Bukorovic v The Registrar of the WCC

LEGISLATION CITED : Supreme Court Act Workplace Injury Management and Workers Compensation Act 1998

Apthorpe v Repatriation Commission (1987) 77 ALR 42; (1987) 13 ALD 656 Attorney-General for New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 Broadbridge v Stammers (1987) 16 FCR 296; (1987) 14 ALD 469; (1987) 76 ALR 339 Bruce v Cole (1998) 45 NSWLR 163 Buck v Bavone (1976) 135 CLR 110 Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Craig v State of South Australia [19995] HCA 58; (1995) 184 CLR 163 Cross v McHugh [1974] 1 NSWLR 500 Gurleven v Minister for Immigration & Ethnic Affairs (Full Federal Court, 24 February 1984, unreported) Kirk v Industrial Relations Commission (NSW); [2010] HCA 1; (2010) 239 CLR 531 CASES CITED : Martin v Kelly [2008] NSWSC 577 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528; (1986) 68 ALR 441 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Abede v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 10 FCR 264; (1986) 64 ALR 466 Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; [2007] 235 ALR 609 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; (2005) 139 LGERA 296

TEXTS CITED : American Medical Association Guides to the Evaluation of Permanet Impairment, 5th ed (2001) WorkCover Guides for the Evaluation of Permanent Impairment 3rd ed (2009)

Mark Bukorovic (Plaintiff) Registrar of the Workers Compensation Commission (First Defendant) PARTIES : Dr Peter Giblin (Second Defendant) Appeal Panel WCC (Third Defendant) Formtec Group (NSW) Pty Ltd (Fourth Defendant)

COUNSEL : B K Nolan (Plaintiff) S Blount (Fourth Defendant)

NSW Compensation Lawyers (Plaintiff) SOLICITORS : Submitting Appearance, Crown Solicitor (First, Second & Third Defendants) Sparke Helmore Lawyers (Fourth Defendant)

LOWER COURT JURISDICTION : Workers Compensation Commission

LOWER COURT DATE OF DECISION : 1 June 2009, 2 September 2009 and 28 September 2009

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

2009/298125 MARK BUKOROVIC v THE REGISTRAR OF THE WORKERS COMPENSATION COMMISSION & 3 ORS

JUDGMENT (Judicial review - determinations of the AMS and Appeal Panel - WIMWCA) 1 HER HONOUR: By summons filed 19 November 2009, the plaintiff seeks an order first, in the nature of certiorari setting aside the decision of the first defendant, in WCC matter number 1167/09 dated 28 September 2009 on the basis that the decision was vitiated by jurisdictional error and was of no effect; secondly, an order that the second defendant's decision in WCC matter number 1167/09 dated 1 June 2009, on the basis that the decision was vitiated by jurisdictional error and was of no effect; thirdly, an order that the third defendant, in WCC matter number 1167/09 dated 2 September 2009, on the basis that the decision was vitiated by jurisdictional error and was of no effect; and fourthly, an order in the nature of mandamus that the second defendant exercise his power according to law. 2 The plaintiff is Mark Bukorovic ("Mr Bukorovic"). The first defendant is the Registrar of the Workers Compensation Commission ("the Registrar"). The second defendant is Dr Peter Giblin in his capacity as an Approved Medical Specialist to the Workers Compensation Commission ("the AMS") appointed pursuant to s 320 of the Workplace Injury Management and Workers Compensation Act 1998 ("the Act"). The third defendant is Natasha Serventy, Dr John Beer and Dr David Crocker together in their capacity as the Appeal Panel of the Workers Compensation Commission as constituted pursuant to s 328(1) of the Act. The fourth defendant is Formtec Group (NSW) Pty Ltd ("Formtec"). 3 Mr Bukorovic relied on the affidavit of Vic Petrovich dated 12 November 2009 and the affidavit of Anthony Macri dated 26 February 2010. The Registrar, the AMS and the Appeal Panel have filed submitting appearances.

Judicial review 4 Mr Bukorovic relies on s 69 of the Supreme Court Act 1970. 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 in any proceedings 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. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. 5 In Martin v Kelly [2008] NSWSC 577 Johnson J at [13]-[24] made some helpful remarks on the confines of judicial review. I respectfully adopt and repeat them here. They are: "13 The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 14 This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44].

15 The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40-41.

16 The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25]. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

17 Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.

19 In Craig v South Australia , Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

20 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia , and continued at 351 [82]: "Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." 21 Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79].

22 In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 41.

23 Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-119; Bruce v Cole (1998) 45 NSWLR 163 at 183-184. …" 6 Recently, in Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531, the High Court discussed jurisdictional error in Australia and considered Craig v State of South Australia (1995) 184 CLR 163 at [66] - [68].

Grounds of review 7 The plaintiff appeals on the grounds first, that the Registrar's decision was based on the conclusions on assessment of the Appeal Panel which was no decision at all and the determination of the Registrar was thereby itself no decision at all; secondly, that the AMS failed to comply with the statutory task incumbent upon him pursuant to s 325(2)(c) and (d) of the Act or at common law to give adequate reasons for assessment with regard to the cervical spine stated formulaically in the negative the criteria attributable to the DRE Category I without having his clinical examination and patient history identified the ways in which those conclusion were arrived at; thirdly, the AMS failed to make findings with regard to the right shoulder; fourthly, the Appeal Panel by failing to conduct its own examination of Mr Bukorovic and relying on the facts found and reasoning by the AMS, failed to cure the errors identified in the decision of the AMS and therefore by affirming the decision of the AMS with regard to the cervical spine, the Appeal Panel affirmed a decision that was no decision at all; fifthly, the Appeal Panel constructively failed to exercise its jurisdictional task on appeal by failing to make findings with regard to the right shoulder in accordance with the Act, in particular by misleading itself as to the operation of clause 1.60 of the WorkCover Guides for the Evaluation of Permanent Impairment, 3rd ed (2009) ("WorkCover Guide") with regard to consistency of presentation and in so doing, the Appeal Panel purported to correct the error made by the AMS with regard to the right shoulder, however, it failed to do so, and therefore the decision of the Appeal Panel was no decision at all. 8 On 6 August 2007, Mr Bukorovic sustained injuries to his neck, lower back, left shoulder, right shoulder and right leg during the course of his employment with Formtec. 9 On 12 February 2009, Mr Bukorovic made an application to resolve the dispute, which was referred to and assessed by the AMS. Both Mr Bukorovic and Formtec lodged appeals from that determination. It is only the appeal by Mr Bukorovic that is the subject of these proceedings. Mr Bukorovic accepts the assessment of the AMS in relation to the lumbar spine at seven percent.

10 Overall, Mr Bukorovic alleges the AMS made two errors, one in relation to the cervical spine and the other in relation to the right upper extremity (shoulder). Mr Bukorovic also submitted that the Appeal Panel did not correct these errors. I shall deal firstly with the AMS and Appeal Panel's decisions in relation to the cervical spine and then their approaches to the right shoulder.

Duty to give reasons 11 Mr Bukorovic's counsel submitted that the AMS and the Appeal Panel have a common law duty to give adequate reasons. The duty to give reasons arises by implication from the statute not from the common law: see Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372. In Campbelltown City Council v Vegan Basten JA (at [117] - [118]) stated that it should be accepted that the Appeal Panel was subject to an implied statutory obligation to give reasons and that conclusion follows from the analysis of the statutory context and from an understanding of the nature of the functions imposed on the Appeal Panel. The Appeal Panel has a statutory duty to either confirm the decision of the AMS or revoke the certificate and issue a new one.

The relevant provisions of the Act 12 Section 325 of the Act sets out what is to be contained in the medical certificate. It reads: "325 Medical assessment certificate

(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. …" 13 Section 328 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. The WorkCover Guidelines may 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.

(4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel.

(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.

(6) … 14 Basten JA in Campbelltown City Council v Vegan continued (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] … to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialist in reaching a professional judgment." [citations omitted] 15 Mr Bukorovic's counsel submitted that the AMS failed to make findings of fact in relation to the cervical spine in accordance with his statutory obligation to do so under s 325(2)(c) and (d) of the Act and that the Appeal Panel did not make its own assessment of Mr Bukorovic and relied on the findings of the AMS. According to counsel for Mr Bukorovic, the Appeal Panel in recognising that the AMS had made omissions in findings of fact in relation to the cervical spine nevertheless upheld the determination, finding that the AMS's formulaic conclusions were sufficient to discharge the statutory task incumbent upon the AMS. 16 Before I turn to the reasons of the AMS and the Appeal Panel, it is necessary to consider the role of the WorkCover Guides. Guidelines in general have varying legal effects. Some guidelines amount to delegated legislation and are inflexible. Others exhibit no legislative intention to create precise or inflexible rules: see Riddell v Secretary, Department of Social Security (1993) 42 FCR 443. 17 Formtec's counsel referred to two cases in relation to guidelines, namely Broadbridge v Stammers (1987) 16 FCR 296; (1987) 14 ALD 469; (1987) 76 ALR 339 and Apthorpe v Repatriation Commission (1987) 77 ALR 42; (1987) 13 ALD 656. 18 In Apthorpe v Repatriation Commission the plaintiff was a veteran in receipt of a pension assessed at 70 percent of the general rate. He sought a review of the assessment relying, in part, on a failure of the tribunal to comply with relevant guidelines. The Full Court of the Federal Court approved the general propositions (at [26]): "26 In Minister for Immigration and Ethnic Affairs v Conyngham & Ors (1986) 68 ALR 441 at 452-3, Sheppard J., with whom Beaumont and Burchett JJ. agreed, referred to the danger of looking to guidelines in a case such as this. His Honour said:- "The danger of looking at policies or guidelines as a source of the rights of a person who claims to have been aggrieved by administrative action is pointed up by Fox J. in his judgment in Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 64 ALR 466. That was a case involving the construction of s 273 of the Customs Act 1901. In particular it concerned the respondent's quota allocation. There was in force a scheme formulated for the allocation of base tariff quotas. In this context Fox J. said (at p 470): 'The law is to be ascertained by reference to the enactment under which the decision is made: see Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363; (1982) 42 ALR 676; Gurleven v Minister for Immigration & Ethnic Affairs unreported, Full Federal Court, 24 February 1984. In the present case, this is s 273. It does not mention quota, it deals with tariff rates and does so totally without reference to individuals or companies. The quota scheme has been created under the section, but is a long way from its language. Understandably, the validity of the scheme has not been challenged before us. It does not seem to me that because of the lack of more specific legislation, one should try to elevate the scheme to the status of law. Private rights of action may conceivably arise out of its operation, but that is a different matter. The quota scheme may be controlled and limited in some respects, having in mind the sections of the Act under which it operates, but it is not, in reality or in effect, a statute, and its various provisions are not to be construed as if they were of legislative effect. …'

Similarly, there is no ground for elevating the guidelines here to the status of law." 19 In Broadbridge v Stammers the Full Court of the Federal Court considered a manual setting out policies in respect of the decision maker's powers. The Full Court stated (at 300): "The manual requires decisions upon many discretionary matters and matters of judgment. It is not cast with the precision of a statute. Clearly this is an area in which guidelines may be useful and necessary. Much has to be left to the person selected as the delegate to give effect to them. It is an administrative area where one would expect that the delegate would have to direct his mind to the matters laid down in the policy but where he would not be bound, in the strict legal sense, by every word in the policy manual. Rather one would expect he would be open to correction or discipline by the Commission …"

The Guides 20 There are two types of guides, the WorkCover Guides and the American Medical Associates Guides to the Evaluation of Permanent Impairment, 5th edition (2001) ("AMA5"). 21 The WorkCover Guides are issued pursuant to s 376 of the Act for the purpose of assessing the degree of permanent impairment that arises from a work related injury or condition in accordance with s 322(1) of the Act. The first edition of the WorkCover Guides was issued in December 2001. The focus of the workers compensation legislation is injury management which aims to assist the injured worker to recover and return to work. When a worker sustains a permanent impairment, however, these Guides are intended to ensure an objective, fair and consistent method for evaluating the level of permanent impairment. This current WorkCover Guides were issued on 6 February 2009.

22 Section 376 relevantly reads: "376 Issue of guidelines

(1) The Authority may issue guidelines with respect to the following: (a) the assessment of the degree of permanent impairment of an injured worker as a result of an injury,

(c) such other matters as a provision of the Workers Compensation Acts provides may be the subject of WorkCover Guidelines. (2) The Minister may issue guidelines with respect to the procedure for assessment under Part 7 (Medical assessment).

(3) The Authority may amend, revoke or replace WorkCover Guidelines made by the Authority, and the Minister may amend, revoke or replace WorkCover Guidelines made by the Minister.

(4) WorkCover Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.

(5) WorkCover Guidelines (including any amendment, revocation or replacement) are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the Guidelines for that purpose, on the day so specified.

(6) The regulations may make provision for or with respect to any matter for which the WorkCover Guidelines can provide." 23 Section 376 is silent to the legal effect of the WorkCover Guides.

24 However, the introduction to the WorkCover Guides provides at Clause 1: "1.1 WorkCover NSW has introduced Guides for the evaluation of permanent impairment based on the American Medical Association's Guides to the Evaluation of Permanent Impairment , fifth edition (AMA5). 1.2 These Guides, to be known as the WorkCover Guides , are issued under section 376 of the Workplace Injury Management and Workers Compensation Act 1998 (The 1998 Act). The WorkCover Guides were introduced in December 2001 and the current edition is the third edition. 1.3 The WorkCover Guides adopt AMA5 in most cases. Where there is any deviation, the difference is defined in the WorkCover Guides . Where differences exist, the WorkCover Guides are to be used as the modifying document. The procedures contained in the WorkCover Guides are to prevail if there is any inconsistency with AMA5. 1.4 The WorkCover Guides are to be used wherever there is a need to establish the level of permanent impairment that results from a work-related injury or disease. The assessment of permanent impairment is conducted for the purposes of awarding a lump sum payment under the statutory benefits of the NSW Workers Compensation Scheme and also for determining access to Common Law, domestic assistance and commutation of claims. …" 25 The applicability of the WorkCover Guides is covered in Clause 1.13. It reads: "1.13 The WorkCover Guides are meant to assist suitability qualified and experienced medical specialist to assess level of permanent impairment. They are not meant to provide a "recipe approach" to the assessment of permanent impairment. Medical specialists are required to exercise their clinical judgement in determining diagnosis, whether the original condition has resulted in an impairment and whether the impairment is permanent. The degree of permanent impairment that results from the injury must be determined using the tables, graphs and methodology given in the WorkCover Guides and AMA5. Section 1.5 of Chapter 1 of the AMA5 (p 10) applies to the conduct of assessments and expands on this concept." 26 I shall refer to the specific guides in relation to the cervical spine and right shoulder as set out in AMA5 later in this judgment.

The reasons of the AMS in relation to the cervical spine 27 The assessment made by the AMS was based upon the physical examination; the history as provided by the patient; the x-rays and scans; and the documentary evidence. The AMS determined that maximum medical improvement had been reached in relation to the cervical spine and the right shoulder. 28 The AMS, with regard to the cervical spine, made the following assessment: "In the seated position, he could actively rotate his chin 10 degrees towards the right, 20 degrees towards the left, 8 finger breadths off his chest and extension of his neck was less than 1/10 th normal. During the informal part of the examination, when he was getting dressed and undressed turning to talk to his interpreter, or picking up the x-ray bag from the floor or the table, the active range of motion of this cervical spine was much increased and fluid." 29 The AMS also reported that throughout the consultation, there was moderate illness behaviour as evidenced by cogwheel rigidity, inexplicable inability to actively move certain parts of the limb and spine, a very guarded gait pattern, and significant discrepancies between the informal range of motion assessment and the formal range of motion assessed. The AMS observed that during the informal part of the examination, when Mr Bukorovic was getting dressed and undressed, turning to talk to his interpreter, or picking up the ex-ray bag from the floor or table, the active range of motion of the cervical spine was much increased and fluid. The AMS commented that there was a constant atmosphere of moderate suspicion during the entire length of the consultation.

DRE I and DRE II in relation to cervical disorders 30 The Diagnosis-related estimates ("DRE") cervical categories are summarised in AMA5 at page 392 Table 15-5 as follows: "DRE Cervical Category I 0% Impairment of the Whole Person No significant clinical findings, no muscle guarding, no documentable neurological impairment, no significant loss of motion segment integrity and no other indication of impairment related to injury or illness; no factures. DRE Cervical Category II 5%-8% Impairment of the Whole Person Clinical history and examination findings are compatible with the specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, asymmetric loss of range of motion or non\verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity. …" 31 The WorkCover Guides also include instruction where the worker's presentation is inconsistent. It has a role to play here. Clause 1.60 of the WorkCover Guides reads: " Inconsistent presentation 1.60 Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual's range of motion are good but imperfect indicators of people's efforts. The physician must use the entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the physician may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing." This paragraph applies to inconsistent presentation only. The requirements stated in paragraph 1.13 apply to all assessments." 32 The AMS in his reasons in relation to the cervical spine stated: "In relation to his cervical spine assessment as a DRE 1, although there was history of a specific incident of neck symptoms, there is no support by the appropriate imaging studies insofar as the MRI scan referred to in the body of this report is normal, and based upon the physical examination today, there was no evidence of reproducible significant clinical findings in terms of muscle guarding, neurological impairment or significant loss of motion segment integrity on a defined radiological or clinical basis." 33 Counsel for Mr Bukorovic submitted that in order to appropriate a DRE I as the AMS purported to do, the AMS needed to make a number of findings to support his reasons for the allocation of DRE Cervical Category I 0%, in accordance with s 325(2)(c) and (d) of the Act. 34 Mr Bukorovic submitted that the failure by the AMS to demonstrate a consideration of the relevant matters in his reasons constituted not only an error of a jurisdictional kind but also an error on the face of the record. Counsel for Formtec submitted that these reasons fulfil the "minimum legal standard" referred to by Basten JA in Campbelltown City Council v Vegan. 35 The purpose of the Guides is that they are meant to assist the medical specialist to assess the level of impairment. They are no to provide a recipe approach [my emphasis added]. The AMS is to direct his or her mind to the matters laid down in the WorkCover Guides but he or she is not bound, in the strict legal sense, to every word contained in them. In my view, the AMS has addressed the items set out in DRE I, particularly where there was inconsistent presentation. 36 Counsel for Mr Bukorovic further submitted that because the AMS did not specifically make a finding on muscle guarding he fell into jurisdictional error. I accepted that under the heading "Findings on Physical Examination" on examination, the AMS did not specifically comment on muscle guarding as far as the cervical spine was concerned. However, later in his reasons, the AMS stated that, "based on the physical examination today there was no reproducible significant findings in terms of muscle guarding". This is suffice. Just because this finding on muscle guarding appears under another heading does not amount to an error of law or jurisdictional error. To read the AMS decision in the way Mr Bukorovic's counsel contends is to do so with an eye keenly attuned to the perception of error. 37 In my view, the AMS addressed the criteria specified in DRE I. He stated that there was no muscle guarding, no documentable neurological impairment, no significant loss of motion segment integrity and no other indication of impairment related to injury or illness; and no factures. In accordance with DRE Cervical Category I, the AMS assessed Mr Bukorovic's whole person impairment to his cervical spine as 0%. The application for appeal to the Appeal Panel 38 Mr Bukorovic, in his application for review by the Appeal Panel, made submissions that: "The AMS's conclusions are not supported by his clinical findings. His clinical findings reveal only asymmetry. The Doctor makes no mention of pain or muscle guarding on page four (4) where he reports his clinical findings. As the Doctor has not make those clinical findings and omitted to look for pain and guarding he cannot make a retrospective reference to muscle guarding later in his report when in fact his clinical findings do not contain it as a term of reference. In other words his clinical examination did not involve an assessment of muscle guarding confirmed by his report on page four (4)." 39 The Registrar was satisfied that at least one of the grounds for appeal was made out. Either the assessment was made on the basis of incorrect criteria and/or the medical certificate contained a demonstrable error and referred the appeal to the Appeal Panel. 40 Mr Bukorovic's counsel submitted that it is an error which infects the decision of the AMS. Counsel submitted that the Appeal Panel's decision is also infected by the same error because it failed to correct the error by examining Mr Bukorovic itself; failed to consider the relevant matters; failed to make the necessary findings; and the decision also contains a further misdirection as to the effect of s 325 of the Act. According to counsel, the Registrar's decision being based on these findings is also vitiated. The decision of the Appeal Panel in relation to the cervical spine 41 Mr Bukorovic had requested that the Appeal Panel re-examine him. The Appeal Panel in its preliminary review determined that it was not necessary for Mr Bukorovic to undergo a further medical examination because it had sufficient information on file. 42 The Appeal Panel stated (at [19]): "In relation to the cervical spine, the AMS noted in his reasons that 'based on the physical examination today, there was no evidence of reproducible significant clinical findings in terms of muscle guarding, neurological impairment or significant loss of motion segment integrity on a defined radiological or clinical basis'. Whilst it would have been preferable for the AMS to have also noted these findings in the history, the Panel accepts that the AMS obtained clinical evidence for these matters in his examination." 43 The reasons of the Appeal Panel show that they understood Mr Bukorovic's submission in relation to muscle guarding and addressed it. It was a clinical decision by the Appeal Panel as to whether a further examination was required. The Appeal Panel was entitled to take this approach. In relation to the cervical spine, the AMS did not make a jurisdictional error. Nor did the Appeal Panel.

The right shoulder 44 Counsel for Mr Bukorovic submitted that the AMS was referred the right shoulder as part of his assessment of permanent impairment and that he was under a statutory obligation to make findings of the percentage of the permanent impairment attributable to the injury. Counsel further submitted that the Appeal Panel recognised this error and made an assessment of the right shoulder injury and that that assessment demonstrated an error of law on the face of the record, if not a jurisdictional error for misdirection as to the effect of 1.60 of the WorkCover Guides.

45 Formtec's counsel submitted that on the facts of the case, the Appeal Panel appears to have taken precisely the course recommended by the Full Court in Broadbridge v Stammers in that it corrected the AMS by finding he had made an error in not assessing Mr Bukorovic's right shoulder. 46 Chapter 2 of the WorkCover Guides refers to upper extremity. It states: " UPPER EXTREMITY AMA5 Chapter 16 applies to assessment of permanent impairment of the upper extremities, subject to the modifications set out below. Introduction 2.1 The upper extremities are discussed in AMA5 Chapter 16 (pp 433-521). This chapter provides guidelines on methods of assessing permanent impairment involving these structures. It is a complex chapter that requires an organised approach with careful documentation of findings. …

The approach to assessment of the upper extremity and hand 2.3 Assessment of the upper extremity mainly involves clinical evaluation. Cosmetic and functional evaluations are performed in some situations. The impairment must be permanent and stable. The injured person will have a defined diagnosis that can be confirmed by examination. … 2.5 Active range of motion should be measured with several repetitions to establish reliable results. Only active motion is measured, not passive motion. 2.6 To achieve an accurate and comprehensive assessment of the upper extremity, findings should be documented on a standard form. AMA5 Figures 16-1a and 16-1b (pp 436-437) are extremely useful, both to document findings and to guide the assessment process. … 2.8 Table 16-3 (pp 439, AMA5) is used to convert upper extremity impairment to WPI. … Conditions affecting the shoulder region 2.14 All shoulder assessments must have the following 'inclusion criteria': A clear history Symptoms consistent with a shoulder disorder (to be distinguished from symptoms due to referred pain from the neck) Most shoulder disorders with an abnormal range of movement are assessed according to AMA5 section 16.4 - Evaluating Abnormal Motion. Rare cases of rotator cuff injury, where the loss of should motion does not reflect the severity of the tear, and there is no associated pain , may be assessed according to AMA5 section 16.8c - Strength Evaluation. Other specific shoulder disorders, where the loss of should motion does not reflect the severity of the disorder, associated with pain , should be assessed by comparison with other impairments that have similar effect(s) on upper limb function." 47 In relation to Mr Bukorovic's history relating to the shoulder injury, the AMS recorded that Mr Bukorovic described his present symptoms as an ache, with burning, sharp stabbing pains and pins and needles primarily located to his low back, then to his left shoulder, then to his right shoulder, and finally to his neck. 48 The AMS recorded the active range of motion of both his shoulders, to serial testing. On the left side: Movement Range (left shoulder) Flexion 90 Extension 10 Abduction 30 Adduction 30 Internal rotation 80 External rotation 80

49 To serial testing the active range of motion of the right side was: Movement Range (right shoulder) Flexion 90 Extension 20 Abduction 70 Adduction 30 Internal rotation 80 External rotation 80

50 The AMS recorded that Mr Bukorovic's deep tendon reflexes were uniformly preserved in the upper limbs although somewhat depressed, and the motor strength of the major nerves appeared to be reasonably normal. Passive range of motion assessment was difficult but there was no evidence of adhesive capsulitis in either shoulder. In relation to the right shoulder the AMS was unable to arrive at an assessment owing to the inconsistency in the examination. The AMS commented that this inconsistency was supported by discrepancies and variances in terms of the active range of motion when seen during the formal examination and when observed during the period of getting dressed and undressed. 51 Further, the AMS believed there was sub-maximal effort when Mr Bukorovic was attempting the active range of motion as the AMS observed minimal movement, then noted that there was quite a degree of discrepancy. Further, the AMS stated that there was no observable muscle wasting around the shoulder girdle, whereas the passive range of motion assessment led the AMS to believe there was full movement. In addition there was no radiological evidence able to be allied to the clinical appraisal mechanism.

52 Counsel for Mr Bukorovic submitted that there is the distinct requirement in Clause 1.60 of the WorkCover Guide that an initial finding be made as to the active range of motion and then any medical evidence which would give reason for modification of the impairment rating is to be set out and any modification derived therefrom is to be explained in writing. Counsel for Formtec conceded that by not making assessment of permanent impairment as a percentage in relation to the right shoulder was an error. 53 The AMS had already determined that the maximum improvement to the shoulder had been reached so in order to comply with s 325, the AMS was then obliged to determine a percentage of permanent impairment to the right shoulder. 54 The AMS did not do so because he perceived a conceptual difficulty. The difficulty was that as the permanent assessment rating takes symptoms into account but does not reflect disability if he were to attribute a finding of 0% whole person impairment based on DRE I this 0% would indicate that there was an injury and ongoing complaints when in truth there was not. I agree there was an error in relation to the AMS's approach in relation to the assessment of permanent impairment to the right shoulder. Having determined that maximum improvement to the shoulder had been reached, he had to make a whole person impairment assessment as a percentage. But did the Appeal Panel correct that error? 55 Counsel for Mr Bukorovic submitted that the Appeal Panel in its attempt to correct the error of the AMS, did not correct the error but instead it reiterated the AMS's actual findings. The decision of the Appeal Panel in relation to the right shoulder 56 The Appeal Panel stated (at [21] to [24]): "21. In relation to the right shoulder the AMS observed inconsistencies that he states precluded him from making an assessment. The AMS noted the restricted range of movement on formal testing yet found no wasting of the muscle of the shoulder girdle or upper arm. The AMS explains his reasoning in the MAC 'Further, I believe that there was submaximal effort when he was attempting the active range of motion as I observed minimal movement. There was quite a degree of discrepancy.' The AMS refers to other inconsistencies such as informal increased range of motion of the cervical spine, and actual increased range of joint motion by passive movement. The AMS notes 'This inconsistency was supported by discrepancies and variances in terms of the active range of motion when seen during the formal examination and when observed during the period of getting dressed and undressed. Further, there was no observable muscle wasting around the shoulder girdle, whereas the passive range of motion assessment led me to believe there was full movement.' There was no evidence of pericapsulitis or nerve palsy (a mechanical block) to prevent range of motion. 22. While the Panel accepts the AMS's findings, it was an error not to assess the shoulder. An AMS may use 1.60 of the Guidelines to make an estimate based on findings and judgement. The AMS found that the claimant demonstrated sub-maximal effort when attempting active range of motion, had no observable muscle wasting to the should girdle and satisfactory passive range of probable full movement to the region. The Panel has taken into account these findings and the AMA 5 th edition Guides ref: "The Physician's judgement, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guides criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment" (1.5, pg 11). 23. Taking the above into account, the Panel has determined that there was nil probable limitation of active range of motion to the right shoulder and on this basis, a 0% WPI is appropriate. 24. The Panel finds no error in the AMS noting Mr Bukarovic's (sic) presentation, including his sub-maximal effort on the day. Informal observations are part of an examination, and are especially important where significant contradictions to the formal examination are observed. The AMS gave clear examples of when he observed Mr Bukarorvic (sic) and has no duty to alert a worker to his observations. A finding of illness behaviour is a matter of clinical judgment. When cogwheel rigidity is present with no history of neurological abnormality (such as Parkinson's disease), it leads to an inference of illness behaviour, (in this situation sub-maximal effort) which may be conscious or unconscious." 57 The AMS had assessed the range of motion of both Mr Bukorovic's shoulders and recorded them. The Appeal Panel considered the AMS's other observations and findings in relation to Mr Bukorovic's right shoulder as reproduced above. I need not repeat them again. It was a matter for the Appeal Panel's clinical judgment as to whether Mr Bukorovic should have been further examined. The Appeal Panel identified that the AMS had made an error in not making an assessment in relation to the right shoulder. The Appeal Panel took into account the AMS's findings and determined that there was a nil probable limitation of active range of motion to the right shoulder and determined that 0% WPI was appropriate. The Appeal Panel revoked the Medical Assessment Certificate dated 1 June 2009 and issued a new certificate. The Appeal Panel did not err in its approach. 58 As the error made by the AMS in relation to the right shoulder was corrected by the Appeal Panel this court had no reason to intervene and grant relief. The application for judicial review fails. The summons filed 19 November 2009 is dismissed. 59 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the fourth defendant's costs as agreed or assessed.

(2) The summons filed 19 November 2009 is dismissed.

(3) The plaintiff is to pay the fourth defendant's costs as agreed or assessed. **********

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