Mills v Martin-Brower Australia Pty Ltd

Supreme Court of NSW|2023-03-15|Before: Adamson JA

Solicitors: Michael Evers & Co (Plaintiff) Lee Legal Group (First Defendant) Crown Solicitor's Office (NSW) (Second and Third Defendants) File Number(s): 2022/313097

Introduction

By amended summons filed on 1 November 2022, the plaintiff, Peter Mills (the claimant), seeks orders which include an order setting aside the decision of the second defendant (the Appeal Panel) made on 17 August 2022 (the Decision) and an order remitting the matter to the third defendant, the President of the Personal Injury Commission (the Commission), to be determined according to law.

The facts

Before addressing the grounds, it is convenient to summarise the relevant facts in the context of the statutory scheme.
The claimant suffered a work-related injury to his hip on 14 July 2016. He made a claim for workers compensation. The employer accepted liability and paid weekly compensation and medical expenses. Subsequently, the claimant claimed that, in addition to the injury to his hip, he had suffered an injury to his lumbar spine, for which he alleged the employer was liable. The claimant alleged, in the alternative, that he suffered from a consequential medical condition to his lumbar spine. The claimant underwent right hip replacement surgery on 12 November 2018 and a psoas tendon release procedure on 16 July 2020. Following these procedures the claimant continued to complain of pain in his hip and back.
The claimant made a claim pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (the 1987 Act) for lump sum compensation in respect of the injury to his right hip and the alleged injury to his back. The employer denied liability in respect of the claimant's lumbar spine and disputed the amount claimed.

The Commission's determination

The parties' dispute was referred to the Commission pursuant to s 288 of the Workplace Injury Management Act 1998 (NSW) (the 1998 Act). The dispute was heard by the Commission (Member Sweeney) on 21 March 2022. Member Sweeney said in his reasons (given ex tempore at the conclusion of the oral hearing): "Mr Grimes [the employer's representative] submitted that the absence of structural pathology in the applicant's back led to a conclusion that he had not established either injury or the aggravation of the disease. He referred to the complete absence of evidence of pathology on all or indeed the pathological change on examination. It followed from such cases as Military Rehabilitation Compensation Commission v May 2016 HCA [11] May 2016 that injury had not been proven. Injury involves an a physiological or pathological change. If the change is sudden or dramatic that is also relevant although it is not necessary, a necessary ingredient I should say, of the injury formula. If it was necessary to do so I would infer injury to the lower back in this case long standing back pain existing over several years and he is almost certainly likely to have some pathological basis however its unnecessary to do that all I am required to find is that as a result of the injury to the applicant's right lower extremity he suffered a consequential medical condition of his lumbar spine. The concept of consequential medical condition of the lumbar spine and of course does not appear in the Workers compensation legislation. It is however a phrase that has been endorsed by the Presidential Unit and that has been consistently applied in these types of cases."
The Commission (Member Sweeney) issued a determination in which he made the following orders: "1. Amend the ARD [Application to Resolve a Dispute] herein to add 'and the nature of the applicant's work until 6 January 2017' to the allegation of a frank injury on 14 July 2016. 2. That the applicant suffered injury to his right hip arising out of and in the course of his employment on 14 July 2016 and as a result of his work until 6 January 2017. 3. As a result of that injury he suffered a consequential medical condition of the iliopsoas muscle and the low back. 4. Remit the matter to the President for referral to a Medical Assessor to certify the degree of whole person impairment of the applicant's right lower extremity (hip) iliopsoas muscle and lumbar spine as a result of injury on 14 July 2016 and the nature of his work from that date until 6 January 2017. 5. Approved medical specialist to have access to the Application, the Reply and the Application to Admit Late Documents together with a supplementary report of Dr Powell provided same is served and lodged under cover of an Application to Admit Late Documents by COB 12 April 2022."

The referral for medical assessment

The assessment of the % WPI of the applicant's right lower extremity (hip) iliopsoas muscle and lumbar spine as a result of injury on 14 July 2016 and the nature of his work from that date until 6 January 2017 was referred to the Medical Assessor pursuant to ss 319 and 321A of the 1998 Act. The Medical Assessor was obliged to assess the % WPI in accordance with the applicable guidelines (see below): s 322(1) of the 1998 Act. Impairments that result from the same injury and from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker: s 322(2) and s 322(3) of the 1998 Act.
The Medical Assessor examined the claimant on 14 April 2022. On 29 April 2022, he issued a certificate, to which his reasons were attached, as required by s 325(1) and s 325(2) of the 1998 Act.
In the reasons, the Medical Assessor set out the history of the injury and recorded that the claimant had had a total right hip replacement in late 2018 but that this had not relieved his symptoms. He recorded that, at the time of the examination, the claimant continued to suffer the following: "Present symptoms: Mr Mills has pain in his lower back. He has pain in his back and groin over the hip. He has a sensation of numbness in the front of his thigh. He can walk for a block or so before being limited by pain. If he spends a long time sitting or on his feet, he will get pain in his back. He mobilises without aids. He avoids stairs but is able to manage them. He has difficulty putting his shoes and socks on and cutting his toe nails. He can sit for 20-30 minutes before being limited by back and buttock pain."
The Medical Assessor noted that, on examination, the claimant walked with an antalgic gait. Antalgic gait is an altered gait, which is commonly the result of pain.
The Medical Assessor recorded range of movement in the claimant's hip, which reflected a greater range in the left than the right: flexion was 80° (right) and 110° (left); abduction was 30° (right) and 40° (left); adduction was 20° (right) and 30° (left); and external rotation was 10° (right) and 40° (left).
The Medical Assessor noted no asymmetry in calf or thigh circumference and no muscle spasm. He opined: "Asymmetry of movement was attributed to the hip."
MRI scans of the right hip showed a "CAM lesion of the femoral head with labral tear" (23 January 2017) and "[p]ost re-section of CAM lesion" (20 August 2018). The MRI scans of the lumbar spine were unremarkable.
The Medical Assessor assessed the % WPI of the right lower extremity (hip/iliopsoas muscle) at 20% and the % WPI of the lumbar spine at 0%. The Medical Assessor said: "Lumbar spine is assessed according to AMA-5, page 384, Table 15-3. Mr Mills is assessed as DRE Lumbar Category I (0% whole person impairment) on the basis that there is no significant clinical findings and no observed muscle guarding or spasm with no documented or neurological impairment or documentation in structural integrity of the spine. Asymmetry of movement is attributable to hip replacement rather than the lumbar spine."
There was a deduction from the 20% WPI of the right hip of one-tenth pursuant to s 323(2) of the 1998 Act on the basis of a pre-existing "CAM lesion/FAI right hip." This led to a total % WPI of 18%.

The appeal against the assessment by the Medical Assessor

A party may appeal against a medical assessment on specified grounds: s 327 of the 1998 Act. An appeal against a medical assessment is to be heard by an Appeal Panel constituted by two medical assessors and one member of the Commission: s 328(1). It is to be by way of review of the original medical assessment, but is limited to the grounds of appeal: s 328(2). The Appeal Panel may confirm the Medical Assessor's certificate or may revoke it and issue a new certificate: s 328(5).
On 9 May 2022, the claimant lodged an application to appeal against the decision of the Medical Assessor. The employer opposed the appeal. The delegate of the President of the Commission allowed the appeal to proceed pursuant to s 327 of the 1998 Act.
On 30 June 2022, the matter was referred to the Appeal Panel. In paragraph 6 of the delegate's decision, the delegate said: "Accordingly, the appeal is referred to a Medical Appeal Panel for determination. Details of the constitution of the Medical Appeal Panel will be forwarded separately."
It was common ground that, notwithstanding the representation in the second sentence, the parties were not notified of the composition of the Appeal Panel before the Decision was made.
Member Sweeney and two Medical Assessors, Margaret Gibson and Drew Dixon, constituted the Appeal Panel. Mr Hart, who appeared on behalf of the claimant, submitted that I ought infer that Member Sweeney did not appreciate that he had made the decision (as the Commission) to refer the matter for medical assessment. I am not prepared to draw this inference, particularly as Member Sweeney is identified as the member of the Commission in the certificate of 21 March 2022 which led to the referral.
The Appeal Panel decided not to re-examine the claimant but, rather, to deal with the matter on the papers.
In its reasons, the Appeal Panel extracted passages from the reasons of the Medical Assessor as to the history and findings on examination. The Appeal Panel said: "39. The quotations from the MAC [Medical Assessment Certificate] set out above establish beyond doubt that the MA [Medical Assessor] accepted that the injuries referred for assessment included the lumbar spine, that the appellant had pain in his back, and that it was necessary to assess the degree of permanent impairment of the lumbar spine at the assessment and, if necessary, combine it with WPI found in respect of the right hip. There is nothing to suggest that the MA approached the assessment on a basis which was inconsistent with the determination of the Commission that the appellant had suffered an injury to his right hip in the course of his employment and as a result of that injury suffered a consequential medical condition of his lumbar spine. 40. In a claim for permanent impairment compensation, the jurisdiction of the Commission extends to the determination of liability disputes. While it could find that the applicant suffered a consequential medical condition/injury of the lumbar spine, the question of whether that condition was transient or permanent and whether it gave rise to permanent impairment was within the prerogative of the MA: see Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 …"
There is some ambiguity in the use of the word "injuries" in the first sentence of paragraph 39 of the Appeal Panel's reasons. However, I consider that, read in context, the Appeal Panel meant no more than that the Medical Assessor was obliged to assess any permanent impairment to the lumbar spine consequent on the hip injury and, if required as part of that process, determine whether there was a separate injury to the lumbar spine or whether the symptoms and limitations were (as the Medical Assessor found) referable to the hip injury. In Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 Basten AJ said at [45]: "… as a practical matter, the Appeal Panel is likely to determine the question before it as a matter of expert medical opinion, the basis for which is peculiarly a matter of its special expertise …"
In these circumstances, it is not appropriate to read too much into the reference to "injuries" in paragraph 39, when the issue was plain.
The claimant argued, in written submissions that were before the Appeal Panel, that the Medical Assessor had failed to apply the relevant guidelines. The Appeal Panel rejected this submission and found that the Medical Assessor had correctly applied the relevant guidelines (which are addressed later in these reasons). The claimant, once again, relies on those submissions in this Court.

The grounds concerning apprehension of bias and procedural fairness

Mr Hart submitted that although the claimant had been "assured" that he would be informed of the composition of the Appeal Panel (in the extract from the delegate's decision set out above), this did not occur. He submitted that, had the claimant been notified that Member Sweeney would be on the Appeal Panel, the claimant would have had the opportunity to object and, if he had chosen to object, the objection would have succeeded on the basis of Livesey v NSW Bar Association (1983) 151 CLR 288 at 300; [1983] HCA 17 (Livesey).
Further, Mr Hart submitted that it was not necessary for the claimant to indicate to the Court what his response to such notification would have been and what submissions would have been made because the threshold for materiality for a denial of procedural fairness was low: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 (Nathanson) at [33] (Kiefel CJ, Keane and Gleeson JJ).
On this basis, Mr Hart submitted that the Decision ought be set aside and the matter remitted to a differently constituted Appeal Panel.
It is well established that the principles relating to bias apply not only to judicial decision-makers but also to administrative decision-makers, such as the Appeal Panel in the present case. It is not necessary, in these circumstances, to refer to the Member Code of Conduct issued by the President pursuant to s 16 of the Personal Injury Commission Act 2020 (NSW), which does not impose a higher standard than the common law. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The fair-minded lay observer would appreciate that Member Sweeney had expressed a tentative view (which was in favour of the claimant) about the existence of a lumbar injury in his decision on liability but had expressly eschewed such a finding (on the basis that it was not required for a referral to be made), before referring the matter for medical assessment. Further, such an observer would also have appreciated that the question which Member Sweeney was obliged to address when sitting alone as the Commission was a different question to the one which arose when he formed part of the Appeal Panel which was required to determine an appeal against the Medical Assessor's assessment of % WPI. In circumstances where such an observer can be taken to appreciate the different roles played by the Commission when determining a liability dispute, and the Medical Assessor and Appeal Panel when determining a medical dispute, I am not persuaded that there was any apprehension of bias.
Thus, had the claimant been notified that it was proposed that Member Sweeney form part of the Appeal Panel, any application to Member Sweeney that he was obliged to recuse himself on the ground of apprehension of bias would have been bound to fail. Thus, there was no "practical injustice" occasioned by the fact that the parties were not informed of the composition of the Appeal Panel: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (Ex parte Lam) at [38] (Gleeson CJ). I reject Mr Hart's submission that the claimant was not obliged to demonstrate that the result would have been different. The statements referred to above from Nathanson applied in the context of a party being deprived of an opportunity to present the case on the merits as distinct from an application that a putative decision maker recuse him or herself on the grounds of apprehension of bias.
Nor is there any analogy between the present case and Livesey. In that case, two of the members of this Court had expressed strong and disparaging views about Livesey in proceedings to which he was not a party. Subsequently, those two members sat, with a third judge, on an application by the NSW Bar Association to have Livesey's name removed from the roll of legal practitioners on the grounds of professional misconduct. The High Court set aside the order removing Livesey's name from the roll on the grounds of apprehension of bias.
For the reasons given above, the applicant has not established any error of law on the basis of apprehended bias or denial of procedural fairness. Accordingly, these grounds have not been made out.

The grounds concerning application of the Guidelines

The balance of the grounds relate to the Medical Assessor's and the Appeal Panel's application of the guidelines. It was common ground that the applicable guidelines were the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines).
Section 331 of the 1998 Act provides: "331 Guidelines Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments."
Section 376 of the 1998 Act relevantly provides: "The Authority may issue guidelines with respect to the following - (a) the assessment of the degree of permanent impairment of an injured worker as a result of an injury, …"
Although some allowance may need to be made to take account of the circumstance that the Guidelines were not drafted as legislation (Heise v Employers Mutual Limited [2022] NSWCA 283 at [57] (Kirk JA)), guidelines issued pursuant to s 376(1) have the effect of delegated legislation: Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [97] (Bell P and Payne JA). Thus a failure to apply the Guidelines is at least capable of constituting an error of law on the face of the record or a jurisdictional error.
Chapter 4 of the Guidelines concerns the spine. It provides that Chapter 15 of the AMA5 (American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th Edition), applies to assessment of permanent impairment of the spine, subject to the Guidelines, which take precedence over AMA5.
Clause 4.5 of the Guidelines provides that the DRE (Diagnosis Related Estimates) model for assessment of spinal impairment should be used (and that the range of motion model should not be used). Clause 4.18 of the Guidelines provides: "DRE II is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement. …"
AMA5, Table 15-3 is entitled "Criteria for Rating Impairment Due to Lumbar Spine Injury". Of present relevance, DRE Category I (which results in an assessment of 0% WPI) is described as follows: "No significant clinical findings, no observed muscle guarding or spasm, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness; no fractures."
DRE Lumbar Category II (which results in an assessment of 5-8% WPI) is described as follows: "Clinical history and examination findings are compatible with specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range or motion, or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy. …"
Mr Hart submitted that the Medical Assessor's finding of asymmetric loss of range led to a finding of DRE Lumbar Category II in light of the Commission's finding of injury and that the finding that the claimant fell into DRE Lumbar Category I was at odds with the Commission's finding and the correct application of the Guidelines. On this basis, he submitted that the Appeal Panel ought to have revoked the certificate issued by the Medical Assessor and issued a new certificate which included a percentage which reflected DRE Lumbar Category II.
There are two principal difficulties with this submission. First, as set out above, the Commission (Member Sweeney) expressly did not find that the claimant had suffered an injury to his lumbar spine, but rather ordered that the Medical Assessor certify the degree of whole person impairment of the claimant's right lower extremity (hip), iliopsoas muscle and lumbar spine as a result of the injury on 14 July 2016 and the nature of his work from that date until 6 January 2017.
However, in any event, it can be seen from the reasons of the Medical Assessor and the Appeal Panel's consideration of those reasons that both decision-makers were alive to the issue of whether the symptoms in the claimant's lumbar spine were such as to give rise to a permanent impairment of the lumbar spine within the DRE categories.
The second difficulty is that it is not enough that there be, as was found in the present case, "asymmetric loss of range or motion". Rather, it is necessary that the "[c]linical history and examination findings [including asymmetric loss of range or motion], [be] compatible with specific injury" for DRE Lumbar Category II to be the appropriate category.
In the present case, as the Medical Assessor and the Appeal Panel recorded, there was no separate injury to the claimant's lumbar spine. In light of the lack of abnormality of any other finding relating to the lumbar spine other than pain and asymmetry of movement, the Medical Assessor considered the loss of range of motion to be attributable to the claimant's hip replacement rather than to the lumbar spine. I am not persuaded that there was any failure to abide by the terms of the referral or to apply the Guidelines (which incorporated the categories referred to above). It was open to the Medical Assessor to apply the Guidelines in the way in which he did. The assessment of 18% WPI included an assessment of 0% for the lumbar spine. I reject Mr Hart's submission that there was any breach of the principles enunciated in Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56; (2021) 306 IR 52, which relate to the determination and aggregation of % WPI for injuries subsequent to, and resultant upon, a first injury.
In these circumstances, the Appeal Panel was entitled to confirm the Medical Assessor's certificate.
Accordingly, I am not persuaded that the claimant is entitled to the relief claimed.

Costs

It was common ground that costs ought follow the event in accordance with the general rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

Orders

For the reasons given above, I make the following orders: 1. Dismiss the amended summons filed on 1 November 2022. 2. Order the plaintiff to pay the first defendant's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2023

Workplace Injury Management Act 1998(NSW)

(2020) 102 NSWLR 783

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