This application for judicial review is founded upon the submission that, in a medical assessment certificate of 24 July 2013 (the certificate), Dr John Beer, a doctor who was assessing the degree of whole person impairment (WPI) suffered by Mr Miroslav Ivaneza (the plaintiff), failed to provide adequate reasons, thereby committing an error of law. I shall refer to Dr Beer in this judgment as "the decision maker".
The background may be shortly stated. On 8 November 2011, the plaintiff was working at a building site as a carpenter and labourer. The first defendant was his employer. In attempting to remove a bolt from a wall, he suffered injuries to his cervical spine (neck), lumbar spine (lower back) and left upper extremity (left shoulder).
There was no dispute that that event brought the plaintiff within the operation of the Workplace Injury Management Act 1998 (NSW) ("the Injury Management Act") and the Workers Compensation Act 1998 (NSW).
Because a medical dispute (as defined in s 319 of the Injury Management Act) between the parties was notified to the Worker's Compensation Commission of NSW (the second defendant) in June 2013, the plaintiff was referred for assessment by the decision maker, pursuant to s 321 of the Injury Management Act. That assessment led in due course to the creation of the certificate that underpins the application.
Relevant aspects of the impugned reasons
The certificate extends over 14 pages, although a fair proportion of that consists of tables and calculations.
It may be summarised as follows: a statement of the question requiring determination by the decision maker; a review of the documents supplied to him; a summary of the interview (aided by an interpreter) between the plaintiff and the decision maker; a history given by the plaintiff of the circumstances surrounding the accident, and a relevant medical history; the physical findings on examination; a review of prior examinations and treatments of the plaintiff; an evaluation of the level of WPI; and, finally, the reasons for that assessment, including the tables and calculations to which I have referred.
As I have said, the certificate does not relate only to the left shoulder: it refers to two other parts of the body of the plaintiff, with the result that the ultimate determination of the decision maker that the plaintiff suffered WPI of 5% is a synthesis of three separate analyses.
The following specific parts of the certificate are relevant to the issue before me.
First, the certificate records that the plaintiff provided the following history about his shoulders:
Details of any previous or subsequent accidents, injuries or condition:
He has had no past injury to his back, neck, or shoulder/arm before.
He has not seen a doctor before about any particular injury, he relates, as he has always been in fit condition.
Secondly, with regard to his general health, the certificate records that the plaintiff told the decision maker:
General health:
He has no history of diabetes.
He has some hypertension and is under the care of Dr Tomka.
Thirdly, on physical examination of the shoulder the decision maker found:
There is minimal wasting of the infraspinatus [the muscle of the shoulder blade] of the left shoulder. There is no wasting of the deltoid [the muscle of the outer edge of the shoulder].
Fourthly, the following table then appears:
Shoulder Joint Movements
Right Left
Forward flexion 130° 70°
Extension 50° 35°
Abduction 130° 75°
Adduction 15° 5°
Internal rotation 90° 90°
External rotation 90° 70°
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Fifthly, later in the certificate, a further table appears that is impractical to reproduce in this judgment. Suffice to say it comprises a comparison of the range of motion of the left and right shoulders of the plaintiff. It also provides a calculation of impairment of each shoulder. Some of the entries pertaining to the right shoulder show a very slight degree of impairment. A number of the entries pertaining to the left shoulder show a greater degree of impairment.
Sixthly and finally, the following appears at p 13 of the certificate:
Figure 16-1b Upper Extremity Impairment Evaluation Record-Part 2 (Wrist, elbow and shoulder)
In comparison of right with left ROM [range of motion] Page 453 AMA guides to Permanent Impairment 5th Ed 'It is most important to always compare measurements of the relevant joint(s) in both extremities'. Also 'If a contralateral "normal" joint has a less than average mobility, the impairment value(s) corresponding to the uninvolved joint can serve as a baseline and are subtracted from the calculated impairment for the involved joint.
Submissions of the plaintiff
As can be seen from the summons for judicial review of the plaintiff filed on 30 June 2016, the relief sought by senior counsel for the plaintiff was:
A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the medical assessment certificate and the statement of reasons for decision of the third defendant and issued by the second defendant on 24 July 2013 is void and of no effect.
An order setting aside the medical assessment certificate and the statement of reasons for decision of the third and issued by the second defendant on 24 July 2013.
An order remitting the matter back to the second defendant for referral to an approved medical specialist to determine the matter according to law.
It was not disputed before me that s 376 of the Injury Management Act empowered the making of the WorkCover Guide for the Evaluation of Permanent Impairment, (3rd ed 2009, WorkCover NSW) at Ch 2 ("the WorkCover Guide"), and that that document can be understood as having the force of delegated legislation.
Nor was it disputed that the American Medical Association, Guides to the Evaluation of Permanent Impairment, (5th ed 2001, AMA) at Ch 5 ("the AMA Guide"), was relevantly "picked up" by the WorkCover Guide. The relevant portion of the AMA Guide is as follows:
The measurements reported in the impairment tables and pie charts reflect the accepted average active range(s) of motion for each joint. However, certain people can have either lesser or greater joint flexibility than average. It is therefore most important to always compare measurements of the relevant joint(s) in both extremities.
If a contralateral "normal" joint has a less than average mobility, the impairment value(s) corresponding to the uninvolved joint can serve as a baseline and are subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the report.
Senior counsel for the plaintiff submitted that, reading the certificate as a whole, the decision maker had failed to give adequate reasons. In particular, there was simply no explanation given as to why it was appropriate to compare the range of motion of the injured left shoulder with the range of motion of the uninjured right shoulder.
It was said that the task of comparison was not mandatory, but rather simply something that one may do in an effort to discern the "baseline" condition of the injured left shoulder before the injury occurred.
It was also submitted that it was necessary for the decision maker to reflect upon, and explain, the many variables that could impinge upon the validity of the comparison between the two shoulders of the plaintiff.
It was further submitted that the AMA Guide itself, in the portion that I have extracted, speaks of the desirability of providing a rationale for the comparison.
In short, it was said that the explanation of the reasoning underpinning the actions taken by the decision maker was so deficient as to constitute an error of law, with the result that the certificate must be set aside by me.
Finally, senior counsel relied upon what was said by Hamill J in Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216. He accepted that that decision related to an assessment pursuant to a different statutory regime, namely the Motor Accidents Compensation Act 1999 (NSW). But he submitted that the facts in that matter are so similar to the facts in this matter that the disposition by his Honour should carry great weight with me.
Submissions of the defendant
Counsel for the first defendant (to which I shall refer for convenience as "the defendant", the second and third defendants having entered submitting appearances), submitted that the orders sought should not be made. A number of discrete submissions were made in that regard.
First, she submitted that no error is demonstrated in the certificate. Referring to Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [25], she submitted that the reasons given were perfectly adequate. She also submitted that one should not read the AMA Guide, "picked up" by a guide that is itself in the nature of delegated legislation, as imposing some rigid or mandatory checklist. Rather, she submitted that the question is whether the certificate sets out the process of reasoning adopted by the medical expert in a way that is legally adequate, in that the process of reasoning whereby the decision maker came to his ultimate decision is set out with sufficient clarity for one to understand it.
Focussing on the specific question of the comparison of the two shoulders, she submitted that the reasons are adequate: they show that the plaintiff gave a history of no pre-existing injury or deficit to either shoulder; that the decision maker regarded it as appropriate in the circumstances to compare them; and that the comparison played a role in the determination of the impairment of the left shoulder, which in turn played a role in the ultimate assessment of WPI.
Separately, she submitted that, if I were to make any order, it would be futile, because as things stand there are simply no proceedings on foot with regard to which a further medical assessment could be undertaken. That is because the proceedings that led to the impugned medical assessment were settled as long ago as 31 October 2013, by way of a consent order pursuant to Pt 15.9 of the Workers Compensation Commission Rules 2011 (NSW), which resulted in the defendant paying the plaintiff a lump sum of $15,400. In short, there being no proceedings currently on foot, she submitted that I could not and should not order a further medical assessment.
Thirdly, she submitted that, even if I were satisfied that an error of law is shown in the certificate of the decision maker and that the order sought would not be futile, nevertheless discretionary matters argue against judicial review. That is because, it was said, the plaintiff has not exhausted all of his statutory rights of appeal.
It was also submitted that, even accepting that, for a time, the law with regard to the system of workers compensation in New South Wales was in a state of flux, nevertheless the approach of the plaintiff has featured too much delay. She submitted that her client would be prejudiced by the re-opening of a dispute that was settled well over three years ago.
Finally, counsel submitted that, if I were against the defendant on all of the foregoing, the appropriate order would be for the matter to be remitted to the decision maker, with a direction that more fulsome reasons be provided, rather than the ordering of a further assessment.
Determination
Turning to my determination, I shall deal first with the basal assertion that the reasons given by the decision maker are legally inadequate. As against the possibility that I am wrong about that, I shall then turn briefly, as an ancillary matter, to the question of my ability to order a further assessment. Finally, as against the possibility that I am wrong about both of those issues, I shall turn very briefly to the further ancillary question of whether I should refuse relief as a matter of discretion.
Primary Analysis
As for the primary issue, I do not accept that the certificate of the decision maker of 24 July 2013 demonstrates the lesser attribute of an error of law on the face of the record (as the latter concept is defined by s 69 of the Supreme Court Act 1970 (NSW)). It follows from that finding that I do not consider that it demonstrates the greater attribute of jurisdictional error.
I say that because I regard the reasons provided as complying with the test set out in Wingfoot Australia Partners Pty Ltd v Kocak, at [65]; namely, that they: "must explain the actual process of reasoning by which the [decision maker] in fact formed [his] opinion and must do so in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law." That view of mine is based on the following factors.
First, the decision maker recorded the history given by the plaintiff that, prior to the incident, he had suffered no injury or deficit with regard to either of his shoulders. That history appears explicitly in the certificate. And it means that, as a basic starting point, the pre-existing range of motion of the right shoulder could provide something of a baseline with regard to the range of movement of the left shoulder before the incident.
Certainly, if there had been a history given of differentiation between the state of health or functioning of the two shoulders before the accident, or no history recorded about the topic at all, the analysis would have been inappositely bereft of reasoning. But I regard the receipt and recording of that history from the plaintiff as an important part of the reasoning of the decision maker about his approach to the assessment of the injured shoulder.
Secondly, the decision maker has fairly quoted from the AMA Guide that is "picked up" by the WorkCover Guide. In other words, the decision maker has set out the idea behind the comparison of the range of movement of the injured left shoulder with the "contralateral" uninjured right shoulder; namely, to obtain something of a baseline of the pre-injury functioning of the injured shoulder. In other words, the decision maker has set out his knowledge of what he was called upon to do, and his understanding of why he was called upon to do it.
Thirdly, as a matter of common sense, in order to determine overall pre-existing function prior to an injury, it is surely appropriate (other things being generally equal) to compare one shoulder to another. That is precisely what the AMA Guide suggests, and what the decision maker did. In other words, the reasoning behind the analysis undertaken is hardly complicated or counter-intuitive; it does not call for detailed explanation.
Fourthly, in light of the history that neither shoulder had suffered from pre-existing injury, disease, or other adverse condition, there were no extraneous factors that needed to be factored into determining whether to undertake the comparison. Furthermore, the decision maker recorded more than once in the certificate that the plaintiff is right hand dominant. I do not consider that the decision maker was required to embark upon an analysis of the role (if any) that that fact could play in the process of comparison; one can readily infer from the certificate that, in the opinion of the decision maker, it played none.
Fifthly, it is to be recalled that the paragraph upon which reliance is explicitly placed is to be found in the AMA Guide. That document is in turn picked up by the WorkCover Guide. In other words, in assessing the asserted lack of compliance with the last sentence of the second paragraph relied upon, it is significant that that paragraph is doubly (as it were) nothing more than a guide. It is not a mandatory requirement. And in any event, for the reasons that I have given, I consider that a rationale for the comparison is indeed provided in the certificate.
Sixthly, it is to be recalled that the comparison of the range of motion of the injured left shoulder and the uninjured right shoulder is itself only one aspect of the true subject matter of the certificate: WPI. Only a small portion of the certificate discusses these injuries to the shoulder of the plaintiff. The question of the comparisons of the range of motion of the left and right shoulders was by no means the central issue for discussion and determination by the decision maker; quite the contrary. In other words, the overall context of the decision that the decision maker was called to make is relevant to my view that the relative pithiness of the discussion about that highly specific aspect of the assessment is not inappropriate or inadequate.
Seventhly, the relevant import of the certificate may be summarised as follows. The plaintiff gave a history of having injured his left shoulder at work. He also gave a history of having no prior deficit to his left shoulder or his right. In accordance with the approach suggested in the AMA Guide, the decision maker regarded the uninjured right shoulder as providing a baseline for determining the range of movement of the left shoulder before it was injured. The decision maker therefore measured, recorded, and compared the range of movement of each shoulder. That comparison played a part in the assessment of the degree of impairment suffered by the left shoulder of the plaintiff. That assessment in turn played a part in the assessment of the WPI of the plaintiff.
I regard that line of logical reasoning, readily able to be derived from the certificate of the decision maker, as being legally adequate: it sets out the reasons of the decision maker for the decision to which he ultimately came.
Eighthly and finally, with regard to the decision of Hamill J in Sadsad v NRMA Insurance Ltd, the evaluative judgment of whether a decision maker has provided adequate reasons will very much depend upon the circumstances and context of each particular case, including the statutory context. That means that one should approach other decisions, in other contexts, about different reasons with considerable caution. And in any event, to adopt respectfully the words at [47] of his Honour's judgment relied upon by senior counsel, I do not consider that there are in this case any "gaps in the path of reasoning" that erroneously require supplementation by assumption.
In short, I reject the primary basis of the application, and the summons of the plaintiff must be dismissed.
Brief ancillary analyses
As against the possibility that I am wrong in that regard, I turn briefly to determine the first ancillary basis of resistance of the defendant.
I accept the submission of counsel for the defendant that, because there are no proceedings on foot between the parties, and no claim of the plaintiff on foot, it would be inappropriate to make an order referring the matter for a further assessment. That is because there is no medical dispute with regard to which an assessment can currently be made, in accordance with s 327 of the Injury Management Act. In other words, I accept that I have no power to order a further medical assessment as things currently stand, for the simple reason that there is no medical dispute on foot between the parties pursuant to which such an assessment could be made.
Finally, if I were wrong about both the primary question and the first ancillary question, and turning to the second ancillary question, I would not refuse to make the order sought by the plaintiff based upon discretionary considerations. That is so for three reasons.
First, it was accepted between the parties that the law in this area was in a state of flux for some time. It was also accepted that the ultimate resolution of that state of flux has meant that some aspects of the statutory regime have changed, with effects that have been and are retrospective in their practical effect. Legal decisions made on behalf of the plaintiff in the past about how best to proceed in the matter need to be seen in that context.
Secondly, I consider that, although the plaintiff may not have exhausted every statutory remedy available to him, a sufficient effort has been made in that regard for me not to refuse to make an order until further alternative remedies are explored.
Thirdly and finally, although there has been some delay on the part of the lawyers for the plaintiff, in the circumstances that I have outlined I would not base discretionary refusal to intervene upon it.
But to be clear, my two ancillary analyses play no role in my ultimate determination: the reasons of the decision maker are legally adequate, and reveal no error of law that should found judicial review.
Conclusion
In short, I am not satisfied that any error of law is demonstrated in the certificate of Dr John Beer of 24 July 2013. I consider that the reasons given for the findings about the left shoulder of the plaintiff are quite legally adequate. For that reason, the summons of the plaintiff must be dismissed.
Costs
At the commencement of the hearing before me, I requested that all submissions about costs be made orally on that day. Neither counsel made a submission to the contrary of the usual order that costs should follow the event. Nor were any other special or specific orders sought.
Orders
I make the following orders:
1. The summons of the plaintiff filed on 30 June 2016 is dismissed.
2. The plaintiff must pay the costs of the first defendant of the proceedings.
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Decision last updated: 09 March 2017