Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors

Ansett Transport v Minister for Aviation (1987) 72 ALR 469 Campbelltown City Council v Vegan [2004] NSWSC 1129 Commissioner for ACT Revenue v Alphaone Pty Limited (1994) 49 FCR 576 D'Aleo v Ambulance Service (NSW) (1996) 14 NSWCCR 139 Kioa v West (1985) 159 CLR 550 CASES CITED : Malcolm v Roads and Traffic Authority (1995) 12 NSWCCR 258; (1996) 13 NSWCCR 272 Minister for Health v Thomson (1985) 8 FCR 213 Pilbara Aboriginal Land Council Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 Public Service Board of New South Wales v Osmond (1985-86) 159 CLR 656 Riverina Wines Pty Limited v Registrar of the Workers Commission of NSW and Ors [2005] NSWSC 1260 Sinnathamby v Minister for Ethnic Affairs (1986) 66 ALR 502 Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954

Estate of Heinrich Christian Joseph Brockmann (Plaintiff) Brockmann Metal Roofing Pty Limited (1st Defendant) The Registrar of the Workers Compensation Commission of NSW (2nd Defendant) PARTIES : Peter Johnstone (being Medical Appeal Panel Member appointed by Second Defendant ) (3rd Defendant) Ken Hume (being Medical Appeal Panel Member appointed by Second Defendant) (4th Defendant) Greg Watters (being Medical Appeal Panel Member appointed by Second Defendant) (5th Defendant) WorkCover Authority of NSW (6th Defendant)

C. Jackson (Plaintiff) M. Batten (1st Defendant) Submitting appearance (2nd Defendant) COUNSEL : Submitting appearance (3rd Defendant) Submitting appearance (4th Defendant) Submitting appearance (5th Defendant) M. Allars (6th Defendant)

P.K. Simpson & Co. (Plaintiff) QBE Workers Compensation (NSW) Pty Limited (1st Defendant) I.V. Knight (2nd Defendant) SOLICITORS : I.V. Knight (3rd Defendant) I.V. Knight (4th Defendant) I.V. Knight (5th Defendant) I.V. Knight (6th Defendant)

LOWER COURT JURISDICTION : Registrar, Workers Compensation Commission of NSW

LOWER COURT JUDICIAL OFFICER : Medical Appeal Panel

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

30054/05 ESTATE OF HEINRICH CHRISTIAN JOSEPH BROCKMANN v BROCKMANN METAL ROOFING PTY LIMITED & ORS

JUDGMENT 1 HIS HONOUR: Heinrich Brockmann was the plaintiff named in proceedings commenced by way of summons seeking the following orders: "1. That the Second Defendant's endorsement and implied approval of the decision of the Third, Fourth & Fifth Defendants (being the Medical Appeal Panel) made on 14 February 2005 be quashed on the grounds of jurisdictional error and error on the face of the record. 2. That the Second Defendant instruct the Third, Fourth and Fifth Defendants (being the Medical Appeal Panel) to decide the question of the extent of the permanent loss of the efficient use of the Plaintiff's sexual organs that results from 'injury' as relevantly defined and in accordance with the law. 3. That the decision of the Third, Fourth & Fifth Defendants (being the Medical Appeal Panel) made on 14 February 2005 be quashed on the grounds of error on the face of the record and jurisdictional error. 4. That the First Defendant and/or Second Defendant and/or Third, Fourth & Fifth Defendants pay the Plaintiff's costs." 2 After the hearing concluded, the Court was informed that Mr Brockman died on 12 November 2005, and upon application made for such an order, the Court ordered that the Estate of Heinrich Christian Joseph Brockmann be substituted as plaintiff. The Public Trustee is administering the Estate and has instructed the deceased's solicitors to proceed with the Summons 3 The first defendant is the deceased's former employer, Brockmann Metal Roofing Pty Limited; the second defendant is the Registrar of the Workers' Compensation Commission of New South Wales; and the third, fourth and fifth defendants are the members of a medical Appeal Panel who dealt with the deceased's claim, the nature of which I will now outline.

The deceased made a claim for impairment in relation to his sexual organs 4 The deceased, who was born on 7 July 1931, claimed to have suffered back and neck injuries due to the nature and conditions of his work with the first defendant, by which company he was employed from the mid 1990s until about June 2002. Between the mid 1990s and July 2000 the deceased worked for the defendant as a plumber and was called upon to manually handle heavy corrugated iron sheets, which he used to balance on his head. He also carried metal pipes and plumbing tubes. His work involved repetitive heavy lifting and bending and general heavy use of his back and neck. 5 It was the deceased's contention that the work described caused injury to his lumbar and cervical spine, and he underwent surgery on 27 September 2002 at Royal North Shore Hospital. The surgery involved a laminectomy procedure and a spinal fusion from C3 to C7. 6 By application made on 16 January 2003 the deceased claimed benefits pursuant to workers' compensation legislation, and this claim led to the making of a medical assessment by an orthopaedic surgeon, Dr James Scougall, of the permanent loss of the efficient use of: · the deceased's back; · his neck; · his hands; · his arms; · his legs. 7 The assessments concerning the above were not contentious but Dr Scougall also made an assessment of the extent of the permanent loss of the efficient use of the deceased's sexual organs, and it was Dr Scougall's assessment, and the challenge to it, which led to the events giving rise to the proceedings presently before this Court. 8 The deceased's claim calls for consideration of certain provisions of the Workplace Injury Management and Workers' Compensation Act 1998 (the "WIMWC Act") and also of provisions of the Workers' Compensation Act 1987. In an extensive judgment in Campbelltown City Council v Vegan [2004] NSWSC 1129, Wood CJ at CL reviewed the relevant provisions of the WIMWC Act dealing with disputed claims. Those provisions are to be found in Pt 4 of Chapter 7 of the Act: see his Honour's judgment at [20] and following. 9 It is common ground that because the "injury" sustained by the deceased occurred prior to and up to 1 July 2000, Div 4 of Pt 3 of the Workers' Compensation Act 1987 remains applicable. Section 66 provided that a worker who suffered the loss of a "thing" mentioned in the Table to Div 4 of Pt 3 is entitled to compensation for such loss. The Table followed s 73 of the Act and afforded the basis for calculating the compensation payable. Section 65 defined "loss" for the purposes of the Division as including "the permanent loss of the use or the efficient use of the 'thing' concerned." 10 Section 68 provided that if the loss sustained was only a proportion of a thing mentioned in the Table, a percentage of the compensation payable for the total loss equal to the percentage lost by the worker was to be payable. 11 It was not the deceased's case, of course, that there had been some direct trauma to his sexual organs but a claim is available to a worker when loss of efficient use of such organs results from back injury: see Malcolm v Roads and Traffic Authority (1995) 12 NSWCCR 258; (1996) 13 NSWCCR 272. 12 In the present case Dr Scougall, having assessed the deceased, issued a medical assessment certificate in accordance with s 325 of the WIMWC Act. He determined that the compensable loss concerning the deceased's sexual organs was ten percent. He arrived at this percentage after deducting fifty percent for the loss already existing before the commencement of the assessment period. That deduction gave effect to s 68A of the 1987 Act: "1. In determining the compensation payable under this Division for a loss, there is to be a deduction for any proportion of the loss that is due to any previous injury…or that is due to any pre-existing condition or abnormality…"

The progress of the deceased's claim 13 It is to be noted that in the certificate issued by Dr Scougall he wrote concerning the deceased's complaints (p 3 of the certificate): "He was also complaining of some loss of sexual function." 14 Then, later, in recording symptoms, the doctor wrote (at p 4): "He also complains of some loss of sexual function in relation to his general symptoms." 15 Yet later (at p 5 of the certificate): "He complains also of loss of some sexual function." 16 The doctor went on to say (at p 7): "His various physical difficulties were consistent with there being some associated loss of sexual function." And, then (on p 8): "The findings are also consistent with his loss of sexual function being related to his general symptoms as outlined." 17 Dr Scougall (at p 8 of his certificate) noted the content of the reports of other doctors including their assessments of loss of function. Dr Scougall, however, made no reference to an assessment that had been made by Dr Bleasel. 18 It is not altogether clear what prompted this but Dr Scougall was given the opportunity after his first certificate of considering what Dr Bleasel had written. I was informed from the Bar table that what happened was the registrar, presumably after reading what Dr Scougall had written, noted there was no reference to Dr Bleasel's report and this prompted the forwarding of what Dr Bleasel had written to Dr Scougall. Whether this is the explanation for what happened does not matter. However, having considered what Dr Bleasel had written, Dr Scougall provided a supplementary medical assessment certificate. 19 Dr Bleasel had seen the deceased on 14 October 2003. Dr Bleasel recorded, as a matter of history, that the deceased "was sexually active right up to the time of his surgery but has not had any function since then. He does not have erections and as a result of this his relationship started to fail and broke up completely some months ago." 20 Dr Bleasel made an assessment of the deceased's permanent loss of the efficient use of his sexual organs as being 100%. 21 Having read that report by Dr Bleasel, it is plain that Dr Scougall was much influenced by it because in the supplementary certificate provided by Dr Scougall in which he referred to Dr Bleasel's report, he said: "On reflection I agree, given the history obtained, that the findings are not inconsistent with his [Dr Bleasel's] assessment of loss of sexual organs at 100% with nil pre-existing. An amended summary table is included…" 22 Dr Scougall proceeded to state his reasons for his revised opinion: "However, given the history obtained by Dr Bleasel, that history not being inconsistent with the information obtained by me, I agree that the findings are not inconsistent with a 100% loss of sexual organs with nil pre-existing." 23 The doctor provided an amended table of his assessment and of the deceased's losses which included an assessment of 100% for the loss relating to the deceased's sexual organs. 24 That revised assessment by Dr Scougall was unacceptable to the first defendant and prompted an appeal pursuant to s 327 of the WIMWC Act. It will be necessary for me to consider presently the provisions of this section and s 328. In the appeal process the registrar referred the matter to an appeal panel constituted by two medical specialists and an arbitrator. One of those medical specialists, the fifth defendant, examined the deceased and, although the fifth defendant reported to the appeal panel, Dr Watters' report is not in evidence. However, a statement of the reasons for the decision reached by the panel on 14 February 2005 is before the Court, and it makes reference to the examination of the deceased by Dr Watters. Paragraphs 20 and 21 of the panel's reasons record the following: "20 An examination of the Applicant was conducted by the panel member, Dr Watters. On examination, Dr Watters found no evidence of a neurological cause for the Applicant's complaints of erectile dysfunction. Dr Watters also obtained a detailed medical history. The Applicant did not complain that back pain was, in any way, the limiting factor in his attempts to have intercourse. 21. Dr Watters considered that the Applicant's history of erectile dysfunction is consistent with his age, general health and his smoking and alcohol habits, and that back pain is not a limiting factor in preventing him from having sexual intercourse." 25 The panel went on to agree with and to adopt the findings and opinions of Dr Watters. I refer to paras 22, 23 and 24 of the panel's reasons: "22. The Panel agreed with and adopted the findings and opinion of Dr Watters. It considered that the Applicant has no permanent loss of efficient use of the sexual organs as a result of a work injury. 23. In the opinion of the Panel, the degree of permanent loss of efficient use of the sexual organs should be assessed as 0%. 24. The Panel therefore determined that the Applicant has not sustained any permanent loss of efficient use of the sexual organs as a result of a work injury."

The issues on the summons 26 This brings me to a consideration of the deceased's claim for relief. Mr Jackson has pursued three grounds before this Court:

(i) that the registrar had no power to refer the matter to the Appeal Panel;

(ii) the Appeal Panel was required to conduct a hearing and for that purpose to provide Dr Watters' report to the deceased. The failure to do so resulted in a denial of natural justice;

(iii) the Appeal Panel failed to follow the two stage process required for the purposes of ss 66(1) and 68A(1) of the 1987 statute. 27 I propose to deal with each of these grounds in turn.

Ground 1 28 The first defendant having lodged its application to appeal against Dr Scougall's amended assessment and its statement of the grounds for such application, the deceased replied to that application stating his grounds as to why the appeal should be dismissed. The registrar referred the matter to the Appeal Panel chosen by the registrar. There was no statement of the registrar's reasons for implementing the appeal process. Mr Jackson did not seek to argue that the registrar was required to state reasons, acknowledging the effect of the decision in Public Service Board of New South Wales v Osmond (1985-86) 159 CLR 656. However, he submitted that the appeal process was in contravention of s 327 of the WIMWC Act. I set out the provisions of the section relevant for the purposes of the present case: "(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." 29 In essence, Mr Jackson submitted that an appeal could only proceed if one of the grounds of appeal specified in sub-s (3) existed, and there was no available basis here for the registrar to have found any of the grounds in s 327(3) existed. Whilst he acknowledged that there were no reasons expressed by the registrar exposing how he came to err, nevertheless he submitted that the conclusion is inescapable that none of the grounds for appeal set out in s 327 was available. 30 I am not attracted by the plaintiff's submissions concerning this ground. 31 Firstly, the language of s 327(4) provides for a subjective approach as opposed to an objective one. The appeal is not to proceed "unless it appears to the Registrar" that one of the grounds for appeal exists. The language of the provision seems to me to be intended to discourage appellate review of the type here sought by the plaintiff. Further, I consider it to be effective in doing so. 32 Section 327(4) enables the registrar to constitute an appeal panel provided it appears to the registrar that one of the grounds for appeal specified in s 327(3) exists. The registrar may be wrong in concluding that there is an available ground. This does not invalidate the appeal. 33 The Registrar's role was considered in Vegan (supra) where Wood CJ at CL accepted a submission (recorded at para [74]) "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 subsection (3) exists". Consistently with that approach in Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954, Associate Justice Malpass said (at [25]): "It seems to me that the section requires the Registrar to make a determination (that is, that it appears that at least one of the specified grounds for appeal exists). When that determination is made, the barrier to the appeal proceedings is removed". 34 Hislop J recently followed Vegan and Wilkaira in Riverina Wines Pty Limited v Registrar of the Workers Commission of NSW and Others [2005] NSWSC 1260 35 In any event, even if, contrary to the view I have taken, the registrar's decision is reviewable, having considered the grounds advanced by the first defendant in its application to appeal, I am not persuaded that a conclusion by the registrar that it appeared that there was demonstrable error in the medical assessment certificate was not an available conclusion. 36 This first ground has not been made good.

Ground 2 37 In the document dated 1 December 2004, received by the plaintiff's solicitors on 6 December 2004, the third defendant, described as the convenor of the Appeal Panel, recorded that the panel had conducted a preliminary review (by telephone conference) and considered there should be a further examination of the deceased by a urologist. The panel determined: "1. The [deceased] is required to submit himself for a further clinical examination by Dr Greg Watters, to be arranged by the Commission. 2. It is not necessary to consult with any treating practitioners and/or health care professionals who have been involved in the [deceased's] care. 3. Following the examination, Dr Watters is to provide a report for the panel's consideration." 38 Dr Watters conducted that further examination on 15 December 2004 (according to the Appeal Panel's statement of reasons, Exhibit A, p 6) and proceeded to act on Dr Watters' report without further notice to the deceased. The deceased was not served with a copy of the report and no hearing followed Dr Watters' assessment. 39 Mr Jackson submitted that the procedure followed contravened s 328, and that the decision reached "was made in want of procedural fairness", and hence that the panel "acted beyond jurisdiction". 40 Mr Jackson referred to the judgment of Brennan J in Kioa v West (1985) 159 CLR 550 at 612-613 where his Honour said as to the concept of natural justice: "The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power. The variable content of the principles of natural justice was articulated by Tucker LJ in an oft-cited passage in his judgment in Russell v Duke of Norfolk [1949] 1 All ER 109, at p 118.: 'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.' In the Privy Council that passage was cited with approval in University of Ceylon v Fernando [1960] 1 All ER 631. and again in Furnell v Whangarei High Schools Board [1973] AC 660, at p 679. where Lord Morris of Borth-y-Gest said: 'Natural justice is but fairness writ large and juridically. It has been described as "fair play in action".' The same view was adopted in the House of Lords: Wiseman v Borneman [1971] AC 297, at pp 308, 309, 311, 314-315.. In this Court the flexibility of the principles of natural justice was recognized by Kitto J in Mobil Oil Australia Pty. Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at p 504.: 'What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business.' In Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 552-553., the joint judgment of all members of this Court cited with approval passages I have cited from the judgments of Tucker LJ and Kitto J Their Honours said (1969) 122 CLR, at p 553: 'It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances.'" 41 As was made clear in the above passage and in the authorities there cited, the "variable content of the principles of natural justice" is influenced by the particular circumstances, including the relevant statutory content. 42 Section 328 of the WIMWC Act is in these terms: "(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment. (4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel. (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel." 43 Mr Jackson invited attention to the words "is to be heard" in sub-s (1) and to the provision enabling the injured worker to be accompanied at an attendance before the Appeal Panel by a legal adviser in sub-s (4). 44 Mr Jackson also relied upon the content of Practice Direction 8, which relates to appeals against medical assessments made under Pt 7 of Chapter 7 of the WIMWC Act. The practice direction in force when the Appeal Panel considered this matter was in the form as revised on 11 September 2003. 45 The practice direction addressed the procedures to be adopted by an appeal panel acting under s 328 in these terms: "The Appeal Panel may adopt the following procedures, in accordance with the needs of the individual case: s Preliminary Review (in all matters), s 'On the Papers' Review, s Further Medical Examination, s Assessment Hearing. Preliminary Review Where the parties have lodged the necessary documentation in relation to the appeal and the Registrar has determined that at least one ground of appeal has been made out, the appeal may be referred to the Appeal Panel for preliminary review. The Appeal Panel will conduct a preliminary review of the matter in the absence of the parties. Following the preliminary review the Registrar will advise the parties in writing of whether the Appeal Panel: s will allow 'fresh evidence' to be submitted and, if so, what will be allowed, s will conduct a further medical examination of the worker and, if so, the time and place of the examination, s requires any further information, for example, medical records and evidence of treating practitioners, s is of the view that the matter is capable of determination on the papers, and s has set a date and time for the parties to attend an assessment and nominated who is required to attend. On the Papers Review Wherever possible the Appeal Panel will proceed to review the assessment on the basis of the documents provided by the parties. It is essential that the parties state their view on this issue in the application and reply to the appeal. Where the parties and the Appeal Panel agree to the matter proceeding 'on the papers' the Appeal Panel will review the assessment and the parties will be advised in writing of the outcome. The parties may also request that the Appeal Panel deal with the matter 'on the papers' following receipt of the report of the further medical examination and prior to the assessment hearing. Further Medical Examination The Appeal Panel will not conduct a further medical examination of the worker in all matters. A further medical examination of the worker may be undertaken only where the appellant demonstrates to the Appeal Panel that: s it was not reasonable or practicable for the worker to have been examined at the time of the first medical assessment, s the previous examination by an AMS was materially defective, s the examination will provide fresh evidence of deterioration of the worker's condition, s the examination is necessary to show that the medical assessment certificate contains a demonstrable error, s the examination is necessary to enable a proper medical assessment to be made. The Appeal Panel may also require a further examination of the worker where specific questions or issues before the Appeal Panel can be answered only by a clinical examination. Where necessary an AMS member of the Appeal Panel will carry out the further examination and a report will be provided to the panel and the parties . The Registrar will advise the worker of the time and place of the examination. A parent, carer or support person (other than an agent or legal adviser) may accompany a worker to the examination." (Emphasis added) 46 Mr Jackson submitted that the practice direction was not complied with because Dr Watters' report was not provided to the plaintiff and no opportunity was afforded to him to address its content, and in particular the history it apparently recorded that the plaintiff made no complaint that back pain was a limiting factor in his attempts to have intercourse. 47 Curiously, unlike the Practice Direction, the Medical Assessment Guidelines made pursuant to ss 328, 331 and 376 of the WIMWC Act contained no requirement for service of the medical report prepared for the Appeal Panel. 48 The relevant guidelines were published on 19 December 2003, some three months after the Practice Direction upon which Mr Jackson here relies. Paragraph 43 of those Guidelines outlines what is to happen following the lodgement of an appeal: 43. The Appeal Panel, comprising two AMSs and an Arbitrator, will undertake a preliminary review of the documents. The parties are not present for this preliminary review. The Appeal Panel decides on the appropriate action to take in the appeal including whether the worker should be examined and if new evidence should be allowed. The Appeal Panel may set a date for an assessment hearing or may decide the appeal on the papers without further involvement from the parties. If the Appeal Panel decides that the worker should have a further medical examination, an appointment time will be arranged with one or both of the AMS members of the panel. These procedures are detailed further below. 49 In para 44 the guidelines address what is to happen in a case where the Appeal Panel determines there ought to be a further medical examination. Para 44 provides: "The Appeal Panel may require a further medical examination of the injured worker. The Registrar will inform the worker in writing of the time and place for the further medical examination. One of the AMS members of the Appeal Panel may be asked to examine the worker in order to answer a particular question put by the panel or a party. The worker should not bring any additional medical or other reports to the examination, unless specifically asked to do so. If it is necessary to bring X-rays or similar documents the worker will be advised of this in the letter from the Registrar. A parent, carer or other support person may accompany a worker to a further medical examination if it is reasonable in the circumstances and the AMS agrees. An agent or legal practitioner must not accompany a worker to a further medical examination." 50 It is to be observed that the guideline imposes no requirement for the service of a report following the examination contemplated in para 44. 51 Paragraph 44 does not countenance a legal practitioner attending on the medical examination so that if para 44 of the guideline and s 328(4) are to be read consistently, what s 328(4) contemplates is an attendance by the plaintiff at the Appeal Panel other than an attendance upon one of its members for the purposes of a medical examination. 52 Paragraph 45 of the guideline makes provision for what is to happen at an assessment hearing "The appeal is to be by way of review of the original medical assessment. Any party may bring a legal practitioner or other person with them to the assessment hearing to act as advocate and to assist in the presentation of the case. The assessment hearing is informal and non-legalistic and will afford the parties a full opportunity to present oral submissions in support of their claims. Submissions must be limited to topics that were in issue in the medical assessment being appealed against. Fresh evidence cannot be given either instead of or as well as evidence that was considered by the original AMS, unless the evidence was not available or could not reasonably have been obtained by the worker. The assessment hearing is non-adversarial and in most cases no evidence will be taken or cross-examination permitted. The parties may seek clarification of matters raised through the assistance of panel members. The assessment hearing will be sound recorded and a copy of the recording will be available to the parties on request. " 53 Whatever be the explanation for the difference between the practice direction and the guidelines, I accept the submission of Ms Allars that in the present context greater importance is to be attached to the guidelines. 54 The guidelines were made pursuant to ss 328, 331 and 376 of the WIMWC Act, and s 331 provides: "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." 55 Additionally, s 328(2) contains the provision, previously noted, that "the WorkCover Guidelines may provide for the procedure on an appeal." 56 The practice direction, on the other hand, is issued pursuant to a Rule of the Commission. Section 364 enables the making of Rules of the Commission "for or in respect to any aspect of procedures to be followed in connection with the jurisdiction or functions of the Commission". Rule 89 is a Commission Rule whereunder the President, in consultation with the Deputy President, may issue practice directions in relation to the operation of the rules. 57 In context, I do not consider that s 328(1) of the WIMWC Act compels the conduct of an adversarial hearing. An appeal is to be "heard" by a three person panel, but the Practice Direction and, more importantly, the Guidelines contemplate that the Appeal Panel may determine how the Appeal is to proceed. Under para 43 of the Guidelines, the Appeal Panel is authorised either to set a date for an assessment hearing, or to decide the appeal on the papers, without further involvement from the parties. The Guidelines do not specifically mandate an assessment hearing if the Panel decides that there ought to be a medical examination. 58 Nor do I consider s 328(4) ought to be construed as making an assessment hearing obligatory. What the subsection does is to entitle an injured worker to be accompanied to an Appeal Panel hearing, if such a hearing is conducted. 59 Under para 41 of the Guidelines, the respondent to the appeal has fourteen days to file a reply in relation to the appeal, including any submissions the party wants to make concerning the grounds of the appeal. The Practice Direction set out earlier (at para 45) contemplated review "on the papers" and stressed the need for parties to state their view as to such a review when replying to the appeal (see the paragraphs under the heading "On the Papers Review"). 60 In the present case, detailed submissions were filed on behalf of the deceased, together with medical reports, and in those submissions the deceased submitted "that the appeal should be determined on the papers". Of course that was before notice was given of the Panel's determination that there should be a medical examination, but that determination did not prompt the deceased to revise his submission that the matter should be determined on the papers. 61 It is not without significance that the examination was conducted by one of the Panel members, who was to report to the Panel. It is reasonable to conclude from the statement of the Panel's reasons that Dr Watters' examination influenced his decision and that his report influenced the other members of the Panel. 62 The Appeal Panel was entitled to draw upon the expertise of one of its members, as plainly it did in this case. It was entitled to take into account that expertise and the conclusions reached by that expert without disclosing those conclusions to the deceased, before coming to a final conclusion. In making a submission to this effect, a submission which I accept as correct, Ms Allars referred to the decision of the Federal Court in Minister for Health v Thomson 1985 8 FCR 213, a case concerning alleged over-servicing by a medical practitioner. The Committee considering the matter was a committee of five medical practitioners. It was determined that the Committee was entitled to act on its own views without disclosing those views to the medical practitioner before the Committee. In his judgment in this case, Fox J said at 217:

"There are many authorities which hold such a Committee can act on its own views, and can do so, without disclosing those views to a person appearing before it in the role of a defendant or otherwise." 63 In his judgment, Beaumont J said at 224: "The respondent further argues that the Committee denied him natural justice by using its own experience and expertise to determine an appropriate frequency of visitation. Although the Committee acknowledged that it did use its own experience and expertise in coming to its conclusions, it does not follow that any breach of the rules of natural justice thereby occurred. By virtue of the provisions of s 80(2) (a reference to the Health Insurance Act 1973), only medical practitioners may be appointed to the Committee and it is only reasonable to assume that the respondent was at all material times on notice that the members of the Committee would be likely to make use of their own expertise and experience in such matters." 64 Wilcox J agreed with both Fox J and Beaumont J. 65 Section 328 of the WIMWC Act provided for an Appeal Panel being structured by three members, two of whom were to be approved medical specialists. Hence applying the reasoning of Beaumont J in Thompson, reasoning with which I respectfully agree, it is only reasonable to assume that the deceased was on notice that the Appeal Panel would use the medical expertise and experience of its medical specialist members in its deliberations. 66 While as a general proposition procedural fairness does require the decision maker to disclose for comment material personal to the individual concerned where the source of that material is other than that individual (see Kioa (supra) per Mason J at 587) and Sinnathamby v Minister for Ethnic Affairs (1986) 66 ALR 502 at 506 per Fox J, this requirement does not exist where the material comes from the individual concerned. Here the additional material influencing the Appeal Panel was the history given by and the examination of the deceased himself. It is apparent from para 20 of the Reasons that Dr Watters took a detailed medical history from the deceased, which included no complaint that back pain inhibited intercourse. To the extent that there was reliance upon the history given by the deceased, there was no requirement that the significance attributed to that history by the Panel be conveyed to the deceased (see Sinnathamby (supra) per Fox J at 506 and per Neaves J at 513; Ansett Transport v Minister for Aviation (1987) 72 ALR 469 at 499; Commissioner for ACT Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 591 and Pilbara Aboriginal Land Council Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 per Merkel J at 557 (71). 67 Having regard to the framework of the legislation and the guidelines, and all the circumstance of this case as reviewed, I am not persuaded that the deceased was denied procedural fairness by the Appeal Panel. The Panel was entitled to act as it did. Hence, Ground 2 fails.

Ground 3 68 Mr Jackson adopted the submissions made by Ms Allars as to the effect of ss 66 and 68A of the 1987 statute. It was submitted that the sections called for a two stage process requiring age related degeneration to be taken into account as a pre existing condition at the second stage of the assessment process. 69 I have earlier made reference to the content of these two sections, but it is convenient to record the relevant parts of the sections here for the purposes of consideration of this ground. 70 Section 66(1) provides: "A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker's employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $100,000 set out opposite to that loss in that Table." (The Table is set out under s 73.) 71 Section 68A provides relevantly: "(1) In determining the compensation payable under this Division for a loss, there is to be a deduction for any proportion of the loss that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under this Division) or that is due to any pre-existing condition or abnormality. (2) The proportion of a loss that is required to be deducted because of subsection (1) is the deductible proportion for that loss." 72 In D'Aleo v Ambulance Service (NSW) (1996) 14 NSWCCR 139 the Court of Appeal was required to consider s 68A(1)(b) in the section as it earlier appeared. The judge at first instance had reduced an award under s 66 by the application of s 68A. It was held for the purpose of considering the matter that the words "any pre-existing condition" in s 68A(1)(b) of the earlier provision included degeneration caused by the advent of age. Hence, the appeal was dismissed. 73 It seems to me that s 68A as it now stands makes the position even clearer. I accept the submission that the effect of s 66 and of s 68A is to require the compensation payable to be adjusted downwards under s 68A after there has first been a determination of the compensation that would have been payable under s 66. In short, the effect of age is to be calculated at the second stage. 74 However, I am not satisfied that the Appeal Panel erred in its approach. It found no neurological cause for the plaintiff's loss of function. Of particular relevance to this ground are paras 20-22 of the statement of Reasons of the Appeal Panel (see paras 24-25 above where the statement of reasons appears). 75 It is apparent then that the Appeal Panel determined that there was no permanent loss of efficient use of the sexual organs as a result of the work injury. There was no neurological cause for the erectile dysfunction. It concluded that the erectile dysfunction was not referable to back pain, so that there was no work related cause for it. In these circumstances, there was no loss "as the result of an injury" for the purposes of s 66(1). 76 Hence, I conclude Ground 3 fails. 77 For the above reasons, the summons is dismissed. Costs are reserved. **********

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