Wilkinson v C and M Leussink Pty Ltd

[2015] NSWSC 69

Supreme Court

New South Wales

Medium Neutral Citation:

Wilkinson v C & M Leussink Pty Ltd [2015] NSWSC 69

Hearing dates:

26 June 2014

Date of orders:

17 February 2015

Decision date:

17 February 2015

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court declares that:

(1) The decision of the Appeal Panel in matter number M1-004470/12 made on 3 July 2013 is vitiated by jurisdictional errors.

The Court makes an order

(2) In the nature of certiorari removing into the Court the decision of the Appeal Panel in matter number M1-004470/12 made on 3 July 2013 and quashing that decision.

(3) In the nature of certiorari removing into the Court the Reconsideration of the Appeal Panel in matter number M1-004470/12 made on 14 October 2013 and quashing that decision.

The Court furthers orders that:

(4) Matter number M1-00447-/12 is remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law.

(5) The first defendant is to pay the plaintiff’s costs as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW - judicial review - error of law - decision maker acted beyond jurisdiction - WORKERS COMPENSATION - Workers Compensation Commission - permanent impairment - limited referral from Registrar to Approved Medical Specialist - Approved Medical Specialist decision appealed to Medical Appeal Panel - re-examination by Approved Medical Specialist - reconsideration by Medical Appeal Panel

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)
WorkCover Medical Assessment Guidelines
Workers Compensation Act 1987 (NSW)
Workers Compensation Legislation Amendment Act 2010 (NSW)
Workers Compensation Legislation Amendment Bill 2010 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Abou-Haider v Consolidated Wire Pty Limited [2010] NSWWCCPD 128
Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66
Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175
CSR Limited v Gonzales [2010] NSWWCCPD 118
Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365
Inghams Enterprises Pty Ltd v Lakovska [2013] NSWSC 1489
Markovic v Rydges Hotels Ltd [2009] NSWCA 181
New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
O’Donel v The Commissioner for Road Transport and Tramways (NSW) [1938] HCA 15; (1938) 59 CLR 744
Prisk v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 13
Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231
Rail Services Australia v Dimovski [2004] NSWCA 267
Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1
Siddik v WorkCover Authority of NSW [2008] NSWCA 116

Category:

Principal judgment

Parties:

George Sutherland Wilkinson (Plaintiff)
C&M Leussink Pty Ltd (First Defendant)
Marshall Douglas, Dr Robert Breit And Dr Peter Burke as Members of the Appeal Panel of the Workers Compensation Commission of New South Wales (Second Defendant)
Registrar of the Workers Compensation Commission of New South Wales (Third Defendant)

Representation:

Counsel:
M Allars SC with L Morgan & A Giurtalis (Plaintiff)
S Blount (First Defendant)

Solicitors:
Lough & Wells (Plaintiff)
Bartier Perry (First Defendant)
I V Knight, Crown Solicitor (Submitting Appearance, Second & Third Defendants)

File Number(s):

2013/378807

Publication restriction:

Nil

Judgment

1. By summons filed 17 December 2013, the plaintiff seeks an order in the nature of certiorari quashing two decisions of the second defendant. The first was a decision of a Medical Appeal Panel dated 14 February 2013 revoking a medical assessment certificate issued by an Approved Medical Specialist (“the Appeal Decision”). The second was a decision of the same Medical Appeal Panel on 14 October 2013 refusing to reconsider its earlier decision (“the Reconsideration”). The plaintiff further seeks declarations that the Appeal Decision, the Reconsideration and the Medical Assessment Certificate issued by the panel are void. Finally, the plaintiff seeks an order that the matter be remitted to the third defendant to determine the matter according to law.

2. The plaintiff is George Sutherland Wilkinson (“Mr Wilkinson”). The first defendant is C & M Leussink Pty Ltd (“Leussink”). The second defendant is the Medical Appeal Panel of the Workers Compensation Commission of New South Wales, which consisted of Marshall Douglas, Dr Robert Breit and Dr Peter Burke (“the Appeal Panel”). The third defendant is the Registrar of the Workers Compensation Commission of New South Wales (“the Registrar”). The second and third defendants have filed submitting appearances.

3. Mr Wilkinson relied upon the affidavit of Trevor Wells sworn 7 March 2014. Leussink relied upon the affidavit of Mark William Underwood affirmed 7 April 2014.

Factual Background

4. On 18 February 2004, Mr Wilkinson was employed by Leussink as a sales manager and sustained an injury to his right hip and lumbar spine. While the decision of the Appeal Panel and the Reconsideration involved Mr Wilkinson’s injuries to his lumbar spine and right hip, it is important to appreciate that, it is only the injury to the right hip that is the subject of this judicial review.

5. On 16 November 2004, Mr Wilkinson underwent arthroscopic surgery to a labral tear to his right hip.

6. On 31 July 2008, Mr Wilkinson and Leussink entered into a complying agreement pursuant to s 66A of the Workers Compensation Act 1987 (NSW) (“the Complying Agreement”) for payment of compensation of $2,500 in respect of the claim of injury to his right hip for Whole Person Impairment (“WPI”) of 2 %.

7. On 10 May 2012, Mr Wilkinson lodged an application in the Workers Compensation Commission to resolve a dispute, claiming compensation for pain and suffering in respect of an injury to the “Lumbar spine; right lower extremity (hip)”. Mr Wilkinson sought a lump sum compensation payment and stated that the degree of permanent impairment and the threshold for work injury damages were in dispute.

8. On 11 December 2012, an arbitration hearing took place between the parties. This dispute between the parties as to the degree of permanent impairment was not resolved.

9. On 13 December 2012, the Registrar referred the matter to an Approved Medical Specialist, Dr Thomas Rosenthal (“the AMS”) to be assessed. The AMS held that Mr Wilkinson had a total WPI of 18% with 6% being attributable to his right hip. I shall refer to the decision of the AMS in more detail later in this judgment.

10. Leussink appealed the decision of the AMS to the Medical Appeal Panel. The Appeal Panel (“Appeal Panel”) undertook a preliminary review and determined that Mr Wilkinson should undergo a further medical examination. After taking into account this further medical examination the Appeal Panel issued a certificate attributing a total WPI of 13% but a WPI of 0% in respect of Mr Wilkinson’s right hip. I shall also refer to the decision of the Appeal Panel in more detail later in this judgment.

11. Mr Wilkinson then sought to appeal the decision of the Appeal Panel. However, this did not proceed, as the Commission has no process that allows for the filing of an appeal against the decision of an Appeal Panel. Mr Wilkinson applied for the Appeal Panel to reconsider its decision. The Appeal Panel declined to reconsider its decision. I shall also refer to this decision in more detail later in this judgment.

(A)   Preliminary issue

12. Counsel for Leussink raised a preliminary issue as to whether the application for judicial review has been brought in time. Leussink submitted that if the judicial review seeks to quash the appeal decision of the Appeal Panel then the application for judicial review has not been brought in time.

13. Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) reads:

“59.10   Time for commencing proceedings

(1)   Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2)   The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3)   In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:

(a)   any particular interest of the plaintiff in challenging the decision,

(b)   possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c)   the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d)   any relevant public interest.

…

(5)   This rule does not apply to any proceedings in which the setting aside of a decision is not required."

14. While the parties have been unable to cite any direct authority on this preliminary issue, it is common ground that if the review is brought in relation to the Reconsideration, the application for judicial review is in time. If, however, the judicial review is brought in relation to the decision of the Appeal Panel then it is out of time.

15. UCPR 59.10(2) allows for an extension of time to commence the proceedings. At the hearing of the judicial review application, senior counsel for Mr Wilkinson orally sought an extension of time to commence proceedings if it is deemed necessary.

16. It is my view that the summons is framed to seek judicial review of both the Appeal Panel’s decision and its Reconsideration, so leave may be required at least so far as the Appeal Panel’s decision is concerned.

17. It is helpful to examine why s 378 (the reconsideration provision) was inserted into the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIMWC Act”) and the Workers Compensation Act.

18. Section 378 currently relevantly reads:

“378   Reconsideration of decisions of Registrar or Appeal Panel

(1)   The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.

…

(3)   Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate)

…”

19. In 2005, s 378 was inserted into the WIMWC Act and replaced in 2010. In the agreement in principle speech the Honourable Dr Andrew McDonald identified in the Workers Compensation Legislation Amendment Bill 2010 (NSW) that the purpose was (at 24637-8):

“The objective of section 378 is to lessen the need for formal appeal or review and to expedite resolution of matters by an approved medical specialist where relevant information was inadvertently overlooked or not passed on to the approved medical specialist by the registrar of the commission. The provision allows reconsideration for obvious error.”

20. The legislature created this provision to be utilised by parties seeking to expedite the resolution of their matters. Mr Wilkinson has availed himself of a remedy contained in s 378 of the WIMWC Act.

21. In these circumstances, it is my view that Mr Wilkinson was entitled to utilise the reconsideration provision of the Act prior to seeking judicial review in this Court and no extension of time is required.

22. However, if I am wrong and an extension of time is required, after taking into account the factors in Part 59.10(3) and particularly that no prejudice has been caused to Leussink, I would extend time to file the summons pursuant to Part 59.10(2).

23. It is now necessary to briefly refer to firstly, the decision of the AMS; secondly, the decision of the Appeal Panel; and finally, the Reconsideration.

(1)   The decision of the AMS

24. On 13 December 2012, a delegate of the Registrar referred the medical dispute to the AMS for assessment of the lumbar spine and the right lower extremity (right hip). The following medical matters were to be assessed by him:

1. The degree of permanent impairment of the worker as a result of an injury (s 319(c));

2. Whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s 319(d));

3. Whether impairment is permanent (s 319(f));

4. Whether the degree of permanent impairment of the injured worker is fully ascertainable (s 319(g)).

25. The AMS took into account medical records and reports including clinical records of Dr Rao and medical reports of Dr Giblin, Dr Silva, Dr Rao and Dr Sullivan. On 4 August 2011, Dr Giblin provided a medical report noting that since 2007 Mr Wilkinson had Parkinson’s disease of a moderate extent requiring medication and affecting his upper and lower extremities [Ex TW-1 30-36]. Dr Giblin noted that the MR arthrogram right hip dated 14 September 2004 reported a diagnosis of “a focal tear of the superoanterior labrum” and the MRI scan of both hips dated 19 January 2011 reported “some early arthritic change in the right hip.” [ExTW-1 34].

26. Dr Sullivan, in his report dated 28 January 2001, noted that the results of the MRI scan of Mr Wilkinson’s hip showed the very early degenerative changes in the hip and some labral degeneration but no frank tear or full thickness articular cartilage loss [Ex TW-1 98]. On 7 April 2005, Dr Sullivan stated that there were indications of degenerative change in an MRI of Mr Wilkinson’s right hip [Ex TW-1 136]. In a supplementary report (dated 8 August 2008), Dr Sullivan reported that on 21 April 2005, a MRI scan “showed chondral changes in the hip joint and probable progression in his degenerative changes”. He opined, “the prognosis for Mr Wilkinson’s hip is for gradual progression of degenerative changes and the end result is likely to be total hip replacement” [Ex TW-1 94].

27. In his written reasons, the AMS outlined the medical history of Mr Wilkinson relating to the injury. Relevantly the AMS stated (pp 2 and 3):

“He received treatment for his back and his hip. He was referred to Dr Sullivan Orthopaedic Surgeon, regarding his hip. He had an MRI and a labral tear was found and this was subsequently repaired in 2004. He had had injections prior to this which hadn’t worked. He was told he may need a hip replacement down the track. No further treatment to his hip occurred.

…

However, in 2010 there was a significant flare up in his symptoms.

…

He was perfectly healthy prior to the 2004 injury. He does, however, have Parkinson’s disease which was diagnosed in 2006.

…

general health: He is affected by his Parkinson’s disease, which is also causing significant tremors and generalised stiffness.”

28. On examination, the AMS made the following findings (p 3):

“Straight leg raise was restricted because of his right hip problem. It was to 60 degrees on both sides. Lasegue’s signs were negative. Muscle power and tone in the lower limbs displayed some increased rigidity consistent with Parkinson’s disease. Lower limb reflexes were present and equal. Thigh measurements were 54cm on the right and 53cm on the left. Calves were 40.5cm on the right and 40cm on the left.

Examination of his right hip revealed an irritable right hip with clunking felt. There was reduced movement which was measured with a goniometer. He could flex his hip to 90 degrees, adduction was 25 degrees, abduction was 30 degrees, internal rotation was 25 degrees, external rotation was 10 degrees and extension was normal. He generally had trouble dressing and undressing, which were both done slowly and purposefully.”

29. The AMS outlined the reasons for his assessment of the right hip as follows (p 5):

“The hip (right lower extremity) is assessed under the Lower Extremity Chapters, Range of Motion Model for the hip, Table 17-9. Impairment is found for flexion of 90 degrees resulting in 5% lower extremity impairment and external rotation of 10 degrees results in 10% lower extremity impairment. 15% lower extremity impairment converts to 6% whole person impairment. I had no evidence that his Parkinson’s disease affected his hip movements. There are no other rateable parameters for the hip.

Impairment for the right lower extremity is 6% WPI.” [Emphasis added.]

30. Hence, the AMS referred to the existence of Parkinson’s disease but was of the opinion that there was no evidence that it affected Mr Wilkinson’s hip movements.

31. The AMS noted that an x-ray of the pelvis and right hip dated 25 August 2011 showed no significant abnormalities, and that the MRI of the hips dated 19 January 2011 showed cartilage wear and degenerative fraying in both hips (page 4).

32. The AMS noted that his opinion differed from that of Dr Giblin (report dated 4 August 2011) but explained that Dr Giblin had erroneously applied Table 4.2 of the WorkCover Guides, which only implies for persistent radiculopathy, which was not present. The AMS noted that his opinion also differed from that of Dr Silva. According to the AMS, Dr Silva found only 2% impairment for the right hip because he made a different clinical finding in relation to the range of motion for the right hip.

33. The Certificate issued by the AMS summarised the injuries and diagnosis of the right hip as follows (p 4):

“Mr Wilkinson sustained an injury to his back and right hip in 2004. The right hip injury was a labral tear, subsequently requiring surgery by Dr Sullivan. He has been left with ongoing symptoms in his right hip.

...

His injuries are complicated by his concurrent Parkinson’s disease.”

34. It is fair to say that other than noting that an MRI scan of both hips dated 25 August 2011 showed cartilage wear and degenerative fraying in both hips, the AMS did not make any finding as to whether the presence of arthritis in both hips was significant in the assessment of the WPI to the right hip.

35. On 14 February 2013, the AMS issued a Medical Assessment Certificate, which attributed a WPI of 6% to Mr Wilkinson’s right hip.

The appeal decision

36. On 14 March 2013, Leussink lodged an application to appeal against the decision of the AMS and relied upon s 327(3)(c) and (d) of the WIMWC Act, arguing that the assessment was made on the basis of incorrect criteria (s 327(3)(c)) and that the medical assessment certificate contains a demonstrable error (s 327(3)(d)).

37. On 18 April 2013, a delegate of the Registrar stated that she was satisfied that one ground of appeal, namely s 327(3)(d) of the WIMWC Act, was made out “in relation to the AMS’s assessment of [Mr Wilkinson’s] permanent impairment of the lumbar spine and right lower extremity”.

38. Leussink relied on five principal submissions in support of its grounds of appeal. Four of these related to the findings of the AMS in respect of Mr Wilkinson’s lumbar spine, which are not relevant to this judicial review. For present purposes, it is necessary to refer only to the submission that concerned Mr Wilkinson’s right hip.

39. Leussink argued:

“The AMS failed to examine the worker’s left hip which ought to have occurred for the purpose of determining whether any proportion of the right hip impairment could have resulted from the subsequent non-work Parkinson’s disease, in circumstances where the only hip operation occurred by way of an arthroscopic debridement of a labral tear in November 2004. Dr Bodel assessed 2% WPI (right hip) in June 2008 and the worker received a section 66 settlement for 2% WPI in December 2008 based on that assessment. The AMS failed to compare the extent to which the worker’s Parkinson’s disease has restricted the movement and flexibility in the contralateral, uninjured left hip and failed to conduct a comparative analysis in terms of considering non-work explanations for the further decreased range of movement in the right hip between June 2008 and February 2013, when Dr Bodel assessed the worker as 2% WPI (right hip), and February 2013, when the AMS himself examined the worker and assessed 6% WPI (right hip).”

40. Leussink expanded upon this submission by saying:

“[2.21]   … the AMS set out his range of motion assessments for the worker’s right hip and converted those to lower extremity impairments which he said converted to 6% WPI (right hip/lower extremity). Towards the end of … paragraph [5] the AMS said, ‘I have no evidence that his Parkinson’s disease affected his hip movements’. In this case, in his reports in 2011 and 2012, Dr Silva assessed 2% WPI (right hip/lower extremity). In his previous report on behalf of the worker dated 16 June 2008, Dr Bodel also assessed 2% WPI (right hip). The evidence indicates that the worker was diagnosed with Parkinson’s disease in about 2006. If the AMS had reviewed the clinical notes of Dr Rao GP … he would have seen that there were hardly any complaints of right hip symptoms recorded by the GP in 2007. The worker’s Parkinson’s disease was one of the main conditions discussed during consultations with Dr Rao in that year. The clinical notes also suggest that the worker’s complaints of right hip pain increased in 2008-09 subsequent to the diagnosis of Parkinson’s disease.

[2.22]   The appellant submits that it is well documented that Parkinson’s disease causes stiffness and rigidity in the muscles. The worker’s Parkinson’s disease could very plausibly have resulted in decreased range of movement in his hip joints. The appellant says the AMS’s failure to measure the range of movement in the worker’s left hip meant he could not compare the injured right hip to the uninjured left hip for the purpose of discerning the extent to which the worker’s Parkinson’s disease had probably contributed to a bilateral reduced range of movement in the hips. That way the AMS could have determined whether the additional restriction of range of movement and additional impairment in the right hip, compared to the uninjured left hip, had resulted from the injuries of either 18 February 2004 or 10 May 2004 (had that second injury been considered by the AMS, which it was not). This issue could then have been scientifically determined as the AMS could have identified the extent to which any decreased range of movement in the right hip resulted from the inevitable progression of the worker’s Parkinson’s disease (which had been present for six years leading up to the AMS’s examination of this worker’s hips). The appellant submits that this amounts to the application of incorrect criteria and constitutes a demonstrable error and, if necessary, the appeal panel may decide to re-examine the worker for the purpose of measuring the ranges of movement in both hips and determining the extent to which any increased impairment in the right hip has resulted from the serious non-work condition of Parkinson’s disease.

[2.23]   The appellant submits that it seems odd that when the only right hip surgery was performed in late 2004 (more than eight years ago) that the WPI assessment for the right hip should have tripled since June 2008, when Dr Bodel assessed the worker as 2% WPI (right hip), and since October 2011, when Dr Silva assessed him as 2% WPI (right hip), to the extent that he is now found to suffer 6% WPI (right hip) by the AMS. No adequate or proper reasons were given by the AMS as to why such a tripling of impairment could have occurred so long after the work injury and so long after the only operation to the right hip took place. The appellant submits that this constitutes a demonstrable error and that the safer and more likely assessment in relation to the right hip impairment would be that arrived at by Dr Bodel in June 2008 and Dr Silva in October 2011, as they agreed on an assessment of 2% WPI. It is submitted that the inevitable deterioration of the worker’s Parkinson’s disease over the last six years is a more plausible explanation for the additional impairment in his right hip, than the consequences of the February 2004 injury or the November 2004 hip operation.”

41. It is fair to say that the primary issue raised in Leussink’s appeal submissions was whether the AMS failed to examine Mr Wilkinson’s left hip, which ought to have occurred for the purpose of determining whether any proportion of the right hip impairment could have resulted from the subsequent non-work Parkinson’s disease. There was no specific mention of arthritis in these submissions but there was a passing reference to the failure by the AMS to compare the extent to which the worker’s Parkinson’s disease has restricted the movement and flexibility in the contralateral, uninjured left hip and failure to conduct a comparative analysis in terms of considering non-work explanations for the further decreased range of movement in the right hip between June 2008 and February 2013 (Emphasis added).

42. On 9 April 2013, Mr Wilkinson responded to these submissions in his Notice of Opposition as follows:

“This is a most inappropriate submission and one made without any evidence or foundation. One would have expected an experienced practitioner in this field would have advanced some medical evidence to support such an assertion rather than to talk of matters being ‘well documented’.”

43. This submission does not anticipate that Mr Wilkinson would be medically examined by a member of the Appeal Panel. Hence, does not address Parkinson’s disease nor any “non-work explanation” in relation to the injury of his right hip.

The decision of the Appeal Panel

44. The Appeal Panel was comprised of Arbitrator Mr Marshall Douglas, Orthopaedic Surgeon Dr Robert Briet, and General Surgeon Dr Peter Burke. The Appeal Panel conducted a preliminary review and determined that Mr Wilkinson should be re-examined. Dr Burke examined Mr Wilkinson and the Appeal Panel adopted his findings.

45. The Appeal Panel identified the ground of appeal in relation to the right hip as being that the AMS failed to examine Mr Wilkinson’s left hip. The Appeal Panel stated:

"[30]   … the Panel is of the view that in order to determine whether [Mr Wilkinson’s] impairment of his right lower extremity results from the injury [Mr Wilkinson] received to his right hip on 18 February 2004, and if it does the extent to which any underlying pathology might contribute to the impairment, it is necessary to examine what functional impairment [Mr Wilkinson] may have in his uninjured contralateral joint. It is not apparent from the [Medical Assessment Certificate] that the AMS did this, and hence the Panel decided Dr Burke should examine [Mr Wilkinson].”

46. The Appeal Panel concluded:

“[31]   The Panel is of the view that the history Dr Burke obtained is very thorough as was Dr Burke’s examination of [Mr Wilkinson]. The Panel considers Dr Burke’s findings from his examination are sound. As indicated above, the Panel is able to conduct this appeal as a hearing de novo; that is as a fresh assessment of [Mr Wilkinson’s] permanent impairment. Given the Panel’s views regarding the history Dr Burke obtained and the findings Dr Burke made from his examination of the Panel, the Panel has decided to do this, relying of the findings of Dr Burke. …

[32]   The radiological investigations done of [Mr Wilkinson’s] hips reveal the respondent has bilateral osteoarthritis in these joints. This disease is symptomatic in [Mr Wilkinson’s] right hip. Dr Burke found from his examination of [Mr Wilkinson], that [Mr Wilkinson’s] reduction in movement in each joint was equal. Given [Mr Wilkinson’s] left hip has not been the subject of any injury, and noting that [Mr Wilkinson] has not and does not suffer symptoms in this joint, the Panel infers that [Mr Wilkinson’s] restriction of movement in his right hip is not due the injury [Mr Wilkinson] suffered to this joint on 18 February 2004, but rather is in all likelihood a consequence of [Mr Wilkinson’s] arthritis in his hips. Accordingly the Panel assesses [Mr Wilkinson’s] permanent impairment from the injury to his right lower extremity to be 0 percent.

[33]   The AMS [this should read the Appeal Panel] finds that the [Medical Assessment Certificate] contained a demonstrable error because there was no record within it of the range of motion of the [Mr Wilkinson] left hip.”

47. The Appeal Panel identified the demonstrable error as being that there was no record within the Medical Assessment Certificate of the range of movement of the left hip (AP [33]). After examination of both hips, the Appeal Panel adopted the findings made by Dr Burke when he examined Mr Wilkinson and took into account the radiological investigations of Mr Wilkinson’s hips. The Appeal Panel concluded that Mr Wilkinson had 0% permanent impairment from the injury to his right hip. Accordingly, the Medical Assessment Certificate dated 14 February 2013 was revoked and a new certificate issued. As a result, Mr Wilkinson’s total WPI was assessed at 13% (the WPI assessment for the lumbar spine only).

48. On 27 August 2013, Mr Wilkinson applied for reconsideration of the Appeal Panel’s decision under s 378 of the WIMWC Act.

49. The main issue raised for reconsideration is whether the Appeal Panel went beyond the ground of appeal put forward by Leussink. Mr Wilkinson contended that this ground of appeal was limited to “the extent to which the worker’s progressive Parkinson’s disease had reduced the range of movement in his hips bilaterally” and that by finding that arthritis was affecting Mr Wilkinson’s right hip, the Appeal Panel went beyond the ground of assessing for Parkinson’s disease.

50. On this topic, Mr Wilkinson further submitted that the AMS determined that whatever impairment arose out of the affected hip it was not related to the injury referred to be assessed. Mr Wilkinson submitted that the Appeal Panel fell into error in failing to make a WPI assessment for the injury referred and for failing to follow the approach set out in Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365 at 124, to which I shall later refer.

51. Other errors relied upon by Mr Wilkinson were that the parties were denied the opportunity to obtain relevant expert medical opinions on the question of arthritis, that Dr Burke had failed to use a goniometer in assessing the lower limbs and that the Appeal Panel had failed to make an assessment of permanent impairment and failed to have regard for the Complying Agreement. It was also noted that, while arthritis was said to be bilateral, on examination it was only present in the right hip.

52. On 14 October 2013, the Appeal Panel declined to reconsider its decision.

The Reconsideration

53. In its Reconsideration, the Appeal Panel stated that Leussink relied on ss 327(3)(c) and (d) of the WIMWC Act, and that:

“[11]   …The Panel determined the appeal by reference only to these grounds. That is to say the Panel did not consider the grounds provided in ss 327(3)(a) or (b) in its determination of the appeal, and the appeal was not therefore decided based on either of these grounds. The Panel therefore does not accept Mr Wilkinson’s submission that it moved beyond the grounds of appeal.”

54. This statement is incorrect as the only ground referred to the Appeal Panel was s 373(d), that there was a demonstrable error. The Registrar did not allow s 327(3)(c) through the gateway to the Appeal Panel.

55. In relation to Mr Wilkinson’s submission that the Appeal Panel went beyond the grounds raised by Leussink, the Appeal Panel stated (at [13]):

“[13]   The Panel does not accept that this is the case. The Panel is of the view that the matters upon which C&M Leussink Pty Ltd had addressed the Panel in its written submission supporting its appeal against the [Medical Assessment Certificate] were sufficiently wide to require the Panel to consider all matters of clinical relevance to Mr Wilkinson’s right hip, which included the range of motion of his contralateral joint (the clinical relevance of which the Panel will explain below) and any clinical factors that may affect the function of his hips. Said in another way, and adopting the terminology C&M Leussink Pty Ltd used in its submissions relating to the appeal, one of the points C&M Leussink Pty Ltd raised in the appeal, and therefore a point the Panel had to consider, was “non-work explanations” pertaining to Mr Wilkinson’s range of movement in his right hip.”

56. The Appeal Panel also said that, even if the submission of Leussink were not as wide, the Appeal Panel still had the power to assess the impact of arthritis for the following reasons (at [15]):

“[15] A Panel has the power to examine a worker under section 324(3) of the 1998 Act. Section 324(3) also makes it clear that the purpose of such an examination is to enable a Panel to assess the medical dispute. The medical dispute being assessed by a Panel is necessarily the medical dispute that the Registrar had previously referred to the AMS to assess under s321. A medical dispute being assessed by a Panel may involve broader matters than those that a party raised in an appeal or in response to an appeal. Therefore, given that a Panel when examining a worker in accordance with its powers under s324 is assessing a medical dispute that may involve more clinical issues than that which the parties have highlighted in an appeal against a medical assessment certificate, the consideration by a Panel of the appeal may involve it considering matters other than those the parties have raised in the appeal.”

57. The Appeal Panel went on to cite comments made by McColl JA in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [98]-[99] to support the proposition that the Appeal Panel is entitled to come to the “true and correct view”, even if arriving at such a point goes beyond the grounds of appeal (at [16]). The Appeal Panel stated that the “upshot” of this situation is that it allows the Appeal Panel to identify and correct an error even if such an error was not raised by the parties (at [17]). The Appeal Panel noted that s 328(2) of the WIMWC Act was amended after Siddik, but stated that the amendment would not negate the principle established in that case. The Appeal Panel (at [18]) continued:

“[18] …To illustrate this using the case to hand, the Panel had power to determine the appeal arising from an error the AMS may have made in his examination of Mr Wilkinson even if C&M Leussink Pty Ltd may have not have identified specifically what that error was or how it affected the AMS’s assessment of Mr Wilkinson’s impairment from his injury so long as the circumstances or clinical facts giving rise to that error were such that it enabled the Panel to find that either of the grounds of appeal provided in section 323(3)(c) or (d) was established, because these were the grounds on which C&M Leussink Pty Ltd relied.”

58. In dealing with Mr Wilkinson’s submission that the parties had been denied the opportunity to put forward evidence, the Appeal Panel stated that s 328(3) of the WIMWC Act does not allow the Appeal Panel to receive any additional evidence, unless the evidence was not available to the party before the medical assessment, or could not reasonably have been obtained by the appellant before the medical assessment (paragraph 20). The Appeal Panel relevantly stated:

“[21]   …It seems to the Panel that the relevance of the movement of a contralateral joint to the determination of impairment in the injured joint, is a matter about which a party could readily have obtained evidence before a medical assessment. It is evidence about this matter which Mr Wilkinson contends the Panel’s action denied him the opportunity of obtaining. It seems to the Panel that it is incumbent on a party to obtain evidence of all matters that may be of clinical relevance to assessment of impairment and to ensure that it is presented to the AMS.

[22] In any event, C&M Leussink Pty Ltd in its appeal against the [Medical Assessment Certificate] raised the issue of the AMS failing to examine Mr Wilkinson’s contralateral joint. Assuming s328(3) would not have prevented the admission of evidence on this issue…Mr Wilkinson would still have the opportunity to gather this evidence and present it to the Panel before the Panel considered the appeal.

...

[23]    Further, as has already been noted, two specialist doctors sit on the Panel. These doctors have the clinical expertise and experience to scrutinise for correctness the AMS’s examination, the clinical findings the AMS made and the assessment the AMS made based on those findings. In that circumstance, it seems there would be limited utility, if any, in an expert opinion being obtained on this issue. …”

59. In relation to the assertion that the arthritis was only symptomatic in Mr Wilkinson’s right hip, the Appeal Panel stated that this was of no relevance. The Appeal Panel stated (at [25] and [27]):

“[25]   …The assessment of his impairment must be done in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment, which essentially mandate the use of the evaluation method provided within chapter 17 of AMA5 that yields the highest rating of impairment.

…

[27]   Insofar as the range of motion method could be used to determine Mr Wilkinson’s impairment from the injury to his right hip, it is necessary to establish what movement he had in that joint before the injury. In other words, the extent to which Mr Wilkinson’s injured right hip has been impaired as a consequence of any inability he has to move the joint resulting from the injury, it is necessary to determine the extent to which he could move the joint before he injured it. In the circumstance where there is no history of Mr Wilkinson injuring his contralateral joint and no history of Mr Wilkinson experiencing symptoms in that joint, this is best done clinically by comparing the movement of one joint with the movement in the other. Essentially, the movement of the uninjured and asymptomatic joint establishes a baseline that will then enable an assessment to be made of the extent to which any restriction in the range of movement in the injured joint results from the injury, and thereby enable an assessment of the impairment of the joint from the injury.” [Emphasis added]

60. The Appeal Panel did not accept Mr Wilkinson’s submission that the approach it adopted was the reverse of what should have been done as set out in Elcheikh. The Appeal Panel stated (at [28]):

“[28] A deduction made under s 323(1) is for the proportion of any permanent impairment that is due to a previous injury or pre-existing abnormality or condition. There can only be a deduction under s 323(1) therefore, if the injury has resulted in a worker suffering some degree of permanent impairment from the injury. If there is no permanent impairment from the injury, s 323(1) has no application whatsoever. An assessment of permanent impairment under s 322 requires that impairment from the pathology constituting the injury be assessed: Galluzzo v Little [2013] NSWCA 116. Necessarily this must be assessed first, before s 323(1) is considered. On the Panel's reading of El Cheik, there is nothing within that that suggests any other approach. Here, Mr Wilkinson’s injury is a labral tear in his right hip. Based on Dr Burke’s findings, he does not have any rateable impairment from that injury. Section 323(1) therefore has no application. The Panel simply did not make any deduction for osteoarthritis in this case. What it did was find that Mr Wilkinson has no permanent impairment now from the injury to his right hip. Section 323(1) simply did not come into consideration. The Panel’s remark in its statement of reasons, that in all likelihood Mr Wilkinson’s restriction of movement in his right hip, was made for the sake of completeness and was not a finding relevant to the Panel’s assessment that Mr Wilkinson has no permanent impairment from the injury to his right hip. That finding was based on Mr Wilkinson’s range of movement in his hips being the same bilaterally and to his having no rateable impairment under any of the other assessment methods.”

61. In relation to the Complying Agreement, the Appeal Panel stated (at [30]):

“[30]   It is irrelevant too that the parties had previously agreed that Mr Wilkinson had a 2 per cent whole person impairment from the labral tear he suffered in his right hip from the injury. All this means is that the parties agreed that was his impairment at the time the agreement was struck: see Rail Services Australia Pty Ltd v Dimovski & anor [2004] NSWCA 267.It does not mean that they agree now that is his impairment. Moreover, any agreement between the parties regarding the degree of permanent impairment of Mr Wilkinson cannot fetter or direct the AMS as to what he or she must assess the impairment to be: see Haroun v Rail Corporation of NSW & Ors [2008] NSWCA 192.”

62. The Appeal Panel concluded:

“[31] Under s 378(1) the Panel may reconsider any matter with which it has dealt and may rescind, alter or amend any decision it has previously made. The use of the word “may” in s 378(1) indicates that the Panel’s power to reconsider can be exercised at its discretion: s9(1) Interpretation Act 1987.

[32] S 378(1) therefore provides the panel with a broad discretion. It stipulates no restriction on the matters the Panel may consider, but of course, when deciding whether or not to reconsider its decision in this matter, the Panel must act in good faith having regard only to relevant matters and act in a manner that advances the objects of the legislation.

[33]   Given this, and given what the panel has stated above regarding the correctness of its statement of reasons published on 5 July 2013, the Panel declines to reconsider its decision.”

The application for judicial review

63. Mr Wilkinson challenges the legality of both the Appeal Decision and the Reconsideration.

Grounds of review

64. It was submitted that the Appeal Decision was invalid for jurisdictional error in that the Appeal Panel:

1. Exceeded its jurisdiction by determining the appeal on grounds which were not the ground on which the appeal was made;

2. Asked itself the wrong question and misconceived its function by determining the issue of causation;

3. Made a constructive jurisdictional error by failing to address s 323 of the WIMWC Act;

4. Denied Mr Wilkinson procedural fairness.

65. It was submitted in relation to the Reconsideration that:

1. The Reconsideration was invalid for jurisdictional error because the Appeal Panel:

1. Misconceived its function by finding that it was entitled, in making the Appeal Decision, to base its decision on both s 327(3)(c) and (d);

2. Failed to take into account a relevant consideration, namely that, in making the Appeal Decision, it had an erroneous understanding that its function was not confined to grounds raised on the appeal;

3. Erred in its construction of s 328(2) WIMWC Act;

4. Misconceived the extent of its jurisdiction by considering arthritis;

5. Erred in holding that the Complying Agreement under s 66A was irrelevant.

66. In the alternative, Mr Wilkinson relied upon the following grounds:

1. If the Appeal Panel was held to have acted within jurisdiction in making the Appeal Decision, it made non-jurisdictional errors of law on the face of the record by making any or all of the errors contained in Grounds 1, 2 and 3;

2. If the Appeal Panel was held to have acted within jurisdiction in making the Reconsideration, it made non-jurisdictional errors of law on the face of the record by making any or all of the errors set out in sub-paragraphs (i) to (v) of Ground 5.

67. It will be observed from the foregoing that Ground 5 substantially overlaps with Ground 1. Senior Counsel for Mr Wilkinson dealt with these grounds together in her submissions. For ease of reference, I will adopt the same approach in my reasons.

Whether the Appeal Panel exceeded its jurisdiction (Grounds 1 and 5(i) and (ii))

Mr Wilkinson’s submissions

68. These grounds contain two principal assertions. Firstly, it was argued that the Appeal Panel exceeded its jurisdiction by considering each of ss 327(3)(c) and (d). Secondly, it was argued that the Appeal Panel, in making its Reconsideration, failed to take into account a relevant consideration, namely the error just mentioned.

69. Mr Wilkinson submitted that the Appeal Panel impermissibly considered both grounds of appeal raised by Leussink, in circumstances where the Registrar was satisfied only in relation to the “demonstrable error” ground. In support of this submission, Mr Wilkinson relied on [5] of the Appeal Decision, where the Appeal Panel stated:

“[5]   The Registrar is satisfied that at least one of the grounds for appeal is made out in accordance with section 327(4) of the 1998 Act and the Registrar has referred the Appeal to this Appeal Panel … for review of the original medical assessment.” [Emphasis in original].

70. Mr Wilkinson then directed this Court’s attention to the following paragraphs of the Reconsideration:

“[11]   The grounds on which C&M Leussink Pty Ltd relied in its appeal against the [Medical Assessment Certificate] were those it particularised in Part 3 of its application to appeal, being the grounds provided in ss327(3)(c) and (d) of the 1998 Act. The Panel determined the appeal by reference only to these grounds. That is to say the Panel did not consider the grounds provided in ss327(3)(a) and (b) in its determination of the appeal, and the appeal was not therefore decided based on either of these grounds …

…

[18]   … the Panel had power to determine the appeal arising from an error the AMS may have made in his examination of Mr Wilkinson even if C&M Leussink Pty Ltd may not have identified specifically what that error was or how it affected the AMS’s assessment of Mr Wilkinson’s impairment from his injury so long as the circumstances or clinical facts giving rise to that error were such that it enabled the Panel to find that either of the grounds of appeal provided in s 323(3)(c) or (d) was established, because these were the grounds on which C&M Leussink Pty Ltd relied.” [Emphasis added].

71. Mr Wilkinson submitted that these passages reveal a misapprehension on the part of the Appeal Panel that its function extended to any ground of appeal on which Leussink had relied, rather than confine itself only to the ground referred to it by the Registrar. It was also submitted that this misapprehension amounted to a relevant consideration of which the Appeal Panel was required to take into account in the Reconsideration. The misapprehension when making the Appeal Decision, and the failure to take it into account when making the Reconsideration, amounted to jurisdictional errors, so it was contended.

Leussink’s submissions

72. It was submitted on behalf of Leussink that the Appeal Panel did not misapprehend the scope of its role. Leussink contended that, on a fair reading of the Appeal Decision, the Appeal Panel did not determine the appeal on the ‘incorrect criteria’ ground. Rather, it found that there was a demonstrable error.

73. As to the references to s 328 (c) and (d) by the Appeal Panel in the Reconsideration, it was submitted on behalf of Leussink that these were merely misstatements of fact made four months after the Appeal Decision, and were not reflective of an error of substance in the approach taken by the Appeal Panel. In any event, Leussink submitted that these misstatements could not be relied upon to impugn the earlier Appeal Decision.

Consideration

74. The four grounds on which a party may appeal against a medical assessment are set out in s 327(3). They are:

“(3)   The grounds for appeal … are any of the following grounds:

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

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

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

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

75. An appeal is made by application to the Registrar: s 327(4) WIMWC Act. According to s 327(4), an appeal is not to proceed unless:

“… the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.”

76. The Appeal Panel is constituted under s 328(1) WIMWC Act. The procedure on the appeal is governed by s 328(2). This subsection was amended in 2010 by the Workers Compensation Legislation Amendment Act 2010 (NSW).

77. The predecessor of s 328(2) read:

“(2)   The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines can provide for the procedure on an appeal.”

78. The current s 328(2) reads:

“(2)   The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The WorkCover Guidelines can provide for the procedure on an appeal.”

79. I accept that the Registrar was satisfied only one ground, namely s 327(3)(d), was made out. It is important to note that s 328(2) does not contain any reference to the Registrar or to s 327(4).

80. Leussink raised two grounds of appeal, namely, s 327(3)(c) and s 327(3)(d). While the appeal is limited to the grounds on which it is made, the authorities indicate that those grounds must be read in conjunction with the submissions made by the parties: see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [49] and [52] per Davies J; Inghams Enterprises Pty Ltd v Lakovska [2013] NSWSC 1489 at [34] per Hidden J. Davies J in New South Wales Police Force concluded that the Appeal Panel could not consider any matter that fell within one of the grounds identified in the application to appeal. It had to be a matter that fell within the relevant paragraph and which had been identified by the appellant (at [51]).

81. The phrase “grounds for appeal” that appears in s 328(2) is also used in ss 327(1), 327(4) and 327(5) of the 1998 Act. When the phrase is used it is with reference to the grounds identified in s 327(3).

82. In 328(2) the words “grounds of appeal” appear whereas s 327 refers to “grounds for appeal”. I do not discern any different meaning arising from the use of a different preposition.

83. The ordinary meaning of the words “the review is limited to the grounds of appeal on which the appeal is made” does not add the words “that the Registrar was satisfied had been made out”. In the present case, Leussink raised two grounds of appeal, 327(c) and 327(d).

84. A difficulty for the Appeal Panel occurred because Leussink’s submissions on its appeal failed to differentiate between what it asserted to be ‘incorrect criteria’ on the one hand, and what it asserted to be ‘demonstrable errors’ on the other. For example, at [2.1] of its submissions, Leussink stated that “the AMS applied incorrect criteria and/or made demonstrable errors in the following ways …”  In relation to the failure of the AMS to examine Mr Wilkinson’s left hip, it was said in these submissions that “this amounts to the application of incorrect criteria and constitutes a demonstrable error”.

85. The Appeal Panel identified the error (at [30]) as “it was not apparent from the [Medical Assessment Certificate] that the AMS had examined uninjured collateral joint (in his left hip) and [at 33] concluded that “…the [Medical Assessment Certificate] contained a demonstrable error because there was no record within it of the range of motion of [Mr Wilkinson’s] left hip”. The Appeal Panel was empowered to consider both s 327(c) and (d). The Appeal Panel confined itself to identifying a demonstrable error and dealt with that issue. The approach of the Appeal Panel does not contain any error.

86. The Appeal Panel in its Reconsideration indicated that the grounds on which C&M Leussink Pty Ltd relied in its appeal were s 327(3)(c) and (d). It went on to say that it determined the appeal by reference only to those grounds and did not consider the grounds provided in s 327(3)(a) and (b). The Appeal Panel had jurisdiction to consider both s 327(c) and (d). The Reconsideration does not reveal any error here. This ground of judicial review fails.

(2)   De novo review or rehearing (Grounds 1 and 5(iii))

Mr Wilkinson’s submissions

87. It was submitted that the Appeal Panel misconstrued its jurisdiction under s 328(2) by conducting a de novo review, in circumstances where it was required to conduct a review in the nature of a rehearing.

88. Mr Wilkinson referred this Court to [16] of the Appeal Decision, where the Appeal Panel stated:

“[16]   In this matter the Registrar has determined that she is satisfied that at least one of the grounds of appeal under section 327(3) is made out. The Panel has accordingly conducted a review of the material before it and reached its own conclusion concerning the correct assessment of the impairment suffered by [Mr Wilkinson].”

89. Reference was also made to the following statement at [31]:

“[31]   As indicated above, the Panel is able to conduct this appeal as a hearing de novo; that is as a fresh assessment of [Mr Wilkinson’s] permanent impairment.”

90. Mr Wilkinson also argued that the Appeal Panel upheld this approach in its Reconsideration. In particular, at [16] of the Reconsideration, the Appeal Panel incorrectly stated that the judgment of McColl JA in Siddik authorised it to conduct the review de novo. Mr Wilkinson also referred to the decision in New South Wales Police Force, supra, where Davies J held that an appeal panel had erred in basing its assessment on an examination undertaken by one of its members, and finding an error via that examination rather than an error that was readily observable on the Medical Assessment Certificate.

91. In the present case, it was also submitted, one of the members of the Appeal Panel conducted a medical examination of Mr Wilkinson without finding error in the Medical Assessment Certificate. This error amounted to a misapprehension of the role of the Appeal Panel.

Leussink’s submissions

92. It was submitted on behalf of Leussink that the Appeal Panel did not fall into error. Leussink argued that the Appeal Panel identified a demonstrable error pursuant to s 327(3)(d), being the failure of the AMS to investigate Mr Wilkinson’s left hip, and it was only after identifying that error that the Appeal Panel went on to examine Mr Wilkinson. It was submitted that, while the Appeal Panel stated that it was empowered to conduct a de novo review, it is clear that it did not.

Consideration

93. It was not in dispute in the present case that the Appeal Panel was required to undertake a review in the nature of a rehearing. This is because the grounds of appeal were under s 327(3)(c) and 327(3)(d).

94. Clause 45 of the WorkCover Medical Assessment Guidelines empowers an appeal panel to conduct certain procedures “in accordance with the needs of the individual case”. These procedures include preliminary reviews, “on the paper” reviews, further medical examination by an approved medical specialist on the appeal panel, and, if necessary, assessment hearings.

95. Once a re-examination is triggered, s 324(3) applies. It reads:

“This section extends to the assessment of a medical dispute in the course of an appeal … An approved medical specialist who is a member of the Appeal Panel hearing the appeal … has all the powers of an approved medical specialist under this section on an assessment of a medical dispute.”

96. It further provides that “an approved medical specialist 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 this section on an assessment of a medical dispute.”

97. I bear in mind what was said by the Court of Appeal in Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36]:

“[36]   The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:

… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

98. It is true that the statement of reasons for the Reconsideration misstated the principles espoused by McColl JA in Siddik in respect of the nature of its task. However, what is relevant is the actual approach taken by the Appeal Panel. That approach should fairly be described as a rehearing. That is, the Appeal Panel reviewed the Medical Assessment Certificate for error.

99. The approach taken by the Appeal Panel in these proceedings is distinguishable from that which occurred in New South Wales Police Force. In that case, Davies J stated at [33]:

“[33]   …if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.”

100. It is important to appreciate that the Appeal Panel identified the error as being the failure of the AMS to examine the worker’s left hip (AP decision [30]). This falls within s 328(3)(d), namely, a demonstrable error. Having satisfied itself that there was error, the Appeal Panel only then proceeded to examine Mr Wilkinson itself. It was not submitted by Mr Wilkinson that the Appeal Panel was not entitled to conduct its own examination. This approach is consistent with s 324(3) WIMWC Act.

101. This ground of judicial review fails.

Grounds 1 and 5(iv) - arthritis

Mr Wilkinson’s submissions

102. It was submitted that the Appeal Panel erred in its construction of the grounds of appeal raised by Leussink. Mr Wilkinson argued that the grounds of appeal complained only of the effect of Parkinson’s disease on the assessment of Mr Wilkinson’s permanent impairment. That is, it did not raise the issue of arthritis. It was submitted that, while the grounds of appeal referred briefly to “non-work explanations”, the only non-work explanation which Leussink alleged had contributed to Mr Wilkinson’s impairment movement was Parkinson’s disease. In these circumstances, it was asserted that the Appeal Panel’s task was confined to the question of whether the failure of the AMS to conduct a comparative analysis of Mr Wilkinson’s left hip to determine the effect of Parkinson’s disease amounted to a demonstrable error.

103. Mr Wilkinson also asserted that the Appeal Panel erroneously believed that its jurisdiction extended to a consideration of any matter of clinical relevance to Mr Wilkinson’s right hip.

Leussink’s submissions

104. It was submitted on behalf of Leussink that its submissions in support of the grounds of appeal particularised the demonstrable error as being a failure to examine Mr Wilkinson’s uninjured left hip for the purposes of comparison with the right hip. While the submissions referred to Parkinson’s disease, it was submitted that they were broad enough to encompass other possible explanations. For example, the reference in the submissions to “non-work explanations” meant the Appeal Panel had not trespassed its jurisdiction by considering arthritis as an explanation.

Consideration

105. The question for determination is whether the Appeal Panel, upon a proper reading of the original grounds of appeal and submissions, was required to confine its analysis to the effect of Parkinson’s disease on Mr Wilkinson’s right hip, or whether it was permitted to also consider other “non-work explanations”.

105. The Appeal Panel was required to confine its task to “the grounds of appeal” on which the appeal was made. In this case, the relevant ground of appeal was that the Medical Assessment Certificate contained a demonstrable error for the purpose of s 327(3)(d). That ground of appeal was particularised as follows:

“The AMS failed to examine the worker’s left hip which ought to have occurred for the purpose of determining whether any proportion of the right hip impairment could have resulted from the subsequent non-work Parkinson’s disease … The AMS failed to compare the extent to which the worker’s Parkinson’s disease has restricted the movement and flexibility in the contralateral, uninjured left hip and failed to conduct a comparative analysis in terms of considering non-work explanations for the further decreased range of movement in the right hip between June 2008, when Dr Bodel assessed the worker as 2% WPI (right hip), and February 2013, when the AMS himself examined the worker and assessed 6% WPI (right hip)."  [Emphasis added.]

107. In my view, the demonstrable error raised by Leussink on its appeal was the failure of the AMS to examine Mr Wilkinson’s left hip. Parkinson’s disease may have been offered as an explanation; however, the question on the appeal was whether the failure to examine the left hip amounted to a demonstrable error.

108. The results of the medical examination in relation to both hips were adopted. The Appeal Panel referred to the radiological investigations done of Mr Wilkinson’s hips and concluded that they reveal the respondent has bilateral osteoarthritis in these joints. This disease is symptomatic in Mr Wilkinson’s right hip. Dr Burke found from his examination of Mr Wilkinson, that Mr Wilkinson’s reduction in movement in each joint was equal. The Panel inferred that Mr Wilkinson’s restriction of movement in his right hip is not due the injury Mr Wilkinson suffered to this joint on 18 February 2004, but rather is in all likelihood a consequence of Mr Wilkinson’s arthritis in his hips.

109. It is my view that a proper reading of the grounds of appeal and submissions did not confine its analysis to Parkinson’s disease. The Appeal Panel was entitled to consider other ‘non-work” explanations. While this ground of judicial review fails, I will refer to the Appeal Panel’s conclusion that Mr Wilkinson’s restriction of movement in Mr Wilkinson’s right hip is not due to the injury Mr Wilkinson suffered to this joint on 18 February 2004, but rather is in all likelihood a consequence of Mr Wilkinson’s arthritis in his hips.

Grounds 1 and 5(v)

Mr Wilkinson’s submissions – the Complying Agreement

110. Mr Wilkinson submitted that the Appeal Panel exceeded its jurisdiction by recording a finding of 0% WPI, in disregard for the Complying Agreement in which WPI was agreed at 2%. It was submitted that, on a true construction of s 66A, the Appeal Panel was prohibited from reducing the WPI below that which was agreed to under s 66A. In effect, Mr Wilkinson contended that both the AMS and the Appeal Panel were bound by the Complying Agreement. It was suggested that they were permitted to increase WPI, but they could not decrease it. To the extent that the Appeal Panel considered itself not bound by the terms of the Complying Agreement when making its Appeal Decision and Reconsideration, it was submitted that the Appeal Panel was in error.

111. Mr Wilkinson referred to the decision of Rail Services Australia v Dimovski [2004] NSWCA 267, on which the Appeal Panel had relied in its Reconsideration. At [30] of the Reconsideration, the Appeal Panel stated:

“[30]   It is irrelevant too that the parties had previously agreed that Mr Wilkinson had a 2 per cent whole person impairment from the labral tear he suffered in his right hip from the injury. All this means is that the parties agreed that was his impairment at the time the agreement was struck: see Rail Services Australia Pty Ltd v Dimovski & anor [2004] NSWCA 267.”

112. Mr Wilkinson submitted that this was not a correct statement of the proposition in Dimovski. It was contended that that case was authority for the proposition that a consent order could not give rise to an issue estoppel in relation to a changing situation. Mr Wilkinson submitted that Dimovski was inapplicable to the present case.

Leussink’s submissions

113. Leussink submitted that the Appeal Panel was not bound by the Complying Agreement when assessing WPI. It was asserted that Mr Wilkinson cannot rely upon a determination of his WPI on 31 July 2008 to establish his WPI in respect of the same injury on 5 July 2013. Leussink relied on O’Donel v The Commissioner for Road Transport and Tramways (NSW) [1938] HCA 15; (1938) 59 CLR 744, where Evatt J stated (at 763):

“The argument involves and is based upon the fallacy that, where an issue between A and B relates to a state of things which is capable of subsequent alteration, the conclusive determination in A's favour of that state of things as at one day plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A's favour as against B an estoppel as to the state of things existing at the later day. If, for instance, a court held that, on June 30th, 1935, the value of Blackacre was £50,000, and if, in subsequent proceedings between the same parties to determine the value of Blackacre as at June 30th, 1936, it was also proved that there had been no increase or decrease in the value of Blackacre between June 30th, 1935 and 1936, a court which has jurisdiction to determine the value as at the second date is not bound to find that there is an estoppel as to the value of Blackacre as at the second date."

114. Similarly here, what the appellant is trying to do is to eke out a conclusive determination that incapacity through blindness as at an anterior point of time can, by additional proof of absence of any change in the meantime, be converted into a conclusive determination of incapacity through blindness at a later point of time. But this method, though logically sound, is not permitted by law. Estoppel by judgment estops not only as to the res determined but also as to the fundamental issues necessarily involved in the determination, but it does not authorize the use of each issue originally determined merely as the first but unbreakable link in establishing a separate and independent issue. In other words, as against a successful party the unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be.”

115. Leussink further submitted that Presidential Decisions of the Workers Compensation Commission are consistent with the proposition that s 66A agreements deal with the finality of the agreement as to the worker’s entitlement (CSR Limited v Gonzales [2010] NSWWCCPD 118), that an estoppel only operates for degree of WPI at the date of agreement (Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66), and an estoppel cannot operate in the face of a changing situation such as a claim for a lump sum (Abou-Haider v Consolidated Wire Pty Limited [2010] NSWWCCPD 128).

116. It was also put forward by Leussink that the Complying Agreement was not made pursuant to a Medical Assessment Certificate conclusively presumed to be correct in respect of the degree of WPI to Mr Wilkinson’s right hip. Indeed, Leussink further submitted that the Application to Resolve a Dispute that Mr Wilkinson filed on 10 May 2012 generated a “medical dispute” between the parties as to the degree of impairment to Mr Wilkinson’s right hip as at the date of the filing of the application on which there was no agreement.

117. Leussink disputed Mr Wilkinson’s contention that, by reason of the terms of s 66A, the Appeal Panel had no power to decrease the agreed figure of permanent impairment to the right hip. Further, it was stated by Leussink that the Complying Agreement had been discharged by payment of the agreed sum of $2,500.00. Therefore, it was asserted that Mr Wilkinson’s entitlement to compensation was not, in fact, decreased.

Consideration

118. The Complying Agreement was entered into on 31 July 2008. By that agreement, Leussink agreed that Mr Wilkinson suffered 2% WPI to his right hip, and compensation was paid to Mr Wilkinson for the amount of $2,500.00 plus costs. The issue to be decided is whether the Complying Agreement bound the Appeal Panel to the extent that the Appeal Panel could not assess WPI as being lower than that provided for in the agreement.

119. In Prisk v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 13, Roche DP summarised the authorities dealing with this issue (at [55]-[60]):

“[55]   There is no issue estoppel in a changing situation (Spencer Bower, at p102 and Hamersley Iron Pty Ltd v The National Competition Council [2008] FCA 598 at [114] to [116]), and a later claim for hearing loss compensation as a result of a further injury is one example of such a situation. This point is succinctly illustrated in Spencer Bower (at [185]):

‘An agreement to pay compensation registered under the Workmen’s Compensation Acts estopped the employer from disputing liability for the accident; but not from contending that the worker’s death did not result from it.’

[56]   The authorities cited in Spencer Bower are Cleverley v Gas Light and Coke Co (1907) 24 TLR 93 and O’Donel v Commissioner for Road Transport [1938] HCA 15; (1938) 59 CLR 744 (‘O’Donel’). The authority of O’Donel is of particular significance and was considered and applied by Handley JA in Dimovski.

[57]   In Dimovski, the parties settled a claim by consent for 25% loss of use of a leg and an award was entered in those terms. In later proceedings the worker sought an additional payment under section 66 of the 1987 Act as a result of an alleged increase in the loss of use of the same leg due to further injuries. The trial judge held that the worker had sustained further injuries that had a permanent effect on the leg but she did not increase the award of 25%.

[58]   On appeal it was argued that the earlier consent award created estoppels, which meant that if the later injuries had a permanent effect then there had to be an increase in the percentage loss of use awarded. Justice Handley set out the principles at [9] to [12]:

‘[9]   Mr King submitted that the Judge erred in law in failing to give effect to the estoppel created by the consent award by finding that although the worker had suffered further injuries to his left leg his current loss of use was still only 25%. A consent judgment can create res judicata estoppels: Spencer Bower, Turner & Handley “Res Judicata” 1996 pp 21-2. The estoppels flowing from the consent award bound the second respondent as a party and the appellant as a privy in interest, as the second respondent’s statutory successor: Spencer Bower & Ors (above) pp 119-22.

[10]   The argument based on issue estoppel involved two propositions. The first was that the consent award conclusively determined that as at 16 October 1996 the worker had a permanent impairment of his left leg at or above the knee of 25% which was the result of an injury or injuries sustained in the employment of the second respondent. This is correct. The second was that he suffered two further injuries to his left leg in the employment of the appellant, one from the nature and conditions of his work, and the other the frank injury on 25 May 1998. This was also correct.

[11]   If these further injuries caused other than temporary aggravations of the worker’s condition they must have increased the impairment in his left leg. The Judge did not find that they only caused temporary aggravations, but nevertheless found no increased impairment. Accordingly it was submitted that she had disregarded the estoppel. Mr King relied strongly on her statement that the consent award was ‘possibly not reflective of an accurate assessment’.

[12]   These submissions must be rejected because they are contrary to the principles established in O’Donel v Commissioner for Road Transport [1938] HCA 15; (1938) 59 CLR 744. A decision that a worker’s total blindness between 14 September 1934 and 15 February 1935 arose from an injury in the course of his employment was held not to issue estop the employer from contending that his blindness after 15 February 1935 arose from other causes. Evatt J said at 763:

":The argument involves and is based upon the fallacy that where an issue between A and B related to a state of things which is capable of subsequent alteration, the conclusive determination in A’s favour of that state of things as at one date plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A’s favour as against B an estoppel as to the state of things existing at the later day ... this method, thought logically sound, is not permitted by law ... The unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be."

[59]   Dealing specifically with the consent awards, his Honour said (at [14]):

"The consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker’s impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the Judge." (emphasis added)

[60]   In the same case Hodgson JA said (at [57]):

"The inconsistency point was supported by submissions concerning issue estoppel. However, although an issue estoppel binds the parties as to the issues actually determined, they are not bound in relation to any different issue, not even where the combination of the original issue and extremely strong evidence would support a finding on the second issue: see O’Donel v. The Commissioner for Road Transport and Tramways (NSW) (1938) 59 CLR 747 at 763."

120. In Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231, I stated (at [80] and [83]):

“[80]   In Mrs Haroun’s case, the [Medical Assessment Certificate] issued by Dr Schutz is now more than five years old. She was entitled under the law, as it existed at the time she made the application, to commence new proceedings for additional lump sum compensation. That claim was supported by a WPI assessment in the proper form that had a higher assessment than in the previous award or order of the Commission.

…

[83]   Prisk v Department of Ageing, Disability and Home Care (No 2) and Abou-Haidar v Consolidated Wire Pty Ltd established there is no issue estoppel running from a determination of the Commission as at a particular date to an assessment at a later time in circumstances capable of change. The Registrar stated at [11] that a degree of permanent impairment or loss of use that results from injury is a circumstance capable of change. The role of an Approved Medical Specialist at a later time is to give an opinion as to the degree of permanent impairment as a result of the work injury now present. The Approved Medical Specialist is not legally constrained by the prior award and is not required to ground their assessment, whether of improvement, deterioration or no discernible change, upon the previous determination of the commission. Any presumption of continuance falls away because the later certificate of the Approved Medical Specialist is conclusively presumed to be correct in that regard.”

121. In having regard for the decisions outlined above, it is important that the provisions of s 66A are properly understood.

122. Section 66A creates a binding contractual agreement between an employer and its employee. Pursuant to subsection 66A(5) such an agreement is an exception to s 234 WIMWC Act, which is a provision that normally prohibits parties from contracting out of the application of the WIMWC Act.

123. Subsection 66A(3) outlines the circumstances in which the Commission may award additional compensation. That is, where one of the following is established:

“(a)   the agreed degree of permanent impairment is manifestly too low, or

(b)   the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or

(c)   since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.”

124. Subsection 66A(2) entitles the employee to compensation in respect of the degree of permanent impairment that is agreed between the parties. Leussink cannot deny the binding nature of the Complying Agreement it entered into with Mr Wilkinson. Indeed, it did not attempt to do so. The $2,500.00 plus costs that has been paid to Mr Wilkinson is final and cannot be undone by the Commission.

125. However, it should also be noted that the finding of 0% by the Appeal Panel in respect of the degree of permanent impairment associated with Mr Wilkinson’s right hip is separate from the Complying Agreement. The valid finding of a demonstrable error by the Appeal Panel, and the subsequent finding of arthritis is all a consequence of the original referral by the Registrar for the AMS to assess the four factors:

“1.   The degree of permanent impairment of the worker as a result of an injury;

2.   Whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion;

3.   Whether impairment is permanent;

4.   Whether the degree of permanent impairment of the injured worker is fully ascertainable.”

126. The Complying Agreement does not affect the ability of the Appeal Panel, or the Commission more generally, to assess Mr Wilkinson’s degree of permanent impairment, even if the figure reached is lower than what was agreed to in the Complying Agreement. The arthritis that was discovered by the Appeal Panel is a condition that has affected Mr Wilkinson’s ability to move both his right and left hip. A considerable amount of time has elapsed between the workplace accident in 2004 and the Appeal Panel assessment in 2013. Consequently, it is highly likely that a condition, such as arthritis, could develop as an alternative factor that is affecting Mr Wilkinson’s use of his right hip. It is my view that the Appeal Panel is not estopped, due to the Complying Agreement, from finding a lower WPI.

127. Accordingly, this ground of judicial review fails.

Ground 2 – causation

Mr Wilkinson’s submissions

128. This ground relates only to the Appeal Decision. It was submitted that the Appeal Panel asked itself the wrong question, and misconceived its function under s 328, by determining the causation of Mr Wilkinson’s injury to his right hip. Thereby, the Appeal Panel purported to exercise a power that was not vested in it.

129. At [30] of the Appeal Decision, the Appeal Panel stated that:

“[30]   …in order to determine whether [Mr Wilkinson’s] impairment of his right lower extremity results from the injury [Mr Wilkinson] received to his right hip on 18 February 2004, and if it does the extent to which any underlying pathology might contribute to the impairment, it is necessary to examine what functional impairment [Mr Wilkinson] may have in his uninjured contralateral joint.”

130. The Appeal Panel continued at [32]:

“[32]   Given [Mr Wilkinson’s] left hip has not been the subject of any injury, and noting that [Mr Wilkinson] has not and does not suffer symptoms in this joint, the Panel infers that [Mr Wilkinson’s] restriction of movement in his right hip is not due the injury [Mr Wilkinson] suffered to this joint on 18 February 2004, but rather is in all likelihood a consequence of [Mr Wilkinson’s] arthritis in his hips. Accordingly the Panel assesses [Mr Wilkinson’s] permanent impairment from the injury to his right lower extremity to be 0 percent.”

131. It was submitted that an approved medical specialist, and, therefore, a panel constituted under s 328 to conduct an appeal, is not empowered to determine the question of causation of an injury. It was submitted that this was a matter that could not be referred for assessment by reason of s 321(4)(a). That sub-section provides that a Registrar may not refer for assessment:

“…a medical dispute concerning permanent impairment … of an injured worker where liability is in issue and has not been determined by the Commission …”

132. Mr Wilkinson referred to the decision of Schmidt J in Elcheikh at [124], where her Honour stated:

“[124]   …The legislative scheme required the medical specialist to determine [the applicant’s] deductible proportion, not by reference to his workplace injury, but rather by determining what contribution the pre-existing condition had made to the permanent impairment which had resulted from the injury. The starting point of a medical assessment is that the impairment being assessed resulted from injury suffered at work.”

133. Mr Wilkinson submitted that Leussink had conceded liability in respect of the impairment to his right hip by entering into the Complying Agreement. It follows, so it was submitted, that causation and liability were not in issue.

Leussink’s submissions

134. Leussink conceded that there was some “looseness in the language and some unhappy phrasing” in the relevant passages of the Appeal Decision. Nevertheless, it was argued that this Court should not presume that the Appeal Panel was not aware that it was not authorised to determine the question of causation.

Consideration

135. It is my view that the statements of the Appeal Panel at [30] and [32] of the Appeal Decision are findings in relation to causation. The Appeal Panel considered that the impairment to Mr Wilkinson’s right leg was not due to his work-related injury, but rather to an underlying arthritic condition. This was the basis on which the Appeal Panel assessed Mr Wilkinson’s permanent impairment at 0%. In doing so, the Appeal Panel purported to exercise a statutory function it did not have. This amounted to jurisdictional error.

Approach to s 323(1) – Ground 3

Mr Wilkinson’s submissions

136. This ground follows directly from Ground 2. In circumstances where the Appeal Panel was satisfied that there was an underlying non-work-related condition, Mr Wilkinson submitted that the correct approach was for the Appeal Panel to address the test in s 323(1) of the WIMWC Act. That test provides that:

137. “In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury … or that is due to any pre-existing condition or abnormality.”

138. Mr Wilkinson submitted that the question of arthritis was only permitted to be taken into account in accordance with the approach under s 323(1). Failure to do so, it was argued, amounted to a jurisdictional error.

Leussink’s submissions

139. Leussink noted that Mr Wilkinson’s contention presupposes the existence of permanent impairment in the right hip of more than 0% WPI, as there can be no deduction from a workplace injury rated at 0% WPI. As I understand it, Leussink was submitting that there was no practical distinction between 0% WPI arrived at under s 323, and the same figure arrived at by the processes adopted by the Appeal Panel.

Consideration

140. The failure of the Appeal Panel to address s 323 amounted to error. The correct approach was to assess Mr Wilkinson’s permanent impairment arising from his work-related injury, and deduct from that such a figure as represented the proportion of the impairment that was due to his arthritis. This amounts to jurisdictional error.

Procedural fairness – Ground 4

Mr Wilkinson’s submissions

141. It was argued under this ground that the Appeal Panel denied Mr Wilkinson procedural fairness by not disclosing to him the issue of arthritis before making the Appeal Decision.

142. Mr Wilkinson referred to Markovic v Rydges Hotels Ltd [2009] NSWCA 181. There, the Court of Appeal found that a worker was denied procedural fairness by an appeal panel of the Workers Compensation Commission when it did not give him an opportunity to be heard on new issues raised by the panel itself.

143. Moreover, Mr Wilkinson submitted that the denial of procedural fairness was not ‘cured’ by the Reconsideration under s 378(1). This was so, it was submitted, because the Reconsideration did not provide a rehearing on the merits, with an opportunity to adduce fresh evidence.

Leussink’s submissions

144. Leussink submitted that Mr Wilkinson was not denied procedural fairness. It was contended that Mr Wilkinson was on notice of the issue of arthritis prior to the Appeal Decision, and, therefore, was not denied a reasonable opportunity to present his case. Moreover, Leussink pointed to the fact that arthritis was the not the central issue before the Appeal Panel. The central issue, it was submitted, was whether the failure to examine the left hip amounted to a demonstrable error.

145. In support of its submissions, Leussink relied on the report of Dr Giblin dated 4 August 2011. In that report, Dr Giblin referred to MRI scans of Mr Wilkinson’s hips undertaken on 19 January 2011, which revealed “some early arthritic change in the right hip”. The AMS noted the report of Dr Giblin in the original Medical Assessment Certificate. No specific reference was made, however, to arthritis. The Appeal Panel referred to the MRI scans in its Appeal Decision. Again, however, no reference was made to arthritis. Leussink referred to Dr Giblin’s report in its submissions in response to Mr Wilkinson’s application for a reconsideration of the Appeal Decision. Accordingly, Leussink submitted that Mr Wilkinson was on notice.

Consideration

146. In Siddik v WorkCover Authority of NSW at [101] and [104] McColl JA stated:

“[101]   …while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate

…

[104]   …it was open to the Appeal Panel to depart from the grounds of appeal [but] 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.”

147. In Markovic v Rydges Hotels Limited it was held that where the Appeal Panel did not give the worker, an opportunity to be heard on the new issues they themselves raised, and having thus misconceived their role, the nature of their jurisdiction and their duty, the Panel’s Medical Assessment Certificate must be quashed and the appeal from the Medical Assessment Certificate of the AMS heard by a fresh Panel.

148. In my view, the failure of the Appeal Panel to put the parties on notice that it intended to consider the role of arthritis as an explanation for the restriction of movement in Mr Wilkinson’s right hip amounted to a denial of procedural fairness. While it is true that Dr Giblin briefly referred to arthritis in his report, arthritis was not mentioned as being a non-work explanation and was not the subject of submissions to the Appeal Panel. A fair reading of Leussink’s submissions identified the non-work explanation as Parkinson’s disease. It was only after a member of the Appeal Panel examined Mr Wilkinson’s hips that the significance of arthritis became an issue. Up until this time, no medical specialist nor the parties had appreciated the significance of the presence of arthritis in both hips. In these circumstances, it is my view Mr Wilkinson was denied a reasonable opportunity to present his case and was denied procedural fairness.

149. The next question that arises is whether the denial of procedural fairness in the Appeal Decision was ‘cured’ by the Reconsideration under s 378. Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 stated (at 14):

“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice the concern of the law is to avoid practical injustice.”

150. While I accept that before the Reconsideration took place, Mr Wilkinson was aware that arthritis was central to the Appeal Panel’s decision. However, the Appeal Panel had already concluded that the restriction in movement in Mr Wilkinson’s right hip was due to arthritis and the denial of procedural fairness had already occurred. The parties should have been given the opportunity to make submissions and seek to rely on medical evidence dealing with this issue before the Appeal Pane reached its conclusion.

151. As there are other jurisdictional errors, I need not decide this point. However, I will make these tentative comments. On reconsideration, while an Appeal Panel can rescind, alter or amend its decision, it can only do so if it is satisfied that its decision contains an obvious error. Its jurisdiction is limited. The Appeal Panel may not consider that a denial of procedural fairness is an obvious error. However, as I have quashed the decision of the Appeal Panel, the Reconsideration can no longer stand and it is infected by error. I quash the Reconsideration.

Grounds 6 and 7

152. In view of my earlier decisions, it is not necessary to determine Grounds 6 and 7.

Conclusion

153. There have been a number of jurisdictional errors in the Appeal Panel’s decision. These errors were not cured by the Reconsideration. Hence, in my view both decisions should be quashed. The proceedings should be remitted to the Workers Compensation Commission for determination according to law.

154. Costs are discretionary. Cost usually follow the event. The first defendant is to pay the plaintiff’s costs as agreed or assessed.

The Court declares that:

(1)   The decision of the Appeal Panel in matter number M1-004470/12 made on 3 July 2013 is vitiated by jurisdictional errors.

The Court makes an order

(2)   In the nature of certiorari removing into the Court the decision of the Appeal Panel in matter number M1-004470/12 made on 3 July 2013 and quashing that decision.

(3)   In the nature of certiorari removing into the Court the Reconsideration of the Appeal Panel in matter number M1-004470/12 made on 14 October 2013 and quashing that decision.

The Court furthers orders that:

(4)   Matter number M1-00447-/12 is remitted to the Workers Compensation Coission of New South Wales to be determined in accordance with law.

(5)    The first defendant is to pay the plaintiff’s costs as agreed or assessed.

**********

Decision last updated: 18 February 2015