Cobar Shire Council v Harpley-Oeser

Supreme Court of NSW|2018-02-22

ley-Oeser (First Defendant) Registrar of the Workers Compensation Commission (Second Defendant) The Appeal Panel of the Workers Compensation Commission comprised of Jane Peacock, Dr Mark Burns and Dr Drew Dixon (Third Defendant) Representation: Counsel: S Blount (Plaintiff) T Hickey (First Defendant)

Solicitors: Bartier Perry (Plaintiff) New Law Solicitors (First Defendant) Crown Solicitors Office (Submitting Appearances Second and Third Defendants) File Number(s): 2017/291140 Publication restriction: Nil

Background

In June 2011, Ms Harpley-Oeser commenced employment with Lillian Brady Village Aged Care Facility as a nursing assistant.
On 12 August 2012, during the course of showering a resident, Ms Harpley-Oeser slipped and fell sustaining injuries to her left upper extremity and cervical spine. On 16 August 2014, while on restricted duties, she suffered an exacerbation of her condition while lifting a kettle during the course of her employment. As a result of her injuries Ms Harpley-Oeser was unable to continue her employment and she was paid weekly compensation by Cobar Shire Council.
On 13 May 2016, Ms Harpley-Oeser lodged a claim for the payment of a lump sum entitlement pursuant to s 66 of the Workers Compensation Act 1987 (NSW).
On 22 August 2016, the insurer acting on behalf of Cobar Shire Council issued a notice of dispute pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) denying liability in respect of the claim.
On 25 November 2015, Ms Harpley-Oeser lodged an application to resolve a dispute with the Workers Compensation Commission. On 15 December 2016, Cobar Shire Council lodged a reply to the application to resolve a dispute.
On 17 January 2017, the dispute came before Arbitrator Gerard Egan for telephone conference. The parties reached an agreement and Ms Harpley-Oeser was referred to an Approved Medical Specialist by consent to assess the degree of whole person impairment ("WPI") arising as a result of the workplace injuries.
On 18 January 2017, the delegate of the Registrar of the Workers Compensation Commission referred the medical dispute to approved medical specialist Dr Tim Anderson, an occupational therapist ("the AMS"). The referral was made on the following basis: a. Date of injury: 12 August 2012 b. Body parts/systems referred: (1) Cervical spine (2) Left upper extremity c. Method of assessment: Whole Person Impairment d. Date of injury: 16 October 2014 e. Body parts/systems referred: (1) Cervical spine (2) Left upper extremity f. Method of assessment: Whole Person Impairment

On 1 February 2017, the AMS examined Ms Harpley-Oeser. On 17 February 2017, the AMS issued a Medical Assessment Certificate ("MAC") and reasons. The AMS assessed Ms Harpley-Oeser with a WPI of 26%.
On 17 March 2017, Cobar Shire Council lodged an application to appeal against the decision of the AMS relying on s 327(3)(c) and (3)(d) of the Workplace Injury Management and Workers Compensation Act (incorrect criteria). On 11 April 2017, Ms Harpley-Oeser filed a notice of opposition. On 9 May 2017, a delegate of the Registrar determined that he was satisfied that a ground of appeal under s 327(3)(d) (a demonstrable error) had been made out.

Incorrect criteria and demonstrable error

In terms of what is to be determined as "incorrect criteria", the Minister for Police, who moved the second reading of the Bill (NSW Legislative Assembly, Hansard, 19 June 2001, p 14772), indicated that: "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."
In Campbelltown City Council v Vegan [2004] NSWSC 1129, this passage from the second reading speech was extracted, and it was stated by Wood CJ at CL stated at [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."
The meaning of "demonstrable error" has been discussed in cases such as Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, where Hoeben J said at [39]: "39 I do not propose to, nor is it necessary, that I define what is "demonstrable error" for the purposes of s 327 of the Act in an exhaustive way. It is sufficient for the purposes of this matter that I conclude that "demonstrable error" is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment."
The delegate of the Registrar referred the appeal to the Appeal Panel.
On 21 July 2017, the Appeal Panel issued its statement of reasons. It determined that no error had been established and confirmed the original assessment of the AMS.
It is the decision of the Appeal Panel that is the subject of this judicial review.

The statutory scheme

I shall briefly outline the relevant provisions of the statutory scheme. For a worker to receive compensation under s 9(1) of the Workers Compensation Act, the worker must show an injury which is defined in s 4 as follows: "4 Definition of "injury" In this Act: injury: (a) means personal injury arising out of or in the course of employment, …"
No compensation is payable under the Workers Compensation Act pursuant to s 9A(1) in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. Section 9A(1) reads: "9A No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury."
Chapter 7, Part 7 of the Workplace Injury Management and Workers Compensation Act provides for medical assessment, including the assessment of the degree of WPI, by an AMS and by way of review. The scheme was designed to take the function of assessment of injury out of the adversary court system: see Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [1] per Basten JA.
Approved Medical Specialists are appointed under the Workplace Injury Management and Workers Compensation Act to deal with medical disputes which are defined in s 319 to mean: "319 Definitions … "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, … (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable."
Section 325 relates to the MAC. It reads: "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. …"
Appeals against medical assessments are governed by ss 327 and 328 of the Workplace Injury Management and Workers Compensation Act.
Section 327 relevantly reads: "327 Appeal against medical assessment … (3) The grounds for appeal under this section are any of the following grounds: … (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error."
Section 328 relevantly 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. … (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. …"
Section 328(2) confines the grounds of appeal which an Appeal Panel may consider, to those pursued by the appellant. This section stipulates that the Appeal Panel is confined to whether the assessment was made on the basis of incorrect criteria or if there is a demonstrable error.
Section 331 of the Workplace Injury Management and Workers Compensation Act requires the Appeal Panel to apply the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth Edition, 1 April 2016) ("the Guidelines) in conducting its review. Section 331 reads: "331 Guidelines Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments."
I shall set out the decision of the AMS, submissions to the Registrar on appeal, the decision of the Appeal Panel, the grounds of appeal and my reasons.

The decision of the AMS

The details of the matters referred to by the AMS are as follows.
The AMS stated that he studied the documents referred to him by the Registrar in detail and set out the date and name of the author of the report, their speciality and his short comments in a table. It is not necessary to reproduce it here.
The AMS conducted a medical examination and took a history from Ms Harpley-Oeser. He summarised the first event at [4a] as follows. "a. Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: First Event (1) On 12/08/12, Mrs Harpley-Oeser was showering a patient. She slipped and fell, landing on her out stretched left upper limb. This jarred her left forequarter and her neck. (2) She was seen in hospital. Radiological investigations were taken. At that stage, it was thought that there could be a scaphoid fracture. This was managed initially in a back slab. She also complained of pain in and around her left shoulder. She described that she had dizziness and vomiting. (3) She had about a year off work with this condition. Most of her care was under her family doctor. She was also seen by Specialist Upper Limb Surgeon, Dr Sam Kwa. He recommended physiotherapy but there seems to have been a delay in this being conducted. Some of this seems to have been due to the lack of physiotherapy services where she lived. (4) Eventually, she did get back to work although was having difficulty doing so. She was placed on the evening shift which was shorter and supposedly was less arduous."
The AMS also summarised the second event at [4a] as follows: "Second Event (5) On 16/10/14, she was doing nothing more adventurous than trying to lift a kettle. As she did so, she experienced increased severity of the condition of her neck and left forequarter. (6) She was seen by her doctor and was referred for physiotherapy. This was conducted in Bourke which necessitated a trip of 1.5 hours in each direction. (7) She was seen by Specialist Neurologist, Dr Simon Hawke. He carried out a range of assessments, initially believing that there could be a condition of epicondylitis. All of the assessments were returned as virtually normal. (8) She then came under the care of Specialist Pain Management Physician, Dr Ian Thong. He diagnosed Chronic Regional Pain Syndrome. There were extensive attempts to try to manage this with a variety of different medications. Many of these were antidepressant based. (9) Dr Thong advised that there was a strong necessity for desensitisation and exercising of the injured limb."
The AMS set out the plaintiff's present symptoms at [4c] as: "c. Present symptoms: (1) Pain in the neck with reduced movement. (2) Pain in and around the left shoulder radiating down the arm with gross restriction of movement of the shoulder and to a lesser extent the wrist. (3) She described that the arm does not feel as though it belongs to her. (4) Occasionally, she still experiences vertigo and vomiting."
The AMS set out his findings on physical examination at [5]: "a. Mrs Harpley-Oeser was at the taller end of average stature. Physically, she was very deconditioned and was overweight. When she was standing and walking, she had a very definite tilt to the left. She was in a great deal of discomfort and was continually favouring and holding her left arm protectively. b. Cervical Spine: There was a lot of pain in her neck with tenderness, mostly radiating towards the left side. Movement of the head and neck was grossly reduced in all directions. This was particularly the case with extension and lateral flexion to each side. c. Upper Limbs: In comparison with the right arm, the left arm did not demonstrate any: (1) Alteration of temperature. (2) Alteration of colour. (3) Alteration of hair or nails. (4) Alteration of sweating. d. Sensation was throughout the normal distribution although was perceived much more so on the right side than the left. e. There was a normal range of movement of the digits of the left hand including the thumb. Her natural tendency is to hold everything with her left arm in a tense state. When she was persuaded to relax, the movement of the digits was virtually normal. At other times when she was in obvious tension, the movement of the digits was grossly reduced. … i. Due to the severity of her left arm, I was unable to effectively demonstrate the reflexes."
The AMS provided a summary of injuries and diagnosis as follows at [7]: "a. Summary of injuries and diagnoses: (1) Mrs Harpley-Oeser fell and injured her left forequarter and her neck on 12/08/12. Although there was some improvement to her condition, the condition of her neck and left forequarter never fully recovered. She was off work for a year and then cautiously tried to return to work. She was never able to do her full and normal occupation. (2) Just over 2 years after the initial injury, on 16/10/14, she was lifting a kettle and experienced a very severe deterioration of her left forequarter and cervical spine. She never recovered from this and after this occasion, it was clinically identified that she had developed Complex Regional Pain Syndrome. (3) Her clinical management has continued conservatively although with great difficulty. There does not appear to have been any significant improvement. b. Consistency of presentation Mrs Harpley-Oeser was in quite a lot of distress. Every effort was made to place her at her ease. She had an unfortunate tendency of tensing the para-spinal musculature and all of the musculature in her right [should be left] forequarter which would tend to make matters worse. This gave the impression that there was restriction of movement of the digits. Nevertheless, when she was persuaded to relax (with great difficulty), movement of the digits was normal."
The AMS at [10] gave his reasons for assessment as follows: "10. REASONS FOR ASSESSMENT a. My opinion and assessment of whole person impairment (1) First Event 12/08/12: (a) Cervical spine 7%. (b) Left upper extremity 20%. (2) Second Event 18/10/14: (a) Cervical spine 0%. (b) Left upper extremity 0%. b. An explanation of my calculations (1) The damage to Mrs Harpley-Oeser was done on the first occasion of 12/08/12. The event of 16/10/14 was extremely minor and would not have reasonably resulted in further injury. Her condition has unfortunately developed to become a chronic pain condition. This was clinically described as Complex Regional Pain Syndrome by Specialist Pain Management Physician, Dr Ian Thong. Nevertheless, for the purposes of impairment assessment, she falls short of the criteria necessary for this to be used in her impairment assessment, as described in the examination section. (2) The impairment of the cervical spine is addressed in AMA-5, page 392, Table 15-5. This provides a whole person impairment ranging between 5% and 8% depending on the activities of daily living. For this, she attracts a further 2% it is acknowledged that a lot of her current dysfunction is due to the left forequarter, yet even without this complication, with the existing condition of her neck, she would still attract that additional impairment for the activities of daily living. (3) Her left upper extremity impairment depends on the restricted range of movement of the shoulder, elbow and wrist joints. It has already been demonstrated that there are no neurological features and that the digits have a normal range of movement. (4) Left shoulder impairment: AMA-5 REFS MOVEMENT RIGHT % RIGHT UEI LEFT % LEFT UEI P476 F 16-40 Flexion 160° 1 30° 10 Extension 50° 0 10° 2 P477 F 16-43 Abduction 160° 1 30° 7 Adduction 50° 0 10° 1 P479 F 16-46 internal rotation 80° 0 10° 5 External rotation 70° 0 10° 2 Total % Upper Extremity Impairment 2 27 Effective % Left UEI: 25

(5) Left elbow impairment: AMA-5 MOVEMENT RIGHT % RIGHT UES LEFT % LEFT UEI REFS P472 Flexion 130° 1 110° 4 F 16-34 Extension 0° 0 30° 3 P474 F 16-37 Supination 80° 0 80° 0 Pronation 80° 0 80° 0 Total % Upper Extremity Impairment 1 7 Effective % Left UEI: 6

(6) Left wrist impairment: AMA-5 REFS MOVEMENT RIGHT % RIGHT UEI LEFT % LEFT UEI P467 F 16-28 Flexion 50° 2 40° 3 Extension 50° 2 30° 5 P469 F 16-31 Radial deviation 20° 0 15° 1 Ulnar deviation 30° 0 20° 2 Total % Upper Extremity 4 11 Imp Impai Effective % Left UEI: 7

(Earlier in his reasons at (f)(i) the AMS wrote that "due to the severity of her left arm, I was unable to effectively demonstrate the reflexes.") (7) The UEI impairment values of 25, 7 and 6 are combined (in that order), giving an upper extremity impairment of 34%. From Table 16-03 on page 439, this converts to a whole person impairment of 20%. (8) When this is combined with the 7% WPI for the cervical spine, this gives a final whole person impairment of 26%. c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs (1) My impairment is very similar to that described by Specialist Orthopaedic Surgeon, Dr Robert Breit, in his report of 17/11/15. The major differences lie in the slightly greater restriction of movement which I demonstrated with Mrs Harpley-Oeser's left arm. I have also applied 2% WPI to the cervical spine for activities of daily living. I note that Dr Breit advised that in his view this was mostly due to the left upper extremity. While I acknowledge that this is certainly a realistic issue, I am still persuaded that even without the condition of the left upper extremity, she would still attract that 2% WPI for difficulty with activities of daily living solely due to the condition of her cervical spine. (2) Specialist Occupational Physician, Dr Chris Oates, has calculated a whole person impairment of 6% for the first event of 12/08/12 and 2% WPI for the second event of 16/10/14. In studying his report, the range of movement which he has described is very much better than the range of movement which I was able to demonstrate. (3) I am also at some variance with the allocation of the different whole person impairments for the two different occasions, Without doubt, the damage was done on the first occasion and the second event was an aggravation in very minor circumstances, I am therefore persuaded that the impairment value is attributed to the first event of 12/08/12, and that the event of 16/10/14 really does not account for any further impairment. d. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable."

Submissions to the Registrar and Appeal Panel

Cobar Shire Council in its lengthy and opaque submissions raised five grounds of appeal. I have summarised them as follows. First, failing to properly apply criteria in paragraphs 1.36 and 2.5 of the Guidelines; secondly, the inclusion of chronic pain presentation in the assessment; and thirdly, not measuring or commenting upon whether there was any muscle wasting in the Ms Harpley-Oeser's left upper extremity muscles. I will deal with them in more detail later in this judgment.

The decision of the Appeal Panel

Cobar Shire Council requested Ms Harpley-Oeser to be re-examined by an AMS who was a member of the Appeal Panel. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Harpley-Oeser to undergo a further medical examination because there was sufficient evidence before the Appeal Panel for it to make a determination. The parties agreed to the determination of the matter without an assessment hearing.
As the Appeal Panel dealt with Cobar Shire Council's three appeal grounds in order, I will also deal with each of the three grounds of judicial review by setting out firstly, the submissions made to the Appeal Panel; secondly, the Appeal Panel's determination; thirdly, the parties' submissions; and finally, my conclusion. Appeal grounds 4 and 5 are related to appeal ground 3, so I shall deal with them together. Overall, Ms Harpley-Oeser submitted that Cobar Shire Council is merely encouraging a merits review and that no jurisdictional error is demonstrated.

Appeal ground 1 - inconsistency of presentation

At [23] of its reasons for decision, the Appeal Panel recorded this ground as follows. Cobar Shire Council submitted that the AMS failed to apply or applied incorrectly the criteria in Guideline 2.5 by applying the range of motion ("ROM") measurements methodology when there was inconsistency in the ROM, and by failing to apply or by applying incorrectly the criteria in Guideline 1.36 for inconsistent presentation. This was particularly the case in circumstances where Ms Harpley-Oeser had demonstrated inconsistent presentation at multiple medico legal examinations and did so again during the AMS examination. This passage correctly records this appeal ground. The submissions made to the Appeal Panel on this topic are as follows.
Cobar Shire Council submitted that 7(b) of the MAC, where the AMS stated that Ms Harpley-Oeser was in quite a lot of distress and had an unfortunate tendency of tensing the para-spinal musculature and all the musculature in her right [presumably meant left] forequarter, was inconsistent. This is because if Ms Harpley-Oeser had refrained from tensing the musculature in her left forequarter, the ROM would actually have been greater. Cobar Shire Council says this should also have prompted the AMS to apply the criteria of Guideline 1.36 which the AMS failed to do. Cobar Shire Council says that this amounted to a failure to apply the correct criteria or an application of incorrect criteria.
In short, Ms Harpley-Oeser in her notice of opposition contended that the submissions of Cobar Shire Council were twofold in attempting to demonstrate inconsistency in ROM. The first purported inconsistency did not assist Cobar Shire Council as it related to findings in respect of her left hand only. The second is that the AMS articulated that he did not take into account any ROM in the left hand in assessing WPI.
Ms Harpley-Oeser further asserted that Cobar Shire Council put forward a manifestly incorrect construction of how inconsistency was to be determined. Its attempt to assign to the Guidelines a concept of inconsistency that included varying the findings by other medico-legal doctors or treating practitioners as giving rise to an inconsistency, is at odds with the role of the AMS as the assessor of WPI within the scheme.
The Appeal Panel at [24] and [25] set out Guidelines 2.5 and 1.36. They read: "2.5 Range of motion (ROM) is assessed as follows:

A goniometer or inclinometer must be used, where clinically indicated.
Passive ROM may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active ROM measurements. Impairment values for degree measurements falling between those listed must be adjusted or interpolated.
If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation. If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Guidelines.
If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present." Paragraph 1.36 of the Guidelines provide as follows: "1.36 AMA5 (p 19) states: '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 assessor must use their 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 assessor 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 Appeal Panel recorded the AMS's summary of the first and second event at [26], findings on physical examination at [27], the summary of Ms Harpley-Oeser's injuries at [30], findings on Ms Harpley-Oeser's presentation, opinion and assessment of WPI and explanation of his calculations at [31] to [32]. They have been reproduced earlier and it is not necessary to repeat them there.
The Appeal Panel then stated at [33]-[35]: "33. This assessment for the upper extremities was based upon a ROM assessment: If consistency of presentation is found then the ROM assessment is the correct criteria to use. 34. The AMS must assess consistency of presentation upon the day of assessment. Clinical judgment of the AMS is to be exercised. That another expert in the case has found inconsistent presentation does not bind the AMS or mean that the AMS has fallen into error if the AMS finds the worker to be consistent in her presentation on the day of assessment. 35. The AMS having found on the day of assessment that the worker was consistent in her presentation, the AMS has not erred in his assessment based upon ROM."

Cobar Shire Council's submissions in this Court

Cobar Shire Council contends that the Appeal Panel made jurisdictional errors by failing to consider an essential aspect of the claim and by asking itself the wrong question.
Cobar Shire Council submitted that this ground of appeal expressly referred to Ms Harpley-Oeser's inconsistency during the AMS examination. This point was also noted at [2.9] of the submissions supporting the appeal before the Appeal Panel by reference to Ms Harpley-Oeser tensing the musculature in her left forequarter.
Cobar Shire Council submitted that by reference to Guideline 2.5, it is apparent that considerations to be taken into account when carrying out a ROM assessment of the upper extremity expressly addresses inconsistency. Further, Guideline 2.5 makes references to Guideline 1.36 which applies only in cases of inconsistency. Guideline 1.36 states that consistency tests such as range of movement are "good but imperfect indicators of people's efforts" and that an "assessor must use their entire range of clinical skill and judgment".
According to Cobar Shire Council, the Appeal Panel failed to address this point in its reasons and that no such express finding was made by the AMS that Ms Harpley-Oeser was consistent in her presentation. Finally, counsel for Cobar Shire Council, in oral submissions, maintained that the passages of the Appeal Panel's decision are simply a reiteration of what is said by the AMS in his reasons for decision, and as such, this amounts to a failure to exercise jurisdiction.

Ms Harpley-Oeser's submissions in this Court

Ms Harpley-Oeser asserted that the Appeal Panel referenced the findings of consistency outlined by the AMS before proceeding to determine that (i) the assessment of the upper limbs is to be based on ROM assessment if consistency of presentation is found; (ii) consistency of presentation is to be based upon the presentation on the day of the assessment, the clinical judgment of the AMS being exercised; (iii) findings of other experts with respect to consistency of presentation is not binding on the AMS; and (iv) the AMS having found consistency in Ms Harpley-Oeser's presentation used the correct method of assessment in employing the ROM criteria.
Ms Harpley-Oeser maintains that there was in fact no inconsistency of presentation apparent upon a fair reading of the AMS's certificate and reasons in regards to her left shoulder, elbow or wrist. Moreover, Ms Harpley-Oeser says that although consistency is not expressly referred to, it was not incumbent upon the AMS to say she was consistent in her presentation.
Additionally, Ms Harpley-Oeser says that inconsistency of presentation was not articulated by Cobar Shire Council in its submissions other than to identify the findings of the AMS with respect to her left hand. Ms Harpley-Oeser says that the AMS was quite clear in asserting that she had a full ROM at the digits on the left hand and that he clearly indicated that he did not take into account any ROM in the left hand in assessing WPI. The findings were specifically referred to by the AMS and did not form part of the assessment of WPI as the AMS relied solely on those findings which were not inconsistent.
Finally, Ms Harpley-Oeser submitted that the AMS determined the matter using his evaluation and judgment that the ROM was in fact a suitable measure for assessment, in line with Guidelines 2.3 to 2.8 and 1.36.

Consideration

A jurisdictional error of the type asserted by Cobar Shire Council may be found in circumstances articulated in Craig v South Australia (1995) 184 CLR 163 at 179, where the High Court stated that an administrative tribunal falls into error if it makes 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…"
The essence of this ground of review is that the Appeal Panel has failed to exercise its jurisdiction as it failed to deal with the argument put forward by Cobar Shire Council on appeal with regard to inconsistency of presentation relating to the digits on Ms Harpley-Oeser's left hand.
Cobar Shire Council sought to advance a concern that the Appeal Panel should have approached the issue by applying Guideline 1.36, as this was the submission put before it with respect to inconsistency in ROM, and that a failure to approach the situation on this basis amounted to a demonstrable error. However, Guideline 1.36 is only to be applied in circumstances where there is presence of inconsistent presentation. As such, where no inconsistent presentation is evident, then the ROM criteria should be used as a "valid parameter of impairment evaluation" in line with Guideline 2.15.
The AMS had commented that Ms Harpley-Oeser had an unfortunate tendency of tensing the para-spinal musculature and all of the musculature in her right [should be left] forequarter which would tend to make matters worse. This gave the impression that there was restriction of movement of the digits. Nevertheless, when she was persuaded to relax, with great difficulty, movement of the digits was normal.
Insofar as there may be any concern that there was an inconsistency with the way in which Ms Harpley-Oeser presented with respect to the digits in her left hand, the AMS clearly indicated at [10(3)] that he has limited Ms Harpley-Oeser's left upper extremity permanent impairment finding to the restricted ROM of the left shoulder, elbow and wrist joint. In other words, no permanent impairment finding for the upper extremity was made with respect to ROM of the digits on Ms Harpley-Oeser's left hand, as movement of the digits was found to be normal once she was encouraged to relax.
Importantly, there is no reference within the AMS's findings which indicates that there was any form of inconsistency in presentation in terms of the restricted ROM of the left shoulder, elbow or wrist joint. As such, the Appeal Panel stated their reasons for affirming the MAC at [34] and [35] and have proceeded on the basis that they would not to apply Guideline 1.36 as Ms Harpley-Oeser presented consistently with regards to the aspects of the left upper extremity namely shoulder, elbow and wrist which ultimately made up the AMS's calculation for 20% WPI. Moreover, the Appeal Panel was clearly alive to the argument put before it in regards to inconsistency of presentation as they extracted Cobar Shire Council's submissions on the topic at [23] of their reasons. They also dealt with the issue at [34] on the basis that Ms Harpley-Oeser did present consistently on the day of assessment with respect to the parts of the body which resulted in the determined WPI finding for her left upper extremity. Accordingly, ROM as set out in Guideline 2.5 was the correct criteria by which to assess Ms Harpley-Oeser's WPI.
It is my view that there is no jurisdictional error on the part of the Appeal Panel. It has directed itself to answering the question put before it by Cobar Shire Council. It gave a succinct response as to why it was not incumbent upon it to approach the situation as one in which there was a clear inconsistency of presentation which ultimately affected the assessment of WPI. Accordingly, there is no jurisdictional error.

Review ground 2 - did the assessment include chronic pain presentation?

Before the Appeal Panel, Cobar Shire Council submitted that the AMS's measurements of very large restrictions in the ranges of movement of Ms Harpley-Oeser's left shoulder, left elbow and left wrist were incompatible with all of the previous findings of Drs Kwa, Hawke and Oates. This it was said, could only be explained by virtue of inconsistency, exaggeration and/or chronic pain presentation. The latter is not assessable based on what is stated in Chapter 17 of the Permanent Impairment Guidelines, which exclude Chapter 18 of the AMA 5 Guides, being the Chapter for chronic pain assessment, as a separate condition.
As far as this ground of appeal is concerned, the Appeal Panel summarised Cobar Shire Council's submissions as follows: "Ground 2 36. In support of the second ground of appeal the appellant submitted that the AMS failed to apply chapter 17 of the Guides. In summary the appellant submitted as follows: "The AMS made a demonstrable error and made the assessment on the basis of incorrect criteria by failing to apply or incorrectly applying, the criteria in Chapter 17 of the SIRA Guidelines which excludes Chapter 18 of the AMA5 Guides, being the chapter for "chronic pain" assessment, as a separate condition, because pain is a subjective experience and is open to exaggeration and fabrication in a compensation setting and pain could not be measured on an objective assessment and tools to measure pain, based upon self-reports, may be inherently unreliable. Notwithstanding, this directive in Chapter 17 of the SIRA Guides, the AMS actually diagnosed a "chronic pain condition" and then failed to provide any other satisfactory diagnosis in relation to the workers left upper limb and erred by providing a very high assessment of WPI (left upper extremity) based upon range of motion measurements when the restricted ranges of shoulder, elbow and wrist movements wholly or predominantly emanated from the "chronic pain condition" diagnosed by the AMS and should not have been the subject of a WPI (left upper extremity) assessment at all. In the alternative, the assessment of WPI (left upper extremity) should not have been anywhere near as high as 20% WPI (left upper extremity) for these reasons."
The Appeal Panel has correctly set out this ground of appeal and dealt with the issue at paragraphs [37] to [43] in its reasons.
At [37] the Appeal Panel set out Guideline 1.12 which provides: "1.12 AMA5 Chapter 18, on pain, is excluded entirely at the present time. Conditions associated with chronic pain should be assessed on the basis of the underlying diagnosed condition, and not on the basis of the chronic pain. Where pain is commonly associated with a condition, an allowance is made in the degree of impairment assigned in the Guidelines. Complex regional pain syndrome should be assessed in accordance with Chapter 17 of the Guidelines."
It then stated at [38] that the AMS specifically excluded CRPS [Complex Regional Pain Syndrome] as a diagnosis.
The Appeal Panel at [39] set out the AMS's findings in relation to the upper limbs on examination as follows: "Upper Limbs: In comparison with the right arm, the left arm did not demonstrate any: (5) Alteration of temperature. (6) Alteration of colour. (7) Alteration of hear or nails. (8) Alteration of sweating. Sensation of throughout the normal distribution although was perceived much more so on the right side than the left. There was a normal range of movement of the digits of the left hand including the thumb. Her natural tendency is to hold everything with her left arm in a tense state. When she was persuaded to relax, the movement of the digits was virtually normal. At other time when she was in obvious tension, the movement of the digits was grossly reduced."
The Appeal Panel referred to Chapter 17 of the Guidelines at [40]: "40. Chapter 17 comes into play for the purposes of the assessment of permanent impairment if CRPS was diagnosed by the AMS. The AMS must assess the presence or otherwise of CRPS on the day of assessment based upon the presence or otherwise of defined criteria on the day of assessment." and reproduced Table 17.1. It provides: "Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2 1. Continuing pain, which is disproportionate to any causal event. 2. Must report at least one symptom in each of the four following categories: • Sensory: Reports of hyperaesthesiae and/or allodynia. • Vasomotor: Reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry. • Sudomotor/oedema: Reports of oedema and/or sweating increase or decrease and/or sweating asymmetry. • Motor/trophic: Reports of decreased range of joint motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin). 3. Must display at least one sign* at time of evaluation in all of the following four categories: • Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement). • Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes. • Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry. • Motor/trophic: Evidence of decreased active joint range of motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin). 4. There is no other diagnosis that better explains the signs and symptoms. *A sign is included only if it is observed and documented at time of the impairment evaluation."
At [41] to [43] the Appeal Panel concluded: "41. This is exactly what the AMS has done. He has excluded the diagnosis of CRPS for the purposes of the impairment assessment based upon his examination findings according to the criteria set out in Table 17.1. 42. The Panel further notes that the AMS' exclusion of CRPS is consistent with the opinion of appellant's own medical legal expert (FME) Dr Oates. 43. The AMS has not erred in this respect."

Cobar Shire Council's submissions in this Court

This ground of judicial review is that the Appeal Panel made jurisdictional errors by failing to consider an essential integer of ground 2 of Cobar Shire Council's claim by asking itself the wrong question. The Appeal Panel failed to consider Cobar Shire Council's claim that the AMS had impermissibly assessed chronic pain condition as part of Ms Harpley-Oeser's 20% WPI to her left upper extremity. It asked itself the wrong question by considering whether the AMS had excluded the diagnosis of CRPS.
Cobar Shire Council asserted that the submission put before the Appeal Panel was that the AMS, having made an ultimate diagnoses of chronic pain, went on to provide a high assessment of WPI for the left upper extremity based on the diagnosis of chronic pain. Cobar Shire Council says that this submission goes to the AMS impermissibly including impairment resulting from Ms Harper-Oeser's chronic pain condition in the overall assessment of permanent impairment. The Appeal Panel failed to address this and instead directed itself towards a finding that the AMS had excluded the diagnosis of CRPS for the purposes of impairment assessment according to the criteria set out in the Guidelines.
In essence, Cobar Shire Council maintained that the Appeal Panel asked itself the wrong question as they characterised the appeal ground as relating to a concern that the AMS had fallen into error by excluding Chapter 17 of the Guidelines relating to the assessment of CRPS. The appeal actually asserted an error relating to the assessment of chronic pain by the AMS as this was an assessment not allowed by operation of Chapter 17 of the Guidelines.

Ms Harpley-Oeser's submissions in this Court

Counsel for Ms Harpley-Oeser submitted that there was no clearly articulated argument put before the Appeal Panel. Counsel referred to Swift v SAS Trustee Corporation [2010] NSWCA 182, where Basten JA stated at [45]: "45 The language of "proper, genuine and realistic consideration" was introduced into administrative law in Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291 and Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 at 483 (Gummow J). That which had to be properly considered was the "merits of the case". Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merits review…"
Ms Harpley-Oeser submitted that the AMS provided neither a diagnosis of chronic pain nor an "ultimate diagnosis" of chronic pain in the assessment, although it did provide later context to his assessment of impairment. Rather, his role was to assess the impairment that flowed from a condition that was referred to him. Ms Harpley-Oeser submitted that a causation assessment is central to the assessment undertaken by the AMS: see Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [118].
Ms Harper-Oeser asserted that the AMS erred on two bases when he proceeded to assess WPI on the basis of restricted ranges of shoulder, elbow and wrist movements which wholly or predominantly emanated from a chronic pain condition. Firstly, the AMS did not diagnose a chronic pain condition giving rise to WPI and explained his reasoning process in that regard. Secondly, the AMS provided no opinion that Ms Harpley-Oeser's restricted ROM was as a result of her chronic pain condition. The AMS confirmed that CRPS was not established on the relevant criteria (as contained in Chapter 17 of the Guidelines) and accordingly proceeded to assess impairment on the basis of relevant ROM criteria as outlined in his assessment.
According to Ms Harpley-Oeser, the AMS specifically determined that she did not meet the diagnostic criteria for CRPS. As a consequence, he did not apply Chapter 17 of the Guidelines. Rather, the AMS complied with Guideline 1.12 in assessing the underlying diagnosed condition of the upper left extremity in accordance with Guideline 1.12 and Chapter 18 of the AMA5 based on his examination findings of ROM at the upper extremity. This approach is consistent with what is said in Guideline 17.3.
Further, to the extent that it could be said there was a clearly articulated argument put to the Appeal Panel, it did not misconstrue the nature of the second ground of appeal raised by Cobar Shire Council. Rather, the approach adopted by the Appeal Panel shows that they understood the requirement for the exclusion of pain as an assessment criterion, unless CRPS is present. The Appeal Panel therefore adopted what the AMS determined, as it is a correct statement of the Guidelines.
Ms Harpley-Oeser says that while some impairment ratings under the Guidelines take symptoms into account and some of the ranges of impairment may reflect the effect of the injury and pain on activities of daily living, this is not the case for impairment assessment of the upper and lower limb. Rather, this is based on ROM and diagnosis-based estimates under Guideline 17.3.
Ms Harpley-Oeser submitted that no jurisdictional error is present as it is apparent on both the face of the underlying determination of the AMS and the Appeal Panel's reasons that pain is an irrelevant criterion to the assessment of impairment unless CRPS is present. Where such a condition is not established, impairment is to be assessed on the basis of an underlying condition pursuant to Guideline 17.2, applying the correct criteria as referenced by the Appeal Panel in ground 1.
Additionally, counsel for Ms Harpley-Oeser referred to the oft-quoted decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 where the High Court stated at [29] and [30]: "29 …The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written… 30 …The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error…"
Counsel submitted that even if it could be said that there was some insufficiency in the reasoning process adopted by the Appeal Panel, their reasons are nevertheless entitled to a beneficial construction.
Moreover, Ms Harpley-Oeser submitted that the AMS's own clinical expertise and experience in undertaking medical assessments is required pursuant to clause 1.6(b) of Guideline 1.6(6), which provides that assessors must exercise their clinical judgment when assessing impairment. This point was addressed in Ferguson v State of New South Wales Ors [2017] NSWSC 887 ("Ferguson") where Campbell J stated at [13]: "It needs to be borne in mind that these statutory powers, and indeed the statutory powers exercised by an AMS under s 324 WIM, provide for a method of dispute resolution by expert evaluation. The AMS at first instance and the two AMS' on the Appeal Panel are not only entitled, but obliged, to bring their professional expertise to bear in the exercise of their functions: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43…"

Consideration

I accept that the decision of the Appeal Panel must be read as a whole. This Court "should not read the reasons of the decision maker with an eye finely tuned for error": McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 at [67] per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291.
I also accept that it is not necessary for the Appeal Panel to make findings with respect to each piece of evidence. The failure of the Appeal Panel to refer to each piece of evidence, does not, in and of itself, constitute a legal error: Applicant A169/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] and [28]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]; and Collins v Urban [2014] NSWCATAP 17.
In BVT v Office of Children's Guardian [2017] NSWSC 1763 ("BVT"), Beech-Jones J made the following observations in relation to the limits of the statutory obligation to provide reasons at [99]-[101]: "99 The first is that the obligation to provide reasons is primarily directed to facilitating a party's appeal rights such that if an appeal is limited to points of law the obligation to provide reasons for findings of fact is limited (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273A per Mahoney JA and 280G per McHugh JA). Thus, in Wingfoot at [55] the High Court explained that the reasons "must explain the actual path of reasoning" of the decision maker and must do so "in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law". 100 The second is that an allegation of a failure to provide adequate reasons is not established by pointing to matters raised by a party that were said to be not addressed by the decision maker. Instead, as explained by Basten JA in Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156 at [8] to [10], such complaints may involve a failure to afford procedural fairness, a failure to take into account relevant considerations or a constructive failure to exercise jurisdiction. 101 Third, where the ultimate conclusion of the decision maker involves an "evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance" (Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWCA 112 at [46] per Basten JA ("Public Service Association v Secretary of the Treasury").
It is important to appreciate the difference between CRPS and chronic pain. At [37] the Appeal Panel set out Guideline 1.12. This Guideline explains that chronic pain should be assessed on the basis of an underlying condition and that CRPS should be assessed in accordance with Chapter 17 of the Guidelines. This reference demonstrates that the Appeal Panel was alive to the submission put before them concerning chronic pain.
The AMS at [10(b)(1)] of his reasons referred to both CRPS and chronic pain. The AMS stated that Ms Harpley-Oeser's condition had unfortunately developed to become a chronic pain condition. While this was clinically described as CRPS by specialist pain management physician, Dr Ian Thong, for the purposes of impairment assessment, Ms Harpley-Oeser fell short of the criteria necessary for this to be used in her impairment assessment.
The Appeal Panel then turned its mind to CRPS at [38] and correctly stated that the AMS excluded CRPS as a diagnosis. At [39] the Appeal Panel set out the AMS's examination findings in relation to Ms Harpley-Oeser's upper limbs. In short, the Appeal Panel referred to where the AMS compared the right arm with the left arm and did not find any alteration of temperature, colour, hair or nails nor sweating. These findings are relevant to a possible diagnosis of CRPS as set out in Chapter 17. However, in the light of the above finding, Ms Harpley-Oeser did not fall within the diagnoses of CRPS.
At [40] the Appeal Panel continued to address a diagnosis of CRPS and explained that Chapter 17 comes into play for the purposes of the assessment of permanent impairment if CRPS was diagnosed by the AMS. The Appeal Panel then set out Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2 in full. The Appeal Panel concluded that the AMS had done what he was meant to in that he excluded the diagnosis of CRPS for the purposes of impairment assessment based upon his examination findings, according to the criteria set out in Table 17.1. That reasoning so far as it goes, is correct.
However, the Appeal Panel did not actually answer the question posed by Cobar Shire Council. While the Appeal Panel reproduced part of the AMS's findings on examination, it did not refer to the AMS's reasons and, in particular, his observations set out in [10(b)(1)] of his reasons referred to by me at [88] of this judgment. In my view, the Appeal Panel did not directly address whether the AMS had impermissibly assessed a chronic pain condition as part of Ms Harpley-Oeser's WPI. In these circumstances, the Appeal Panel has failed to constructively exercise jurisdiction.

Review grounds 3 and 4 - muscle wasting and diagnosis of chronic pain

Before the Appeal Panel, Cobar Shire Council submitted that the AMS made a demonstrable error by not measuring or commenting on whether there was any muscle wasting in Ms Harpley-Oeser's left upper extremity muscles, which would have been a significant clinical finding. According to Cobar Shire Council, the apparent absence of any recorded muscle wasting in the upper left extremity is consistent with a "diagnosis of chronic pain" condition and is not consistent with any significant pathological damage to the joints of the upper left extremity or any significant impairment of the left upper extremity. The Appeal Panel summarised this ground of appeal correctly at [44].
The Appeal Panel then stated at [45] and [46] : "45 The Panel notes that a restriction in the ROM does not necessarily result in muscle wasting, so the AMS failure to comment on muscle wasting is irrelevant particularly in the context of the otherwise thorough physical examination undertaken by the AMS. 46 Again, the submissions about CRPS are misconceived. For the purposes of the impairment assessment, the AMS has specifically excludes CRPS as a diagnosis based upon the correct criteria and his physical examination on the day of assessment. This exclusion of CRPS as a diagnosis is consistent with that of the appellant's own IME Dr Oates."

Cobar Shire Council's submissions in this Court

Ground 3 is that the Appeal Panel made jurisdictional errors failing to consider an essential question that was raised in ground 3 of Cobar Shire Council's claim and by asking itself the wrong question. Firstly, the Appeal Panel failed to consider whether an investigation into the degree of muscle wasting to Ms Harpley-Oeser's left upper extremity, if any, was relevant to the question of the degree to which her chronic pain condition contributed to her 20% WPI. Secondly, it asked itself the wrong question by considering whether the AMS had excluded the diagnosis of CRPS. This ground of appeal follows on from ground 2.
Cobar Shire Council framed ground 4 differently. Namely, the Appeal Panel's failure to take into account a relevant consideration is apparent as the presence or absence of muscle wasting was clearly relevant to the issue of whether Ms Harpley-Oeser's limited range of movement was due to her pathology or to her chronic pain, especially in circumstances where she had been advised that "activity does not cause damage". Further, the Appeal Panel took another irrelevant consideration into account by excluding CRPS as a diagnosis when that was not the question asked before it on appeal.
Cobar Shire Council submitted that it is open to this court to make a finding that the Appeal Panel was simply not across the critical difference between CRPS and chronic pain syndrome.

Ms Harpley-Oeser's submissions

Ms Harpley-Oeser submitted that the reference to other assessments in the Appeal Panel's decision is simply indicative of the fact that they were alive to the multiple complaints that are interrelated in regard to each ground of appeal.
According to Ms Harpley-Oeser, the Appeal Panel proceeded to explain at [46] that CRPS was excluded and that Table 17.1 of the Guidelines was not followed. Rather Chapter 2.5 on ROM was followed and this was the same basis upon which Cobar Shire Council's own medico-legal doctor proceeded. According to Ms Harpley-Oeser, the medico-legal experts appear to be in agreement that this was the correct approach when following the Guidelines, which in turn weighs heavily against the position taken by Cobar Shire Council.
Ms Harpley-Oeser also submitted that Cobar Shire Council's submissions before the Appeal Panel had failed to point to any criteria or Guideline by which the AMS was said to have failed to undertake his statutory task. Nor did they demonstrate how the AMS has fallen into error and as such, no jurisdictional error is demonstrated.

Consideration

As referred to previously, the Appeal Panel at [37] included reference to the fact that conditions associated with chronic pain should be assessed on the basis of an underlying diagnosed condition and not on the basis of chronic pain in line with Guideline 1.12. It thereby excluded Chapter 18 on pain in the AMA5. The Appeal Panel has proceeded on the basis that CRPS should also be excluded for the purposes of impairment assessment.
While it could be said that the Appeal Panel was not across the distinction between a chronic pain condition and CRPS, the Appeal Panel noted at [46] that the submissions in relation to CRPS are misconceived. Had CRPS been raised in this ground of appeal (which it was not), the Appeal Panel would have been entitled to state this exclusion of CRPS as a diagnosis consistent with that of Cobar Shire Council's own independent medical expert, Dr Oates. That comment would not have been an irrelevant consideration. As stated in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64; (2013) 252 CLR 480 at [47] ("Wingfoot") the material supplied to the medical panel may include the opinions of other medical practitioners, and submissions to the medical panel may seek to persuade the medical panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case, to place weight on a medical opinion supplied to it in forming and giving its own opinion. This reflects the approach of the Appeal Panel in the present case.
Nevertheless, Cobar Shire Council was seeking an explanation as to why a diagnosis of a chronic pain condition was not given. The Appeal Panel instead answered a question relating to the exclusion of CRPS, thereby failing to provide its opinion on the medical question put to it as required by Wingfoot at [47].
The Appeal Panel did explain that a restriction in ROM does not necessarily result in muscle wasting, so the AMS's failure to comment on muscle wasting is irrelevant particularly in the context of the otherwise thorough physical examination at [45]. It is not necessary to decide this ground of judicial review. My tentative view is that this ground of judicial review is not particularly well articulated. It may be that the Appeal Panel's explanation at [45] is sufficient as its determination involves clinical judgment, Hence, I do not express a concluded view.

Review ground 5 - procedural fairness

The last ground of appeal is that the Appeal Panel denied Cobar Shire Council procedural fairness on the basis that it considered and determined an appeal in different terms to the appeal made by Cobar Shire Council without giving them an opportunity to be heard on the different terms of the appeal considered and determined by it.

Cobar Shire Council's submissions

Cobar Shire Council submitted that for reasons already stated, the Appeal Panel identified issues and asked itself questions which were different to the issues and questions on appeal. The Appeal Panel then reached a conclusion which was adverse to Cobar Shire Council without giving it the opportunity to respond to the issues it proposed to take into account when reaching its conclusion.
Counsel for Cobar Shire Council referred to Dranichnickov v Minister for Immigration and Multicultural Affairs (2003) ALJR 1088; [2003] HCA 26 ("Dranichnickov"), where the High Court stated at [24]: "24 To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice..."
Cobar Shire Council maintains that, as in Dranichnickov, the Appeal Panel failed to respond to clearly articulated arguments in relation to chronic pain. Accordingly it gives rise to either a jurisdictional error or a denial of procedural fairness.

Ms Harpley-Oeser's submissions

Ms Harpley-Oeser maintains that the Appeal Panel addressed those complaints made by Cobar Shire Council in its initial application. Further, there was no clearly articulated argument which could be dealt with by the Appeal Panel and thus this argument should not be accepted.
Nevertheless, Ms Harpley-Oeser contends that even if there was a clearly articulated argument put forward by Cobar Shire Council before the Appeal Panel, the argument was dealt with by reference to the Appeal Panel explaining the basis of the AMS's calculations, and his exclusion of Chapter 17 of the Guidelines and proceeding to assess on the basis of ROM.

Consideration

It is not necessary to determine whether or not Cobar Shire Council was afforded procedural fairness on the basis that the Appeal Panel failed to respond to clearly articulated arguments in relation to chronic pain, as I have already made a finding that the Appeal Panel failed to constructively exercise jurisdiction in review ground 2.

Discretion

In order to exercise my discretion not to quash the decision of the Appeal Panel in relation to judicial review ground 2, I need to be satisfied, if the matter is remitted, that a different result could not be produced: see Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54. In juridical review ground 2 the Appeal Panel did not address an issue fairly raised on appeal and therefore failed to constructively exercise jurisdiction. I am satisfied that if the matter is remitted to the Workers Compensation Commission, a different result could be produced. Hence, in the exercise of my discretion, the decision of the Appeal Panel should be quashed.
For the reasons given earlier, in the exercise of my discretion, I quash the decision of the Appeal Panel dated 21 July 2017. The matter should be remitted to the Workers Compensation Commission for determination in accordance with law.
Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff's costs on an ordinary basis.

The Court declares that: (1) The decision of the Appeal Panel in matter number MI-006135/16 made on 21 July 2017 is vitiated by jurisdictional error.

The Court makes an order: (2) In the nature of certiorari removing into the Court the decision of the Appeal Panel in matter number MI-0006135/16 made on 21 July 2017 and quashing that decision.

The Court further orders that: (3) Matter number MI-0006135/16 is remitted to the Workers Compensation Commission of New South Wales to be determined according to law. (4) The first defendant is to pay the plaintiff's costs on an ordinary basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2018

(2007) 161 LGERA 118

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