JUDGMENT
1 HIS HONOUR: The plaintiff suffered a work injury. His claim for compensation was not accepted and he made an application to resolve the dispute pursuant to the Workplace Injury Management Act 1998 ("the Act"). The injury was described as a severe injury to both hands, forearms, post-operative scarring, right and left carpal tunnel, right shoulder and neck. The scarring was to both wrists. However, it was more severe on the left.
2 The assessment of whole person impairment was referred, pursuant to s 319 of the Act, to Dr Assem, an approved medical specialist ("the AMS"). An assessment was made pursuant to s 322 of the Act and Certificate of Assessment was issued on 11 July 2007. An assessment of 7% was made (with three fifths said to be pre-existing). The scarring of the left wrist was assessed at 1%.
3 The AMS conducted his own medical examination. He had before him reports from Doctors Dixon (for the plaintiff) and Trevitt (for the defendant). Both dealt with the scarring to the left wrist only. The reports from each doctor provided a description of the scarring to the left wrist. Each of the two doctors made an assessment of 3% whole person impairment.
4 An appeal was made by application to the Registrar. One of the grounds of appeal was deterioration of the worker's condition that resulted in an increase in the degree of permanent impairment (sub-section (3)(a) of s 327). There were three grounds of appeal. The first concerned "left upper extremity". The second concerned "cervical spine". The third concerned "scarring". The third ground asserts that the assessor must have looked at the wrong wrist and that, given the circumstances, a further assessment was necessary. The appeal proceeded to an Appeal Panel.
5 The appeal application had a schedule of additional information. The additional information was comprised by a statutory declaration from the plaintiff and a report of Associate Professor van Gelder. The additional material included colour photographs of the scarring.
6 The following formed part of the appeal application:
"SUBMISSIONS WHY FURTHER EXAMINATION IS NECESSARY
a. The left shoulder and right shoulder are restricted for different reasons. The right is related to the neck injury itself. The left is a discreet impairment. The subtlety of an assessment in such circumstances requires a further examination by the Appeal Panel.
b. The scarring error would appear to be an error found on a simple mixing of the two wrists, both of which have been subjected to surgery. The Appeal Panel will need to see both wrists.
c. The Assessor has failed to assess and thus an examination is required by the Appeal Panel.
d. The cervical spine now includes verifiable radiculopathy which needs to be verified by the Appeal Panel on examination."
7 Prior to the review, correspondence passed between the Workers Compensation Commission ("the Commission") and the solicitors for the plaintiff. The correspondence confirmed that whilst the plaintiff required a further medical examination, an assessment hearing was not required.
8 The Appeal Panel proceeded to conduct the review. It did not require the plaintiff to undergo a further medical examination. It issued a Certificate and a Statement of Reasons ("the Reasons") for its decision. In relation to the scarring, the assessment was increased to 2%.
9 The Statement of Reasons commences with material that appears under the heading "Background to the Application to Appeal". It does not seem to be in dispute that the Panel had before it not only the appeal application but also the correspondence concerning the plaintiff's requirement for a further medical examination.
10 In dealing with that matter, the Reasons expressed the following:
"7. The Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines.
8. As a result of that preliminary review, the Panel determined that it was not necessary for the worker to undergo a further medical examination because there is sufficient information on the papers."
11 In dealing with the grounds of appeal, the Reasons expressed the following:
"22. The Panel accepts the evidence that the Appellant had cervical symptoms prior to leaving work, and notes the prior claim for neck injury.
23. The AMS describes a measurable restricted range of motion in the left shoulder that is related to the injury. However, the WorkCover Guidelines, second edition, Page 12, paragraph 2.14, subsections 1 and 2, make it clear that the shoulder should not be assessed separately if the restrictions are due to an injury of the neck and there is no history of injury to the shoulder. In this matter there is no clear history of a shoulder injury as is required. Therefore the Panel confirms Dr Assem's assessment in this matter as appropriate and correct.
24. The panel considered the issue of the scarring using the latest 'Table for the Evaluation of Minor skin Impairment' (TEMSKI). The panel found the scar fits into the 2% WPI as it is usually visible and trophic (keloid). 1% would be appropriate if the scar was not usually visible, 3% would only be appropriate if there was some adherence to underlying structures and there is no evidence of this in any of the papers. The panel revokes this aspect of the MAC."
12 The plaintiff now brings a challenge to that decision. A Summons was filed on 21 December 2007. It was heard on 2 September 2008. The plaintiff looks to the discretionary relief provided by s 69 of the Supreme Court Act 1970. Both parties made written and oral submission.
13 There are two grounds of appeal. Ground one is expressed as follows:
"The Third Defendant failed to accord procedural fairness, failed to take into account a relevant consideration, or failed to give reasons for an aspect of its decision, thus erring as to jurisdiction ( Craig v South Australia 183 CLR)."