Massie v Southern NSW Timber and Hardware Pty Limited

Supreme Court of NSW|2006-09-20|Before: Sully J

Introduction 1 By a Further Amended Summons filed by leave in Court on 20 September 2006 Darryl Peter Massie, ("the plaintiff"), sues Southern NSW Timber and Hardware Pty Limited, ("the first defendant"); The Registrar of the Workers Compensation Commission of NSW, ("the second defendant"); and the Workers Compensation Medical Appeal Panel, ("the third defendant"). The relief claimed by the plaintiff is: "1. A Declaration and Order that the decision of the Second Defendant before the Workers Compensation Commission of New South Wales in the matter of Darryl Peter Massie v Southern New South Wales Timber & Hardware Pty Limited , dated 24 November 2005 involved: (a) Jurisdictional error and was beyond power; (b) An error on the face of the record; and 2. A Declaration and Order that the Decision of the Third Defendant in matter number WCC6095 of 2005 before the Workers Compensation Commission of New South Wales in the matter of Darryl Peter Massie v Southern New South Wales Timber & Hardware Pty Limited , dated 31 January 2006 involved: (a) Jurisdictional error and was beyond power; (b) An error on the face of the record, and 3. An Order that the decision referred to in numbers 1 and 2 above be quashed. 4. An Order that the Second and Third Defendants carry out their functions in accordance with sections 327, 328 and 329 of the Workplace Injury Management and Workers Compensation Act 1998 and otherwise in accordance with law. 5. An order that the Defendants pay the Plaintiff's costs of the Application." 2 A Summons having the same parties was originally filed on 17 March 2006. An Amended Summons was filed on 19 April 2006. The relief claimed in those two pleadings is differently framed from the relief claimed in the Further Amended Summons in that no relief is there claimed against the Decision of the third defendant. 3 The second and the third defendants submitted appearances in the usual form. The first defendant appeared before this Court by learned Counsel and contested all of the plaintiff's claims to relief. 4 An affidavit in support of the plaintiff's case was sworn on 17 March 2006 by Mr. T. J. Concannon, the plaintiff's Solicitor. That affidavit, and the various documents annexed to it, constitute the whole of the evidence that was placed before this Court.

Facts 5 On 9 May 2002 the plaintiff, then an employee of the first defendant, suffered a work-related injury. The first defendant's workers compensation insurer accepted liability for that injury, and various workers compensation payments, including weekly compensation payments, and payments on account of medical expenses have since been made. 6 On 27 April 2005 the plaintiff lodged with the Workers Compensation Commission of New South Wales, ("the Commission"), an Application to Resolve a Dispute. The Application Form notifies the first defendant, which is cited as respondent to the application, that the application is one made for: first, "Permanent Impairment/Pain and Suffering"; and secondly, "Threshold Dispute for Work Injury Damages or Commutation". A collection of medical reports and certificates and other documents which were put forward in support of the application was annexed to the application itself. This documentation, as it appears attached to Mr. Concannon's affidavit, comprises some 113 pages of material. 7 On 18 May 2005 the first defendant lodged with the Commission its formal Reply to the plaintiff's application. This document, also, is voluminous, running to some 47 pages. Part 3 of the reply deals with the topic: "Dispute Details". The detail of Part 3 is: " Attempts to resolve dispute The Applicant has been assessed by a Doctor although there appears to be quite a divergence of opinion in relation to the WPI. What complicates matters in this case is the Applicant sustained quite a severe injury on the 30 January 1993 whilst employed by the Sapphire Valley Caravan Park. This injury was subject to previous proceedings in the compensation court which had judicial matter number 6238/94. The Applicant underwent a laminectomy on the 30 March 1994 and obtained a commutation which was quite substantial. It appears that the Applicant also had further injury on the 30 November 1998 whilst employed by The Tween Waters Caravan Park at Merimbula. No particulars have really been provided. We have not been made privy to whether or not the claim was made in relation to that injury. The real issue in this matter is the extent of pre-existing condition i.e. the Section 323. We have arranged for the Applicant to be assessed by an Orthopaedic Surgeon in order to assess the level of permanent impairment. List issues in dispute and reasons supporting dispute · Extent of pre-existing condition and its impact on the proper assessment under AMA 5 · Method of assessment" 8 The reference in that material to "WPI" is a reference to what is described in the relevant legislation as "whole person impairment". The reference to "the Section 323" is a reference to section 323 of the Workplace Injury Management Act 1998 (NSW), ("the WIM Act"), which section reads: "(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. NOTE: So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%). (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter. (4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section. (5) [repealed]" 9 Part 7 of the WIM Act deals with the topic: "Medical Assessment". Of the various sections which comprise Part 7, it is relevant to note the following: " [WIM 319] Definitions 319 In this Act: approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist. medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, (e) the nature and extent of loss of hearing suffered by a worker, (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable. [WIM 320] Appointment of approved medical specialists 320 (1) The President is, in accordance with criteria developed by the Minister in consultation with the Council, to appoint medical practitioners to be approved medical specialists for the purposes of this Part. (1A) The Council may make recommendations to the President in relation to the appointment of a medical practitioner under subsection (1) and the President is to have regard to any such recommendation in making the appointment. (2) The terms of any such appointment may restrict an approved medical specialist to medical disputes of a specified kind. (3) The President is to ensure that, as far as reasonably practicable, arrangements are in place to facilitate the taking place of assessments under this Part in the regional areas of the State. (4) The Authority may arrange for the provision of training and information to approved medical specialists to promote accurate and consistent assessments under this Part. (5) The Registrar may from time to time issue a list of the medical practitioners who are for the time being appointed as approved medical specialists under this section. The list is evidence of the appointments concerned. (6) A matter or thing done or omitted to be done by an approved medical specialist in the exercise of functions under this Act does not, if the matter or thing was done or omitted in good faith, subject the approved medical specialist personally to any action, liability, claim or demand. [WIM 321] Referral of medical dispute for assessment 321 (1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral. (2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute. [WIM 325] Medical assessment certificate 325 (1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate ) as to the matters referred for assessment. (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. (3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error. (4) An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence. [WIM 326] Status of medical assessments 326 (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned: (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition of abnormality, (c) the nature and extent of loss of hearing suffered by a worker, (d) whether impairment is permanent, (e) whether the degree of permanent impairment is fully ascertainable. (2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings. [WIM 327] Appeal against medical assessment 327 (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (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 (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error . (4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists. (5) If the appeal is on a ground referred to in subsection (3)(c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal. (6) If the appeal is on a ground referred to in subsection (3)(a) or (b), the Registrar may refer the medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment. (7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act." 10 As of 2 September 2005 Dr. H. J. O'Neill was an approved medical specialist as contemplated by section 320 of the WIM Act. 11 On 2 September 2005 Dr. O'Neill issued a Medical Assessment Certificate. The certificate reflects the result of an assessment made by Dr. O'Neill of the plaintiff's "Degree of Permanent Impairment", pursuant to section 325 of the WIM Act. Dr. O'Neill certifies that in his opinion the plaintiff suffered on May 2002 a lumbar spine injury resulting in a degree of permanent impairment assessed at 22% of whole person impairment. 12 By a notice given pursuant to section 327 previously herein cited, and filed on 7 October 2005, the first defendant appealed against Dr. O'Neill's assessment. The sole ground of appeal that was nominated in the notice was expressed thus: "The medical assessment certificate contains a demonstrable error." 13 Attached to that Notice of Appeal was a document headed: "Statement setting out grounds for appeal against decision of approved medical specialist'. The relevant portion of that statement reads: "The Appellant, pursuant to the Workplace Injury Management Act 1998 Section 327 seeks leave to appeal against the medical assessment certificate issued by Dr. Albert Frank Bencsik, AMS, in proceedings number 6095-2005 dated 7 October 2004. In support, the Respondent submits as follows: ASSESSMENT OF WHOLE PERSON IMPAIRMENT (BACK INJURY) The medical assessment certificate of Dr. O'Neill contains the following demonstrable errors: · Failure to take into account the medical report of Dr. Ian Harris dated 7 June 2995 (sic but semble 2005) (filed 6 July 2005 under an Application to Admit Late Documents). Dr. Harris' report provides what the respondent submits is the appropriate section 323 deduction, ie, 100%. Furthermore, Dr. Harris' report provides clear argument in favour of this determination. · Failure to take account of the history of this matter, ie, previous L5/S1 Laminectomy in 1994, and subsequent failure to make an appropriate deduction on this basis. At law, the minimum deduction should be 10%, however the respondent suggests that the appropriate deduction is 100%." 14 The statement contains three additional headings. The first of them is: "Threshold"; the second of them is: "Re-examination by Appeal Panel"; and the third of them is: "or in the alternative, determination on papers". 15 Under the heading: "Threshold" there appears the words: "not applicable". 16 Under the heading: "Re-examination by Appeal Panel" there appears this material: "It is submitted the worker should be re-examined by the Appeal Panel given that physical examination is generally unreliable, and is confounded by the lack of reliability (reproducibility) between different examiners, physical examination is essentially a non-helpful exercise except to establish a base line." 17 Under the heading: "or in the alternative, determination on papers" there appears the following material: "For the reasons herein, it is also submitted the appeal should be determined on the papers. Should the Commission find a determination "on the papers" is not sufficient, the Appellant submits that the matter would be appropriate for a further medical assessment." 18 By a document dated 27 October 2005 the plaintiff replied to the assertions thus made in the Notice of Appeal. Paragraph 7 of the reply states: "The Respondent Worker concedes that there are no threshold issues which arise in this Appeal. In relation to the question of whether the matter should be determined on the papers, the Respondent Worker says that this is a matter that can be determined on the papers by the Registrar and should be dismissed. However, if the matter does proceed beyond that threshold stage, then this is a matter which requires fresh examination by an Appeal Panel as it would be impossible for an Appeal Panel to make any assessment of any pre-existing pathology without examining the Worker, particularly given that the Claimant would submit that he should, in fact, have been entitled to a higher assessment of whole person impairment than that which was provided by Dr. O'Neill on the basis that the Claimant would say that there is ample evidence of radiculopathy which could or should have given rise to an assessment of the Worker in DRE Category 5 given the significant findings of left leg symptoms as confirmed by the surgery performed on 13 July 2004 by way of surgical decompression of the left lateral cutaneous nerve of the thigh." 19 On 24 November 2005 a Delegate of the second defendant issued a "Determination" pursuant to section 327(4) of the WIM Act. The relevant findings as thus determined are: "It appears to the Registrar that grounds for appeal exist under · Section 327(3)(d)

of the Workplace Injury Management and Workers Compensation Act 1998 Reasons for Determination 1. The Medical Assessment Certificate of Dr. John O'Neill was issued on 13 September 2005. 2. On 7 October 2005 the Appellant lodged an Application to Appeal the Decision of an Approved Medical Specialist, with attached grounds of appeal. 3. On 27 October 2005 the Respondent lodged submissions in reply to the appeal. 4. Having considered the submissions of the Appellant and Respondent, it appears to the Registrar that: · It does not appear that all the documents admitted into proceedings were provided to the Approved Medical Specialist, specifically documents attached to the Respondent's Application to Admit Late Documents dated 24 June 2004 were not provided to the Approved Medical Specialist: i. Report of Dr. I Harris dated 7 June 2005 · As it appears the Approved Medical Specialist did not consider these documents, it does appear that the assessment appealed against was made on the basis of incorrect criteria or the medical assessment certificate contains a demonstrable error. Accordingly, we advise that the appeal has been referred to the following Appeal Panel: …………………………………………………………………. ." 20 The first defendant's appeal against Dr. O'Neill's assessment was referred accordingly to an Appeal Panel. 21 On 31 January 2006 the Appeal Panel published its decision. The stated process of reasoning discloses that the Appeal Panel proceeded upon the basis of all of the available and relevant documentary material, but including the report dated 7 June 2005 of Dr. Ian Harris, which report the Appeal Panel received as "fresh evidence" in the sense contemplated by section 328(3) of the WIM Act. Section 328(3) provides: "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." 22 The Appeal Panel states in paragraph 11 of its reasons: "The Panel has determined that the 'fresh evidence' should be received in the Appeal because it appears the Medical report may have been inadvertently omitted from the documents sent to the approved medical specialist, Dr. John O'Neill. The Medical report of Dr. Harris was admitted into evidence and was one of the documents which should have been sent to Dr. O'Neill." 23 The conclusions, and the supporting process of reasoning, of the Appeal Panel are stated as follows in paragraphs 26 through 37 of its published decision: "26. The role of the Appeal Panel was considered by the Supreme Court in the case of Campbelltown City Council v Vegan [2004] NSWSC 1129. The Panel's task is to conduct a review of the merits of the Approved Medical Specialist's assessment. 27. Though the power of review is far ranging, it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the AMS certificate is binding. 28. In this matter the Registrar has determined that at least one of the grounds of appeal exists. The Panel has accordingly conducted a review of the material before it and reached its own conclusion concerning the impairments and losses suffered by the Appellant. 29. The Appeal Panel has considered all of the medical evidence before it and reviewed the Medical Assessment Certificate of Dr. O'Neill. In addition it has considered the Medical report of Dr. Ian Harris, dated 07/06/05. 30. Dr. O'Neill in his Medical Assessment Certificate has assessed the worker, Darryl Massie, as having a Whole Person Impairment of 22%. 31. That assessment of 22% made by Dr. O'Neill is based on Mr. Massie being placed in DRE Lumbar Category IV of the AMA Guide's 5th Edition. The panel finds this is the correct category for Mr. Massie because of the surgery carried out on Mr. Massie as a result of his injury of 09/05/02. Mr. Massie ultimately had disc replacement surgery at L4/5 and L5/S1. The panel agrees with opinions of Dr. O'Neill and also Dr. Harris in his report of 07/06/05, that the surgery carried out on Mr. Massie satisfies the criteria for DRE Lumbar Category IV. Table 15-3 on page 384 of the 5th Edition of the AMA Guides has he had "successful or unsuccessful attempt at surgical arthrodesis". Although the procedure carried out on Mr. Massie (disc replacements) was not arthrodesis the indications for the procedure and the aims of the procedure are similar, that is to relieve pain from degenerative discs. The panel therefore agrees that the disc replacement surgery equates to a surgical arthrodesis at those levels. 32. By being placed in DRE Lumbar Category IV Mr. Massie has a minimum Whole Person Impairment of 20%. While Dr. O'Neill assessed a further 2% Whole Person Impairment for restriction in activities of daily living, the Panel finds the correct Assessment is with the modifiers from Table 4.4, page 29 of the WorkCover Guides. This provides one additional lot of 1% for an extra level of surgery and 2% for the second operation (following the L4/5 first operation) giving a total Whole Person Impairment assessment of 23%. 33. The panel therefore finds that the correct total Whole Person Impairment Assessment of Mr. Massie according to AMA 5 and the WorkCover Guides is 23%. 34. The Panel has considered the issue of any deduction under Section 323 for pre-existing condition. The Panel believes that as a result of the injury in 1993 and the subsequent surgery it is appropriate to make a deduction under Section 323. The Panel has considered all of the medical evidence and opinions before it including the Medical reports which were filed in the earlier workers compensation proceedings in which Mr. Massie obtained an award of compensation for the injury of 1993. In considering what is an appropriate deduction the Panel has calculated a Whole Person Impairment assessment as a result of the 1993 injury. This injury and the medical evidence at that time is clearly documented. The Panel finds that Mr. Massie would have had an impairment equivalent to DRE Lumbar Category III that is 10% Whole Person Impairment in accordance with AMA5, Table 15-3, page 384 for "individuals who have had surgery for radiculopathy but are now asymptomatic". 35. It is clear from the documents and medical evidence from 1993 and 1994 that the Respondent had a significant impairment of his back following the injury in 1993. The Panel therefore feels it appropriate to make a deduction of 10% in respect of the current impairment. 36. For these reasons, the Panel has therefore determined that the Medical Assessment Certificate dated 13/09/05 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. DECISION 37. For the reasons set out in this statement of reasons, the decision in this matter is that: the Medical Assessment Certificate 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." 24 The attached Medical Assessment Certificate reflects these findings. It incorporates the following Table:

Body Part or System Date of Injury Chapter, page and paragraph number in WorkCover Guides Chapter, page, paragraph, figure and table numbers in AMA5 Guides % WPI % WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality Sub-total/s % WPI (after any deductions in column 6) 1. Lumbar Spine 09/05/02 Chapter 4 Table 4.4 page 29 Chapter 15, page 384, Table 15.3 23% 10% 13%

25 The claims for relief which are made in the Further Amended Summons challenge both the decision of the second defendant on 24 November 2005; and the decision of the third defendant on 21 January 2006.

The Second Defendant's Determination of 24 November 2005 26 As previously herein indicated, this Determination of the second defendant was made in purported compliance with section 327(4) of the WIM Act. That sub-section required that before the first defendant's appeal could proceed, the Registrar had to consider the Application by which the appeal had been instituted, and to ask whether it appeared to him "….. that at least one of the grounds for appeal specified in sub-section (3) exists". There is now a significant body of authority in this Court as to the correct construction of section 327(4); and it suffices to refer only to the decision of Hoeben J in Zuanic v Gypro-Tech (Australia) Pty Limited (in Liquidation) & ors. [2006] NSWSC 739, where the other relevant authorities are conveniently examined. 27 In paragraphs 53 and 54 of Hoeben J's reasons his Honour notes what seems to be a divergence of opinion in the antecedent decisions, all of them decisions of single Judges of this Court. There is, on the one hand, the view that: "……….. it is only necessary for the Registrar to perform the process of making a subjective assessment of whether it appears that a ground for appeal in subs (3) exists. It matters not whether the assessment is correct or not." 28 There is, on the other hand, the view that section 327 "…….. is open to the interpretation, at least implicitly, that under section 69 of the Supreme Court Act this Court can assess on a prima facie basis the correctness of the Registrar's determination." 29 The relevant provisions of section 69 of the Supreme Court Act 1970 (NSW) are: "69(1) Where formerly - (a) the court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description; or (b) in any proceedings in the court for any relief or remedy any writ might have issued out of the court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the court or of course, then, after the commencement of this Act - (c) the court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ; and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules; and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. (2) [not applicable; not reproduced] (3) 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. (4) For the purposes of sub-section (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) [not applicable; not reproduced]" 30 In Zuanic Hoeben J did not need to choose between those two possible approaches because, on either approach, the facts of that case were such as to lead to the same conclusion. The present case is not, in my view, capable of being accommodated in that way. 31 It seems to me that the Registrar, when exercising the function entrusted to him by section 327(4), must have regard to the actual contents of the appeal as it presents in the originating process that is actually before him. Any such originating process entails the filing of a formal document which requires the provision by the intending appellant of quite an amount of precise detail. One such thing that the intending applicant is called upon to state is an answer to this question: "What are the grounds relied on for the appeal (under s327(3)(a)-(d) Workplace Injury Management and Workers Compensation Act 1998): - Deterioration of the worker's condition that results in an increase in the degree of permanent impairment - Availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment) - The assessment was made on the basis of incorrect criteria - The medical assessment certificate contains a demonstrable error" 32 Each of the four stated items refers to one of the four statutory criteria for which provision is made in section 327(3) of the WIM Act. 33 When, as happened in the present case, the intending appellant nominates with complete clarity the fourth, and only the fourth, of those criteria, then it seems to me to be obvious that the question thereupon arising for the Registrar is the question whether it appears to the Registrar that such nominated ground exists. All of the relevant single-Judge decisions of this Court are at pains to stress, in some way or other, the great breadth of the power to do something upon the basis of a subjective opinion that a prescribed state of affairs exists. I agree with that view as far as it goes. I apprehend, however, that in such a case as the present one, the Registrar's powers, however broad, cannot embrace the power to give an intending appellant legal advice to the effect that it appears to the Registrar that the appellant's own nominated statutory criterion does not exist, but that it appears to the Registrar, motu proprio, that some one or more of the other statutory criteria does exist. My view is, therefore, that in the present case the Registrar was obliged to ask whether it appeared to him that Dr. O'Neill's Medical Assessment Certificate contained "a demonstrable error". That is to say, not a demonstrated error; but something that was reasonably arguable as being an error. 34 It is my further view that, absent clear statutory provision to the contrary, it ought not to be supposed that the intention of Parliament was to make simply and comprehensively unexaminable any particular exercise by a Registrar of the section 327(4) function. Any exercise of that function is more than some inconsequential procedural trifle. The Registrar's appraisal of the particular proposed appeal has serious practical consequences for both the intending appellant and the intended respondent. It is one thing to say that a particular exercise of that function should not be lightly overturned or aborted by this Court, a proposition which I consider to be plainly correct. It is, however, a very different proposition that such a particular exercise of a very important administrative function, however misconceived or mistaken it might be, is effectively beyond judicial review. 35 I adhere, therefore, to the latter of the two approaches that are noted in paragraphs 53 and 54 of Hoeben J's reasons in Zuanic. 36 The Registrar's process of reasoning to the conclusion that Dr. O'Neill's certificate contains a demonstrable error is clearly exposed in the Registrar's Determination and in those parts of the Determination which are quoted at paragraph 19 hereof. A correct understanding of that process of reasoning calls for consideration to be given to the events surrounding the handling of the report, to which the Registrar refers, furnished on 7 June 2005 by Dr. Ian Harris, a specialist retained by the first defendant. The evidence touching this topic is inexact and unhelpful. The following facts seem to me to be clear enough:

[1] The first defendant, in its Reply of 18 May 2005, clearly indicated an intention to obtain a report from Dr. Harris, and to seek to rely upon it.

[2] Dr. Harris did in fact examine the plaintiff and did in fact thereafter furnish to the legal representatives of the first defendant the report of 7 June 2005.

[3] On 6 July 2005 the first defendant applied to the Commission for leave to admit Dr. Harris' report as evidence in support of its case in reply to the plaintiff's application of 27 April 2005.

[4] A copy of the report was served upon the plaintiff on 6 July 2005.

[5] Dr. O'Neill's certificate does not refer to Dr. Harris' report, and Dr. O'Neill, in his exposed process of reasoning in connection with his certificate, says nothing apt to suggest that he ever saw Dr. Harris' report; or that he saw it but mistakenly overlooked it; or that he saw and considered its contents but did not accept Dr. Harris' conclusions. 37 What is not clear is what actually happened to the report of Dr. Harris in the immediate aftermath of its filing on 6 July 2005; and in the period between that date and the date, 2 September 2005, of Dr. O'Neill's certificate. I propose to deal with this lacuna in the evidence by treating as an admission by the first defendant the statement in paragraph 4 of the written submissions put in by learned counsel for the first defendant: "4. The First Defendant submits that the Approved Medical Specialist's Medical Assessment Certificate did contain a demonstrable error in that it did not refer to the report of Dr. I. Harris. Whilst it appears that the Workers Compensation Commission Registry had not forwarded a copy of the report of Dr. Harris to the Approved Medical Specialist due to a clerical oversight the absence of any reference to Dr. Harris' report still constitutes an error." 38 That being so, what was the demonstrable error that seemed to the Registrar to exist? It had to be demonstrable error in the Certificate as it then stood. No such demonstrable error could be identified save by reference to the whole of the evidence that was actually before Dr. O'Neill when he made his assessment and issued thereupon his certificate. 39 A fair reading of the Registrar's reasoning does not seem to me to approach the required assessment in quite that way. The Registrar seems to have taken the view that Dr. O'Neill's certificate was based, or at least might be thought reasonably to be based, upon incomplete material. It is true that the Registrar speaks of "….. the basis of incorrect criteria or ….. a demonstrable error". That is, with respect, unhappily expressed. If the Registrar meant to say that the certificate contained a demonstrable error and had been made on the basis of incorrect criteria, then the Registrar both could and ought to have given an indication of what the other criteria actually were. If the Registrar meant to say no more than that there appeared to the Registrar to exist a demonstrable error in the certificate, then the reference to "incorrect criteria" is surplusage. 40 Assuming that the contents of Dr. Harris' report simply did not ever reach Dr. O'Neill in any form, it seems to me that if that is the only matter to which the Registrar could point as indicating a demonstrable error contained in the certificate as issued by Dr. O'Neill, then the matter is not capable of identifying a demonstrable error in the certificate. The contrary is not really contended in the application for leave to appeal. What that application is really contending is that it is demonstrable that Dr. O'Neill, through no fault of his own, did not take into account Dr. Harris' report, and that Dr. O'Neill's certificate, even if it is clearly sustainable on the whole of the material that Dr. O'Neill did in fact consider, should nevertheless not be permitted to stand because of a demonstrable need to reconsider the reasoning underpinning the certificate, and to do that taking into proper account Dr. Harris' report. 41 What ought then to have been done, in fairness to all concerned, was to return the matter either to Dr. O'Neill, or if thought preferable to another accredited specialist, for a re-assessment based upon complete data. That would have accorded with the letter, as well as what seems to me to be the spirit of section 329 of the WIM Act. 42 All other relevant things being equal, I should have thought that the present plaintiff had established convincingly that the Registrar had plainly and on the face of the Determination fallen into error by eliding the quite distinct notions of, on the one hand, a demonstrable error in Dr. O'Neill's certificate; and, on the other hand, a demonstrable need for a section 329 re-assessment to cure the administrative error that had caused the report of Dr. Harris not to be placed before Dr. O'Neill. 43 Should this Court thereupon intervene by quashing the Registrar's Determination? Such an intervention would be in the nature of pre-Supreme Court Act prerogative relief; and it is trite that any such relief was, and remains, discretionary. 44 One obvious factor in favour of quashing the erroneous Determination is the factor articulated by Kirby P, (Meagher and Sheller JJA concurring) in Anderson v The Judges of the District Court of NSW (1992) 27 NSWLR 701 at 719B: "…….The fundamental purpose of relief prerogative in nature …. is to ensure compliance with the law and due procedure." 45 There are, in the present particular case, other factors tending to the contrary. They are, put simply:

[1] The Determination was not challenged promptly in this Court. It was not substantially challenged at all, indeed, until the filing of the Further Amended Summons; and that notwithstanding the fact that the present plaintiff's reply to the appeal against Dr. O'Neill's finding propounds as its first submission of substance that: "2. the Respondent Worker submits that the Medical Assessment Certificate of Dr. O'Neill does not contain any demonstrable error."

[2] The present plaintiff took a full participating role in the proceedings before the Appeal Panel. I do not perceive a basis upon which it could now be held fairly that the plaintiff had waived, in any precisely technical sense, his objection to the Registrar's Determination; but his participation in the proceedings before the Appeal Panel without there having been made a prompt antecedent application to quash the Determination, seems to me to have, to say the least, a significant impact upon the exercise by this Court of its residual discretion to grant or to withhold prerogative relief. 46 I have not found it at all easy to balance out those competing factors. I have come to the conclusion, however, that it would give a more purposive effect to the legislation to take the stance that a person in the position of the present plaintiff ought to be required, if minded to challenge as is now done a Determination of a Registrar, to do so at once and before the Appeal Panel proceedings have been heard and determined. 47 For the whole of the foregoing reasons, I decline as a matter of discretion to grant the relief sought in the first prayer for relief that is made by the Further Amended Summons, and also the relief caught in the corresponding part of the third such prayer for relief. The Third Defendant's Decision of 31 January 2006 48 Paragraph 11 and paragraphs 26 through 37 of the third defendant's published reasons for its Decision have been reproduced at, respectively, paragraphs 22 and 23 hereof. 49 It is completely clear that the Appeal Panel received Dr. Harris' report upon, and only upon, the basis that the contents of the report satisfied the requirements for "fresh evidence" that are established by section 328(3). In order to reach such a conclusion the Appeal Panel had to be satisfied of either or both of two simple propositions, namely:

[1] that Dr. Harris' report had not been available to the first defendant before Dr. O'Neill made his medical assessment of the plaintiff; and/or

[2] that the first defendant had not in fact obtained Dr. Harris' report before Dr. O'Neill made his medical assessment and could not reasonably have so obtained the report. 50 The first defendant submits that the given facts of the present case satisfy the statutory requirements, or at least the first of them as stated above, because: "The referral by the Arbitrator to the Approved Medical Specialist should have had enclosed with it the report of Dr. Harris. Due, apparently, to a clerical error by an officer of the Workers Compensation Commission the report was not forwarded with the referral. The First Defendant submits that at that time the report had ceased to be available to it because of the clerical error of the WCC. The word 'available' means (in the present context) 'ready for use; at hand; of use or service' (Macquarie Dictionary - Second Edition). The First Defendant submits that at the moment of the error occurring the report of Dr. Harris was no longer ready for use by it. Parties are not permitted to forward documents directly to an AMS." 51 I am unpersuaded by this submission. The question for the Appeal Panel was not whether a report which was undoubtedly in existence at the relevant time and which had been caused by the first defendant to be brought into existence, had been inadvertently omitted from the materials forwarded to Dr. O'Neill. Neither was the question for the Appeal Panel whether Dr. Harris' report ought to have gone forward to Dr. O'Neill, as of course it ought to have done. The question, and the only question, for the Appeal Panel was whether the Appeal Panel itself was now entitled to receive the report as "fresh evidence" in either of the specific senses prescribed in that behalf by section 328(3). 52 In my opinion the statutory requirements could not be satisfied on the given facts; and the Appeal Panel erred in law, and that in a particular aspect which was fundamental to its ultimate decision, in holding otherwise. 53 There is, moreover, a further such fundamental aspect as to which, in my respectful opinion, the Appeal Panel fell into error demonstrated on the face of the record. That further error has to do with the methodology of the Appeal Panel in connection with its findings and consequential calculations in connection with the degree of the plaintiff's permanent impairment. 54 If there is one thing that is completely clear about the Appeal Panel's decision, it is that the Appeal Panel was persuaded, (see paragraph 34 of its reasons), that "it is appropriate to make a deduction under Section 323", (emphasis added). Section 323 has been set out at paragraph 8 hereof. 55 It is submitted by the first defendant, and in my opinion correctly so, that the Appeal Panel did not proceed upon the basis that it would be so difficult or costly to determine the issue of antecedent injury that recourse should be had to an arbitrary adjustment as contemplated and authorised by section 323(2). 56 What the Appeal Panel did was to determine that the plaintiff's injury of 9 May 2002 had resulted in a prima facie whole person impairment of 23%; that it was appropriate, by reason of antecedent injury and impairment to deduct pursuant to section 323(1) a proportion, correctly calculated, of that 23%; that the correctly calculated proportion was one expressed in percentage terms as 10%; and that the appropriate way of giving effect to that deduction of 10% was simply to subtract 10% from 23%, giving an adjusted whole person impairment of 13%. 57 It is submitted by the first defendant that: "the heading of Column 6 of the Table does not indicate in clear terms how the percentage is to be expressed however the Appeal Panel's conclusion is clearly expressed in paragraph 34 '……….. Mr. Massie would have had an impairment equivalent to DRE Lumbar Category III that is 10% Whole Person Impairment in Accordance with AMA5 Table 15 - 3 page 384………….." (emphasis added). The First Defendant submits that it may be that the figures that should have been inserted in Column 6 are 43.48. The First Defendant submits that what has occurred is a clerical error however the intention of the Appeal Panel is clear. The First Defendant further submits that such error does not constitute an error of law on the face of the record (including reasons) or a jurisdictional error……………………………………. The Note to s 323(2) when referring to 10% is referring to a percentage 'reduction in that impairment'. The 'reduction in that impairment' as found by the Appeal Panel in paragraph 34 was a reduction in that impairment equivalent to DRE Lumbar Category III which is a 43.48% reduction." 58 I do not accept these submissions. 59 First, I do not agree that the column 6 heading "does not indicate in clear terms how the percentage is to be expressed". The heading seems to me to be completely clear. There is to be inserted into column 6 a percentage figure that expresses an appropriate proportion to be deducted from the level of whole person impairment expressed, also, as a percentage figure. 60 Secondly, I am in no position to express, upon the basis of the evidence at present in hand any view upon the hypotheses that "it may be" that the column 6 figure ought to have been 43.48% and that the figure of 10% "is a clerical error" by some unspecified persons(s). 61 Thirdly section 326 of the WIM Act, (quoted earlier herein as part of paragraph 9), applies, pursuant to section 328(5) "……… to any such new certificate" as an Appeal Panel might issue in lieu of an earlier medical assessment certificate which the Appeal Panel has decided to set aside and to replace with its own new certificate. This entails, in my opinion, that while ever the new certificate of the Appeal Panel stands, its figures of 23% and 10% are conclusive: see section 326(1)(a) and (b). 62 Fourthly, the Note, section 323(2), could not be clearer as to the way in which the relevant percentage figures are to operate in conjunction. On the findings which the Appeal Panel has certified, the correct calculation was not: 23% - 10% = 13%; it was: 23% - (10% of 23% = 2.3%) = 20.7%. 63 I am, accordingly, of the opinion that the record of the reasoning of the Appeal Panel and its expression in percentage terms in the Appeal Panel's new certificate manifests the two errors of law to which I have referred. 64 Such errors having been demonstrated, should this Court now intervene? It is submitted by the first defendant that, as a matter of discretion, the Court should not intervene "because it would serve no useful purpose". 65 In favour of intervention is the principle quoted at paragraph 44 hereof from the decision of the Court of Appeal in Anderson v The Judges of the District Court of NSW. The proper compliance by an Appeal Panel "with the law and due procedure" is no insignificant matter. The plaintiff's case is a good example of the potential impact upon an injured worker of a successful appeal against a medical assessment certificate that is basically favourable to the worker. 66 The plaintiff's summons was filed originally on 17 March 2006. This is not an unduly long time after the date of the Appeal Panel's decision, 30 January 2006. The plaintiff has always, and in contrast to his stance in connection with the second defendant's Determination, sought substantive relief against the third defendant's Decision. 67 As to the submission that intervention now "would serve no useful purpose", I would suggest the following potentially useful purposes:

[1] A plainly erroneous Decision would not be permitted to stand.

[2] Any further consideration, whether by the third defendant or by a fresh Appeal Panel, could not repeat the "fresh evidence" error of which I have hitherto spoken.

[3] That could entail any of at least three outcomes. One would be a simple Appeal Panel re-hearing without Dr. Harris' certificate. Another would be an order of the Commission that there be reassessment by either Dr. O'Neill or by a fresh medical assessor. A third might be a first instance reassessment by consent. There might well be other possibilities, but there is no present need to attempt an exhaustive inquiry into them. 68 I have come to the conclusion that it would not be appropriate to leave the third defendant's Decision on foot. I propose to quash it, and to remit the first defendant's appeal to the third defendant to be dealt with according to law.

Costs 69 The plaintiff has succeeded against the first defendant upon one of the two major bases of his case against that defendant. The plaintiff has failed on one of those bases because of delay such as to persuade this Court not, as a matter of discretion, to intervene. To order that the first defendant pay the whole of the plaintiff's costs referable to the issue of the third defendant's Decision; and that the plaintiff pay the first defendant's costs referable to the issue of the second defendant's Determination, would be so imprecise as to serve no purpose other than that of provoking a wasteful argument before a Costs Assessor. It is not really possible, in my opinion, to make an exact apportionment of the time taken and the costs incurred upon the two separate issues. 70 I am of the opinion, therefore, that practical justice would be done by an order that the first defendant pay three-quarters of the costs of the plaintiff.

Procedural Addendum 71 On 29 September 2006, and following the conclusion of the hearing, I sent a note to both Counsel seeking their further written submissions in connection with two stated questions. A copy of that note and of the written submissions received in response to it have been marked MFI 1 and placed with the Court file for any necessary future reference.

[1] That the Decision of the Appeal Panel dated 30 January 2006 be quashed.

[2] That the appeal proceedings giving rise to that Decision be remitted to the Appeal Panel to be dealt with according to law.

[3] That the first defendant pay three-quarters of the plaintiff's costs.

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.

Workplace Injury Management Act 1998(NSW)

CITATION : Massie v Southern NSW Timber and Hardware Pty Limited [2006] NSWSC 1045

CASES CITED : Zuanic v Gypro-Tech (Australia) Pty Limited (in Liquidation) & ors. [2006] NSWSC 739 Anderson v The Judges of the District Court of NSW (1992) 27 NSWLR 701

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Cited By (4)