Zeineddine v Matar

[2009] NSWSC 646

CITATION:	Zeineddine v Matar [2009] NSWSC 646
HEARING DATE(S):	27 May 2009
JUDGMENT DATE :	10 July 2009
JUDGMENT OF:	Price J at 1
DECISION:	1. The summons is dismissed. 2. The plaintiff is to be pay the costs of the first defendant.
CATCHWORDS:	WORKERS COMPENSATION - judicial review - Medical Appeal Panel - whether demonstrable error on medical assessment certificate of approved medical specialist - whether matters not put before Medical Appeal Panel could be argued upon judicial review - whether approved medical specialist and Medical Appeal Panel wrongly exercised jurisdiction - injury - causation - assessment of permanent impairment - whether Medical Appeal Panel made a demonstrable error in correcting medical assessment certificate - meaning of proportion in s 323(1) of the Workplace Injury Management and Workers Compensation Act 1998
LEGISLATION CITED:	Supreme Court Act 1970 s 69, s 69(3), s 69(4) Workplace Injury Management and Workers Compensation Act 1998 s 323, s 325, s 327, s 328, s 328(2) Workers Compensation Act 1987 s 68A
CATEGORY:	Principal judgment
CASES CITED:	Anderson v Judges of District Court of New South Wales (1992) 27 NSWLR 701 Attorney-General for (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 Campbelltown City Council v Vegan (2006) 67 NSWLR 372 Craig v South Australia (1995) 184 CLR 163 Haroun v Rail Corporation of New South Wales & Ors [2008] NSWCA 192 Julius v Lord Bishop of Oxford (1885) App Cas 214 McCormack v Commissioner of Taxation (Cth) (2001) 114 FCR 574 Pateman v Peninsula Village Limited trading as Peninsula Village Retirement Centre and Ors [2007] NSWSC 586 Treverrow v Registrar , WCCC [2008] NSWSC 632 Wikaira v Registrar of the Workers Compensation Commission & Anor [2005] NSWSC 954
TEXTS CITED:	Aronson, Dyer and Groves Judicial Review of Administrative Action, 4th ed (2009) p 257 at [4.355]
PARTIES:	Jawdat Zeineddine - plaintiff Mohamad and Barinhan Matar - first defendant Registrar of the Workers Compensation Commission - second defendant Medical Appeal Panel, Workers Compensation Commission - third defendant
FILE NUMBER(S):	SC 30152/08
COUNSEL:	D Epstein (plaintiff) J W Dodd ( defendants)
LOWER COURT JURISDICTION:	Medical Appeal Panel
LOWER COURT DATE OF DECISION:	5 November 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Price J

10 July 2009

30152/08 Zeineddine v Matar & 2 Ors

JUDGMENT

1 HIS HONOUR: On 5 November 2008, a Medical Appeal Panel (MAP) determined under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act) that the Medical Assessment Certificate (MAC) issued by an approved medical specialist (AMS) on 16 July 2008 in respect of Jawdat Zeineddine, the plaintiff, should be confirmed. The plaintiff now seeks a declaration under s 69 of the Supreme Court Act 1970 that the decision of the MAP involved jurisdictional error that was beyond power and an error on the face of the record. Orders are sought that the decision be quashed and that the Registrar of the Workers Compensation Commission (the Registrar) and the MAP carry out their functions in accordance with ss 327 and 328 of the WIM Act.

2 The Registrar and MAP have filed submitting appearances save as to costs.

3 The first defendant was the plaintiff’s employer at the time he was assaulted on 9 December 1999 and as a consequence suffered a psychological injury. The origin of the dispute in the Workers Compensation Commission was the plaintiff’s claim that as a result of the psychological injury he suffered a loss of use of his sexual organs.

4 As the claim has had a somewhat arduous journey before it reached this Court, it is necessary to set out the background in some detail. The first defendant opposes the plaintiff’s claim for relief.

Background

5 The plaintiff was born in Lebanon on 15 April 1967. He migrated to Australia in 1994 and commenced working as a taxi driver. On 9 December 1999 whilst working the evening shift for the first defendant, a man approached his taxi at the Warrawong taxi stand and held a knife to the plaintiff’s neck saying “I want to kill you”. After a short struggle, the assailant ran off. The plaintiff attended Port Kembla Hospital that night where he was treated for a “small scratch to his neck”. Later on in the night, the assault was reported to police.

6 The plaintiff returned to work but found it increasingly difficult to deal with members of the public. He feared that he would be further assaulted. The plaintiff was shaky, frightened and extremely agitated. He stopped driving taxis on about 11 February 2000.

7 The first defendant accepted the plaintiff’s claim that he suffered psychological injury and payments of weekly compensation were made and continue to be made.

8 On 16 April 2007, the plaintiff’s solicitors made a claim on his behalf for lump sum compensation in respect of a 70 per cent loss of sexual organs based on a report from Dr Michael Lowy dated 29 March 2007. As the insurer failed to determine the claim within the time required by the legislation, an Application to Resolve a Dispute was filed on the plaintiff’s behalf in the Workers Compensation Commission on 22 August 2007.

9 In a reply filed on 12 September 2007, the first defendant sought leave to put the following matters in issue:

(i) That the [plaintiff] suffered any injury to his sexual organs as a result of the incident on 9 December 1999;
(ii) That the incident on 9 December 1999 was a substantial contributing factor to any alleged injury to his sexual organs or any alleged sexual dysfunction;
(iii) That the [plaintiff] had not suffered any permanent loss of use of his sexual organs as a result of the incident on 9 December 1999.
(iv) The alleged impotence and the credibility or reliability of the [plaintiff].

10 As there was an issue of whether the plaintiff had suffered a loss of sexual function due to the injury of 9 December 1999, a Conciliation/Arbitration hearing took place on 30 October 2007. The Arbitrator’s reserved decision was delivered on 20 November 2007. The Arbitrator described the central feature of the first defendant’s argument as being “that the clinical notes of those who treated the Applicant contain no contemporaneous record of sexual difficulties consequent upon the incident of 9 December 1999. On this basis it was submitted that the applicant had no such difficulties.” The decision of the Commission constituted by the Arbitrator was as follows:

1. The [plaintiff] sustained injury to his sexual organs arising out of
his employment with the [first defendant].
2. The [plaintiff’s] employment with the [first defendant] was a
substantial contributing factor to the injury determined at

paragraph 1 above.

3. The matter is remitted to the Registrar for referral to an
Approved Medical Specialist.
4. The Approved Medical Specialist shall be requested to assess

whether the [plaintiff] has sustained a loss of use of his sexual

organs, having regard to a date of injury of 9 December

1999.

5. The Approved Medical Specialist is, for the purposes of
assessing whether any deduction pursuant to s 323 of the

Workplace Injury Management and Workers Compensation

Act 1998 is appropriate, referred to in the entry of 19 March

2003 that appear in the notes produced by NAS Advanced

Medical Centre.

An order was also made that the first defendant pay the plaintiff’s costs.

11 The first defendant sought leave to appeal pursuant to s 352 of the WIM Act against the decision of the Arbitrator to the Commission constituted by a Presidential Member. Deputy President Roche granted leave to appeal but dismissed the appeal. In the Reasons for Determination, the Deputy President stated at [45-46]:

“In respect of the evidence of Mr Zeineddine’s apparent complaint of sexual dysfunction before the assault …, the Arbitrator did not regard that evidence as ‘contradicting the Applicant’s case that he currently suffers from sexual dysfunction that is consequent upon his post-traumatic stress disorder’ … He considered the evidence of the complaints recorded in the clinical notes on 20 October 1999 to be relevant to whether Mr Zeineddine had any pre-existing sexual dysfunction, a matter to be assessed by an Approved Medical Specialist ‘AMS’. This approach discloses no error. I do not accept the Appellant Employer’s submission that the presence of a prior complaint of sexual dysfunction means that the current claim must be dismissed. If a worker claimed compensation for a back injury, evidence of a prior back pain would not automatically destroy a claim for lump sum compensation as a result of the work injury but it would certainly be most relevant to an assessment of the worker’s credit and to the assessment of whether any loss had resulted from the injury or from a pre-existing condition.
In the absence of evidence of the nature and extent of the prior sexual problem that prompted Mr Zeineddine to seek a prescription for viagra in October 1999, the Arbitrator’s conclusion was open to him and discloses no appealable error. The evidence fell well short of establishing that all of Mr Zeineddine’s sexual dysfunction problems pre-dated the assault and that, as a result, his claim should be dismissed. Once it is established, on the balance of probabilities, that Mr Zeineddine’s complaints of sexual dysfunction resulted from the established work injury, he is entitled to have the assessment of any loss resulting from that assault determined by an AMS. That is all the Arbitrator had to determine and, given that Mr Zeineddine was not cross-examined, he was entitled to reach a conclusion in favour of Mr Zeineddine.”

12 The Deputy President was at [45-46] referring to clinical notes tendered at the hearing before the Arbitrator from NAS Advanced Medical Centre. The Deputy President had observed at [8] that “those notes indicate that Mr Zeineddine attended on 20 October 1999 (about six weeks prior to the assault on 9 December 1999) when the following entry is recorded: “fungal rash – groin – viagra 50 for erectile dysfunction.”

13 Although the appeal was dismissed, the Deputy President found that the Arbitrator had erred in finding that the plaintiff sustained injury to his sexual organs arising out of his employment with the first defendant and that his employment was a substantial contributing factor to the loss of use of his sexual organs. At [44], he pointed out;

“that the question to be answered is not whether Mr Zeineddine injured his sexual organs in the course of his employment on 9 December 2009, but whether as a result of that injury (the assault and consequential psychological condition) he has suffered a loss of use of his sexual organs.”

14 The Deputy President revoked paragraphs 1, 2, and 5 of the Arbitrator’s Determination and made the following orders in their place:

“1. As a result of an assault received in the course of his employment with the [first defendant] on 9 December 1999 and to which his employment was a substantial contributing factor, the [plaintiff] sustained a psychological injury.
2. As a result of the psychological injury referred to in paragraph one above, the [plaintiff] has suffered a loss of use of his sexual organs.
5. The Approved Medical Specialist is, for the purpose of assessing whether any deduction under s 323 of the Workplace Injury Management and Workers Compensation Act 1998 is appropriate, referred to the entry of 20 October 1999 in the clinical notes produced by NAS Advanced Medical Centre.”

15 Paragraphs 3, 4 and 6 of the Arbitrator’s determination were confirmed as was his certification regarding costs. Pursuant to Order 3 of the Determination of the Arbitrator, the plaintiff was referred for assessment to Dr Stuart Taylor, an AMS. Dr Taylor examined the plaintiff on 11 June 2008. In a MAC dated 3 July 2008, Dr Taylor was of the opinion that the plaintiff “does have a degree of loss of use of his sexual organs which is secondary to the psychological state which has developed following the …accident.” Dr Taylor noted that he had been asked specifically whether any deduction under s 323 of the WIM Act was appropriate and had been specifically referred to the NAS Advanced Medical Centre document dated 9 March 2003. He explained that this document had not been sent to him by the Commission and in the absence of the document he could not comment on it. Another document which he considered to be of assistance namely from Dr Gaing had not been included in the documents sent to him. Dr Taylor did, however, issue a Certificate pursuant to s 325 of the WIM Act certifying that the total amount of permanent percentage loss of efficient use or impairment of the sexual organs was 100 per cent.

16 In recording the history provided by the plaintiff, Dr Taylor noted that the plaintiff had said “that approximately in October 1999 he had asked his family doctor for a prescription for Viagra tablets to send to a friend in Lebanon.”

17 The Table of Disabilities for injuries received before 1 January 2002 issued by Dr Taylor on 3 July 2008 was as follows:

Body Part (describe the body part as per Table of Disabilities) eg right leg at or above the knee	Date of injury	Total amount of permanent % loss of efficient use or impairment	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.)
Sexual organs	9 December 1999	100%	Please see my answer given in 10a above. I am unable to complete this column in the absence of the document alluded to above.	For reasons given in the adjacent column I am unable to complete this column.

18 After receiving the clinical notes of Dr Gaing, a general practitioner, and documents from NAS Advanced Medical Centre, Dr Taylor issued on 16 July 2008 a further MAC pursuant to s 325 of the WIM Act. The matter had been referred to him for further assessment or reconsideration pursuant to s 329 of the WIM Act.

19 Dr Taylor certified in the MAC that the total amount of permanent percentage loss of efficient use or impairment of the sexual organs was 0 per cent and the proportion of permanent impairment due to pre-existing injury, abnormality or condition was 100 per cent. The total permanent percentage loss of efficient use or impairment attributable to the injury of 9 December 1999 was certified by the AMS as 0 per cent.

20 Dr Taylor noted from the documents provided by Dr Gaing that there was an entry on 20 October 1999 in which Dr Gaing noted that he had prescribed viagra for the plaintiff for erectile dysfunction.

21 In paragraph 6a, under the heading my opinion and assessment of permanent impairment Dr Taylor stated:

“In my opinion, Mr Zeineddine has a permanent impairment due to loss of use of his sexual organs of 20% for no sexual function is possible.
However the problem here is whether this loss of use of his sexual organs is due to the injury that he received on 9 December 1999. In my opinion it is not.
The reason for this opinion is the entry in Dr Gaing’s notes of 20 October 1999 in which he prescribed Viagra for erectile dysfunction. This precedes the date of the accident. It is my opinion that this indicates that the erectile dysfunction was present before the accident.
In light of this, I must draw the conclusion that Mr Zeineddine’s erectile dysfunction (that is loss of use of his sexual organs) was present before the accident and was not caused by the accident. Further Mr Zeineddine did not give me a history that the loss of use of his sexual organs was worsened by the accident.
Therefore my assessment is that he has a 0% loss of use of his sexual organs due to the accident on 9 December 1999.”

22 The Table of Disabilities for injuries received before 1 January 2002 issued by Dr Taylor on 16 July 2008 was as follows:

Body Part (describe the body part as per Table of Disabilities) eg right leg at or above the knee	Date of injury	Total amount of permanent % loss of efficient use or impairment	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.)
Sexual organs	9 December 1999	0%	100%	0%

23 The plaintiff made an application to appeal against the MAC to the Registrar of the Commission. The Registrar was satisfied that, on the face of the application and submissions made to him, at least one of the grounds of appeal as specified in s 327(3) of the WIM Act had been made out. The Registrar referred the appeal to an MAP.

24 The MAP in its decision of 5 November 2008 noted at [26]:

“ The appellant puts in issue in the AMS assessment the unreasonable finding of inconsistency between the worker’s history and the subject clinical note, a failure to allow the appellant to comment on that apparent inconsistency, and in any event an incorrect application of the deductible component for pre-existing injury or pre-existing condition or abnormality.”

25 On the question of unreasonable finding of inconsistency, the MAP said at [28-35]:

“…the Panel is of the view that the AMS is entitled to rely on a factual entry in medical records which is inconsistent with the history given to him in examination, with the explanation that the viagra was for a friend of the Appellant in Lebanon.
The clinical note for October 1999 refers to the Appellant and no one else.
In addition, Dr Lowy’s report (and the report of Dr McMahon) do not report pre-existing sexual erectile problems before injury in December 1999.
The Appellant records with the AMS that when he took the prescribed viagra (which he had not sent to his friend in Lebanon) some months after injury in December 1999, he had reactions to the drug but did not develop an erection.
The Panel is further of the view that a diagnosis of erectile dysfunction can be made by a medical practitioner on first consultation, with prescription for medication on the symptom described, without the need for further testing.
On that basis, the inconsistencies in the history and the clinical record is a matter of assessment by the AMS, and that is acceptable clinical practice in the Panel’s view.
The Appellant’s history shows a consultation for erectile dysfunction some 2 months before work injury, the taking of the medication by the Appellant with no erection resulting, and complaints of erectile dysfunction continuing.
The Panel agrees with the reasonableness and analysis of the AMS on the inconsistency.”

26 The MAP found no error in the finding of inconsistency nor in the AMS not providing the plaintiff a further opportunity to explain the factual inconsistency. The MAP stated at [46-47]:

“ The AMS is required in this matter to certify his assessment of permanent impairment resulting from injury (section 325 of the 1988 Act). He has done so, and given his reasons for his finding.
He is entitled to make any reasoned finding, including a 100% permanent impairment, with a 100% deduction for the existence of non-employment erectile dysfunction on 20 October 1999, as he does in his MAC of 14 July 2008.”

And at [49-53]:

“ The Panel is satisfied that the AMS was completely justified on his examination, questioning of the Appellant, and assessment of inconsistency, to make the finding which he did, and his reasons for doing so.
There was no error based on demonstrable error or the application of incorrect criteria.

Therefore the issue of proper deduction does not arise because the AMS had made a full deduction for pre-existing condition, with the reason given in paragraph 6a, including no history of worsening of sexual function after 9 December 1999.
There are 2 clerical errors in the MAC, namely in the assessment Table where the AMS records under ‘Total amount of permanent % loss of efficient use or impairment’ is obviously 100%, and in paragraph 6a, sentence 1, which should obviously read ‘100%’ not ‘20%’.

The Panel has attached a new Table for avoidance of any doubt.”

27 The Table of Disabilities for injuries received before 1 January 2002 was issued by the MAP as follows:

Body Part (describe the body part as per Table of Disabilities) eg right leg at or above the knee	Date of injury	Total amount of permanent % loss of efficient use or impairment	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.)
Sexual organs	9 December 1999	100%	100%	0%

The plaintiff’s claim for relief

28 The claim by the plaintiff for relief is in the nature of certiorari under s 69 of the Supreme Court Act. The jurisdiction to grant relief of this kind includes jurisdiction to quash the ultimate determination of the MAP if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings: s 69(3) Supreme Court Act. The face of the record includes the reasons expressed by the MAP for its ultimate determination: s 69(4) Supreme Court Act. The record in this case includes the Arbitrator’s decision of 20 November 2007, the Deputy President’s Reasons for Determination delivered on 19 May 2008, the MACs dated 3 July 2008 and 16 July 2008, the decision of the Registrar and the Statement of Reasons of the MAP.

29 In Craig v South Australia (1995) 184 CLR 163 at 179 the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) identified the scope for relief by way of certiorari with regard to a decision of an administrative tribunal:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

30 The summons identifies the grounds of appeal as being listed in the affidavit of Tom Mithieux dated 22 December 2008. Mr Mithieux’s affidavit recounts a history of the plaintiff’s claim but fails to identify specific grounds of appeal.

31 The plaintiff’s counsel in this Court identified four “fundamental questions”:

(1) Did the MAP identify a wrong issue or ask itself a wrong question in determining or affirming the determination of the AMS that the plaintiff’s loss of sexual function entirely pre-existed the injury of 9 December 1999 and that in effect the plaintiff suffered no loss of use of his sexual organs on 9 December 1999?
(2) Was the MAP (and by extension the AMS) bound in law to decide that the plaintiff had suffered a loss of sexual function due to the injury on 9 December 1999 due to the determination of the Workers Compensation Commission both as made by Arbitrator Tanner on 20 November 2007 and Deputy President Roche on 19 May 2008?
(3) Did both the MAP and the AMS reach a mistaken conclusion in determining that the proportion of permanent impairment due to pre-existing injury, abnormality or condition was 100%?
(4) Furthermore did the MAP reach a mistaken conclusion in determining that the AMS meant to find that the plaintiff had 100% loss of sexual function due to the injury of 9 December 1999?

32 Counsel for the first defendant argued that these questions should not now be considered as these issues were not raised by the plaintiff before the MAP.

33 In written submissions to the MAP the plaintiff contended that the following demonstrable errors and/or application of incorrect criteria were contained in the MAC:

“ 1. An unreasonable finding of inconsistency between the worker’s history and the clinical notation of Dr Dhawan dated 20 October 1999.
2. In the event that the Appeal Panel finds against the worker on ground 1 above, the worker says that there was a failure to allow him to comment on the apparent inconsistency between the history provided and the notation in Doctor Dhawan’s clinical notes dated 20 October 1999.
3. In the event that the Appeal Panel finds against the worker on grounds 1 and 2 above, there has been an incorrect application of either s 323 of the WIM Act and/or section 68A of the Workers Compensation Act 1987 (NSW) (WC Act) as in force at the date of the worker’s accident.”

34 The plaintiff’s application to appeal against the decision of the AMS to the MAP was founded upon the ground that the MAC contained a demonstrable error. The MAP determined the appeal on the written submissions of the parties. Questions 1 – 3 of the plaintiff’s “fundamental questions” were not put to the MAP for its consideration which the plaintiff concedes. In an affidavit dated 27 May 2009, the plaintiff’s solicitor explained that he drafted the submissions to the MAP without obtaining a formal advice from counsel. Advice was sought from Mr D Epstein of counsel (who now appears in this Court for the plaintiff) after the decision of the MAP. It was then realised that the three “fundamental questions” should have been argued before the MAP. The fourth “fundamental question” arises from the decision of the MAP.

Can the plaintiff argue matters that were not put before the MAP?

35 Neither counsel could identify any authority where the present issue has been considered.

36 The admissibility of evidence upon judicial review not before the decision-maker has been authoritatively considered on many occasions. Ordinarily material not before a tribunal at the time of making of the decision will not be admissible in proceedings for judicial review. Aronson, Dyer and Groves observe in their work Judicial Review of Administrative Action, 4^th ed (2009), p 257 at [4.355]:

“ Any common law challenge had therefore to focus on what had happened at the decision-maker’s level, and the admissibility of evidence was restricted accordingly.
It was in this sense that judicial review offered challengers no second chance on the merits, no opportunity to present the courts with material they could or should have presented to their decision-makers.”

37 The question of admissibility of evidence, however, depends upon the grounds of review upon which the applicant relies before the Court: Attorney-General for (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 per Lockhart J (at 539-540); McCormack v Commissioner of Taxation (Cth) (2001) 114 FCR 574.

38 In Campbelltown City Council v Vegan (2006) 67 NSWLR 372, Handley JA discussed at [15-16] the nature of an appeal to a superior court:

“The nature of an appeal, in the strict sense, to superior court is well established. In Attorney General v Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209, Lord Westbury LC said: ‘… An appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below’.

In Commonwealth of Australia v Bank of New South Wales [1950] AC 235 at 294 the Privy Council added an important qualification: ‘... an appeal is the formal proceeding by which a unsuccessful party seeks to have the formal order of a court set aside or varied in his favour by an appellate court’.”

39 Kirby P (Meagher and Sheller JJA concurring) in Anderson v Judges of District Court of New South Wales (1992) 27 NSWLR 701 in considering prerogative relief by the grant of certiorari said at 719B:

“To provide such relief in this case is not to afford the claimant a windfall. It is to uphold the fundamental purpose of relief prerogative in nature. This is to ensure compliance with the law and due procedure.”

40 In the present case, the plaintiff does not seek to adduce fresh evidence but to argue matters that were not before the MAP. The consideration of the nature of judicial review is, however, helpful. The MAP understood the plaintiff’s claim that the medical assessment by the AMS should be reviewed included the ground that the MAC contained a demonstrable error. In this Court the same contention is made although the arguments advanced are different. Submissions to this Court raise matters of law whereas the task of the MAP is to apply its clinical experience in conducting an appeal “by way of review of the original medical assessment”: s 328(2) of the WIM Act. Relief in the nature of certiorari is discretionary. It seems to me, in the present circumstances, that the plaintiff should be permitted to raise fresh arguments. No procedural unfairness arises to the first defendant as each of the four questions was the subject of written submissions and oral argument in this Court.

Questions one and two

41 The plaintiff submitted that the MAP by agreeing with and accepting Dr Taylor’s analysis of inconsistency in the plaintiff’s evidence has in effect substituted its own finding on the causation of the plaintiff’s loss of sexual function in lieu of that of the Workers Compensation Commission made by both the Arbitrator and the Deputy President. It was contended that what the AMS has done (as has been affirmed by the MAP) is to make findings expressly inconsistent with the prior ruling of the Arbitrator as affirmed by Deputy President Roche. The plaintiff submitted that this was a similar situation to that of Wikaira v Registrar of the Workers Compensation Commission & Anor [2005] NSWSC 954.

42 In Wikaira, there was a concession by the employer that the plaintiff had sustained orthopaedic injuries to her neck, back and shoulders in an incident on 22 August 2000 and that she was not fit to perform the type of work she had been doing for the employer. These concessions were expressly set out in the referral by the Arbitrator to the AMS. The AMS determined that there was no permanent impairment in the worker which was work related. An application was made to the Registrar which was refused on the basis that there was no demonstrable error in the medical certificate. Malpass AsJ concluded that the MAC contained a demonstrable error. Malpass AsJ said at [29]:

“It seems to me, whether or not regard is had to what was done by the arbitrator, that the medical assessment certificate contained a demonstrable error. The contents of the certificate show that Dr Matheson had come to the view that there was no permanent impairment because of his view there was no evidence of an injury. Not only was there evidence of injury, the fact of injury had been established. It was referred to him to make an assessment on the basis of agreement between the parties that the medical evidence showed that the plaintiff’s orthopaedic injuries arose from the incident of 22 August 2000. The task he had to perform was to determine whether that injury gave rise to permanent impairment.” (italics added).

43 The first defendant does not accept the plaintiff’s identification of the first and second “fundamental questions” as being an accurate statement of the law. These questions the defendant argued should be that the questions for the AMS (and in turn the MAP) were to assess the extent of the plaintiff’s loss of use of his sexual organs as a result of the work injury of 9 December 1999 and whether there should be any deduction there- from pursuant to s 323 of the WIM Act. The first defendant submitted that the orders of the Deputy President were correct and not subject to appeal by the plaintiff.

44 Although there might be problems with these questions, little turns on the formulation of questions one and two. The nub of the plaintiff’s complaint is that the AMS (and the MAP) wrongly exercised its jurisdiction because it determined the question of causation which had already been determined by both the Arbitrator and the Deputy President.

45 The first defendant contended that the AMS (and the MAP) determined whether the injury had resulted in any permanent impairment and did not make a determination in relation to causation. Wikaira, it was argued, was distinguishable from the present case.

46 The first defendant referred to the division of tasks between the Workers Compensation Commission and the AMS/MAP as outlined in Haroun v Rail Corporation of New South Wales & Ors [2008] NSWCA 192. The plaintiff submitted that Haroun could be distinguished as the MAP had identified error in comments made by the AMS that were inconsistent with the Arbitrator’s findings as to injury. To my mind, that factual distinction has no impact upon the present consideration.

47 In Haroun an Arbitrator made findings by consent that two falls at work “continued to contribute to any impairment” suffered by the worker and referred, for medical assessment under s 321 of the WIM Act, the degree of permanent impairment of the worker as a result of the injuries and whether any proportion of that was due to any previous injury or pre-existing condition. The AMS disregarded the finding by the Arbitrator that the falls at work contributed to the worker’s impairment. An appeal by the worker to an MAP failed and the assessment of the AMS was confirmed. The worker sought certiorari to quash the MAP’s certificate on the face of its reasons which revealed that the MAP had disregarded the Arbitrator’s findings. Harrison AsJ dismissed the appeal. The worker appealed to the Court of Appeal. Handley JA (with whom McColl JA and McDougall J agreed) said in dismissing the appeal at [15-21]:

“ Mr Gibb SC, who appeared for the worker, relied on the error of the AMS identified by the Panel in para 24 of its reasons, and submitted that their reasons in para 25 disclosed an error of law on the face of the record: Supreme Court Act s 69(4). He submitted that the consent finding of the Arbitrator was a relevant matter which the Panel were bound to take into consideration, but they had rejected it as utterly irrelevant.

In my judgment the Panel were not only entitled to treat the finding as irrelevant, they were bound to do so if they independently came to a different conclusion. The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers’ Compensation Act 1987 (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel.

Section 65(1) and (3) of the 1987 Act provides that in the event of a dispute the degree of permanent impairment that results from an injury is to be assessed in accordance with Part 7 of the 1998 Act. This includes ss 321, 323, 326, 327 and 328.
Section 326(1) provides that a MAC “is conclusively presumed to be correct … in any proceedings before a Court or the Commission” as to (a) “the degree of permanent impairment of the worker as a result of an injury” and (b) “whether any proportion of permanent impairment is due to any previous injury or pre-existing condition.” This section also applies to a MAC issued by a Panel: s 328(5).

The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker’s total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Part 7 of the 1998 Act and not otherwise.

If there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but ‘may refer it for assessment’ by an AMS: s 321(1). That section confers a power which an Arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford (1885) App Cas 214, 235, 243, 244.
Since the Arbitrator had no jurisdiction to decide the medical dispute he, referred had no jurisdiction to make findings which were binding on the AMS or the Appeal Panel. The finding of a person without jurisdiction cannot bind the person or persons with jurisdiction, and cannot even be persuasive.”

48 In the present case the Deputy President recognised in the passage quoted at [11] above that the tasks of the Arbitrator and the AMS were different when he said:

“ Once it is established, on the balance of probabilities, that Mr Zeineddine’s complaints of sexual dysfunction resulted from the established work injury, he is entitled to have the assessment of any loss resulting from that assault determined by the AMS.”

49 The Deputy President expressly referred the AMS to the entry of 20 October 1999 in the NAS clinical notes for the purpose of assessing whether any deduction under s 323 of the WIM Act was appropriate. It was, however, open to the AMS (and MAP) to disregard any finding on permanent impairment by the Deputy President: Haroun at [16].

50 The finding by the Deputy President that as a result of the psychological injury consequent upon the assault on 9 December 1999 the applicant had suffered a loss of use of his sexual organs did not mean that the plaintiff had suffered a permanent impairment. It was the task of the AMS to assess the degree of permanent impairment (if any) that the plaintiff had sustained as a result of that psychological injury. It does not necessarily follow from a finding of injury that the injury found to have been sustained will result in a permanent impairment. When assessing the degree of permanent impairment the AMS, in my view, was not precluded from considering issues of causation which necessarily arose from the referral of the NAS clinical notes by the Deputy President.

51 In the second MAC (16 July 2008) the AMS concluded that the plaintiff’s permanent impairment due to loss of use of his sexual organs was 20 per cent but “this loss” was not due to the psychological injury. The principal reason for that was expressed to be the entry in Dr Gaing’s notes of 20 October 1999.

52 In my opinion, Dr Taylor did no more than determine that the permanent impairment arose from a pre-existing condition. This case may be distinguished from Wikaira where the AMS had determined that there was no evidence of an injury.

53 The plaintiff’s complaint that the AMS (and the MAP) wrongly exercised its jurisdiction because it determined the question of causation has not been established. The first and second questions posed by the plaintiff are answered in the negative.

Questions three and four

54 The plaintiff complained about what was said by the MAP at [47] and [52] of its reasons which have been quoted at [26] above. It was submitted that the MAP provided no explanation for coming to the view that it did at [47] that the plaintiff suffered a 100 per cent loss of sexual function due to the injury of 9 December 1999, other than to suggest in [52] that in the Assessment Table under the heading “Total Amount of Permanent Percentage Loss of Use or Impairment”, the AMS made a clerical error of recording 0 per cent and not 100 per cent. The plaintiff contended that there was no clerical error by the AMS particularly in view of paragraph 6a of the MAC dated 16 July 2008 and the MAP had failed to provide reasons. The plaintiff argued that the MAP had made a demonstrable error.

55 A failure by the MAP to give reasons may constitute an error of law on the face of the record: Campbelltown City Council v Vegan. In the present case the MAP provided a considered statement of reasons.

56 The plaintiff’s submission misunderstands what was said by the MAP. The MAP did not form the view that the plaintiff suffered a 100 per cent loss of sexual function due to the work injury. The MAP determined at [46-47] that the AMS was entitled to find that the plaintiff had a 100 per cent permanent impairment with a 100 per cent deduction for the existence of non-employment related erectile dysfunction.

57 In the MAC dated 3 July 2008, the AMS certified the total amount of permanent percentage loss of efficient use or impairment of the sexual organs was 100 per cent. He explained that he was unable to assess the extent of the s 323 deduction as he had not been sent the documents from the NAS Advanced Medical Centre and Dr Gaing. After being provided with the report from Dr Gaing he changed that assessment in the MAC dated 16 July 2008 to “a permanent impairment due to loss of use of his sexual organs of 20% for no sexual function is possible” (underlining added). The Table of Disabilities issued by Dr Taylor which is set out at [22] above, provided for a total amount of permanent percentage loss of efficient use or impairment as “0%”.

58 If no sexual function was possible, the permanent impairment could not have been assessed at 20 per cent. It must necessarily have been 100 per cent. What the AMS had done, it seems, was to wrongly assess the plaintiff for whole person impairment, rather than loss of use of sexual organs with the plaintiff’s original injury occurring before 1 January 2002. Moreover, the Table could not have provided for 0 per cent for the total amount of permanent percentage loss. These were obvious errors which the MAP was obliged to rectify. Ample reasons were given by the MAP and no further reasons were required.

59 The plaintiff next argued that the MAP had fallen into demonstrable error by attempting to apply s 323 of the WIM Act to reduce the assessment of 100 per cent to 0 per cent. Reference was made to the definition of the word “proportion” in the Macquarie Dictionary as “a portion or part in its relation to the whole: sometimes simply a portion, division, part” and in the Australian Concise Oxford Dictionary as “a comparative part or share, a comparative ratio”.

60 It was submitted that the MAP fell into error by finding that the proportion due to a pre-existing condition was 100 per cent because as a matter of logic a proportion could not be the whole but a portion thereof and there could not be a deduction for a proportion of 100 per cent.

61 The remarks of Harrison AsJ in obiter dictum in Armstrong v Bowport All Roads and 2 Ors [2007] NSWSC 491 at [51] were cited. Harrison AsJ said:

“The meaning of ‘proportion’ in s 323(1) could have been made clearer. If proportion was meant to include ‘the whole’, s 323(1) should say so.”

62 No case was cited in which the meaning of s 323(1) of the WIM Act has been authoritatively considered.

63 There is nothing in the reading speeches of the Workers Compensation Legislation Amendment Bill (No 2) which introduced the legislative package to amend the Workers Compensation Act 1987 and the WIM Act which aids in the statutory construction of the section.

64 The first defendant made reference to a number of cases including Treverrow v Registrar, WCCC [2008] NSWSC 632; Pateman v Peninsula Village Limited trading as Peninsula Village Retirement Centre and Ors [2007] NSWSC 586 where a 100 per cent deduction under s 323(1) of the WIM Act was made without criticism.

65 Section 323(1) of the WIM Act is as follows:

“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 (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.”

66 There are other relevant dictionary meanings of “proportion” other than a portion or part:

“1. comparative relation between things or magnitudes as to size, quantity, number, etc.; ratio. 2. proper relation between things or parts. 3. relative size or extent.”: Macquarie Dictionary 4 ^th ed (2005) at page 1140; “1. the relationship between different things or parts with respect to comparative size, number, or degree; relative magnitude or extent; ratio” : Collins 5 ^th Aust ed (2003) at page 1300.
“2.The relation existing between things or magnitudes as to size, quantity, number or the like; comparative relation, ratio”: The Oxford English Dictionary 2 ^nd ed (1989) at page 647.

67 Notions of comparative relationship and extent are suggested by these dictionary meanings. Support for the foregoing dictionary meanings is found in the opening words of s 323(2) of the WIM Act which provides:

“ If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.” (underlining added).

68 It seems to me that an AMS (and MAP) in assessing the degree of permanent impairment resulting from an injury under s 323(1) is required to deduct the extent of the impairment that is due to any previous injury, pre-existing condition or abnormality. If the extent of that impairment amounts to all of the permanent impairment, then there is to be a deduction of 100 per cent. To adopt the construction advocated by the plaintiff would, in my opinion, produce the peculiar result of prohibiting an AMS from deducting all of the pre-existing impairment. I do not accept the plaintiff’s argument.

69 The answers to questions three and four are “no”.

70 In my view, the plaintiff has not demonstrated any entitlement to relief as sought in the summons. I make the following orders:

(a) The summons is dismissed.

(b) The plaintiff is to pay the costs of the first defendant.

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