Kitanoski v JB Metropolitan Distributors Pty Limited

Supreme Court of NSW|2019-12-11|Before: Adamson J

Solicitors: Martin Bell & Co (Plaintiff) HWL Ebsworth (First Defendant) Crown Solicitor's Office (Third Defendant) File Number(s): 2019/263428 Decision under appeal Court or tribunal: Workers Compensation Commission Jurisdiction: Medical Appeal Panel Date of Decision: 24 May 2019 Before: Debora Moore, Neil Berry, Robert Payten File Number(s): M1-6415/17

Introduction

By summons filed on 23 August 2019, Mitko Kitanoski (the plaintiff) seeks relief pursuant to s 69 of the Supreme Court Act 1970 (NSW), including an order setting aside the decision of the third defendant, the Medical Appeal Panel constituted by Ms Moore, Dr Berry and Dr Payten (the Panel), and an order setting aside the decision of the Registrar of the Workers Compensation Commission, the second defendant (the Registrar).
The plaintiff's employer, against which his claim for whole person impairment (WPI) was made, was JB Metropolitan Distributors Pty Ltd, the first defendant (the Employer). The Panel and the Registrar have filed submitting appearances, leaving the Employer as the only active defendant.
In these reasons, all references to legislation are, unless otherwise specified, to the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

Workers Compensation Act 1987 (NSW)

Section 151H of the Workers Compensation Act 1987 (NSW) provides that no damages may be awarded to an injured worker unless the degree of permanent impairment is at least 15%.

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Part 7 of the Act provides for the resolution of "medical disputes", which are defined, in s 319, to include a dispute between a claimant and the person on whom a claim is made about the degree of permanent impairment of the worker as a result of an injury. The Registrar is empowered to refer a matter for assessment at the request of one of the parties: s 321(1). If the parties do not agree on an approved medical assessor (AMS), the Registrar is to choose an AMS to assess the dispute: s 321(2).
Section 322 provides that the assessment of the degree of permanent impairment is to be made in accordance with the Workers Compensation Guidelines (the Guidelines) in force at the time the assessment is made and that impairments that result from the same injury are to be assessed together. The powers of an AMS are set out in s 324 and include a power to require the worker to submit to an examination: s 324(1)(c). Section 324(3) provides: "This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part. An approved medical specialist who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under this section on an assessment of a medical dispute."
An AMS, on completion of the assessment, is to issue a medical assessment certificate (MAC) as to the matters referred for assessment: s 325(1). Section 325(2) 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."
The effect of s 325(2)(c) is that the Panel's reasons form part of the record: Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152 at [27] (Leeming JA, Tobias AJA agreeing); Mulcahy v NRMA Insurance Ltd [2018] NSWCA 189; (2018) 85 MVR 337 at [14] (White JA, Beazley P and Meagher JA agreeing).
An assessment certified in a MAC is conclusively presumed to be correct as to various matters, including the degree of permanent impairment: s 326(1)(a).
A party may appeal under s 327 against a medical assessment but only if the Registrar is satisfied that at least one of the grounds of appeal specified in s 327(3) has been made out: s 327(4). Section 327(3) provides: "(3) The grounds for appeal under this section are any of the following grounds - (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error."
Section 328 provides for the procedure on appeal, relevantly as follows: "(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. … (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. …"
Section 329 provides that a matter may be referred by the Registrar for further assessment as an alternative to an appeal against the assessment under s 327.
Section 331 provides: "331 Guidelines Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments."
Section 376 provides that the Authority (which is defined by s 4 to mean the State Insurance Regulatory Authority) may issue Guidelines, which may adopt the provisions of other publications with or without modifications.

The Guidelines

The Authority issued the 4th edition of the NSW Workers Compensation Guidelines for the evaluation of permanent impairment (1 April 2016) (the Guidelines). It was common ground that this was the appropriate version. The Guidelines substantially adopt the 5th edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA5).

Provisions relating to the assessment of impairment to the lumbar spine

Chapter 4 of the Guidelines, which deals with the spine, adopts AMA5 Chapter 15, with modifications. It provides: "4.1 The spine is discussed in Chapter 15 of AMA5 (pp 373-431). That chapter presents two methods of assessment, the diagnosis-related estimates method and the range of motion method. Evaluation of impairment of the spine is only to be done using diagnosis-related estimates (DREs). 4.2 The DRE method relies especially on evidence of neurological deficits and less common, adverse structural changes, such as fractures and dislocations. Using this method, DREs are differentiated according to clinical findings that can be verified by standard medical procedures."
Clause 4.18 of the Guidelines provides: "DRE II is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement. Localised (not generalised) tenderness may be present. In the lumbar spine, additional features include a reversal of the lumbosacral rhythm when straightening from the flexed position and compensatory movement for an immobile spine, such as flexion from the hips. In assigning category DRE II, the assessor must provide detailed reasons why the category was chosen."
The Guidelines refer to radiculopathy, relevantly as follows: "4.27 Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold): loss or asymmetry of reflexes muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution positive nerve root tension (AMA5 Box 15-1, p 382) muscle wasting - atrophy (AMA5 Box 15-1, p 382) findings on an imaging study consistent with the clinical signs (AMA5, p 382). 4.28 Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy."
Clause 6.3 of the Guidelines provides: "Equilibrium is assessed according to AMA5 Section 11.2b (pp 252-55), but add these words to AMA5 Table 11-4, class 2 (p 253): 'without limiting the generality of the above, a positive Hallpikes test is a sign and an objective finding'."
AMA5 summarises the categories for diagnosis-related estimates (DRE) of the lumbar spine in table 15-3. The category for 0% WPI (DRE Lumbar Category I) is appropriate where there are no significant clinical findings. The next category, for 5%-8% WPI (DRE Lumbar Category II), requires that the clinical history and examination findings be compatible with a specific injury. The third category, for 10%-13% WPI (DRE III) requires, of present relevance: "Significant signs of radiculopathy, such as dermatomal distribution, sensory loss, loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location, impairment may be verified by electrodiagnostic findings."

Provisions relating to assessment of vestibular impairment

AMA5 addresses vestibular disorders in Chapter 11. In 11.2b, AMA5 says: "…Evaluation of vestibular impairment should be performed when the condition is stable and maximum adjustment has been achieved, which generally is considered to occur months after resolution of the disease or injury. …Since vestibular disorders are dynamic, assessment of permanent impairment should be based on determination of the person's condition after it is stable. Although symptoms may be intermittent, the examiner needs to gauge functioning during episodes with exacerbations…"
Table 11-4 sets out the various categories for the purposes of assessment of impairment of vestibular function. Class 1 (0%) covers those with symptoms or signs of vestibular disequilibrium without supportive objective findings. Class 2 (1-10%) covers persons whose disequilibrium is supported by objective findings and who can perform activities of daily living without assistance, except for certain complex tasks. The further classes are dependent on the capacity to perform various activities of daily living.

The work-related injury

On 10 May 2004 the plaintiff suffered an injury when a box fell from a shelf. The injury was suffered in the course of his employment with the Employer. He claimed workers compensation, for which the Employer was accepted to be liable. He has not worked since.

The first WPI claim

The plaintiff claimed WPI and, on 12 August 2015, he was assessed at having a WPI of 0%. The MAC to that effect was confirmed on appeal by a Panel on 12 May 2015.

The present WPI claim

On 7 December 2017 the plaintiff made a further claim against the Employer for WPI as follows: 1. 15% WPI for the cervical spine; 2. 10% WPI for the lumbar spine; 3. 8% WPI for vestibular injury; 4. 7% WPI for hypertension; 5. 4% WPI for lower digestive system; and 6. 4% WPI for upper digestive system.

The assessment of the further claim

The Employer denied the claim and requested that the Registrar refer the claim for assessment. The medical assessment was undertaken by Dr Truskett, the lead AMS, who is a general surgeon, and Dr Ackroyd, a non-lead AMS, who is a cardiovascular specialist. The MAC also included the MAC of another specialist, Dr Brian Williams, an otolaryngologist, in respect of the plaintiff's vestibular impairment. On 27 November 2018, the MAC was issued which certified a WPI of 7%. This figure was referable to the WPI found by Dr Ackroyd. Dr Truskett, who assessed the plaintiff's lumbar spine, cervical spine and upper and lower digestive tracts, found 0% WPI, as did Dr Williams, who assessed the plaintiff's vertigo for the purposes of assessing any vestibular impairment.

The appeal against the assessment

On 24 December 2018 the plaintiff applied to the Registrar for leave to appeal against the medical assessment on the grounds in s 327(3)(a) (deterioration of the plaintiff's condition), (c) (incorrect criteria) and (d) (demonstrable error). The plaintiff did not rely on s 327(3)(b) (the availability of additional relevant information). In his application the plaintiff requested that he be examined by an AMS who was a member of the Panel. He did not request the opportunity to present oral submissions to the Panel. The plaintiff indicated that he sought leave to rely on additional evidence that he alleged was not previously available or could not reasonably have been obtained prior to the medical assessment.
On 17 January 2019, the Employer opposed the appeal.
On 15 March 2019 the Registrar, Michael McGrowdie, was satisfied, on the face of the application, that at least one of the grounds specified in s 327(3) had been made out, being the ground in s 327(3)(d) (demonstrable error), and referred the matter to the Panel. Although the Registrar identified error, he did not identify the error in his decision. The reasons for the Registrar's decision included the following: "9. An Appeal Panel may determine an appeal solely on the basis of the written application and any written Notice of Opposition. When a matter is determined on the papers, a copy of the decision will be issued to the parties. 10. The admission of further documentary evidence is a matter for the Panel. 11. The Appeal Panel may also require the worker to be re-examined by the Appeal Panel, or set the matter down for hearing, in which case separate notification will be sent to the parties."

The Panel's reasons

On 24 May 2019 the Panel dismissed the appeal and gave reasons for its decision. These reasons will be summarised or extracted below in sufficient detail to address the grounds of appeal. The paragraphs identified are the paragraphs in the Panel's reasons for decision.
The Panel considered and refused the plaintiff's request that he be re-examined, as follows: "[11] The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Workers compensation medical dispute assessment guidelines. [12] As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. Although the appellant requested a re-examination, we are satisfied that we have sufficient evidence before us to enable us to determine this appeal."
As to the plaintiff's application to adduce fresh evidence before the Panel, the Panel, referred, at [13], to the test in s 328(3). It listed the additional evidence as follows: "(a) Dr Patrick report dated 21 December 2018; (b) St George Hospital Discharge Summary dated 15 December 2018; (c) St George Hospital referral for medical procedure dated 15 December 2018; (d) Professor Bolin report dated 18 December 2018; (e) Dr Scoppa report dated 21 December 2018; and (f) Mr Kitanoski's Statutory Declaration dated 22 December 2018."
The documents in (a), (d) and (e) will be referred to as the Additional Reports.
In a report dated 21 December 2018 Dr Patrick said in part: "…at more recent examination of [the plaintiff] by me right calf measured actually 42.5cm in circumference and left calf 41cm, both measured at identical levels at site of maximum calf circumference bilaterally."
In his report dated 21 December 2018, Dr Scoppa said: "In order to assess vestibular impairment the assessor requires the presence of objective evidence of impairment on the day of assessment. According to WorkCover Guidelines a positive Hallpike test on the day of testing is considered to be objective evidence, and as I found such a positive test and diagnosed BPV [benign positional vertigo] I assessed it at a WPI as per my report. Dr Williams did not find a positive Hallpike Test on the day of his assessment, and therefore assessed the vestibular injury at 0% WPI. The problem with BPV is that the condition often has a fluctuating course whereby it is present for some time, and then disappears, and then often recurs at a later date. This can result in an issue with assessment of WPI because the examiner is entitled to rely on his or her findings on the day of testing. Some examiners accept a previous positive Hallpike Test as objective evidence and accept the condition as having been caused by the accident, and will provide a WPI on the basis of a past positive test, especially if there is evidence that the test has been found to be positive on several past occasions. Other examiners prefer to rely on their own findings on the day and assess it as is at that time."
The Panel recorded the plaintiff's submissions about the relevance of the reports of Drs Patrick and Scoppa as follows: "[15] The appellant submits that the evidence is relevant to the determination of the appeal. The appellant makes the following submissions: 'Dr Patrick provides a useful note on likely measurements of muscle wasting had Dr Truskett performed the measurements and also notes the failure by Dr Truskett to perform and document his measurements. This report came into existence after the receipt of the AMS Certificate of Dr Truskett and makes a technical observation as to omissions within the report. … Dr Joe Scoppa documents the conundrum facing an ear, nose and throat specialist assessing vestibular injury given its nature being capable of being present and not present on single days and therefore the need to either accept a prior objective test or, as is submitted by the Appellant, to require a further examination to do justice to the injured worker. …'"
The Panel said, in its reasons, that the plaintiff did not address why the evidence could not have been obtained before the referral. It also said: "18. Submissions such as doctors providing 'useful commentary' on certain matters do not address the relevant issues as regards the admission of fresh evidence. 19. In addition, it is not the practice of either the Commission of a Medical Appeal Panel to permit commentary by other doctors on findings made by an AMS. 20. Our task is to identify if the assessment contains an error in line with the grounds of appeal identified in s 327(3) of [the Act] having regard to the evidence that was before the AMS. 21. In our view, the reports of Drs Patrick, Scoppa and Bolin and the [plaintiff's] statutory declaration add nothing to the task. That material simply seeks to cavil with the findings of the AMS, and does not fulfil the requirements of s 328(3)."
The Panel admitted evidence from St George Hospital dated 15 December 2018 on the basis that it could not reasonably have been available prior to the assessment and therefore fell within s 328(3).
The Panel referred to the plaintiff's substantive arguments which were, of present relevance, as follows. The Panel, at [32] of the reasons, recorded the plaintiff's submission that Dr Truskett had failed to perform an assessment of the lumbar spine in accordance with AMA5 and the Guidelines. The plaintiff also submitted, as noted in [33] of the reasons, that Dr Williams had failed "to perform a Hallpike test on multiple occasions to ensure an appropriate and just assessment of whole person impairment for vestibular injury was determined in accordance with AMA5 and the Guidelines."
In its reasons, the Panel quoted extensively from Dr Truskett's reasons, including instances where Dr Truskett had noted disparities between the plaintiff's history and other sources and where Dr Truskett had described the plaintiff's conduct during the examination. These quotations included the following. The highlighted passages indicate the portions particularly relied upon by the plaintiff in this Court as amounting to an adverse assessment by Dr Truskett of the plaintiff's credit. "[44] Dr Truskett added: 'Mr Kitanoski stated that he had poor memory of events, but I do note that he provided a statement dated 15 May 2017, with quite detailed management. In this document, he discusses consultation with Dr Nanette Tellis on 11 May 2004 complaining of predominantly severe neck pain, headaches, lower back pain, dizziness and blurred vision. Imaging was performed soon after... He did recall being referred to Dr Craig Presgrave, Neurologist, on 14 September 2004. He had a series of investigations including EEG and MRI of his brain and cervical spine. Mr Kitanoski said he commenced having stomach problems from 2005. This is contrary to his history provided, where he states that abdominal discomfort occurred a few months after the accident. …' … [47] Present symptoms were described as follows: '…Mr Kitanoski experiences lower back pain which is present all the time and he will have flares three to four times per year and he will become 'paralysed'... Pain will also radiate down his whole leg in a non-radicular fashion...' [48] The AMS added: 'Mr Kitanoski sustained a back injury in May 1995 when working for Croydon Sheet Metal Industries. He was lifting an air conditioner into a truck. He received a sum in the order of $100,000 compensation for this. He said he fully recovered over 5 years. Mr Kitanoski was directly asked about this previous injury at work, which was documented. He initially denied this…' [49] The AMS then documented complaints as regards activities of daily living (ADL's) before setting out his findings on physical examination as follows: '… On examining his neck, there was no muscle guarding. There was marked reduction of global power of both upper limbs, which would score 3/5. There was clear lack of engagement and I believed this to be voluntary. I asked why this was so and Mr Kitanoski said that he was weak. There was also reduced sensation of the entire left upper limb to the base of the neck. This was not of a radicular distribution. … On examining his back, there was no kyphosis. There was no scoliosis. There was no loss of lumbar lordosis, although he did lean forward in a hunched way, but there was no paravertebral muscle guarding. There was sensory loss of the entire left leg which extended to the level of T4 on the left. There could be no anatomical explanation for this. There was also loss of power of dorsiflexion of the left foot against resistance at a level of 2/5, but with some cogwheeling resistance. A weakness of this degree would have led to a foot drop, but this was not apparent when walking. I believed both these signs to be non-organic. Straight leg raising was possible to 30° bilaterally in the lying position which led to back pain. However, when sitting and leaning forward, both legs could be elevated to 90° without distress…' … [51] The AMS added: "There were marked inconsistencies. In relation to his history, Mr Kitanoski appeared to deny a previous back injury which had occurred in 1995, even though it existed in his own statement. He had no recollection of this. There were also a number of physical examination findings that were inconsistent. He demonstrated loss of power of both upper limbs to 3/5. There was no neurologic reason for this. He also had a global sensory reduction of his left upper limb with no muscle wasting, change in reflexes or abnormal tone. There was no explanation for this. …Both legs could only be elevated to 30° when directly tested, but could be brought to 90° without difficulty when seated. Where inconsistencies were apparent, Mr Kitanoski was asked why they were so. He had no explanation…' [52] The AMS assessed 0% impairment of the lumbar spine, adding: 'A DRE Category I has been assigned as there is [sic] no significant clinical findings that can be based on neurological deficit related to a back injury. There is inconsistent loss of muscle power and sensation. There is no bony injury. There is no non-verifiable radicular complaint.'"
The Panel's reasons for rejecting the submission that Dr Truskett had not complied with the Guidelines included the following: "[62] In our view, not only did the AMS find nothing of significance on physical examination, in part because of the appellant's presentation but also having regard to radiological and other evidence, he also documented the numerous inconsistencies he observed on formal examination compared to his other observations of the appellant during the examination process. [63] The AMS is required to make an assessment on the day of the examination. Part 1.6 of the Guidelines states: 'Assessing permanent impairment involves clinical assessment of the claimant as they present on the day...' [64] It is clear from the MAC that Dr Truskett performed a thorough examination of the appellant and also set out in some detail numerous inconsistencies in his presentation. He also made it clear that a number of findings made by other doctors at other times were not present on the day of his examination. [65] For these reasons, we are unable to find any error as regards the findings in respect of the cervical spine. … [68] As regards the lumbar spine, we make similar comments. … [72] The claimed failure by the AMS to measure calf circumference as Dr Patrick did does not in our view alter the AMS' primary findings with respect to the lumbar spine. It was not of significance in terms of his examination of the lower limbs as a whole. [73] In summary, we are satisfied that the AMS conducted a definitive physical examination. The appellant's presentation, in particular his widespread loss of power and sensory impairment in the whole left lower limb, not in any dermatomal distribution, did not satisfy the criteria for a finding other than of DRE I in respect of both the lumbar and cervical spine. …"
The Panel's reasons for rejecting the challenge to Dr Williams' MAC included the following: "[81] The thrust of the appellant's submissions is that the condition 'manifests in a fluctuating manner. This means that on the day of one examination it may be present and on another day disappear and then reappear.' [82] The appellant adds: 'Based on the complaints of dizziness complained of by the Appellant, it is clear that the symptoms persist. This is particularly significant given that 14 years have passed by since the original trauma and yet the symptoms continue...to do justice to a worker in this situation, where there has been a positive Hallpike test, it is imperative that, should an AMS find a test to be negative, that a further opportunity to assess be granted...' [83] We repeat our comments as regards Part 1.6 of the Guidelines; assessment must be made based on a claimants' presentation 'on the day.' … [86] The appellant was previously assessed in 2010 where the Hallpike test was negative. [87] In the present case, on physical examination, the AMS said: 'He had no Spontaneous or Gaze nystagmus. Hallpike test was negative bilaterally. Romberg test was slightly unsteady but this is not an objective test. Heel toe walking and reverse heel toe walking tests were steady. Unterberger's test was unsteady but this is not an objective test. Facial movement was normal.' [88] The AMS added: 'Mr Kitanoski has no symptoms of acute labyrinthine hypofunction and no objective supporting findings of acute labyrinthine failure. Dr Scoppa reported the balance tests by Mr Tony Khairy were normal, including Hallpike test. Dr Scoppa found a positive Hallpike test in 2010 and in 2017 Dr Scoppa said his findings were unlikely to change. Dr Scoppa's finding of a positive Hallpike test was not present when I examined Mr Kitanoski and was not present on Mr Khairy's balance test. Unsteady Romberg and Unterberger's tests are not objective tests of vestibular impairment and are not typically unsteady in BPPV. I note there is variation in the results of Romberg, Unterberger and tandem gait tests between the reports of Dr Scoppa, Dr Presgrave and Dr Teychenne but these tests are not objective tests of vestibular disequilibrium. On the day I examined Mr Kitanoski Hallpike test was negative bilaterally. Accordingly I have no objective supporting evidence of vestibular impairment on the day I examined him. My assessment is 0% due to vestibular injury.' [89] Based on the AMS' assessment on the day, consistent with earlier findings by Dr Khairy, we are not persuaded that the AMS erred in his assessment as regards the vestibular injury."

The grounds

The summons does not identify separate grounds in terms since the narrative and legal argument are included under the heading "grounds". However the narrative contains allegations which I propose to regard as grounds. These can be reduced to the following:

Refusal to examine the plaintiff

The plaintiff contended that the Panel failed to accord procedural fairness to him by refusing to re-examine him and by failing to give sufficient reasons for its refusal. Further, the plaintiff contended that it was not open to the Panel to refuse to re-examine the plaintiff in circumstances where his credit was in issue.

Refusal to receive the Additional Reports

The plaintiff contended that it was not open to the Panel to refuse to receive the Additional Reports since they could not have been obtained before the MAC because the reports deal with matters raised by the AMSs in coming to the assessment recorded in the MAC. Further, the plaintiff submitted that the Additional Reports constituted additional relevant information within the meaning of s 327(3)(b). In addition, the plaintiff argued that the Panel's refusal to consider the Additional Reports amounted to procedural unfairness.

Refusal to consider the plaintiff's statutory declaration

The plaintiff contended that it was not open to the Panel to refuse to consider his statutory declaration dated 22 December 2018; and that its refusal to consider the plaintiff's statutory declaration dated 22 December 2018 amounted to procedural unfairness.

Consideration

In effect, the plaintiff challenged the Panel's treatment of his request to be re-examined; and the Panel's refusal to admit the Additional Reports and the plaintiff's statutory declaration dated 22 December 2018. There are two aspects to each of these matters: that the decision made by the Panel was not open and that the Panel's refusal amounted to a denial of procedural fairness. With respect to the Additional Reports, the plaintiff also argued that they constituted "additional relevant information".

General principles

Each of the grounds, as formulated above, amounts to a question of law and, if made out, amounts to an error of law. Thus, this Court's jurisdiction under s 69 of the Supreme Court Act has been properly invoked as long as the alleged errors of law are either on the face of the record or amount to jurisdictional errors. The "record" includes the reasons for the decision. It does not include the transcript of the proceedings, the evidence, or the submissions: Craig v The State of South Australia (1995) 184 CLR 163 at 180-183; [1995] HCA 58; Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [29]-[30].
The MAC is conclusive evidence as to certain matters, including the percentage WPI. It is subject to the right of a party to appeal pursuant to s 327, but only in relation to particular grounds and subject to the gateway provision of s 327(4). The Panel is constrained by the grounds in conducting a review of the medical assessment the subject of the MAC. There is no right to an examination or an oral hearing of any type. Procedural fairness is provided for by the exchange of submissions, as occurred in the present case.
The role of the AMS was considered by the High Court in an analogous statutory context in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot). In Wingfoot, the County Court of Victoria referred certain medical questions for the determination of a Medical Panel under Part IV of the Accident Compensation Act 1985 (Vic). The Medical Panel issued certificates setting out its opinion. These certificates were challenged in proceedings brought for certiorari. The High Court described, at [47], the functions of the Medical Panel in the following passage, which is apt to describe the functions of the AMS in the New South Wales context under the Act: "The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise." [Footnotes omitted.]
As with the Medical Panel in the Victorian context, the AMS is obliged to give its own assessment on the medical question (in this case the degree of permanent impairment) "by applying its own medical experience and its own medical expertise".
The Panel provides an avenue of review on certain limited grounds. As with the AMS, the Panel is constituted by medical experts who are obliged to apply their own medical experience and medical expertise. The Panel, like the Medical Panel in Wingfoot, has an obligation to provide procedural fairness although it is neither arbitral nor adjudicative. Its role is to decide whether, on the grounds raised by the applicant, it ought confirm the MAC or revoke it and issue a new certificate. When a Panel chooses to revoke a MAC and issue a new MAC, s 328 also applies to the new MAC. This regime confers a "review" function on the Panel, as well as a function which is akin to the function conferred on the AMS: namely, to issue a certificate setting out its opinion on the relevant question.
It is in this context that the reasons which the Panel is obliged to give and the procedural fairness which it is obliged to accord are to be judged. In Wingfoot, the High Court held that the reasons must set out "the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself": [48]. As appears from the passage from Wingfoot at [47] cited above, procedural fairness in this context requires that the parties be given an opportunity to provide material and submissions. When the AMS is the relevant decision-maker, the material can include whatever relevant material either party wishes to put before the AMS. However, on appeal, the parties are limited by s 328(3) as to what can be put before the Panel, although the ultimate decision as to whether further material will be accepted is for the Panel.

The Panel's decision not to examine the plaintiff

It is plain from the provisions referred to above, that the Panel is to undertake a review of the medical assessment conducted by the AMS. Its role is not to undertake a fresh medical assessment unless it has decided to revoke the MAC and considers that it is obliged to do so to enable it to issue a new certificate. Therefore, there is no entitlement on the part of the plaintiff to be re-examined by the Panel.
Mr Emmett, who appeared on behalf of the Employer, referred me to decisions of this Court to the effect that the Panel has no power to re-examine a plaintiff unless and until the Panel is satisfied that there is an error in a MAC. In NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792, Davies J said: "[32] The Appeal Panel's function was either to confirm the MAC or to revoke it and issue a new certificate - s 328(5). On one view, that subsection read together with s 329 might be thought to preclude the Panel making a referral at any stage for further assessment even from one of its own members. That would be an unfortunate result and would not sit easily with s 324(3) which appears to contemplate an assessment "in the course of an appeal". The Guidelines issued pursuant to s 376 of the 1998 Act would also appear to authorise such a further assessment (assuming para 45 thereof is within power). [33] However, if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment."
In Midson v Workers Compensation Commission [2016] NSWSC 1352 N Adams J cited NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales with approval. Her Honour said at [52]: "Thus Davies J held that the Panel has the power to order that a worker undergo a further assessment with an AMS, but only so that it can issue a fresh MAC after it has upheld a ground of appeal that requires a new MAC to be issued. It is the finding of error that triggers the need for a further examination. There is no statutory power for the Panel simply to direct the worker to be examined again in order to find error in the original MAC."
Plainly, if the Panel had no power to examine the plaintiff, in the absence of error having been established such as would lead the Panel to revoke a certificate for error, it could not be an error to refuse to conduct such an examination. However, it is not necessary to address the correctness of these decisions, since the question that arises in the present case is a different question: whether the plaintiff can establish that it was not open to the Panel to refuse to examine the plaintiff.
Mr Turnbull SC, who appeared on behalf of the plaintiff, submitted that, for three separate, independent reasons, the Panel was obliged to re-examine the plaintiff. First, he submitted that a re-examination was necessary to permit the Panel to form its own view of the plaintiff's credibility, which had been the subject of adverse comment by Dr Truskett. Secondly, he submitted that, because Dr Truskett had not measured the plaintiff's calves to ascertain whether there was muscle wasting, it was incumbent on the Panel to examine the plaintiff for itself to determine whether there was muscle wasting. Thirdly, he submitted that because vestibular dysfunction was variable, the Panel was obliged to repeat the Hallpike test to see if a positive test could be obtained. In respect of each of these matters, Mr Turnbull contended that the Panel was in error (either of law on the face of the record or jurisdictional error) for failing in its duty to enquire. He relied on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI) and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (which was considered in SZIAI).
Before turning to the three matters raised by Mr Turnbull, I propose to address SZIAI, which concerned a challenge to a refusal to grant a protection visa to SZIAI, who applied for review of the Minister's decision in the Refugee Review Tribunal (the Tribunal). In support of his application, SZIAI provided certificates from persons who purported to vouch that he was an Ahmadi. The issue whether he was an Ahmadi was relevant to whether SZIAI had a well-founded fear of persecution if he was deported from Australia to Bangladesh. The certificates contained contact details of the persons who made the certification. The Minister relied on a letter which he received from the association which had purported to issue the certificates. The letter was to the effect that SZIAI was not a member of the association and that the certificates were fake. The issue was whether the Tribunal's decision was vitiated by error when it did not make further inquiries of the persons whose names and contact numbers were on the certificates. SZIAI succeeded in the Federal Court. The Minister appealed to the High Court.
The plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said, at [25]: "Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a 'duty to inquire', that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error…" [Footnotes omitted.]
In SZIAI, the High Court found that there was nothing to indicate that further inquiry would have yielded a useful result and that there had been no denial of procedural fairness because SZIAI had been given an opportunity to comment on the letter.
I will now address the three matters raised by Mr Turnbull.

Assessment of credibility of the plaintiff

In substance, the plaintiff's complaint is that the AMS formed an adverse view of his credit and that, in order to perform its review function, the Panel was obliged to examine him. I reject this submission. What the AMS was concerned to establish was the reliability of the plaintiff, in terms of the history given, the symptoms described and the conduct on examination. This is a different process than the assessment of credibility in a courtroom: see the discussion of credibility in Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431 (Lord Pearce). Where a medical expert, such as an AMS, notes a disparity between the history given and a known fact, or the symptoms described and known medical conditions or the conduct on examination and the AMS's knowledge of medical science, the medical expert is not, at least for the purposes of assessing physical impairment, concerned (as a court might be) with the question whether a claimant is, for example, lying for financial gain or whether there is a functional overlay or another psychiatric explanation for the disparity.
In so far as the AMS assessed the plaintiff's credit, its assessment was based on two matters: first, a disparity between the history the plaintiff gave and the objective facts as established by the documents which had been placed before the AMS; and second, a disparity between the symptoms described by the plaintiff and any known organic cause. The first matter was a matter of record. The second matter was one which called for medical expertise. Each of these matters was germane to the assessment of impairment since it was important to determine whether the plaintiff was a reliable historian and whether the findings on examination reflected an organic cause. This task was pre-eminently one for the AMS, as a medical expert. The Panel did not need to examine the plaintiff to review the AMS's comparison between his stated symptoms and any known organic cause since this was a matter within its medical expertise. Nor did it need to have regard to the plaintiff's statement since the fact of the disparity between findings on examination and known organic cause was not something that could be explained by the plaintiff himself.
There was no denial of procedural fairness since the plaintiff was given an opportunity by the Panel to make submissions about any errors made by the AMS. The plaintiff made detailed submissions to the Panel about this matter which, as is apparent from the Panel's reasons, were considered by the Panel.

Whether an examination was required for the Panel to form a view about the percentage WPI of the plaintiff's lumbar spine

The Panel addressed the plaintiff's submission that Dr Truskett was in error in failing to measure his calf circumference for the purpose of determining muscle wasting and concluded that "it was not of significance in terms of his examination of the lower limbs as a whole" (see [72] of the Panel's reasons extracted above).
Mr Turnbull argued that, when one has regard to the Guidelines, it is plain that such a measurement is required. He relied on what Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] that the concern of the law in the context of procedural unfairness is to "avoid practical injustice".
In order to address this submission it is necessary to consider the Guidelines and what they require. The DRE categories set out above indicate the significance of radiculopathy to DRE III. The Panel's reasons for considering that Dr Truskett's failure to measure calf circumference was of no consequence are explained in [72]-[73] of its reasons set out above. Whether calf circumference was of significance, in light of the other observations and findings on examination, was a matter squarely within the medical expertise of the AMS and the Panel. The Panel, in light of its finding that the lack of measurement was immaterial, was entitled to refuse to re-examine the plaintiff. It was not to the point that another doctor, Dr Patrick, had measured calf circumference and found a disparity between the left and the right calf. Such a disparity of itself was not determinative. Rather, wasting in the context of radiculopathy was what was of significance.
In these circumstances, it was open to the Panel to decline to examine the plaintiff. The refusal to examine him did not amount to a denial of procedural fairness. The Panel addressed the plaintiff's submissions on the question of muscle wasting and was entitled to reject them. There was no practical injustice occasioned by the decision of the Panel to decline to examine the plaintiff. Its reasons were ample to explain why it had taken this approach.

Whether the Panel was obliged to examine the plaintiff to repeat the Hallpike test

Mr Turnbull submitted that, since the plaintiff had had one positive Hallpike test in 2010, and the Hallpike test was a "supportive objective finding", he qualified for class 2 in Table 11-4. He relied on the extract from 11.2b in AMA5 set out above which required the examiner to "gauge functioning during episodes with exacerbations". Mr Turnbull submitted that the AMS, or, on appeal, the Panel, were obliged to continue to repeat the Hallpike test until it was positive, as it would be expected to be at times of exacerbation, having regard to the earlier positive test.
The obligation to keep testing until a positive finding is made would appear to be inconsistent with the protocol in the Act for assessing permanent impairment and for reviews to appeal panels of such assessments. While s 329 empowers the Registrar to refer a claimant for further assessment as an alternative to an appeal, the Act does not contemplate that AMSs will be on call to assess exacerbations if and when they arise. Furthermore, the Panel, which had the benefit of considerable medical expertise, was in a position to address the detailed submissions made by the plaintiff as to the different findings made over time when the Hallpike test was administered. Its reasons at [81]-[89] addressed these submissions in detail. I am not persuaded that it was not open to the Panel to refuse to examine the plaintiff or that the refusal constituted a denial of procedural fairness.

The alleged failure to consider the Additional Reports and the plaintiff's statutory declaration

The Additional Reports

Mr Turnbull submitted that the Additional Reports were important, of themselves, and also because they indicated that a further examination was mandated.
The reason for the limitation on material that can be placed before a Panel which is conducting a review of the medical assessment by an AMS is that the Panel is reviewing the assessment of the AMS and not conducting a fresh assessment (subject to the matters referred to above). It is plain from the Panel's reasons that the Panel considered each of the Additional Reports in deciding whether to admit them as part of its review. As its reasons reveal, the Panel's view was that the authors of the Additional Reports were merely providing commentary on the findings and reasons of the AMS. The Panel is an expert body which is well-placed to review the AMS, another expert or group of experts. A new report from a doctor which post-dates the assessment conducted by the AMS does not thereby constitute fresh evidence. Its contents must be examined to ascertain whether it is actually fresh or whether it merely rehashes old arguments or cloaks submissions in a new form. It was open to the Panel to consider that the Additional Reports fell into the latter category. The Panel's refusal to admit the Additional Reports (although it considered them and gave reasons for its decision not to admit them) does not amount to an error of law. There was no denial of procedural fairness.

The plaintiff's statutory declaration

In his written submissions, Mr Turnbull contended, in respect of the plaintiff's statutory declaration: "One of the documents that the plaintiff sought to rely upon was a statutory declaration he swore on 22 December 2018. It is referred to in paragraph 14 of the decision of the Appeal Panel. The Appeal Panel did not accept that document into evidence. The statutory declaration sought to highlight that the plaintiff had had a deterioration in his condition since the time of being assessed by Dr Truskett. That was a submission made by the plaintiff to the Appeal Panel in written submissions. It was a matter of critical importance for the plaintiff that that evidence be before the Appeal Panel. Clearly, it could not have come into being prior to Dr Truskett examining the plaintiff since it referred to events thereafter."
The Employer noted in its submissions in this Court that the plaintiff had not pressed the allegation that his lumbar spine had deteriorated. I understood from Mr Turnbull's oral submissions that this was the case. Accordingly, this matter need not be addressed further.

Alleged failure to find non-compliance with the Guidelines

Mr Turnbull submitted that the Panel was in error in failing to find that Dr Truskett had failed to comply with the Guidelines by not taking the plaintiff's calf measurement. He also submitted that the Panel was in error in failing to find that Dr Williams had failed to comply with the Guidelines by not allowing WPI on the basis of a positive Hallpike test which had been recorded, although not on the day of assessment; or by failing to re-examine the plaintiff until a positive Hallpike test was obtained.

Failure by Dr Truskett to take a calf measurement

It is apparent from the extracts from Chapter 15 of the Guidelines and AMA5 set out above that calf measurement is not mandated in the absence of any finding of radiculopathy. The findings of the AMS, as set out in detail in the Panel's reasons, show that there was no such finding. In these circumstances there was no obligation on the part of the AMS to measure the plaintiff's calves. Wasting of calf muscles can be due to a number of causes. It is only relevant to a finding of WPI with respect to the lumbar spine when it is caused by radiculopathy. I discern no error in the Panel's finding that Dr Truskett's examination of the plaintiff had complied with the Guidelines.

Approach taken to the Hallpike test by Dr Williams

This aspect of the plaintiff's submissions can be dealt with briefly because it has already been addressed in the context of the submissions regarding the refusal of the Panel to examine the plaintiff. The question whether the plaintiff was entitled to a greater percentage than 0% WPI in circumstances where Dr Williams did not elicit a positive response to the Hallpike Test was a medical question within the expertise of Dr Williams, as AMS, and the Panel. No legal error has been established in their approach. There was no suggestion that Dr Williams had failed to carry out the Hallpike test competently.

Conclusion

The plaintiff has failed to make out any of the grounds in the summons. The parties agreed that costs ought follow the event in accordance with the usual rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

Orders

For the reasons set out above, I make the following orders: 1. Summons dismissed. 2. Order the plaintiff to pay the first defendant's costs of the proceedings.

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: 16 December 2019

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