Aircons Pty Limited v Registrar of the Workers Compensation Commission of NSW & Anor

LEGISLATION CITED : Supreme Court Act 1970 Workplace Injury Management and Workers Compensation Act 1988

Campbelltown City Council v Vegan [2004] NSWSC 1129 CASES CITED : Craig v South Australia (1995) 184 CLR 163 Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW & ors [2005] NSWSC 1260 Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor [2005] NSWSC 954

Aircons Pty Limited (Plaintiff) PARTIES : Registrar of the Workers Compensation Commission of New South Wales (First Defendant) Abdul Kader (Second Defendant)

COUNSEL : Mr R Stanton (Plaintiff) Mr E G Romaniuk (Second Defendant)

SOLICITORS : Sparke Helmore (Plaintiff) I V Knight, Crown Solicitor (First Defendant)

LOWER COURT JURISDICTION : Workers Compensation Commission of New South Wales

• 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

Aircons Pty Limited v Registrar of the Workers Compensation Commission of New South Wales & Anor

1 His Honour: The second defendant was an employee of the plaintiff. On 2 October 2002, in the course of that employment, he suffered injury to both hands.

2 Dispute arose between the parties and it came before the Workers Compensation Commission (the Commission). A request for medical assessment by approved medical specialist was made. This followed a medical assessment certificate teleconference.

3 Agreement was reached as to referral to two approved medical specialists. It may be that agreement was also reached as to what was to be referred to each of them. An arbitrator (Janice Connolly) made a referral for assessment of permanent impairment dispute. The referral to a plastic surgeon (Dr Fry) was for assessment of the matters of scarring and skin discolouration only. The referral to an orthopaedic surgeon (Dr Bodel) was for assessment of restriction of movement only.

4 Subsequently, two medical assessment certificates of permanent impairment were given.

5 The certificate given by Dr Bodel noted that he was to assess "restriction of movement only" and that Dr Fry was to assess "scarring and skin discolouration only". Dr Bodel assessed the right hand whole person impairment at seven per cent and the left hand at nine per cent.

6 Dr Fry identified the details of the matters referred for assessment as being "Regarding scarring/disfigurement of both hands". He assessed the whole person impairment at 38 per cent.

7 Dr Fry made a diagnosis of "RSD/Causalgia". The certificate contains, inter alia, the following:- 9. My reasons for my opinion and assessment of whole person impairment, including my objective comments regarding the other medical opinions submitted by the parties and the reasons why my opinion differs are: Answer : My reasons are based on the assessment of the complication of RSD/Causalgia and the clinical signs. The following clinical signs are present: 1. Skin colour mottled, the history of being cyanotic; 2. Skin temperature, a gradient present along 3 fingers of the left hand, cooler distally, 3. Atrophic changes, 4. Skin texture loss of the pulps of little finger, ring finger and middle finger; 5. Soft tissue atrophy marked in the left ring and little fingers, 6. Joint stiffness greater on left that on right, 7. Nail changers are present in the fingers of the left hand; hair growth changes, a little more on the left side that the right, in either instance heavy growth. This gives 7 items of change to which one adds slow movement of the joints consistent complaint of pain with burning quality and complaint of alteration in the quality of sensation. Under the circumstances I believe the diagnosis is appropriate. Precise range of motion measurement was not possible because of complaint of pain when he flexed his fingers and when this was carried out slowly. This can therefore only be approximate for the assessment. Approximately 20% loss of each finger joint (proximo-distally 11%, 12% and 10%) combine to 30% of each finger using clinical judgement to assess sensory deficit and pain he is assessed at Grade 2, Table 16-10 at a maximum of 80% sensory deficit for each finger, which is 86% impairment of each finger, which adds up to 52% impairment of the hand, equating to 47% of the left upper extremity which equates to 28% whole person impairment. For this takes on board any discolouration and all the features of RSD/Causalgia. The right side, which is much less affected, is assessed to be 50% of that of the left upper extremity, which is 14% whole person impairment. The two combined equal 38% whole person impairment. In my view this is consistent with his loss of activities of daily living, inability to work and the loss of function of the hand.

8 Dr Bodel was nominated to calculate the total whole person impairment in accordance with the combined table in AMAS. His supplementary certificate assessed the impairment at 47 per cent.

9 By application to the Commission, the plaintiff brought an appeal pursuant to s327 of the Workplace Injury Management and Workers Compensation Act 1988 (the Act). It was brought on the grounds that the assessment was made on the basis of incorrect criteria and that the certificate contained a demonstrable error. The attack was launched against the certificate given by Dr Fry.

10 The appeal was determined by a delegate of the Registrar of the Commission (Wayne Wormald) on 8 November 2005. The decision contained reasons. The reasons contained the following:- 1. The Medical Assessment Certificate was issued on 23 June 2005. 2. On 5 August 2005 the Appellant lodged the Application to Appeal the Decision of an Approved Medical Specialist, on the grounds that:

· The assessment was made on the basis of incorrect criteria (Section 327(3)(c),

· The medical assessment certificate contains a demonstrable error (Section 327(3)(d). 3. Section 327(5) of the Workplace Injury Management and Workers Compensation Act 1998 provides that if the appeal is on a ground referred to in subsection 3(c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal. 4. Having considered both the submissions of the Appellant and Respondent, the Registrar is satisfied that special circumstances do exist to justify an increase in the period of appeal. 5. Pursuant to Section 327(4) the appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in Section 327(3) exists. 6. After consideration of the submissions received from the Appellant and the Respondent it does not appear that either the assessment was made on the basis of incorrect criteria or the medical assessment certificate contains a demonstrable error In particular: i). The Appellant submits that the AMS was "requested to assess impairment as a result of scarring/disfigurement and has erred in taking into account the diagnosis of reflex sympathetic dystrophy/causalgia and relying upon the restriction of movement and the effect of daily living, inability to work and loss of function of the hand". ii). In Phillip John Carmody v Walter Merriman & Sons Pty Ltd [2003] NSW WCC PD 27 Deputy President Fleming found that an AMS was not "restricted to answers to the questions that were set out in the 'referral' from the Registrar." An AMS was entitled to consider "medical evidence in relation to" the worker's injury and "whether any permanent impairment resulted from that injury". iii). The Deputy President considered it "would result in an inaccurate and misleading medical assessment if he were unable to frankly report on his clinical findings and opinion". iv). In relation to the Appellant's submission that the worker was being "compensated twice", the Registrar has regard to paragraphs 14 and 15 of the Claimants/Respondent's Submissions attached to letter dated 30 August 2005. v). It does not appear that the assessment appealed against was made on the basis of incorrect criteria or the medical assessment certificate contains a demonstrable error.

11 On 7 December 2005, the plaintiff filed a summons in this court. It seeks judicial review of the decision of the Registrar pursuant to s69 of the Supreme Court Act 1970.

12 Before proceeding further, I should either set out or refer to certain of the relevant provisions of the Act.

13 Section 319 contains a definition of "medical dispute". It is in the following terms:- 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, (e) the nature and extent of loss of hearing suffered by a worker, (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable.

14 Section 321 empowers the referral of a medical dispute for assessment and provides that the Registrar is to give the parties notice of the referral.

15 Section 322 requires that the assessment of degree of permanent impairment is to be made in accordance with WorkCover Guidelines issued for that purpose.

16 Section 325, which is headed, "Medical assessment certificate", is in the following terms:- (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. (3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error. (4) An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence.

17 Counsel for the second defendant has briefly floated a number of arguments concerning the statutory provisions (at least two of the arguments were said to be "interesting"). None of them have been fully argued. None of them have to be decided in this case and are better left for another day. I shall later refer to certain of them.

18 By way of introduction to dealing with the contentions of the parties, it may be helpful to observe that it is a matter of importance that the medical dispute referral identify with precision the matters that are referred for assessment. A failure to do so may infect the whole assessment process.

19 Counsel for the second defendant has contended that the arbitrator was not empowered to make the referrals that were made in this case. This is one of those matters that has not been fully argued. In the light of the minimal argument that has taken place, I am not satisfied that this contention is well founded. In this context, it suffices to observe that the referrals would appear to fall within the compass of, inter alia, (c) of the definition.

20 The prescription contained in subsection (1) of s325 requires the approved medical specialist (AMS) to give a certificate as to the matters referred for assessment. It is significant that the provision appears to distinguish between "a medical dispute" and "the matters referred for assessment". The statutory function of the AMS is to give a certificate as to those matters.

21 I am satisfied that the medical assessment certificate given by Dr Fry contains demonstrable error. He has addressed matters other than those referred to him for assessment. He has not given a certificate as to the matters referred for assessment. This has seen him venture outside that area and one of the consequences is that there is overlapping with the assessment made by Dr Bodel. The supplementary certificate given by Dr Bodel was founded on the correctness of the certificates that both he and Dr Fry had given. Accordingly, the supplementary certificate is infected with the error contained in the earlier certificate of Dr Fry.

22 It may be arguable that Dr Fry failed also to correctly identify the matters that were referred to him for assessment. He restated those matters with somewhat different terminology. His certificate does not mention the restriction imposed by the referral. Also, there is no mention of the referral to Dr Bodel. I take this matter no further as it has not been fully argued and does not need to be determined.

23 There is also a question as to whether or not the assessment was made on the basis of the correct criteria (being the criteria prescribed by the WorkCover Guidelines). I shall mention two matters. Dr Fry said "For this takes on board any discolouration and all the features of RSD/Causalgia". His view was said to be consistent not only with the activities of daily living, but also "inability to work and loss of function of the hand". For reasons earlier given, that matter also need not be further pursued.

24 The role of the Registrar (or the delegate thereof) is as set forth in s327(4) of the Act. It has been considered in a number of recent decisions (inter alia, Campbelltown City Council v Vegan [2004] NSWSC 1129, Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1260 and Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor [2005] NSWSC 954). It must appear to the Registrar that a ground for appeal exists to enable the appeal to proceed. A decision that it appears that a ground for appeal exists either brings about a review of the original medical assessment by an appeal panel (s328(2)), or a further assessment under s329 (s327(6)) of the Act.

25 It may be that the use of the term "appeal" is misleading. In substance, the Registrar makes a decision on an application which may lead to a review or further assessment.

26 The expression of reasoning process by the delegate has been the subject of criticism during the hearing. It is not a matter upon which I need to embark. I consider that the decision was founded, inter alia, on error as to the existence of a specified ground for appeal and in the making of that error he, inter alia, addressed the wrong questions. I am satisfied that there was error of law on the face of the record.

27 Before concluding this judgment, I shall briefly refer to two of the other matters raised by counsel for the second defendant. One concerned the effect of s350 of the Act. The other concerned the question of what constitutes the record for the purposes of s69 of the Supreme Court Act.

28 Section 350 of the Act has been referred to as a privative provision. It was the subject of consideration by Wood CJ in CL (as he then was) in Vegan. His Honour's reasoning does not see the provision as preventing the challenge that has been brought in these proceedings. He was dealing with a decision of the Appeal Panel. He considered that the term "Commission" meant the Commission as constituted either by an arbitrator or by a Presidential Member. If the question needs to be revisited again, that should take place when it is subjected to full argument.

29 Section 69(3) of the Supreme Court Act contains the words "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".

30 In Craig v South Australia (1995) 184 CLR 163 at pp182-183, the High Court observed as follows:- The determination of the precise documents which constitute "the record" of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application. The effect of the foregoing is that "[o]rdinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication". Where the inferior court or tribunal has prepared a formal record, the court hearing the application may amend it by discarding material which should not have been included. Where the inferior court or tribunal has not prepared a formal record or the formal record prepared is incomplete, the court hearing the application can, if the material placed before it is adequate for the purpose, construct or complete the record. [Footnote omitted]

31 Section 69(4) of the Supreme Court Act enacts that the face of the record includes the reasons expressed for the ultimate determination.

32 In the present case, the material documents considered by the court were the referral, the certificates and the decision of the delegate.

33 I should digress to add that during the course of argument, counsel made unrestricted use of the contents of the certificates.

34 It seems to me that the referral should be regarded as being of the category of initiating process or pleadings. The certificates and the decision can be regarded as falling in the categories of reasons and the adjudication.

35 I am satisfied that the decision made by the delegate of the Registrar of the Workers Compensation Commission of New South Wales on 8 November 2005 should be set aside. The matter is remitted back to the Registrar for determination according to law. I have been asked to reserve the question of costs and do so. The exhibits may be returned.

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