Langham v The Mid-Coast Meat Company Pty Ltd & Ors

LEGISLATION CITED : Supreme Court Act 1970 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Campbelltown City Council v Vegan [2004] NSWSC 1129 Campbelltown City Council v Vegan [2006] NSWCA 284 CASES CITED : Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235 Siddik v Workcover Authority of New South Wales & Ors [2007] NSWSC 129 Skillen v MKT Removals Pty Ltd & Ors [2007] NSWSC 608 Smith v Liquip Services Pty Limited & Ors [2007] NSWSC 687.

Graham Scott Langham (Pl) PARTIES : The Mid-Coast Meat Company Pty Ltd (1st Def) Elaine Grotte, Dr William Lyons, Dr Peter Burke an Appeal Panel constituted pursuant to Section 328 of the Workplace Injury Management and Workers Compensation Act (2nd Def) The Registrar of the Workers Compensation Commission (3rd Def)

COUNSEL : Mr C. Jackson (Pl) Mr S.L.Flett (2nd Def)

SOLICITORS : Rishworth Dodd and Co (Pl) Crown Solicitor (2nd Def)

LOWER COURT JURISDICTION : Workers Compensation Commission

LOWER COURT JUDICIAL OFFICER : Medical Appeal Panel

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30047/05 Graham Scott Langham v The Mid-Coast Meat Co. Pty Ltd & Ors

JUDGMENT 1 HIS HONOUR: The plaintiff was an employee of the first defendant. He suffered injury during the course of his employment. He left this employment in July 1995 and brought a sawmill (in which he worked). Thereafter, he experienced further problems. 2 His history identifies three areas of causation. There was injury in 1992. He was given an injection of hydrocortisone. There was injury on 24 December 1993. He was diagnosed as having discogenic disease at two levels (L5/S1 and L4/5). Because of severe right-sided leg pain, numbness and burning, the L5/S1 disc was removed on 21 January 1994. Because of the problems experienced thereafter (back and left leg), in 1997, the other disc was excised. 3 He made application to resolve a dispute with the Workers Compensation Commission (the Commission). The application was expressed to assess permanent impairment of the back, left leg at or above the knee and right leg at or above the knee following injury at work on 24 December 1993. The application was referred to Dr Ostinga, an Approved Medical Specialist (the AMS). The AMS made assessments of permanent impairment (including one of 45% for the back). 4 The AMS came to the view that disability to the arm of the plaintiff was due entirely to the injury in 1992. He opined that the plaintiff had a severely impaired lumbar spine and that the level of impairment should be assessed at the higher end of the scale. In addressing the question of whether the surgery in 1997 was causally connected to the injury in 1993, he observed as follows:- "At the time of his injury in 1993, two disc lesions were noted. The one causing severe symptoms at L5/S1 and the other demonstrating a bulge which was more than likely associated with changes in the disc related to the work. Over time, it seems and for whatever reason, this disc continued to degenerate following injury and this led to the surgery in 1997. The surgery in 1997 therefore is considered to be causally connected to the Applicant's injury of 23.12.1993." 5 The AMS had been provided with medical material by both parties. There were reports that gave conflicting assessments as to permanent impairment. One of them from Dr Ellis (which was relied on by the plaintiff) supported the assessment of the AMS. 6 An application to appeal was made by the first defendant (on the grounds of incorrect criteria and demonstrable error). The Registrar allowed the appeal to proceed. 7 The Grounds for Appeal (the grounds) relied on by the first defendant contained the following:- "5. The Employer submits that Dr Ostinga has not taken into account the history given by the Worker in his statement and also given to Dr Millons that he mainly did managerial work in his mill but did do some hands on work from time to time. 6. The Employer submits that Dr Ostinga has not commented on Dr Adams (sic) clinical records which the Employer relied upon and served on the Commission and on the Applicant's solicitor by letters dated 3 February 2004. The Employer submits that these records show that the Worker did not seek treatment for his back after March 1994 when it was noted that he had made "a very good recovery" until June 1997 when he presented again with a recurrence. The Employer also notes that Dr Adams (sic) records of the attendance on 30 July 1997 states his back was aggravated by recent chiropractic (treatment)". The Employer submits that this evidence together with the Worker's own admission of some hands on work from time to time could explain why the L4/5 disc may have ruptured or become further injured. 7. The Employer submits that Dr Ostinga has based his assessments on incorrect criteria and that there is a demonstrable error in that Dr Ostinga attributes the disc bulge at L4/5 to the nature and conditions of heavy work at the abattoirs over the years. This was not the date of injury stated in the application nor was this was Dr Ostinga was asked to assess (sic). If Dr Ostinga was of the opinion that the disc bulge at L4/5 was due to the nature and conditions of employment and that this for whatever reason continued to degenerate and eventually ruptured "for whatever reason" then it could not possibly be attributable to the incident in 1993 and the loss attributable to the incident in 1993 should be distinguishable to that caused by the incident in 1993. 8. The Employer submits that Dr Ostinga has also made a demonstrable error in not finding a proportion of the assessments to both the back, legs and left arm due to a pre-existing condition. …… In the alternative, the Employer submits that if Dr Ostinga attributes that condition to the nature and conditions of employment, then again, there is an error as this should not be attributable to the incident in 1993." 8 The plaintiff responded to the grounds by assenting to the appeal being dealt with on the papers and addressing matters raised therein.

9 A review was conducted by the Appeal Panel on the papers. The Appeal Panel approached its task in the light of what had been said by Wood CJ at CL in Campbelltown City Council v Vegan [2004] NSWSC 1129 (both as to role and the giving of reasons). It came to a decision that saw a reduction of the percentage of permanent impairment to the back, as a result of the 1993 injury, to 10%. As a consequence, it revoked the original Medical Assessment Certificate and issued a fresh one. 10 The Appeal Panel gave a Statement of Reasons for its decision (the reasons). In the reasons, appear certain criticisms of the assessment made by the AMS. I shall expressly refer to certain of them. 11 It expressed the view that the AMS did not take account of critical evidence in making his assessment. It expressed the view that he based his assessment on an incorrect and incomplete history. It expressed the view that his assessment did not take into account the fact that different legs were affected in 1993 and 1997. The reasons contain the following:- "Taking all these matters into consideration it is the Panel's view that the prolapse of the L4/5 disc and associated left leg symptoms in 1997 was as a consequence of a further injury that occurred during his employment at the sawmill. Accordingly, it is the Panel's view that the permanent impairment of the worker's back is fifty percent due to the 1993 work injury and fifty percent due to the 1997 injury. Having regard to all the medical evidence before it and taking into account both back injuries and the two back operations, the Panel is of the view that Dr Ostinga's assessment of 45% is too high and that the permanent impairment of the worker's back is 20% - 50% of which is due to the 1993 work injury and that the permanent loss of efficient use of the right leg at or above the knee is 8% - entirely due to the 1993 work injury. It is the Panel's view that there is no permanent percentage loss of use of the left leg at or above the knee as a result of the 1993 work injury as the L4/5 disc rupture and associated left lower limb symptoms were due to a further injury in 1997."

12 By Summons filed on 19 March 2007, the plaintiff seeks judicial review pursuant to s69 of the Supreme Court Act 1970 (NSW). The hearing of the Summons took place on 5 July 2007. On that day, the plaintiff filed in Court a Further Amended Summons. 13 Apart from the setting aside of the decision of the Appeal Panel, the Further Amended Summons seeks a declaration concerning clauses 43 and 44 of the Medical Assessment Guidelines. During the hearing, it was made clear that this matter of alleged invalidity of those clauses was put formally so as to preserve any future appeal rights. It was accepted that the Court would follow the decision in Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235 (which was followed, inter alia, in Siddik v Workcover Authority of New South Wales & Ors [2007] NSWSC 129). 14 The decision of the Appeal Panel was given prior to the decision of the Court of Appeal in Campbelltown City Council v Vegan [2006] NSWCA 284. Subsequent to that decision are the more recent decisions of Skillen v MKT Removals Pty Ltd & Ors [2007] NSWSC 608 and Smith v Liquip Services Pty Limited & Ors [2007] NSWSC 687. 15 The Further Amended Summons contains four grounds for relief pursuant to s 69 of the Supreme Court Act 1970 (NSW). Three of them are founded on what was said by the Court of Appeal in Vegan, and the decisions of Skillen and Smith. The fourth one is only put on a formal basis and is to be treated in a manner similar to the declaration sought in respect of clauses 43 and 44. 16 Broadly speaking, the plaintiff's case is that the Appeal Panel ventured outside the scope of the Grounds for Appeal and failed to give adequate reasons for its decision. He further contends, that in so doing, there was a denial of natural justice. 17 In responding to the submissions made by the plaintiff in respect to the scope of the appeal and denial of natural justice, the first defendant submits that the decision of the Appeal Panel was based on observations contained in material that had been before the AMS and was known to the plaintiff. Largely, the submission as to the adequacy of the reasons was left unaddressed. 18 In deciding this matter, I propose to follow what was said by the Court of Appeal in Vegan and the decisions of Skillen and Smith. I shall now turn to the detail of what was put on behalf of the plaintiff. 19 The plaintiff contends that the grounds did not bring a challenge to the percentage of 45% as assessed by the AMS. He also says that the Appeal Panel failed to give adequate reasons for its assessment (of 45% being "too high"). 20 The question of what may be encompassed by grounds of appeal may not always be an easy one. This is one of those cases in which difficulties are thrown up (inter alia, what may be a typographical error does not make the task any easier). 21 Whilst the main thrust of the grounds may be thought to be emphasis on what the AMS was required to assess, unidentified incorrect criteria and demonstrable error in relation to "pre-existing condition" and the nature and conditions of his employment (stress was placed on paragraphs 7 and 8), matters were raised concerning what happened subsequent to 1993. 22 Whilst it may be correct to say that there was no express challenge to the effect that the percentage of 45% was "too high", by implication that assessment was challenged by what was raised in respect of "pre-existing condition" and matters after 1993. 23 However, the assessment of the Appeal Panel brought about a significantly different result (a reduction of 35%). On one view, it may be said that the grounds do not contemplate a challenge that brought about such a significantly different result. Whether or not that be the case, it may be said that there was a denial of natural justice by not informing the plaintiff that it had such a significantly different result in contemplation and by not affording him a reasonable opportunity to address that matter. It is unnecessary to express a final view on either of these matters, as these proceedings can be decided on another basis.

24 Finally, I turn to the question of reasons. What is required to adequately disclose the reasoning process will vary from case to case. In this case, the percentage of permanent impairment to the back was reduced to 20%, of which 10% was attributed to the 1993 injury. I appreciate that the Appeal Panel was engaging in a task involving evaluation and judgment and that such matters may be difficult to express with precision. However, the assessment of the Appeal Panel represented a significant departure from what had been assessed by the AMS and that departure was expressed and explained in brief and general language. The 45% was said to be "too high" and the 50% was left unexplained. In my view, more should have been offered to explain how the Appeal Panel came to the figure of 20% and then reduced it by a further 50%. 25 The Certificate issued by the Appeal Panel is set aside. The matter is remitted to the Registrar for referral to an Appeal Panel constituted under s328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) for determination according to law. The first defendant is to pay the 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.