Merza v Registrar of the Workers Compensation Commission & Anor

Supreme Court of NSW|2006-09-14|Before: Hoeben J

CITATION : Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939

DECISION : Summons dismissed. ; The plaintiff is to pay the costs of the second defendant as agreed or assessed.; Liberty to apply on 2 days' notice.

CATCHWORDS : ADMINISTRATIVE LAW - Judicial review of Registrar's decision to refuse application to appeal from decision of Approved Medical Specialist - meaning of "demonstrable error" in section 327(3) of Workplace Injury Management and Workers Compensation Act 1998.

LEGISLATION CITED : Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998

Air Grills Pty Limited v Kiparizov [2005] NSWCC PD 74 Campbelltown City Council v Vegan [2004] NSWSC 1129 at [74] CASES CITED : Escobar v Spindaleri (1986) 7 NSWLR 51 Wikaira v Registrar of the Workers Compensation Commission of NSW and Anor [2005] NSWSC 954 Zuanic v Gypro-Tech (Australia) Pty Limited and Ors [2006] 739 at [30]

Maykel Merza - Plaintiff PARTIES : Registrar of the Workers Compensation Commission - First Defendant Spicer Axle Australia Pty Limited - Second Defendant

Mr B McManamey - Plaintiff COUNSEL : Submitting Appearance - First Defendant Mr M Gollan - Second Defendant

Ron Kramer Associates - Plaintiff SOLICITORS : IV Knight, Crown Solicitor - First Defendant Lee and Lyons - Second Defendant

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

30096/2005 - Maykel MERZA v Registrar of the WORKERS COMPENSATION COMMISSION and Anor

JUDGMENT 1 HIS HONOUR: Nature of claim By an amended summons filed 1 February 2006 the plaintiff sought the following declarations and orders:

(1) A declaration that the decisions of the first defendant in matter No WCC 14867 of 2004 in the matter of Maykel Merza v Spicer Axle Australia Pty Limited dated 4 August 2005 and 13 October 2005 involved error on the face of the record and jurisdictional error.

(3) An order that the first defendant carry out her functions in accordance with s327 of the Workplace Injury Management and Compensation Act 1998.

(5) Such further or other order as the nature of the case requires. 2 The basis for the application was expressed as: "Grounds: (1) The first defendant erred in law when she failed to consider whether the Medical Assessment Certificate complied with s 325 of the Workplace Injury Management and Compensation Act 1998. (2) The first defendant erred in law when she concluded that the Approved Medical Specialist was not required to assess the plaintiff on the basis that he suffered injury to his lower back involving two discs including resulting sexual dysfunction on 15 September 2001. (3) The first defendant erred in law when she concluded that there was no demonstrable error when the Approved Medical Specialist assessed the matter without being informed that there was no dispute that the plaintiff suffered injury to the L4/5 disc in the incident of 15 September 2001." 3 The plaintiff alleged that he suffered an injury to his lower back when employed by the second defendant (hereafter called Spicer) on 15 September 2001. Spicer through its workers compensation insurer, CGU Workers Compensation (NSW) Limited (hereafter called CGU), has appeared to oppose the plaintiff's claim for relief. The first defendant (hereafter called the Registrar) has submitted to the orders of the Court.

Factual background 4 There is no real issue between the parties as to the factual background. Except as otherwise indicated, I find the factual background to be as set out in the following paragraphs. 5 The parties agreed that the affidavit of Ron Kramer of 20 March 2006 contained copies of all documents relevant to the application. References to the evidence will be made by reference to the contents of that affidavit. 6 The plaintiff was born on 1 August 1961 in Iraq. He arrived in Australia in 1994. He commenced employment with Spicer in 1995. On 15 September 2001 he bent forward to lift a tray of axles and as a result suffered an injury to his lower back. He did not lose any time off work but performed light duties until 24 May 2002. The plaintiff has not worked since that date. 7 The plaintiff made a claim for benefits under the Workers Compensation Act 1987. That claim was accepted by CGU and payments of compensation and of medical expenses were made to or on behalf of the plaintiff. On 29 October 2002 the plaintiff underwent surgery in the nature of a discectomy at the L4/5 level of the back. Liability for that surgery was accepted and the medical expenses associated with it were paid by CGU. 8 By letter dated 18 November 2003 the plaintiff made a claim for permanent impairment benefits under the Workers Compensation Act 1987. A response was received from CGU by letter dated 28 January 2004. Attempts to resolve the question of the amount payable for permanent impairment as between the plaintiff and CGU were unsuccessful. 9 By a document entitled "Application to Resolve a Dispute" dated 8 September 2004 (annexure "A" to the affidavit) the plaintiff commenced proceedings in the Workers Compensation Commission. The application was for "permanent impairment" and "threshold dispute for work injury damages or commutation". The relevance of the latter application is that since November 2001 a worker cannot sue his or her employer for damages at common law unless the worker can establish a whole of person impairment of at least 15%. 10 The description of injury in the application was "injury to lower back". The application had annexed to it a large number of medical reports which comprised the results of MRI and CT scans and assessments by doctors of the nature and extent of the plaintiff's lower back injury. There was also annexed to the application a statement by the plaintiff dated 8 September 2004 together with some correspondence which had passed between the plaintiff's solicitors and CGU. 11 On 7 October 2004 CGU, on behalf of Spicer, filed a document entitled "Reply to Application to Resolve a Dispute" (annexure "B" to the affidavit). Under the heading "List Issues in Dispute and Reasons Supporting Dispute" the following was set out: "Whether the applicant sustained any injury arising out of or in the course of employment with the respondent. Whether the applicant's employment with the respondent was a substantial contributing factor to the alleged injury. Whether the applicant suffers from some unrelated or pre-existing condition or abnormality. Whether the applicant has any losses giving rise to an entitlement to lump sum compensation pursuant to s66 and/or 67 of the Act and the extent of such losses. Whether the applicant has any permanent impairment as alleged or at all, or alternatively the degree of impairment. Whether the degree of permanent impairment is at least 15% thereby entitling the applicant to work injury damages." 12 Annexed to the reply were reports from Dr Korbel and Dr Roarty. Dr Korbel's reports dealt with the plaintiff's alleged sexual dysfunction. Those of Dr Roarty related to the plaintiff's lower back injury. While there is some ambiguity in his diagnosis, Dr Roarty did not challenge the relationship between the plaintiff's need for an operation on his L4/5 disc and the injury. 13 Despite the "issues in dispute" specified by CGU in the reply, none of the medical reports attached to the application and the reply raised as an issue the relationship between the operation on the plaintiff's L4/5 disc and the work injury of 15 September 2001. The matter thereafter proceeded in accordance with Part 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the Act). 14 An arbitrator, David Francis, was allocated by the Registrar to the matter. A teleconference was held between the arbitrator and the legal representatives of the parties on 21 December 2004. There is no evidence as to what occurred during that teleconference. 15 Following that teleconference a document entitled "Request for Medical Assessment by Approved Medical Specialist" was prepared by the arbitrator (annexure C to the affidavit). That document was dated 21 December 2004. The document directed that the plaintiff: "Submit to medical assessment by an approved medical specialist for the purposes of: Permanent Impairment Dispute and Whole Person Impairment Threshold Dispute."

The "body part" in relation to which assessment was required was identified as "lower back including resultant sexual dysfunction". The date of injury was specified as 15 September 2001. The assessment of the sexual dysfunction aspect of the plaintiff's claim was referred to Dr Breslan, a urologist. The assessment of the lower back injury aspect of the plaintiff's claim was referred to Dr Paul Hitchen, orthopaedic surgeon. Each doctor thereby became an approved medical specialist (AMS) for the purposes of the Act. 16 There is no evidence as to what, if any, findings were made by the arbitrator before the matter was referred for medical assessment. I infer that no findings were made other than injury to the lower back on 15 September 2001. I base that inference on the contents of the medical referral document. Had other findings been made there would have been a record of them kept by the arbitrator, or by one of the parties or some reference to them in the medical referral document. 17 The plaintiff was examined by the AMS, Dr Hitchen, on 14 February 2005. On 5 April 2005 the AMS issued a medical assessment certificate (annexure D to the affidavit). The certificate so issued complied with the formal requirements of s325 of the Act. The certificate was a lengthy and detailed document. Under the heading "Summary of Injuries and Diagnoses" the following was set out: "Mr Merza alleges a lower back injury when at work in September 2001. On the investigations at hand, there was evidence of multiple level degenerative disc disease as characterised by disc dehydration and desiccation. In particular, there appeared to be an acute herniation of the L5/S1 disc with an extruded fragment compressing the right S1 nerve root. Contemporaneous investigations reveal that the right L5/S1 fragment disappeared in the months that followed, consistent with resorption. Investigations also revealed an abnormal disc at L4/5. On the balance of probabilities, the original work injury caused an acute herniation of the L5/S1 disc upon a background of degenerative change. The inflammatory changes post herniation settled within a few months as manifest by the repeat MRI scan. When at work, there was a recurrence of injury, particularly when on light duties. Within two months of ceasing work, a CT Scan of the lumbar spine did not reveal any evidence of a significant L4/5 disc herniation. Four months after ceasing work, in the absence of any further lifting injury, imaging showed a new L4/5 disc herniation. On a balance of probabilities, that was in fact, a degenerative disc herniation that had nothing whatsoever to do with the workplace. Thus, the diagnosis is multiple level degenerative disc disease, with a work related traumatic herniation of the L5/S1 disc. There was a later spontaneous degenerative herniation of the L4/5 disc for which surgery was undertaken." 18 Apart from the results of his own examination of the plaintiff, the AMS had been provided with all of the medical evidence tendered on behalf of the plaintiff and CGU. It is clear from the certificate that the AMS had regard to all of that material in reaching his conclusion. 19 On 21 April 2005 the plaintiff made an application to the Registrar to appeal against the medical assessment pursuant to s327 of the Act (annexure E to the affidavit). Submissions were made in support of the application to appeal. The certificate of the AMS, together with the same medical evidence that was before the AMS, was placed before the Registrar. The grounds of appeal relied upon by the plaintiff were those set out in subsections 327(3(c) and (d) of the Act: "(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error. " 20 On 4 August 2005 the Registrar gave her decision as follows (annexure I to the affidavit): "Pursuant to s327(4) of the Workplace Injury Management and Workers Compensation Act 1998, it does not appear to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists. Reasons 1. The Medical Assessment Certificate was issued on 5 April 2005. 2. On 26 April 2005 the appellant lodged the Application to Appeal the decision of an Approved Medical Specialist, on the grounds that: · The assessment was made on the basis of incorrect criteria (s327(3)(c)). · The Medical Assessment Certificate contains a demonstrable error (s327(3)(b)). 3. Pursuant to s327(4) the appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in s327(3) exists. 4. After consideration of the submissions received from the appellant and the respondent it does not appear that either the assessment was made on the basis of incorrect criteria or the Medical Assessment Certificate contains a demonstrable error. 5. The appellant's submissions address differences of medical opinion and interpretation and do not reveal that the Approved Medical Specialist applied incorrect criteria or Medical Assessment Certificate contains a demonstrable error. 6. An AMS is at liberty to balance all the medical evidence, together with his own clinical findings and history and could reasonably come to a different medical conclusion, notwithstanding acceptance of some findings made by other specialists. The Approved Medical Specialist provided sufficient and justifiable evidence to support his conclusions and it was a finding open to be made by the Approved Medical Specialist based on the evidence at hand. Weighing up the evidence and formulating a medical opinion contrary to that of another medical practitioner, does not constitute a demonstrable error. He concurred with elements of Dr Giblin's report but was not bound by the conclusions within it. 7. The Approved Medical Specialist made clear reference to all documentation and scans viewed in the assessment of the appellant. Page 6 of the certificate contains a detailed analysis of the various x-rays, films, CT and MRI scans viewed. The Approved Medical Specialist does not need to make reference to every scan or report but needs to list them, as he did, at p 7 of the certificate as "documentation and other material reviewed". The Approved Medical Specialist clearly reviewed the reports of Dr Lee. 8. The Approved Medical Specialist conducted a thorough examination of the appellant, which is evidenced at p 5 of the certificate. His assessment is based upon weighing up the history obtained from the appellant, his physical examination on the day and his review of available medical documentation and reports. It is apparent that the lower extremities were examined using correct criteria. A difference of medical opinion does not amount to the use of incorrect criteria or a demonstrable error. 9. There is nothing on the face of the record of the Medical Assessment Certificate that indicates that the findings made by the Approved Medical Specialist on the basis of information and material provided to the Approved Medical Specialist, and also clinical observation, amounts to the use of an incorrect criteria or demonstrable error. 10. Accordingly, as it does not appear to the Registrar that at least one of the grounds of appeal exists, the appeal should not proceed and the matter is referred back to the arbitrator for any outstanding issues to be resolved. Delegate of the Registrar." 21 On 26 September 2005 the Registrar gave leave to the plaintiff to apply for a reconsideration of the decision. Pursuant to that leave the plaintiff made further submissions (annexure K to the affidavit) in support of his application to appeal against the medical assessment. The relevant parts of those submissions were: "1. I refer to the decision by the Registrar dated 4 August 2005 that it does not appear to the Registrar that at least one ground of appeal exists in relation to the Medical Assessment Certificate by Dr Hitchen, issued on 5 April 2005 that therefore the appeal should not proceed and the matter is referred back to the arbitrator for any outstanding issues to be resolved. … In Air Grills Pty Limited v Kiparizov [2005] NSWCC PD 74 Deputy President Byron confirmed that the task of determining injury was one for an Arbitrator and not for the Approved Medical Specialist. The task for the Approved Medical Specialist is to assess the impairment as a result of the injury found by the Arbitrator. The appellant's solicitors do not have the benefit of the Arbitrator's referral for assessment by the Approved Medical Specialist however, one must presume that the referral was on the basis of an injury to the back. Given that the respondent has accepted liability and has, pursuant to s60, paid the hospital medical fees for the L4/5 discectomy on 29 October 2002, there is no dispute that the L4/5 discectomy on 29 October 2002 was causally related to the incident at work and accordingly the Approved Medical Specialist was required to assess the matter on that basis. The fact that he did not do so was clearly a demonstrable error. When properly analysed the previous submissions made by the appellant's solicitors were directed firstly to the conclusion reached by Dr Hitchen that the surgery was unrelated to the incident at work, but it should have been made clear that the demonstrable error was that injury to the L4/5 disc was not disputed between the parties and therefore the Approved Medical Specialist was required to assess the matter on that basis. When properly analysed, it is submitted, the Registrar should have found that demonstrable error appeared to exist for the reasons stated here and referred the matter to a Medical Appeal Panel." 22 On 13 October 2005 the Registrar gave her decision in relation to the application to reconsider her decision of 4 August 2005 (annexure L to the affidavit). That decision was as follows: "Thank you for your letter dated 4 October 2005 which enclosed further submissions on behalf of the Appellant in accordance with practice note 8, in relation to the Registrar's determination dated 4 August 2005. After consideration of the appellant's further submissions, it does not appear that any ground for appeal exists under sections 327(3)(c) or 327(3)(d). The Referral for Assessment of Permanent Impairment Dispute form, issued by the arbitrator on 21 December 2004, refers for assessment of impairment "lower back including resultant sexual dysfunction" in respect of an injury that occurred on 15 September 2001. Apart from the broad finding of injury contained in the Referral for Assessment of Permanent Impairment Dispute form, it does not appear that the arbitrator has made any other decision relevant to the assessment of impairment. In particular, the arbitrator has made no decision that the appellant sustained injury to L4/5 or that the resultant surgery in relation to the discectomy performed at this level was a matter that was conclusively presumed to be correct by the AMS. After considering the appellant's further submissions, it appears that the appellant should have clearly raised the issue that he was relying on the respondent's payment of the cost of surgery to establish a presumption of acceptance of liability before the referral for medical assessment under Part 7 of the Workplace Injury Management and Workers Compensation Act 1998. The appellant provided no information or evidence to the Approved Medical Specialist that the surgery referred to in paragraph 3(i) of his further submissions was paid by the respondent or that there was no dispute between the parties in relation to this injury. In fact it appears from the Reply filed by the respondent that there was a dispute, inter alia, that the appellant sustained "any injury out of or in the course of employment with the respondent". It therefore does not appear that the assessment appealed against was made on the basis of incorrect criteria or the medical assessment certificate contains a demonstrable error in relation to the appellant's further submissions. Yours faithfully,

For Registrar." 23 It is the two decisions by the Registrar of 4 August 2005 and 13 October 2005 which are challenged in these proceedings. The Act does not provide any right of appeal from a decision of the Registrar. It was, however, common ground that this Court had jurisdiction to entertain the application pursuant to s69 of the Supreme Court Act 1970. It was also common ground that for the plaintiff to succeed he had to demonstrate either jurisdictional error, or error of law on the face of the record.

Relevant legislation 24 The following provisions of the Act are relevant: " 325 Medical assessment certificate (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. 326 Status of medical assessments (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 or 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.

327 Appeal against medical assessment (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. … 329 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by: (a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or (b) a court or the Commission. (2) A certificate as to a matter referred again for further assessment prevails over any previous certificate as to the matter to the extent of any inconsistency. "

Submissions 25 The plaintiff submitted that in accordance with the decision of Associate Justice Malpass in Wikaira v Registrar of the Workers Compensation Commission of NSW and Anor [2005] NSWSC 954 the task of determining injury was one for the arbitrator and not the AMS. When the matter was referred to the AMS there was no dispute between the plaintiff and CGU as to injury and in particular as to whether the need for an operation at the L4/5 level of the back was due to the work injury. In those circumstances the AMS was required to accept that fact and to assess the extent of the plaintiff's back impairment on that basis. By making an assessment which denied any connection between the work injury and the operation at the L4/5 level of the back, the AMS had gone beyond what was required of him and committed the jurisdictional error identified in Wikaira. 26 As a variation on the first submission, the plaintiff submitted that there was an implicit agreement between the parties that the plaintiff had suffered an injury at the L4/5 level of his back on 15 September 2001 and that in those circumstances it was not open to the AMS to make a contrary finding. 27 As an alternative, it was submitted that jurisdictional error had occurred in that the AMS had not complied with the requirements of s325 of the Act. The argument was developed in this way. For s325 to be complied with there had to be a finding by the arbitrator as to injury. Here the arbitrator had made no express finding as to injury. It followed that a medical assessment certificate under s325 could only be valid if it certified the degree of impairment as the result of an injury which had been properly found to be a compensable work injury. If there has been no finding as to what constituted the injury then there could be no compliance with s325. 28 The final submission on behalf of the plaintiff was that there had been a denial of natural justice in the approach followed by the AMS. Because the plaintiff believed that there was no dispute as to whether the plaintiff's problem at the L4/5 level of his back was work related, he had not made any submissions to the AMS to that effect. The loss of that opportunity to make submissions was fundamentally unfair to the plaintiff and constituted a denial of natural justice. 29 All of the plaintiff's submissions relied upon subsection 327(3)(d) of the Act. It was submitted that each of the matters involved demonstrable error. No submissions were made that the assessment of the AMS was made on the basis of incorrect criteria.

Decision 30 It was common ground that the effect of s327 of the Act was to provide a gatekeeper role for the Registrar, whose task was to consider pursuant to s327(4), whether "at least one of the grounds for appeal specified in subsection (3) exists". If it appeared to the Registrar that this was the case in accordance with s327(4), the appeal could "proceed" and be referred to an appeal panel. Thereafter, the appeal panel could conduct a review afresh and was not itself required to determine whether any of the four grounds referred to in s327(3) had been made good. (Campbelltown City Council v Vegan [2004] NSWSC 1129 at [74].) 31 Although the plaintiff had relied upon subsection 327(3)(c) (ie that the assessment by the AMS was made on the basis of incorrect criteria) in its initial submissions to the Registrar prior to her decision of 4 August 2005, that matter was not pursued in the supplementary submissions and was not pursued before me. Implicit in the submissions to me was an acknowledgment that the Registrar's rejection of the arguments put forward in support of that ground of appeal in her reasons of 4 August 2005 was correct. 32 This concession (albeit an implicit one) was correctly made. Wood CJ at CL examined this ground of appeal in considerable detail in Vegan (paras [56] to [72]). As with the Vegan matter the injury in this case was sustained before 1 January 2002 and therefore before the enactment of the Workcover Guidelines. Wood CJ at CL concluded that injuries which occurred prior to that date were to be assessed in accordance with the Table of Disabilities in Part 3 of Division 4 of the Workers Compensation Act 1987 rather than in accordance with any guidelines which were subsequently issued. The breadth of those provisions was such that this ground of appeal has little practical application to injuries which occurred before 1 January 2002. 33 It follows that for the plaintiff to succeed he had to establish that it should have appeared to the Registrar that the medical assessment certificate issued by Dr Hitchen contained a demonstrable error. 34 The Registrar does not have to be satisfied of that fact on the balance of probabilities. In a number of first instance decisions of this Court it has been held that the test of "appears to … exist" means no more than it exists as an arguable proposition (Zuanic v Gypro-Tech (Australia) Pty Limited and Ors [2006] 739 at [30]). 35 In only two decisions of this Court has the question of what is a "demonstrable error" arisen for consideration. Quite clearly error alone is not sufficient. What meaning therefore is to be given to the qualifying word "demonstrable" in the context a gateway provision such as s327? 36 In Vegan there was no dispute that demonstrable error had occurred. There was a clear inconsistency in the certificate provided by the AMS. Having found a percentage of permanent impairment, the AMS had neglected to take that percentage into account in reaching his final conclusion. The existence of demonstrable error was not disputed in that case. 37 In Wikaira, upon which the plaintiff placed considerable reliance, the arbitrator had made express findings before the matter was referred to the AMS. The arbitrator found that the worker had sustained orthopaedic injuries to her neck, back and shoulders in an incident on 22 August 2000 and that she was not fit to perform the type of work she had been doing. These matters were expressly set out in the referral to the AMS. The AMS determined that there was no permanent impairment in the worker which was work related. An application to appeal was made to the Registrar which was refused on the basis that there was no demonstrable error in the medical assessment certificate. 38 Associate Justice Malpass concluded that the medical assessment certificate did contain a demonstrable error. This was because the assessment by the AMS that there was no permanent impairment was based upon a finding by the AMS that there was no evidence of injury. This was inconsistent with the express finding by the arbitrator by which the AMS was bound. 39 I do not propose to, nor is it necessary, that I define what is "demonstrable error" for the purposes of s327 of the Act in an exhaustive way. It is sufficient for the purposes of this matter that I conclude that "demonstrable error" is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment. 40 No error such as was identified by Associate Justice Malpass in Wikaira, occurred in this case. There was nothing in the medical assessment certificate which was inconsistent with a finding by the arbitrator. What was referred to the AMS for assessment was what was correctly described by the Registrar as "the broad finding of injury", ie injury to the lower back on 15 September 2001. On the basis of that referral not only was it open to the AMS to make the kind of assessment which he did, he was required to do so in order to comply with s325. 41 On the material provided to the AMS (which included the "Application to Resolve a Dispute" and the "Reply to the Application to Resolve a Dispute") there was an issue as to the nature and extent of the plaintiff's injury. There was nothing in the material placed before the AMS which restricted the extent of his inquiry, provided that he complied with the requirements of ss323, 324 and 325 of the Act. 42 In order to establish a basis for the first two submissions relied upon by the plaintiff, there should have been an express finding by the arbitrator that the injury of 15 September 2001 included damage to the L4/5 level of the back. Alternatively, that fact should have been stated in the medical referral document if it was a matter of agreement between the parties. An "implicit" understanding or agreement between the parties to that effect which was otherwise unexpressed was not sufficient. If that situation constitutes an error (which is by no means clear) it was certainly not "demonstrable error" for the purposes of s327. 43 This is particularly so when on the face of the "pleadings" before the AMS, ie the Application and the Reply, there was a clear issue raised as to the nature and extent of the work injury. This difficulty with the plaintiff's submissions was recognised by the Registrar in her decision of 13 October 2005 when she referred to the issue raised by the "pleadings" and to the absence of any information in the medical referral document which would indicate to the AMS an agreement between the parties as to the nature and extent of injury or a specific finding by the arbitrator to that effect. 44 These submissions by the plaintiff have not been made out. 45 As indicated, there is no question that the certificate by the AMS met the formal requirements of s325. It is true that such a certificate cannot be issued in a vacuum. There has to be an injury identified which can be assessed. Such an injury was identified in this case, ie an injury to the lower back which occurred on 15 September 2001. No more was required as a basis for a referral to an AMS for assessment. 46 Implicit in the plaintiff's submission is the proposition that such a general finding or agreement as to injury is insufficient as a basis for referral to an AMS under ss293 or 321 of the Act. No reason was offered as to why that should be so. There is no such limitation expressly or impliedly provided for in the Act. On the contrary where injury is in issue or where the nature and extent of injury is in issue so as to require the expertise of an AMS to identify the precise pathological process, there would be no other way of referring a matter for assessment than by a general statement as to injury. 47 The plaintiff's submission that there has not been proper compliance with s325 of the Act has not been made out. 48 The final submission by the plaintiff that there has been a denial of natural justice and consequently demonstrable error should have been found to exist depends upon an unstated premise that in a referral to an AMS for assessment the parties have a right under the Act to make submissions to the AMS. 49 Whereas such a right exists in judicial proceedings (Escobar v Spindaleri (1986) 7 NSWLR 51) there is no basis for implying or suggesting such a right in the case of a referral to an AMS. The medical referral document prohibits the parties from sending documents directly to the AMS or from making written submissions directly to the AMS. All contact with the AMS is to be through the Commission. 50 Even without those considerations, I am not persuaded that there has in fact been a denial of natural justice as submitted by the plaintiff. The AMS had before him all of the medical material. Most of that material supported or assumed a causal connection between the problem at the L4/5 level of the plaintiff's back and the work injury of 15 September 2001. The issue was clearly before the AMS. In a detailed and compellingly argued analysis the AMS concluded that there was in fact no such causal connection. This was a medical issue, not a legal issue. I am not persuaded that submissions on behalf of the plaintiff in support of a connection could have led to any different result. 51 Finally, I am not persuaded that if the plaintiff lost an opportunity to make submissions to the AMS in support of a connection between the pathology at the L4/5 level of his back and the work injury, this is "demonstrable error" for the purposes of s327. The fact that most of the medical evidence supported such a connection but that the AMS reached a different conclusion does not constitute demonstrable error. Consequently the failure (if it be such) of the AMS to invite submissions to support such a connection does not, in my opinion, indicate that demonstrable error exists. 52 This submission on behalf of the plaintiff has not been made out.

Conclusion 53 It follows that the plaintiff's challenge to the decision of the Registrar has not been made out and that the Summons should be dismissed. 54 The orders which I make are as follows:

Summons dismissed. 2. The plaintiff is to pay the costs of the second defendant as agreed or assessed. 3. Liberty to apply on two days' notice. **********

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.

At a glance

Court

Decision date

Before

Source

Judgment (25 paragraphs)

Parties

Cases Cited (3)

Cited By (29)