Fullford v Maccas Ferry Services Pty Ltd

Background

1. Mr Fullford was injured when he was seriously assaulted in April 2008 while he was working as a ferry driver for the first defendant near Wiseman's Ferry. He was punched multiple times and lost consciousness. He was treated by an ambulance officer at the scene and received further treatment from his own doctor. He required dental treatment as well.
2. Mr Fullford suffered from bad headaches after this event. These occurred daily at first but later reduced to weekly. He experienced three significant epileptic episodes following the assault. Even though he disclosed a few problems as a child, the only epileptic episode he had as an adult was an isolated incident two years prior to the assault in 2006. He was on a low dose of anti-epileptic medication following that incident but retained his licence to drive.
3. Following his post traumatic epileptic incidents, Mr Fullford was placed on a higher dose of medication. He has lost his ferry licence. He no longer works in his pre-accident employment.

The application to resolve the dispute

1. Mr Fullford made an application to resolve a medical dispute about the degree of permanent impairment suffered by him as a result of the physical injuries he sustained in the assault. The injuries described in the application were: "Head injuries, with significant concussion and transient loss of consciousness, dental injuries, significant injury to the right leg, right foot and right big toe."
2. A dispute about permanent impairment is one of the types of dispute that meets the definition of a "medical dispute": see s 319(c) of the Act. By agreement of the parties, this application was referred for a further medical assessment to an Approved Medical Specialist pursuant to s 329(1)(b) of the Act.
3. Section 322(1) of the Act provides that an assessment of the degree of permanent impairment is to be made by the Approved Medical Specialist "in accordance with WorkCover Guidelines…issued for that purpose". The certificate is issued pursuant to s 325 of the Act.

The AMS Certificate

1. Mr Fullford was referred to an Approved Medical Specialist for assessment of the degree of his permanent whole person impairment. This was assessed as 11 percent whole person impairment.
2. Mr Fullford ultimately sought, and was granted, leave to appeal from that assessment. The Registrar determined that a ground of review had been made out and referred the matter to an Appeal Panel. The decision of the Appeal Panel is the subject of Mr Fullford's current complaints.

The Appeal Panel's decision

1. Part of the Appeal Panel's decision included the following: "23. The Panel agrees with the opinion of Dr Fitzsimons that the Appellant comes within Class 2 (Table 13-3, AMA5) because the epilepsy interferes with some of his activities of daily living, and affects his employability because he is unable to hold a ferry licence. 24. Dr Fitzsimons considered that the clinical features were closer to Class 1 than Class 3, and it appears on this basis determined that the Appellant is within Class 2 (15-29% WPI). 25. Dr Fitzsimons assessed the Appellant as suffering with 20 per cent whole person impairment, and made a deduction of 10 per cent. 26. The Panel notes that Dr Fitzsimons subsequently reviewed the Appellant after being provided with records of the Hawkesbury District Hospital dated 4 May 2006 reporting that the Appellant had been brought in by ambulance after being found by a co-worker convulsing on a ferry floor. 27. Dr Fitzsimons in her final report dated 19 April 2014, after reviewing further medical reports and the Appellant's medication, confirmed her previous opinion that he came within Class 2 but assessed him at the lower end of the range being 18 per cent whole person impairment with it reasonable to add a further three per cent whole person impairment as he is required to take anti-convulsant medication (Keppra). 28. The Panel agrees with the opinion of Dr Fitzsimons that the Appellant comes within Class 2 and not Class 1 as found by the AMS. 29. The Panel notes that the Appellant's injuries have affected his activities of daily living; that his employability is affected and that he will be required to use anti-convulsant medication for the balance of his life. 30. The Panel agrees with the assessment of Dr Fitzsimons of 18 per cent whole person impairment, and added to this figure is three per cent whole person impairment (as found by the AMS) for anti-convulsant medication required to be taken by the Appellant to prevent an epileptic seizure occurring in the future. Under the combined tables in AMA5 this figure is rounded down to 20 per cent whole person impairment. 31. The Panel does not agree with the opinion of Dr Fitzsimons that at most there should be a deduction of one-tenth pursuant to s 323 of the 1998 Act. 32. The Panel is of the view that Fitzsimons did not consider the proportion of the impairment that is due to the pre-existing condition of epilepsy as evidenced by the seizure in 2006. 33. It appears to the Panel that Dr Fitzsimons determined the proportion of one-tenth attributable to the degree of permanent impairment on the basis of the Appellant experiencing blackouts when he was seven years of age (see Application to Resolve a Dispute - p66). 34. The Panel notes that while Dr Fitzsimons was provided with the additional information from Hawkesbury District Hospital she did not appear to consider, in the view of the Panel, whether that history change [sic] her opinion about the deduction of one-tenth attributable to the permanent impairment due to a pre-existing condition or abnormality. 35. Accepting that the history obtained by the AMS of the Appellant having a seizure several weeks prior to the assault in 2008 is incorrect, and that the last seizure was in 2006, the Panel is of the opinion that there was an increase [sic] risk of a further seizure which contributed to the degree of permanent impairment. 36. The Panel notes that in the general population there is an increase [sic] risk of a person suffering further seizure within a period of five years of an epileptic seizure. 37. The Panel finds that the Appellant had an epileptic seizure in 2006, and following the assault he had two or three further seizures with the last one in 2012. 38. The Panel agrees with the opinion of the AMS that it would have been highly unlikely that the Appellant would have had the seizures had he not had the underlying tendency or the pre-existing condition, and notwithstanding the incorrect history recorded by the AMS, the Panel finds that a deduction of five tenth of the degree of permanent impairment is appropriate for the reasons given."
2. Although the Appeal Panel found that Mr Fullford's head injury was sufficiently serious to warrant assessment in class 2, not class 1, and thus entitled him to 18 percent as a baseline entitlement, the effect of its use of the combined tables with respect to the 3 percent that it found to be appropriate under clause 1.39 of the Guidelines was that the impairment rating was unchanged, and remained at 20 percent.

Mr Fullford's contentions

1. Section 322(1) of the Act requires the assessment to be made in accordance with the Guidelines. Clause 1.39 of the Guidelines is as follows: "1.39 Where the effective long term treatment of an illness or injury results in apparent substantial or total elimination of the claimant's permanent impairment, but the claimant is likely to revert to the original level of impairment if treatment is withdrawn, the assessor may increase the percentage of whole person impairment by 1, 2 or 3% WPI. This percentage should be combined with any other impairment percentage, using the Combined Values Chart."
2. Mr Fullford contended that the meaning of clause 1.39 was clear. The correct process is simply to add any allowance made for the masking effect of treatment to the assessment of that impairment. If there is more than one impairment percentage involved (being more than one body part to be assessed), the impairment is then combined using the Combined Values Chart, which is to be found in the fifth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, in order to give the total whole person impairment. This would also accord with the purpose of the provision, which is to allow, in a simple fashion, for an increase of up to three percent to account for the treatment effect. It is to be contrasted with the purpose of the Combined Values Chart, which recognises that impairments to different parts of the body may overlap in their effect upon the person's function, so that the total of combined impairments will be less than the undiscounted addition of the respective total impairment assessments. In the present case, the Combined Values Chart was appropriate for combining the effect upon Mr Fullford's whole person impairment of his head injury and his knee injury.
3. Mr Fullford submitted that if the Appeal Panel had approached its task in the proper manner, and had correctly interpreted and applied the Guidelines to the facts as found by it, the Appeal Panel would have: 1. added 3 percent to 18 percent and arrived at 21 percent for the head injury; 2. applied the 50 percent deduction as a result of the pre-existing condition; 3. reached an assessment of 10.5 percent, rounded up to 11 percent: Guidelines clause 1.60; 4. combined the 11 percent with the 3 percent assessment of whole person impairment of the right lower extremity according to the Combined Values Chart.
4. That approach would therefore have produced an assessment of 14 percent whole person impairment instead of 13 percent.
5. The error contended for by Mr Fullford includes the reasons given for the decision: Supreme Court Act 1970, s 69(4). Error is apparent on the face of the record so that a failure to follow clause 1.39 of the Guidelines as required by s 325 of the Act is an error of law entitling Mr Fullford to relief without more: ASIC v Farley [2001] NSWSC 326; (2001) 51 NSWLR 494 at [9].
6. Mr Fullford submitted that upon the basis of this error alone the decision of the Appeal Panel should be quashed and the matter should be referred to the Registrar for allocation to an Appeal Panel for determination according to law.

The first defendants' response

1. The first defendant perceived Mr Fullford's argument in support of this ground to proceed as follows: 1. there was a finding that the medication taken by him brought about some improvement in his level of impairment; 2. this meant that by the operation of clause 1.39 of the WorkCover Guidelines it was proper to add to his whole person impairment a further percentage of whole person impairment; 3. this was simply to be added to the whole person impairment attributable to his head injury; 4. any application of the Combined Values Chart was not to occur unless there was an injury to another body part that was causative of relevant impairment; and 5. the Appeal Panel therefore was in error to have had regard to or to have used the Combined Values Chart when combining the impairment attributable to his head injury with the further whole person impairment contemplated by clause 1.39 for the improvement brought about by his medication.
2. The first defendant contended that such an interpretation or application of clause 1.39 was incorrect. That is because it is premised upon a reading of the reference to "[t]his percentage" in the second sentence of clause 1.39 as a reference to the "percentage of whole person impairment" which is attributable to the "long term…illness or injury" in the first sentence plus the "1, 2 or 3% WPI." In that way Mr Fullford argues that the later reference in the second sentence to "any other impairment percentage" is a reference to an impairment to a different part of the body.
3. By way of contrast, the first defendant contended that the reference to "[t]his percentage" was a reference to the "1, 2 or 3% WPI" and it is to be combined with the whole person impairment attributable to the "long term…illness or injury" through an application of the Combined Values Chart. Such a construction is said to be supported by the immediately preceding clause 1.38, which indicates that once an evaluation is made of "the effects of treatment" then the Combined Values Chart is to be applied in order to arrive at the applicable whole person impairment in respect of the injury: that is to say, a determination is made as to the "1, 2 or 3% WPI" and then the Combined Values Chart is utilised. The Appeal Panel engaged in just that process at [30] of its reasons.
4. The first defendant accepted that if Mr Fullford's contentions were made good that error on the face of the record and jurisdictional error would have been shown.

Consideration

1. In my view, Mr Fullford's interpretation is clearly to be preferred. The words '[t]his percentage" are patently a reference to the word "percentage" in the previous sentence of clause 1.39 indicating that "the assessor may increase the percentage of whole person impairment". That follows in my opinion as a matter of the proper and ordinary reading of all of the words in both sentences of the clause. It accords with the notion that the relevant percentage should be "combined with any other impairment percentage, using the Combined Values Chart".
2. The proposition can best be explained in the following way. The Combined Values Chart operates in circumstances where an assessment of whole person impairment has to be made in which the person concerned suffers from two or more disabling or impairing conditions. The relevant percentages for these conditions have to be arrived at separately. They are only combined to arrive at the final whole person impairment using the Combined Values Chart once they have been individually calculated or assessed. The calculation of one or more of these percentages may, however, involve an allowance for the prospect of the withdrawal of effective long-term treatment. That allowance, in the form of an increase "by 1, 2 or 3% WPI" will determine the relevant level of impairment referable to the particular disability concerned. Only after that percentage is determined does the operation of the Combined Values Chart come into effect in order to arrive at a final whole person impairment percentage calculated by the combination of percentages for two or more impairing conditions as anticipated by the chart.
3. Indirect support for that approach is also to be found in the note to the Combined Values Chart. It reads as follows: "Note: If impairment from two or more organ systems are to be combined to express a whole person impairment, each must first be expressed as a whole person impairment percent." [Emphasis added]
4. In first expressing the whole person impairment percent referable to a particular organ system, the masking or treatment effect must necessarily have been taken into account in accordance with clause 1.39. The Combined Values Chart has no operation in the anterior application of the "1, 2 or 3% WPI" in arriving at the individual percentage for that or any particular organ system percentage calculation.

Mr Fullford's contentions

1. Mr Fullford contended that the Appeal Panel, and indeed the Approved Medical Specialist before it, had misapplied s 323 of the Act. That section provides as follows: "323 Deduction for previous injury or pre-existing condition or abnormality (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. Note: So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%). (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter. (4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section."
2. In Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365 at [126]-[127], Schmidt J said this: "[126] As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is: Firstly, what the extent of the resulting impairment is. Secondly, whether the pre-existing condition contributed to the impairment. Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition. [127] The statutory scheme recognises that this may be a difficult exercise and so provides a mechanism for its resolution, in s 323(2). If a medical specialist considers that it to be either difficult or costly to determine the contribution to the impairment which the pre-existing condition has made, the assumption provided by s 323(2) has to be applied by the medical specialist. That is, the contribution has to be assessed to be 10%, unless that is considered to be at odds with the available evidence."
3. According to Mr Fullford's analysis, the Appeal Panel directed itself to the question of whether or not it was likely that he would have suffered the seizures that he suffered after the assault if he did not have his underlying condition. He submitted that that was not the question to which the section required an answer, and did not amount in any event to a reasoned consideration or explanation of why the 50 percent deduction was made as opposed to the statutory default deduction of 10 percent.
4. Mr Fullford contended that the correct questions were not whether he would have had seizures without the underlying tendency, but what proportion of the impairment that he suffered at the time of the assessment (if any) was attributable to his pre-existing condition, whether it was too costly or difficult to determine and, if it were, whether there was a statutory reason to depart from the deduction of 10 percent. He submitted that these questions were not addressed by the Appeal Panel so that the result was an error of law on the face of the record and a jurisdictional error: Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq); Craig v South Australia [1995] HCA 58; (1995) 184 CLR 162 at 179; Ryder v Sundance [2015] NSWSC 526 at [45] and [54].

The first defendant's response

1. Authorities such as Elcheikh v Diamond Formwork (NSW) Pty Limited (in Liq), Matthew Hall Pty Limited v Smart [2000] NSWCA 284; [2000] 21 NSWCCR 34, Pereira v Siemens Limited [2015] NSWSC 1133 and Cole v Wenaline Pty Limited [2010] NSWSC 78, properly construed, require that the following staged process be undertaken: 1. consideration of whether an injury has been sustained at work which has resulted in a degree of permanent impairment; 2. consideration of the extent to which the impairment can be expressed as a percentage of the whole person; 3. consideration, on the evidence available, of whether the worker had a pre-existing condition; and 4. consideration of the extent to which, if at all, the whole person impairment has been contributed to by the pre-existing condition.
2. Ground 2 in the Summons is directed to stage (4).
3. First, the first defendant pointed out that the Appeal Panel noted its role, stating at [19], that it had "conducted a review of the material before it and reached its own conclusion concerning the correct assessment of the impairments and losses suffered by [Mr Fullford]", thus properly directing itself to the task in which s 323 required it to engage.
4. Secondly, the Appeal Panel's reasons reveal consideration of the following matters: 1. the "disparity" in Mr Fullford's medical history as recorded by Associate Professor Boyce and the other medical examiners concerning the date on which he last experienced a seizure prior to the assault (at [21]); 2. that Dr Fitzsimons reviewed Mr Fullford on subsequent occasions and noted that he had had a seizure on 4 May 2006 (at [26]) and that Dr Fitzsimons' final report assessed him as within Class 2 (table 13-3, AMA 5) but at the lower end of the range (at [27]); 3. that, in the opinion of the Appeal Panel (which included two medical specialist members) Mr Fullford was within Class 2 and hence the Approved Medical Specialist had erred in assessing him as falling within Class 1 (at [28]); 4. the Appeal Panel did not agree that "at most there should be a deduction of one-tenth pursuant to s 323" (at [31]); 5. the Appeal Panel took the view that Dr Fitzsimons failed to consider the proportion of the impairment due to the pre-existing epilepsy "as evidenced by the seizure in 2006" and determined the deduction by reference only to Mr Fullford's childhood history (at [32]-[34]); 6. the Appeal Panel was of the opinion that there was a pre-existing condition which contributed to Mr Fullford's impairment (at [35]); 7. the Appeal Panel noted that "in the general population there is an increased[d] risk of a person suffering [a] further seizure within a period of five years of an epileptic seizure" (at [36]) and that Mr Fullford had experienced "two or three seizures" since the assault with "the last one in 2012" (at [37]); 8. that Mr Fullford's paroxysmal disorder was largely referable to the pre-existing epilepsy and not to the assault, given that this greatly increased his risk of suffering further seizures (at [38]); and 9. there should be a deduction in relation to the pre-existing condition in the order of 50 percent (at [38]).
5. The foregoing examination of the reasons indicates that the Appeal Panel applied a 50 percent deduction because in its opinion this was the extent to which Mr Fullford's pre-existing epilepsy contributed to his paroxysmal disorder, which itself was a cause of impairment. It seems the Appeal Panel reasoned that, because of the 2006 seizure, the later seizures were not unexpected and that it was likely that the underlying condition was 50 percent causative of these incidents. This was open to the Appeal Panel on the material before it, particularly having regard to the fact that it was comprised of two medical specialist members.
6. The first defendant contended that I should be slow to conclude that an error in medical reasoning has occurred where the Appeal Panel included medical practitioner members: see Telstra Corporation Limited v Warren [1997] FCA 102. Those practitioner members were entitled to bring their own medical expertise to bear upon the relevant issue: see Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [47].

Consideration

1. In my opinion, no error has been shown concerning the way in which the Appeal Panel dealt with the effect of Mr Fullford's pre-existing condition. As I indicated during the course of argument, Mr Fullford's concern that the Appeal Panel asked itself or sought to answer the wrong question proceeds upon the existence of some allegedly identifiable distinction without a difference. The Appeal Panel's concern was clearly to assess the contribution, if any, to Mr Fullford's impairment that arose having regard to his history of epileptic seizures. The approach that was taken was unexceptionable and was a correct application of its statutory function.

Mr Fullford's contentions

1. Mr Fullford maintained that, in ways that are reflected in his arguments in support of ground 2, the reasons of the Appeal Panel failed to demonstrate how it arrived at its decision to deduct 50 percent, as opposed to some other amount, and failed to demonstrate that it had considered whether, in the absence of any articulated method of determining the contribution of his pre-existing condition, that the precise contribution was in fact too difficult to determine. Mr Fullford maintained as well that the Appeal Panel failed to demonstrate whether it had considered that the statutory 10 percent default rate was at odds with the evidence.
2. Mr Fullford submitted that the Appeal Panel's failures "to articulate the pathway by which the result was reached" amounted to an error of law on the face of the record and jurisdictional error: see Wingfoot Australia Partners Pty Limited v Kocak; Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216 at [42]-[43], [47]; Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13].

The first defendants' response

1. The Appeal Panel's reasons indicate that it was of the opinion that Mr Fullford suffered from a pre-existing condition and that there were increased risks of seizure which amounted to a contributing factor to his level of impairment. Mr Fullford's pre-existing epilepsy brought about an increased risk. That did not necessarily or inevitably produce a conclusion that the pre-existing epilepsy was causative of 50 percent of Mr Fullford's impairment. The Appeal Panel's task was not simply arithmetical. The medical specialists who made up the Appeal Panel were entitled to conclude upon the basis of medical expertise and knowledge, among other things, that this was an appropriate deduction for the pre-existing condition in the circumstances.
2. Moreover, the function undertaken by the Appeal Panel under s 328(5) was one which required a decision either to confirm the Assessment Certificate or revoke it and issue a new medical assessment certificate. The Appeal Panel's reasons reveal the path of reasoning by which it arrived at the decision to revoke the Assessment Certificate. No error has been demonstrated.

Consideration

1. In my opinion, the reasons of the Appeal Panel are entirely adequate. No error on the face of the record has been identified: see Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 at [98] ff; Wingfoot at [28]. The Appeal Panel's reasoning conforms to the criteria referred to in Wingfoot at [55] as follows: "[55] The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
2. The Appeal Panel's reasons need not be extensive. Nor are they required to provide a detailed explanation of the way in which the relevant criteria have been applied by medical specialists. In the present case the Appeal Panel's opinion and the way in which it arrived at that opinion are perfectly clear. No error of any kind is discernible.

Conclusions and orders

1. It follows that Mr Fullford is entitled to relief, having regard to his success on ground 1. The relief that is sought is specified above. I note, however, that the difference between the challenged decision of the Appeal Panel and the decision that Mr Fullford has successfully asserted it should have made amounts in monetary terms to $1,650. Although it is not a matter about which I can offer anything but passing comment, it does seem to me that it would be a disproportionate application of expensive resources if my decision led to the appointment of another Appeal Panel for the consideration of the issues afresh.
2. In anticipation that the parties might jointly request that I deal with this matter in a slightly more practical way, I will invite them to bring in short minutes of order giving effect to my conclusions, including the question of the costs of the proceedings before me.

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: 23 August 2016