Jones v The Registrar WCC

Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 Campbelltown City Council v Vegan (2006) 65 NSWLR 372 ex-parte Hebburn Limited: Re Kearsley Shire Council (1947) 47 SR (NSW) 416 CASES CITED : Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 745 Re Minister for Immigration and Multicultural Affairs ex-parte Miah (2000) 206 CLR 57 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816

Lucy Jones - Plaintiff The Registrar Workers Compensation Commission - First Defendant PARTIES : Dr Antonio Fernandes - Second Defendant Sue Duncombe, Dr Robert Breit and Dr Peter Burke together in their capacity as the Appeal Panel of the Workers Compensation Commission - Third Defendant Employers Mutual NSW Limited - Fourth Defendant

SOLICITORS : Submitting appearances - First to Third Defendants TM Wardell - Fourth Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/298137 LUCY JONES v THE REGISTRAR WORKERS COMPENSATION COMMISSION and others

JUDGMENT 1 HIS HONOUR: The plaintiff Lucy Jones brought these proceedings against the Registrar of the Workers Compensation Commission ("the Commission") as the first defendant; Dr Antonio Fernandes an approved medical specialist ("AMS") appointed pursuant to s 320 of the Workplace Injury Management and Workers Compensation Act 1998 ("the Act") as the second defendant; an Appeal Panel of the Commission constituted pursuant to s 328 of the Act as the third defendant; and Our Lady of Consolation Aged Care Services Ltd or its Workers Compensation Insurer Employers Mutual NSW Limited as the fourth defendant. 2 In the proceedings the plaintiff claimed:-

1. An order in the nature of certiorari setting aside a Medical Assessment Certificate ("MAC") given by the second defendant pursuant to s 325 of the Act, on the basis that it was vitiated by jurisdictional error and/or error on the face of the record by the failure of the second defendant to give adequate reasons and on the basis of a constructive failure by the second defendant to exercise his powers under s 325 of the Act, by failing to give adequate reasons and by failing to take into account matters he was obliged to take into account.
2. An order in the nature of certiorari setting aside a decision of the third defendant confirming the Medical Assessment Certificate given by the second defendant, on the basis that it was vitiated by jurisdictional error and/or error on the face of the record, in that the third defendant had failed to conduct its own medical assessment of the plaintiff, had relied on the facts found and the reasoning by the second defendant and had purported to affirm a decision of the second defendant which was not a valid decision.
3. An order in the nature of mandamus that the second defendant exercise his powers according to law. 3 The first three defendants filed submitting appearances and the contest at the hearing was between the plaintiff and the fourth defendant.

Factual background 4 The plaintiff made a claim for workers compensation against her employer, asserting that in the course of her employment she had suffered injuries to her cervical spine and her right upper limb (right shoulder) and had sustained carpal tunnel syndrome, leading to permanent impairment. The fourth defendant disputed the degree of permanent impairment claimed by the plaintiff. 5 An application to resolve the dispute between the plaintiff and the fourth defendant was filed in the Commission on 29 April 2009. The documents supporting the application included medical reports by Dr Elias Matalani and, in particular, a report by Dr Matalani of 23 May 2008 and also included a lengthy statement by the plaintiff dated 3 March 2008. 6 A reply to the plaintiff's application was filed on 25 May 2009. The documents supporting the reply included medical reports about the plaintiff by Dr Paul Hitchen who had examined the plaintiff on behalf of the fourth defendant and, in particular, a report of 27 February 2009. 7 Pursuant to s 321 of the Act a delegate of the Registrar of the Commission on 27 May 2009 referred the medical dispute between the plaintiff and the fourth defendant for assessment by an approved medical specialist. The parts of the plaintiff's body identified in the referral were her cervical spine, her right upper limb (shoulder and carpal tunnel syndrome) and her left upper limb (carpal tunnel syndrome). 8 The approved medical specialist appointed to make the assessment was the second defendant. The second defendant conducted an examination of the plaintiff and produced a Medical Assessment Certificate pursuant to s 325 of the Act. The only part of the Certificate which has subsequently been challenged is the part dealing with the plaintiff's cervical spine. The Medical Assessment Certificate 9 In part 1 of the Certificate the second defendant recorded details of the matters which had been referred for assessment. 10 In part 2 the second defendant listed the documentary evidence he had received, including all the medical reports filed with the plaintiff's application of 29 April 2009 and all the medical reports filed with the fourth defendant's reply of 25 May 2009. 11 In part 3 the second defendant set out certain details of the plaintiff. In part 4 the second defendant set out, over 2½ pages, a history he had obtained from the plaintiff, including a history of the onset of symptoms and of subsequent related events, her present treatment, her present symptoms, particulars of her previous medical conditions, her general health, her work history and her social activities. 12 In part 5 the second defendant set out findings he had made on a physical examination of the plaintiff. In section1 of this part of the Certificate the second defendant dealt with the plaintiff's upper extremities. In section 2 of this part of the report he dealt, much more concisely, with the plaintiff's cervical spine, saying:- "The worker examined in the standing and sitting posture. There was no scoliosis, kyphosis or lordosis. On palpation of the muscles of the cervical spine there was no muscle tenderness or guarding. The range of motion in the cervical spine was symmetrical.

Right shoulder joint range of motion was reduced as described under upper extremity. On cervical compression there were no localised areas of tenderness demonstrated. Neurologically the reflexes (biceps, triceps and brachioradialis) were symmetrical and normal. There was no neurological deficit elicited today on the examination.

On today's clinical examination there were no significant clinical findings and no muscular guarding or documented neurological impairment. There was no significant loss of motion in the cervical segment and there were no fractures. There was no radicular pain with objective signs." 13 In part 6 the second defendant set out details and dates of special investigations of the plaintiff, including symbion imaging of her cervical spine. 14 Parts 7 and 8 were generally confined to the plaintiff's upper limbs. 15 Part 9 was in the following terms:- "The facts on which I have based my assessment of impairment and or whole person impairment are:- The facts on which I have based my assessment are on the clinical examination (history and physical examination) and the information provided to me." 16 In part 10 the second defendant under the heading "Reasons for Assessment" said in part:- "a. my opinion and assessment of impairment and or whole person impairment This is based on my experience as an actively practicing Senior Reconstructive plastic, hand, Facio-maxillary and Micro-surgeon with more than twenty years of experience. I provide this service to a large teaching (undergraduate and post-graduate) hospital. I have completed the impairment assessment workshops (Workers Compensation Guidelines) and the refresher courses conducted at Sydney University. I regularly assess the anatomical parts I have trained in (upper extremities, lower extremities, the spine, nervous system, skin and ENT structures (relating to facial fractures which I treat)." 17 In paragraph (b) of part 10 the second defendant referred to his worksheets which were attached to the Certificate. 18 In paragraph (c) of part 10 the second defendant made "my brief comments regarding the other medical opinions and findings submitted by the parties, and, where applicable, the reasons why my opinion differs". One comment made by the second defendant was "I note Dr Elias Matalani's report (23/05/08). This evaluation was conducted more than a year ago". 19 As already indicated, the AMS attached his worksheets to the MAC. Part of the worksheets reads:- "Cervical spine On today's clinical evaluation there is no muscle guarding, no neurological impairment, no significant loss of impairment. Using AMA5 (American Medical Association Guides to the Evaluation of Permanent Impairment 5th edition), table 15 - 5, page 392, the findings fall into DRE category 1 = 0% WPI." 20 At the hearing it was suggested by counsel for the fourth defendant, and I accept, that the word "impairment" where secondly appearing is a typographical error and should read "motion". 21 In the Certificate the second defendant found that the plaintiff had an eight per cent whole person impairment of her right upper extremity, a one per cent whole person impairment of her left upper extremity and a zero percentage whole person impairment of her cervical spine. 22 On 26 August 2009 the plaintiff, pursuant to s 327 of the Act, filed an application to appeal against the second defendant's decision. The grounds of appeal stated in the application were two of the available grounds under s 327(3) of the Act, namely "the assessment was made on the basis of incorrect criteria" (s 327(3)(c) and "the medical assessment certificate contains a demonstrable error" (s 327(3)(d). Filed with the application were submissions on behalf of the plaintiff. 23 On 14 September 2009 a notice of opposition to the appeal was filed on behalf of the fourth defendant. Filed with this notice were submissions on behalf of the fourth defendant. 24 A delegate of the Registrar of the Commission decided, pursuant to s 327(4) of the Act, that "on the face of the application and the submissions made, I am satisfied that a ground of appeal as specified in s 327(3)(d) has been made out in that an error is capable of being shown in relation to the assessment of the appellant's cervical spine impairment". The delegate directed that the appeal be referred to an Appeal Panel, the members of which the delegate nominated. 25 The appeal against the assessment by the AMS was considered by the Appeal Panel. On 9 October 2009 the Appeal Panel gave its written decision, stating its reasons and determining that the Medical Assessment Certificate be confirmed.

The reasons for decision of the Appeal Panel 26 The Appeal Panel stated that as a result of a preliminary review the Panel had determined that it was not necessary for the plaintiff to undergo a further medical examination (par 8). 27 The Panel noted written submissions on behalf of the plaintiff that the AMS had erred in not taking into account the plaintiff's statement regarding neck symptoms, that the AMS had erred in finding that there was no guarding (by the plaintiff) and that the AMS had erred in finding that the plaintiff's cervical movements were symmetrical. 28 Some of the following paragraphs in the statement of reasons were as follows:- "23. The Appeal is based on the perceived lack of history and findings on the examination of the cervical spine. The Panel is of the view that this submission has no merit. The AMS has considered in detail the nature and conditions of employment of the appellant and has recorded these in some detail. 24. The AMS then goes on to delineate the treatment and symptoms with a very detailed examination of the upper extremities and provides all the information that is required in his assessment of the cervical spine to reach his conclusions which in the opinion of the Panel are valid on the basis of this thorough assessment. 25. When assessing someone for DRE (diagnostically related estimate) Category I or DRE Category II the relevant features are the presence of non-verifiable radicular complaints (which are not described here), asymmetrical loss of movement and muscle guarding. The AMS has clearly considered these factors and found that they are not present.

26. The AMS has also taken, at paragraph 4, a clear history of the injury from the Appellant. That history also includes a history of present treatment and present symptoms. It was not necessary for him to correlate this history exactly with the statement of the worker. 28. The Panel is of the view that the AMS has performed a thorough, comprehensive examination and recorded his findings and reasons for his assessment in some detail. There is no error in his approach or his assessment."

The Medical Assessment Certificate 29 The two parts of the challenge to the Medical Assessment Certificate, that is the alleged failure to give adequate reasons and the alleged constructive failure to exercise jurisdiction, are closely related and were not sharply distinguished in the parties' written and oral submissions. I will, however, seek to deal with them separately.

Alleged failure to give adequate reasons 30 It was not disputed that a statutory obligation to give reasons for an assessment is imposed on an approved medical specialist by s 325(2) of the Act, which provides:- "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." 31 It was submitted by counsel for the plaintiff that an approved medical specialist is in a similar position to an expert witness in a court case, so that the judgment of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 745 was applicable, or to a judge having to decide which of two bodies of conflicting expert evidence he should accept (reference was made to Waterways Authority v Fitzgibbon (2005) 221 ALR 402 79 ALJR 1816). 32 The respects in which it was submitted that the AMS had failed to give adequate reasons were:-

(1) In finding in the Medical Assessment Certificate that the range of motion in the cervical spine was symmetrical (2) In finding in the Medical Assessment Certificate that there was no muscular guarding (3) In not having regard in the Medical Assessment Certificate to the plaintiff's statement filed with her original application. Counsel for the plaintiff relied particularly on (1). 33 In Campbelltown City Council v Vegan (2006) 65 NSWLR 372 the Court of Appeal held that an Appeal Panel constituted under s 328 of the Act, although not (unlike an approved medical specialist) subject to any express statutory obligation to give reasons for a decision, is nevertheless subject to an implied statutory obligation to give reasons. 34 It was accepted on the hearing of the present proceedings that what the Court of Appeal said in Vegan about the extent of the obligation of an Appeal Panel to give reasons provides some guidance in determining the adequacy of reasons given by an approved medical specialist, although counsel for the plaintiff submitted that there could be some difference between the extent of an Appeal Panel's implied obligation to give reasons and the extent of an approved medical specialist's express obligation to give reasons. In my opinion, the judgments in Vegan would support a view that there is little, if any, difference in the extent of the obligation to give reasons of an Appeal Panel and of an approved medical specialist. 35 At pars [121] and [122] of Vegan Basten JA, with whose judgment the other members of the Court "generally" agreed, said:- "[121] Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. 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.

[122] On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis (1987) 10 NSWLR 247 (at 273-274) (Mahoney JA) and (at 281-282) (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required." 36 In Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 the adequacy of reasons given by an Appeal Panel for not requiring a further medical examination of a worker had been challenged. The Court of Appeal held that the worker had failed to establish either of the grounds of appeal relied on. At par [36] Handley AJA, with whose judgment the other members of the Court agreed, said:- "The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court: … a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker … 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." 37 I do not accept that there is a close parallel between the position of an AMS and the position of an expert witness or of a judge deciding which expert evidence he should prefer. An AMS is not a judge or even a lawyer and he acts as both an expert and as the decision-maker. 38 On the other hand, I consider that I should have some regard to the reasons which have been given for the requirement that judicial officers give reasons for their decisions (see for example Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247) and I should have regard to the important effect given to a Medical Assessment Certificate by the Act. 39 In determining whether the approved medical specialist gave adequate reasons, it is necessary to refer to parts of the WorkCover Guidelines. 40 Section 322 of the Act provides that an assessment of the degree of permanent impairment of an injured worker is to be made in accordance with the WorkCover Guidelines issued pursuant to s 376 of the Act which were in force at the time of the assessment,. 41 Paragraph 1.5 of the WorkCover Guidelines provides so far as is relevant:- "Assessing permanent impairment involves clinical assessment on the day of assessment and determining… · The degree of permanent impairment that results from the injury; and · The proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any in accordance with the diagnostic and other objective criteria as detailed in the WorkCover Guides." 42 Paragraph 1.13 of the Guidelines provides:- "The WorkCover Guides are meant to assist suitably qualified and experienced medical specialists to assess levels of permanent impairment. They are not meant to provide a "recipe approach" to the assessment of permanent impairment. Medical specialists are required to exercise their clinical judgment in determining diagnosis, whether the original condition has resulted in an impairment and whether the impairment is permanent. The degree of permanent impairment that results from the injury must be determined using the tables, graphs and methodology given in the WorkCover Guides and AMA 5." 43 Box 15-1 of AMA 5 contains definitions including a definition of "Asymmetry of spinal motion", which is as follows:- "Asymmetric motion of the spine in one of the three principal planes is sometimes caused by muscle spasm or guarding. That is, if an individual attempts to flex the spine, he or she is unable to do so moving symmetrically; rather, the head or trunk leans to one side. To qualify as true asymmetric motion, the finding must be reproducible and consistent and the examiner must be convinced that the individual is cooperative and giving full effort." 44 Table 15-1 of AMA 5 relating to "DRE: Cervical spine" contains a number of columns. The first column reads:- "DRE Cervical Category 1 0% impairment of the Whole Person No significant clinical findings, no muscular guarding, no documentable neurological impairment, no significant loss of motion segment integrity, and no other indication of impairment related to injury or illness; no fractures" 45 I will now examine the respects in which it was submitted that the second defendant had failed to give adequate reasons.

(1) In finding that the range of motion in the cervical spine was symmetrical. 46 Counsel for the plaintiff pointed to a passage in Dr Matalani's report of 23 May 2008 in which Dr Matalani said under the heading "Examination - Neck":- "Neck: The normal cervical lordosis is reduced. There was mild muscle guarding of the paravertebral muscles and worse on the right side. Lateral flexion and rotation to the right was reduced to approximately 50% of normal. Lateral flexion and rotation to the left was possible to 70% of normal. Flexion and extension were reduced to approximately 70% of normal. There was asymmetric loss of range of motion." 47 Counsel for the plaintiff also pointed to a passage in Dr Hitchen's report of 27 February 2009 in which Dr Hitchen said that at the examination of the plaintiff on 25 February 2009 he had found:- "With regard to the neck, Mrs Jones has a grossly restricted range of movement in all directions. This is a symmetric loss. There are no signs of radiculopathy. She falls into the Category of DRE Cervical 1 (Table 15-5 AMA V), causing 0% whole person impairment." 48 It was submitted by counsel for the plaintiff that the issue had accordingly arisen whether the range of motion (or the range of loss of motion) in the plaintiff's neck was asymmetrical or symmetrical and both Dr Matalani and Dr Hitchen had expressly referred in their reports to the range of movement in different directions. However, the second defendant in the Certificate had simply stated that "the range of motion in the cervical spine was symmetrical", without stating whether he had tested the range of motion in all three planes and had thereby failed to give adequate reasons for his conclusion that the range of motion in the cervical spine was symmetrical. 49 I do not consider that I should accept these submissions by counsel for the plaintiff. The second defendant was an approved medical specialist having the qualifications stated in the Medical Assessment Certificate. Under the WorkCover Guidelines he was required to assess the degree of permanent impairment, by himself making a clinical assessment and by applying the diagnostic criteria in AMA 5. He was not in a position of having to decide which of two conflicting bodies of evidence he should accept, for example whether he should accept Dr Matalani's opinion or Dr Hitchen's opinion. 50 The second defendant clearly made a clinical examination of the plaintiff and he stated in his certificate his finding that "the range of motion in the cervical spine was symmetrical". There is a presumption of regularity that the AMS had performed such tests as might be required to determine whether the range of motion in the cervical spine was symmetrical or asymmetrical. The medical science the second defendant was applying was not controversial and his reasons were not required to be extensive or detailed. 51 It is clear from the Medical Assessment Certificate that the second defendant was mindful of Dr Matalani's report of 23 May 2008. The second defendant commented in the Medical Assessment Certificate on Dr Matalani's report by saying that Dr Matalani's examination of the plaintiff had been conducted more than a year previously.

(2) In finding that there was no muscular guarding 52 The second defendant stated that on the clinical examination he had conducted there was no muscular guarding. 53 Counsel for the plaintiff pointed to the slightly earlier part of the report in which the second defendant said "on palpation of the muscles of the cervical spine there was no…guarding". 54 In the submissions in support of the application to appeal against the decision of the second defendant it was submitted that "it is obvious that the AMS's assessment of guarding was conducted during the palpation process…assessment of guarding is to be conducted…during the entire examination process and this would include observing the patient at all times but in particular when movement is provoked in order to determine whether guarding truly exists or not". 55 I do not consider that these submissions should be accepted. In my opinion, what appears in the Medical Assessment Certificate under the heading "Cervical spine" is a series of findings, mostly independent of each other. The finding in the third paragraph that there was no muscular guarding should not be read as limited by the statement in the first paragraph that "on palpation of the muscles of the cervical spine there was no…guarding". Such a reading of a Medical Assessment Certificate would involve an approach of the kind criticised by Handley AJA in Bojko.

(3) In not having regard to the plaintiff's statement filed with her original application 56 The second defendant himself took a history from the plaintiff and summarised it over 2½ pages of the Medical Assessment Certificate. As the Appeal Panel stated in par 26 of its statement of reasons it was not necessary for the second defendant to correlate the history he had obtained with the statement the plaintiff had provided some time earlier. 57 I conclude that I do not consider that the AMS failed to give adequate reasons.

Alleged constructive failure to exercise jurisdiction 58 Counsel for the plaintiff referred to part of Gaudron J's judgment in Re Minister for Immigration and Multicultural Affairs ex parte Miah (2000) 206 CLR 57 at 81[40] in which Gaudron J referred to the statement of Jordan CJ in ex-parte Hebburn Limited: Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 of what constitute a constructive failure to exercise jurisdiction, which includes a failure to apply himself or herself to the question which the law prescribes. 59 It was submitted by counsel for the plaintiff that I should find a constructive failure to exercise jurisdiction in a failure to give adequate reasons and also because it was not apparent that the AMS had fulfilled his obligation to consider matters under AMA 5 which he was required to take into account. 60 I have already held that the AMS did not fail to give adequate reasons and accordingly in this respect there was no constructive failure to exercise jurisdiction. 61 As to the second respect in which it was submitted that there had been a constructive failure to exercise jurisdiction, it was contended that an inference that a tribunal has failed to consider a matter may be drawn from its failure to expressly deal with that matter in its reasons. Counsel referred to WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184 at [47] per curiam where the Court said:- "The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons." 62 The principal way in which it was contended that the second defendant had failed to consider matters he was obliged to consider was that it could be inferred, from its not being expressly stated in his reasons that he had investigated all three planes of asymmetry of motion, that he had not investigated all three planes. 63 I do not consider that this inference should be drawn. In par [47] the Full Court of the Federal Court was speaking of a failure to consider an "issue". The Court went on to say:- "But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point." 64 In the present case the reasons given by the second defendant were otherwise extensive, the issue was identified and findings about the range of motion in three planes would have been subsumed in a finding of greater generality. The second defendant was an expert in testing the range of cervical movement and he had access to, and it can be inferred that he had read, the reports of Dr Matalani and Dr Hitchen. 65 In my opinion, both challenges to the Medical Assessment Certificate fail.

The decision of the Appeal Panel 66 The plaintiff's challenge to the decision of the Appeal Panel depended on her challenge to the Medical Assessment Certificate succeeding. I have rejected the challenge to the Medical Assessment Certificate and consequently the challenge to the decision of the Appeal Panel also fails. The Appeal Panel was entitled to rely on the facts and reasoning of the approved medical specialist and to find that there was no error in the approach or assessment of the approved medical specialist. 67 It was accepted by counsel for the plaintiff that the fact that the Appeal Panel had not conducted its own medical assessment of the plaintiff could not by itself amount to a sufficient reason for setting aside the Appeal Panel's decision.

I make an order dismissing the summons and I order the plaintiff to pay the fourth defendant's costs of the proceedings. **********

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