INGHAMS ENTERPRISES v IOGHA & Ors

Supreme Court of NSW|2005-11-22|Before: Latham J, Commission J, Enterprises P

CITATION : INGHAMS ENTERPRISES v IOGHA & Ors [2006] NSWSC 456

DECISION : The amended summons is dismissed; Plaintiff to pay the first defendant's costs; No order for costs in relation to the sixth defendant.

CATCHWORDS : Administrative law - Judicial review - Whether Registrar and Appeal Panel exercise judicial power under Workplace Injury Management and Workers Compensation Act 1998 - Obligation to provide reasons - Whether decisions of Registrar and Appeal Panel were illogical, irrational

LEGISLATION CITED : Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998

Campbelltown City Council v Vegan [2004] NSWSC 1129 Public Service Board of New South Wales v Osmond (1985) 159 CLR 656 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors. [2005] NSWSC 1260 Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954 Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Ltd & Ors. [2006] NSWSC 235 Orellana-Fuentes v Standard Knitting Mills Pty Ltd & Anor. (2003) 57 NSWLR 282 at 290 ; [2003] NSWCA 146 Carey v Blasdom Pty Ltd T/As Ascot Freightlines (2003) 57 NSWLR 282 at 290 ; [2003] NSWCA 146 R v Trade Practices Tribunal ; Ex Parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 Bass v Permanent Trustee Co. Ltd. [1999] HCA 9 CASES CITED : Attorney General of NSW & Anor. v Kennedy Miller Television Pty Ltd. (1998) 43 NSWLR 729 Passey v The Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1032 Annetts v McCann (1990) 170 CLR 596 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Anderson Stuart & Ors. v Trevleaven (2000) 9 NSWLR 88 Minister for Immigration and Multi-Cultural Affairs ; Ex Parte Applicant S 20/2002 (2003) 198 ALR 59 ; (2003) 77 ALJR 1165 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Medical Assessment Panel ; ex Parte Symons [2003] WASC 154 Narula ; ex Parte Atanasoski [2003] WASCA 156 Croser ; ex Parte Rutherford [2003] WASCA 8

Inghams Enterprises Pty Ltd (Plaintiff) Diane Allison Iogha (First Defendant) Bruce McManamey (Second Defendant) PARTIES : Dr Edward Korbel (Third Defendant) Dr Kenneth Hume (Fourth Defendant) The Registrar of the Workers Compensation Commission (Fifth Defendant) Workcover Authority of New South Wales (Sixth Defendant)

Mr JB Simpkins SC with Mr DG Saul (Plaintiff) COUNSEL : Mr C Jackson (1st Defendant) Ms M Allars (6th Defendant)

Lucas and Staggs (Plaintiff) SOLICITORS : PK Simpson & Co. (1st Defendant) I.V. Knight (6th Defendant)

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

INGHAMS ENTERPRISES P/L v DIANE ALLISON IOGHA & BRUCE McMANAMEY & ORS. & THE REGISTRAR, WORKERS COMPENSATION COMMISSION NSW

1 HER HONOUR: By an amended summons filed 8 August 2005, the plaintiff (the employer of the first defendant) seeks judicial review of a decision taken by the Registrar of the Workers Compensation Commission to allow a medical assessment, which was unfavourable to the first defendant, to proceed to an appeal. The Registrar gave no reasons for that decision. The plaintiff also seeks judicial review of the decision of the appeal panel, which overturned that medical assessment and substituted a fresh assessment in the first defendant's favour. The appeal panel provided its reasons in a report. 2 The summons seeks declarations that the decisions of the Registrar and the appeal panel involved error on the face of the record and jurisdictional error. The latter error was identified primarily on the basis that the Registrar and the appeal panel failed to act rationally. The principal issues to be resolved are firstly, whether the Registrar was obliged to provide reasons and whether, if not so obliged, the decision was plainly illogical and unreasonable justifying, in either case, the quashing of the decision, and secondly, whether the appeal panel's reasons were so illogical and irrational that its decision ought be quashed.

Factual Framework 3 The first defendant, Diane Iogha, made a claim under the Workers Compensation Act 1987 in respect of various injuries to her back, neck, arms and right leg, said to have been sustained on particularised dates in the course of her employment with the plaintiff company. The plaintiff is self-insured. The plaintiff disputed the claim and denied liability on the basis of a report by Dr A Smith. Dr Smith found that Ms Iogha had symptomatic lumbar degenerative disease to which her employment was not a contributing factor. 4 In January 2003, Ms Iogha filed an application in the Workers Compensation Commission to resolve the dispute under s 288 of the Workplace Injury Management and Workers Compensation Act 1998 (the WIMWC Act). The dispute was a "medical dispute" within the meaning of s 319 in Pt 7 of the WIMWC Act. The Registrar of the Commission referred the dispute for a medical assessment under s 321 of the WIMWC Act.

5 Dr John Cummine (the Approved Medical Specialist or AMS) conducted that assessment and issued a Medical Assessment Certificate (MAC) under section 325 of the WIMWC Act on 25 November 2003. Dr Cummine made a finding of "non-specific musculoskeletal ache, possibly aggravating underlying pre-existing constitutional degeneration." He was unable to make a finding to support permanent impairment as a result of Ms Iogha's employment. In the view of Dr Cummine, Ms Iogha's employment caused only a temporary aggravation to her back, neck, arms and right leg.

6 Dr Cummine assessed Ms Iogha as having 0% permanent loss of efficient use or impairment in respect of all of the claimed injuries. The reasons provided in the MAC were that there was no "firm or objective evidence" and no "convincing evidence" that the degenerative condition in the spine had been aggravated and accelerated by her employment, as opposed to the passage of time. Further, Dr Cummine stated "I have not been able to find any specific pathology that could be directly related to one incident or an accumulation of incidents".

7 On 18 December 2003 Ms Iogha lodged an application with the Registrar seeking an appeal under s 327 of the WIMWC Act against the decision of the AMS. The nominated grounds of the appeal were those that correspond to s 327(3)(c) and (d) of the WIMWC Act, namely, that the medical assessment was made on the basis of incorrect criteria and that the MAC contains a demonstrable error. The submissions advanced on Ms Iogha's behalf included : -- (a) Dr Cummine made his determination on whether he could establish the existence of an injury with scientific certainty, rather than the civil standard of proof ; (b) The objective evidence and findings on clinical examination are inconsistent with the AMS's conclusion that she did not suffer an "injury" ; (c) Dr Cummine should have asked himself whether the injuries were in the nature of an aggravation of a disease ; (d) Dr Cummine adopted a prejudicial attitude towards the claimant. 8 The Registrar permitted the appeal to proceed to the Medical Appeal Panel (MAP) for a determination under s 328 of the WIMWC Act. The Registrar did not provide any reasons. 9 On 17 August 2004, Dr Hume, an AMS and a member of the MAP, examined Ms Iogha and reported to the MAP that there was no clinical evidence to support the claim for such severe widespread symptoms. He did not consider there was any evidence to support a claim that Dr Cummine made an assessment on incorrect criteria or that there was any demonstrable error in Dr Cummine's report.

10 Following the receipt of further submissions from Ms Iogha's representatives (who took issue with Dr Hume's report), the MAP issued a new MAC on 21 September 2004, which replaced the MAC of Dr Cummine. The new MAC assessed Ms Iogha as having 5% total permanent loss of efficient use or impairment attributable to the injury to her neck, 10% in respect of her back, 5% in respect of her right arm at or above the elbow, and 5% in respect of the left arm at or above the elbow. 11 The MAP (constituted by two approved medical specialists, one of whom was Dr Hume, and an arbitrator) provided reasons for its decision in a report. The report referred to the Registrar's decision and to Ms Iogha's arguments. The MAP found it unnecessary to decide whether Dr Cummine had applied the wrong standard of proof as to the existence of an injury. It did, however, find that Dr Cummine had misconceived his role, in that he was obliged to assume that the injury existed on the identified dates of the claim. The MAP held that an injury may consist of an increase in symptoms with underlying pathological change and that there was an underlying pathology in Ms Iogha's case, resulting in some minimal permanent impairment. The MAP explicitly relied upon the findings of Dr Hume, together with the reports of other doctors, in order to conclude that there was some permanent impairment attributable solely to aggravation. Consistent with that finding, the MAP's new MAC assessed the permanent impairment due to the pre-existing condition at 0%.

The Submissions 12 The plaintiff's argument may be summarised by the following propositions:- (i) The determination of the degree of impairment from an injury, that is, the medical assessment process, is capable of directly affecting common-law rights. It is therefore a quasi-judicial function, not an administrative one. (ii) Both the Registrar and the MAP were carrying out a quasi-judicial function, the former as the "gatekeeper" to a reconsideration of the workers medical condition, and the latter as the body engaged in that reconsideration. (iii) Both the Registrar and the MAP were therefore obliged to give reasons. To the extent that Campbelltown City Council v Vegan [2004] NSWSC 1129 decided otherwise, that decision did not determine the nature of the function exercised by the MAP. In any event, the provision of reasons by the MAP in this case allows the plaintiff to attack them as illogical. (iv) If the Registrar was not acting judicially, there was nevertheless an obligation to give reasons, arising out of the nature of the Registrar's power and the requirements of natural justice and procedural fairness. (v) Alternatively the Registrar's decision that the AMS had failed to treat the aggravation of a disease as an injury, was illogical. 13 The first and sixth defendants take issue with all of these propositions. The second, third, fourth and fifth defendants filed submitting appearances.

14 The submissions advanced by the defendants essentially refute the plaintiff's characterisation of the Registrar's powers under s327 of the WIMWC Act as quasi-judicial, relying upon Vegan. It is further submitted that there is no statutory requirement to give reasons and therefore no common law duty to provide reasons, a fortiori where there is no appeal from the decision of the Registrar; Public Service Board of New South Wales v Osmond (1985) 159 CLR 656.

15 The defendants maintain that nothing in the Registrar's decision or the MAP's reasons disclose overwhelming illogicality; rather the plaintiff merely disagrees, albeit strongly, with the decisions taken. In addition, it is said that the plaintiff's submissions concerning the duty of the MAP to provide reasons are contrary to Vegan.

Was the Registrar Obliged to Give Reasons ? 16 The obligation to give reasons is an incident of the exercise of judicial power. There is no general rule of the common law or principle of natural justice that requires reasons to be given for administrative decisions. However, in special circumstances the rules of natural justice may require the provision of reasons in the exercise of administrative power, where a person's rights and legitimate expectations may be adversely affected ; Public Service Board NSW v Osmond. I turn to a consideration of the nature of the Registrar's power under s 327 of the Act.

17 In my view, the structure of the WIMWC Act, the terms of section 327 and the decisions of this Court interpreting the relevant provisions militate against the proposition that the Registrar exercises judicial power under s 327. Whatever the merits of the submission that the medical assessment process is capable of directly affecting common law rights (as to which, see par 29 below), that is a function of the MAP. The Registrar plays no role in that process, beyond removing the barrier to an appeal, or in effect, granting leave to appeal. There is no appeal from the Registrar's decision under the Act. 18 In Campbelltown City Council v Vegan [2004] NSWSC 1129, Wood CJ at CL reviewed the statutory framework of the Act ([22]-[23]) and the principles applicable to judicial review of administrative decisions ([37] - [45]). Vegan was only concerned with the sufficiency of reasons provided by the MAP and it appears to have been accepted that the MAP's role was administrative. However, Wood CJ at CL accepted the submission there advanced that the proper construction of s 327 assigns to the Registrar the role of "gatekeeper" whose task is to consider whether at least one of the grounds specified in s 327(3) exists, and "if it appears to the Registrar that this is the case", then the appeal proceeds. His Honour remarked that this construction is "consistent with the legislative policy of placing a tight control on appeals, and of confining the grounds for them." [76] 19 Since Vegan, a number of decisions of this Court have considered s 327 of the Act and the role of the Registrar. In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors. [2005] NSWSC 1260, Hislop J followed Vegan and Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954 in holding that the application under s 327 is in the nature of an application for leave to appeal. Relevantly, Assoc. Justice Malpass in the latter case rejected a submission that the Registrar's power under s 327 was a discretionary one, and that the Registrar was required to determine whether or not it appeared that there was an arguable specified ground of appeal. It was sufficient if the Registrar determined that a ground of appeal existed. In Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Ltd & Ors. [2006] NSWSC 235, Studdert J reviewed these decisions in the course of rejecting the plaintiff's argument that there was no available basis for the Registrar to have found a ground of appeal (a submission advanced by the plaintiff in the present case). Studdert J placed particular emphasis on the subjective language of s 327(4), that is, "unless it appears to the Registrar". This construction was intended to discourage appellate review. Moreover, even if the Registrar is wrong in concluding that there is an available ground of appeal, that does not invalidate the appeal. 20 The fact that the Commission is not a court does not determine whether the Registrar exercises judicial power ; Orellana-Fuentes v Standard Knitting Mills Pty Ltd & Anor. ; Carey v Blasdom Pty Ltd T/As Ascot Freightlines (2003) 57 NSWLR 282 at 290 ; [2003] NSWCA 146 at [39]. However, in carrying out the function envisaged by s 327, the Registrar is not engaged in "an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined" ; R v Trade Practices Tribunal ; Ex Parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 per Kitto J. This description of the exercise of judicial power was cited with approval in Bass v Permanent Trustee Co. Ltd. [1999] HCA 9 at [45]. Nor does the Registrar play any role when exercising power under s 327 in determining the legal rights and duties of parties ; Attorney General of NSW & Anor. v Kennedy Miller Television Pty Ltd. (1998) 43 NSWLR 729 per Handley JA at 739. 21 It remains to consider whether there are special or exceptional circumstances in this case that impose upon the Registrar an obligation to give reasons in conformity with the requirements of procedural fairness. Such an obligation has been held to arise where the statutory scheme in question provides for an appeal on a matter of law and leave to appeal generally ; Attorney General of NSW & Anor. v Kennedy Miller Television Pty Ltd. That is not the case here. Not only is there no appeal from the Registrar's decision, but the unqualified right to a re-hearing de novo before the MAP renders the reasons for the Registrar's decision immaterial ; Vegan at [80] ; Passey v The Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1032.

22 The authorities that insist upon procedural fairness where the conduct of administrative proceedings in a Tribunal or Commission may destroy, defeat or prejudice a person's rights, interests or legitimate expectations (Annetts v McCann (1990) 170 CLR 596 ; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 ; Anderson Stuart & Ors. v Trevleaven (2000) 9 NSWLR 88) are of limited assistance in a consideration of the duty to provide reasons. Those cases are readily distinguishable on the basis that the rules of natural justice have always recognised that a person against whom an adverse finding might be made has a right to be heard before a tribunal or court. In any event, as Ainsworth makes clear, "what is decisive is the nature of the power, not the character of the proceeding which attends its exercise". (at 576) The Registrar's power under s 327 is of a very limited and restricted kind, however one might characterise the proceedings before the MAP. In these circumstances, I am not persuaded that procedural fairness dictated the provision of reasons by the Registrar.

Was the Registrar's Decision Illogical or Irrational ? 23 The plaintiff must establish that the Registrar's decision to allow the appeal to proceed was based on factual determinations which were "illogical, irrational or lacking a basis in findings or inferences of facts supported on logical grounds". This is the appropriate test where the relevant statutory function calls for a state of satisfaction on the part of the Registrar, that is, a state of satisfaction that one of the grounds under s 327(3) exists ; Re Minister for Immigration and Multi-Cultural Affairs ; Ex Parte Applicant S 20/2002 (2003) 198 ALR 59 ; (2003) 77 ALJR 1165. See also Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [59]. 24 The plaintiff argues that, in the absence of reasons, the only available inference is that the Registrar acted on the basis that one or more of the submissions advanced by Ms Iogha was capable of establishing the existence of a ground of appeal under s 327(3). Further, the submission that the AMS erred in disregarding the fact that an "injury" was in the nature of an aggravation of a disease, entirely missed the point ; the AMS found no permanent impairment, whatever the nature of the injury. Next it is said that the submission regarding the application of the wrong standard of proof was "misconceived and rightly rejected by the Appeal Panel".

25 I doubt whether one can conclusively infer that the Registrar acted on the basis of Ms Iogha's submissions, nor was it submitted that the Registrar was bound to find a ground of appeal from those submissions and from no other source. What is clear is that a party may only appeal in respect of (relevantly under s 327(2) and (3)) :- (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality (c) ……………… (d) whether impairment is permanent (e) whether the degree of permanent impairment is fully ascertainable and only on the grounds (relevantly) that :- (a) ……………… (b) ……………… (c) the assessment was made on the basis of incorrect criteria, or (d) the medical assessment certificate contains a demonstrable error. 26 Given Dr Cummine's findings, it would appear that Ms Iogha's appeal was restricted to the issue of whether the impairment was permanent, as opposed to temporary, and whether that assessment was made on the basis of incorrect criteria or the certificate contained a demonstrable error in that regard. Section 327(2)(a), (b) and (e) assume that the MAC discloses permanent impairment. All of Ms Iogha's submissions in the application to appeal concentrated on alleged failures by the AMS to apply the correct criteria in respect of the existence of an "injury", but for one written submission to the effect that "permanent" did not mean "forever". In other words, accepting that an aggravation of an existing "disease" is capable of constituting an injury and that the AMS need only be satisfied on the balance of probabilities that such an injury had been sustained, the finding of temporary impairment nonetheless defeated Ms Iogha's claim. The submissions advanced on her behalf, and presumably considered by the Registrar, largely failed to come to grips with this issue.

27 However, that does not, in my view, lead inexorably to the result that the Registrar has acted irrationally. As Studdert J observed in Brockmann, the language of s 327(4) is entirely subjective. There is no basis for concluding that it did not appear to the Registrar that the AMS erred in his assessment of Ms Iogha's impairment as temporary. There is no basis for restricting the Registrar's function under s 327(4) to a consideration of an appellant's submissions. The plaintiff has not discharged the weighty onus referred to by the Court of Appeal in Bragg . I would not be prepared to find that the Registrar's decision under s 327 was illogical or irrational. In so far as the summons seeks a declaration that there is error on the face of the record, the absence of reasons from the Registrar precludes a finding to that effect. The Nature of the Power Exercised by the MAP

28 The plaintiff places considerable reliance upon a decision of the West Australian Supreme Court in Re Medical Assessment Panel ; ex Parte Symons [2003] WASC 154 in support of the argument that the MAP exercises judicial power. Justice Heenan's view in that case was that a determination which directly affects, and may deny or restrict, the common law rights of a worker to bring an action for damages "should not … be described as an administrative decision. The decision may not be a decision of a court but the members of the Panel have a duty to act judicially." [at 49] To similar effect are the comments of Ipp JA in Orellana-Fuentes at 292 : "The medical specialists [under the NSW system] are given far-reaching decision-making powers of a fundamentally judicial nature."

29 Some caution should be exercised when seeking to rely upon decisions in another jurisdiction with a similar, but not identical, statutory scheme. References to a Panel in the West Australian cases embrace both a Medical Assessment Panel, which does have a statutory obligation to provide reasons, and a Medical Panel, which has no corresponding obligation. There are significant differences between the roles of each ; the Medical Assessment Panel's jurisdiction is entirely separate from that of the Medical Panel (see Symons at [46]). The latter can only consider and determine the particular question referred (arising out of a dispute relating to the disability), and its determination is conclusive and binding. The Medical Assessment Panel is the primary decision maker, that is, equivalent to the AMS in NSW ; see Vegan at [91]. The MAP enjoys a far wider remit than the Medical Panel under the West Australian system. Justice Heenan J's comments set out above were directed to the Medical Panel and should be interpreted in that light.

30 Similarly, Ipp JA's comments in Orellana-Fuentes were made in the context of a general discussion of the role played by medical specialists in the system as a whole. The critical issue in that case was whether the Commission was a court. I would be reluctant to assume that Ipp JA meant to assert that medical specialists exercised judicial powers at every stage of their involvement in the scheme established by the Act.

31 Wood CJ at CL in Vegan took account of two decisions of the full court of the Supreme Court of WA, namely, Re Narula ; ex Parte Atanasoski [2003] WASCA 156 ; Re Croser ; ex Parte Rutherford [2003] WASCA 8. They were decided solely on the basis that where there was a statutory obligation to provide reasons, those reasons must be adequate.

32 It is true, as the plaintiff has submitted, that Vegan did not directly deal with the nature of the power exercised by the MAP, although in rejecting the contention that the MAP was under an obligation to give reasons, it should be inferred that the Court was not satisfied that the power was judicial in nature. Wood CJ at CL accepted that "the position is far from clear" [99]. No reference was made to Orellana-Fuentes in Vegan. The Court of Appeal may provide clarification in the near future. For the present, this Court has consistently followed Vegan and I see no reason to depart from it. I cannot accept that Wood CJ at CL disregarded the nature of the power exercised by the MAP when determining whether it was under an obligation to provide reasons for its decisions.

33 As in Vegan, the MAP did provide reasons in the instant case. It remains to consider whether those reasons disclose irrationality or illogicality of the order required to warrant the quashing of the MAP's findings. Was the MAP's Decision Illogical or Irrational ?

34 Some detailed reference to the reasons of the MAP is warranted. Leaving to one side the discussion by the MAP of the onus of proof, the substance of the Panel's conclusion appears at pars 27 to 30 of its reasons in the following terms :- Having considered the entirety of the MAC the Panel concludes that the AMS equated injury with a demonstrable change in pathology. ……. It is well established for the purposes of the Workers Compensation Acts an injury can exist where there has merely been an increase in symptoms without any underlying pathological change. See Federal Broom v Semlitch [1964] ALR 1031. It is clear to the Panel that the AMS did not turn his mind to the question of whether there had been a symptomatic aggravation of the underlying degenerative condition in the neck and back. In the Panel's opinion the AMS has misconceived his role in any event. The matter was referred to him to make an assessment of the permanent impairment and permanent loss of efficient use of various body parts. The referral identified the dates of injury. The AMS was not asked to express an opinion whether or not the appellant had suffered injuries. His task was to make an assessment of the impairments and losses of use suffered by the appellant on the assumption that those injuries exist. It is for an Arbitrator to determine the question of causation. The examination findings of the AMS disclosed restrictions in the neck and back which were consistent with the underlying pathology. There were signs in the form of the positive Tinel's sign supported by nerve conduction studies which lead to a diagnosis of carpel tunnel syndrome. Those findings should have lead to a conclusion that there was some permanent impairment of the neck, permanent impairment of the back and permanent loss of efficient use of each arm. The fact that the AMS certified that there was no permanent impairment or loss of efficient use, however caused, confirms that the AMS misconceived his role and fell into demonstrable error." (emphasis added)

35 This part of the Panel's reasons confirms that, in spite of the thrust of Ms Iogha's submissions on the appeal and consistent with the Panel's capacity to conduct a fresh hearing of the matter, the demonstrable error identified by the Panel lay in the failure by the AMS to find permanent impairment, notwithstanding that on examination Ms Iogha exhibited restrictions in the neck, back and arms. The preoccupation by the AMS with the issue of causation in effect diverted him from the statutory function with which Part 7 of the WIMWC Act is concerned, namely the assessment of permanent impairment. Thus far, I see no basis for concluding that the Panel made factual determinations which were illogical, irrational or lacking a basis in findings or inferences of facts supported on logical grounds.

36 The Panel's next step appears on its face somewhat curious. The Panel "considered the examination findings of the various doctors and [was] particularly guided by the findings of Dr Hume. The Panel [was] satisfied that an assessment should be made for permanent impairment of the back and permanent impairment of the neck on the basis of there being an aggravation of an underlying degenerative disease." (par 31) The Panel found that the level of that impairment was minimal, and that there was minimal loss of efficient use of each arm arising out of carpel tunnel syndrome. The Panel declined to find any impairment in respect of the right leg. The new MAC assessed permanent impairment of the neck at 5%, permanent impairment of the back at 10% and permanent impairment of each arm at 5%.

37 Dr. Hume's report of 17 August 2004 is significant in this respect. The Panel had requested Dr. Hume to carry out an examination of Ms Iogha as an AMS because Dr Cummine "had not made any assessment of the level of impairment or loss of use suffered by the Appellant." (par 8 of MAP's reasons) As a result of Dr. Hume's examination of Ms Iogha on 13 July 2004, he found that "the episodes of severe pain which occurred at work in March 2001 and January 2002 are unlikely to have caused more than temporary aggravation of underlying and long standing disc degeneration in the cervical and lumbar spine." This statement suggests that Dr Hume would also rule out any level of permanent impairment in respect of the back, although on examination, "flexion of the lumbar spine was restricted with the finger tips reaching to the knees." As far as the neck was concerned, the examination disclosed rotation to two-thirds of the normal range. In respect of the arms, there is nothing in Dr Hume's report which points to any level of impairment. In summary, Dr Hume could not find "any clinical evidence to support Ms Iogha's claim for such severe, widespread symptoms which she [said had] become worse since she ceased work two and a half years before [he] saw her." Further, Dr Hume found no evidence to support the claim that Dr Cummine had made an assessment on incorrect criteria or that there was any demonstrable error in Dr Cummine's report.

38 It may appear difficult to reconcile Dr Hume's report with the statement by the Panel (of which Dr Hume was a member) that they were "particularly guided" by it in arriving at the conclusion that Ms Iogha suffered a minimal degree of permanent impairment of the back, neck and arms. It may be that Dr Hume's report is not inconsistent with a finding of minimal permanent impairment of the back and neck, when taken together with the findings of other doctors whose reports were before the Panel. However, nothing in Dr Hume's report could support a finding of permanent impairment of the arms. As to that, the Panel specifically relied upon the positive Tinel's signs "supported by nerve conduction studies" which Dr Cummine noted.

39 There was material before the MAP which supported a finding of permanent impairment. Dr Price assessed Ms Iogha's permanent back impairment at 5%. He also assessed her neck as permanently impaired by 10%, of which 5% related to her degenerative disease. Ms Iogha's arms were assessed by Dr Price as 5% permanently impaired. Dr Stenning assessed permanent impairment of the back at 20%, permanent impairment of the neck at 24%, permanent impairment of the left arm at 20% and permanent impairment of the right arm at 17%.

40 In the result, I am not satisfied that these conclusions were not open to the MAP. It is not to the point that the reasons contain seemingly contradictory statements, or that the reasons failed to articulate in what specific respect the Panel was guided by Dr Hume's report. The reasons are not so irrational or lacking a basis on logical grounds that intervention by this Court is justified. The distinction between judicial review of administrative decisions and merits review is a relevant one in the circumstances of this case : see Greyhound Racing Authority (NSW) v Bragg. The plaintiff's argument substantially invites the Court to engage in merits review.

41 There is no error on the face of the record or jurisdictional error. The amended summons is dismissed. I make an order that the plaintiff pay the first defendant's costs. I make no order for costs in relation to the sixth defendant.

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.

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