Campbelltown City Council v Vegan

LOWER COURT Workers Compensation Commission JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Medical Appeal Panel JUDICIAL OFFICER :

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

30022/04 Campbelltown City Council v Margaret Theresa Vegan and Another

JUDGMENT 1 HIS HONOUR: The plaintiff Council brings these proceedings pursuant to s 69 of the Supreme Court Act for a declaration that the decision, which was delivered on 11 December 2003, by an Appeal Panel constituted under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "WIMWC Act"), involved jurisdictional error and was beyond power. Orders are sought quashing that decision, and requiring the Panel to carry out its functions, in relation to the review, in accordance with the law.

THE BACKGROUND 2 The solicitors for Ms Vegan wrote to the Council on 20 August 2002 setting out her claim for compensation in relation to an injury which she had sustained at work, on 29 August 2001. The Council responded, on 1 November 2002, advising that Dr Isbister had reported that her condition had not stabilised, that this would take a further six to eight months, that as a result no offer would be made at that time, and that she should be reassessed in six months time. She was advised that, if she wished to dispute this decision she could refer the matter to the Commission or be further assessed by an Approved Medical Specialist (AMS). 3 On 10 December 2002 Ms Vegan filed an application in the Workers Compensation Commission of New South Wales ("The Commission") for the resolution of a dispute concerning the benefits claimed in respect of the injury, which she had sustained, in the course of her employment, as a child care worker. 4 The dispute, which was notified, was that the employer/insurer had "not made a decision", following the notification of the injury. The box which applied where a dispute related to whether or not the injury had stabilised, was not ticked. No reply was lodged by the Insurer as was then required by Rule 26 of the Interim Workers Compensation Rules 2001. 5 The Registrar of the Commission, on 31 March 2003, referred the matter to Dr Adler, as an Approved Medical Specialist ("AMS"), for the purposes of preparing a Medical Assessment Certificate of Permanent Impairment ("MAC"). 6 On 9 July 2003, Dr Adler, after having examined Ms Vegan and considered such medical reports as were made available to him, issued a certificate, pursuant to s 325(1) of the WIMWC Act, in which he made the following assessment in relation to the work injury: Body Part Date/s of injury (the body part must be described as per Table of Disabilities) Total amount of % of permanent loss of efficient use or impairment Proportion of permanent loss or impairment due to pre-existing injury, abnormality or condition Total % of permanent loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4). If it is claimed that there is more than one injury to a body part please apportion any loss between the injuries e.g. right leg at or above the knew etc. 1. neck 29.8.01 5% 0% 5% 2. back 29.8.01 2% 0% 0% 3. right arm at or above the elbow 29.8.01 8% 0% 8% 4. left arm at or above the elbow 29.8.01 0% 0% 0%

7 Dr Adler's report contained the following observations and findings of relevance, so far as the subsequent appeal was concerned:

Occupation/work duties … Onset of Injury … Subsequent Progress … She continued to work on light duties two days per week, and ceasing this on 9th April 2002 as no further light duties were available. She commenced work in the Records Department for three days a week eight hours per day, covering books and working in a library. She ceased work on 13th January 2003, as she was not coping with this… 4. Clinical history Present Complaints Currently, Miss Vegan complains of the following: 1. Neck - upper cervical pain. 2. Headaches - she describes these as migraines, although there is no nausea or photophobia. 3. Aching over the upper trapezius muscles. 4. A lump over the cervico-thoracic junction - there is no report of pain when specifically asked. 5. Mid thoracic pain. She states that the main area of pain complaint relates to her neck and mid thoracic spine. She describes this pain as "a band, like a tightness there." It is therefore not in actual fact pain, rather a tightness of the musculature. She has difficulty lying down on her back for long periods when sleeping. She is able to elevate both arms to full range, but says that she does at times experience a click in the shoulders such as when lifting sheets on the line. However there is no pain associated with this she states. She continues to perform domestic chores, doing the cooking and vacuuming. She finds it difficult to mop the floors but does so slowly. She does not normally drive a car, as she has no licence. She is not normally involved in any sporting activities. Present Treatment She continues swimming at The Whitlam Centre. She is not receiving any physiotherapy. She is no longer taking any painkillers. She takes Tryptanol to improve sleep at night. She had earlier developed gastritis complications requiring gastroscopy performed in April 2003 and was then placed on Zomac. Present Work Situation She is not presently employed, and is completing a computer application training course. Past History … Examination Findings Examination of Neck Full range of neck movement in flexion, extension, lateral flexion and rotation. Mild lower cervical tenderness without guarding. There is some slight shortening of the right upper trapezius muscles, and tenderness at the mid belly of the muscle related to an active trigger point Brachial plexus tension test negative. Examination thoracic spine: … Arms … Investigation Findings Bone Scan - Date not visible on the document, … 5. Summary Miss Vegan has a history and present examination findings consistent with an initial strain injury to the right cervicoscapular muscles, and mid thoracic spine. This is consistent with the history of a jarring injury occurring when she fell against the wall on 29th August 2001. There is now evidence of strain injury to the right side muscle attachments to the right shoulder blade and of the lower cervical spine. There are no signs of continuing injury to the thoracic spine. There is no lump over the cervicothoracic spine. The present residual level of impairment is very low. There is no range of motion restriction remaining at the neck or shoulders. My comments on consistency of presentation and how this compares with the medical reports and other material sighted: (my detailed discussion on the other medical opinions is addressed under "Reasons"): There was no functional overlay and the presentation was consistent. There is no evidence of any pre-existing condition."

8 The report continued: " 6. Statement regarding the documentation and other material reviewed a) I have reviewed all the documents enclosed in the letter of referral, particularly all the medical reports annexed to the Application and the Reply. b) Did you obtain any additional material or information, including verbal discussions, pursuant to your power under section 324 of the Workplace Injury Management and Workers Compensation Act 1998? No … d) Did the worker produce X-rays, scans etc? No e) Did the worker produce any material other than X-rays scans etc? No …

7. My answers to the following questions regarding the assessment of the percentage of permanent loss of efficient use or permanent impairment with respect to the injuries suffered before the 1 January 2002 in accordance with the Table of Disabilities are: - … b) Has the worker's injury resulted in loss of efficient use or impairment? Yes c) Is the worker claiming that he/she suffered more than one injury to any body part? No d) Is the loss of efficient use or impairment related to the accident or accidents? Yes …

f) Is the worker's injury stable, as at the date of examination? Yes g) Is there any injury related to the accident/s that has not yet stabilised? No … j) Is the loss of efficient use or impairment permanent? Yes k) What is the percentage of the total permanent loss of efficient use or impairment? I have indicated the total % loss in column 3 in the Table below. l) Is any proportion of the permanent loss of efficient use or impairment due to any pre-existing injury, abnormality or condition? No

n) If the answer to (l) yes, what is the percentage amount of the permanent loss of efficient use or impairment due to the pre-existing injury, abnormality or condition? - (section 323 formerly section 68A provides that in some cases this may not be known or will be difficult to determine. In such cases, the deduction is one-tenth of the whole person impairment) I have indicated the % of the pre-existing impairment in column 4 in the Table below. o) What is the total percentage of permanent loss of efficient use or impairment, as a result of the injury? I have indicated the total % loss in column 5 in the Table below. 8. The facts on which I have based my assessment of the percentage of permanent loss of efficient use or permanent impairment are:- The facts are based on the history given to me, the physical examination on the day that she was seen, the bone scan and spinal MRI. 9. My reasons for my opinion and assessment of the percentage of permanent loss of efficient use or impairment, including my comments regarding the other medical opinions submitted by the parties and, the reasons why my opinion differs, are:- · Dr Berry report July 2002. There is a significant span of time between the examination by Dr Berry and myself, of almost one year. There is therefore an opportunity for further improvement in respect of her strain injuries which is not unusual in this type of injury. The natural history for strain type injuries is for improvement. · I note that Ms Vegan is managing a considerable amount of domestic chores, and is aiming to return to work in sedentary type employment with typing and computer use likely. She appears quite confident in respect of managing this work. I also appreciate that she has left the child care career, and changed careers to more computer/clerical orientated employment where she would not be exposed to heavy lifting activities as had been required when handling children. · I appreciate that she is not consuming much in the way of painkillers, but that there is an earlier history of gastritis requiring endoscopy for investigation likely due to the extent of consumption of analgesics earlier. · I note the correspondence between the examination findings of Dr Manohar, and the bone scan findings being supportive of strain injuries to the cervicoscapular and thoracoscapular muscles. However both Dr Manohar and the bone scan findings were present on the right and not on the left. In addition my examination findings indicate the right is affected rather than the left. There is normal MRI spine consistent with diagnosis of musculoskeletal soft tissue strain injuries. · It is unusual given the findings of Dr. Manohar of only mild tenderness being present through out his repeated examinations that the injury has persisted as such mild strain injuries do usually heal over time. However there are some findings objectively on present examination of mild residual tenderness of the muscles that attach to the neck, thoracic spine and shoulder blade."

9 On 25 July 2003 Ms Vegan filed an appeal in respect of this assessment, relying upon three grounds: (i) The availability of additional relevant information, comprising reports from Dr Manohar dated 2 September 2003 and from Cabramatta Nuclear Medicine dated 4 August 2003 (s 327(3)(b) of the WIMWC Act); (ii) The AMS' assessment was made on incorrect criteria (s 327(3)(c) of the WIMWC Act); and (iii) The MAC contained a demonstrable error (s 327(3)(d) of the WIMWC Act). 10 Further particulars of the Grounds of Appeal were set out in an annexure to the Application for Leave to Appeal as follows: "The certificate of Dr. R. Adler is appealed against on the following grounds: Availability of additional information Treating medical reports of Dr. Manohar were not provided to the Approved Medical Specialist post 22nd March, 2002. Copies were not available at the time of referral. However, the treating specialist, Dr Manohar, has subsequently indicated they are now available. These reports particularly relate to complaints of pain and tenderness on the left hand side of the body and left arm. This is particularly relevant in light of the Approved Medical Specialist's comments in paragraph 9, points 3 and 4 on page 10. Assessment was made on the basis of incorrect criteria In respect of Subsequent Progress on page 3 under General History , the history taken by the approved Medical Specialist in relation to the worker ceasing work was incorrect. The worker worked full time, 38 hours per week, up to 9th April, 2002. She ceased full time duties at this time and continued to work in lighter duty positions up until 13th January, 2003. In relation to paragraph 4 - Clinical History , on page 4, and the comment at point 2 in respect of headaches, the worker stated during the examination by the Approved Medical Specialist that she did suffer continually from headaches and there was a history of nausea and photophobia. With regard to paragraph 4 - Clinical History at point 3, in relation to the lump over the cervico-thoracic junction, the worker states that she did complain of pain when specifically asked by the Approved Medical Specialist. In respect of the "band of pain" complained of by the worker under paragraph 4 - Clinical History , about half way down page 4, the worker complained of stabbing pains, spasms, throbbing, burning sensations in the neck and mid thoracic spine. On that basis the Approved Medical Specialist cannot opine that the worker did not experience actual pain in that region as this is contrary to the description given by the worker. In the second paragraph under Clinical History , the worker states she advised the Approved Medical Specialist that she had made an application to the Respondent for home care assistance on a weekly basis, yet the Approved Medical Specialist provides a history that she continues to perform domestic chores including cooking and vacuuming. Under Present Treatment on page 4, the Approved Medical Specialist provides a history of the worker continuing swimming at the Whitlam Centre. The worker denies she gave this history as she has been unable to swim since the onset of symptoms on 29th August, 2001. The history of not receiving physiotherapy is not correct. The worker was attending Campbelltown Physiotherapy once or twice per week at the time of examination by the Approved Medical Specialist. The worker is still employed by the Respondent, contrary to the history taken by the Approved Medical Specialist in the first sentence on page 5. In relation to Examination Findings on page 5, the worker states that, in no way, did she demonstrate a full range of neck movement upon examination and this is supported by the comments contained in the reports of Dr. Berry and Dr. Manohar which were available to the Approved Medical Specialist. In relation to Investigation Findings on page 5, the bone scan did have a date upon it (handwritten) showing 17th October, 2001. The Medical Assessment Certificate contains a demonstrable error. On page 8, paragraph 1, in answer to the question "Is any proportion of the permanent loss of efficient use or impairment due to any pre-existing injury, abnormality or condition?", the Approved Medical Specialist answers "No". Then, on page 10 in the third column of the assessment table, the Approved Medical Specialist opines there is a 2% impairment of the back but then, in the fifth column, gives a total impairment of 0%. This should be read 2% in light of his comments on page 8 that there should be no deduction for any pre-existing injury or complaint. Summary The history as taken by the Approved Medical Specialist is patently wrong being inconsistent with the history as given by the worker when examined by the Approved Medical Specialist and in respect of the history provided in the supporting medical reports and scans. The Approved Medical Specialist states that there is no history of left sided problems or pain provided by Dr. Manohar, the worker's treating specialist. However, Dr. Manohar's reports dated 4th January, 2002, 18th January, 2002, 8th February, 2002, all refer to bilateral problems and pain and restriction of movement. The Approved Medical Specialist comments upon the assessment of Dr. Berry being one (1) year old at the time of his assessment. This is through no fault of the worker or her advisers. It is due to the system currently employed in assessing such claims and, if a refresher report from Dr. Berry would assist the Tribunal, then this can be arranged. On this basis there are sufficient grounds to review the assessment of the Approved Medical Specialist, particularly in light of the incorrect history taken by the Approved Medical Specialist which resulted in the findings contained within his certificate." 11 In its submissions in reply, the Council dealt with the s 327(3)(c) ground in the following submission: "(iii) the appellant further relies on grounds under section 327(3)(c) in that the assessment was made on the basis of incorrect criteria. In support of this ground, the appellant points to matters of history and clinical examination recorded by Dr Adler in his report. The appellant disagrees with some of the matters stated in Dr Adler's report by way of history and clinical findings. The matters raised by the appellant are not sufficient in themselves to establish that Dr Adler made an assessment on the basis of incorrect criteria. Specifically, the appellant fails to: (a) Identify the criteria used by Dr Adler. (b) Identify the criteria he should have used. (c) Establish how the criteria used by Dr Adler was incorrect. (d) Establish how the matters of history and clinical examination recorded by Dr Adler and which the Appellant disagrees with constitute an assessment based on incorrect criteria. The Respondent therefore submits that the appeal insofar as this ground is concerned should be dismissed." 12 An objection was contained in the Council's submissions to the effect that the reports of Dr Manohar should not be received by the Panel as fresh evidence. Subsequently the Council indicated, by letter dated 2 October 2003, that it had no objection to the historical reports of Dr Manohar being considered by the Panel, and confined its objection to the more recent report of 2 September 2003.

13 On 13 October 2003 the Registrar of the Commission advised the parties of the constitution of a medical panel to determine the appeal. 14 The Council conceded that there was a "demonstrable error" within s 327(3)(d), in so far as Dr Adler had obviously failed to carry his finding of 2% "permanent loss of efficient use or impairment" in relation to "Item 2 back", over to the Table setting out the "Total % of permanent loss of efficient use or impairment attributable to this injury". 15 On 11 December 2003, the Appeal Panel issued its reasons for revoking the MAC, and for issuing a new Certificate, pursuant to s 328(5) of the WIMWC Act, substituting for Dr Adler's assessment the following: Body Part Date of injury Total amount of permanent % loss of efficient use or impairment Proportion of permanent impairment due to pre-existing injury, abnormality or condition Total % of permanent loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4). (describe the body part as per Table of Disabilities) 1. Neck 29.08.01 10% 0% 10% 2. Back 29.089.01 (sic) 5% 0% 5% 3. Right arm at or above the elbow 29.08.01 10% 0% 10% 4. Left arm at or above the elbow 29.08.01 8% 0% 8%

16 The reasons of the Panel relevantly were as follows: "FRESH EVIDENCE 23. Section 328 of the [WIMWC] Act provides that the Appeal Panel is not to receive 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 unless the evidence was not available before the medical assessment or could not reasonably have been obtained before the medical assessment. 24. Two reports were submitted by the Applicant seeking them to be admitted as Fresh evidence. The first was a report of Dr Manohar of 02.09.03 and the Second a nuclear medicine report of Dr. Himasnhu Kaushik. 25. In regard to the Report of Dr Manohar, the panel found that the criteria laid down by s328 for inclusion in deliberations were not met, in that Dr Manohar was a 'treating' doctor who had supplied other reports and therefore that his Report could reasonably have been obtained prior to the AMS assessment. 26. The panel included the nuclear medicine Report in its deliberations because this report was not available prior to the AMS assessment. PRELIMINARY REVIEW 27. The Panel conducted a preliminary review of the original medical assessment. 28. As a result of that preliminary review the Panel determined, for the reasons set out below, that although the Applicant in her statement of 29.08.03 had requested that this matter not be dealt with solely upon the papers, that it was not necessary for the Applicant to undergo a further clinical examination. FINDINGS AND REASONS 29. The Panel found that the Appeal had been lodged within time. 30. The Panel found that the Report of Cabramatta Nuclear Medicine could be included in panel deliberations and was particularly helpful in consideration of this matter. 31. The Panel found that anomalies concerning the history of this matter were sufficient to establish that incorrect criteria had been demonstrated. 32. That the error in relation to the impairment of the back was conceded by the Respondent and should be rectified. 33. Evidence from the available Reports and MAC persuaded the Medical Assessment Panel that changes to the assessment were appropriate. DECISION 34. For the reasons set out in this statement, the decision of the Appeal Panel is that the certificate of assessment given in this matter should be revoked and a new certificate should be issued." 17 Following receipt of the Panel decision, the solicitors for the Council sent a letter to the Registrar of the Commission, dated 15 December 2003 drawing attention to the issues which it considered that the Panel had either failed sufficiently or correctly to address, and invited further explanation, or reconsideration of those issues. The Registrar was advised "until those issues are addressed, [the Council] is not in a position to consider resolution of the Applicant's claim on a proper basis, nor is the matter ready to proceed to an arbitration hearing." 18 The Registrar replied on 24 December 2003 advising that the determination of the Panel was "final", and that there was "no provision for the Commission or Panel to review or address the issues raised" in the letter from the Council's solicitors. 19 The Council's solicitors thereafter asked the Registrar to either: "(a) Convene a new appeal panel and direct that appeal panel to determine the appeal afresh; or alternatively (b) Reconvene the original appeal panel and refer to it the submission contained in our letter of 15 December 2003 addressed to the Commission, and oblige the appeal panel to give proper reasons addressing all of the issues",

arguing that the failure of the original panel to address the issues which it had identified, or to give proper reasons in the first place, constituted a denial of procedural fairness and natural justice, which was compounded by the summary dismissal of the matters raised in its letter of 15 December 2003. That refusal was also said to be contrary to the Commission's Rules, Part 12 rule 71. It was also said to be inconsistent with the provisions of s 350(3) of the WIMWC Act which permits the Commission to "reconsider any decision previously made or given by the Commission", and with s 329 of the Act which permits the Registrar or the Commission or a Court to initiate a further assessment. It is, as a result of the Commission's refusal to reopen the Panel determination that the current proceedings are brought.

THE RELEVANT LEGISLATION AND WORKCOVER GUIDES 20 The machinery for making and dealing with a compensation claim, which applied to the present case, was that provided for in Chapter 7 of the WIMWC Act. The way in which a claim is to be made, and the action required of an employer after receipt of a notification, is governed by Division 2 of Part 2 of the Chapter, while Part 3 makes provision for the way in which insurers who are notified of claims are to deal with them. 21 Provision is made in Chapter 7 for the determination of disputes. Additional guidance is now provided by two documents which have been issued by the WorkCover Authority, namely the "WorkCover Guides for the Evaluation of Permanent Injuries June 2002", and the "WorkCover Medical Assessment Guidelines". Since this is the first occasion that a decision of a Medical Panel has arisen for consideration in this Court, it is convenient to note the content of the relevant legislation. For the reasons later mentioned the Guides do not apply in this instance.

THE LEGISLATION 22 The following provisions of Part 4 of Chapter 7 of the WIMWC Act apply: 287 Disputes to which Part applies (1) This Part applies to a dispute in connection with a claim for compensation between: (a) the person who makes the claim and a person on whom the claim is made, or (b) … (2) … 288 Referral of disputes to Commission

Any party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute. … 293 Medical assessment

(1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment. (2) If the dispute concerns the degree of permanent impairment of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment. 294 Certificate of Commission's determination (1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination. (2) A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination. (3) If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.

23 The medical assessment provisions, which are contained in Part 7 of Chapter 7, include the following: 319 Definitions

approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist. 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) … (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable.

321 Referral of medical dispute for assessment (1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral. (2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute. 322 Assessment of impairment (1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines issued for that purpose. (2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker. (3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.

(4) … … 324 Powers of approved medical specialist on assessment (1) The approved medical specialist assessing a medical dispute may: (a) consult with any medical practitioner or other health care professional who is treating or has treated the worker, and (b) call for the production of such medical records (including X-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and (c) require the worker to submit himself or herself for examination by the approved medical specialist. (2) … (3) This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part. An approved medical specialist who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under this section on an assessment of a medical dispute. 325 Medical assessment certificate (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.

326 Status of medical assessments (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned: (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c) the nature and extent of loss of hearing suffered by a worker, (d) whether impairment is permanent, (e) whether the degree of permanent impairment is fully ascertainable. (2) …

(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds: (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists.

(5) … (6) If the appeal is on a ground referred to in subsection (3) (a) or (b), the Registrar may refer the medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment. (7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act. 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) … (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) … …

329 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by: (a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or (b) a court or the Commission. (2) A certificate as to a matter referred again for further assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.

331 Guidelines Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the WorkCover Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments. … 366 Establishment of Commission (1) The Workers Compensation Commission of New South Wales is established by this Act.

(2) The Commission has and may exercise such functions as are conferred or imposed on it by or under the Workers Compensation Acts or any other Act. 368 Members of Commission (1) The Commission consists of the following members: (a) a President, (b) two Deputy Presidents, (c) a Registrar, (d) Arbitrators. (2) The members of the Commission other than the Arbitrators are to be appointed by the Minister. (3) The Arbitrators are to be appointed by the President. (4) The instrument of appointment of a member is to specify whether a member has been appointed as: (a) the President, or (b) a Deputy President, or (c) the Registrar, or (d) an Arbitrator. … 375 Constitution of Commission for particular proceedings (1) For the purposes of any proceedings, the Commission is to be constituted by an Arbitrator except as provided by this section. (2) The Registrar may give directions as to which Arbitrator is to constitute the Commission for the purposes of any particular proceedings or class of proceedings. (3) For the purposes of any proceedings on an appeal against a decision of the Commission constituted by an Arbitrator, the Commission is to be constituted by a Presidential member. (4) The Registrar does not constitute, and does not exercise functions as, the Commission (except when acting as an Arbitrator pursuant to the Registrar's power to exercise the functions of an Arbitrator).

24 In Division 2 of Part 10 of Chapter 7, provision is made as follows: 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, (b) … (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) - (6) … 377 Special requirements relating to WorkCover Guidelines relating to impairment

(1) This section applies to WorkCover Guidelines that relate to the assessment of the degree of permanent impairment of an injured worker as a result of an injury. (2) Those Guidelines must be developed in consultation with relevant medical colleges, including the Royal Australasian College of Physicians, the Royal Australasian College of Surgeons, the Australian Orthopaedic Association and other relevant colleges and associations.

Guidelines for the Evaluation of Permanent Impairment 25 WorkCover issued, in June 2002, pursuant to s 376 of the WIMWC Act, a publication "WorkCover Guides for the Evaluation of Permanent Impairment" Assessment Guidelines. These Guides apply to injuries sustained after 1 January 2002. 26 Additionally, WorkCover has published a document "WorkCover Medical Assessment Guidelines" which was also issued pursuant to s 376(1) and s 331 of the WIMWC Act, and which has the stated purpose of setting out "the procedures for the referral and conduct of medical disputes for assessment or review of assessments under Part 7 of Chapter 7 of the Act".

The Basis of the Proceedings in this Court 27 The parties to these proceedings are the Plaintiff Council, Ms Vegan, the members of the Appeal Panel, and the WorkCover Authority of New South Wales ("WorkCover"). The Panel members have filed a submitting appearance. Ms Vegan and WorkCover have appeared to oppose the Plaintiff's application. It was accepted that it was appropriate for WorkCover to be heard, since it is the Authority which is vested, pursuant to s 22(1)(a) of the WIMWC Act, with the general function of ensuring compliance with the Workers Compensation legislation, and pursuant to s 23(1)(l), with the function of monitoring its operation. 28 The Plaintiff Council asserts, in summary, that error of law occurred in so far as:

(a) The Panel failed to discharge its statutory obligation to give a certificate setting out the facts and reasons in terms which were sufficient to explain its essential reasoning process (save in respect of the conceded error);

(b) It erroneously interpreted and applied the "incorrect criteria" ground of appeal, arising under s 327(3)(c) of the WIMWC Act; and that

(c) It acted upon the incorrect assumption that the WIMWC Act permitted it to reassess the impairment of the worker without being confined to addressing the impact of the established grounds of appeal upon the AMS' assessment.

29 An additional ground was initially pursued to the effect that the appeal to the Panel had been lodged out of time. It was not however pursued and requires no further mention. 30 In its submissions in support of its application to this Court, the Plaintiff Council drew particular attention to the circumstances that the Panel stated that:

a) "it found that the report of Cabramatta Nuclear…was particularly helpful in consideration of this matter", without identifying why, and in respect of what issues, it was "helpful".

b) "it found that anomalies concerning the history of this matter were sufficient to establish that incorrect criteria had been demonstrated" without identifying the "anomalies", or the criteria that had been incorrectly "demonstrated".

c) " evidence from available reports and MAS persuaded (it) that changes to the assessment were appropriate ", without identifying the evidence upon which it relied in arriving at the changes which it made, and without explaining why it had made those changes, or disclosing the basis upon which Dr Adler's assessment was considered to have been incorrect. 31 An initial question which arises is whether the privative clause contained in s 350 of the WIMWC precludes the bringing of these proceedings. The first Defendant submits that it has this effect. S 350 of the WIMWC provides: 350 Decisions of Commission

(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review. (2) A decision of or proceeding before the Commission is not: (a) to be vitiated because of any informality or want of form, or (b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court. (3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission. 32 Appeal Panels are constituted under s 328(1) of the WIMWC Act as part of the procedure for the assessment of medical disputes. They are not described as Divisions of the Commission, and the medical practitioners appointed to them are not part of the Commission staff. 33 The term "the Commission", it seems to me, should be understood in accordance with such content as is given to that expression by ss 4, 366, 368 and 375 of the Act. As such I consider that it means the Commission as constituted either by an arbitrator or by a Presidential Member, and that it does not mean an Appeal Panel. In that regard s 367(1) is also of some relevance in so far as the objectives of the Commission are said to include the establishment of "an independent dispute resolution service". 34 It follows that the decision of the Panel, and the proceedings before it, did not involve a decision of the Commission within s 350(1) or (2), or proceedings before the Commission within s 350(2). 35 So far as any ambiguity or uncertainty might have arisen in this respect, it is to be resolved by reference to "the presumption that the legislature does not intend to deprive the citizens of access to the Courts other than to the extent expressly stated or necessarily to be implied": Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 per Gaudron and Gummow JJ at 633; Plaintiff s 157/2002 v Commonwealth of Australia (2003) 211 CLR 476; and Hockey v Yelland (1984) 157 CLR 124. 36 The first Defendant's submission to the effect that s 350 prevents the Supreme Court from entertaining these proceedings, accordingly fails. 37 Of importance for the Plaintiff in this case was the need to establish either a jurisdictional error of law, or an error of law on the face of the record: Hanna v Department of Immigration, Multicultural and Indigenous Affairs [2004] NSWCA 275. 38 As to the first, the scope for intervention by the Court, with regard to administrative tribunals, was defined in Craig v South Australia (1985) 184 CLR 163, at 179: "If…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." 39 The joint judgment emphasised the distinction between jurisdictional and non-jurisdictional error. While their Honours went on to define the concept of record, that has been broadened by s 69 of the Supreme Court Act to include the reasons: see also Multiplex Constructions Pty Limited v Luikens [2003] NSWSC 1140 at paras 43 to 45. 40 There is no error of law in making a wrong finding of fact unless the fact is jurisdictional: Waterford v The Commonwealth (1987) 163 CLR 54 at 77; and Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at para 44. In New South Wales it has been held that appeal for error of law does not arise from a perverse finding of a fact: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; and see Bruce v Cole (1998) 45 NSWLR 163 at 189. Moreover the boundary between a Wednesbury type discretionary decision and a decision involving the finding of facts essential to the exercise of jurisdiction still needs to be respected: Appellant s 106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165. 41 Where the 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 established in Buck v Bavone (1976) 135 CLR 110 at 118-119, and as discussed by Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 183 to 184. 42 That is not to say that matters of judgment cannot be jurisdictional, see for example Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. 43 A failure to discharge a statutory obligation to give reasons will also constitute an error of law if those reasons are not adequate to disclose the process by which the result was reached: Re Minister for Immigration and Multicultural and Indigenous Affairs: ex Parte Palme [2003] HCA 56 per McHugh J at para 55; Dornan v Riordan(1990) 24 FCR 564 at 573-4; Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84; and Minister for Immigration and Cultural Affairs v Yusuf (2001) 75 ALJR 1105 for example at 1126 per Kirby J. 44 There is however no general rule of common law or principle of natural justice that requires reasons to be given for administrative decisions, that is, absent a statutory obligation to do so: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 (at 662) per Gibbs J; although in the same decision his Honour also noted, as did Deane J (at 676) that, in the special circumstances of any given case, it may be appropriate for the Court to infer, from the absence of reasons, that the decision maker had in fact no good reason for the decision (at 663). See also the discussion by Sperling J in Kennedy Miller Television v Lancken NSWSC 1 August 1997. 45 That may arise from a consideration of the statutory framework, for example where a right of appeal lies from the decision of the administrative tribunal: see for example, Attorney General for New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729. 46 It is by reference to these principles that I will consider the several grounds which the Plaintiff advances as disclosing errors of law sufficient to justify intervention.

A Threshold Issue - What Dispute was Referred? 47 After the matter was reserved, a possible threshold question was identified by me, as to whether the dispute which had been referred to the AMS was that which had, in fact, arisen between the parties. This arose from the circumstance that the Council had contended, when the application for compensation was filed, that the worker's condition had not stabilised, and that assessment should be deferred for six months. It was for that reason, it indicated, that it had not made any offer to her. 48 The parties have accepted, notwithstanding the extraordinarily complex situation which prevails under the Act and Regulations depending upon whether the injury was sustained before or after 1 January 2002, that it was appropriate, once an offer of payment had not been made, within the time prescribed, for the entire issue of assessment to be referred to the AMS. In that regard it is the case that the Worker's Application to Resolve a Dispute was completed in terms identifying disputes in respect of the payment of medical expenses (as a result of the employer's denial of liability for such expenses) and in respect of the payment of an amount for permanent impairment (as a result of the employer not making a decision). 49 Once the claim was notified, the Insurer was required by s 281(1) of the WIMWC Act to elect between disputing liability, in which case the issue was to be referred for medical assessment, or accepting liability and making a reasonable offer of settlement. The time by which a claim had to be determined, as the section operated in relation to this case, was two months after the claimant had provided to the Insurer all relevant particulars about the claim (Reg 94A of the Workers Compensation (General) Regulations 1995). 50 Schedule 6, Part 18C(4)(1) of the Workers Compensation Act, which applied to new claims in respect of injuries sustained before 1 January 2002, provided that s 66 compensation could not be awarded if there was an impairment dispute, unless it had been assessed by an AMS under Part 7 of Chapter 7 of the WIMWC Act. Part 7 of Chapter 7 of the WIMWC Act extends to the assessment of a dispute about whether an impairment exists, and about its nature and extent, as if it were a medical dispute under that Part (Workers Compensation Act, Schedule 6, Part 18C(4)(3)). 51 A "medical dispute" is defined broadly in s 319 of the WIMWC Act, and would extend to a dispute or question about any of the matters listed in paragraphs (a) to (g) of s 319. 52 The registrar has a broad power to refer a dispute for assessment of his own motion, or at the request of a party to the dispute (s 321(1) of the WIMWC Act). That would extend, it appears, to any question that may arise about any of the matters listed in paragraphs (a) to (g) of s 319, whether or not that had been identified by the claimant or by the insurer, and irrespective of the way in which the dispute had been nominated in the application by the worker. 53 By the time that the Council declined to make a decision (1 November 2002), the time allowed by s 281(2) for making an election had expired, since the worker had provided relevant particulars of her claim on 20 August 2002. There was at this stage a dispute about the degree of her permanent impairment, within s 319(c), which the Registrar was able to refer, under either s 293(1) or s 321 of the WIMWC Act, thereby enlivening the power of the AMS to conduct an assessment. Accordingly I accept the parties' concession that the dispute, which was properly available for reference, went beyond the simple issue whether the worker's condition had stabilised. 54 In this regard it is also to be noted that the Applicant's claim arose pursuant to s 65 and 66 of the Workers Compensation Act as it applied to injuries sustained before 1 January 2002. Pursuant to s 66, a worker who had suffered loss of a thing mentioned in the Table of Disabilities was entitled to receive workers compensation for the loss. Loss was defined in s 65 to mean, inter alia, the permanent loss of the use of that thing. It was in relation to the existence and extent of any permanent impairment sustained by the worker in the work injury, that the reference was made to the AMS. 55 In those circumstances it is appropriate for me to proceed upon the basis that the Appeal Panel properly had before it an appeal from an assessment of the worker's permanent impairment, and not simply a dispute as to whether her condition had stabilised.

The "Incorrect Criteria" Argument 56 A central issue which was debated concerned the content of the expression "incorrect criteria", in s327(3)(d) of the WIMWC Act, and its relevance for the Appeal Panel. That arose from the circumstance that the Panel found that "anomalies concerning the history of this matter were sufficient to establish that incorrect criteria had been demonstrated", without identifying the anomalies, or the incorrect criteria, in its reasons. 57 The parties were unable to provide any significant assistance in relation to the Legislative intent in its use of the expressions "incorrect criteria". That is not surprising given the absence of any further definition of the expression either in the Act or in the Regulations. 58 Reference to the speech of the Minister for Police, who moved the second reading of the Bill (NSW Legislative Assembly, Hansard, 19 June 2001, p 14772) provides something of a clue as to what was intended, in the following passage: "Where the medical question in dispute concerns permanent impairment of an injured worker - including hearing loss - the opinion of the approved medical specialist will be conclusive evidence, and cannot be overturned or challenged by an arbitrator in subsequent proceedings. Obviously in some cases mistakes or errors may be made. It is for this reason that the bill provides a right of appeal against a conclusive permanent impairment certificate to a panel consisting of two approved medical specialists, and an arbitrator. The panel will take submissions from the parties and review the original decision, with the possibility of conducting further medical examination. The role of the arbitrator will be limited to ensuring procedural fairness given that most issues arising in appeals will call for the exercise of medical judgment and expertise. The bill carefully and closely confines the grounds of appeal. Appeals will be allowed where there has been a deterioration in the worker's condition, additional information has become available - that could not have been obtained before the original hearing - the assessment was made on the basis of incorrect criteria, or the certificate contains a demonstrable error. A demonstrable error would essentially be an error for which there is no information or material to support the finding made - rather than a difference of opinion. It should also be noted that the appeal on the grounds of incorrect criteria does not allow appeals to challenge or overturn the guidelines. It is designed to cover circumstances where the guides themselves have been incorrectly applied. The bill also includes numerous protections to ensure that the parties are afforded procedural fairness. This includes notification of a proposed referral of a medical question, and requirements for detailed reasons to be given in support of certificates." 59 Although the highlighted passage is somewhat oblique, it tends to suggest that the "criteria" upon which assessment is to be based are to be found in any relevant guides, including guides issued by WorkCover which have been issued for the assessment of impairment and that appeal lies where they have been incorrectly applied. 60 That view is supported by the requirement, pursuant to s 322(1) of the WIMWC Act, for the AMS to make the assessment of the degree of permanent impairment, "in accordance with the WorkCover Guidelines issued for that purpose". 61 The identification of the relevant guidelines for the purpose of the assessment of injuries sustained before 1 January 2002 involves a somewhat tortuous trawl through the legislation and regulations. Clause 5(4) in Part 18C of Schedule 6 to the Workers Compensation Act provides that the provisions of the Workers Compensation Act, and of the WIMWC Act, may be taken to be amended by regulations made under Clause 5. Clause 5(3) provides for the making of regulations of a saving and transitional nature. Regulation 223(a) of the Workers Compensation Regulations modifies the provisions of Part 7 of Chapter 7 of the WIMWC, as that Part applies to new claims in respect of an injury received before the commencement of that Part, that is, 1 January 2002, by omitting s 322. 62 The result is that injuries which occurred prior to this date are to be assessed in accordance with the Table of Disabilities contained in part 3 of Division 4 of the Workers Compensation Act, rather than in accordance with any guidelines which were subsequently issued, and which are to be taken into account in any assessment made in accordance with s 322(1) of the WIMWC Act. 63 It was in accordance with the Table of Disabilities that Dr Adler made his assessment, as appears on the face of his certificate. In view of the foregoing, he was not in error in that approach. The WorkCover Guides were not available by way of guidance for the assessment in this case. It does not, however, follow that reference might not have been made to any other guides which had commonly been used in the assessment of injuries. They included the American Medical Association's Guides to the Evaluation of Permanent Impairment, fifth edition, a recognised publication which has regularly been used to provide assistance in the assessment of losses in accordance with the Table of Disabilities. Those guides in fact provide the basis for the WorkCover Guides, although subject to any deviations or modifications which are mentioned in that document. 64 The status of the WorkCover Medical Assessment Guidelines, which have now been issued in three editions: 21 December 2001, 30 April 2002 and 19 December 2003, is less clear. The Guidelines which were tendered in these proceedings were the second version, and they were available for reference at the time of Dr Adler's assessment. 65 They are more concerned with the mechanics of carrying out the assessment and preparing the Certificate and Report, and do not provide any elucidation of the "criteria" by reference to which the assessment is to be made. So far as they refer to the WorkCover Guides they cannot be taken to have required their application in the case of assessments made for pre 1 January 2002 injuries, since by force of statute, those guides do not apply to such injuries. 66 It was submitted by the Council that the reference to criteria in s 327(3) was to the methodology employed, and not to the facts to which that methodology applied. The first defendant, however, contended that the ground of appeal would be available where there was a correct application of the relevant criteria to incorrectly determined facts. 67 I am not persuaded that either proposition involves a full statement of the content of this expression. The assessment of an impairment can only be made by reference to the objective signs which are evident on clinical examination, along with the subjective symptoms which are reported by the worker, and which would show, for example, the range of movement of a limb. This provides the clinical information to which any directions given under the Act for assessment such as the WorkCover Guides are to be applied. 68 Guides of that kind attach a particular significance or weight to the conclusion which a medical practitioner would draw from such signs and symptoms as were established; and might also specify the method by which a claimed loss or impairment is then to be measured. 69 So viewed, the Plaintiff's submission, in my view, treats the expression too narrowly; while that advanced by the first Defendant does not sufficiently address the meaning of criteria. 70 Methodology would by itself not be enough, since it has to be applied to something. That something depends upon those features of the worker's clinical presentation, as are relevant for the loss, which is then to be assessed, in calculating the permanency and extent of the impairment, in accordance with the methodology provided by any relevant and applicable Guides. For example, if it were shown that, in assessing the extent of permanent impairment in relation to an injured limb, the AMS was to give some weight to the colour of the worker's hair, that could clearly be taken into account as a case where incorrect criteria had been applied. 71 In the present case the only external guide which was available was the Table of Disabilities, although that provided little in the way of assistance in determining the weight to be given to particular aspects of the worker's clinical presentation. 72 That the expression does not have the somewhat narrow meaning attributed to it by the Plaintiff is also consistent with the observation, in the Second Reading Speech, that the s 327(3)(c) ground is "designed to cover circumstances where the guides themselves have been incorrectly applied." 73 This, however, does not foreclose the present issue, for the reason that the WorkCover Authority has advanced a construction of ss 327 and 328, which was not put forward by the first Defendant, and which was not accepted by the Plaintiff, but which is critical for an understanding of the way that the Appeal Panel is to go about its task. 74 It is to the effect that s 327 provides a gatekeeper role for the Registrar, whose task it is to consider, pursuant to s 327(4), whether "at least one of the grounds for appeal specified in sub-section (3) exists." If it appears to the Registrar that this is the case, then in accordance with s 327(4), the appeal can "proceed" and be referred to an Appeal Panel. Thereafter, it was submitted, the Appeal Panel can conduct a review afresh, and is not itself required to determine whether any of the four grounds referred to in s 327(3) has been made good. Nor is it confined to correcting the assessment in relation to such ground or grounds as have been made good. 75 This was said to follow from:

(i) The fact that the grounds set out in paras (a) to (d) are described in s 327(3) as "grounds for appeal under this section";

(ii) The absence of any reference, in s 328(5), to the Appeal Panel needing to find that an "appeal ground" has been established, or to it "allowing an appeal";

(iii) The fact that, pursuant to s 328(2) the appeal "is to be way of a review of the original medical assessment"; and from

(iv) The circumstance that pursuant to s 327(6) and s 329(1)(a) the Registrar may refer the matter for a further assessment, as an alternative to an appeal (at least where the relevant ground falls within s 327(3)(a) or (b)). 76 In my view there is force in this submission for the four reasons mentioned. Although the result is perhaps somewhat unusual it is consistent with the legislative policy of placing a tight control on appeals, and of confining the grounds for them. 77 The fact that there is something of a restriction in s 328(3) concerning the use of fresh evidence does not mean that the review is other than a review de novo: see, by way of comparison Re Knoll Australia Pty Ltd and Minister for Health (2000) 62 ALR 495; and Minister for Health and Aged Care v Pharmacia and Upjohn Pty Limited (2001) 65 ALD 76. 78 In Allesch v Maunz (2000) 203 CLR 172 Gaudron, McHugh, Gummow and Hayne JJ noted that there were three categories of appeal:

(i) An appeal in the strict sense, in which the function of the appellate body is "simply to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given", and in which the appellate body cannot receive further evidence;

(ii) An appeal by way of rehearing in which the powers of the appellate body "are exercisable only where the Appellant can demonstrate that, having regard to all of the evidence now before the appellate (body), the order that is the subject of the appeal is the result of some legal, factual and discretionary error", or

(iii) A completely fresh rehearing, called a hearing de novo, in which the power of the appellate body to re-exercise the power must be exercised "regardless of error" (at 180). 79 The analysis in this decision has been applied to Tribunals, for example, Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194. 80 In the present case the powers of the Panel are confined to revoking the certificate of the AMS, or to issuing a "new certificate as to the matters concerned", powers which are consistent with an appeal being a review de novo of the original assessment, falling within the third of the three categories mentioned in this decision, that is, a review which is not confined to correction of error which is established within one or other of the s 327(3) grounds. If it were a review of the second kind, one might have expected to see a power in the Panel to remit the matter to the AMS for revision. 81 It would follow, in the present case, that once the Registrar as gatekeeper was satisfied, of the existence of the 2% error appearing on the face of the table, or of any other error, then it was appropriate for the matter to be referred to the Appeal Panel. It was then free to conduct a review upon the basis of the material properly available before it, without any need to make a formal finding itself as to the existence of an error falling within an available ground of appeal, and without being confined to the correction of that error. 82 This gives rise to a somewhat novel form of appeal, but being a statutory appeal it has to be understood in the light of the relevant provisions, and in the light of the Legislative intent, in so far as that can be identified. 83 While I have not found this point, or indeed any other point which has been argued in these proceedings, as clear, or easy of determination, it does seem to me to be more consistent with a review by a Panel of Experts, once a ground for appeal has been identified, that it should be free to conduct a full review de novo on the available material. The position of the Racing Appeals Tribunal, which sat at a second level in an appellate framework, and which was considered in New South Wales Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691 is distinguishable. The position of the Appeal Panel in that case was more akin to that of the present Appeal Panel, in so far as it was held able to conduct a review de novo, while the Tribunal, to which appeal lay from the Appeal Panel, was confined to error review. 84 To confine a lay panel, even though this one is chaired by an Arbitrator, to the narrow confines of an appeal which is more suitable for a court of law, would be contrary to the intent of the Act, or to the objective of dealing with the claims efficiently and effectively, and in a timely way (see ss 3 and 367 of the WIMWC Act). As a consequence, the Plaintiff's assertion that there was an error of law, in relation to the incorrect criteria argument, must fail.

The Reasons Argument 85 The Council submitted that even if the Cabramatta Nuclear Medicine report constituted fresh evidence, then, absent a proper disclosure in the Panel's reasons as to why it was considered "helpful", or as to the way in which it was used, the Panel had failed to discharge the obligation which rested upon it. A similar submission was made in relation to the Panel's findings as to the existence of "anomalies" in the history, which constituted the demonstration of "incorrect criteria" without any identification or explanation, in its reason of what the "anomalies" or the "incorrect criteria" were. 86 The decision to alter the assessment, without further explanation of why that should occur was said to be the subject of the same vice. 87 In this regard the Council submitted that, where an Appeal Panel decided to revoke a certificate of an AMS, and to issue a fresh certificate in its place, then that certificate, and the Panel's published reasons, must conform with all of the requirements of s 325(2) of the WIMWC Act. As a result, it was submitted, it was necessary for the Panel to state the facts that were found, and the reasons for its decision. That followed, in its submission, from the fact that, in accordance with s 328(5), the new certificate effectively replaces the original certificate, and has the status, for all further proceedings in a Court, or in a Commission, which is conferred under s 326. 88 Reliance was placed by the Plaintiff on three decisions concerned with the review upon administrative law grounds, of determinations made by Medical Assessment Panels under the Workers Compensation and Rehabilitation Act 1981 (WA): Re Narula; ex Parte Atanasoski [2003] WASCA 156; and Re Croser; ex Parte Rutherford (2001) 25 WAR 170, and subsequently [2003] WASCA 8. 89 The effect of these decisions was that, while Panels of this kind, which are constituted by medical practitioners, are not expected to produce the closely reasoned decisions of a lawyer, they are required to provide a determination which, upon a fair construction of it, does convey the basis of the decision arrived at, with sufficient particularity to show that the questions referred had been properly considered according to law, and that the answers were founded upon an appropriate application of the members' medical knowledge and experience. 90 In the second Groser case Roberts-Smith J cited at para 40 the observations of Rolfe AJ concerning the general principles, which he had set out in an earlier case, for the guidance of medical assessment panels under the Western Australian legislation, when giving the reasons, which they were required to provide for their assessments. 91 There is, however, a difference between these cases and the present. First there is the circumstance that the Panel under the Western Australian legislation is under a statutory obligation to give reasons (s 145E(3)). Secondly, it is the primary decision maker, whereas that role is performed in New South Wales by the AMS who is also under a statutory duty to disclose the matters identified in s 325(2), including the reasons for the assessment (s 325(2)(c)) and the facts upon which it is based (s 325(2)(d)), whereas s 328 is silent as to any such duty in relation to the Panel. 92 There is some force in the Plaintiff's submission, arising from the fact that a matter may be referred for further medical assessment by the Commission or by a court (s 329). In those circumstances the supply of reasonably detailed reasons would be of assistance should occasion arise to consider whether such a reference should be made. 93 A further possible reason for the replacement certificate to be one that would accord, in all respects, with the original certificate of the AMS, might arise from the circumstance that this certificate provides the basis for the Commission's determination under s 294 of the Act. In that regard s 294(2) does require the Commission to attach a brief statement of its reasons for the determination. 94 To the contrary however are a number of propositions. First, there is a difference between the assessment by the AMS and by the Panel, in that the decision of the former is subject to review while the decision of the latter is not. For the review of the AMS to be effective, and for a relevant ground of appeal to be detected by the Registrar, and either corrected under s 325(3) or referred to an Appeal Panel under s 327(4), there is a need for the AMS to disclose his or her reasons in some little detail. 95 Secondly, there is the circumstance that s 325(2) specifies the content of the certificate which is to be provided by the AMS, and specifically requires that the reasons for the assessment, and the facts on which it is based, be disclosed, whereas no comparable provision is contained in s 328 in relation to the certificate which the Appeal Panel is to issue. 96 Thirdly, while in relation to each of the certificates, whether issued by the AMS or by the Appeal Panel, the same conclusive presumption as to its correctness applies, what is relevant for the Commission (for the purposes of s 294) is the assessment of the five matters set out in s 326(1), not the reasons therefore. In this regard there is also no provision in s 328, comparable to that appearing in s 325(3), permitting the Registrar to take steps to correct error in the Panel's certificate. 97 Fourthly, there is the circumstance that s 328(5) does not require the Appeal Panel to do any more than to "confirm the certificate" that was given by the AMS, or to "revoke that certificate and issue a new certificate as to the matters concerned". Precisely what is meant by the closing words which I have highlighted is somewhat unclear, but presumably they relate to the individual items of loss, for which the reference to assessment was initially made (cf s 325(1) and (2)). 98 Fifthly, if the Panel confirms the assessment it does not issue a new certificate, in which case it is difficult to see why s 325(2) should be invoked and call for compliance with its provisions. 99 In my view these five propositions are persuasive, although I accept that the position is far from clear, and note that the legislation could have been framed with greater clarity. 100 If I am correct in this conclusion, then the Plaintiff's complaints about the adequacy of the reasons are to no avail. It also remains the case that limited reasons were given, which show that, having undertaken a review de novo, the Appeal Panel came to the conclusion that the available medical reports including the further reports of Dr Manohar (other than the one which was rejected) and the nuclear medicine report, along with the conceded error in relation to the back impairment, justified changes to the assessment. While the precise reasons were not disclosed, this conclusion essentially involved a clinical judgment or opinion based upon this information which, assuming its correctness, provided a sufficient disclosure of the Panel's reason for its decision. 101 As such it would not disclose either an error on the face of the record or a jurisdictional error. 102 I would add that while there was a reference in the Panel's determination to the "anomalies" concerning the history of the matter, it does not inevitably follow that the Panel preferred that history advanced by the worker, in her submissions, to that recorded by Dr Adler, and then used it as part of the basis for its decision. In the absence of any further reference to aspects of the history in para 33 of its Determination, the more obvious inference is that those "anomalies" invited a re-examination of the available material reports, and of Dr Adler's clinical findings, and that it was upon the basis of such material that the reassessment was made. 103 In all of these circumstances, I am not persuaded that error has been shown, with the consequences that the proceedings should be dismissed. I reserve the question of costs for further submissions. **********

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