Ziraki v The Australian Islamic Liverpool Area

[2019] NSWSC 1158

Supreme Court

New South Wales

Medium Neutral Citation:

Ziraki v The Australian Islamic House Liverpool Area [2019] NSWSC 1158

Hearing dates:

6 June 2019

Date of orders:

09 September 2019

Decision date:

09 September 2019

Jurisdiction:

Common Law - Administrative Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The summons filed 8 February 2019 is dismissed.

 (2) The plaintiff is to pay the first defendant’s costs on an ordinary basis.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Jurisdictional error – Review of a certificate of a Medical Appeal Panel – Failure to respond to substantial and clearly articulated arguments – Failure to set out lawful reasons – Whether the Appeal Panel was required to re-examine the plaintiff – Where the plaintiff suffered a fall from a ladder and developed consequent carpal tunnel syndrome

Legislation Cited:

Supreme Court Act 1970 (NSW), s 69
Workers Compensation Act 1987 (NSW), ss 9(1), 9A(1)
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 323, 325, 327-328, 331

Cases Cited:

Bukorovic v Registrar of the WCC [2010] NSWSC 507
Campbelltown City Council v Vegan (2006) 67 NSWLR 372
Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194
McGinn v Ashfield Council [2012] NSWCA 238
McGinn v Ashfield Council [2012] NSWCA 238
Midson v Workers Compensation Commission [2016] NSWSC 1352
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration v SZMTA [2019] HCA 3; (2019) 93 ALJR 252
NSW Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792
Sadsad v NRMA Insurance Limited [2014] NSWSC 126
Siddik v WorkCover Authority of NSW [2008] NSWCA 116
Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101
Vitaz v Westform (NSW) Pty Ltd [2010] NSWSC 667
Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64

Category:

Principal judgment

Parties:

Pouria Ziraki (Plaintiff)
The Australian Islamic House Liverpool Area (First Defendant)
Workers Compensation Commission of NSW (Second Defendant)
The Medical Appeal Panel of the Workers Compensation Commission of NSW constituted by Arbitrator John Wynyard and Approved Medical Specialists Dr Mark Burns and Dr Roger Pillemer (Third Defendant)

Representation:

Counsel:
EG Romaniuk SC with CJ Tanner (Plaintiff)
D Tronson (First defendant)

  Solicitors:
Walker Law Group (Plaintiff)
McCabe Curwood (First Defendant)
Crown Solicitor – Submitting Appearance (Second & Third Defendants)

File Number(s):

2019/43053

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is a judicial review from a decision of a Medical Appeal Panel of the Workers Compensation Commission of NSW.

2. By summons filed 8 February 2019, the plaintiff seeks firstly, 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 on 17 December 2018 are void and of no effect; and secondly, an order setting aside the decision and the statement of reasons for decision of the third defendant and issued by the second defendant on 17 December 2018.

3. The plaintiff is Pouria Ziraki. The first defendant is the Australian Islamic House Liverpool Area. The second defendant is the Workers Compensation Commission of NSW. The third defendant is the Medical Appeal Panel of the Workers Compensation Commission of NSW constituted by Arbitrator John Wynyard and Approved Medical Specialists Dr Mark Burns and Dr Roger Pillemer (the “Appeal Panel”). The second and third defendants have filed submitting appearances.

Background

4. The plaintiff arrived in Australia from Iran in 2013 and was employed as a plasterer and painter by the first defendant.

5. On 15 December 2016, the plaintiff slipped on plastic while alighting from a ladder and fell heavily onto his right arm, sustaining a distal radial fracture and consequent carpal tunnel syndrome.

6. On 3 August 2018, the plaintiff’s degree of permanent impairment resulting from the workplace injury was assessed by Dr Neil Berry, an Approved Medical Specialist (“the AMS”), as being 11% whole person impairment (“WPI”) for injury to the right upper extremity.

7. On 31 August 2018, the plaintiff appealed the decision of the AMS. On 16 October 2018, the Registrar was satisfied that, on the face of the application, at least one ground of appeal had been made out and referred the application to the Appeal Panel for determination.

8. On 17 December 2018, the Appeal Panel rejected the plaintiff’s appeal and confirmed the decision of the AMS.

The statutory scheme

9. I shall briefly outline the relevant provisions of the statutory scheme. For a worker to receive compensation under s 9(1) of the Workers Compensation Act 1987 (NSW), the worker must show an injury which is defined in s 4 as follows:

“In this Act:

injury:

(a) means personal injury arising out of or in the course of employment,

…”

10. No compensation is payable under the Workers Compensation Act pursuant to s 9A(1) in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.

11. Chapter 7, Part 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”) provides for medical assessment, including the assessment of the degree of WPI, by both an AMS and appeal panels by way of review. The scheme was designed to take the function of assessment of injury out of the adversary court system: see Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [1] per Basten JA.

12. Approved Medical Specialists are appointed under the WIM Act to deal with medical disputes, which are defined in s 319 as follows:

“319 Definitions

In this Act:

…

“medical dispute” means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:

(a) the worker's condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),

(b) the worker's fitness for employment,

(c) the degree of permanent impairment of the worker as a result of an injury,

(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

…

(f) whether impairment is permanent,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”

13. Section 323 of the WIM Act provides for the deduction for previous injury or pre-existing condition or abnormality. It relevantly reads:

“323 Deduction for previous injury or pre-existing condition or abnormality

(1) 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.

(2) 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.

Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).

(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.

(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.

...”

14. Section 325 relates to the medical assessment certificate. It relevantly reads:

“(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.

(2) A medical assessment certificate is to be in a form approved by the Registrar and is to:

(a) set out details of the matters referred for assessment, and

(b) certify as to the approved medical specialist's assessment with respect to those matters, and

(c) set out the approved medical specialist's reasons for that assessment, and

(d) set out the facts on which that assessment is based.

…”

15. Appeals against medical assessments are governed by ss 327 and 328 of the WIM Act.

16. Section 327 relevantly reads:

“327 Appeal against medical assessment

…

(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.

…”

17. Section 328 relevantly reads:

“328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.

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

(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 unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant 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.

…”

18. Section 328 confines the grounds of appeal which an Appeal Panel may consider to the grounds on which the appeal is made. Relevantly under s 327, the Appeal Panel is confined to consider whether additional relevant information became available, whether the assessment was made on the basis of incorrect criteria or whether the certificate contained a demonstrable error.

19. Section 331 of the WIM Act required the Appeal Panel to apply the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016) (“the SIRA Guidelines”) in conducting its review. Section 331 of the WIM Act 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

20. The SIRA Guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed) (“the AMA5 Guides”). Clause 1.1 of the SIRA Guidelines provides that where there is deviation from the AMA5 Guides, “any difference is defined in the [SIRA] Guidelines and the procedures detailed in each section are to prevail.”

21. Clause 1.6 of the SIRA Guidelines provides “a basic summary of some key principles of the permanent impairment assessments.” They include:

“a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical

information to determine:

•   whether the condition has reached Maximum Medical Improvement (MMI)

•   whether the claimant’s compensable injury/condition has resulted in an impairment

•   whether the resultant impairment is permanent

•   the degree of permanent impairment that results from the injury

•   the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.

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.

c. In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are to be clearly identified in the report and calculated. If, in an unusual situation, a related injury/condition has not previously been identified, an assessor should record the nature of any previously unidentified injury condition in their report and specify the causal connection to the relevant compensable injury or medical

condition.

d. The referral for an assessment of permanent impairment is to make clear to the assessor the injury or medical condition for which an assessment is sought – see also paragraphs 1.43 and 1.44 in the Guidelines.”

22. The AMA5 Guides contemplate three scenarios which warrant varying assessments of the degree of permanent impairment:

1. WPI rated according to sensory and/or motor deficits;

2. whole person impairment capped at 5% WPI; and

3. no objective basis for an impairment rating.

23. The assessment of the degree of permanent impairment for carpal tunnel syndrome is governed by p 495 AMA5 Guides, modified by cl 2.9 of the SIRA Guidelines.

24. Page 495 of AMA5 Guides reads:

“Carpal Tunnel Syndrome

The carpal tunnel syndrome (CTS) is the most common of nerve compression lesions and involves the median nerve at the volar aspect of the wrist. There are many presentations of CTS. Pain and paraesthesia in the median nerve distribution of the hand are the usual symptoms. The pain may radiate proximately. Nocturnal paresthesias, relieved by shaking the hand, are frequently reported and can be the only symptom in the earliest stages of nerve pathology. True sensory disturbances and muscle atrophy represent later stages, when axonotmesis with axonal degeneration is also present. The symptoms, signs, and findings may include sensory or autonomic disturbances of the radial 3½ digits, weakness or atrophy of the the thenar muscles, a positive percussion sign at the wrist, the presence of Phalen’s sign, and motor and sensory electroneuromyographic abnormalities. Not all symptoms are necessarily present in any one case. In isolated movement of the recurrent branch of the median nerve, there is weakness of thumb abduction and thenar atrophy without any sensory disturbance in the hand. Sensitivity to cold may be a major presenting symptom of CTS. Certain cases may be associated with reflex dystrophy (CRPS I). It has also been reported that 5% of individuals with CTS may have normal electrophysiologic studies.

If, after an optimal recovery time following surgical decompression, an individual continues to complain of pain, paresthesias, and/or difficulties in performing certain activities, three possible scenarios can be present:

1. Positive clinical findings of median nerve dysfunction and electrical conduction delay(s): the impairment due to residual CTS is rated according to the sensory and/or motor deficits as described earlier.

2. Normal sensibility and opposition strength with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar muscles: a residual CTS is present, and an impairment rating not exceeding 5% of the upper extremity may be justified.

3. Normal sensibility (2-point discrimination and Semmes-Weinstein monofilament testing), opposition strength, and nerve conduction studies: there is no objective basis for an impairment rating.” (emphasis in original)

25. Clause 2.9 of the SIRA Guidelines states:

“Specific interpretation of AMA5 – the hand and upper extremity impairment of the upper extremity due to peripheral nerve disorders

2.9…

The assessment of carpal tunnel syndrome post-operatively is undertaken in the same way as assessment without operation.”

The decision of the AMS

26. The matters which were referred for assessment by the AMS were the right upper extremity (elbow, wrist and hand) and scarring.

27. Under the heading “Present symptoms”, the AMS stated:

“… His right wrist is very stiff and sore and he has a numb feeling in the thumb, index finger and middle fingers.”

28. The AMS stated at [5]-[6]:

“Right Upper Extremity

There were normal shoulder movements and at the elbow there was limitation of extension by 30 degrees. Flexion was normal. Supination and pronation were slightly restricted. There was no obvious swelling of the wrist. There were two parallel scars on the palmar surface of the wrist. There was a reduced range of movement in the wrist. Power, grip and pinch were essentially normal. There was a blunting of sensation in the thumb, index and middle fingers but no distinct loss of sensation and no neurovascular deficit in the hand. Tinel’s sign for carpal tunnel was negative.

…

Additional – Claimant presented Nerve Conduction Studies from Dr N Dowla which confirmed the presence of right carpal tunnel syndrome but no evidence of specific nerve injury.”

29. In his reasons for assessment, the AMS stated at [10]:

“a. My opinion and assessment of Whole Person Impairment

The wrist and elbow should be assessed according to the range of movement model and I have attached a worksheet showing this assessment.

In terms of the claimant’s carpal tunnel syndrome, I refer you to the AMA 5th Edition of the Guides to the Evaluation of Permanent Impairment Chapter 16, Page 495. The claimant’s carpal tunnel syndrome proven on Nerve Conduction Studies is the result of either the fracture or the subsequent surgery. The claimant has indicated that he will not undergo any further surgery and pursuant to this paragraph I have therefore assessed him as 5% upper extremity impairment for his carpal tunnel.

This gives him a total upper extremity impairment of 19% which from Table 16.3 converts to 11% Whole Person Impairment.

I am also asked to assess Mr Ziraki in terms of his scarring and I refer you to the NSW Workers Compensation Guides to the Evaluation of Permanent Impairment 4th Edition, Chapter 14 for “The Skin”, Paragraph 14.6 on Page 73 which indicates that a scar may be rated as zero Whole Person Impairment. This man has standard surgical scars on the palmar surface of his wrist and I would rate them as a zero Whole Person Impairment.

…

c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs

Report of Dr Peter Endrey-Walder dated 20 December 2017 has rated this man for his elbow at a 7% upper extremity impairment which is close to my assessment. His assessment of the right wrist at 9% is slightly less than my 10% and he also assesses the left middle finger which I have not been asked to do. He also assesses the claimant’s right hand as a Grade Ill sensory deficit allowing a 24% Whole Person Impairment. The claimant in fact has evidence of a carpal tunnel syndrome and should be thus assessed as a residual 5% and as I have indicated he has a surgical scar which does not attract a rating.”

30. Having stated his reasons, the AMS assessed Mr Ziraki’s’s WPI in relation to his upper right extremity at 11%, and his scarring at 0%. Mr Ziraki’s WPI in its entirety was assessed at 11%.

31. On 11 August 2018, the defendant lodged an application to appeal against the decision of the AMS.

The decision of the Registrar

32. On 16 October 2018, the delegate of the Registrar referred the plaintiff’s appeal to the Appeal Panel. The delegate’s decision is as follows:

“1. The Medical Assessment Certificate (MAC) of Dr Neil Berry, an Approved Medical Specialist (AMS), was issued on 3 August 2018.

2. On 31 August 2018 the appellant lodged an Application to Appeal Against Decision of Approved Medical Specialist on the following grounds: 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) (section 327(3)(b)); the assessment was made on the basis of incorrect criteria (section 327(3)(c)); the MAC contains a demonstrable error (section 327(3)(d)).

3. On 19 September 2018 the respondent lodged a Notice of Opposition to Appeal Against Decision of Approved Medical Specialist.

4. Section 327(4) of the 1998 Act provides that an appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and the submissions made to the Registrar, at least one of the grounds of appeal as specified in subsection 327(3) of the 1998 Act has been made out.

5. Upon examination of the MAC and on the face of the application and submissions made, I am satisfied that a ground of appeal as specified in section 327(3)(d) is made out in relation to the AMS's assessment of the appellant's right upper extremity.

6. Accordingly, the appeal is referred to a Medical Appeal Panel. Details of the constitution of the Medical Appeal Panel will be forwarded separately.

7. An Appeal Panel may determine an appeal solely on the basis of the written application and any written Notice of Opposition. When a matter is determined on the papers, a copy of the decision will be issued to the parties.

8. The Appeal Panel may also require the worker to be re-examined by the Appeal Panel, or set the matter down for hearing, in which case separate notification will be sent to the parties.”

33. The matter was referred to the Appeal Panel for determination. Both parties provided written submission to the Appeal Panel.

Grounds of appeal

34. The plaintiff appealed against the MAC on the basis that the AMS erred in the following ways:

1. in applying the provisions of o 495 of the AMA5 Guides which relate to carpal tunnel syndrome following surgical decompression;

2. in failing to apply the methodology of Dr Endry-Walder to arrive at a reliable assessment of upper extremity impairment in relation to the hand; and

3. in failing to afford the worker procedural fairness by proceeding to adopt a method of assessment, and applying provisions of AMA5, which had not previously been considered or relied upon by the respondent and which were not the subject of the dispute between the parties.

The plaintiff’s submissions

35. The plaintiff made various submissions in support of his appeal to the Appeal Panel against the assessment of the AMS. They are as follows:

“6.   [The plaintiff] seeks leave to rely upon the report of Dr Endrey-Walder dated 30 August because its contents are relevant in demonstrating the erroneous reliance by the AMS upon the provisions of AMA5 relating to carpal tunnel syndrome following decompression surgery.

7. [The plaintiff] could not have known that the AMS would rely on the provisions of page 495 of Chapter 16 of AMA5 in his assessment of upper extremity impairment of the hand. That evidence was obviously not available prior to the examination by the AMS because the appellant had no reason to suspect that the AMS would adopt the method of assessment which he did - a method which had not been adopted by the Respondent, and which has come as a complete surprise. Dr Endrey-Walder’s report of 30 August constitutes ‘additional relevant information’ contemplated by section 327(3)(b) and a ground of appeal in itself [sic].

8.   Regardless of whether the Registrar admits the recent report of Dr Endrey-Walder, [the plaintiff] notes that he has not had surgical decompression of the carpal tunnel. The report of Dr Endrey-Walder dated 29 June suggests that [the plaintiff] would benefit from having right carpal tunnel decompression. There is no evidence that he had such surgery between the date of that report and examination by the AMS on 24 July 2018. As the AMS noted at Part 10(a) of the Medical Assessment Certificate, [the plaintiff] ‘has indicated that he will not undergo any further surgery’. The surgery which the Appellant had undergone was limited to ‘an open reduction and internal fixation of the distal radial fracture’, as noted by the AMS at Part 4 of the MAC under the heading ‘Brief history of the incident/onset of symptoms and of subsequent related events, including treatment’.

9.   It follows that in applying the provisions applicable to cases in which the condition is assessed ‘after an optimal recovery time following surgical decompression’, at page 495 AMA5, the AMS fell into error.

10. [The plaintiff] submits in the circumstances that, as contemplated by section 327 of the 1998 Act:

• the assessment of right upper extremity impairment (hand) was made on the basis of incorrect criteria (section 327(3)(c)), and

• the medical assessment certificate contains a demonstrable error (section 327(3)(d)).

Relief

11.   [The plaintiff] submits that it is appropriate in the circumstances that:

a)   the matter be referred to a Medical Appeal Panel Assessment for assessment of the range of motion of the appellant's right upper extremity (hand), and

b)   the Certificate of the AMS be revoked and substituted with a Certificate pursuant to assessment of impairment by a Medical Appeal Panel.”

36. The plaintiff submitted that the AMS erred in making an assessment based on a diagnosis of carpal tunnel syndrome in contravention of p 495 of the AMA5 Guides and procedural fairness. This was because the AMS had ignored the fact that there was no optimal recovery time because there was no surgical decompression, and the plaintiff could not have known that the AMS would rely on the carpal tunnel provisions of AMA5 Guides, as neither party was aware of the report upon which the AMS based that opinion.

The first defendant’s submissions

37. The first defendant’s submissions in opposition of the plaintiff’s appeal to the Appeal Panel against the assessment of the AMS are as follows:

“…

The respondent submits that the MAC makes no reference to the appellant undergoing a decompression of the carpal tunnel syndrome. The AMS at paragraph 10 reported that the ‘claimant’s carpal tunnel syndrome proven on Nerve Conduction Studies is the result of either the fracture or the subsequent surgery’.

The ‘subsequent surgery’, being the open reduction and internal fixation of the distal radial fracture as referred to in paragraph 4 of the MAC, ‘History of Injury’.

The reference to ‘further surgery’ in paragraph 10 of the MAC, is ‘further’ in the context of ‘additional to what already has taken place, been done, or been accounted for’, that being surgery in general.

The respondent submits that the AMS understood that the appellant had not undergone decompression of the carpal tunnel syndrome, which is apparent in the MAC.

Further, the NSW Workers Compensation Guideline for the Evaluation of Permanent Impairment (Fourth Edition) (The Guides) refer to the specific interpretation of AMA5 - the hand and upper extremity impairment of the upper extremity due to peripheral nerve disorders.

Page 11 of the Guides refers to the assessment of carpal tunnel syndrome. The Guides state that ‘the assessment of carpal tunnel syndrome post-operatively is undertaken in the same way as assessment without operation’.

In this way, the submission of the appellant that he has not undertaken any decompression of the carpal tunnel is irrelevant and immaterial to the AMS assessing the appellant as 5% upper extremity impairment for his carpal tunnel.

The Respondent submits that the AMS did give proper and adequate consideration to the available evidence. The AMS understood the Appellant had not undergone decompression surgery and the Respondent submits that it is clear the AMS considered the relevant evidence as referred to by the Appellant, and thus it has been referred to in the content of the MAC.

The Respondent submits that the AMS has clearly considered the assessment and opinion of Dr Endrey-Walker and provided sufficient reason as to why his assessment differs.

An AMS has a duty to use his clinical training and experience to assess all the relevant circumstances in the case before him and to come to a conclusion as to the current level of impairment as the worker presents on the day of assessment: see paragraph 1.6a, Chapter 1, page 3 of the NSW workers compensation guidelines for the evaluation of permanent impairment, 4th edition, April (the Guidelines).

In Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22 Malpass J made the comment that, ‘A demonstrable error would essentially be an error for which there is no information or material to support the finding made - rather than a difference of opinion.’

The Respondent submits that the Appellant seeks to cavil at matters of clinical judgement of which the AMS opinion is conclusively presumed to be correct, and that no demonstrable error has identified by the Appellant.

The Respondent submits that the AMS applied section 323 of the 1998 Act appropriately, being that the evidence was considered, the level of impairment was determined, and the AMS utilised his medical judgment, knowledge and experience.”

Appeal Panel’s decision dated 17 December 2018

38. In its decision, the Appeal Panel stated at [20], [23], [25]:

“20. The AMS had regard to the investigations, and carried out the examination. The AMS found Mr Ziraki to be entirely cooperative and consistent in his presentation.

…

23. Mr Ziraki submitted that the AMS had fallen into error because he made an assessment based on a diagnosis of carpal tunnel syndrome in contravention of the guidelines contained in AMA 5 at page 495 and contrary to procedural fairness.

…

25. Mr Ziraki submitted that the AMS had fallen into error because in effect he had ignored the fact that there is no optimal recovery time because there had been no surgical decompression.”

39. The Appeal Panel noted that although the plaintiff failed to “tick the box” at Part 3 of the application to appeal, it was quite clear from the submissions that he wished to rely upon a further report of his medico-legal referee Dr Peter Endrey-Walder dated 30 August 2018. In the report, Dr Endrey-Walder disagreed with the opinion of the AMS.

40. The Appeal Panel at [45]-[54] stated:

“45. We note that Dr Endrey-Walder found there was clinically a two point discrimination, that is to say, of the three digits involved in a carpal tunnel syndrome (thumb, index and middle fingers) the index and middle fingers were found to have only a partial sensory loss. This finding is appropriate to a grade 3 classification. Accordingly an appropriate assessment would have been in the middle of the available range of 25-60% for sensory deficit - say, 40%, 40% of the maximum available of 39% gives a total of 16% UEI.

46. Be that as it may, Dr Endrey-Walder failed to apply the appropriate guideline in AMA5, that relating to the carpal tunnel condition itself at p 495. We have rejected Dr Endrey-Walder’s report of 30 August 2018, on the basis that he was not aware of the modification made by Chapter 2.9 of the Guides, as we have found above. That mistaken opinion formed the basis of the appeal, as we have indicated, and we reproduced the AMA5 guideline at [24], above.

47. It can be seen that there are three categories of criteria at p 495. Alternative (1) does permit an assessment to be made having regard to Tables 16-15 and 16-10a, but only where there were positive clinical findings of median nerve dysfunction and electrical conduction delay.

48. The alternative applied by the AMS was alternative (2), where normal sensibility and opposition strength with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar muscles was present.

49. In failing to appreciate that the Guides do not require there to be a surgical decompression, Dr Endrey-Walder has both given mistaken advice as to the basis of the appeal, and failed to consider the terms of p 495 of AMA5 in his medico-legal opinion. Accordingly the reliance placed on his opinion by Mr Zikari has been misconceived. Dr Endrey-Walder accepted that the symptoms in the hand were caused by a carpal tunnel syndrome, but mistakenly went to Tables 16-15 and 10a without first considering the three alternate categories at AMA5 p 495.

50. Dr Endrey-Walder did not have to hand the nerve conduction studies when he gave his opinion on 20 December 2017, and accordingly was then unable to consider the criteria in alternative (1), even if he had been aware of the Chapter 2.9 modification made by the Guides. As he considered the guides at p 495 to be inapplicable, there having been no decompression surgery, he clearly felt justified in ignoring them. He was however aware of the need for nerve conduction studies for treatment purposes, as he ‘much’ recommended that they be undertaken.

51. The recommended nerve conduction studies were carried out by Dr Dowla, whose report was addressed to Mr Ziraki’s general practitioner, and were provided to the AMS in answer to a standard request that Mr Ziraki bring with him imaging studies. (Although the AMS indicated at Part 2 of the MAC that no such studies had been provided, he said at paragraph 8 that the claimant had presented Dr Dowla’s report).

52. Dr Dowla’s conclusion was:

‘The study shows right median nerve slowing at the wrist typical of carpal tunnel syndrome.’

53. The AMS commented on Dr Dowla’s report, saying:

‘Additional - Claimant presented Nerve Conduction Studies from Dr N Dowla which confirmed the presence of right carpal tunnel syndrome but no evidence of specific nerve injury.’

54. Accordingly, we are satisfied that the AMS has correctly applied alternative (2). Whilst abnormal latencies were detected in the nerve conduction testing in the slowing of the median nerve, and there were some abnormal sensory latencies in the numbness complained of in the thumb and the index and little fingers, there is no evidence that Mr Zikari was suffering a median nerve dysfunction as defined by alternative (1).”

41. The Appeal Panel determined that there had been no lack of procedural fairness and confirmed the MAC issued on 3 August 2018.

Judicial review generally

42. This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including both an AMS and Medical Appeal Panel, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act.

Grounds of judicial review

43. The plaintiff’s grounds of judicial review were set out at [11] of its summons. They are as follows:

1. that the third defendant misapplied, and misconstrued the operation of, p 495 of the AMA5 Guidelines and cl 2.9 of the PI Guidelines for the evaluation of permanent impairment in respect of the plaintiff’s carpal tunnel syndrome. The third defendant failed to recognise that findings and reasons needed to be made and provided as to which of the three scenarios were to be applied, and then findings and reasons needed to be made under the scenario that was being applied. The third defendant was incorrect in concluding that scenario 1 applied only where there was “defined” median nerve dysfunction when p 495 did not define median nerve dysfunction, and the plaintiff had a positive clinical finding of median nerve dysfunction;

2. that the third defendant should have determined that the AMS was in error:

1. in applying scenario 2, and in failing to apply scenario 1, on p 495;

2. in failing to make any findings, and state legally sufficient reasons, as to why scenario 2, and not scenario 1, on p 495 was applied;

3. in failing to accord procedural fairness in failing to deal with the plaintiff’s articulated case through the materials of Dr Endrey-Walder that scenario 1 on p 495 was the scenario that applied to the determination of permanent impairment;

3. that the third defendant, after it should have found error by the AMS, should have correctly applied p 495 by applying scenario 1;

4. that the third defendant failed to make any findings, and state legally sufficient reasons, as to why scenario 2, and not scenario 1, on p 495 was applied;

5. that the third defendant misunderstood Dr Endrey-Walder's medico-legal opinion. Dr Endrey-Walder applied scenario 1 on p 495 on the basis of the plaintiff’s complaints and symptoms, and applied cl 2.9, and understood that the plaintiff had undergone only one operation; and

6. that the third defendant failed to accord procedural fairness by failing to deal with the plaintiff’s articulated case through the materials of Dr Endrey-Walder that scenario 1 on p 495 was the scenario that applied to the determination of permanent impairment.

44. As there is significant overlap in the submissions and issues in relation to these grounds, I will first consider grounds (a), (c) and (d) together, followed by (b), (e) and (f) together.

Grounds [11](a),(c)-(d) – that the Appeal Panel misapplied or misconstrued the operation of p 495 of the AMA5 Guides and SIRA Guidelines, and erred in its findings and/or by giving insufficient reasons

The plaintiff’s submissions

45. The plaintiff submitted that the correct application of p 495 the AMA5 Guides is important. It identifies that the assessment of the degree of permanent impairment is a matter for clinical examination and assessment, and notes that “[t]here are many presentations of CTS” and that “[n]ot all symptoms are necessarily present in any one case”.

46. The plaintiff argued that these statements make it plain that para 1 of p 495 of the AMA5 Guides identifies an overlap of symptoms consistent with the condition, and that not all symptoms need to be present. The plaintiff argued that in the circumstances, the AMA5 Guides clearly establish that clinical examination is the foundation for any assessment of impairment in respect of carpal tunnel syndrome.

47. The second paragraph of the AMA5 Guides sets out the scheme of assessment with reference to three scenarios. If the assessment of the degree of permanent impairment is undertaken in accordance with scenarios 2 or 3, then because of how the rated assessment of upper limb extremity impairment is converted into WPI, the injured worker cannot obtain an assessment of 15% WPI or greater, which is the threshold for the availability of a work injury damages claim.

48. Scenario 1 is the only scenario that permits an assessment that may satisfy the 15% degree of permanent impairment threshold.

49. Scenario 1 identifies the following criteria:

“Positive clinical findings of median nerve dysfunction and electrical conduction delay(s)”.

50. It is uncontroversial that the plaintiff satisfied the requirement for “electrical conduction delay(s)”. Accordingly, the material question for the Appeal Panel, which would have a crucial bearing on the attendant assessment of the degree of WPI, was whether the plaintiff also satisfied the requirement of “positive clinical findings of median nerve dysfunction”.

51. The plaintiff submitted that despite the importance of clinical assessment and examination to the operation of the AMA5 Guides, especially to the application of scenario 1, the Appeal Panel did not examine the plaintiff, and the Appeal Panel dismissed the plaintiff’s request for examination.

50. The plaintiff says it was an error for the Appeal Panel to fail to examine him, given that the AMA5 Guides are based fundamentally upon clinical examination and assessment.

51. The Appeal Panel simply, and erroneously, stated at [12]:

“The Appellant requested that Mr Ziraki be re-examined by a member of the panel. That request is denied as the issues raised do not require one.”

54. The plaintiff argued that the Appeal Panel’s statement was incorrect. The relevant provisions in the AMA5 Guides are founded upon clinical examination and assessment. The question of assessment of the degree of permanent impairment arising in this case required the AMS, and the Appeal Panel, to specifically consider which scenario applied. The relevant AMA5 Guideline therefore required the AMS and the Appeal Panel, as a core requirement, to undertake a clinical examination as the necessary foundation of any assessment.

55. Although it was critical to determine whether the plaintiff met the requirement for “positive clinical findings of median nerve dysfunction”, the relevant AMA5 Guides provide no definition of what satisfies the criteria for the purposes of scenario 1. The plaintiff argued that the absence of a definition further suggests that clinical examination and assessment are essential. Nonetheless, the Appeal Panel’s conclusion at [54] was limited to the following inadequate observations:

“Whilst abnormal latencies were detected in the nerve conduction testing in the slowing of the median nerve, and there were some abnormal sensory latencies in the numbness complained of in the thumb and little fingers, there is no evidence that Mr Ziraki was suffering a median nerve dysfunction as defined by [scenario 1].”

56. The plaintiff argued that the Appeal Panel’s reasons at [54] make it plain that it applied an undisclosed definition of median nerve dysfunction. The proper application of the AMA5 Guides required the Appeal Panel to make factual findings material to the application of the carpal tunnel syndrome assessment scheme, and, having made those findings, the Appeal Panel was then required to provide reasons as to why it was incorrect that the plaintiff be placed in scenario 1, and why it was correct that the plaintiff be placed in scenario 2.

57. Rather, the Appeal Panel, in half a sentence, stated that there was “no evidence” that the plaintiff was suffering a median nerve dysfunction as defined by scenario 1.

58. The Appeal Panel failed to explain its path of reasoning as to why there was “no evidence” of median nerve dysfunction. The plaintiff submitted that it is not possible to fill in the gaps to reconstruct its reasoning in reaching its conclusion. The plaintiff submitted that in this case, there was a whole body of evidence about clinical matters which fulfilled the description, in a clinical assessment sense, of “positive clinical findings of median nerve dysfunction”.

59. The plaintiff argued that either the Appeal Panel did not consider that evidence, or it applied a definition that excluded it. Without a path of reasoning showing how it reached its decision, its process is unknown.

60. The plaintiff referred to the decision of Sadsad v NRMA Insurance Limited [2014] NSWSC 126 (“Sadsad”), where Hamill J stated at [47]-[48]:

“[47] It is one thing to give a ‘beneficial construction’ to the reasons of an administrative decision maker. It is another to fill in the gaps in the path of reasoning by reference to an assumption that the decision was made according to the relevant law (in this case cl 2.5). This accords with the approach taken by Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]:

‘The Minister urged a “beneficial” construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase “beneficial construction”, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a “beneficial” approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.’

[48] Further, while to ‘fulfil a minimum legal standard, the reasons need not be extensive’, ‘where more than one conclusion is open, it will be necessary for the [decision maker] to give some explanation of its preference for one conclusion over another’: Campbelltown City Counsel v Vegan (supra) at [121]-[122] (Basten JA).”

The first defendant’s submissions

61. The first defendant noted that ground [11](a) appears to involve multiple asserted errors:

1. misapplication or misconstruction of p 495 of the AMA Guidelines and cl 2.9 of the SIRA Guidelines;

2. error in the Appeal Panel’s determination as to whether scenario 1 applied, having regard to p 495 and the circumstances in the present case; and

3. failure to provide findings and reasons as to which of the three scenarios was to be applied.

62. As to the first of those grounds, the first defendant argued that the Appeal Panel correctly construed and applied p 495 if the AMA5 Guidelines and cl 2.9 of the SIRA Guidelines. Having regard to the text of p 495, the Appeal Panel was correct to conclude that Scenario 1 only applied where there were positive clinical findings of median nerve dysfunction and electrical conduction delay. The Appeal Panel relied upon the nerve conduction studies of Dr Dowla which showed no evidence of specific nerve injury, which was consistent with scenario 2. It was open to the Appeal Panel to find that this meant there were no positive clinical findings of median nerve dysfunction, and that as such scenario 1 was not applicable.

63. The plaintiff submitted that the Appeal Panel erred in concluding that scenario 1 applied only where there was “defined” median nerve dysfunction, when p 495 did not define median nerve dysfunction. The defendant argued that the Appeal Panel correctly and clearly set out the relevant criteria for scenario 1, demonstrating its understanding of the correct test at [24] and [47] of its decision. The defendant argued that at its highest, this ground of review challenged the Appeal Panel’s reasoning at [54] where it stated that “[w]hilst abnormal latencies were detected in the nerve conduction testing in the slowing of the median nerve, and there were some abnormal sensory latencies in the numbness complained of in the thumb and the index and little fingers, there is no evidence that [the plaintiff] was suffering a median nerve dysfunction as defined by [scenario 1].”

64. As such, the defendant argued that this part of the plaintiff’s argument seeks to review a factual finding, which is not a jurisdictional error.

65. The defendant argued that the Appeal Panel’s reasoning did not amount to an incorrect understanding or application of scenario 1. It was open to the Appeal Panel to conclude that the evidence before it, particularly the nerve conduction studies showing no evidence of a specific nerve injury, did not demonstrate that the plaintiff suffered from “median nerve dysfunction”. This did not require an express definition of “median nerve dysfunction” beyond that apparent from the term itself. Nor does the Appeal Panel’s statement “median nerve dysfunction as defined by [scenario 1]” imply that the Appeal Panel proceeded upon an unstated definition of scenario 1. Rather, the Appeal Panel’s decision makes it clear that it concluded that abnormal latencies did not amount to “dysfunction”.

66. In reaching its conclusion that there was no evidence of “median nerve dysfunction”, the Appeal Panel at [50] considered Dr Dowla’s evidence of right median nerve slowing at the wrist, typical of carpal tunnel syndrome, but nonetheless concluded that this was not sufficient to satisfy the “dysfunction” required under scenario 1 ([54]). The defendant argued that the finding was clearly stated and entirely logical: if “right median nerve slowing at the wrist typical of carpal tunnel syndrome” were capable of amounting to “median nerve dysfunction”, all forms of carpal tunnel syndrome bearing that “typical” symptom would be able to satisfy scenario 1, limiting or eliminating the utility of the three “scenarios”. The identification of three separate scenarios required “dysfunction” to be given a meaning other than mere abnormality.

67. As to the plaintiff’s submissions concerning failure to provide reasons, the defendant argued that the Appeal Panel set out its findings as to why scenario 2, as modified by cl 2.9 of the SIRA Guidelines, was applied. It noted that cl 2.9 provided a deviation from p 495 of the AMA5 Guidelines at [35]-[38] of its decision.

68. It considered the 2017 Endrey-Walder Report and indicated why it did not accept Dr Endrey-Walder’s assessment of WPI. In particular, it did not accept Dr Endrey-Walder’s assessment on the basis that he was not aware of the modification to p 495 of the AMA5 Guides made by cl 2.9 of the SIRA Guidelines, and therefore failed to apply the appropriate AMA5 Guide.

69. The Appeal Panel then explained at [55] that scenario 2, not scenario 1, was applicable. It stated that Dr Dowla’s nerve conduction studies showed, consistent with scenario 2, no evidence of specific nerve injury and no evidence of a median nerve dysfunction for the purposes of scenario 1.

70. The defendant argued that the Appeal Panel’s reasons in each respect, including as to why scenario 2 was applicable and why scenario 1 was not, were sufficient to explain why the Appeal Panel reached its conclusion and not that argued by the plaintiff: see Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, 397 [121] per Basten JA.

71. The defendant noted that the weight to be afforded to the evidence was a matter for the Appeal Panel: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, at [74] (Griffiths J). As the plaintiff accepts, the term “median nerve dysfunction” is not defined within p 495 of the AMA5 Guides. The defendant argued that the Appeal Panel correctly found at [50] that Dr Endrey-Walder was unable to consider the criteria in scenario 1 absent nerve conduction studies.

72. The defendant argued that it was open to the Appeal Panel to determine that evidence other than (or which made no reference to) Dr Dowla’s conduction studies was incapable of establishing, or irrelevant to identifying, “median nerve dysfunction”. The Appeal Panel made clear the role it afforded to the nerve conduction studies at [58]: “The nerve conduction studies have confirmed the nature of the injury and the applicable method of assessment”. In turn, Dr Dowla’s evidence was considered by the Appeal Panel and found insufficient to amount to “median nerve dysfunction”. This was a finding within the Appeal Panel’s power to make. For these reasons, the defendant argued that there is no jurisdictional error or error of law.

Consideration

73. Ground [11](a) alleges that the Appeal Panel misapplied and misconstrued the operation of the AMA5 Guides and the SIRA Guidelines. In submissions and at the hearing of these proceedings, counsel for the plaintiff argued that p 495 of the AMA5 Guides conveys the “primacy” of clinical examination to an assessment of carpal tunnel syndrome, and that to give effect to its instructions, the Appeal Panel should have conducted a re-assessment of the plaintiff’s condition. At Part 4 of the plaintiff’s application to appeal against the decision of the AMS, he had ticked the box requesting to be examined by the Appeal Panel.

74. However, this ground of appeal, insofar as it concerns a failure to re-examine the plaintiff, was not articulated in the summons. Moreover, there is no requirement for an Appeal Panel to re-examine a plaintiff in the context of a workers compensation claim. In order to re-examine a plaintiff, the Appeal Panel must first have identified an error in the MAC, which in this case the Appeal Panel declined to do: see NSW Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 [30]-[33] (Davies J); Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101 [40]-[42] (Harrison AsJ); Midson v Workers Compensation Commission [2016] NSWSC 1352 [50]-[57] (N Adams J).

75. Ultimately, the Appeal Panel’s decision as to whether or not to re-examine a worker is clinical and discretionary: see Bukorovic v Registrar of the WCC [2010] NSWSC 507 at [43], [57] (Harrison AsJ); Vitaz v Westform (NSW) Pty Ltd [2010] NSWSC 667 [99] (Johnson J).

76. For these reasons, the Appeal Panel’s decision not to re-examine the plaintiff was not a misconstrual of its function or of the AMA5 Guides and SIRA Guidelines, nor did it constitute a jurisdictional error.

77. Grounds [11](a),(c)-(d) more generally allege that after declining to re-examination the plaintiff to determine if he exhibited “positive clinical findings of median nerve dysfunction”, the Appeal Panel applied an “undisclosed definition” of the condition in concluding that he did not.

78. At [53]-[54], the Appeal Panel stated:

“53. The AMS commented on Dr Dowla’s report, saying:

‘Additional - Claimant presented Nerve Conduction Studies from Dr N Dowla which confirmed the presence of right carpal tunnel syndrome but no evidence of specific nerve injury.’

54. Accordingly, we are satisfied that the AMS has correctly applied alternative (2). Whilst abnormal latencies were detected in the nerve conduction testing in the slowing of the median nerve, and there were some abnormal sensory latencies in the numbness complained of in the thumb and the index and little fingers, there is no evidence that Mr Zikari was suffering a median nerve dysfunction as defined by alternative (1).”

79. Counsel for the plaintiff maintained that the Appeal Panel fell into error in concluding at [54] that “there is no evidence that Mr Zikari was suffering a median nerve dysfunction as defined by alternative (1).” Specifically, he alleged that the Appeal Panel erred in stating that there was “no evidence”, and in seeming to allude to a “definition” of median nerve dysfunction contained in scenario 1 or another undisclosed source. The plaintiff argued that for the Appeal Panel to operate on its own understanding of what “positive clinical findings of median nerve dysfunction” were, but fail to provide that definition, constituted a failure to provide legally sufficient reasons (T 8.30-32).

80. The standard to which a medical Appeal Panel must provide reasons is set out in WingfootAustralia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64 (“Wingfoot”) at [55]:

“…The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. 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…”

81. The first defendant also referred to Campbelltown City Council v Vegan (2006) 67 NSWLR 372, where McColl JA stated at [121]-[122]:

“[121] 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 facts 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 of 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.

[122] On the other hand, to fulfil 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: see Soulemezis (at 273–274) (Mahoney JA) and (at 281–282) (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.”

82. It is by these principles that I assess the Appeal Panel’s reasons in relation to these and other grounds of appeal. The approach that I adopt is that both the AMS and the Appeal Panel’s decisions must be read as a whole, and that I “should not read the reasons of the decision maker with an eye finely tuned for error”: McGinn v Ashfield Council [2012] NSWCA 238 (“Ashfield”) per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 at [67] per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at 291.

83. As such, the Appeal Panel statement that there was “no evidence” must be read fairly and as a whole: see Ashfield above at [79] of this judgment. It is my view that in the context of para [54], the Appeal Panel’s statement intends to convey that while there was evidence of abnormal latencies detected in the nerve conduction testing in the slowing of the median nerve, and of abnormal sensory latencies in the numbness complained of in plaintiff’s fingers, neither that evidence nor any other which the Appeal Panel considered constituted evidence of median nerve dysfunction under scenario 1. Counsel for the defendant noted that although the Appeal Panel may have “awkwardly” expressed its opinion, its function was to address the question of whether the AMS fell into error. The Appeal Panel’s finding, and its reasons, clearly convey that the AMS did not. Although it may have been “preferable” to provide more details, it is not a jurisdictional error not to have done so, particularly where the finding was that there was no error. For these reasons, it is my view that the Appeal Panel did not fall into error in this respect.

84. Furthermore, the Appeal Panel’s reference to median nerve dysfunction “as defined by alternative (1)” must also be read with an eye not finely tuned for error. Understood in context, it is my view that the Appeal Panel may be read to refer simply to median nerve dysfunction as referred to, or used, in scenario 1. The paragraph merely communicates the finding of the Appeal Panel, which is that there was no error by the AMS and that there was not median nerve dysfunction for the purposes of scenario 1. As such, it is my view that the Appeal Panel’s reasons satisfy the standard set out in Wingfoot at [55], and that it did not err in applying p 495 of the AMA5 Guides. Grounds [11](a), (c)-(d) are not made out.

Grounds [11](b), (e)-(f) – that the Appeal Panel erred in applying scenario 2, and misunderstood and/or failed to deal with the plaintiff’s articulated case in relation to Dr Endrey-Walder’s medico-legal opinion

The first defendant’s submissions

85. The defendant submitted that ground [11](b) alleges that the Appeal Panel should have determined that the AMS was in error:

1. in applying scenario 2, and in failing to apply scenario 1;

2. in failing to make any findings, and state legally sufficient reasons, as to why scenario 2 was applied and not scenario 1; and/or

3. in failing to accord procedural fairness, in failing to deal with the plaintiff’s articulated case through the materials of Dr Endrey-Walder that scenario 1 was the applicable scenario in the determination of permanent impairment.

86. The defendant argued that none of these errors appear to be pressed and ought to be regarded as abandoned.

87. All three errors are expressed by reference to errors by the AMS. The defendant argued that either the relevant decision in respect of which judicial review is available is that of the Appeal Panel, not the MAC, or, if judicial review remains available in relation to the MAC, the Court should exercise its discretion to refuse relief.

88. Further, the defendant noted that the Appeal Panel’s power is constrained by the grounds of appeal by s 328(2) of the WIM Act. To the extent that the errors alleged go beyond the grounds in the plaintiff’s appeal to the Appeal Panel, the Appeal Panel cannot have erred by either not considering them or not finding in the plaintiff’s favour.

89. Furthermore, the defendant argued that the plaintiff’s grounds of appeal did not include any ground to the effect either that the wrong scenario was applied (rather, the plaintiff argued on his appeal to the Appeal Panel that p 495 of the AMA5 Guides ought not have been applied at all), or that the AMS had failed to make any findings or to state legally sufficient reasons as to why scenario 2, rather than scenario 1, was applied. As a consequence, the Appeal Panel was not only not required to consider these arguments, but it had no power to do so. These grounds of appeal thus raise no error of law on the part of the Appeal Panel.

90. With regards to the plaintiff’s procedural fairness grounds, the defendant noted that they arise from the AMS’s “fail[ure] to deal with the Plaintiff’s articulated case through the materials of Dr Endrey-Walder that scenario 1 was the scenario that applied to the determination of permanent impairment”. The defendant noted that that was not the failure alleged in the plaintiff’s submissions to the Appeal Panel. Instead, the plaintiff alleged that the AMS had erred in adopting a method of assessment, and applying provisions of AMA5 Guides, which had not previously been considered or of which notice had not previously been given to the plaintiff.

91. The Appeal Panel noted the plaintiff’s claim that he had not been afforded procedural fairness in that respect, but did not accept that claim. Once again, the Appeal Panel was neither required nor empowered to consider the error alleged, and so that ground of review reveals no error on the part of the Appeal Panel.

92. Further, no jurisdictional error or error of law is revealed by any component of this ground. The defendant argued that it should be dismissed.

93. With regards to grounds [11](e)-(f), the plaintiff submitted that Dr Endrey-Walder applied scenario 1 on the basis of the plaintiff’s complaints and symptoms, and understood that the plaintiff had only had one operation.

94. The defendant argued that the Appeal Panel did not misunderstand Dr Endrey-Walder’s medico-legal opinion. As correctly set out in the Appeal Panel’s Decision, the 2017 Endrey-Walder Report (implicitly) and the 2018 Endrey-Walder Report (expressly) proceeded upon a misunderstanding of the effect of p 495 of the AMA5 Guides. The fact that the plaintiff had had only one operation was irrelevant in circumstances where, as expressly provided by cl 2.9 of the SIRA Guidelines, “[t]he assessment of carpal tunnel syndrome post-operatively is undertaken in the same way as assessment without operation”. The Appeal Panel referred to this misunderstanding at [49] as a “fail[ure] to appreciate that the [AMA5] Guides do not require that there be a surgical decompression”.

95. Similarly, as the Appeal Panel correctly concluded at [50] the 2017 Endrey-Walder Report was incapable of applying scenario 1 in the absence of nerve conduction studies.

96. Further or in the alternative, the defendant argued that to the extent that the Appeal Panel misunderstood Dr Endrey-Walder’s medico-legal opinion, that misunderstanding was not material to the basis on which the Appeal Panel rejected the 2017 Endrey-Walder Opinion and the 2018 Endrey-Walder Report. The Appeal Panel affirmed the AMS’s determination by considering the relevant evidence (in particular, Dr Dowla’s nerve conduction studies) and by concluding, having regard to that evidence, that scenario 2 applied rather than scenario 1. In circumstances where the Appeal Panel independently reached this conclusion without any material reliance upon any misunderstanding of either Dr Endrey-Walder Report, any misunderstanding would have been immaterial and thus incapable of giving rise to any jurisdictional error or error of law: see Minister for Immigration v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 at [45]-[50] (Gageler, Bell and Keane JJ).

97. The defendant argued that no jurisdictional error or error of law is revealed by this ground, and that it should be dismissed.

Consideration

98. Grounds [11](b),(e)-(f) allege that the Appeal Panel erred in failing to reassess the plaintiff as satisfying the criteria for scenario 1, on the basis that it misunderstood the medico-legal opinion of Dr Endrey-Walder. The plaintiff submitted that Dr Endrey-Walder applied scenario 1 on p 495 of the AMA5 Guides, and that he also applied cl 2.9 of the SIRA Guidelines.

99. The Appeal Panel’s relevant statements in relation to Dr Endrey-Walder’s report(s) began at [13]-[14] of its decision:

“Fresh Evidence

13. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.

14. Although the appellant failed to ‘tick the box’ at Part 3 of the Application to Appeal, it was quite clear from the submissions that Mr Ziraki wished to rely upon a further report of his medico-legal referee Dr Peter Endrey-Walder dated 30 August 2018. This is a short report cavilling with the opinion of the AMS. As will be seen, its premise is incorrect, as Dr Endrey-Walder was not aware of the applicable guideline. His advice has been incorporated into Mr Ziraki’s submissions in any event, but there are strong public policy grounds for rejecting evidence that simply seeks to cavil with the opinion of the AMS, whose opinion is conclusively presumed to be correct by virtue of s 326(1) of the 1998 Act.”

100. At the hearing of these proceedings, counsel for the plaintiff characterised the Appeal Panel’s attitude towards Dr Endrey-Walder’s 30 August 2018 report as “hostile” (T 17.31). He argued that the Appeal Panel’s statement at [14] that the report “simply seeks to cavil with the decision of the AMS, whose opinion is conclusively presumed to be correct” reveals a misunderstanding of the operation of ss 327-328 of the WIM Act. Far from enshrining the opinion of an AMS, those provisions provide for the mechanism by which a worker may challenge a decision when it is incorrect.

101. Sections 327 and 328 of the WIM Act are set out at [16]-[17] of this judgment. Section 328(2) limits the Appeal Panel’s powers of review. Counsel for both the plaintiff and defendant agreed that following the amendments made to s 328 of the WIM Act in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (“Siddik”), the Appeal Panel’s statutory task is two staged (T 19.18-22). The first is to determine if the AMS fell into error; the second is to review and correct that error.

102. In Siddik, the Court of Appeal had held that while an appeal panel is prima facie confined to the grounds the Registrar has allowed, it can consider other grounds capable of coming within one or other of the heads of review under section 327(3) of the WIM Act, reproduced at [16] of this judgment. However, following amendment which took effect in 2011, s 328 of the WIM Act now provides that an appeal of a MAC is limited to the grounds on which the appeal is made.

103. In this case, when specifying the grounds of appeal in its application to appeal against the decision of the AMS, the plaintiff only ticked the boxes for “the assessment was made on the basis of incorrect criteria” and “the medical assessment certificate contains a demonstrable error” (s 327(3)(c)-(d)). However, at [2] of its decision, the Appeal Panel identified the appellant’s grounds of appeal as including “availability of additional relevant information” (s 327(3)(b)). As [14] of its decision excerpted above, the Appeal Panel acknowledged that the plaintiff’s failure to tick the box correlating with s 327(3)(b) seemed to have been an omission, and determined to address the content of the plaintiff’s submissions in relation to the new report.

104. The Appeal Panel’s statements at [13]-[14] of its decision must also be understood in the context of s 328(3) of the WIM Act. The report of Dr Endrey-Walder to which the Appeal Panel refers at [14], dated 30 August 2018, was not before the AMS. Pursuant to s 328(3) of the WIM Act, the Appeal Panel could only receive such a report if it constituted “new evidence”, which is evidence “not available to the party before the medical assessment” and which “could not reasonably have been obtained by the party before that medical assessment”. In light of the statutory context, it is my view that read as a whole and fairly, the Appeal Panel’s dismissal of the report does not reflect a general hostility towards medical opinions which differ to that of an AMS, but rather a restatement of its statutory duty to reject fresh reports which do not constitute new evidence for the purposes of an appeal.

105. The Appeal Panel then addressed the content of Dr Endrey-Walder’s 20 December 2017 report at [42]-[43]:

“42. As indicated, Dr Endrey-Walder assessed the right hand as having Grade 3 sensory deficit median nerve below the mid forearm – 24% UEI. We had some difficulty in comprehending Dr Endrey-Walder’s calculations. Sensory defecit is assessed pursuant to Table 16-15 of AMA5. The Table provides, relevantly, for sensory deficit below the midforearm of a maximum 39% UEI.

43. …To reach an assessment of 24% UEI, Dr Endrey-Walder had to have found that Mr Ziraki was suffering a total of 62% for sensory deficit…”

106. The Appeal Panel then continued to address the content of the 2017 report at [45]-[50] of its decision, reproduced at [40] of this judgment. The Appeal Panel noted that Dr Endrey-Walder’s 2017 report revealed his unawareness of the modification made to the AMA5 Guides by cl 2.9 of the Guidelines, such that he mistakenly referred to Tables 16-15 and 10a of the AMA5 Guides instead of first considering the three alternate categories at p 495. As such, it was the Appeal Panel’s view that Mr Zikari’s reliance upon the report was misconceived (at [49]).

107. At [50] of its decision, the Appeal Panel continued:

“50. Dr Endrey-Walder did not have to hand the nerve conduction studies when he gave his opinion on 20 December 2017, and accordingly was then unable to consider the criteria in alternative (1), even if he had been aware of the Chapter 2.9 modification made by the Guides. As he considered the guides at p 495 to be inapplicable, there having been no decompression surgery, he clearly felt justified in ignoring them...”

108. The Appeal Panel then continued at [51]-[54] of its decision to consider whether scenario 1 was applicable to the determination of permanent impairment. The Appeal Panel concluded at [54] that scenario 2 was applicable in light of the evidence before it. Specifically, it found that as it did not consider there to be evidence of median nerve dysfunction, the plaintiff did not satisfy the criteria for scenario 1. That conclusion was one which the Appeal Panel was entitled to make, and its reasons sufficiently addressed its line of reasoning, including its reasons for disagreeing with the reports of Dr Endrey-Walder.

109. For these reasons, it is my view that the Appeal Panel did not fail to engage with the plaintiff’s articulated case through the materials of Dr Endrey-Walder as alleged in grounds [11](e)-(f). It is also my view that the Appeal Panel did not fail to afford the plaintiff procedural fairness by failing to deal with the plaintiff’s articulated case through the materials of Dr Endrey-Walder that scenario 1 on p 495 was the scenario that applied, as alleged under Ground [11](b). As such, grounds [11](b),(e)-(f) reveal no error of law.

Result

110. The application for judicial review fails.

111. The summons filed 8 February 2019 is dismissed.

Costs

112. Costs are discretionary. Usually costs follow the event. The plaintiff is to pay the first defendant’s costs on an ordinary basis.

The Court orders that:

(1)   The summons filed 8 February 2019 is dismissed.

(2)   The plaintiff is to pay the first defendant’s costs on an ordinary basis.

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Decision last updated: 11 September 2019