Velickovich v Registrar of the Workers Compensation Commission & Anor

[2007] NSWSC 1208

CITATION:	Velickovich v Registrar of the Workers Compensation Commission & Anor [2007] NSWSC 1208
HEARING DATE(S):	26/10/2007
JUDGMENT DATE :	1 November 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	The Summons is dismissed. The plaintiff is to pay the costs of the Summons.
CATCHWORDS:	Judicial review - incorrect criteria - allegation of lack of reasons given by AMS - review sought in respect of decision by Delegate - no challenge available on merits - role of Registrar
LEGISLATION CITED:	Supreme Court Act 1970 (NSW) Workplace Injury Management Act 1998 (NSW)
PARTIES:	Milan Velickovich (Pl) Registrar of the Workers Compensation Commission (1st Def) Demolition Plus Pty Ltd (2nd Def)
FILE NUMBER(S):	SC 30046/07
COUNSEL:	Mr R. Harrington (Pl) Ms M. Allars (2nd Def)
SOLICITORS:	Petrovich Accident Lawyers (Pl) Crown Solicitor (1st Def) (Submitting appearance) Moray & Agnew (2nd Def)
LOWER COURT JURISDICTION:	Workers Compensation Commission
LOWER COURT FILE NUMBER(S):	16680-06
LOWER COURT JUDICIAL OFFICER :	Ms Samira Kamandi (Delegate of the Registrar)
LOWER COURT DATE OF DECISION:	18/04/2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

1 November 2007

30046/07 Milan Velickovich v Registrar of the Workers Compensation Commission & Anor

JUDGMENT

1 HIS HONOUR: The plaintiff suffered a work injury on 7 September 2002. An application to resolve a dispute was filed with the Workers Compensation Commission (the Commission). The medical dispute between the parties was referred for assessment to an Approved Medical Specialist (the AMS). The AMS came to make his assessment of degree of permanent impairment and issued his certificate (the certificate). The certificate recorded an 11% whole person impairment “as a result of his back condition resulting in surgery”.

2 The plaintiff then brought an appeal against the decision of the AMS. The application for appeal was made on the ground of incorrect criteria only. Unusually, the ground of demonstrable error was not also relied on.

3 Broadly speaking, the documentation raised a number of matters in support of the ground of incorrect criteria. There was an allegation of failure to conduct a proper physical examination and comply with paragraph 4.32 of the Workcover Guides to the Evaluation of Permanent Impairment (Workcover Guides). There was allegation of error in the making of a deduction of one-tenth based upon a pre-existing condition. There was an allegation that the AMS failed to make an allowance for the effects of surgery in accordance with paragraph 4.34 of the Workcover Guides. The defendant joined issue on these allegations. For completeness, I should record that there was no suggestion of failure to give adequate reasons.

4 On 18 April 2007, a Delegate of the Registrar made a decision on the application. The decision was to the effect that the Registrar was not satisfied that at least one of the grounds of appeal as specified in s327(3) of the Workplace Injury Management Act 1998 (NSW) (the Act) had been made out. Accordingly, the appeal did not proceed.

5 On 9 May 2007, the plaintiff filed a Summons in this Court. The Summons named the Registrar of Workers Compensation Commission as the first defendant. The second defendant was the employer. The AMS was not named as a defendant. The plaintiff now proceeds on an Amended Summons. Relief is sought pursuant to s69 of the Supreme Court Act 1970 (NSW) (by way of judicial review).

6 The relief sought in the Amended Summons is directed to the decision of the first defendant only. This decision was therein said to contain a jurisdictional error.

7 The hearing took place on 26 October 2007. The plaintiff and the second defendant were legally represented. Both Counsel made written submissions. There was also oral argument.

8 Before proceeding further, I should foreshadow the initial direction taken by the plaintiff’s case during that hearing. Save as to one aspect, rather than attack the decision of the Delegate, the plaintiff’s case was directed to contents of the certificate (by way of failure to give adequate reasons and alleged error). There were further changes in presentation as the hearing proceeded. I shall mention them later.

9 Before turning to the submissions, I should refer to certain of the contents of the certificate.

10 Paragraph 4 thereof deals with “History Relating To The Injury”. It contains, inter alia, the following [at p3]:-

“Some 15 years ago he was working in the demolition business in Adelaide and he developed back and neck pain as a result of the nature and conditions of his work. He said that there was no specific injury. Investigations at the time demonstrated old Scheuermanns Disease but it was not felt to be relevant in his back condition. He said it was attributed to muscle and nerve damage. He was off work for around 18 months to two years and then returned to work via a rehabilitation group. He eventually obtained a settlement. He was transferred back to Sydney and once again worked in the demolition industry. He said at the time of his fall he was not having any back pain.”

11 Paragraph 5 of the certificate sets out the purported findings of the AMS on physical examination.

12 Paragraph 6 thereof sets out “Details And Dates Of Special Investigations”. One of the investigations was an MRI of the spine on 26 June 2006.

13 Paragraph 7 is headed “Summary”. It refers to the surgery had by the plaintiff. It contains the following [at p5]:-

“Subsequent to his surgery he recovered well but then developed further symptoms. Examination at the moment demonstrates evidence of ongoing symptoms but no evidence of radiculopathy.”

14 Paragraph 10 thereof (which is headed “Reasons For Assessment”), contains, inter alia, the following:-

“b. an explanation of my calculations in addition to the worksheet or actual calculations attached
Under Table 15.3 on Page 384 of the AMA Guides I feel that he qualifies for DRE Lumbar Category III at 10 to 13 percent impairment of whole person because of his surgery for radiculopathy. I have not added further under table 4.2 as I could find no evidence of radiculopathy persisting. I have added 2 percent for the effects on ADLs and estimated 12 percent. I have made a deduction because I found that he has a history of back pain in the past that kept him off work for two years. He said however, that he had recovered from this but there would have been some significant pathology at that time and degenerative changes were noted on his initial x-rays. I have deducted the statutory one-tenth because of the difficulty of estimating this contribution. His total whole person impairment is thus 11 percent.”

15 This paragraph also contains what are described as brief comments regarding other medical opinions relied on by the parties. These comments, inter alia, addressed findings made by other experts in respect of the questions of radiculopathy and of pre-existing condition.

16 I shall now turn to the written submissions made by Counsel for the plaintiff, as well as to his additional oral submissions.

17 The written submissions summarise the perception had by him as to what the issues were before the AMS. It is said that there was no real dispute that the plaintiff’s injury fell within DRE lumbar category III. It was further submitted that:-

“38. In essence there was only was only (sic) two matters which were in dispute: the presence or absence of radiculopathy following surgery and whether the impairment in part related to a pre-existing injury”

18 These submissions saw an abandonment of aspects of the ground of appeal and an express challenge to what was done by the AMS, inter alia, by way of an attack on the sufficiency of his reasoning process in respect of each of the two matters referred to in paragraph 38 thereof.

19 At this stage, I should again observe that the ground of appeal did not raise any suggestion of complaint concerning the sufficiency of the reasoning process of the AMS. It was not a matter that was put before the Registrar on the application for appeal. In my view, it cannot afford any basis for a challenge directed either to a decision of the Registrar or on the basis of jurisdictional error. Despite the determinative consequences of this view, I will, in deference to the arguments that have been put, briefly refer to other matters.

20 The AMS has a statutory obligation to give reasons for his assessment (s325 of the Act). A failure to perform that statutory obligation does not provide a ground of appeal. If it is to be the subject of challenge, perhaps the only avenue may be by way of judicial review of the decision of the AMS.

21 However, leaving those considerations aside, it seems to me that an examination of the submissions reveals that they are, in substance, a challenge on the merits to the findings made by the AMS on the matters of the absence of radiculopathy and pre-existing condition. It is a challenge that is not open to the plaintiff in proceedings for judicial review.

22 Leaving those matters aside, for completeness, I shall briefly address the challenge to the sufficiency of disclosure of reasoning process.

23 It seems to me that his finding on the absence of radiculopathy was based on the physical examination made by the AMS and the other material placed before him. He said in the certificate that he could find no evidence of radiculopathy persisting. In the circumstances of this case, I consider that he has said all that he need say on the matter. Further, I consider that the real attack was one of error (that is that, on the evidence, a finding of radiculopathy should have been made).

24 Also, it seems to me that he has set out in some detail the reasoning process that led him to make the deduction for pre-existing condition (both as to why he made one and as to how he came to quantify it). Again, I consider that the real attack on what was said by the AMS is one of lack of supporting evidence for what he had done. For example, in paragraph 46 of the submissions, Counsel refers to the findings of the AMS as “pure speculation”.

25 In the course of oral submissions, the case for the plaintiff seemed to take yet another change of direction (despite demonstrable error not having been relied on as a ground of appeal). It was said that, by reason of s3 and of subs (3) of s327 of the Act, the Registrar had a duty to consider any other ground of appeal that became apparent from the material. Accordingly, it was further said that the Registrar should have become aware of the obvious demonstrable error and should have taken steps to rectify it.

26 I do not need to stress that this novel contention was not open to be litigated in the process relied on by the plaintiff. The argument was presented without notice to the second defendant. As a consequence, it was not, and could not be, fully argued.

27 In the presentation of the submission, emphasis was placed on the provisions of subs (4) of s327 of the Act. At first blush, it would seem to me that the language of the sub-section, and other provisions, gave little support, if any, for the submission. In this case, it is unnecessary to say anything further on the matter.

28 In addition, also for completeness, I should mention the matter of incorrect criteria. The attention of the Court was drawn to clauses 4.23 and 4.24 of Chapter 4 of the Workcover Guides.

29 Clause 4.23 defines radiculopathy as the impairment caused by malfunction of a spinal nerve root or nerve roots. It further provides that, in general, in order to conclude that a radiculopathy is present, two or more of the signs referred to therein should be found. In this case, the AMS did not find the presence of two or more of the specified signs.

30 Clause 4.24 provides that radicular complaints of pain or sensory features which cannot be verified by neurological findings do not alone constitute radiculopathy. In this case, there were neurological findings that could be looked at to come to the view that neurological findings did not verify the radicular complaints of the plaintiff.

31 In the circumstances (assuming that the matter was still being pressed), I do not consider that allegations of application of incorrect criteria have been made out.

32 In conclusion, I observe that the Court has a discretionary power to grant relief by way of judicial review. The plaintiff bears the onus of demonstrating an entitlement to that relief. In my view he has failed to do so in this case. Indeed, what was presented was a “moving target” that was redolent with misconception.

33 The Summons is dismissed. The plaintiff is to pay the costs of the Summons.

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