion of “review” examined in the Watson line of authorities. If that were so then, despite the width the Court ascribed to the power of review conferred by s 36 of the Compensation Court Act, it would not involve a hearing de novo: Litynski.

92 In the final analysis, while guidance may be obtained from the authorities which have characterised an “appeal” or “review” by reference to the powers conferred on the appellate body, the nature of the s 328 review must turn on the terms of the statute, taking into account the context and history of the legislation: Dwyer.

93 The specificity of the scheme for review of medical assessment certificates established by Ch 7, Pt 7 of the Workplace Injury Act stands in stark contrast to the apparently untrammelled power of review conferred by s 36 of the Compensation Court Act. This suggests that the legislature intended to avoid conferring the sort of wide power on the Appeal Panel which it had been held s 36 of the Compensation Court Act conferred on a judge.

94 The legislature has confined appeals to matters that are appealable only on the grounds identified in s 327(3). Permission must be obtained before the putative appellant can appeal. To obtain permission, at the time of the present case, the putative appellant had to establish that one of the s 327 grounds existed. Although the appeal was “by way of review of the original medical assessment”, if the Appeal Panel did not confirm that MAC, its only power was to revoke it and “issue a new certificate as to the matters concerned”. “The matters concerned” were not expressly identified, but contextually their apparent subject was the “matter” the subject of the appeal identified by the appellant in accordance with s 327(1).

95 Section 327(3)(c) and (d) permit an appellant to attack the MAC on the basis of errors on the part of the AMS. That suggests, in my view, a jurisdiction to revoke the MAC which is only exercisable in the event error is identified in it, in other words an appeal by way of review which has indicia of an appeal by way of rehearing.

96 However s 327 is not only an error-based jurisdiction. It also contemplates an appeal arising because of changed circumstances: either a deterioration of the worker’s condition or the availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment): s 327(3)(a) and (b). While the power to receive further evidence is suggestive of a rehearing function (CDJ v VAJ (No 1)), the availability of that power to what might be classed as an administrative body is not determinative: Strange-Muir.

97 In such circumstances the Appeal Panel might be expected to review the MAC to determine whether the changed circumstances affect the conclusions the AMS reached. If it reaches that conclusion, then it must have the power to conduct the assessment anew, including, if necessary, undertaking an examination of the injured worker as contemplated by s 324. That appears to presume something in the nature of a hearing de novo, a proposition Basten JA found attractive in Vegan (at [85]).

98 Further, while the express limitations on opening the gate to an appeal are suggestive of an appeal limited to the grounds identified by the appellant, there is much to be said for the view that when used in the context of the review of an MAC by a panel including two specialists, that they should be entitled to determine “the true and correct view”: Chemler (at [30]). The purpose of setting up a panel with experts is to enable it to resolve questions within its expertise: Kalil v Bray [1977] 1 NSWLR 256 (at 262) per Street CJ (Moffitt P and Glass JA agreeing).

99 Such an approach recognises the importance of the medical assessment in the process of determining an injured worker’s rights to, and an employer’s obligation to pay, workers’ compensation and/or damages. Although the legislature has deliberately separated determination of those issues from the curial decision-maker, it would be a curious to find it intended that the Appeal Panel could not cure an error in a conclusive certificate merely because the parties had not identified it, with the result that a court could be required to determine the parties’ rights on the basis of what, in the Appeal Panel’s view, was an erroneous MAC. The inclusion of two specialists on the Appeal Panel must have been intended, in part, to permit them to bring their expertise to bear on the contents of the MAC.

100 While a conclusion that an appeal by way of review may, depending on the circumstances, involve either a hearing de novo or a rehearing invokes a novel form of appeal, it ensures the legislature has created a flexible model which as I explain below assists the objectives of the legislature. In New South Wales Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; (2003) 56 NSWLR 691 (at [103] – [104]) Hodgson JA (Santow JA agreeing) held that an appeal under s 15 of the Racing Appeals Tribunal Act 1983 involved both appeals of a de novo and rehearing nature.

101 In my view it is inappropriate to resolve the issues by applying prescriptive labels to the nature of the s 328 review. I am, however, of the view that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. This is not a backdoor resurrection of the appellant’s abandoned third ground of appeal, simply a recognition of the proposition that determinations, which affect the “rights, interests and legitimate expectations” of the parties, attract requirements of procedural fairness: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (at 584) per Mason J. This includes giving a party an opportunity to deal with material which can be characterised as credible, relevant and significant and adverse to the interests of that person: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 (at [14]-[18]) per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. The proposition that the Court may conclude the Appeal Panel could act of its own initiative on the basis that it accord the parties natural justice was raised in the course of argument, and not resisted by Mr Marsh.

102 It has already been held that the Appeal Panel is subject to an implied statutory obligation to give reasons arising from the statutory context and the nature of the functions imposed on it: see Vegan per Handley JA (at [26] – [31]); per Basten JA (at [117]). It might also be recalled that the Second Reading Speech clearly stated the legislature’s intention that the appeal process be conducted in a procedurally fair manner, the inclusion of the Arbitrator being intended, in part, to ensure that outcome.

103 The conclusion that the Appeal Panel can consider grounds of appeal not the subject of s 327(3) leave as long as it accord procedural fairness, is consistent with the objectives of the Workplace Injury Act I earlier identified of providing injured workers and their dependants with payment for permanent impairment (s 3(c)), delivering the objectives efficiently and effectively (s 3(f)) and providing a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts: s 367(1)(a); see Chemler (at [23] – [24]); Riverina Wines (at [86]). It is also consistent with Kirby P’s observations in the Watson line of authority about the undesirability of confining a review in the workers compensation context to a creature resembling an appeal in the judicial context.

104 In my view, therefore, while it was open to the Appeal Panel to depart from the grounds of appeal the respondent had identified, it could only do so if it notified the parties and gave them an opportunity to be heard. It did not do so and, therefore misconceived its role, the nature of its jurisdiction and its duty: Coal and Allied Operations (at [31]) per Gleeson CJ, Gaudron and Hayne JJ. The appeal to the Appeal Panel must be reheard.

The WorkCover Guides

105 This conclusion is sufficient to dispose of the appeal, however I will say something briefly about the second ground concerning the application of the WorkCover Guides.

106 As I have said s 322 of the Workplace Injury Act provides that the assessment of the degree of permanent impairment of an injured worker for the purposes of the 1987 Act was to be made in accordance with WorkCover Guidelines issued for that purpose. Section 376 authorises the WorkCover Authority to issue guidelines with respect, among other matters, to the assessment of the degree of permanent impairment of an injured worker as a result of an injury.

107 In June 2002 WorkCover issued guidelines, known as WorkCover Guides for the Evaluation of Permanent Impairment. The introduction to the WorkCover Guides stated:

WorkCover Guides

They are not meant to provide a ‘recipe approach’ to the assessment of permanent impairment and medical practitioners are required to exercise their clinical judgement in determining diagnosis, whether the original condition has resulted in an impairment, whether the impairment is permanent and, if so, the degree of permanent impairment that results

108 Section 4 dealing with the spine (excluding spinal cord injury) referred the reader to ch 15 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th edition (“AMA 5”). It also required evaluation of impairment of the spine to be done using diagnostic-related estimates (DREs).

109 Table 4.3 sets out the steps to be followed in evaluating impairment of the spine:

“Table 4.3: Procedures in evaluating impairment of the spine

History

Physical examination

Diagnosis

Find the condition in Table 4.1

Use clinical findings to place an individual’s condition

in a DRE category according to Box 15.1, AMA5 pp382–383

Choose the category that determines the percentage impairment:

Lumbar region AMA5 Table 15–3, p384

Thoracic region AMA5 Table 15–4, p389

Cervical region AMA5 Table 15–5, p392”

110 Clause 4.6 stated:

“Table 4.1 (see over) is a summary table that refers to all areas of the spine. It is to be used in conjunction with the specific criteria for rating impairment categories of DREs in Tables 15-3, 15-4 and 15-5 (AMA5 pp384, 389 and 392).”

111 Table 4.1 dealt with assessing spinal impairment. A patient displaying, inter alia, “low back pain, neck pain, guarding, non-verifiable radicular complaints […WAD II]” was categorised as DRE II. “WAD” referred to “whiplash associated disorder” and WAD II to “neck complaint AND musculoskeletal sign(s)” Musculoskeletal signs include “decreased range of motion and point tenderness”.

112 Table 15.5 of AMA5 relevantly stated:

DRE Cervical Category II 5%-8% Impairment of the Whole Person

Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician; asymmetric loss of range of motion or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity …” (emphasis added)

113 In the course of the hearing of the appeal Mr Jackson emphasised the words I have italicised, while Mr Marsh emphasised that the Workplace Injury Act manifested an intention that courts should not second-guess the application of guides developed for the use of the medical profession. I have much sympathy for Mr Marsh’s submission, however it flies in the face of the fact that a court on an application such as this for prerogative relief may be required to determine whether the Appeal Panel misdirected itself when it purported to identify error in an MAC. The legislature has not excluded that avenue of challenge to an Appeal Panel’s determination.

114 Having said that I cannot, with respect, accept that the primary judge disposed of this issue in a satisfactory manner. The Appeal Panel’s approach does appear to treat AMA 5 as laying down a prescriptive approach, whereas, to a lay observer, it uses language of illustration. This may be a problem in the adequacy of the Appeal Panel’s reasons which were delivered prior to this Court’s decision in Vegan and, therefore, at a time when its obligation to give reasons had not been clearly stated.

115 Further, with respect, it was not for the primary judge to make his own finding that the MAC fell short of AMA 5: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1.

116 In my view, therefore, the primary judge erred in concluding that the appellant had not made out this ground of appeal.

Orders

117 I propose the following orders

1. Grant leave to appeal.

2. Notice of appeal to be filed within 7 days.

3. Appeal allowed.

(i) quash the decision of the Third Respondent, dated 27 March 2006;

(ii) remit the matter to the Appeal Panel to be dealt with according to law.

5. First respondent to pay the appellant’s costs of the appeal and of the hearing before Associate Justice Malpass.

6. Save as to order 5, no order as to costs.

**********

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Citations

Siddik v Workcover Authority of NSW [2008] NSWCA 116

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CITATION:	Siddik v WorkCover Authority of NSW [2008] NSWCA 116
HEARING DATE(S):	7 February 2008
JUDGMENT DATE:	30 May 2008
JUDGMENT OF:	Mason P at 1; Giles JA at 2; McColl JA at 15
DECISION:	1. Grant leave to appeal. 2. Notice of appeal to be filed within 7 days. 3. Appeal allowed. 4. Judgment and orders of his Honour, Associate Justice Malpass set aside and in lieu thereof: (i) quash the decision of the Third Respondent, dated 27 March 2006; (ii) remit the matter to the Appeal Panel to be dealt with according to law. 5. First respondent to pay the appellant’s costs of the appeal and of the hearing before Associate Justice Malpass. 6. Save as to order 5, no order as to costs.
CATCHWORDS:	WORKERS COMPENSATION — claim for workers compensation — dispute about level of permanent impairment — injured worker referred for assessment by approved medical specialist — medical assessment certificate issued — Registrar permitted challenge to certificate to proceed to an Appeal Panel on specified grounds — Appeal Panel determined appeal on grounds not raised by either party — Nature and scope of appeal by way of review — Workplace Injury Management and Workers Compensation Act 1998, s 328 - ADMINISTRATIVE LAW – statutory review — procedural fairness — whether Appeal Panel obliged to inform parties if proposed to determine appeal on new grounds
LEGISLATION CITED:	Compensation Court Act 1984 Racing Appeals Tribunal Act 1983 Supreme Court Act 1970 Workers Compensation Act 1987 Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 Workplace Injury Management and Workers Compensation Act 1998 Conciliation and Arbitration Act 1904 (Cth) WorkCover Medical Assessment Guidelines
CATEGORY:	Principal judgment
CASES CITED:	Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Attorney-General v Sillem (1864) 10 HL Cas 704; 11 ER 1200 Australian Gas Light Company v Samuels (1993) 9 NSWCCR 616 Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 Campbelltown City Council v Vegan [2004] NSWSC 1129 Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 CDJ v VAJ (No 1) [1998] HCA 67; (1998) 197 CLR 172 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Crampton v R [2000] HCA 60; (2000) 206 CLR 161 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 244 ALR 257 Estate of Heinrich Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283 Horne v Locke [1978] 2 NSWLR 88 Kalil v Bray [1977] 1 NSWLR 256 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287 Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 New South Wales Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; (2003) 56 NSWLR 691 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales [2007] NSWCA 149; (2007) 4 DDCR 607 Siddik v WorkCover Authority of New South Wales [2007] NSWSC 129 State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 Strange-Muir v Corrective Services Commission (NSW) (1986) 5 NSWLR 234 The Commonwealth of Australia v Bank of New South Wales [1950] AC 235 Tomko v Palasty (No. 2) [2007] NSWCA 369 Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190
TEXTS CITED:	AMA Guides to the Evaluation of Permanent Impairment, 5th edition
PARTIES:	Hussein Hussein Siddik - Appellant WorkCover Authority of NSW - First respondent Registrar of the Workers' Compensation Commission - Second respondent Appeal Panel - Third respondent
FILE NUMBER(S):	CA 40528 of 2007
COUNSEL:	Mr C D Jackson - Appellant Mr S B Marsh - Respondent
SOLICITORS:	M. D. Di Re -Appellant DLA Phillips Fox - First Respondent I V Knight, Crown Solicitor - Second and Third Respondents - submitting appearances
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 30057 of 2006
LOWER COURT JUDICIAL OFFICER:	Malpass AsJ
LOWER COURT DATE OF DECISION:	1 March 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	[2007] NSWSC 129