Hatch v Peel Valley Exporters Pty Ltd

Hatch v Peel Valley Exporters Pty Ltd - [2010] NSWSC 23 - NSWSC 2009 case summary — Zoe

[10]

Professor Myers could find no current objective evidence of carpal tunnel syndrome or of ongoing median nerve dysfunction. He concluded: "It is my opinion that currently, for the reasons given in the body of the report, that I cannot accurately assess any permanent loss. It is my opinion that there is no stabilisation of the injury at present…Given his complaints of pain, numbness and pins and needles, it is my opinion that it is unlikely that any attempt to induce him to return to these duties is likely to [be] successful. It is therefore my opinion that he is not fit to resume normal pre-injury duties." 10 The parties were unable to resolve the dispute as to the claims for lump sum compensation. The dispute was referred by the Registrar at the request of the plaintiff to an Approved Medical Specialist ("AMS") pursuant to the Workplace Injury Management and Workers Compensation Act 1998 ("WIM"), s 321(1) for assessment of permanent impairment. The referral, according to the Panel's reasons, required the AMS to: "… conduct an assessment of [the plaintiff's] left and right upper extremities attributable to the nature and conditions of his employment from approximately 2002 to 19 September 2003." 11 The reports of Dr Endrey-Walder and Professor Myers were made available to the AMS, as were the reports of the plaintiff's treating doctors. The latter reports, save for an early report of Dr Scougall, categorised the plaintiff's condition as one of carpal tunnel syndrome. 12 Consequent upon that referral, an AMS, Dr Blue, examined the plaintiff and on 29 October 2008, furnished a medical assessment certificate pursuant to WIM, s 325. 13 In that certificate, Dr Blue concluded: "I have no doubt that he did originally insidiously develop bilateral carpal tunnel syndromes as a result of his work activities as a slaughterman/labourer which commenced in January of 2001. This problem subsequently underwent well-accepted and indicated surgical treatment by way of bilateral open carpal tunnel decompression.

[23]

3.1 [The first defendant] submits that this is an appropriate matter for referral to a Medical Appeal Panel to be appointed by the Registrar and that it is appropriate for the worker to be re-examined by the Panel on the basis of correct assessment criteria and in accordance with the terms of the Referral issued by the Registrar in this matter." 20 The Registrar was satisfied that, on the face of the application and submissions, a ground of appeal specified in s 327(3)(d) had been made out and referred the appeal to a Medical Appeal Panel comprising AMS Burke, AMS Hume and Arbitrator Molony for review of the medical assessment of Dr Blue. 21 In response to the application, the plaintiff filed a Notice of Opposition dated 16 December 2008. In the particulars accompanying that document, the plaintiff asserted inter alia: "The AMS was asked to evaluate the worker's permanent impairment of both his upper extremities arising out of bilateral median nerve injuries…the characterisation of the condition as CRPS II or any other condition under s 16.5 is irrelevant given that the Workcover guides for the specific interpretation of the evaluation of permanent impairment of the upper extremities due to peripheral nerve disorders directs the assessor to Table 16-10, 16-11 and 16-15 and, given the clinical findings made by the AMS and the worker's complaints, the AMS's evaluation of permanent impairment was sound and not erroneous." 22 On 22 January 2009, the Medical Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines. As a result of that preliminary review, the Panel determined that it was necessary for the plaintiff to undergo a further medical examination. 23 Pursuant to that determination, a further medical examination of the plaintiff was carried out. The Statement of Reasons for Decision of the Appeal Panel ("the Reasons") recorded that the "re-examination was conducted by both Dr Burke and Dr Hume ['the examiners']". This accords with the direction in the Appeal Panel's preliminary review document which directed Drs Burke and Hume to conduct the re-examination of the plaintiff. Details of the examination, including history, symptoms and clinical findings, were incorporated in the Reasons. All documents that had been sent to the AMS for the original assessment were before the Panel. 24 The Medical Appeal Panel concluded, in short:

[37]

(c) procedural fairness required the Panel to inform the plaintiff of its conclusion as to the CRPS II diagnosis and that it proposed to consider the question of the plaintiff's impairment due to the bilateral carpal tunnel syndrome and that his examination was required for the latter purpose. 34 It is unclear that the Panel in its preliminary review formed the opinion that the AMS had recorded insufficient signs to justify the diagnosis. The Appeal Panel does not record this. However, even if this was assumed, it would not give rise to a lack of procedural fairness. 35 The relevant principle was stated by McColl JA in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [101] and [104]: "… while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard …while it was open to the Appeal Panel to depart from the grounds of appeal the respondent had identified, it could only do so if it notified the parties and gave them an opportunity to be heard." 36 The Panel determined that the assessment of the AMS that the plaintiff had an impairment due to complex regional pain syndrome could not stand as only two of the eight signs necessary to establish that condition were present. It determined that such a diagnosis was not open on the re-examination conducted by it, as none of the signs were present. 37 The Panel then considered impairment due to bilateral carpal tunnel syndrome. This did not raise an assessment outside the ambit of the application to appeal or depart from the grounds of appeal notified. It accorded with the particulars of the application to appeal, the particulars to the Notice of Opposition and with the whole thrust of the evidence which the plaintiff's legal advisers had placed before the AMS and later, the Appeal Panel. 38 In my opinion, the issue of impairment due to bilateral carpal tunnel syndrome was within the ambit of the application to appeal, and accordingly there was no lack of procedural fairness as alleged. In the circumstances there was no lack of procedural fairness in the Panel proceeding to re-examine the plaintiff, even if it had already determined on preliminary review that the assessment by the AMS could not stand.

[38]

Procedural fairness - adverse findings 39 The Panel concluded there was no impairment of the plaintiff's upper extremities. It did so because of the examination findings of the Panel doctors that the plaintiff's presentation was inconsistent and unreliable. 40 In Markovic v Rydges Hotels Limited [2009] NSWCA 181 the Court of Appeal held: "[35] This Panel did not give the respondent worker, an opportunity to be heard on the new issues they themselves raised, and having thus misconceived their role, the nature of their jurisdiction and their duty, the Panel's MAC must be quashed, and the appeal from the MAC of the AMS must be reheard by a fresh Panel." 41 It was submitted for the plaintiff that Markovic was on all fours with the present case, in that in the present case, the Appeal Panel had raised a totally new issue, namely, the credibility of the plaintiff's symptoms in circumstances where that issue had not been raised prior to the issue of the Panel's reasons and certificate. The plaintiff submitted the Panel failed to accord him procedural fairness by not notifying him of the inconsistent findings on re-examination and before proceeding to a final determination. 42 In my opinion, there is substance in this submission. The defendant, in its particulars accompanying the application to appeal, stated that the plaintiff "continued to suffer residual symptoms of that condition [bilateral carpal tunnel syndrome] despite undergoing decompression surgery." It submitted the diagnosis of CRPS II should be set aside and "that the degree of whole person impairment as a result of the nature and conditions of the worker's employment with the host employer must be assessed in relation to the injury (etc) that is supported by the treating and qualified doctors in this matter as having resulted from that employment - namely bilateral carpal tunnel syndrome." 43 In my opinion, it was implicit in those particulars that the defendant accepted the plaintiff had a whole person impairment consequent upon the bilateral carpal tunnel syndrome and that the Panel was being asked to assess the degree of that impairment. The defendant was not seeking to challenge the plaintiff's claim on credit grounds or that his presentation was inconsistent and unreliable. 44 This is consistent with the fact that:

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