Crawford v The Registrar of the Workers Compensation Commission & Ors

Supreme Court of NSW|2007-02-09|Before: James J

CITATION : Crawford v The Registrar of the Workers Compensation Commission & Ors [2007] NSWSC 44

CATCHWORDS : Administrative Review - Workers Compensation - Workplace Injury Management and Workers Compensation Act 1998 - Appeal from assessment of approved medical specialist to appeal panel - Workcover Guildlines - AMA Guides to the assessment of permanent impairment - Discretion of appeal panel not to require further medical examination of plaintiff - Exercise by appeal panel of its discretion did not miscarry

LEGISLATION CITED : Workplace Injury Management and Workers Compensation Act 1998

Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 CASES CITED : Campbelltown City Council v Vegan [2004] NSWSC 1129 Campbelltown City Council v Vegan [2006] NSWCA 284

PARTIES : Robert James Crawford v The Registrar of the Workers Compensation Commission & Ors

COUNSEL : PR Stockley - Plaintiff CM Egan 2nd Defendant

SOLICITORS : McCabe Partners Lawyers Hicksons Lawyers

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

2006/30086 CRAWFORD v THE REGISTRAR OF THE WORKERS COMPENSATION COMMISSION & ORS

JUDGMENT 1 HIS HONOUR In these proceedings the plaintiff Robert James Crawford seeks administrative review of a decision of the third defendant made on 15 May 2006. In the documents which have been filed in the proceedings the third defendant is described as Jane Peacock, Dr Scott Harbison, Dr Philippa Harvey-Sutton - Medical Appeals Panel Workers Compensation Commission. The first defendant in the proceedings is the Registrar of the Workers Compensation Commission. The second defendant is a company Australian Meat Holdings Pty Limited, which was the plaintiff's employer. The first defendant and the third defendant took no active part in the proceedings, the contesting parties being the plaintiff and the second defendant. 2 The final form of the document originating the proceedings is the first amended summons dated 24 July 2006 and filed on 1 August 2006. The only evidence in the proceedings, apart from some documentary evidence, is an affidavit by Mr David Terence McCabe, the plaintiff's solicitor, to which a number of documents were annexed. There was no cross-examination of Mr McCabe on his affidavit.

Chronology of Facts not in Dispute 3 The following facts proved by documents annexed to Mr McCabe's affidavit were not the subject of any dispute. 4 On 25 February 2003 the plaintiff, in the course of his employment by the second defendant, was thrown from a horse and landed heavily on his right arm. He sustained injuries to his right shoulder, right elbow and right arm. He was treated for these injuries by a general practitioner Dr Thatcher. 5 The plaintiff was referred by Dr Thatcher to Dr Graeme Doig, who operated on the plaintiff on 12 August 2003. The operation comprised lateral release at the plaintiff's right elbow, arthroscopic acromioplasty and open rotator cuff repair of the right shoulder. 6 On 6 August 2004 an application to resolve a dispute, arising out of the incident on 25 February 2003, between the plaintiff and his employer the second defendant was lodged on behalf of the plaintiff with the Workers Compensation Commission. 7 In the application made to the Workers Compensation Commission it was stated that, in addition to the injuries the plaintiff had sustained in the fall from the horse on 25 February 2003, the plaintiff had also suffered injuries by a gradual process to which his employment had been a substantial contributing factor. At the hearing of the proceedings before me I was informed that it was common ground between the parties that it was not necessary for me to have any regard to this second group of injuries. 8 The application to the Workers Compensation Commission was supported by a number of documents, including a statement by the plaintiff and medical reports by Dr Thatcher, Dr Doig and Dr WGD Patrick, a surgeon, who at the request of the plaintiff's solicitor had examined the plaintiff on 25 March 2004. 9 A reply was filed on behalf of the second defendant in the Workers Compensation Commission. Attached to the reply was a report by Dr Chris Oates, a consultant occupational physician, who had examined the plaintiff on 15 July 2003. 10 It would appear that the real issue between the parties in the Workers Compensation Commission, so far as the injuries sustained on 25 February 2003 were concerned, was the extent of any permanent impairment the plaintiff had suffered. 11 After filing the reply in the Workers Compensation Commission, the second defendant's solicitors caused the plaintiff to be examined by Dr Peter J Burke, a surgeon and medico/legal consultant, whose report is dated 7 September 2004 and Dr Stephen Potter, a rheumatologist, whose report is dated 9 September 2004. 12 On 29 November 2004 the Workers Compensation Commission, pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 ("the Act"), directed that the plaintiff submit to medical assessment by an approved medical specialist ("AMS") Dr John Bosanquet, for the purpose of assessing the degree of permanent impairment the plaintiff had suffered. The evidence put before Dr Bosanquet included Dr Patrick's report of 29 March 2004, Dr Oates' report of 15 July 2003, Dr Burke's report of 7 September 2004 and Dr Potter's report of 9 September 2004. 13 Dr Bosanquet examined the plaintiff and gave a medical assessment certificate. In the certificate Dr Bosanquet described the matter referred to him as being "the assessment of permanent impairment to the right upper extremity following an injury on 25 February 2003 using the AMA Guides (Fifth edition) for the evaluation of permanent impairment". The reference to "the AMA Guides" was a reference to the American Medical Association Guides to the Evaluation of Permanent Impairment. 14 In his assessment Dr Bosanquet referred to the plaintiff having suffered an injury to his right shoulder on 25 February 2003 and to the plaintiff having had an operation with a repair of the rotator cuff in the right shoulder on 12 August 2003. Dr Bosanquet made no reference in his certificate to the plaintiff having suffered any injury to his right elbow or right arm, as distinct from his right shoulder, or to Dr Doig having performed a lateral release at the plaintiff's right elbow. 15 In paragraph 9 of the certificate of assessment Dr Bosanquet said:- "Based on my clinical examination of Mr Crawford and the restriction of movement in his right shoulder I have given a whole person impairment of 7 per cent in accordance with the AMA Guides to the Evaluation of Permanent Impairment. This is based purely on the loss of movement in his right shoulder". 16 Pursuant to s 327 of the Act the plaintiff applied to appeal against the decision of Dr Bosanquet, on the grounds set out in paragraph (b) of subs (3) of s 327 (additional relevant information), in paragraph (c) (that the assessment was made on the basis of incorrect criteria) and in paragraph (d) (that the medical assessment certificate contained a demonstrable error). 17 Submissions by the plaintiff's legal representative were lodged in support of the application to appeal. The principal submissions were that Dr Bosanquet had not taken into account the lateral release performed on the plaintiff's right elbow and had confined his findings on a physical examination of the plaintiff to findings about the plaintiff's right shoulder. 18 On 30 November 2005 the Registrar of the Workers Compensation Commission issued a determination that grounds for appeal existed under s 327(3)(c) and s 327(3)(d) of the Act, in that it appeared that Dr Bosanquet had failed to take into account the injury to the plaintiff's right elbow and arm or the lateral release operation at the plaintiff's elbow. Accordingly, the appeal against Dr Bosanquet's medical assessment could proceed. 19 The appeal against Dr Bosanquet's medical assessment was heard by an Appeal Panel consisting of the three individuals who, collectively, are the third defendant. The Appeal Panel did not itself conduct any examination of the plaintiff and did not conduct any hearing, determining the appeal on the basis of the documents before it. 20 The Appeal Panel provided a statement of its reasons for its decision on the appeal in a document forwarded to the parties on 16 May 2006. The Appeal Panel confirmed Dr Bosanquet's assessment, in so far as the Appeal Panel found, as had Dr Bosanquet, a 7 per cent whole person impairment as a result of the injuries to the plaintiff's right upper extremity from the accident on 25 February 2003. However, for reasons explained in the statement of reasons, the Appeal Panel issued a fresh medical assessment certificate. 21 I have taken into account all parts of the Appeal Panel's statement of its reasons. I will, however, set out in this judgment only certain paragraphs in the statement which appear to be of particular relevance:- "7. The Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines. 8. As a result of that preliminary review, the Panel determined that it was not necessary for the worker to undergo a further medical examination because the information available allows the Panel to make a proper assessment of any losses suffered by the Appellant.

Documentary Evidence 16. In addition, the Panel has before it all the documents that were sent to the AMS for the original assessment and has taken them into account in making this determination.

Decision made after Preliminary Review without holding an Assessment Hearing 17. The Appellant did not indicate whether it agreed to the matter being dealt without an Assessment Hearing. 18. The Respondent submitted that the 'Appeal can be dealt with on the papers'. 19. The Panel is satisfied that there is sufficient in the materials on the appeal file, including the submissions of the parties, to enable the proper determination of this matter without an Assessment Hearing. Findings and Reasons 22. The role of the Panel was considered by the Supreme Court in the case of Campbelltown City Council v Vegan [2004] NSWSC 1129. His Honour Mr Justice Wood held that section 327 of the 1998 Act provides a gatekeeper role for the Registrar pursuant to which the Registrar must be satisfied that at least one of the grounds of appeal appears to exist. If the Registrar is so satisfied, the appeal is referred to the Panel. Wood CJ concluded that the Panel is 'is then free to conduct a review upon the basis of the material properly 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'. 25. Rather the Panel is charged with the task of conducting a review de novo of all of the material that is properly before the Panel. 26. The Panel has accordingly conducted a review of all of the material before it and reached its own conclusion concerning the impairments of the Appellant. 27. The Panel notes that the Supreme Court also held that the Panel is not obliged to give full reasons. The Panel is of the view that where its decision will affect people's rights it is appropriate to give sufficient reasons to enable the parties to understand the reasons for the decision reached by the Panel. 29. The Medical members of the Panel were of the view that a re-examination was not required in order for this assessment to be made as there was sufficient material in the Appeal file upon which the assessment could be based with particular reference to the examination findings as recorded by all of the doctors including the AMS. 30. The Panel notes that: · Dr Patrick in his report dated 29 March 2004 stated that there were no symptoms in the right elbow and that the elbow range of movement was 'reasonably full'. · Dr Doig in his report dated 29 March 2004 did not record range of movement. · Dr Oates in his report dated 15 July 2003 recorded a full range of movement but the Panel notes this was prior to the operation. · Dr Burke in his report dated 7 September 2004 said that the elbows moved normally. 31. The Panel considers that upon proper review of all these reports there is no indication of any impairment in the right elbow. 32. This is because the Panel must make this assessment upon the correct application of AMA 5 and the Workcover Guides (namely the ' Workcover Guides for the Evaluation of Permanent Injuries June 2002' and the ' Workcover Medical Assessment Guidelines'). 33. Under the Workcover Guides (see paragraph 2.2 at page 13) there is a reference to lateral epicondylitis at the elbow: 'There can be clinical conditions where evaluation of impairment may be difficult, for example lateral epicondylitis at the elbow. Such conditions are evaluated by their effect on function of the upper extremity, or, if all else fails, by analogy with other impairments that have similar effect(s) on upper limb function.' 34. In AMA 5 the reference to epicondylitis is in para 16.7d (page 507) as follows: 'Several syndromes involving the upper extremity are variously attributed to tendonitis, fasciitis, or epicondylitis. The most common of these are the stubborn conditions of the origins of the flexor and extensor muscles of the forearm where they attach to the medial and lateral epicondyles of the humerus. Although these conditions may be persistent for some time, they are not given a permanent impairment rating unless there is some other factor that must be considered'. 35. It goes on to suggest that after surgical release of the extensor origin there may be an impairment on the basis of grip strength. 37. Neither party has taken issue with the assessment by the AMS of the right upper extremity arising out of injury on 25 February 2003. However, because this is a review de novo the Panel must also review the assessment of impairment of the right upper extremity in respect of the injury on 25 February 2003. After a review of all the material including the examination findings of the AMS, the Panel considers that upon the correct application of AMA 5 and the Workcover Guides (namely the ' Workcover Guides for the Evaluation of Permanent Injuries June 2002' and the ' Workcover Medical Assessment Guidelines ') a 7% whole person impairment rating for the right upper extremity is derived with no deduction for any pre-existing condition, abnormality or injury. For these reasons the Panel has determined that the Medical Assessment Certificate in relation to the Right Upper Extremity in respect of injury on 25 February 2003 should be confirmed in this regard".

Nature of the Appeal to the Appeal Tribunal 22 At the hearing before me it was accepted by the parties that the parts of Wood CJ at CL's judgment in Campbelltown City Council v Vegan referred to in par 22 of the Appeal Panel's statement of its reasons were unaffected by the successful appeal on other grounds to the Court of Appeal (Campbelltown City Council v Vegan) (2006) NSWCA 284) and that the Appeal Panel had correctly stated the nature of the function it was to perform in pars 25 and 26 of the statement of reasons. It was also accepted by the parties that, although the Court of Appeal in the appeal in Vegan had held, contrary to Wood CJ at CL, that an appeal panel should give reasons for a decision, the Appeal Panel in par 27 of its reasons, while referring to Wood CJ at CL's holding, had nevertheless considered that it would be appropriate for the Panel to give reasons.

Administrative Review Available 23 It was common ground between the parties at the hearing before me that administrative review of a decision of the Appeal Panel was not precluded by s 350 of the Act, which provides that a decision of "the Commission" is final and binding and not subject to appeal or review, on the grounds that the expression "the Commission" in s 350 does not include an approved medical specialist or an appeal panel.

The Plaintiff's Submissions 24 The decision of the Appeal Panel which the plaintiff claimed should be reviewed was the decision of the Appeal Panel that, in order for the Panel to determine the appeal, it was not necessary for the Panel itself to conduct a further medical examination of the plaintiff. 25 According to the statement of the Appeal Panel's reasons, the Appeal Panel first made that decision as a result of a preliminary review, on the grounds that the information available to the Panel was such as to enable the Panel to make a proper assessment of any loss sustained by the plaintiff (pars 7 and 8 of the reasons) and the Appeal Panel subsequently confirmed that decision on the substantially similar grounds that there was sufficient material in the appeal file on which to base an assessment (par 29 of the reasons). 26 It was pointed out by counsel for the plaintiff that the Appeal Panel had made this decision that it would not itself conduct any medical examination of the plaintiff, notwithstanding that the approved medical specialist against whose assessment the appeal had been brought had not, in his certificate of assessment, made any reference to the plaintiff having suffered any injury to his right elbow or right arm, as distinct from his right shoulder, or to Dr Doig having performed a lateral release at the plaintiff's right elbow. It was submitted that either the approved medical specialist had not himself made any examination of the plaintiff's right elbow or right arm or, if he had, he had not recorded the results of that examination in his certificate. Notwithstanding the short-comings in the approved medical specialist's certificate of assessment, the Appeal Panel had included the approved medical specialist in its finding that there was sufficient material before the Panel "in the examination findings as recorded by all the doctors including the AMS". 27 In determining the appeal the Appeal Panel, as it had recognised in par 32 of its reasons, was bound to apply the American Medical Association Guides to the Evaluation of Permanent Impairment. A number of passages in the Guides stressed the need for a proper examination of the patient whose impairment was being assessed. For example, at p 435 it is stated:- "A complete and detailed examination of the upper extremities is necessary for accurate impairment evaluation". 28 The examination of the plaintiff which the Appeal Panel should have conducted would have included a test of the plaintiff's grip strength. In par 35 of the statement of its reasons the Appeal Panel referred to a suggestion in the American Medical Association Guides that after a surgical release of an extensor origin "there may be an impairment on the basis of grip strength". 29 It was submitted that the decision of the Appeal Panel, not itself to conduct a medical examination of the plaintiff, should be set aside on a number of administrative law grounds, namely that the decision involved a failure to take into account a relevant consideration; that the Appeal Panel made the decision without taking into account the relevant consideration that the approved medical specialist had not in his certificate of assessment made any reference to the plaintiff's right elbow or right arm or to the lateral release operation; that the decision not to conduct a medical examination was "unreasonable" within the principles associated with the English case of Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 especially 229-230; that there was an error of law on the face of the record in the Appeal Panel deciding not to conduct a medical examination of the plaintiff, while recording in par 35 of the statement of its reasons that after an operation of the kind performed on the plaintiff there may be an impairment in the patient's grip strength; that there was an error of law on the face of the record in that the Appeal Panel, while correctly directing itself that it should apply the Workcover Medical Assessment Guides and Guidelines and the American Medical Association Guides, had failed to apply them; that there was an error of law on the face of the record in that the Appeal Panel had not given sufficient reasons for its decision; and that there had been a denial of procedural fairness. With regard to a number of these grounds, very little was put by counsel for the plaintiff in support of them.

The Defendant's Submissions 30 It was submitted by counsel for the second defendant that the Appeal Panel had not been obliged to conduct a further medical examination of the plaintiff, that the Appeal Panel had had a discretion as to whether there should be a further medical examination and that the Appeal Panel's exercise of its discretion in deciding that there should not be any further medical examination had not miscarried and should not be set aside on any of the grounds relied on by counsel for the plaintiff. It was submitted that the materials before the Appeal Panel had been sufficient to enable the Appeal Panel to make an assessment of the plaintiff's degree of impairment, without the need for any further medical examination. Counsel for the second defendant made copious references to parts of the material which had been before the Appeal Panel.

Decision 31 It is to be borne in mind that the present proceedings are proceedings for administrative review of the Appeal Panel's decision and are not an appeal from that decision. 32 I would infer from parts of the Appeal Panel's statement of its reasons that the Appeal Panel was well aware of the grounds on which the Registrar of the Workers Compensation Commission had permitted the appeal to proceed, that is, that it had appeared to the Registrar that the approved medical specialist had failed to take into account the injury to the plaintiff's right elbow and arm and the lateral release operation performed at the plaintiff's elbow, and that the members of the Appeal Panel in determining the appeal turned their own minds to those matters. 33 It is clear that the Appeal Panel had a discretion as to whether it should conduct a further examination of the plaintiff and was not obliged to conduct a further medical examination of the plaintiff. Paragraph 43 of the Workcover Medical Assessment Guidelines provides that an appeal panel is to conduct a preliminary review of the documents and is to decide on the appropriate action to take in the appeal "including whether the worker should be examined". Under par 43 an Appeal Panel may decide the appeal on the papers, without any further involvement from the parties. 34 The Workcover Guidelines were made pursuant to ss 328, 331 and 376 of the Act. Section 331 of the Act provides that appeals to an appeal panel are subject to the relevant provisions of the Guidelines. If there is any inconsistency between the Workcover Guidelines and the American Medical Association Guides with respect to the need for an examination of a patient, then the Workcover Guidelines, which have statutory authority, would prevail over the American Medical Association Guides. 35 In the exercise of its discretion the Appeal Panel decided that there should not be any further medical examination of the plaintiff. 36 In par 30 of the statement of its reasons the Appeal Panel referred, correctly, to parts of four medical reports, which were capable of supporting a conclusion that the condition of the plaintiff's right elbow had been investigated by doctors who had examined the plaintiff and that no diminution in movement of the right elbow had been found. Dr Doig's report was capable of supporting the conclusion on the basis that, if Dr Doig had observed any diminution in movement, one would have expected that finding to have been recorded in his report. 37 In par 29 of the statement of its reasons the Appeal Panel referred to examination findings "as recorded by all of the doctors" and in par 31 the Appeal Panel referred to a review "of all these reports". I infer that the findings by doctors who had examined the plaintiff, on which the Appeal Panel relied in making its decision, were not limited to the findings expressly noted in par 30 of the statement of reasons. As was demonstrated by counsel for the second defendant in his address, there are other passages in some of the reports referred to in par 30 of the statement of reasons and passages in other reports which were before the Appeal Panel, such as the report of Dr Potter, which would support a conclusion that the plaintiff's right elbow and right arm had been medically examined and that any findings on examination had been recorded. 38 I will now expressly state my conclusions about the grounds on which the plaintiff sought administrative review, which I summarised earlier. 39 I do not consider that the Appeal Panel made its decision, without taking into account the relevant consideration that the approved medical specialist had not in his certificate of assessment made any reference to the plaintiff's right elbow or right arm or to the lateral release operation or that the Appeal Panel made its decision without taking into account any other relevant consideration. 40 I consider that there was material before the Appeal Panel on the basis of which the Appeal Panel could reasonably have decided that no further medical examination of the plaintiff was required. 41 The Appeal Panel expressly took into account the suggestion in the American Medical Association Guides that, after an operation of the kind performed on the plaintiff, there might be an impairment in the patient's grip strength. However, the Panel would have been entitled to rely on the factor that, in none of the reports of examinations of the plaintiff after the operation was performed or in the plaintiff's statement of 9 February 2004, was there any indication that the plaintiff had suffered any loss of strength after the operation. 42 As regards the remaining grounds relied on by counsel for the plaintiff, the Appeal Panel correctly directed itself that it should apply the Workcover Guides and the American Medical Association Guides and I do not consider that the Appeal Panel failed to apply them; the Appeal Panel gave sufficient reasons for its decision in the statement of reasons issued; and I do not consider that there was any denial of procedural fairness. 43 I dismiss the plaintiff's summons and make an order that the plaintiff pay the second defendant's costs of the proceedings, including any reserved costs.

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Judgment (19 paragraphs)

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