Sinnadurai v Nylex Corporation Ltd
[2001] VSC 406
•24 October 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6192 of 2001
| SIVAKUMAR SINNADURAI | Plaintiff |
| v. | |
| NYLEX CORPORATION LTD. AND OTHERS | Defendants |
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JUDGE: | PAGONE, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 OCTOBER 2001 | |
DATE OF JUDGMENT: | 24 OCTOBER 2001 | |
CASE MAY BE CITED AS: | SINNADURAI v. NYLEX CORPORATION LTD. & ORS. | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 406 | |
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CATCHWORDS: Workers' compensation – Medical Panel – Determination of Panel in respect of impairment – Reasons for determination – Considerations going to reasons – Words and phrases: "significant clinical finding"; "other than".
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. B. Collis Q.C. with Mr. M. Stiffe | Arnold Thomas & Becker |
| For the First Defendant | Mr. R. Gorton Q.C. with Mr. D. Masel | Herbert Geer & Rundle |
| For the Second Defendant | No appearance | Ebsworth & Ebsworth |
HIS HONOUR:
The plaintiff seeks relief in the nature of certiorari to quash the decision of the Medical Panel in Medical Panel Reference No. N101/0342 made on 30 April 2001, and a further order that the question as to the degree of permanent impairment of the plaintiff resulting from the injury be re-assessed in accordance with law by a Medical Panel differently constituted. The principal ground for the claim is that the Medical Panel erred in its assessment of the plaintiff pursuant to the Accident Compensation Act 1985 ("the Act").
The plaintiff worked as an operator for the first defendant at the time of sustaining injury at work. On 16 February 1999 the plaintiff completed a form for compensation found as part of exhibit PN1 to the affidavit of Paul Nisselle sworn 16 July 2001. The injury details shown on the form are stated simply as an injury to the "R" [presumably right] shoulder. The event causing the injury was described by the plaintiff as occurring when he was trying to pick up something off the floor underneath the winder shaft start-up. The injury occurred on 15 May 1998 and the claim form records that it was first reported to the supervisor and a nurse at the Medical Centre on the date of the injury's occurrence. A subsequent form was completed by the plaintiff on 25 August 2000 in which the condition for which compensation was claimed was identified as being injury to both the neck and the right shoulder.
The plaintiff was examined by Dr. P.F. Rustomjee on 6 February 2001 whose written report is dated that day. The doctor's findings on the examination are set out at the foot of page 2 and the first half of page 3. Those findings upon the examination of the cervical spine are recorded as showing tenderness in the right paravertebral muscles and the right trapezius muscles. The examination of the cervical spine was also recorded as showing that the movements of the neck were formed to the full extent in all directions, "though the patient complained of pain at the extremes of movement". The examination of the right shoulder by the doctor is recorded as having shown tenderness at the tip of the acromion. The doctor's opinion in relation to these matters was that the plaintiff had sustained a muscular injury to the suprascapular muscles on the right side and also an injury to the rotator cuff of the right shoulder. The opinion records that the plaintiff's shoulder injury required an arthroscopy which had improved the movements of the right shoulder though he still had pain in that region. The doctor went on to say:
"Though this man does have pain in his neck and supra scapular muscles on the right side, he has full movements of the neck and hence does not attract any impairment as assessed according to the American Medical Association, Guide to the Evaluation of Permanent Impairment, Fourth edition.
I have also assessed this man's right shoulder in accordance with the same Guide and find that he has a 7 Percent impairment to his right upper limb which equates to a 4 Percent whole person impairment."
The results of that evaluation were communicated to the plaintiff by letter dated 26 February 2001 which is also part of the exhibit to which I have previously referred. The letter informed the plaintiff that he was not entitled to any compensation under the Act and attached an explanation of how the "nil" amount was calculated. In that attachment, headed "Calculation Explanation", the two injuries are clearly identified in a table. The degree of impairment shown as having been found by Mr. Rustomjee to the neck were shown at zero percent, and that for the right shoulder at four percent.
The plaintiff sought a referral from the adverse determination to a Medical Panel constituted under the Act. The Medical Panel comprised Drs. David Kotzman and Helen Moran who jointly examined the plaintiff on 10 April 2001 and considered, amongst other things, the medical report dated 6 February 2001 from Dr. Rustomjee. The certificate of opinion of the Medical Panel is dated 13 April 2001 and states the Medical Panel's opinion on the degree of the plaintiff's whole person impairment as being five percent resulting from the accepted injury to the right shoulder and neck. The Panel's reasons are also dated 30 April 2001 and are signed by Dr. David Kotzman as the presiding member for and on behalf of the Medical Panel as a whole. The reasons are essentially set out in paragraph 4 and begin with an acceptance that the plaintiff "sustained injuries to the right shoulder and neck" on 14 May 1998. On page 2 of the report the Medical Panel stated:
"On physical examination of the right shoulder, arthroscopy portals were noted and there was a mild reduction in right shoulder movements. Examination of the neck revealed a mild reduction in right rotation, but other movements were normal. Previous reconstructive surgery was noted in the region of the right thumb. No other abnormalities were noted on examination of either upper limb and there was no evidence of radiculopathy.
[…]
In the Panel's opinion, the worker is suffering from persisting rotator cuff dysfunction of the right shoulder and a minor stiffness of the neck, relevant to the accepted injuries." (my emphasis)
The Medical Panel went on to say that it conducted an impairment assessment according to the methods described in the American Medical Association's Guide to the Evaluation of Permanent Impairment (fourth edition, third printing) ("the AMA Guide"), as required by s.91 of the Act. It is clear from the Medical Panel's reasons that they specifically carried out assessments both to the shoulder and to the neck. On page 3, the Medical Panel's reasons state that the assessment of the right shoulder was carried out in accordance with s.3.1(j) of Chapter 3 of the AMA Guide and that the assessment of the neck was carried out in accordance with the specific procedures and directions in s.3.3(f) on page 1 of the AMA Guide.
The contentious part of the Medical Panel's reasons appears in the third-last paragraph where it states:
"The Panel assessed the worker in accordance with Table 70 of Chapter Three. The Panel concluded that there are no significant clinical findings in relation to the worker's neck, other than a mild reduction in right rotation. The Panel therefore concluded that the appropriate impairment category for the cervico-thoracic spine is DRE Category I pursuant to Table 73 of Chapter Three, resulting in a whole person impairment of 0%." (my emphasis)
Immediately following this passage the Panel observed that the use of the Range of Motion Model was not appropriate as the impairment resulting from the accepted neck injury could be assessed in accordance with the Diagnosis-Related Estimated (DRE) Model.
The plaintiff's complaint against the conclusion reached by the Medical Panel comes down essentially to what is to be made of the passage quoted above, and in particular that which I have highlighted. Mr. Collis Q.C., who appeared with Mr. Stiffe for the plaintiff, submitted that the "whole crux of this case is in those two and a half lines" where the Medical Panel, he submitted, concluded that there were no significant clinical findings in relation to the worker's neck other than a mild reduction in right rotation. In other words, that it was implicit that the Medical Panel had concluded "that there was a significant clinical finding in relation to the worker's neck, namely a mild reduction in right rotation". This finding was described by Mr. Collis as "the cornerstone" of the case because once that finding was made it follows that the Medical Panel could not have put the plaintiff into the category which they had selected. In contrast, Mr. Gorton Q.C., who appeared with Mr. Masel for the defendant, submitted that a "proper interpretation of the Panel's reasons is that the mild reduction in right rotation was considered by the Panel not to be a significant clinical finding."
I am unable to accept the construction of the Medical Panel's reasons pressed by Mr. Collis Q.C. It seems to me that the proper reading of the critical two and a half lines, in the context of the whole of the reasons, makes it clear that the Medical Panel considered that the mild reduction in right rotation was not a significant clinical finding. A court reviewing the reasons of an administrative decision-maker is not to be "concerned with looseness in the language … nor with unhappy phrasing": Collector of Customs v. Pozzolanic[1]; Minister for Immigration and Ethnic Affairs v. Wu Shan Liang[2]. Thus, the task for me is to read the reasons given by the Medical Panel to discern what was meant and not whether there is ambiguity in the way in which what they may clearly have meant was expressed. Indeed, too ready an acceptance of possible ambiguities as actual defects would encourage unmeritorious appeals. I am unable, in this case, to read the Medical Panel as finding that the mild reduction in right rotation was a significant clinical finding. The Medical Panel's use of the expression "other than a mild reduction in right rotation" might, grammatically, be an imprecise way of expressing what it seems to me they must have meant, namely, that they found there to be no significant clinical findings in relation to the worker's neck and that the "mild reduction in the right rotation" which they found to exist was not regarded by them as a significant clinical finding. That view is also consistent with the way in which the Medical Panel expressed itself in the passage quoted at paragraph 4 above. The use of the words "other than" is, as I read them, an indication by the Medical Panel that the mild reduction in right rotation was a fact found by them to exist but which did not amount to a significant clinical finding in relation to the plaintiff's neck. Accordingly, it seems to me that the Panel did not misdirect itself, or failed to consider matters that it was required to consider, or took into account irrelevant considerations that it was not entitled to have regard to. It was, in my view, entitled to conclude that the case fell within Category 1 of Table 73.
[1](1993) 43 FCR 280
[2](1996) 185 CLR 259 at 271-2
The order of the Court, then, is that there be judgment for the defendants. I will hear counsel on the question of costs.
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