Haroun v Rail Corporation NSW

The reasons of Approved Medical Specialist (AMS) 12 On 22 November 2006, Dr Schutz, the approved medical specialist (AMS), provided written reasons for his decision and issued a medical assessment of permanent impairment. 13 The registrar referred the medical dispute to the AMS. Under s 319, a medical dispute means a dispute about any of the following matters in connection with a claim: "(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),

(c) the degree of permanent impairment of the worker as a result of an injury,

(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

(e) the nature and extent of loss of hearing suffered by a worker,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable." (s 319) 14 In his reasons (at [7]) the AMS stated that he understood that the accepted conditions for 24 June 2005 were injury to the right lower extremity and left lower extremity and the accepted conditions for 14 July 2005, were injury to the right upper extremity and right lower extremity. The AMS then stated in relation to the right lower extremity, being the right knee, there was osteoarthritis and that there may have been a bruise in the accident with the onset of symptoms but there was no evidence of a separate injury resulting from this accident. He also stated that the left knee was osteoarthritic and there was no evidence of further injury to the knee. These statements are inconsistent with the findings made by the Arbitrator that there were injuries to the left and right knees. 15 In relation to 24 June 2005 injuries, Dr Schutz made findings, namely for the right lower extremity 0/0 WPI (whole person impairment) and for the left lower extremity, Dr Schutz made findings that there was swelling over the left lower leg including swelling over the left lower leg. Dr Schutz assessed the total impairment for the injuries which occurred on 24 June 2005 at one per cent. In relation to 14 July 2005 injuries, Dr Schutz made findings in relation to the right upper extremity at one per cent WPI and in relation to the right lower extremity he found that there was no evidence of an additional injury occurring to the right lower extremity. The total impairment for 14 July 2005 injuries was assessed at one per cent.

The decision of the Registrar 16 On the topic of inconsistent findings by the Arbitrator and the AMS, Wikaira is instructive. In Wikaira, the Arbitrator had made express findings before the matter was referred to the AMS. In Wikaira the Arbitrator found that the worker had sustained orthopaedic injuries to her neck, back and shoulders in an incident on 22 August 2000 and that she was not fit to perform the type of work she had been doing. These matters were expressly set out in the referral to the AMS. The AMS determined that there was no permanent impairment in the worker which was work related. In Wikaira, an application to appeal was made to the registrar which was refused on the basis that there was no demonstrable error in the medical assessment certificate. Malpass AsJ in Wikaira, concluded that the medical assessment certificate did contain a demonstrable error. This was because the assessment by the AMS that there was no permanent impairment was based upon a finding that there was no evidence of injury. This was inconsistent with the express finding by the Arbitrator by which the AMS was bound. 17 As in Wikaira, the arbitrator made express findings of injury before the matter was referred to the AMS. These matters were expressly set out in the referral to the AMS. In these proceedings it is not the decision of the registrar under review but rather it is the decision of the Appeal Panel. 18 The registrar in these proceedings was satisfied that at least one of the grounds of appeal was made out in accordance with s 327(4) and referred the appeal to the appeal panel for review of the original medical assessment on the basis that the assessment was made on the basis of incorrect criteria and/or the medical assessment contains a demonstrable error. 19 A "demonstrable error" includes an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment. It embraces something more than an "obvious error" which the registrar can correct. An error will be demonstrable if it is capable of being shown. Factual errors, particularly of a medical kind, or errors of logic or analysis if they are readily demonstrable from an examination of the medical assessment certificate, will amount to demonstrable error - see s 325(3), Mewrza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [30]; Pitsonis v Registrar of the Workers Compensation Commission [2207] NSWSC 50 at [20]; and Smith v Liquip Services Pty Ltd [2007] NSWSC 687. 20 On 22 May 2007, the Appeal Panel confirmed the medical assessment certificate issued by Dr Schutz. On 29 June 2007, the Workers Compensation Commission determined that RailCorp pay Ms Haroun as lump sum compensation $1,250 for a one per cent whole person impairment attributable to the injury on 14 July 2005.

Submissions before the Appeal Panel 21 Before the appeal panel, Ms Haroun relied on two grounds of appeal (s 327(3)). The first ground of appeal was whether the assessment was made on the basis of incorrect criteria. This ground included whether the AMS had used the wrong criteria to make the assessment. The plaintiff submitted that if the wrong criteria was made good, it would also constitute a demonstrable error. RailCorp does not accept that the use by an AMS of wrong criteria to make an assessment would, as a matter of statutory interpretation, also constitute a demonstrable error. However, RailCorp conceded that from a practical viewpoint, an assessment based on incorrect criteria would probably also indicate that there was a demonstrable error. The second ground was that the medical assessment certificate contained a demonstrable error (s 327(3) (c) and (d)).

22 The plaintiff submitted that the incorrect criteria ground extended to include the tests set out in the WorkCover Guidelines. The assessment of the degree of permanent impairment of an injured worker is to be made in accordance with the WorkCover Guidelines (as in force at the time the assessment is made) (s 322). When the AMS examined the plaintiff, the applicable guides were the WorkCover Guidelines for the Evaluation of Permanent Impairment, 1st ed (June 2002) chapters 2 and 3. The plaintiff submitted that the AMS used the wrong criteria from the guides in making the assessment. When the Appeal Panel confirmed the medical assessment certificate, the applicable guides were then the WorkCover Guidelines for the Evaluation of Permanent Impairment, 2nd ed (November 2006) chapters 2 and 3. 23 The plaintiff submitted wrong criteria was used in two areas in relation to the right lower extremity injury on 24 June 2005. Firstly, the medical assessment certificate included reference to chapter 2 and paras 2.5, 2.6 and 2.10 of the 1st ed of the WorkCover Guidelines. It certified that they were "followed" for assessment of the injury to this body part or system, which occurred on 24 June 2005. The plaintiff submitted that that chapter and those paragraphs deal with the upper not lower extremity and these were the wrong criteria and this is also a demonstrable error. The AMS should have followed and the medical assessment certificate should refer to the correct criteria in Chapter 3. Secondly, in relation to the left lower extremity injury on 24 June 2005 and right lower extremity injury on 14 July 2005, the medical assessment certificate included further reference to chapter 2 and paras 2.5, 2.6 and 2.10 of the 1st edition of the WorkCover Guidelines. The plaintiff submitted that that chapter and those paragraphs deal with the upper not lower extremity and that these were the wrong criteria and is also a demonstrable error. 24 It is conceded by RailCorp that the AMS has mixed his reference to the chapters relevant for both upper and lower extremities. However, RailCorp submitted that it is reasonably clear from the calculations and correct reference in paragraph [10] of the medical assessment certificate that the AMS had indeed applied the correct chapters of the guidelines to the correct body parts, and that the AMS did in fact carry out his assessment of whole person impairment in accordance with the relevant guidelines. Paragraph [10] of his reasons referred to tables 16-10, 16-11, 16-15, 16-31, 16-33, 17-10 and 17-33 and provide explanations for findings. Paragraph [10] refers to the correct guidelines. 25 For the present purposes, there is no relevant difference between the tests applicable under the 1st edition and the tests applicable under the 2nd edition. The certificate issued by the AMS comprises 13 pages of written reasons plus the last page which contained a table. The table is comprised of 7 columns. It is some of the entries under the column headed "Chapter page and paragraph number in WorkCover Guidelines" where these errors occurred. 26 Sections 325 of the Act reads: "325 Medical assessment certificate

(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a "medical assessment certificate") as to the matters referred for assessment.

(2) A medical assessment certificate is to be in a form approved by the Registrar and is to: (a) set out details of the matters referred for assessment, and

(b) certify as to the approved medical specialist's assessment with respect to those matters, and

(c) set out the approved medical specialist's reasons for that assessment, and

(d) set out the facts on which that assessment is based.

…" 27 An assessment certified in a medical assessment is conclusively presumed to be correct so far as the degree of permanent impairment of the worker as a result of an injury, whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, the nature and extent of loss hearing suffered by a worker, whether impairment is permanent and whether the degree of permanent impairment is fully ascertainable (s 326 of the Act). 28 The AMS may have confused some reference in a column of a table on the last page of the certificate, but in substance the certificate set out the criteria referred to in s 325 of the Act and para [10] referred to the correct guidelines. It is my view that the AMS did carry out his assessment of whole person impairment in accordance with the relevant guidelines. 29 In any event, the written submissions by Ms Haroun to the Appeal Panel did not make any mention of the mixture of reference to chapters in the third column on page 14 of the medical assessment certificate as being indicative of any application of incorrect criteria or demonstrable error. While there is currently judicial debate as to the approach the appeal panel should take on appeal, (which will be referred to in more detail shortly), it is clear that if the appeal panel is to consider a purported error made by the AMS, that purported error should be made clear in the submissions. It was not. This is another reason why this ground of review fails. 30 Ms Haroun conceded that the Appeal Panel did find that a demonstrable error had occurred and that it did so on the footing that the AMS's comments were inconsistent with the referral and the Arbitrator's findings about injury. That concession is correct. However, Ms Haroun submitted that the Appeal Panel failed to correct the error and instead, in claiming to conduct a review afresh, committed further errors of law of its own. Ms Haroun submitted that the powers of an Appeal Panel itself do not include power to question or ignore an Arbitrator's findings of fact and despite its reasons for deciding a demonstrable error had occurred, the Appeal Panel then treated one of the AMS's findings as if it was a finding about permanent impairment. 31 Ms Haroun further submitted that the finding in question was not of the kind the Appeal Panel claimed and that it was simply a finding about the effect Ms Haroun's injuries had and to what extent they contributed towards the degree of permanent impairment from which she suffered. Further, it is submitted that it was not a finding about the degree of permanent impairment of Ms Haroun because of an injury. Ms Haroun submitted that by treating the Arbitrator's finding as it did the Appeal Panel itself then fell into error. 32 Ms Haroun further submitted, that although the Appeal Panel considered its task was to make a fresh assessment, it failed to conduct its own assessment based on all the material before it because there was no further examination of Ms Haroun and the Appeal Panel simply relied on the AMS's examination and assessment including his findings on examination. 33 According to Ms Haroun, although the Appeal Panel found that the AMS's comments were inconsistent with the referral and the arbitrator's findings about injury, the Appeal Panel nonetheless relied on them in confirming the medical assessment certificate and this according to Ms Haroun was another error. RailCorp submitted that the supposed finding made by the arbitrator on 22 September 2006 was correctly ignored by the AMS and appropriately dealt with when raised on appeal by the Appeal Panel. The submission made before the Appeal Panel (at [8]) were that in contravention of the Arbitrator's findings of fact, the AMS found the applicant did not suffer injuries; or alternatively, that the effects of the right and left legs injuries on 24 June 2005 and the right leg injury on 14 July, did not contribute to Ms Haroun's impairment. The relevant statutory provisions 34 Sections 327 and 328 of the Act relevantly read: "327 Appeal against medical assessment

(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: …

(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.

(6) If the appeal is on a ground referred to in subsection (3) (a) or (b), the Registrar may refer the medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment.

(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act. "328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.

(2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal.

(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment.

(4) 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." 35 There is a divergence of judicial views as to the approach an Appeal Panel should take. On one view, the powers of an Appeal Panel may be limited to addressing, and correcting errors identified in the medical assessment certificate as specified by the plaintiff - see Campbelltown City Council v Vegan (2006) at [137] per Basten JA. In Smith v Liquip Services Pty Ltd [2007] NSWSC 687 at [52] Hoeben J's view is that trial judges should follow the tentative approach suggested by Basten JA. In Skillen v MKT Removals Pty Ltd [2007] NSWSC 608 at [20]-[25] Malpass AsJ also doubted that the review was a completely fresh hearing at large in which the power of the appeal panel could be exercised regardless of error. Malpass AsJ thought that the grounds for appeal restrained and the submissions made on those grounds could further narrow the scope of the review to be conducted by the appeal panel. Malpass AsJ also stated that it would be a denial of natural justice for the appeal panel to deal with matters outside the scope of the grounds of appeal or the submissions without first giving the parties an opportunity to be heard concerning them. 36 In Crean v Burragorang Pet Food Pty Ltd [2007] NSWSC 839 at [31], McClellan CJ at CL was of the opinion that the Act provides for merits review and in light of the matters raised in Crean, the approach taken by Malpass AsJ was the preferred approach. 37 By contrast, in Lukacic v Vickarni Pty Ltd [2007] NSWSC 608 at [29] I adopted the approach of Wood CJ at CL at first instance in Campbelltown City Council v Vegan [2004] NSWSC 1129 at [74]-[76] which was that the appeal panel can conduct a review afresh and is not itself required to determine whether any of the four grounds referred to in s 327(3) has been made good and nor is it confined to correcting the assessment in relation to such grounds or grounds as have been made good.

The reasons of the appeal panel 38 The appeal panel in its reasons dated 22 May 2007 at paragraph [21], [23] to [28] stated: "21. In this matter the Registrar has determined that at least one of the grounds of appeal exists. The Panel has accordingly conducted a review of the material before it and reach its own conclusion concerning the impairments and losses suffered by the Appellant. 23. The Panel notes Dr Schutz's comments at paragraph 7 of the MAC regarding what was referred to him for assessment. He noted the dates of injury and the body parts. He went to say however at sub-paragraph (a) "there was no evidence of a separate injury resulting from the accident" when referring to the right lower extremity and the date of injury of 24 June 2005. Dr Schutz also stated "there was no evidence of further injury to the knee" when referring to the left lower extremity and the same date of injury. In Dr Schutz's view "the evidence is that symptoms relate to arthritis and not to additional injury". 24. It is well established in law that it is the Arbitrator's statutory function to determine whether there has been an injury as claimed and the task of the AMS is to determine whether the injury gives rise to any permanent impairment and then to give a certificate as to the matters referred for assessment ( Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor (2005) NSWSC 954; Merza v Registrar of the Workers Compensation Commission of NSW & Anor (2006) NSWSC 939 and Aircons Pty Ltd v Registrar of the Workers Compensation Commission & Anor (2006) NSWSC 322). In this matter the Arbitrator determined that the injury occurred to the right and left lower extremities on 24 June 2005 and the right upper extremity and the right lower extremity on 14 July 2005. Dr Schutz was therefore required to assess the degree of permanent impairment resulting from those injuries and then provide a certificate as to those matters. Dr Schutz's comments are inconsistent with the referral and the Arbitrator's findings as to injury. 25. Having said that however, the Panel notes the Arbitrator purported to make findings as to permanent impairment. It is clearly the function of the AMS to assess the degree of permanent impairment resulting from an injury. It is not for the Arbitrator to make such a finding. Section 65(1) of the Workers Compensation Act 1987 (the 1987 Act) provides that the "degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical Assessment) of Chapter 7 of the 1998 Act" and section 65(3) of the 1987 Act provides "If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering unless the degree of permanent impairment has been assessed by an approved medical specialist". An AMS determines the extent or degree assessed by an impairment that results from an injury as well as other matters set out in section 326 of the 1998 Act. 26. Although Dr Schutz made comments regarding injury that offended his statutory function and were inconsistent with the Arbitrator's findings, the Panel agrees with his ultimate findings set out at paragraph 8(e). The Panel is of the view Dr Schutz's conclusion that the effect of the injuries was "likely to have been temporary aggravation with symptoms in areas where there was pre-existing defeneration." 27. On the basis of the findings on examination and all of the other relevant material, in particular the radiological investigations, the Panel agrees with Dr Schutz's assessments and the reasons given for them at paragraphs 8, 10 and 12 of the MAC 28. For these reasons, the Panel has therefore determined that the Medical Assessment Certificate dated 22 November 2006 given in this matter should be confirmed." 39 The Appeal Panel identified the error in para [23] that the AMS made comments that were inconsistent with the Arbitrator's findings as to injury. The appeal panel then agreed with the AMS's conclusion that the effect of the injuries was "likely to have been temporary aggravation with symptoms in areas where there was pre-existing degeneration." In other words, it corrected the erroneous findings by the AMS in relation to injury and decided that in relation to those injuries there was no permanent impairment. The Appeal Panel considered only the matters raised in the grounds of appeal. It examined the medical records before the AMS and his reasons. It conducted a review of the material before it and reached its own conclusion concerning the impairments suffered by Ms Haroun. The Appeal Panel's approach was not infected by the reasoning process and findings of the AMS. In my view there is no error in the approach of the appeal panel. This ground of review fails. The summons filed 18 September 2007 is dismissed. 40 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed.

(1) The summons filed 18 September 2007 is dismissed.

(2) The plaintiff is to pay the defendants' costs as agreed or assessed. **********

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