Bojko v ICM Property Service Pty Ltd [2008] NSWSC 907 | Case summary

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)."

There are three particulars thereof. 14 Ground two is expressed as follows: "The Third Respondent erred in law in exercising its discretion not to conduct a further medical examination." 15 There are two particulars thereof. 16 Section 322 of the Act requires, inter alia, that the assessment of the degree of permanent impairment of an injured worker is to be made in accordance with WorkCover guidelines issued for that purpose. Guidelines have been issued for such a purpose. Guideline number 45 thereof contains, inter alia, the following: " Procedure of the Appeal Panel 45. An appeal panel consists of two approved medical specialists and one arbitrator. The appeal panel may adopt any of the following procedures in accordance with the needs of the individual case: · preliminary review (in all matters), · 'on the papers' review, · further medical examination by an approved medical specialist on the appeal panel, · assessment hearing." 17 I now turn to Ground one and its various aspects. It was said that the Appeal Panel did not consider the request and thereby ignored relevant material. In support of that contention, stress is placed on the absence in the Reasons of any express mention of the plaintiff's request and the reasons relied on to support that request. This absence was said to give rise to inferences that what the Appeal Panel did was to ignore (in the sense of "to refrain from noticing or recognising") that request. It is also said that such reasons as were given were not adequate to disclose to the parties the reasoning process for the determination to not have a further medical examination. I do not accept these submissions. 18 In my view, the Reasons have to be read in the context of the material that was before the Panel. It had been made abundantly clear by this material that the plaintiff wanted a further medical examination and had advanced reasons why this should be the case. (Indeed, the Commission had taken steps subsequent to the allowing of the appeal to proceed to clarify the requirements of the plaintiff.) 19 In the circumstances of this case, whilst what was intended to be conveyed by paragraphs 7 and 8 of the Reasons could have been expressed more expansively, it seems to me that the absence in the Reasons of an express mention of the plaintiff's requirement and the reasons therefore is not of significance. 20 The Appeal Panel was engaged in the performance of statutory functions. It was required to perform those functions in accordance with the guidelines. Guideline number 45 empowers the Appeal Panel to adopt any of the procedures listed therein having regard to the needs of the individual case before it. 21 The paragraphs inform that the Appeal Panel had adopted the procedure of a preliminary review and that this had led to the determination made as to the plaintiff's requirement of a further medical examination. In so doing, it addressed the only procedural requirement made by the plaintiff. It may be further observed that the paragraphs make no mention of an assessment hearing. It seems to me that this was because the plaintiff had made it clear in the correspondence that it did not require one. 22 In my view, the Reasons also adequately convey to the parties the reasoning process that led to such determination. It seems to me that this appears from both what is stated in the said paragraphs and elsewhere in the Reasons (inter alia, the paragraphs that disclose how the Appeal Panel dealt with the matters in issue in the review). In perhaps a loose way, the Appeal Panel was informing the parties that the needs of this particular case did not require a further medical examination because the Panel had before it all the material that was required to resolve such issues. In my view, it was a disclosure of reasoning process that engaged the reasons advanced on behalf of the plaintiff. 23 I now turn to the second ground. It is common ground that the Panel had a discretion in relation to the matter of the procedure (including the procedure of a further medical examination). The issue argued between the parties was whether or not the plaintiff could demonstrate an improper exercise of that discretion. The contention of the plaintiff was that it addressed the wrong question. In my view, it has failed to demonstrate that matter. 24 As it was not argued before me, I will proceed on the assumption that the Appeal Panel did have such a discretion. In written submissions, the plaintiff put the following: "32 The question, therefore, in considering whether or not to exercise its discretion to conduct a further medical examination, was not whether it was necessary because there was sufficient information, but whether it was in the interests of justice to conduct an examination, and whether it may assist in reaching the correct and preferable decision." 25 The Appeal Panel had the power conferred upon it in relation to procedure. The power enabled the adoption of any of the listed procedures. What it was enabled to do was to adopt a procedure in accordance with the needs of the individual case before it. This was the question that it addressed. It determined to adopt an "on the papers" review. It seems to me that the Reasons convey that it did so because of what it saw as the needs of the individual case before it. (It had sufficient material in the papers and therefore a medical examination was unnecessary.) 26 It would seem to be implicit in the performance of the exercises required by guideline number 45 that the Panel would have regard to the consideration of adopting the procedure which best served a just and fair determination of the matters in issue in the particular review. 27 Accordingly, I do not consider that the Panel addressed the wrong question and so fell into jurisdictional error in this particular case. 28 I am of the view that the plaintiff has failed to make out any of the grounds of his challenge. Accordingly, the Summons is dismissed. The plaintiff is to pay the costs of the Summons. The exhibits may be returned. **********

Bojko v ICM Property Service Pty Ltd

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