Windley v Workers Compensation Nominal Insurer

Case •

[2021] NSWSC 1125

•

03 September 2021

Supreme Court


New South Wales

Medium Neutral Citation: Windley v Workers Compensation Nominal Insurer [2021] NSWSC 1125
Hearing dates: 7 July 2021
Date of orders: 03 September 2021
Decision date: 03 September 2021
Jurisdiction:Common Law
Before: Harrison AsJ
Decision:

The court orders:

(1) A declaration that the certificate and statement of reasons of the third defendant dated 4 February 2021 is set aside.

(2) The matter is remitted to the President of the Personal Injury Commission of New South Wales to be determined according to law.

(3) The first defendant is to pay the plaintiff’s costs

Catchwords:

ADMINISTRATIVE LAW – Judicial review– Personal Injury Commission – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Review of the decision of a Medical Appeal Panel – Jurisdictional error – Error on face of the record – Complex regional pain syndrome – Whether Medical Appeal Panel erred in finding the Medical Assessor did not provide sufficient reasons

Legislation Cited:

Supreme Court Act 1970 (NSW), s 69

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 327, 328 and 331

Cases Cited:

Ballas v Department of Education [2020] NSWCA 86

Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284

Cincotta v Police Citizens Youth Club NSW Ltd & Ors [2018] NSWSC 1588

El Masri v Woolworths Ltd [2014] NSWSC 1344

Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638

Hanna v Delta Electrical and Security Pty Ltd [2019] NSWSC 1127

Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112

Minister for Immigration and Citizenship v SZMDS

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Petrovic v BC Serve No 14 Pty Ltd t/as Broadlex Cleaning Service [2007] NSWSC 1156

Sadsad v NRMA Insurance Limited [2014] NSWSC 1216

Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324

Category:Principal judgment
Parties: Damien Windley (Plaintiff)
Workers Compensation Nominal Insurer (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
A Medical Appeal Panel constituted by Members John Harris, Dr Mark Burns and Dr Brian Noll (Third Defendant)
A Medical Assessor constituted by Dr Yu-Key Ho (Fourth Defendant)
Representation:

Counsel:
E Romaniuk (Plaintiff)
C Roberts (First Defendant)

Solicitors:
Turner Freeman Lawyers (Plaintiff)
Hickson Lawyers (First Defendant)
Crown Solicitor, Submitting Appearance (Second, Third & Fourth Defendants)
File Number(s): 2021/58017
Publication restriction: Nil

Judgment

  1. HER HONOUR: This is a judicial review of a decision of a Medical Appeal Panel of the Personal Injury Commission pursuant to ss 327 and 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

  2. By amended summons filed 23 June 2021, the plaintiff seeks:

  1. A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for the decision of the third defendant and issued by the second defendant is void and of no effect.

  2. An order setting aside the decision and the statement of reasons for decision of the third defendant and issued by the second defendant.

  3. A declaration pursuant to s 69 of the Supreme Court Act that the decision and the statement of reasons for decision of the fourth defendant and issued by the second defendant is void and of no effect.

  4. An order setting aside the decision and the statement of reasons for decision of the fourth defendant and issued by the second defendant.

  5. An extension of time to commence these proceedings as against the fourth defendant.

  1. The plaintiff is Damien Windley. The first defendant is the Workers Compensation Nominal Insurer (“the Nominal Insurer”). The second defendant is the President of the Personal Injury Commission of New South Wales (“the Personal Injury Commission”). The third defendant is a Medical Appeal Panel constituted by Members John Harris, Dr Mark Burns and Dr Brian Noll (“the Medical Appeal Panel”). The fourth defendant is a Medical Assessor constituted by Dr Yu-Key Ho (“the Medical Assessor”).

  2. As the Nominal Insurer is the only contradictor, the second, third and fourth defendants have all filed submitting appearances. The parties relied upon their joint court book.

Background

  1. On 27 March 2015, the plaintiff sustained injury in the course of his employment. He was employed as a baker and sustained a hyperflexion type injury to his right hand when handling a heavy cast iron baking tray. After the incident, the plaintiff worked for about one week in a modified capacity, and then ceased work.

  2. Leading up to the assessment of the degree of permanent impairment by the Medical Assessor, the plaintiff had been clinically diagnosed as suffering from a chronic regional pain syndrome, and had undergone management, which included the implantation of a stimulator device.

  3. On 11 February 2020, the plaintiff attended Dr Lai for an assessment of Whole Person Impairment (“WPI”). Dr Lai assessed the degree of permanent impairment under Table 17.1 of the NSW Workers Compensation Guidelines for Evaluation of Permanent Impairment, 4th edition (“the Guidelines”) concluding that the plaintiff’s degree of WPI was at 56 per cent. On 28 February 2019 and 26 March 2020, on behalf of the Nominal Insurer, the plaintiff was assessed by Dr Reiter. Dr Reiter was of the view that the plaintiff did not meet the criteria for Table 17.1, but nonetheless assessed the plaintiff’s degree of WPI, under Table 16-3 p 439, as 18 per cent.

  4. Prior to the assessment by the Medical Assessor, the dispute as to the degree of permanent impairment between the parties related to the contest between an assessment where Table 17.1 was satisfied and an assessment of WPI of 56 per cent was made, and an assessment where Table 17.1 was not satisfied and an assessment of WPI of 18 per cent was made.

  5. The body parts referred to by the Medical Assessor were “right upper extremity (waist) or chronic pain condition in the right upper extremity (shoulder, elbow, wrist and hand)”.

  6. The Medical Assessor determined the degree of WPI to be 5 per cent.

  7. The plaintiff appealed under ss 327 and 328 Workers Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Management Act”), and the Registrar referred the appeal to a Medical Appeal Panel.

  8. On 11 January 2021, Parnel McAdam, Principal Lawyer, in her reasons for her decision at [5] stated that she was satisfied on the face of the application and submissions, that at least one of the plaintiff’s grounds of appeal had been made out. It is with the result that this appeal was referred to the Appeal Panel.

  9. On 4 February 2021, the Medical Appeal Panel (“Appeal Panel”) concluded that the Medical Assessor’s deduction for a pre-existing condition was incorrect. The Appeal Panel rejected the plaintiff’s complaint that there was an error in the Medical Assessor’s reasons so far as his consideration of Table 17.1 was concerned. The Appeal Panel also rejected the plaintiff’s application to place further evidence before it.

  10. The plaintiff seeks judicial review of the whole of the decision and the statement of reasons for the decision of the Medical Assessor dated 23 October 2020; and the whole of decision of the Medical Appeal Panel dated 4 February 2021.

Extension of time

  1. On 4 February 2021 the Appeal Panel provided written reasons for its decision and issued a certificate. On 1 March 2021 the plaintiff filed his summons in this Court. The plaintiff does not require an extension of time in relation to the Appeal Panel’s decision. For reasons that appear below, I have declined to entertain the judicial ground of review that relates to the Medical Assessor’s decision dated 23 October 2020. Therefore, there is no requirement for an extension of time to be granted.

Grounds of judicial review

  1. I will deal with Judicial ground (1) in relation to the Appeal Panel first, that is whether the decision of the Medical Assessor should be set aside.

  2. The parties referred to Cincotta v Police Citizens Youth Club NSW Ltd & Ors [2018] NSWSC 1588 (“Cincotta”) where Hoeben CJ at CL stated at [6]-[9]:

“6 I have a preliminary difficulty with the form of the Summons in that I do not understand how, in the context of the Workplace Injury Management Act 1998 (NSW) (the Act) and as a matter of principle, the plaintiff can or needs to challenge the Medical Assessment Certificate Further Assessment or Reconsideration dated 22 November 2017. (For ease of reference, I will refer to this Certificate as MAC 2.)

7 It is clear from the Act that once the Medical Appeal Panel had issued its reasons that became the operative decision so far as these proceedings are concerned. That is the effect of the structure of the Act and in particular, ss 325A, 328(5) and 329(2). Section 328(5) effectively provides that a certificate issued by an Appeal Panel takes the place of any previous Medical Assessment Certificate (MAC). Significantly, if this Court were to find error in the Appeal Panel decision, the appropriate remedy (whether or not there was an error in the MAC 2) would be to remit the decision to the Appeal Panel. Alternatively, if the Court were to find an error in the MAC 2, but there was no error in the Appeal Panel decision, the effect of such a finding would be that the Appeal Panel decision had cured such an error.

8 As a matter of principle, that is the approach normally followed in legislation which provides for an appeal process. In Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; 139 FCR 344 the Court (Finn, Mansfield and Gyles JJ) said:

“32  It should therefore be concluded that the Tribunal did have power to review the delegate’s decision. The Tribunal was, in consequence, able to “cure” the defect in the delegate’s decision: see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116. Because of our conclusion it is unnecessary to enter upon the question whether a direct challenge could have been made to the delegate’s decision in judicial review proceedings in disregard of the procedure for Tribunal review: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.”

Observations to similar effect were made in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmedand Anor [2005] FCAFC 58; 143 FCR 314 (Hely, Gyles and Allsop JJ at [12]-[14], [37]-[43]).

9 In any event, I decline as a matter of discretion to deal with the plaintiff’s challenge to the MAC 2 and reasons on the basis that the Act provides an effective and convenient remedy if there is error in the certificate and reasons of an AMS by way of the Medical Appeal Panel as provided by s 327 of the Act. That was the first option for the plaintiff if he wished to challenge the MAC 2, rather than by way of bringing s 69 proceedings in this Court. Moreover, not only did the plaintiff have an avenue for appeal by way of the Medical Appeal Panel, but he exercised that right.”

The plaintiff’s submissions

  1. The plaintiff submitted that the approach of the Medical Assessor contains several errors. Therefore, he seeks that the decision of the Medical Assessor be set aside.

  2. The plaintiff agrees that in the workers compensation scheme, the approach of setting aside both decisions is not routinely followed. But here there is an identified deficiency in the underlying primary assessment by the Medical Assessor and as it is, in effect, the root of all evil, it should therefore be set aside. The legislation does not seem to have any statutory prohibition of that occurring. It’s just the matter that it is not commonly done.

  3. The Nominal Insurer takes a neutral position in relation to whether the decision of the Medical Assessor should be set aside.

Resolution

  1. Based on the decision in Cincotta, and for the reason of comity, in the exercise of my discretion, I decline to deal with the challenge to the Medical Assessor’s decision on the basis that the Workplace Injury Management Act provides an effective and convenient remedy if there is a purported error in the Medical Assessor’s decision. Section 328(5) effectively provides that a certificate issued by the Appeal Panel takes the place of the previous medical assessment certificate issued by the Medical Assessor. Hence judicial ground of review (1) fails.

Remaining grounds of judicial review

  1. The remaining grounds of judicial review concern the decision of the Appeal Panel. They are:

(2) The Appeal Panel misunderstood, and misapplied, ss 327 and 328 of the Workplace Injury Management Act and the impact of the decisions of Petrovic v BC Serve No 14 Pty Ltd t/as Broadlex Cleaning Service [2007] NSWSC 1156 (“Petrovic”) and Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112 (“Lukacevic”) when considering whether it should receive fresh evidence comprising of a statement by the plaintiff in relation to what he says happened at the assessment by the Medical Assessor and two colour photographs. As a result of the Appeal Panel’s misunderstanding, and misapplying, of the principles to be applied, the Appeal Panel rejected those materials, including on a mistaken discretionary basis, and did not consider the relevant information (fresh evidence).

  1. The Appeal Panel erred in not concluding that the Medical Assessor had erred in respect of, and not complied with, his reasons obligation in respect of the assessment performed by the AMS under Table 17.1 and for upper extremity impairment. I will refer to the plaintiff’s articulated Judicial Ground (2) in more detail later in this decision (failure of the Appeal Panel to find that Medical Assessor did not provide sufficient reasons).

  2. The Appeal Panel erred in relying on the notion that that plaintiff’s symptoms and condition had markedly changed from time to time and that was an explanation for why the Medical Assessor’s findings as to Table 17.1 and limb impairment were markedly different from the findings of others in circumstances where there was no evidence of such a marked change in the plaintiff’s symptoms and condition during the period concerning the assessment by medical practitioners for medico-legal purposes and the assessment by the Medical Assessor, and where the Medical Assessor did not in his reason point to this change as being the explanation. This was particularly the case as the parties’ engaged medico-legal experts had considered the plaintiff’s WPI to be 18 per cent or 56 per cent WPI and the Medical Assessor’s assessment was markedly below that range, and there was no body of evidence that showed that the plaintiff’s symptoms and condition has so dramatically improved by the time the plaintiff was assessed by the Medical Assessor. The Appeal Panel’s logic, and conclusion, in this regard was irrational and there was no evidence to support it (changing symptoms).

  3. The Appeal Panel held that the Medical Assessor’s decision was in error in relation to s 323 of the Workplace Injury Management Act, but the Appeal Panel’s decision as to the percentage of permanent impairment was the same as the Medical Assessor’s decision and the Appeal Panel provided no reasons as to why this was the correct outcome (s 323 deduction).

The relevant legislation

  1. Before I deal with the grounds of judicial review, it is necessary that I now briefly refer to the relevant provisions of the Workplace Injury Management Act.

  2. Sections 327 and 328 of the Workplace Injury Management Act relevantly read:

“327 Appeal against medical assessment

(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3) The grounds for appeal under this section are any of the following grounds-

…

(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.

(4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.

…

328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows-

(a) 2 medical assessors,

(b) 1 member of the Commission who is a member assigned to the Workers compensation Division of the Commission.

(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.

…

(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.

…

(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.

  1. In the present case, the medical assessment was in relation to Complex Regional Pain Syndrome (CRPS).

The Guidelines

  1. Section 331 of the Workplace Injury Management Act requires the Appeal Panel to apply the Guidelines in conducting its review. Section 331 relevantly reads:

"331   Guidelines

Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments."

The Guidelines

The Guidelines are set out in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016).

Clause 1.6 of the Guidelines provides "a basic summary of some key principles of the permanent impairment assessment." They include:

"a.   The assessment of the impairment involves a clinical assessment as they present on the day of assessment.

…

b.   Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.

…”

  1. The plaintiff submitted that unlike a clinical diagnosis of chronic regional pain syndrome, which may be made on the basis of a number of different criterion, Table 17.1 prescribes a defined, step-by-step, set of criteria for Type 1 or Type 2 chronic regional pain syndrome and sets out a four step process for Complex Regional Pain Syndrome.

  2. The NSW Workers Compensation Guidelines for the evaluation of permanent impairment 4th Edition dated 1 April 2006 are the relevant guidelines (“the Guidelines”).

  3. Table 17.1 of the Guidelines read:

“Complex Regional Pain Syndrome Type 1

For Complex Regional Pain Syndrome Type 1 (CRPS1) to be present for the purposes of assessment:

a)    the diagnosis is to be confirmed by criteria in Table 17.1

b)   the diagnosis has been present for at least one year (to ensure accuracy of the diagnosis and to permit adequate time to achieve maximum medical improvement)

c)   the diagnosis has been verified by more than one examining physician

d)   other possible diagnoses have been excluded.

e) CRPS1 is to be assessed as follows:

○ Apply the diagnostic criteria for complex regional pain syndrome type 1 (Table 17.1).

Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2

1   Continuing pain, which is disproportionate to any casual event.

2   Must report at least one symptom in each of the following four categories:

i)   Sensory: Reports of hyperaesthesiae and/or allodynia.

ii)   Vasomotor: Reports of temperature assymetry and/or skin colour changes and/or skin colour assymetry.

iii)   Sudomotor/oedema: Reports of oedema and/or sweating increase or decrease and/or sweating asymmetry.

iv)   Motor/trophic: Reports of decreased range of joint motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin).

3   Must display at least one sign* at time of evaluation in all of the following four categories:

i)   Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement).

ii)Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes.

iii)Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry.

iv)Motor/trophic: Evidence of decreased active joint range of motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin).

4   There is no other diagnosis that better explains the signs and symptoms.

*   A sign is included only if it is observed and documented at time of the impairment evaluation.

Then consider the following in assessing CRPS1:

•   If the criteria in each of the sections 1, 2, 3 and 4 in Table 17.1, above, are satisfied, the diagnosis of CRPS1 may be made.

•   Rate the extremity impairment resulting from loss of motion of each individual joint involved.

•   Rate the extremity impairment resulting from sensory deficits and pain, according to the grade that best fits the degree or amount of interference with ADL, as described in AMA5 Table 16.10a (p 482). Use clinical judgement to select the appropriate severity grade and the appropriate percentage from within the range shown in each grade. The maximum value is not automatically applied. The value selected represents the extremity impairment. A nerve value multiplier is not used.

•   Combine the extremity impairment for loss of joint motion with the impairment for pain or sensory deficit using the Combined Values Chart (AMA5, p 604) to obtain the final extremity impairment.

•   Convert the final extremity impairment to WPI using AMA5 Table 16.3, (p 439) for the upper extremity and AMA5 Table 17.3 (p 527) for the lower extremity.”

  1. Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638 (“Elsworthy”), is instructive, as Fagan J considered the chronic regional pain syndrome guidelines. I have also adopted this approach in using (a) to (d) and (i) to (iv) to better explain Table 17.1, just as Fagan J has done. This is described in Elsworthy at [8], [41]-[45] where his Honour stated:

“[8] Chapter 17 of the Guidelines is entitled “Evaluation of permanent impairment arising from chronic pain (exclude AMA5 Chapter 18)”. Clause 17.5 includes the following:

17.5   … Table 17.1 is used to determine if complex regional pain syndrome (CRPS) is a rateable diagnosis. It is important to exclude diagnoses that may mimic CRPS, such as disuse atrophy, unrecognised general medical problems, somatoform disorders and factitious disorder. Once the diagnosis is established, assess impairment as in AMA5.

…

[41] … Of the four requirements a-d at the commencement of the criteria for consideration of CRPS, item a is that the AMS should confirm the diagnosis by application of the criteria in Table 17.1. Undoubtedly those criteria are strict and demanding. The Guidelines state at length in cll 17.1-17.5 why these strict criteria have been adopted, including the following:

17.3 [P]ain is a subjective experience and is, therefore, open to exaggeration or fabrication in the compensation setting. Assessment depends on the credibility of the subject being assessed. In order to provide reliability, applicants undergoing pain assessments require more than one examiner at different times, concordance with the established conditions, consistency over time, anatomical and physiological consistency, agreement between the examiners and exclusion of inappropriate illness behaviour.

[42] I construe the word “diagnosis” in items a-d as having the same meaning each time it appears. That is, it refers to a diagnosis arrived at by application of the criteria in Table 17.1, as item a explicitly states. This means that for CRPS to be present for the purposes of assessment it must have been diagnosed according to those criteria for at least one year and the diagnosis must have been verified according to those criteria by more than one examining physician. Not only does the language of items a-d indicate, by the undifferentiated use of the word “diagnosis”, that the diagnosis over at least one year and the diagnosis by more than one physician must all be according to the Guidelines but, further, this construction addresses the explicit concern stated in cl 17.3. That concern would not be met if items b-d could be satisfied by other physicians’ diagnoses, spanning a year or more, made according to undefined criteria, perhaps less stringent than those of Table 17.1. This consideration supports the construction I have adopted.

[43] The plaintiff’s submissions to the Court dwelt upon the opinions of treating clinicians predating Dr Lewington’s examination. A number of these were to the effect that the plaintiff suffered from CRPS. These opinions are apparently what is referred to in the expression “history and management of the worker” in ground (e). The plaintiff’s argument is that Dr Lewington should have found the diagnosis of CRPS “has been present for at least one year” (item b) and “has been verified by more than one examining physician” (item c) on the basis of the “history and management of the worker” reflected in his treating clinicians’ opinions, irrespective of the criteria those clinicians applied.

[44] Upon the construction of items a-d outlined above I reject this. Notably, all but one of these other diagnoses were based upon the “Budapest criteria”. These are set out in a report of Dr Russo, pain specialist, dated August 2011, as follows:

According to the Budapest clinical criteria for CRPS the patient must report continuing pain that is disproportionate to the inciting event… The patient must also report one symptom in three of the four following categories:

Sensory (report of hyperesthesia (sic) or allodynia) - …

Vasometer (sic) (temperature asymmetry and/or skin colour changes …

Sudomotor/oedema - …

Motor/trophic changes (decreased range of movement and/or motor dysfunction and/or trophic changes to the hair, skin, nails) - …

The patient must also display at least one sign in two of the above four categories.

[45] The Budapest criteria are less demanding for a diagnosis of CRPS than Table 17.1 of the Guidelines. Contrary to the plaintiff’s submissions I do not consider that these other opinions, based upon criteria different from those which Dr Lewington was bound in law to apply, establish error by him or by the Panel or have any relevance to the validity of their decisions. Only one of the other doctors, of Dr Glass in a report dated 18 November 2016, found all criteria of Table 17.1 satisfied. On examination in November 2016 Dr Glass found signs under items 3i-iv which were not present at Dr Lewington’s examination on 1 May 2017.”

Judicial Ground (1) – fresh evidence

  1. This ground of judicial review is that the Appeal Panel misunderstood, and misapplied, ss 327 and 328 of the Workplace Injury Management and Workers Compensation Act and the impact of the decisions of Petrovic and Lukacevic when considering whether it should receive fresh evidence.

  2. The Appeal Panel’s reasons at [23] to [52] addressed the topic of fresh evidence. The Appeal Panel stated as follows:

“APPLICATION TO ADDUCE FRESH EVIDENCE

[23]   The appellant sought to rely on a statement dated 19 November 2020 which discussed the examination conducted by the AMS and two coloured photographs "provided by Dr Lai".

[24]   The appellant submitted:

"The appellant seeks leave to rely on statement of the appellant dated 19 November 2020 which is the appellant's account of the examination conducted by the AMS and deals with significant discrepancies between findings in the Medical Assessment Certificate and the Appellant's account of the examination conducted by the AMS. The Appellant's statement is central to the issues to be determined in the appeal."

[25]   The appellant also submitted that the colour photographs "are objective evidence in support of demonstrable error in assessment by the AMS, or at least raise a proper basis for a re­examination by an Appeal Panel member to remove the inference of demonstrable error."

[26]   The respondent submitted that the appellant has not provided reasons why the further evidence should be admitted.

[27] It submitted that the evidence is not admissible under s 328(3) in accordance with the reasoning in Ross v Zurich Workers Compensation Insurance (Ross). It also referred to the observations of Hodgson JA in Lukacevic v Coates Him Operations Ltd (Lukacevic).

[28]   The respondent also submitted that it was not the intention of the medical appeal system to allow additional evidence to challenge an assessment "due to a disagreement on findings". The respondent referred to the decision of Petrovic v BC Serv No 14 Pty Ltd (Petrovic) where the Court held that the "additional relevant information ... does not include matters going to the process whereby the AMS makes his or her assessment." The statement was not "additional relevant information" for the purposes of s 327(3)(b) of the 1998 Act.

Reasons

[29]   It is noted that the AMS does not respond to any complaints or suggestions that he was wrong or in how the examination was conducted.

[30] Section 327(3)(b) of the 1998 Act provides that the material must be "additional relevant information" which was not available to and could not have been obtained prior to the examination.

[31] Section 328(3) of the 1998 Act provides that the Appeal Panel is not to receive evidence that is fresh evidence, or evidence in addition to, or in substitution for, the evidence received in relation to the medical assessment appealed against, unless the evidence was not available to the appellant before the medical assessment and could not reasonably have been obtained by the appellant before the medical assessment.

[32] In Lukacevic Hodgson JA stated:

"Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act."

[33]   In Lukacevic Handley AJA considered evidence pertaining to the examination process as "fresh evidence" within the meaning of s 328(3). His Honour also considered that the Panel could exercise its discretion in deciding whether to admit the evidence.

[34] The appellant failed to articulate whether the application was made under s 327(3)(b) and/or s 328(3) of the 1998 Act.

[35]   As the respondent correctly submitted, the decision of Petrovic does not support the appellant's submission that the report is admissible pursuant to s 327(3)(b). This is because his Honour held that the provision "does not include matters goings to the process whereby the AMS makes his or her assessment".

36.   Based on the decision of Petrovic, we do not accept that the report is admissible pursuant to s 327(3)(b) of the 1998 Act.

37.   Given that the Court of Appeal held in Lukacevic that the AP has a discretion to accept or reject the statement pursuant to s 328(3), we are of the view that it should be rejected.

38.   The appellant's statement dated 19 November 2020 raises a number of concerns regarding the examination process. He referred to a pre-screening process the day before relating to COVID-19 requirements which lasted 3 to 4 minutes and the face to face assessment which was "a reasonably short assessment",

[39]   The appellant asserted that he was misquoted by the AMS when it was reported that the appellant stated that he could not use his right upper limb. He also stated that he never claimed that he "cannot move his fingers".

[40]   The appellant states that he was not asked if he had any complaints in relation to "colour, temperature and sweating". He states that his previous statement refers to increased sweating in the right hand.

[41]   The appellant states that he did not hold any documents in his right hand and was specifically advised by his solicitor 3 September 2020 in a letter dated "not to take any documents or reports with me to the appointment".

[42]   The letter dated 3 September 2020 states:

"The worker should take to the AMS assessment all radiological films and radiological reports relating to the claim (including x-rays, scans, MRl's). No other documents or reports can be given to the AMS."

[43]   The letter from the solicitor to the appellant does not state that he cannot take any documents or reports into the examination. In fact, the letter states the opposite, that is the appellant "should take ... all radiological films and reports relating to the claim".

[44]   The appellant stated that his arm was not measured with a tape measure. This is inconsistent with what is recorded in the MAC. The movement of his shoulders, elbows and wrist were not measured with any measurable instrument and the right shoulder was not assessed at all. The wrist and forearms were examined although the brace was never removed during the examination process.

[45]   The appellant stated that the AMS "put purple dots on my right and left arms during the assessment" but did not use any measuring assessment.

[46]   The appellant failed to address why the statement is admissible which essentially criticises the process of the examination. The complaints are readily raised and at least in one respect, the purported explanation by the appellant that he did not have documents because his solicitor wrote to him and said they could not be brought to the examination, that explanation was wrong.

[47]   The AMS is not able to respond to the statement and we can only refer to the contents of the MAC in discussing the appellant's allegations. In that respect we observe that the measurements of loss of movement of the various joints in the upper extremity are precise and inconsistent with the appellant's allegations.

[48]   For these reasons we reject the statement.

[49] The photographs of the hand were attained prior to the medical assessment black and white photographs were attached to the report of Dr Lai and included in the Application, The colour photographs are otherwise not admissible pursuant to either s 327(3)(b) or s 328 of the 1998 Act.

[50]   The appellant did not otherwise submit how the coloured photographs are "objective evidence" or how they are different form the black and white photographs. The photographs show a clear fan line which presumably arises from the fact that the appellant wears a brace. Dr Reiter also observed the tan mark on physical examination,24 The photographs also appear to depict that some of the right fingers are swollen.

[51]   The photographs were probably taken in February 2020. It is difficult in these circumstances to accept how the photographs are objective evidence of the presence of symptoms before the AMS in October 2020. The AP returns to this issue latter in these Reasons when discussing the requirement that the appellant must establish each of the four elements in point 3 of Table 17.1 at the time of examination.

[52]   The AP does not accept that the colour photographs contribute anything further than what is shown in the black and white photographs that were included in the Application and were before the AMS and the AP. For these further reasons, the colour photographs are rejected.”

The plaintiff’s submissions

  1. As a result of the Appeal Panel's misunderstanding, and misapplying, of the principles to be applied, the Appeal Panel rejected those new materials, including on a mistaken discretionary basis, and did not consider them sufficiently.

  2. In oral submissions, counsel for the plaintiff says that the Appeal Panel’s rationalisation is bordering on the perverse (T15.48). Counsel argues that the plaintiff is not criticising the assessment. He is not being personally critical of the Medical Assessor but rather, the plaintiff is saying, factually what the Medical Assessor recorded (and this is referred to in the Appeal Panel’s reasons) is incorrect and correcting the record as to what occurred (T16.36-39).

  3. The Medical Appeal Panel misunderstood the decisions of Petrovic and Lukacevic to reach the conclusion that the fresh evidence in this case could not be received under s 327, and because it could not be received under s 327, that became the primary, if not only, discretionary factor considered under s 328.

  4. The decisions cited by the Medical Appeal Panel, but misunderstood by the Medical Appeal Panel, permitted the reception of the statement and the photographs: Petrovic at [29]­[37] and Lukacevic at [33]­ [42], [75]-[81], [97]-[100] and [102]-[103]. The statement and the photographs were material because that evidence was probative to the Medical Assessor's assessment that certain symptoms did not exist. The statement and the photographs were also material as to how the clinical consultation was conducted and that evidence was material to an understanding of the correct approach to the Medical Assessor conclusions which could otherwise be thought to derive from clinical assessment.

The Nominal Insurer's submissions

  1. In Petrovic, Hoeben CJ noted that s 327(3)(b) of the Workplace Injury Management Act "does not include matters going to the process whereby the AMS makes his or her assessment" (at [31]).

  2. In Lukacevic, to which the Appeal Panel also referred, Handley AJA held that an Appeal Panel could exercise discretion in deciding whether or not to admit evidence pursuant to s 328(3) of the 1998 Act (at [102]-[103]).

  3. In the present case, the Appeal Panel indicated that its discretion should not be exercised in favour of admitting the material (Appeal Panel’s decision, [37]).

  4. The Appeal Panel’s decision addressed the statement that the plaintiff seeks to rely on in detail (at [38]-[48] of the Appeal Panel decision) and provided detailed reasoning in support of its conclusion that it should be rejected.

  5. The Appeal Panel also addressed the two photographs that the plaintiff seeks to rely on at [49]-[52] of the Appeal Panel decision. As the Appeal Panel explained, it is difficult to see how these photographs (taken months before the October 2020 assessment) could be relevant, or why detail is said to be visible in colour photographs that cannot be seen in the black and white versions of the same images.

  6. This ground of judicial review suggests that the Appeal Panel misunderstood the Workplace Injury Management Act, Petrovic and Lukacevic as permitting the exclusion of the material on a "mistaken discretionary basis". However, no error in the Appeal Panel's understanding of the law, or reasoning in applying it, has been established.

Resolution

  1. The fresh evidence comprised of firstly the plaintiff’s statement as to what he says occurred before the Medical Assessor, and secondly, whether the two coloured photographs should be considered as fresh evidence.

  1. The black and white photographs of his right hand were already before the Appeal Panel. The plaintiff could have put the colour photographs before the Medical Assessor. The Appeal Panel stated that the plaintiff did not submit as to how the coloured photographs differed from the black and white photographs. It explained that both the black and white photographs and the coloured photographs show a clear tan line which presumably arises from the fact that the plaintiff wears a brace. Also, the Appeal Panel explained that the photographs depict that some of the right fingers are swollen. The Appeal Panel, in the exercise of its discretion, stated that the coloured photographs were taken in February 2020 and it is difficult to accept how these photographs are objective evidence as to the presence of symptoms before the Medical Assessor at the time of assessment later in October 2020. It was open to the Appeal Panel in its discretion to reject the coloured photographs as fresh evidence.

  2. I accept that the plaintiff’s statement addresses what he says occurred when he was assessed by the Medical Assessor. Section 327(3) in its terms applies to the availability of added relevant information (but only if the added information was not able to and could not have been reasonably obtained by the appellant before the medical assessment). Logic dictates the plaintiff could not have reasonably obtained the information as to what he says took place at the medical assessment prior to the medical examination taking place. The information that the plaintiff provided as to what occurred at the medical assessment satisfies the terms of s 327(3). However, unlike the thrust of the plaintiff’s submissions, the plaintiff’s statement is actually critical of what took place at the medical assessment. The plaintiff’s complaints were analysed by the Appeal Panel. After doing so, the Appeal Panel decided that the plaintiff failed to address why the statement was admissible that essentially criticises the process of the examination. The Appeal Panel stated in their reasons that the AMS is unable to respond to the statement and can only refer to the contents of the MAC in discussing the appellant’s allegations. They observed that the measurements of loss and movement of the various joints in the upper extremity are precise and inconsistent with the plaintiff’s allegations.

  3. It is my view that the Appeal Panel correctly applied Petrovic and Lukacevic. The Appeal Panel was entitled to exercise discretion in the way they did and to reject the fresh evidence. This ground of appeal falls.

Judicial Ground (2) – whether the appeal panel was wrong in finding that the Medical Assessor had provided sufficient reasons

The plaintiff’s submissions

  1. The Appeal Panel erred in not concluding that the AMS had not considered in a step-by-step manner the criteria of Table 17.1 and had applied Table 17.1 as if it were a matter of general and broad consideration. The Appeal Panel erred in not concluding that the Medical Assessor’s reasons were by way of the stating only of a conclusion, rather than, as required, exposing the path of the Medical Assessor’s own decision. The Appeal Panel erred in likening the quality of the Medical Assessor’s discharge of the reasons obligation with medical or clinical judgement, which if medical or clinical judgement is applied, nonetheless that medical or clinical judgement has to be exposed in the path of reasons.

  2. The Appeal Panel erred in failing to recognise that the Medical Assessor, when considering the markedly different opinions of other practitioners, was required to provide reasoning why the Medical Assessor was reaching a markedly different outcome. In this case, that was where the parties’ engaged medico legal experts had considered the plaintiff’s WPI to be 18 per cent or 56 per cent WPI, the Medical Assessor’s assessment was markedly below that range. Reasons where required directed to why that range was to be rejected. The Appeal Panel erred in the way it applied the principle of a beneficial construction to the reasons of the Medical Assessor because the Appeal Panel failed to recognise that it was filling the gaps in the Medical Assessor’s reasons.

  3. The plaintiff refers to 4 statements made by the Medical Assessor. They are:

  4. First statement:

"I believe Mr Damian Windley has reached maximal medical improvement. It is already five years since the injury. He is suffering problems, mainly, in the right wrist, but I do not think he tried his best to do the physical examination even in the normal left upper limb. He has a lot of stiffness in all the joints, which cannot be explained, and a failure of improvement with all sort of pain management does not make sense either. He does not qualify as a case of chronic regional pain syndrome according to the criteria because there are no features suggestive of vasomotor changes in the terms of skin colour, skin temperature, oedema, no differences in sweating and no atrophic changes in the soft tissues. There is certainly no x-ray and bone scan to support either, but definitely he is not a case of chronic regional pain syndrome."

  1. Second statement:

"He had a work injury on 27 March 2015. He was trying to support a heavy tray and ended up with a hyperextension injury to the right wrist. He went to see the family doctor about a week later with ultrasound confirmed tenosynovitis and ended up with steroid injection, which according to him was on the dorsum of the right wrist, probably more towards the radial side. He was then referred to see orthopaedic surgeon Dr Kadir after an MRI scan suggesting capsular injury of the radiocarpal joint, which basically was a soft tissue injury from a sprain to the wrist. He was referred to pain management and occupational physician Steven Ng. Ultimately, because of the patient's complaint of constant pain, he was sent to pain management specialist Dr Kher. A lot of things have been done which we could think of for pain management including counselling, physiotherapy, group therapy, stellate ganglion block on the right upper limb, ketamine infusion and even spinal stimulator was put in but the patient claimed they were all useless. In the last month or so, he started to use medical cannabis. When asked about the effect, he says it is still too early to tell."

  1. Third statement:

"He says he cannot use the right upper limb, from the shoulder all the way downwards, every joint in the right upper limb is stiff, painful, and he cannot use it. When asked to move, he says he cannot move the hand and wrist and to try to move the elbow and shoulder, he needs a support and help of the left upper limb. But he does not complain of any difference in colour, temperature or sweating. There is no difference in the rate of nail growth and no difference in the hair pattern." [I interpose here. This is the closest that the AMS gets to applying the Guidelines in Table 7.1]

  1. Fourth statement:

"When observing him, I can certainly see he can use the right hand to hold the documents and letters for me to see. I cannot see any features to support the diagnosis of chronic regional pain syndrome. The two hands are of the same colour, same temperature and no differences in sweating. I could not see any difference in the growth of nail and hair. There is no soft tissue atrophic change. Most importantly on tape measurement, the right arm and the right forearm, they were both respectively half a centimetre bigger than the left side, which fits into the picture of right hand dominant but cannot fit into the picture that he claimed to be totally useless in the right upper limb and cannot actively move it without the use and support of the other arm in all the joint. Most interestingly, he needs a family member to help him undress but when he put back the long-sleeve t-shirt, I can see he had much better range of movement in both the elbow and the joint shoulder compared to when he demonstrated to me actively."

  1. While the plaintiff accepts that the Medical Assessor’s decision has to be read as a whole, even when regard is had to the extracted paragraphs above, the Medical Assessor did not comply with his reasons obligation, because at no time did he direct enquiry to the specific criteria set out in Table 17.1.

  2. A review of Table 17.1, shows that each of the prescribed criteria have to be considered to determine whether the criteria specified for either Type 1 or Type 2 chronic regional pain syndrome is made out. The Medical Assessor's path of reasoning does not demonstrate that the Medical Assessor considered Table 17.1 in any step-by-step, or specific, manner. Rather, and impermissibly, the Medical Assessor's path of reasoning identifies that the Medical Assessor adopted a clinical approach to the question of chronic regional pain syndrome, or the Medical Assessor adopted some other form of broad discretionary makeup.

  3. If, for the moment, it is appropriate to treat the Medical Assessor as having had regard to Table 17.1, all that can be properly concluded is that the Medical Assessor provided an impermissible bare ipse dixet (dogmatic unproven statement) as to the non-satisfaction of Table 17.1, and that is not a sufficient discharge of the duty to provide reasons obligation. At a minimum, the reasons obligation in the context of an assessment of the degree of permanent impairment under a guideline such as Table 17.1 involves the reasons for the end point conclusion of satisfaction, or non-satisfaction, of Table 17.1.

  4. While a decision maker's reasons are to be given the type of beneficial reading discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (“Liang”), that beneficial reading does not extend to filling in the gaps of reasoning that is not present or reformulating and reworking reasoning that is not present, assuming the decision was made according to law: see Sadsad v NRMA Insurance Limited [2014] NSWSC 1216 at [47] (“Sadsad”). Prima facie, reasons that do not address in any manner the legally relevant criteria cannot logically be presumed to have been made according to law.

  5. In this case, if regard was had to the criteria in Table 17.1, then using the clinical findings adverted to by the Medical Assessor, and the clinical findings in the materials and matters used by the Medical Assessor, for his clinical judgement that chronic regional pain syndrome was not present, did not on the face of it oust a diagnosis because there remained alternative and other criteria to be considered.

  6. There was a blatant reasons obligation error by the Medical Assessor. Further, the Medical Assessor did not apply Table 17.1, and did not make any findings relevant to it.

  7. The Appeal Panel in paragraphs [63] to [78] set about reconstructing reasoning that does not exist, and reasons that do not exist, and this is an impermissible example of the Medical Appeal Panel filling gaps of reasoning where that reasoning is not present. The plaintiff explained this proposition by setting out the Appeal Panel’s reasons on this topic below and then later underlining the portions where he says the Appeal Panel filled the gaps.

  8. The Appeal Panel recorded at [63] to [66]:

"[63] The AMS recorded the following findings on physical examination:

"When observing him, I can certainly see he can use the right hand to hold the documents and the letters for me to see. I cannot see any features to support the diagnosis of chronic regional pain syndromes. The two hands are the same colour, same temperature and no differences in sweating. I cannot see any difference in the growth of nail and hair. There is no soft tissue atrophic change. Most importantly on tape measurement, the right arm and the right forearm, they were both respectively half a centimetre bigger than the left side, which fits into the picture of right hand dominant but cannot fit into the picture that he claimed to be totally useless in the right upper limbs and cannot actively move it without the use and support of the other arm in all the joint."

[64] Later in his Reasons the AMS stated:

"I believe Mr Damien Windley have reached maximum medical improvement. It is already five years since the injury. He has suffering problems, mainly in the right wrist, but I do not think he tried his best to do the physical examinations even in the normal left upper limbs. He has a lot of stiffness in all the joints, which cannot be explained, and failure of improvement with all sort of pain management does not make sense either. He is not qualify as a case of chronic regional pain syndrome according to the criteria because there is no features suggestive of vasomotor changes in terms of skin colour, skin temperature, oedema, no differences in sweating and no atrophic changes in the soft tissues. There certainly is no x-ray and bone scan to support either, but definitely he is not a case of chronic regional pain syndrome."

[65] The AMS has a statutory obligation to provide reasons pursuant to s 325 of the 1998 Act. These principles were discussed in El Masri v Woolworths Ltd (“El Masri”) a decision involving judicial review of a decision of an Appeal Panel, when Campbell J stated:

"As I have said, and at the risk of repeating myself unduly, the process is one of expert evaluation. Often when judgment of any type is called for, there will be a gap between expression of reasons and articulation of decision which cannot itself be fully articulated. That gap constitutes what might be called judgment. Although, as Ms Altars reminded me, Wingfoot does not necessarily apply to this case because it was a case where there was a statutory obligation to give reasons, and in this case the obligation to give reasons is implied by the general law as explained in Campbell town City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, what their Honours said at [55] of Wingfoot must be applicable. Basically, the statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. Applying that standard, it is clear what was decided and why, as is the reasoning process that led to the decision, especially if one has regard to what was said by the Panel at paragraph 18 which I will not further set out."

[64] As the respondent correctly submitted, Campbell J expressed similar reasons in Kaur."

  1. The Appeal Panel then dealt with the reasoning of the Medical Assessor at [67] to [77]. Highlighted in underline is where the Panel attributes a reasoning process that was not present in the Medical Assessor's path of reasons, including the comparison of symptoms at different times ([69]). Even if it was assumed that the Appeal Panel's analysis was correct, it was not the analysis undertaken by the Medical Assessor:

"[67] The reasons of the AMS are not general as was submitted by the appellant. It is clear from the above passages set out at [63] and [64], that the AMS was not satisfied at the time of assessment that the appellant had either a vasomotor sign or a sudomotor/oedema sign. It is an essential requirement of Table 17.1 that the worker display these symptoms at the time of the examination. The AMS clearly reported that he did not. For that reason alone. the reasoning process is clear and explains why the appellant failed in establishing CRPS.

[68] The appellant referred to the opinions expressed by Dr Lai, Dr Reiter and, in part, to the opinion expressed by the treating pain specialist, Dr Kher.

[69] Symptoms and signs of CRPS may and do fluctuate over time. They may improve with or without treatment and they may subsequently reappear. That Dr Lai reported that all four clinical signs in section 3 of Table 17.1 were present in February 2020 does not mean that they were present in October 2020.

[70] Contrary to its submissions, the appellant's case on this issue is not categorially supported by the examinations undertaken by Dr Reiter. In March 2019 Dr Reiter did not find vasomotor changes on examination. In April 2020 Dr Reiter did not observe vasomotor changes or pseudomotor/oedema changes. Accordingly, whilst Dr Reiter observed at the last examination that the appellant still met the Budapest criteria for diagnosing CRPS. she also explained why the appellant did not then meet the more stringent criteria contained in Table 17.1 on the day of that examination.

[71] The appellant referred briefly to the opinion expressed by Dr Khor, Pain Management Specialist. It is correct that Dr Khor examined the appellant over an extensive period, provided several reports and diagnosed the appellant with CRPS. However, several matters are noted about Dr Khor's opinion.

[72] First, Dr Khor did not refer to the diagnosis of CRPS as being based on Table 17.1. The various reports refer to some of the signs required but not all the signs specified in section 3 of Table 17.1. For example. there is a constant reference to intractable pain and a reference to swelling. It may be that Dr Khor based the diagnosis of CRPS on the Budapest criteria. which, as the AP has earlier noted, is a less stringent test. Indeed. the doctor may have applied. in accordance with standard medical practice. the Budapest criteria in diagnosing the appellant with CRPS. That diagnosis does not necessarily mean that even in accordance with the opinion of the treating specialist the appellant satisfied the diagnosis of CRPS under Table 17.1.

[73] Further, the symptoms and signs observed by Dr Khor in 2018 and 2019 do not necessarily accord with those present in October 2020.

[74] The AMS is not obliged to accept the opinion of any doctor and is obliged to independently assess the appellant and determine the matter as at the day of presentation. Further, it is not a demonstrable error that the AMS has reached a conclusion different from that expressed by another doctor qualified by one of the parties: Merza v Registrar of the Workers Compensation Commission.

[75] That observation is not dissimilar to the comments made by Campbell J in Kaur when his Honour noted that the AMS does not sit as a decision maker choosing between conflicting opinions but to "form and give his or her own medical opinion on the medical question referred by applying his or her own medical experience".

[76] Finally, as the respondent correctly submitted, the "pre-eminence of the clinical observations" was emphasised in Ferguson v State of New South Wales when Campbell J referred with approval to NSW Police Force v Daniel Wark. Harrison AsJ applied these observations in Parker.

[77] Whilst the appellant correctly submitted that he had previously reported symptoms to satisfy Section 2 Table 17.1, the diagnosis of CRPS was not justified based on present symptomatology. This is the explanation provided by the AMS and set out at [64] herein. The AMS made clear findings that the appellant did not present with colour, temperature or sweating signs and did not present with differences in the growth of nails and hair. That is a clear finding that the appellant did not present with at least vasomotor changes on the day of the examination."

  1. The Appeal Panel also accepted, without criticism, the role of clinical judgement as deployed by the Medical Assessor. The Medical Appeal Panel's reconstructed reasoning at [67] (extracted above) starts with the Medical Assessors reasoning in [63]-[64]. The role of clinical judgement is not directed to the criteria to be applied; that is set by the applying guidelines. Yet, the very nature of the reconstructive exercise in [67] is to dress what is contained in [63]-[64] with the clothes of a path of reasons directed to the criteria in Table 17.1. None of the caselaw cited by the Medical Appeal Panel justified the approach taken by the Assessor of not applying Table 17.1 and not providing reasons as to the application of Table 17.1.

The Nominal Insurer’s submissions

  1. Judicial Ground (1) relied on by the plaintiff is that the Appeal Panel erred in not concluding that the Medical Assessor had erred “in respect of, and not complied with, his reasons obligation in respect of the assessment performed by the AMS under Table 17.1 and for upper extremity impairment.”

  1. That there is an obligation to provide reasons is well established in law. The Appeal Panel canvassed key authorities between [65]-[66]. In Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 (“Vegan”), the Court of Appeal said (in relation to the obligations of the Appeal Panel) that (at 397 [121]-[122]):

“Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material fact will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation for its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant’s condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.

On the other hand, to fulfill a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment…”

  1. In Hanna v Delta Electrical and Security Pty Ltd [2019] NSWSC 1127 it was noted that “the standard required of a written statement of reasons is that they reveal the actual path of reasoning by which the decision maker arrived at its opinion” (at [103]).

  2. In the plaintiff’s submissions, he endeavours to identify reasoning attributed to the Medical Assessor in the Appeal Panel decision that was not actually present in the Medical Assessor’s findings. For example, the plaintiff argued that the Appeal Panel decision had no proper basis for concluding that “the AMS was not satisfied at the time of assessment that the appellant had either a vasomotor sign or a sudomotor/oedema sign”.

  3. While the Medical Assessor in some instances used different language, the Appeal Panel has not attributed findings to the Medical Assessor that were not present in his reasoning. For example, the Medical assessor recorded that: “I cannot see any features to support the diagnosis of chronic regional pain syndrome. The two hands are the same colour, same temperature and no differences in sweating. I cannot see any difference in the growth of nail and hair. There is no soft tissue atrophic change” (at page 3).

  4. As was the case in El Masri v Woolworths Ltd [2014] NSWSC 1344, “it is clear what was decided and why, as is the reasoning process that led to the decision” (at [50], per Campbell J).

  5. In Elsworthy, to which the plaintiff’s submissions refer at [16], Fagan J emphasised that the criteria in Table 17.1 of the Guidelines are strict. However, his Honour did so by reference to an indication in the Guidelines that a key reason for this strictness is that pain is subjective and therefore open to exaggeration and fabrication (Elsworthy at [41]). To the extent that it may be relevant, the decision in Elsworthy does not assist the plaintiff.

  6. The indicia in Table 17.1 of the Guidelines were addressed in the Medical Assessor reasoning, and the Appeal Panel decision was correct to find that the reasons given by the AMS had been adequate.

Resolution

  1. Table 17.1 contains no clinical component, or other broad discretionary makeup, in the question of whether under the applying guidelines a diagnosis of Type 1 or Type 2 chronic regional pain syndrome is made out under Table 17.1. "Clinical judgement" is only used in the rating to be applied, but that is subsequent to the question of the whether the diagnosis is made out.

  2. In the correct application of Chapter 17, steps 1, 2 and 3 of Table 17.1 look to whether a worker's condition and complaints meet specified criteria. Step 4 of Table 17.1 then does a different thing. Step 4, if steps 1, 2 and 3 are satisfied, poses whether: "There is no other diagnosis that better explains the signs and symptoms".

  3. As was identified in Elsworthy at [5]-[9], [41] and [45], the satisfaction, or not, of the criteria in Table 17.1 is a strict process. The assessment of the degree of permanent impairment must be done by the correct application of the applying guidelines, rather than determined clinically, or by some broad discretionary makeup.

  4. I have carefully read the Medical Assessors decision. As Fagan J stated in Eslworthy, the four requirements in (a) to (d) of Table 17.1 are strict and demanding. The diagnosis of chronic regional pain syndrome, the word “diagnosis on items” (a) to (d) have the same meaning each time it appears. As the criteria in Table 17.1 (a) to (d) are strict it would be expected that the Medical Assessor would make some specific reference and identify which of the requirements he was addressing (e.g Table 17.1(a)).

  5. As explained in 17.3 of the Guidelines, the reason why the criteria are so strict is that pain is a subjective experience. It is therefore open to exaggeration and fabrication in the compensation setting.

  6. In this case, the Medical Assessor does not, in terms, address Table 17.1. The Medical Assessor's path of reasons contains statements which generally refer to the topic of chronic regional pain syndrome, but make no special reference to Table 17.1. The closest the AMS comes to applying Table 17.1 is in his Fourth Statement that is set out at para [53] of this judgment.

  7. The Medical Assessor did not specifically refer to Table 17.1. He did refer to the symptoms addressed in the four requirements in Table 17.1 in general terms.

  8. It is my view, that even through the Appeal Panel’s reasons are to be given a beneficial reading, that beneficial reading does not extend to filling in the gaps of reasoning that is not present, as underlined earlier by the plaintiff in his submissions, or reformulating and reworking that is not present. As set out in Sadsad, the Appeal Panel has filled in the gaps in reasoning in the Medical Assessor’s reasoning. The Appeal Panel has made a jurisdictional error and an error on the face of the record. The decision of the Appeal Panel should be set aside.

Judicial Ground (3) – changing symptoms

  1. This judicial ground is that the Appeal Panel “erred in relying on the notion that the plaintiff’s symptoms and condition had markedly changed from time to time and that was an explanation for why the Medical Assessor’s findings as to Table 17.1 and limb impairment were markedly different [to] the findings of others…” Again, the sentences following this initial sentence are read as particulars to this ground, save for the final sentence, which indicates that the “Appeal Panel’s logic, and conclusion, in this regard was irrational and there was no evidence to support it.” The plaintiff has not provided any written submissions to support this ground of review. From my reading of the transcript, the plaintiff has not elaborated on this ground of judicial review.

The Nominal Insurer’s submissions

  1. The Appeal Panel Decision appropriately noted that the task for the Medical Assessor was to complete a contemporaneous examination (at [61]). As is well established, a decision will only exceed the lawful authority of a decision maker where it is one at which no rational or logical decision-maker could arrive on the same evidence; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16, 647-648, [130] (Crennan and Bell JJ).

  2. This issue does not appear to be addressed in the plaintiff’s submissions and it is unclear whether he presses it.

  3. This ground of judicial review may be taken to be abandoned but, for completeness, ought to be dismissed.

Resolution

  1. This issue is not addressed in the plaintiff’s submissions nor was there any articulated oral submissions made by the plaintiff at the hearing. For these reasons, this ground of judicial review fails.

  2. It is now unnecessary to consider Judicial Ground (4).

The Result

  1. The Appeal Panel has made a jurisdictional error and an error on the face of the record. The decision and the certificate of assessment of the third defendant issued on 4 February 2021 is set aside.

Costs

  1. Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs.

The court orders:

  1. A declaration that the certificate and statement of reasons of the third defendant dated 4 February 2021 is set aside.

  2. The matter is remitted to the President of the Personal Injury Commission of New South Wales to be determined according to law.

  3. The first defendant is to pay the plaintiff’s costs

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Decision last updated: 03 September 2021

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