Hearne v Spamil Discretionary Trust

The plaintiff's injuries and initial claim for compensation

1. The plaintiff injured her left shoulder on 1 June 2001 while working as an IT Help Desk operator at a law firm. She was lifting a computer monitor when she felt pain in the upper part of the chest wall, the left side of her neck and her left shoulder. X-rays of the thoracic and cervical spine were taken that year. These did not disclose any major problems. The plaintiff continued to work but developed pain in her "left upper extremity" and "right upper extremity". This (second) injury was deemed to have occurred on 15 August 2006. Those are the injuries and dates referred to in the Application to Resolve a Dispute filed with the Commission on 12 August 2016. The plaintiff continued to experience pain and reported the loss of a range of movement in her left shoulder. She also had problems with her right shoulder which she attributed to "over compensating the right shoulder because of the injury with [her] left shoulder". The pain radiated into her neck and she reported a number of disabilities. [2]
2. The plaintiff brought a claim for compensation. A medical assessment certificate ("MAC") was prepared by an approved medical specialist ("AMS") Dr Donald Faithfull on 7 July 2010. He assessed the plaintiff's degree of permanent impairment at 10% for the left arm above the shoulder (from the 2001 injury), and 7% for the left upper extremity and 5% for the right upper extremity (from the 2006 injury). There was a deduction of 5/7 in relation to the left upper extremity. Accordingly, in accordance with relevant guidelines, the WPI for the 2006 injury was assessed at 7%. In reasons dated 14 October 2010, an appeal panel confirmed Dr Faithfull's MAC. The Commission made a determination on 8 November 2010. Lump sum payments for compensation were paid in the amounts of $7,500 (for the 2001 injury) and $8,750 (for the 2006 injury).
3. The various delays between the original injury, the date upon which the second injury was deemed to have occurred, and the application subject of the present litigation were not explored or explained in any detail in the evidence. I take it to be the joint position of the parties that this is not a relevant consideration. The experienced lawyers on both sides conducted the case on the basis that the dispute between the parties, both before the panel and in this Court, is a reasonably narrow one.
4. The 2010 claim for compensation is not the subject of the present proceedings, although reference was made in submissions to Dr Faithfull's MAC.
5. The present proceedings relate only to the injury to the cervical spine deemed to have occurred in 2006.

The plaintiff's 2016 claim

1. The present proceedings arise out of a claim for compensation made by the plaintiff in 2016. Those proceedings commenced with the plaintiff's Application to Resolve a Dispute signed 10 August 2016 and filed with the Commission on 15 August 2016. The parties agree that there was a "medical dispute" as defined in the workers compensation legislation. [3] Such a dispute is to be determined in the first instance by an AMS. There is a statutory appeal to a medical appeal panel. The jurisdiction to determine such disputes resides with the specialist and, in turn, with the Appeal Panel. This Court does not sit to resolve such disputes and review of the decisions of the panel cannot succeed simply because the Court takes a different view as to the outcome or facts of the case. Judicial review of the decisions of the panel is limited. The Court does not sit to remedy what it considers to be administrative injustice.
2. Dr Boyce assessed the plaintiff on 12 October 2016 and issued an MAC dated 21 October 2016. Dr Boyce found that the plaintiff had "[r]estricted movement of the cervical spine in several planes" and that she had "features of radiculopathy." He found that the evidence of radiculopathy indicated a 15-18% WPI, and made a finding of 17% when taking into account the activities of daily living. The WPI also included a finding of 10% for the left upper extremity and 12% for the right upper extremity. These assessments were made by reference to Table 16-3 of the American Medical Association Guides to the Evaluation of Permanent Impairment (5th Edition) ("AMA 5"). The total WPI was 34%. It is noted that Dr Boyce expressed the opinion that all "body parts/systems" had "stabilized/reached maximum medical improvement".
3. On 18 November 2016, the first defendant lodged an application to appeal against Dr Boyce's decision. The grounds of appeal were that the assessment was made on the basis of incorrect criteria and that the MAC contained a demonstrable error. Submissions in support of the appeal complained of a lack of procedural fairness (due to a failure to provide the defendant with an MRI scan that formed part of the material relied on by the AMS), various failures to comply with relevant guidelines, and a failure to assess correctly (or at all) deductions for pre-existing injuries. [4]
4. The plaintiff filed an opposition to the appeal on 13 December 2016. She generally defended the MAC but conceded that there should be some deduction from the WPI based on pre-existing injuries. The plaintiff included a number of further documents with its opposition including the relevant MRI scan, a bone scan made the same date and a report by a Dr Jonathan Curtis, neurosurgeon, dated 23 November 2016. [5] On 31 January 2017, the plaintiff made an application to admit late documents and included a further report of Dr Curtis dated 30 December 2016.
5. As a result of the contents of the application for appeal and the opposition, two things happened.
6. First, on 13 February 2017, a delegate of the Registrar of the Commission decided to refer the matter back to Dr Boyce for reconsideration under s 329(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM Act"). The delegate's reasons for that decision included the following: "Having reviewed the contents of Dr Curtis' reports it is clear that the matter will need to be referred back [to] the AMS for reconsideration. In particular, I note the doctor's comments on possibility of surgery to the cervical spine and the requirements of clauses 1.15 and 1.16 of the 4th edition of the NSW workers compensation guidelines for the evaluation of permanent impairment."
7. The requirements of clauses 1.15 and 1.16 are significant and will be referred to later in this judgment.
8. The Registrar wrote to Dr Boyce on 14 February 2017. The letter enclosed a number of documents including the application to appeal, the opposition and attached documents, the reports of Dr Curtis, the amended referral and the original brief of evidence.
9. Dr Boyce wrote back to the Registrar on 27 February 2017. His letter was brief. He said there was "no significant change in relation to the injuries sustained on 1.6.2001, or the 15.8.2006 (deemed)." He expressed his disagreement with Dr Curtis' opinion "that there has been a progressive decrease in the size of a particular cervical disc which can be attributable to either such injury". He "reconfirmed" the opinions previously stated on 21 October 2016. His letter made no mention of the proposed surgery to the cervical spine (a matter raised specifically in the Registrar's letter seeking reconsideration). He did not, explicitly at least, reconsider the question of whether the plaintiff had reached maximum medical improvement. Nor it seems did Dr Boyce correct the conceded error in relation to deduction from the WPI resulting from the pre-existing injury (although he made reference to the fact that the plaintiff "had opinions of Dr Don Faithfull").
10. The second thing that happened as a result of the first defendant's application was that on 7 April 2017, the Registrar referred the matter to an appeal panel pursuant to s 327 of the WIM Act. The Appeal Panel was constituted by Mr Bell (arbitrator), Dr Noll (orthopaedic surgeon) and Dr Mellick (neurologist). This followed the first defendant writing to the Commission on 24 March 2017 indicating that the reconsideration by Dr Boyce failed to resolve the grounds of appeal in its application of 18 November 2016.

An observation in passing

1. It should be observed that the circumstances in which the Appeal Panel came to consider the plaintiff's case (and the first defendant's appeal) were somewhat unsatisfactory.
2. This was because the reconsidered opinion of Dr Boyce did not address the question of whether the additional material impacted on his original opinion that the plaintiff had reached "maximum medical improvement". That is surprising given that the additional material provided by the Registrar included the opinions of Dr Curtis that contemplated the possibility of surgery described as "a two level anterior discectomy, removal of osteophytes and fusion reduction procedure" at C4/5 and C5/6 levels. Nor did the reconsidered opinion make the reductions to the WPI that the plaintiff conceded should be made on the basis of the reconsidered opinions.
3. Further, it appears that the Appeal Panel considered the matter on the basis of the submissions originally filed by the parties in the Appeal Application and Opposition. That is, the parties did not address the further evidence in Dr Curtis' second report or the pithy response of Dr Boyce.
4. Finally, s 328(2) of the WIM Act provides that the appeal was to be limited to the "grounds of appeal on which the appeal is made" and s 328(3) limits the evidence to that which upon which the original evidence was based. However, by the time the Appeal Panel considered the matter, the plaintiff had successfully applied to rely on new evidence and Dr Boyce had reconsidered the matter based on that new material. Neither party raised the provisions in sub-ss 328(2) or (3) and I take it to be common ground that it was properly before the Appeal Panel.

The proceedings before the Appeal Panel

1. The Appeal Panel determined that the plaintiff should undergo a further clinical examination and nominated Dr Brian Noll as the AMS Panel Member authorised to conduct the examination and prepare a report.
2. Dr Noll examined Ms Hearne and prepared a report for the panel on 1 June 2017. Within his narrative of the plaintiff's medical history was the fact that she had consulted Dr Curtis and that: "[S]he had a further MRI scan of the cervical spine and was advised that she should undergo a surgical procedure on her neck, details of which have not been made available. She said that she was keen to pursue this recommendation. She said however that the insurer has not provided approval for the procedure."
3. It is unclear what Dr Noll meant when he said that details of the surgical procedure were not made available. As noted above, Dr Curtis' second letter provided details of the proposed surgery as follows: "[M]y recommendation would be a two level anterior discectomy, removal of osteophytes and fusion reduction procedure. This would be at C4/5 and the C5/6 levels".
4. Dr Noll did not express any opinion as to whether such surgery might result in some improvement in the plaintiff's condition. He did not say whether such surgery was appropriate and, if it was not, why it was inappropriate.
5. One significant criterion is provided in paragraph 1.15 of the NSW Workers Compensation Guides to the Evaluation of Permanent Impairment (4th Edition): "Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum improvement. This is considered to occur when the worker's condition is well stabilised and unlikely to change substantially without or without medical treatment."
6. The Appeal Panel held that Dr Boyce was wrong in diagnosing radiculopathy and the first defendant submits that it is implicit that the Appeal Panel was satisfied that the impairment was capable of assessment at that time. This meant the assessment of the plaintiff's WPI (by reference to AMA 5, Table 15.5) fell into a different category than that stated by Dr Boyce.
7. However, either successful or unsuccessful surgical intervention was capable of affecting a decision as to whether the plaintiff had reached maximum medical improvement and was relevant to an assessment of her degree of impairment according to the AMA 5 tables and guidelines. [6]
8. In the process of evaluation, "if the medical assessor considers that the claimant's treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment." [7] In contrast, clause 4.8 provides that "[p]ossible influence of future treatment should not form part of the impairment assessment." [8] To this extent, the adequacy of treatment and suitability for surgery might inform the assessment by the AMS. It may be that the proposed surgery was not causally related to the 2006 injury. However, based on the reasons of the Appeal Panel, this is purely speculative because this issue was not addressed.
9. The decision of the Appeal Panel is dated 26 June 2017. It annexed the report of Dr Noll and essentially adopted his findings. It accepted the first defendant's submission that the AMS (ie Dr Boyce) fell into demonstrable error in his assessment of the injury to the cervical spine and failed to provide adequate reasons for the finding concerning radiculopathy. It also accepted that Dr Boyce erred in failing to deduct for the extent of pre-existing impairment. These conclusions are not relevantly challenged in the plaintiff's summons or submissions. Accordingly, the Appeal Panel was authorised by s 328(5) of the WIM Act to revoke the MAC and issue a new certificate. The plaintiff now challenges the Appeal Panel's approach to issuing the new MAC.
10. The panel issued a new certificate relating to "injuries received after 1 January 2002". It assessed the WPI for the cervical spine at 7%. It allowed a "10/10" reduction to the WPI for the left upper extremity (12%) and right upper extremity (10%), resulting in a WPI for both upper extremities of 0%.

The impact of the panel's decision and an analysis of its reasons

1. The new certificate issued by the Appeal Panel had the same legal effect as that issued by Dr Boyce. [9] The Appeal Panel was required to apply the same relevant criteria. In Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 Fagan J spoke of the impact of the revocation of an MAC: [10] "Revocation of Dr Anderson's Medical Assessment Certificate meant that all aspects of the application of the WorkCover Guides had to be brought to bear in order to produce a substitute certificate."
2. His Honour went on to say: [11] "Once a ground so raised by the appellant has been upheld by the Appeal Panel resulting in the revocation of the Medical Assessment Certificate, the whole matter of the assessment must be redone in order to provide the basis for generating a new certificate which will stand in the first one's stead."
3. The reduction of the plaintiff's WPI was particularly significant because of s 66(1) of the Workers Compensation Act 1987 (NSW) which provides: "66 ENTITLEMENT TO COMPENSATION FOR PERMANENT IMPAIRMENT (1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act. Note: No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less."
4. I have mentioned more than once that the nature of judicial review is limited and that the jurisdiction to determine the appeal against the decision of the AMS and, if necessary, to assess the level of the plaintiff's impairment resides with the Appeal Panel and not with this Court. To restate well settled law in the same terms as I employed in Woolworths Limited v Howarth: [12] "[I]t is not for this Court to conduct a merits review of the decision taken by the AMS. Not all factual or legal errors give rise to an appropriate case for judicial review. The Workers Compensation Scheme, and the legislative framework under which it operates, cast the responsibility of assessing the worker's WPI upon AMS and not on this Court. It is not appropriate to parse the language of the Certificate or to examine Dr Wong's reasons with a critical eye attuned to error: see, for example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272, Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 287. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272: When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints of judicial review. It was said that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker. The Court continued: 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error'. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin: 'The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.'"
5. Even so, there is some limit to the "beneficial construction" to be adopted by the Court reviewing the decisions of administrative tribunals such as the Appeal Panel. As Basten JA said in Campbelltown City Council v Vegan: [13] "More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel."
6. Once the Appeal Panel decided to quash the MAC issued by Dr Boyce, it was necessary, as Fagan J put it in Roads and Maritime Services v Rodger Wilson, that "all aspects of the … Guides had to be brought to bear in order to produce a substitute certificate." [14] This included clause 1.15 of the Workers Compensation Guidelines which provided that no assessment was to be undertaken unless the plaintiff's condition was "unlikely to improve and had reached maximum medical improvement." In light of the availability of the surgery proposed by Dr Curtis, a matter not adverted to by either Dr Noll or the Appeal Panel, one possible view of the facts was that the plaintiff's condition may have improved. It is difficult to perceive of any reason that Dr Curtis would propose the procedure unless it was likely to benefit the plaintiff. Of course, it may also have been that Dr Noll and/or the panel, having considered the nature of the procedure proposed and the plaintiff's condition, would have concluded that the surgery would not help and that the pre-requisite provided for in clause 1.15 was satisfied.
7. However, that was a conclusion that needed to be stated and explained, even if briefly. On the basis of Dr Noll's report and the reasons provided by the Appeal Panel, it is not possible to discern whether clause 1.15 was considered and, if it was, whether the Appeal Panel took into account the nature of the surgery proposed by Dr Curtis. As I have said, Dr Noll simply stated that the details of the proposed surgery were "not made available" and did not refer to the details provided in Dr Curtis' second report. It is unclear whether he was provided with the second report.
8. Further, as the plaintiff submits, there is nothing in the Appeal Panel's reasons to explain how it concluded at [44] that "the examination findings of Dr Noll gave the assessment of 7 per cent WPI for the cervical spine." This is the WPI given under "injuries received after 1 January 2002" as described in the Appeal Panel's re-issued MAC. However, Dr Noll's report, which is incorporated at pp 9-11 of the statement of reasons, does not identify any percentage of WPI. It sets out the clinical findings and other relevant matters but does not proceed to analyse the plaintiff's WPI.
9. It is true, as the first defendant submits, that there was evidence capable of supporting the approach taken by the panel. In particular, the defendant sets out the "methodology" by which the Guidelines and relevant tables might result in the figure settled on by the Appeal Panel. However, no such analysis is contained in either Dr Noll's report or the Appeal Panel's Statement of Reasons. Further, there was evidence going the other way including the opinions of Dr Boyce and Dr Curtis and the consistent history of the plaintiff. Why the panel adopted the approach of Dr Noll was not adequately explained.
10. For those reasons, I am satisfied that the orders of the kind sought in the summons should be made. Accordingly, I make the following orders: 1. Quash the decision of the Medical Appeal Panel dated 26 June 2017. 2. Remit the matter to the Registrar of the Workers Compensation Commission for referral to a differently constituted panel to determine according to law the appeal under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). 3. The first defendant is to pay the plaintiff's costs.

Endnotes

1. Workers Compensation Act 1987, s 66(1A).
2. See, for example, the plaintiff's initial statement made in an interview dated 9 March 2010.
3. Workplace Injury Management and Workers Compensation Act 1998 (NSW). The relevant definition section at this point in time is s 319 but the legislation has been subject to a number of amendments since the plaintiff suffered her injury.
4. See Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 323.
5. The parties referred to Dr Nigel Curtis but the reports bear the name Dr Jonathan Curtis.
6. American Medical Association Guides to the Evaluation of Permanent Impairment, (5th Edition), Table 15.5.
7. NSW Workers Compensation Guides to the Evaluation of Permanent Impairment (4th Edition), 1.16.
8. NSW Workers Compensation Guides to the Evaluation of Permanent Impairment (4th Edition), 4.8.
9. Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 326 and 328(5).
10. Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 at [27].
11. Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 at [29].
12. Woolworths Limited v Michelle Howarth [2015] NSWSC 1624 at [48].
13. Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 at [121].
14. Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 at [27]. 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: 30 October 2018