BOJKO v ICM PROPERTY SERVICE PTY LTD & ORS [2009] NSWCA 175 | Case summary

(d) the medical assessment certificate contains a demonstrable error." 6 The worker's appeal challenged the assessment for the left arm, the cervical spine and the scarring. He sought a further medical examination by the Panel, but it was later made clear that an assessment hearing was not sought. He also relied upon additional evidence in the form of his statutory declaration of 27 July and a medico-legal report by Associate Professor van Gelder of 10 July. 7 On 31 October the Appeal Panel published their reasons and issued a revised MAC. Their reasons relevantly included the following: "PRELIMINARY REVIEW 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." 8 The Panel admitted the additional evidence lodged by the worker and referred to the written submissions on his behalf lodged with the appeal. There were separate submissions directed to the worker's impairments in his left arm, cervical spine and his scarring, his submissions in support of a further medical examination, and a schedule of additional information. 9 In their decision the Panel confirmed Dr Assem's assessment of the worker's cervical spine, but reduced the deduction for pre-existing conditions from 3% to 2% and increased the assessment for scarring on his left wrist from 1% to 2%. 10 The revised MAC certified a net WPI of 6% instead of the net 4% certified by Dr Assem. 11 The worker challenged the Panel's MAC in judicial review proceedings on two grounds. The first was: "The [Appeal Panel] 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 …." 12 The second was: "The [Appeal Panel] erred in law in exercising its discretion not to conduct a further medical examination." 13 Both related to the decision of the Panel not to have a further medical examination of the worker, and both were rejected by As/J Malpass. 14 Mr Jackson, who appeared for the worker, submitted that the Panel did not consider the worker's request for a further medical examination. He did not suggest that they were not aware of the request, or the submissions marshalled in support. His submission was that the request was treated as an irrelevant consideration, or one of no weight, and was simply ignored. 15 These submissions were based on the absence of any reference in the Panel's reasons to the worker's request, or the grounds in support of it. These relevantly included (para (a)) that the worker's left and right shoulders were restricted for different reasons. There was a discrete impairment in the left one and "the subtlety of an assessment in such circumstances requires a further examination", (para (b)) that the error in the assessment of the scarring on the left wrist was due to "a simple mixing of the two wrists" and the Panel needed to see both; and (para (d)) that there was now verifiable radiculopathy in the cervical spine which needed to be verified by the Panel on examination. 16 The Panel's reason for not requiring a further medical examination was that this was not necessary "because there is sufficient information on the papers". Mr Jackson submitted that the preliminary review by the Panel referred to in para 7 of their reasons was limited to the original MAC without the other material. Although this meaning is open on the language, the better view in my opinion is that the review involved the whole of the material submitted by the Registrar. 17 Paragraph 45 of the WorkCover Guidelines states that the appeal panel: "may adopt any of the following procedures in accordance with the needs of the individual case: Preliminary review (in all matters), …" 18 The language is inelegant but clearly requires such a review in all cases. Although the word "may" normally confers a discretion, the Panel cannot dispense with a preliminary review. 19 Elsewhere in their reasons the Panel refer explicitly to the additional evidence lodged on behalf of the worker, to the material before the AMS, and the written submissions on behalf of the worker. As already noted, these included submissions in support of his request for a further medical examination. 20 The function of an Appeal Panel under the Act is to conduct an appeal "by way of review of the original medical assessment" (s 328(2)). In para 7 of their reasons they used these words to describe the preliminary review they conducted. Their reasons can and should be read as a statement that they had addressed, in a preliminary way, their statutory task or function. They could not have done this if they had only considered the assessment of the AMS. 21 The Panel said (para 8) that it was not "necessary" to have a further medical examination "because there is sufficient information on the papers". Mr Jackson said that this indicated that they did not consider whether a further examination could be desirable or appropriate, even if not strictly necessary, and they had not addressed themselves to the whole of their statutory task. 22 An Appeal Panel has all the powers of the AMS (s 324(3)), which include the power (s 324(1)(c)) to require the worker to submit to a medical examination. When exercising that power the AMS is not bound to consider whether such an examination would be "necessary or desirable", the phrase used in s 324(1)(b) in relation to another power. The power to require a medical examination is not conditioned in this way. Their decision that such an examination was not necessary does not indicate that they did not address the right question. 23 The Panel said that they had sufficient information on the papers and, in context, this included the new material. Their later reasons addressed the grounds of appeal and the submissions on behalf of the worker. 24 The Panel dealt with the cervical spine in paras 22-23. They accepted some of the submissions on behalf of the worker about the history for this impairment. They rejected the claim for the left shoulder in the absence of a clear history of injury to that shoulder, as required by the Guidelines. This dealt with the worker's submission that there was a discrete impairment in the left shoulder which required a further examination. An examination could not assist the worker on this issue in the absence of a history of injury to that shoulder. 25 The submissions on behalf of the worker alleged that there was an error in the assessment of the scarring on his left wrist which would be apparent on an examination by the Panel. There was nothing in the papers to support the existence of such a mistake. The AMS referred to the condition of the left wrist twice on page 9 of his reasons, once on page 10, and assessed a WPI of 1% for this impairment. 26 Dr Dixon, who was qualified for the worker, referred in his first report of 19 October 2006 to the condition of the worker's left wrist. He noted "gross neurological deficit of his left hand" and extensive haematoma shown in an ultrasound taken that day which was causing minor compression of the median nerve. In his second report of that date he noted adherence of scar tissue in the left wrist and assessed the relevant WPI at 3%. His further report of 19 January 2007 did not mention any adherence, said that the haematoma had resolved, and that "there is no gross neuro-vascular deficit of his left hand". In his second report of that date he recorded a 1% improvement to the left-arm with no separate figure for the wrist. 27 The report of Dr Billett of 16 January 2007, who was qualified for the insurer, referred to the worker's left wrist on pages 2, 3, 4, and 4 times on page 5. He did not think that the worker had fully recovered from the injury to his left wrist and did not offer any opinion as to the WPI for this impairment. 28 Dr Trevitt who was also qualified for the insurer, in his report of 29 May 2007, refers to the worker's left hand on page 3, 5 times on page 4, twice on page 5 and once on page 7. In his opinion the worker's WPI for his left hand was 3%. He referred to evidence of keloid formation in the left wrist and some tenderness in the skin in this area. His WPI assessment for this was based on "the tender, painful scar in the palm of his left hand". None of the doctors reported any impairment in the right wrist. 29 In light of this evidence it is fanciful to suggest that the AMS assessed the worker's impairment on the right wrist instead of the left. 30 The additional evidence submitted for the worker included photographs of the palms of his hands "to confirm the severity of the scarring" on the left hand, and the almost invisible scarring on the right. 31 The Panel found that the scarring on the left hand was "usually visible and trophic (keloid). 1% would be appropriate if the scar was not usually visible, 3% would only be appropriate if there were some adherence to underlying structures and there is no evidence of this in any of the papers". They increased the WPI for this impairment to 2%. They accepted the worker's claim that the scarring was visible, but did not allow more because there was no evidence of adherence after October 2006. These reasons demonstrated that there was no need for the Panel " to see both hands". 32 The remaining ground of appeal was the existence of verified radiculopathy "which needs to be verified by the Appeal Panel on examination". The additional evidence lodged for the worker included the report of Associate Professor van Gelder who had sighted an MRI of the worker's cervical spine taken on 4 May 2007 which met the criteria in the Guidelines for radiculopathy. This evidence, which was not contradicted, did not require verification, and it was not made clear how "an examination" of the worker could provide this. 33 The AMS had found "non-verifiable radiculo complaints" in the workers left arm and assessed him in DRE Category II in the Guidelines. This seems to have been an error as the Guidelines require verifiable clinical or radiological evidence for such an assessment. This was later provided by the report of Associate Professor van Gelder. The Panel confirmed the Category II assessment, but reduced the deduction for the worker's prior condition to two-fifths from the three-fifths found by the AMS. This demonstrates that verification of the radiculopathy would not have affected their decision. 34 Thus the Panel's reasons show that they considered the submissions in support of a further medical examination and decided that the appeal could properly be dealt with on the papers without one. 35 Mr Jackson frankly conceded that the Panel were entitled to come to that decision on the material before them. His point was that in doing so they had ignored, that is "failed to notice and recognize" the worker's submission to the contrary and he referred to W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432, 125 FCR 407, 428 para [71]. For the reasons given I do not accept this argument. 36 The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court: "… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." 37 It would nevertheless be helpful if Panels would, in future, make it quite clear in their reasons that they had considered and dealt with the whole case before them including applications for a further medical examination, to receive further evidence, or to have an assessment hearing. This should reduce the challenges on judicial review and remove any perception by the unsuccessful party that the case has not been properly considered by the Panel. 38 The following orders should be made:

BOJKO v ICM PROPERTY SERVICE PTY LTD & ORS

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