Lukacic v Vickarni Pty Ltd & Anor

CATCHWORDS : Judicial review - Appeal Panel - WIMWCA

LEGISLATION CITED : Supreme Court Act 1970 (NSW) - s 69 Workplace Injury Management and Workers Compensation Act 1998 (NSW) - s 328

Bryer v Metropolitan Water Sewerage and Drainage Board [1939] WCR (NSW) 267 Campbelltown City Council v Vegan [2004] NSWSC 1129 Campbelltown City Council v Vegan & Ors [2006] NSWCA 285 CASES CITED : Craig v South Australia (1994) 184 CLR 163 McGale v Glad (1981) 59 FLR 1 Ruiz v Canberra Rex Hotels Pty Ltd (1974) 5 ACTR 1 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247

Leanne Maree Lukacic - Plaintiff PARTIES : Vickarni Pty Limited t/as Chester and Jakes Pharmacy - First Defendant Medical Appeal Panel of the Workers Compensation Commission - Second Defendant

COUNSEL : Mr D Epstein - Plaintiff Mr Beauchamp - First Defendant

Messrs Stormers - Plaintiff SOLICITORS : Ebsworth & Ebsworth - First Defendant Submitting Appearance - Crown Solicitor - Second Defendant

LOWER COURT JURISDICTION : Workers Compensation Commission

LOWER COURT JUDICIAL OFFICER : Medical Appeal Panel

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

30031/2005 - LEANNE MAREE LUKACIC v VICKARNI PTY LTD t/as CHESTER AND JAKES PHARMACY & ANOR

JUDGMENT (Judicial review; Appeal Panel - WIMWCA) 1 HER HONOUR: By summons filed 4 April 2005 the plaintiff seeks, firstly, a declaration pursuant to section 69 of the Supreme Court Act 1970 (NSW) (SCA) that the decision which was delivered on 4 February 2005 by an Appeal Panel constituted under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWCA) involved jurisdictional error and was beyond power; and secondly, an order that the decision of the Appeal Panel dated 4 February 2005 be quashed and that the Appeal Panel be required to carry out its functions in relation to the review, in accordance with the law. 2 There are two grounds for seeking review. The plaintiff submitted that firstly, the Medical Appeal Panel did not provide adequate reasons; and secondly, the Medical Appeal Panel considered matters which were not raised on appeal. 3 The plaintiff is Leanne Maree Lukacic (Ms Lukacic). The first defendant is Vickarni Pty Limited t/as Chester and Jakes Pharmacy (Vickarni). The second defendant is the Medical Appeal Panel of the Workers Compensation Commission which has filed a submitting appearance. For convenience, I shall refer to the parties by name. 4 Section 69(3) of the SCA provides: "It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings." 5 The "face of the record" is expanded to include the reasons expressed by the Court or Tribunal for its ultimate decision - s 69(4). 6 In Craig v South Australia (1994) 184 CLR 163 at 179 the High Court stated: "If such an administrative tribunal falls into an error of law which causes it to identify the wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it."

The proceedings in the Commission 7 In January 2000, Ms Lukacic was carrying a large crate filled with stock when she slipped and fell whilst working in Vickarni's pharmacy, injuring her back, both legs, both arms and her neck. On 29 September 2003 she lodged an application with the Workers Compensation Commission in respect of those injuries arising out of her employment with Vickarni. The matter was referred to an Approved Medical Specialist, Dr Scougall. 8 Dr Scougall reviewed the medical reports and clinical investigation and examined Ms Lukacic. On 4 August 2004, Dr Scougall issued a medical assessment of permanent impairment. He certified a 7% permanent impairment to her neck, with a 1/10 proportion of permanent loss due to pre-existing condition, bringing the total neck impairment to 6.30%. He also certified 12% impairment to Ms Lukacic's back, again with a 1/10 proportion due to pre-existing condition, bringing the total back permanent loss to 10.8%. Dr Scougall certified that there was no permanent loss or impairment for either arm, or either leg. 9 On 31 August 2004, Ms Lukacic filed an appeal against the decision of the approved medical specialist, Dr Scougall. The Registrar, pursuant to s 327(4), allowed the appeal to proceed to the Medical Appeal Panel. (A copy of the Registrar's decision is not before this Court).

The decision of the Medical Appeal Panel 10 On 4 February 2005, the Appeal Panel decided that Dr Scougall had applied the wrong test, that a demonstrable error did exist, and that Dr Scougall's medical assessment certificate should be revoked and a new certificate should be issued. The approach that the Medical Appeal Panel adopted was to consider the documentary evidence and reports that were before the AMS and also the decision of the Approved Medical Specialist. It decided not to re-examine Ms Lukacic. After summarising the submissions of both parties, the Medical Appeal Panel relevantly stated: "21. Having examined this case de novo we were loathe to interfere with the finding of the AMS. However, from a legal standpoint it does appear that the AMS has indeed applied the incorrect criteria, as the Registrar found that he had. This is because these injuries fall under the now abolished division 4 relating to the assessment of non-economic loss. Such an assessment involves the concept of the loss, the permanent loss or the permanent loss of the efficient use of a part of the body as set out in what was s. 73 of the 1987 Act… 22. We find that therefore the AMS should at least have expressed proper reasons as to why he did not make any assessment in relation to all the limbs which were complained of. 23. Having looked at the material afresh we are of the view that we can do justice to this case without the necessity for a further examination. That is chiefly because we find that in the nature of things this Appellant is not so seriously injured that the magnitude of her disabilities requires a fresh assessment. We feel we can do justice to the parties looking at this matter anew by revoking the medical assessment certificate and issuing a new one. 24. We are of the view that having received some complaint in relation to the limbs - and notwithstanding the lack of complaint of Dr Johnson concerning the neck and arms, that some recognition should be given to the complaints made to the AMS. 25. However, we do observe that the AMS noted a full range of movement in relation to the back and the neck and indeed the limbs as set out in paragraph 10 hereof. We agree on the totality of the material with the Respondent's submission that the AMS's reasons have not been materially affected, but we disagree that demonstrable error has not been shown. … 27. With regard to the back and the neck the panel is of the view that the AMS's assessments are too high and should be reduced. This is based on the panel's experience in dealing with similar cases. The panel is of the view that the AMS attached too much importance to the existence of the pre-existing spondylolisthesis which the panel finds to be not clinically relevant in view of the other material in the reasons of the AMS. 28. For these reasons, the Panel has therefore determined that the Medical Assessment Certificate dated 4 August 2004 given in this matter should be revoked, and a new Medical Assessment Certificate should be issued. The new Medical Assessment Certificate is attached to this statement of reasons." 11 The Medical Appeal Panel certified a total permanent loss or impairment of 3% for neck, 1% for right arm at or above elbow, 1% for left arm at or above elbow, 8% for back, 1% for right leg at or above knee and 1% for left leg at or above knee. The neck impairment had a 1/10 proportion for pre-existing injury, bringing the total permanent loss down to 2.7%. The back impairment also had a 1/10 proportion for pre-existing injury, bringing the total back impairment down to 7.2%. So while some loss was given for the arm and legs, the percentages assigned to the back and neck were less than that assigned by the AMS. 12 Section 328 of the WIMWCA sets out the procedure on appeal. It reads: "Procedure on appeal

(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. The WorkCover Guidelines may 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 unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant 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. ...."

Whether the Medical Appeal Panel provided adequate reasons 13 Counsel for Ms Lukacic submitted that when the Medical Appeal Panel disturbed the assessments of the AMS in relation to permanent impairment of the neck and back, it did not provide adequate reasons for doing so. 14 Counsel referred to Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 where Basten JA at [121] stated: "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." 15 In Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 282, McHugh JA stated: "Whilst it is true that His Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion that he held that the application was fit for work because the CAT scan did not reveal any abnormality." 16 And at 274, Mahoney JA stated: "As I have said, it is clear why the learned judge made the order that he did. He found the worker was incapacitated up to but not beyond 17 January 1984. As I have said, the nub of the complaint made is that he did not detail the reasons why he found the incapacity to cease on that date.

He was moved to select that date because it was the date of, or of the report of, the CAT scan. It is, in my opinion, not required of a judge to detail why the CAT scan, for example, carried such weight as to change his view of her condition at that time. It is sufficient that it be clear, as I think it is, what it was that was involved in his reasoning process." 17 Counsel for Ms Lukacic submitted that the Medical Appeal Panel at [27] of its decision had not made it at all clear what was involved in its reasoning process in deciding that the AMS's assessments with regard to the back and the neck were too high. 18 But at [24]-[25] the Medical Appeal Panel stated firstly, that having received some complaint in relation to the limbs - and notwithstanding the lack of complaint to Dr Johnson concerning the neck and arms, that some recognition should be given to the complaints made to the AMS; and secondly, it observed that the AMS noted a full range of movement in relation to the back and the neck and indeed the limbs as set out in paragraph 10 hereof. It also agreed on the "totality of the material with the Respondent's submission that the AMS's reasons have not been materially affected, but we disagree that demonstrable error has not been shown." 19 The Medical Appeal Panel relied on its own experience together with these findings when it considered what apportionment of percentages should be applied in these circumstances. The Medical Appeal Panel determined what percentages made by the AMS were too high insofar as the back and the neck were concerned. 20 A Tribunal is entitled to rely on its own expertise - see Ruiz v Canberra Rex Hotels Pty Ltd (1974) 5 ACTR 1; McGale v Glad (1981) 59 FLR 1 and Bryer v Metropolitan Water Sewerage and Drainage Board [1939] WCR (NSW) 267. It is my view that the Medical Appeal Panel has provided proper and adequate reasons.

Issues not raised in the appeal 21 Counsel for Ms Lukacic submitted that the Medical Appeal Panel fell into error in conducting a review de novo and should have confined its decision to the matters raised in the appeal, namely, the assessment of permanent loss of efficient use of the arms and legs. 22 The Medical Appeal Panel followed the decision of Wood CJ at CL in Campbelltown City Council v Vegan [2004] NSWSC 1129. 23 At [16]-[17] the Medical Appeal Panel stated: "16 His Honour accepted the proposition that when the Registrar held that at least one of the grounds for appeal existed then, once it came before the appeal panel, the panel itself was not required to determine whether any of the grounds referred to in s 327(3) of the 1998 legislation had been made out. The Panel was not confined to correcting the assessment in relation to such grounds and indeed was entitled to conduct a review afresh. Such an interpretation was consisted with the object of the Act namely to deal with claims efficiently, effectively and in a timely way. 17. It follows therefore that the medical panel is released from having to consider the validity of the grounds of appeal and can simply proceed to examine the merits of the finding of the AMS within the ambit of its expertise and experience." 24 Ms Lukacic's Counsel also submitted that although obiter this was considered on appeal in Vegan [2006], Basten JA stated at [137]: "On a tentative view the approach adopted by the primary judge in the present case may have been in error and the powers of the Appeal Panel may be limited to addressing, and if thought necessary, correcting, errors identified in the certificate granted by the approved medical specialist, as specified by the appellant. However, it is not necessary to reach a final conclusion in relation to this aspect of the matter… " 25 Counsel for Vickarni agreed that Basten JA's comments are obiter dicta and should not be followed. 26 Counsel for Vickarni also submitted that the losses assessed by Dr Scougall that were appealed to the Medical Appeal Panel were dependant upon findings of permanent impairment at the primary site of injury, being the plaintiff's neck and back and any assessment of consequential loss of use of the arms or legs is entirely reliant upon a proper assessment of permanent impairment of the neck and back. This is the task carried out by the Medical Appeal Panel in its assessment. 27 Section 328(2) specifically states that the appeal is by way of review [my emphasis added]. It would be difficult for a Medical Appeal Panel to consider only parts of a person's body in isolation and excise the primary site of injury when conducting a review. Further, the actual application to appeal does not limit the scope of the appeal. It is only when the "written submissions supporting appeal" are read that it can be discerned that Ms Lukacic may be seeking a limited appeal in relation to that part of the decision that relates to "legs" and "arms". 28 In Vegan [2004], Wood CJ at CL at [83]-[84] stated: "83 While I have not found this point, or indeed any other point which has been argued in these proceedings, as clear, or easy of determination, it does seem to me to be more consistent with a review by a Panel of Experts, once a ground for appeal has been identified, that it should be free to conduct a full review de novo on the available material. The position of the Racing Appeals Tribunal, which sat at a second level in an appellate framework, and which was considered in New South Wales Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691 is distinguishable. The position of the Appeal Panel in that case was more akin to that of the present Appeal Panel, in so far as it was held able to conduct a review de novo, while the Tribunal, to which appeal lay from the Appeal Panel, was confined to error review.

84 To confine a lay panel, even though this one is chaired by an Arbitrator, to the narrow confines of an appeal which is more suitable for a court of law, would be contrary to the intent of the Act, or to the objective of dealing with the claims efficiently and effectively, and in a timely way (see ss 3 and 367 of the WIMWC Act). As a consequence, the Plaintiff's assertion that there was an error of law, in relation to the incorrect criteria argument, must fail." 29 In my view the Medical Appeal Panel adopted the correct approach. The comments of Basten JA in Vegan [2006] are obiter dicta. I adopt the approach of Wood CJ at CL in Vegan [2004]. 30 There is no error of law on the face of the record. The application for judicial review fails. The decision of the Medical Appeal Panel dated 4 February 2005 is affirmed. The summons filed 4 April 2005 is dismissed. 31 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed.

(1) The decision of the Medical Appeal Panel dated 4 February 2005 is affirmed.

(3) The plaintiff is to pay the defendants' costs as agreed or assessed. **********

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