Maricic v The Registrar, Workers Compensation Commission

Court of Appeal (NSW)|2010-12-15|Before: Beazley JA, Hodgson JA, Campbell JA

Judgment 1BEAZLEY JA: I agree with the reasons of Hodgson JA and the orders he proposes. 2HODGSON JA: On 15 August 2008, the applicant Biserka Maricic commenced proceedings in the Common Law Division against the first respondent (the Registrar), the second respondent (the Appeal Panel), and the third respondent (Lynch) seeking an order in the nature of certiorari setting aside decisions of the Appeal Panel dated 16 October 2007 and 29 April 2008, and seeking further relief in the nature of mandamus. 3On 8 September 2009 Harrison AsJ ordered that the applicant's summons be dismissed, and ordered the applicant to pay Lynch's costs: Maricic v Registrar, Workers Compensation Commission [2009] NSWSC 925. 4The applicant appealed from that decision. However, by a notice of motion filed in April 2010, the applicant sought an order that her Notice of Appeal be treated as a summons for leave to appeal, and the matter has been dealt with on that basis. The applicant's application for leave to appeal has been heard on the basis that if leave is granted, the appeal will be dealt with without further argument.

Outline of facts 5In October 2004, the applicant suffered an injury at work during her employment by Lynch. 6In December 2006, the applicant lodged an Application to Resolve a Dispute with the Workers Compensation Commission (Red 41 - 97), seeking referral for medical assessment by an Approved Medical Specialist (pursuant to s 293 of the Workplace Injury Management and Workers Compensation Act 1998 ( WIM Act)) as to lump sum compensation, where the degree of permanent impairment was in dispute, and as to the threshold for work injury damages, where the degree of whole person impairment was in dispute. The claim was for whole person impairment of 16 per cent for injury to the cervical spine, thoracic spine, lumbar spine, right lower limb and right knee. The Application was supported inter alia by medical reports from Dr P Endrey-Walder and Dr P Giblin. 7In February 2007, Lynch lodged a Reply to the applicant's Application (Red 98 - 151), contesting her claim for permanent impairment. This Reply was supported inter alia by reports from Dr J M Matheson, including a report dated 27 September 2005 in which Dr Matheson noted that the applicant "held her neck rigidly and would allow no movement in any direction which is not a consistent finding" (Red 107N), that "the minor changes to her neck are just age changes" (Red 108F), that the applicant "has gone on to a lot of illness behaviour which can only be put down to a contrived disorder" (Red 108J) and that "this is a non organic disorder" (Red 108R). 8In May 2007, the Approved Medical Specialist Dr R Middleton issued a Medical Assessment Certificate, certifying whole person impairment of 5 per cent, with 0 per cent impairment attributed to the cervical spine (Red 158L). 9In June 2007, the applicant lodged an application for an appeal against the decision of the Approved Medical Specialist, on the grounds of availability of additional relevant information, and that the assessment was made on the basis of incorrect criteria (Red 162H - J). Although the application form indicated that the applicant required a formal hearing, an email from the applicant's solicitor to the Workers Compensation Commission dated 18 June 2007 stated "I do not require a formal hearing but do require a further examination by the appeal panel at which I wish to be present" (Red 172G). 10In July 2007, Lynch lodged a Notice of Opposition to this appeal. 11On 26 July 2007 a Delegate of the Registrar of the Workers Compensation Commission issued a decision (Red 181 - 2) indicating satisfaction that a ground of appeal was made out under s 327(3)(b) of the WIM Act (the availability of information that was not available before the assessment, namely difficulties occurring during the medical examination itself - these difficulties being due to the absence of an interpreter) and referred the appeal to the Appeal Panel (consisting of an arbitrator Ms J Connelly, and two Approved Medical Specialists Dr M Burns and Dr A Bencsik). 12Dr Burns of this Appeal Panel was appointed to conduct a clinical examination of the applicant, and this took place on 30 August 2007 (Red 184U - W), with an interpreter present (Red 185C). 13On 16 October 2007, the Appeal Panel issued its Certificate giving a whole person impairment of 6 per cent, including 0 per cent for the cervical spine (Red 189), and also issued its Statement of Reasons. Relevantly, these reasons set out findings reported by Dr Burns and the Panel's own conclusions as follows: 26. Dr Burns examined the appellant and his findings are reported below. Findings on examination 27. Cervical spine - There was tenderness over the left side of the base of the neck but no evidence of muscle spasm or muscle guarding. The range of motion in the appellant's cervical spine revealed a 75% decrease in both flexion and extension. Rotation to the right was possible to 70 [degrees] but rotation to the left was absent. Lateral bending to the right was 20 [degrees], but lateral bending to the left was absent. The appellant reported that she felt she could turn to the left, but that it caused pain so she refused to do so. This appeared to be inconsistent with the observation of her in the waiting room at the end of the consultation when she was noted to turn her head to the left at least 30 [degrees] to speak to her husband. It was felt that her inability to turn to the left was voluntary and not due to genuine muscle spasm or muscle guarding. 28. Shoulders - There was no localised tenderness and the range of motion in both shoulders was essentially normal. Neurological examination of both upper limbs revealed normal power tone and reflexes. There: was no evidence of muscle wasting in either upper limb. Sensation was reported as being decreased in the entire left arm. This did not follow a nerve root pattern. 29. Lumbar spine - Examination of the lumbar spine revealed global tenderness. The lumbar lordosis was normal and there was no evidence of muscle spasm or muscle guarding. The appellant was able to flex forward with her fingertips at the upper shin level. Back extension was decreased by 50%. Lateral bending to the left was 50% of the amount of lateral bending to the right. Straight leg rising was 45 [degrees] on the right and 60 [degrees] on the left. On the right she reported back pain going down the lateral aspect of the right leg, which appeared to follow an anatomical pathway. In the seated position straight leg rising was 80 [degrees] bilaterally. There was a negative sciatic stretch test. The physical examination though did not support radiculopathy. There was no evidence of significant muscle wasting or weakness in either lower limb and her reflexes were symmetrical. Additionally there was no evidence of a positive nerve root tension sign. The appellant did report decreased sensation but this did not follow a nerve root pattern. 30. Power, tone and reflexes were noted to be normal in both lower limbs. The appellant reported a decrease in sensation in the entire right leg. This appeared to be slightly worse over the lateral aspect of the thigh and foot. It did not follow a nerve root pattern. 31. Right Knee - The examination of the right knee revealed no localised tenderness. No joint effusion was present. Movements in the right knee were from full extension to 115 [degrees] of flexion. There was no ligamentous instability. PANEL CONCLUSIONS 32. The Panel discussed the findings on examination of Dr Burns and in addition conducted a review of the material before it. We have come to our own conclusions about the impairments suffered by the appellant. 33. Cervical spine - examination of the appellant's cervical spine revealed no evidence of genuine organic signs. The only positive finding in the formal examination was decreased rotation to the left side but this was inconsistent with her later movements and for this reason we do not accept her decreased rotation was genuine. Accordingly we believe that her cervical spine should be rated as DRE Cervical 1. We disagree with Dr Endrey-Walder and Dr Giblin's assessments and do not agree that the appellant should be assessed as DRE 2 as we say there was no genuine muscle spasm or guarding, no non verifiable radiculopathy and the appellant's non uniform loss of range of movement was inconsistent. 34. Lumbar spine - we believe that the appellant should be classified as DRE Lumbar Category 2. Dr Middleton did not make an allowance for the appellant's activities of daily living but based on the history taken we believe it is appropriate to do so. Taking these into account we believe that the figure of 7% is appropriate with a deduction of 1/10th for her pre-existing degenerative disease. Whilst degenerative disease was present there is no objective evidence of the degree of impairment that it was causing. We therefore disagree with Dr Matheson who says that the applicant's lumbar spine impairment is all due to her pre-existing degenerative disease and unrelated to the incident on 18/10/04. We accept that the appellant's loss of range of movement is genuine and the deduction we have allowed is supported by the MRI. 35. Right knee - there is no assessable impairment. This opinion is consistent with the clinical findings on examination by Dr Burns, the AMS and Drs Endrey-Walder, Rowe and Giblin. 14On 12 November 2007, the applicant's solicitor wrote to the Workers Compensation Commission applying for re-consideration of the Appeal Panel's decision, relying inter alia on an allegation of Dr Burns' failure to afford the applicant procedural fairness (Red 191). This letter enclosed a statutory declaration by the applicant (Orange 47 - 48), which was not in evidence before the associate judge and is not relied on before us to establish error, but is relied on in relation to the exercise of discretion should error be established. 15On 24 April 2008, the applicant's solicitor wrote to the Workers Compensation Commission asking for a copy of the report of the examination of the applicant that Dr Burns had provided to the Appeal Panel. 16On 29 April 2008, the Appeal Panel (constituted as before) declined to alter or amend or rescind its decision of 16 October 2007, giving the following reasons: 8. The panel has considered the submissions of the appellant and it is clear that she has a different recollection of the examination to that which is held by Dr Burns, particularly in relation to the cervical and lumbar spine. 9. Where there is a dispute between the account provided by Dr Burns and the appellant we prefer the account provided by Dr Burns as he is an independent approved medical specialist without a vested interest in the outcome whom we accept has conducted a proper examination in accordance with AMA5 and the WorkCover Guides. 10. In relation to the appellant's shoulders and Dr Burns' opinion that there was no muscle wasting in either arm it is important to remember that Dr Burns was only examining the appellant's shoulders in order to properly assess her cervical spine. There was no need to examine the shoulder girdle. The appellant was wearing clothing on the day which allowed easy access to the upper and lower arms and so Dr Burns was able to examine her arms above and below the elbow without difficulty. He used a tape measure to measure the diameter of her arms. 11. In relation to the examination of the appellant's knees we note that crepitus on its own does not attract a permanent impairment rating. The appellant did not report any patellofemoral pain (only a deep ache within the knee) and no patellofemoral tenderness was noted. The requirements of Table 17.31 were therefore not satisfied. 12. In coming to our original decision we took into account the clinical findings of Dr Burns in addition to all the material on the file which included a number of medical reports. 13. We do not accept the appellant's submissions that it was the duty of the examining doctor to put to her for comment every finding which may have been adverse to her interests. The duty of an Approved Medical Specialist is to observe, examine and assess in accordance with AMA5 and the WorkCover Guides. The doctor must compare the subjective symptoms with the objective medical and clinical evidence. 14. Dr Burns is an Approved Medical Specialist who has qualifications in the relevant specialty and who has undertaken the requisite training in the use of the WorkCover Guides. He was appropriately qualified to conduct the examination of the appellant. 17On 23 June 2008, the Appeal Panel declined to provide the applicant with a copy of Dr Burns' report (Red 206 - 7). 18On 15 August 2008, these proceedings were commenced by summons, which gave the following particulars of the grounds for the orders sought: PARTICULARS The Decisions were erroneous because: (a) The Appeal Panel misdirected itself and/or asked itself the wrong question as to the requirements of procedural fairness under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Act") and consequently did not provide the applicant with a copy of the report of Dr Mark Burns dated 3 September 2008 upon which the Decision were based; and (b) In so doing, the Appeal Panel denied the Plaintiff procedural fairness. 19By a letter dated 24 October 2008, the Crown Solicitor advised the applicant's solicitor that the Workers Compensation Commission had informed it that there was no report from Dr Burns; and the associate judge accepted that there was no written report given by Dr Burns to the Appeal Panel.

Decision of Associate Judge 20The associate judge considered the decisions of Estate of Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 and Skillen v MKT Removals Pty Ltd [2007] NSWSC 608, and continued: [29] Brockmann and Skillen held that members of the Appeal Panel are not obliged to make their findings on medical examination available to the parties. As Malpass As J stated in Skillen it is open to the Appeal Panel to conduct a medical examination as part of its review process. Dr Burns' examination was conducted as part of a review of the original medical assessment, in compliance with s 328(3). [30] Ms Maricic argues that Brockmann is distinguishable because in that case the examining doctor recorded the plaintiff's detailed medical history and in this case the report was based on Dr Burns' clinical findings. The information that came from the plaintiff appears to be her reported symptoms. Dr Burns' report was made on the basis of the plaintiff's reported symptoms. The Appeal Panel took into account all the material on the file, which included a number of medical reports furnished by Ms Maricic and she was on notice the panel would use its specialist expertise to reach its conclusion. [31] Dr Burns conducted the medical examination pursuant to s 324(3) of the Act. Dr Burns is a duly trained, qualified and certified Approved Medical Specialist, but he was not a witness; he was and remained a decision maker as a member of the Appeal Panel. His examination formed only part of the decision making process undertaken by the Appeal Panel. The Appeal Panel is not obliged to make its findings on medical examination available to the parties. It is my view, that in these circumstances there was no denial of procedural fairness. 21On that basis she dismissed the applicant's summons.

Issues on application 22The Notice of Appeal now proposed contains the following grounds: 1 The Court below erred by finding that the Second Respondent, the Appeal Panel of the Workers Compensation Commission in matter number WCC 18404 of 2006 (" the Appeal Panel ") was not obliged to make its findings on medical examination available to the Appellant. 2 The Court below erred by relying on the decisions of the Supreme Court of New South Wales in Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing & Ors [2006] NSWSC 235 and Skillen v MKT Removals Pty Ltd & Ors [2007] NSWSC 608 to find that the Appeal Panel was not obliged to make its findings on medical examination available to the Appellant. 3 The Court below erred by failing to find that the Appeal Panel, in the circumstances of this matter, failed to afford the Appellant procedural fairness. 4 The Court below erred by failing to find that the Appeal Panel misdirected itself and/or asked itself the wrong question as to the requirements of procedural fairness under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Act") and consequently did not provide the Appellant with a copy of the report of Dr Mark Burns dated 3 September 2008 upon which its decisions dated 16 October 2007 and 29 April 2008 were based and in so doing, the Appeal Panel denied the Appellant procedural fairness. 23Lynch has provided an amended draft Notice of Contention, relying on the following ground: In the event that the second respondent failed to afford the appellant procedural fairness in not making the examination findings of Dr Burns available to her before making its decision of 16 October 2007, the court below should in the exercise of its discretion have refused the relief sought on the ground that the second respondent made its findings available and gave the appellant the opportunity to be heard before conducting a Reconsideration of its decision on 29 April 2008 .

Statutory provisions 24The application requires consideration of the effect of s 328 of the WIM Act, which is in the following terms: 328 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 but the review is limited to the grounds of appeal on which the appeal is made. The WorkCover 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. (4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel. (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. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel. 25WorkCover Guidelines made pursuant to s 328(2) include the following relevant paragraphs: Procedure of the Appeal Panel 45. An appeal panel consists of two approved medical specialists and one arbitrator. The appeal panel may adopt any of the following procedures in accordance with the needs of the individual case: preliminary review (in all matters), 'on the papers' review, further medical examination by an approved medical specialist on the appeal panel, assessment hearing. Where a further medical examination is required, the registrar will advise the worker of the time and place of the examination. A support person (other than an agent or legal adviser) may accompany a worker to the examination. The worker should not bring any additional medical or other reports to the examination, unless specifically asked to do so. If it is necessary to bring x-rays or similar documents the worker will be advised of this in the letter from the registrar. The registrar must be advised in advance if an interpreter is required for the examination. Assessment Hearing 46. Where the appeal panel determines a matter is not capable of determination on the papers, either with or without a further medical examination, an assessment hearing will be arranged. The appeal panel assessment hearing will be informal and non-legalistic, and will afford the parties a full opportunity to present oral submissions in support of their claims. The assessment hearing is non-adversarial and in most cases no evidence will be taken or cross-examination permitted. A party is entitled to be represented at the assessment and may choose to be accompanied by a person (including but not limited to a legal adviser or agent) to assist in the presentation of their case. The assessment will be sound recorded and a copy of the recording will be available to the parties on request. The parties may seek clarification of matters raised with the assistance of the panel members.

Applicant's submissions 26In written submissions, and in oral submissions by Mr Lancaster SC for the applicant, it was contended that the Appeal Panel was under an obligation to afford procedural fairness to the applicant; and that in this case this required that she be given an opportunity to deal with adverse information that was credible, relevant and significant to the decision to be made, and to that end be informed of such matters that the Appeal Panel knew of and considered may bear upon whether to accept her claims: Plaintiff M61-2010E v Commonwealth of Australia [2010] HCA 41 at [74] - [75], [91], Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [2], Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629, and at 569, 582, 602, 633. 27It was submitted that the (apparently oral) report of Dr Burns to the Appeal Panel included observations that were contentious, controversial and matters of personal judgment, which were unknown to the applicant and operated to produce a decision adverse to her; and they were reported to and adopted by the Appeal Panel without giving the applicant any opportunity to consider this material or deal with it. It was also submitted that any cogency of the opinion of Dr Burns depended on the details of the history taken by him and the methodology he used, these being the very matters on which the applicant should have been given an opportunity to comment and was not. This applied particularly to the reported observation by Dr Burns of the applicant's interaction with her husband in the waiting room at the end of the consultation. 28It was submitted that the associate judge erred in holding that members of the Appeal Panel were not obliged to make their findings on medical examination available to the parties. It was submitted that the case of Brockmann did not suggest an inflexible rule to that effect, or if it did, it was wrong and should be overruled. 29It was also submitted that the point in the Notice of Contention should not be allowed, because it was not taken below; and had it been taken, the applicant may have conducted the case below differently. In any event, it was submitted, re-consideration by the same Panel including Dr Burns could not cure the denial of procedural fairness in the first decision: Twist v Randwick Municipal Council (1976) 136 CLR 106.

Decision 30There is no doubt that the Appeal Panel was under an obligation to afford procedural fairness to the applicant. The question is, what was the content of that obligation? 31This content has to be assessed having regard to relevant provisions of the WIM Act, and of the WorkCover Guidelines (without of course giving any effect to those Guidelines that would be inconsistent with the Act itself). Relevant provisions of the WIM Act and the Guidelines include the following: (1)The WIM Act provides that its purpose is ( inter alia ) to provide injured workers with payment for permanent impairment; to be fair, affordable and financially viable; and to deliver these objectives efficiently and effectively (s 3). (2)The WIM Act contemplates that an approved medical specialist who is a member of an appeal panel hearing an appeal may carry out an assessment (s 324). (3)The Guidelines specifically provide for a further medical examination by an approved medical specialist on the Appeal Panel (par 45). (4)The Guidelines also provide that, if an assessment hearing is arranged, it is to be informal and non-legalistic, and non-adversarial (par 46). 32The effect of s 328 of the WIM Act and of similar provisions in an earlier version of the WorkCover Guidelines was considered by Studdert J in Brockmann , where his Honour said this: [60] In the present case, detailed submissions were filed on behalf of the deceased, together with medical reports, and in those submissions the deceased submitted "that the appeal should be determined on the papers". Of course that was before notice was given of the Panel's determination that there should be a medical examination, but that determination did not prompt the deceased to revise his submission that the matter should be determined on the papers. [61] It is not without significance that the examination was conducted by one of the Panel members, who was to report to the Panel. It is reasonable to conclude from the statement of the Panel's reasons that Dr Watters' examination influenced his decision and that his report influenced the other members of the Panel. [62] The Appeal Panel was entitled to draw upon the expertise of one of its members, as plainly it did in this case. It was entitled to take into account that expertise and the conclusions reached by that expert without disclosing those conclusions to the deceased, before coming to a final conclusion. In making a submission to this effect, a submission which I accept as correct, Ms Allars referred to the decision of the Federal Court in Minister for Health v Thomson 1985 8 FCR 213, a case concerning alleged over-servicing by a medical practitioner. The Committee considering the matter was a committee of five medical practitioners. It was determined that the Committee was entitled to act on its own views without disclosing those views to the medical practitioner before the Committee. In his judgment in this case, Fox J said at 217: "There are many authorities which hold such a Committee can act on its own views, and can do so, without disclosing those views to a person appearing before it in the role of a defendant or otherwise." [63] In his judgment, Beaumont J said at 224: "The respondent further argues that the Committee denied him natural justice by using its own experience and expertise to determine an appropriate frequency of visitation. Although the Committee acknowledged that it did use its own experience and expertise in coming to its conclusions, it does not follow that any breach of the rules of natural justice thereby occurred. By virtue of the provisions of s 80(2) (a reference to the Health Insurance Act 1973), only medical practitioners may be appointed to the Committee and it is only reasonable to assume that the respondent was at all material times on notice that the members of the Committee would be likely to make use of their own expertise and experience in such matters." [64] Wilcox J agreed with both Fox J and Beaumont J. [65] Section 328 of the WIMWC Act provided for an Appeal Panel being structured by three members, two of whom were to be approved medical specialists. Hence applying the reasoning of Beaumont J in Thompson , reasoning with which I respectfully agree, it is only reasonable to assume that the deceased was on notice that the Appeal Panel would use the medical expertise and experience of its medical specialist members in its deliberations. [66] While as a general proposition procedural fairness does require the decision maker to disclose for comment material personal to the individual concerned where the source of that material is other than that individual (see Kioa (above) per Mason J at 587) and Sinnathamby v Minister for Ethnic Affairs (1986) 66 ALR 502 at 506 per Fox J, this requirement does not exist where the material comes from the individual concerned. Here the additional material influencing the Appeal Panel was the history given by and the examination of the deceased himself. It is apparent from para 20 of the Reasons that Dr Watters took a detailed medical history from the deceased, which included no complaint that back pain inhibited intercourse. To the extent that there was reliance upon the history given by the deceased, there was no requirement that the significance attributed to that history by the Panel be conveyed to the deceased (see Sinnathamby (above) per Fox J at 506 and per Neaves J at 513; Ansett Transport v Minister for Aviation (1987) 72 ALR 469 at 499; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 and Pilbara Aboriginal Land Council Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 per Merkel J at 557 (71). 33On that basis, Studdert J held that there was no denial of procedural fairness in that the applicant in that case was not provided with a copy of Dr Watters' report. 34It was contended by the applicant in this case that the reasoning in par [66] does not apply if the history reported by the approved medical specialist to the Appeal Panel is significantly adverse to the applicant and such as may be contested by the applicant (as in this case). Accordingly, it was contended, par [66] was wrong, or else should be read down to apply only where the history said to have been given by the applicant is uncontroversial, and the controversy is limited to the significance attached to the uncontroversial history. 35In my opinion Brockmann was correct, insofar as it decided that the relevant requirement to afford procedural fairness did not generally require disclosure to an applicant of an adverse report to an appeal panel by a member of that appeal panel who has, as an approved medical specialist, carried out a further medical examination for the purposes of an appeal to that appeal panel. 36However, in my opinion it should not be read as deciding that in no circumstances would failure to provide such a report be a denial of procedural fairness; and in my opinion, if it were to be so read, it would be an error. For example, if such a report were to reject an applicant's case on a basis not previously raised and not addressed in material provided by the applicant, procedural fairness may well require that the applicant be given an opportunity to deal with it: cf Siddik v WorkCover Authority of NSW [2008] NSWCA 116. 37In the present case, the issue of whether the applicant's complaints, including her complaints about her ability to move her neck, were genuine, had been squarely raised, for example in Dr Mathieson's report. When the applicant through her solicitor requested a further medical examination, it must have been apparent, at least to the applicant's solicitor, that one issue to be addressed would be whether the applicant's complaints concerning her ability to move her neck were genuine, and that the approved medical specialist would be observing the behaviour of the applicant during the examination in order to come to a view about this. The circumstance that the approved medical specialist's observation extended to his observation of the applicant talking to her husband just after the examination does not in my opinion make a significant difference. 38In those circumstances, I do not think this case is one of those cases where procedural fairness required that there be a report shown to the applicant and an opportunity given for the applicant to contest it. 39It is true that this has the effect that other members of an appeal panel may receive material adverse to an applicant, which has the considerable weight of a report and opinion of a co-member of the appeal panel, which the applicant has no opportunity to contest. However, where as in this case the material relates to an issue previously raised, on which the applicant has had an opportunity to put evidence and submissions, this does not in my opinion amount to a denial of the measure of procedural fairness which the WIM Act mandates. 40I would also observe that in this case, the applicant could have done little more than deny that the observations of Dr Burns were correct, giving rise to a conflict of fact which probably could be resolved only by the constitution of a fresh appeal panel without Dr Burns, and a formal adversarial hearing of a type that the Act and the Guidelines do not contemplate. The alternative, if the conflict of fact was to be dealt with, would be to reconstitute the Appeal Panel and have a fresh examination by one of the reconstituted Appeal Panel members, again a process not conducive to efficient delivery of a remedy under the WIM Act, with the potential for giving rise to the same problem again. 41For those reasons, I do not think the appeal grounds are made out; and it is not necessary to consider the Notice of Contention.

Conclusion 42In my opinion the matters raised are of some substance and the grant of leave to appeal is justified. I would propose the following orders: (1)Leave to appeal granted, Notice of Appeal to be filed within fourteen days. (2)Appeal dismissed with costs. 43CAMPBELL JA: I agree with Hodgson JA.

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: 27 April 2011

Workplace Injury Management and Workers Compensation Act 1988(NSW)

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