Nguyen v Pasarela Pty Ltd

Supreme Court of NSW|2020-12-02|Before: Adamson J, Leeming JA

Solicitors: Walker Law Group (Plaintiff) Hicksons (First Defendant) Crown Solicitor's Office (Second, Third and Fourth Defendants) File Number(s): 2020/97878

Introduction

By summons filed on 30 March 2020, Van Nguyen (the claimant) seeks relief under s 69 of the Supreme Court Act 1970 (NSW) in respect of a decision made by Dr Greggory Burrow, the third defendant, an approved medical specialist (the AMS), on 4 November 2019 and a decision made by the fourth defendant (the Appeal Panel) on 13 February 2020. Both decisions relate to the assessment of the claimant's % whole person impairment (WPI) arising from injuries found to have been sustained in the course of the claimant's employment with Pasarela Pty Ltd, the first defendant (the employer).
The plaintiff subsequently filed an amended summons on 23 April 2020.
The employer is the only active defendant and is represented by its insurer, Employers Mutual NSW Limited (the insurer). The second defendant, the Workers Compensation Commission (the Commission), and the third and fourth defendants have each filed submitting appearances.
All references to legislation in these reasons are, unless otherwise stated, to be read as references to the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act). The Workers Compensation Act 1987 (NSW) will be referred to as the 1987 Act.

Application for extension of time

Rule 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) requires proceedings to be commenced within 3 months of the date of the decision. It was common ground that the summons was filed within time in respect of the decision of the Appeal Panel. However, the claimant requires an extension of time to challenge the decision of the AMS, since it was made on 4 November 2019 and the summons was filed on 30 March 2020. The employer objects to an extension of time being granted under UCPR r 59.10(2).
Mr Combe, who appeared with Dr Townsend for the employer, submitted that time ought not be extended because there was no basis for relief to be granted in respect of the decision of the AMS since the claimant's rights were not affected by the decision. He contended that there was no dispute about whether the AMS had applied the correct test and that the only issue was whether he had set out his rationale sufficiently to comply with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines). He argued that, in these circumstances, if the claimant succeeded in setting aside the Appeal Panel's decision, the matter could be remitted to the Appeal Panel for its further determination and that no relief ought be granted in respect of the decision of the AMS.
While there is much to be said for the arguments put on behalf of the employer, these are matters which arise for consideration in this Court's substantive determination and can be dealt with in that context. I am satisfied that it is appropriate to extend time to file the summons to challenge the decision of the AMS and will order accordingly.

The background to the relief sought

Before turning to the relief sought in the amended summons, it is convenient to summarise the background to the claim for relief in so far as it is relevant to the grounds raised by the claimant.

The incident on 7 October 2015 and the resultant claim

In about 2013 the claimant was engaged by the employer as a picker and packer. On 7 October 2015 he suffered injuries in the course of his employment with the employer. The claimant subsequently made a claim against the employer for injuries to his right shoulder, lower back and left wrist. The employer referred the claim to the insurer.
On 19 May 2017 the insurer issued a notice under s 74 of the Act denying liability with respect to alleged injuries to the claimant's right shoulder and lower back. The employer accepted that the claimant had suffered an injury to his left wrist in the incident on 7 October 2015.
On 15 June 2017 the claimant's % WPI was assessed by Dr Uthum Dias at the request of his solicitors. Dr Dias assessed the claimant's % WPI at 35%. This comprised 19% for his right shoulder (which amounts to 11% WPI); 4% for his right wrist (which amounts to 4% WPI), 15% for his left shoulder (which amounts to 9% WPI) and 17% for his left wrist (which amounts to 10% WPI).
Using the Combined Values chart, the claimant's % right upper limb impairment was 25% (which amounts to 15% WPI) and his left upper extremity impairment was 29% (which amounts to 17% WPI). According to the chart, the claimant's total % WPI was 35%. This assessment formed the basis of his claim for compensation pursuant to s 66 of the 1987 Act.
On 7 December 2017, Dr Roger Pillemer, at the request of the employer's solicitors, assessed the claimant's % WPI at 0%.

The claim in the 2018 proceedings

On 14 February 2018 the claimant commenced proceedings 765/2018 in the Commission (the 2018 proceedings) by filing an application to resolve a dispute in the Commission. He claimed to have injured his right upper extremity (shoulder and wrist) and his left upper extremity (shoulder and wrist) as well as his lumbar spine. He claimed 35% WPI on the basis of the report of Dr Dias referred to above. On 7 March 2018 the employer filed its reply. It admitted that the claimant had sustained an injury to his left wrist on 7 October 2015 but denied that the claimant suffered an injury to his right wrist, left shoulder, right shoulder or lumbar spine.

The certificate issued in the 2018 proceedings

The 2018 proceedings came before Arbitrator John Wynyard on 4 May 2018. On 16 May 2018 the Arbitrator gave ex tempore reasons which included the finding that he "[could] not be satisfied that the injury to the right wrist, the shoulders and the lumbar injury are connected to the injury and, in that respect, there will be an award for the respondent [the employer]". On 21 May 2018 the Commission issued a certificate of determination to that effect pursuant to s 294 of the Act. The claimant did not appeal against the order which was made in the 2018 proceedings.

The further claim

On 29 October 2018, at the request of the claimant's solicitors, Dr Endrey-Walder assessed the claimant's % WPI at 25%, which comprised 19% upper extremity impairment of the left wrist (which was equivalent to 11% WPI) and 27% upper extremity impairment of the right shoulder (which was equivalent to 16% WPI). The combined values of these figures resulted in a % WPI of 25%.
On 5 November 2018 the claimant made a claim on the insurer for 25% WPI pursuant to s 66 of the 1987 Act based on the report of Dr Endrey-Walder. On 13 December 2018 the employer issued a notice under s 74 of the Act in which it accepted that the claimant suffered an injury to his left wrist on 7 October 2015 but denied the claim in respect of injury to his right shoulder. It relied on the Commission's certificate issued as a consequence of the Arbitrator's decision which determined the 2018 proceedings which it contended operated to estop the claimant from claiming in respect of injuries other than the injury to his left wrist, which had been accepted by the insurer.
On 18 April 2019 the insurer issued a notice as required by s 78 in which it disputed the claimant's claim and alleged that the claimant was estopped from any entitlement to compensation in respect of any alleged injury to the lumbar spine having regard to the Commission's decision in the 2018 proceedings which it alleged was final and binding in accordance with s 350 of the Act.

The 2019 proceedings

On 8 May 2019 the claimant commenced further proceedings in the Commission, 2217/2019 (the 2019 proceedings), by filing an application to resolve a dispute. He claimed weekly payments and a lump sum of $63,640, being the amount referable to 25% WPI.
On 31 May 2019, the insurer filed a reply dated 29 May 2019 in the 2019 proceedings in which it referred to its s 74 notice issued on 13 December 2018 and its s 78 notice issued on 18 April 2019.
The 2019 proceedings were heard by Arbitrator Cameron Burge. On 11 September 2019, as a consequence of Arbitrator Burge's decision, the Commission issued a certificate pursuant to s 294 of the Act in the following terms: "The Commission determines: 1. The applicant suffered an injury to his left wrist in the course of his employment with the respondent on 7 October 2015. 2. As a result of the injury in paragraph 1 above, the applicant suffered a consequential condition to his right upper extremity (shoulder). 3. The injury to the left upper extremity (wrist) and consequential condition to the right upper extremity (shoulder) is to be referred to an Approved Medical Specialist for determination of the level of permanent impairment arising from the following: Date of injury: 7 October 2015 Body system referred: left upper extremity (wrist); right upper extremity (shoulder) Method of assessment: whole person impairment 4. The documents to be referred to the Approved Medical Specialist to assist in their consideration are to include the following: (a) The Application to Resolve a Dispute and attachments, (b) The Reply and attachments, and (c) This Certificate of Determination and Statement of Reasons."

The referral to the AMS

On 23 September 2019 the Arbitrator's delegate issued a referral for assessment of the claimant's % WPI to the AMS. The referral indicated that the parties had agreed that Dr Burrow would be appointed the AMS. The body parts referred were the claimant's left upper extremity (wrist) and right upper extremity (shoulder), which corresponded with the Commission's certificate dated 11 September 2019. The medical disputes referred for assessment were: "… - The degree of permanent impairment of the worker as a result of an injury (s 319(c)) - Whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s 319(d)) - Whether impairment is permanent (s 319(f)) - Whether the degree of permanent impairment of the injured worker is fully ascertainable (s 319(g))."
The amended referral dated 21 October 2019 did not change the medical disputes referred for assessment or the body parts referred. The amendment related to the claimant's application to admit further documents. On 22 October 2019 the AMS examined the claimant as part of the assessment.
On 4 November 2019 the Commission, following the assessment performed by the AMS, issued a medical assessment certificate (the MAC). In his reasons for assessment which formed part of the MAC, the AMS said: "a. My opinion and assessment of whole person impairment Left upper extremity (wrist) 6% whole person impairment Right upper extremity (shoulder) 4% whole person impairment In making that assessment I have taken account of the following matters: - There [have] been injuries to the left wrist and WCC deems an injury to the right shoulder as a consequence. There have been no injuries to the contralateral wrist or shoulder but there is abnormal examination including loss of active range of motion and abnormal illness behaviour. b. An explanation of my calculations (if applicable) Left Upper Extremity (Wrist) Loss of active range of motion: AMA5 figure 16-28, 31: 14% upper extremity impairment. I note that the contralateral right wrist also has loss of active range of motion equivalent to 4% upper extremity impairment. In accordance with instructions from SIRA regarding unexplained loss of contralateral range of motion in the opposite extremity and inconsistent presentation as noted above, impairment of the right wrist upper extremity to be deducted from the left, this equates to 10% upper extremity impairment related to the left wrist. 6% whole person impairment Right Upper Extremity (Shoulder) AMA5 loss of active range of motion 16-40, 43, 46 results in 24% upper extremity impairment. I note the left contralateral normal shoulder also has loss of active range of motion, resulting in 18% upper extremity impairment. This results in a total of 6% upper extremity impairment related to the right shoulder. 4% whole person impairment … d. I certify that the impairment is permanent, and that the degree of permanent impairment is fully ascertainable."

The appeal from the decision of the AMS

On 2 December 2019 the claimant filed an application to appeal against the AMS's decision. He nominated the ground of appeal in s 327(3)(c), namely, that the assessment was made on the basis of incorrect criteria. He also relied on s 327(3)(d), namely that there was demonstrable error.
On 19 December 2019 the insurer filed a notice of opposition to the claimant's appeal.
On 10 January 2020 the Commission issued a decision pursuant to s 327(4) of the Act. It found that a ground of appeal as specified in s 327(3)(d) (demonstrable error) had been made out and referred the appeal to the Appeal Panel. As it was common ground (between the parties, the AMS and the Appeal Panel) that cl 2.20 of the Guidelines applied, the ground raised under s 327(3)(c) need not be further addressed.
On 13 February 2020 the Appeal Panel, which comprised Arbitrator Marshal Douglas, and two approved medical specialists, Dr Drew Dixon and Dr Tomasino Mastroianni, decided that the MAC ought be confirmed. Its reasons included the following: "33. The Appeal Panel observes that neither party challenged the method by which the AMS assessed that appellant's impairment, namely loss of range of movement of the left wrist and right shoulder. 34. The Guidelines at 2.20 read as follows 'When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities If a contralateral 'normal/uninjured' joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor's report (see AMA5 Section 16.4c, p 543).' 35. The AMS did not in the MAC explain his rationale for deducting the impairment he assessed the appellant to have in the right wrist and left shoulder, being the contralateral uninjured joints, from the impairment he assessed the appellant to have in the appellants joints that were referred to assessment, beyond noting that the Guidelines required that to be done. The fact that the AMS did not more fully explain the rationale for doing that does not mean, in the Appeal Panel's view, that the MAC contains an error. 36. Saying that slightly differently, the fact that the AMS explained in a very narrow manner his rationale for why, when using the method of loss of range of movement of a joint to assess the degree of permanent impairment in that joint from an injury, the impairment in a contralateral uninjured joint is deducted from the impairment of the injured joint, does not mean the AMS erred by deducting the appellant's impairment in his uninjured contralateral joints from the appellant's impairment in the joints referred for assessment so as to establish the degree of the appellant's impairment in the referred joints that resulted from his injury. Moreover, the fact that the Guidelines require this to be done, in a circumstance where the impairment is being assessed by reference to the lack of range of movement in a joint, means that the AMS did not apply incorrect criteria to assess the appellant's permanent impairment 37. The rationale for doing this is revealed in both [2.20] of the Guidelines and [16.4c] at page 453 of AMA5 It is done because in a circumstance where there is an uninjured joint then the movement in that uninjured joint serves as a 'baseline' of what a worker's movement in the injured joint would most likely have been immediately before injury occurred to the joint. What is being done is establishing the impairment a worker has as a consequence of an injury to a joint by comparing the function of that injured joint after injury with what it was likely to have been before the injury If there is no history of injury to the contralateral joint before or after the injury to the joint that has been referred for assessment, then the best method by which that is done is to use the uninjured contralateral joint as a 'baseline' of what the worker's impairment in his or her injured joint was most likely to have been before injury. 38. As mentioned, neither party challenged the fact that the AMS adopted the loss of range of motion in the left wrist and right shoulder as the method to assess the appellant's impairment. Further neither party challenged the AMS's findings from his examination. The Appeal Panel notes that the AMS's impairment values based upon his findings are correct. 39. Based on the history he obtained and his clinical examination, the AMS found that the appellant did not suffer injury to his left shoulder or right wrist in the incident of 7 October 2015 or beforehand. 40. Arbitrator Mr Wynyard made a finding in the prior proceedings between the parties that the appellant did not suffer an injury in the incident of 7 October 2015 to his right wrist and left shoulder. The parties are estopped from asserting to the contrary in the present proceedings. 41. In the circumstances, the Appeal Panel considers that the AMS was correct to deduct the impairment he found the appellant to have in his right wrist from the impairment he found the appellant to have in his left wrist when assessing the impairment the appellant had with respect to his left wrist as a result of the injury In doing so, the AMS applied the correct criteria to assess the appellant's impairment of his left wrist. 42. Similarly, the Appeal Panel considers that in the circumstances set out, the AMS by deducting the impairment value for the range of movement of the uninjured contralateral left shoulder from the total impairment value due to the loss of range of movement of the right shoulder applied the correct criteria to assess the appellant's impairment of the right shoulder due to the injury to his left wrist on 7 October 2015. The MAC does not contain a demonstrable error as a consequence of the AMS having done so. 43. In terms of the appellant's submission to the effect that there was no evidence of impairment in either of his wrists or shoulders prior to the injury, the Appeal Panel observes that the fact that the appellant did not suffer injury to his right wrist in the incident or to his left shoulder in the incident, or beforehand, and the fact that there is no evidence of his suffering injury to either of those joints subsequently, indicates that he did have impaired movement in those joints preceding the date of his injury, and by inference, had impaired movement in his left wrist and right shoulder immediately before he suffered injury. That circumstance therefore, is the evidence of his having impairment in both his wrists and shoulders immediately before the time he suffered injury In other words, as already explained, the fact that he had suffered no injury in either wrist or in either shoulder prior to the date of his injury and the fact that he did not suffer injury to his right wrist or left shoulder after the date of his injury, means that the impairment the AMS found him to have in his right wrist and left shoulder at the time of examination is the evidence of the level of the impaired movement he had in both wrists immediately before the time of his injury."
On 31 March 2020 the Commission issued a certificate of determination pursuant to s 294 of the Act in which it certified: "The Commission determines 1. The applicant suffers 10% permanent impairment resulting from injury on 7 October 2015 2. The applicant has no entitlement to lump sum compensation resulting from injury on 7 October 2015 Brief statement of reasons 3. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998. 4. The clam for compensation was made on or after 19 June 2012. The applicant did not reach the threshold for entitlement to compensation as required by section 66(1) of the Workers Compensation Act 1987. 5. The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs."

The 1987 Act

Section 4 of the 1987 Act relevantly defines "injury" as a "personal injury arising out of or in the course of employment". Section 4 of the Act defines injury in the same terms.
Section 66 of the 1987 Act relevantly provides: "66 Entitlement to compensation for permanent impairment (1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act. Note - No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less. (1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury. …"

The Act

Section 74 (now repealed) of the Act relevantly provided that if an insurer disputes liability for a claim it must give notice of, and reasons for, the dispute. Section 78 of the Act requires an insurer to give notice of any decision it makes to dispute a claim.
Section 294 of the Act relevantly provides: "294 Certificate of Commission's determination (1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination. (2) A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination. …"
Section 319 relevantly provides: "… 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 - … (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, … (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable."
Section 322(1) of the Act provides that the assessment of the degree of permanent impairment of an injured worker for the purposes of the 1987 Act is to be made in accordance with the Guidelines issued for that purpose.
Section 325 relevantly provides: "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. …"
Section 327 relevantly provides: "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 - … (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 the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out. … (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. …"
Section 328 of the Act relevantly provides: "328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can provide for the procedure on an appeal. … (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. …"
The effect of s 328(2), which was amended in 2010, was considered by Gleeson JA (Macfarlan JA and Barrett AJA agreeing) in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [22] as follows: "The nature of an appeal under s 328(2) 'by way of review' was considered by this Court in Siddik v Work Cover Authority of NSW. The Court concluded that it was 'a novel form of appeal', the legislature having created a flexible model which involves either a hearing de novo (when new evidence is received because of changed circumstances: either a deterioration of the worker's condition or the availability of additional relevant information, subject to the restriction in s 328(3); s 327(3)(a)) and (b), or a re-hearing (which involves identification and correction of error: s 327(3)(c) and (d)). The amendment to s 328(2) in 2010, after the decision in Siddik that limited a Panel's review 'to the grounds of appeal on which the appeal is made', does not change the fundamental nature of an appeal under s 328(2) as explained in Siddik."
Section 331 of the Act relevantly provides that medical assessments and appeals under Part 7 of the Act (entitled "Medical assessments") are subject to the Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments.
Section 350 of the Act provides: "350 Decisions of Commission (1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review. (2) A decision of or proceeding before the Commission is not - (a) to be vitiated because of any informality or want of form, or (b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court. (3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission."
Section 376 of the Act confers power on the State Insurance Regulatory Authority (SIRA) to issue guidelines, including with respect to the assessment of the degree of permanent impairment of an injured worker as a result of an injury. These guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time: s 376(4).

The Guidelines

It was common ground the relevant Guidelines are the fourth edition published on 1 April 2016 and that they were made pursuant to s 376 of the Act.
Clause 1.1 of the Guidelines states that the Guidelines adopt the 5th edition of the American Medical Association's Guides to the evaluation of permanent impairment (AMA5) "in most cases". It also provides that where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail. The parties did not identify any relevant "deviation" between the Guidelines and the AMA5 for present purposes.
Clause 1.6 of the Guidelines relevantly provides: "1.6 The following is a basic summary of some key principles of permanent impairment assessments: a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant's relevant medical history and all available relevant medical information to determine: … • the degree of permanent impairment that results from the injury …"
Clause 1.36 makes provision for inconsistent presentation. It sets out an extract from AMA5 which includes the following: "The assessor must use their entire range of clinical skill and judgment when assessing whether or not the test results are plausible and consistent with the impairment being evaluated."
Chapter 2 of the Guidelines provides for assessment of impairment in the upper extremity. It refers to the relevant chapters of AMA5 and reiterates that the Guidelines are to take precedence over AMA5. Clause 2.5 provides for the approach to assessment of the upper extremity and hand and refers to circumstances where there is an inconsistency in range of motion.
Clause 2.20 of the Guidelines provides: "Calculating motion impairment 2.20 When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral 'normal/uninjured' joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor's report (see AMA5 Section 16.4c, p 543)."
Section 16.4c of AMA5 says: "The measurements reported in the impairment tables and pie charts reflect the accepted average active range(s) of motion for each joint. However, certain people can have either lesser or greater joint flexibility than average. It is therefore most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral 'normal' joint has a less than average mobility, the impairment value(s) corresponding to the uninvolved joint can serve as a baseline and are subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the report." [Emphasis in original.]

Supreme Court Act

Pursuant to s 69 of the Supreme Court Act, this Court has jurisdiction to grant relief in the nature of the prerogative writs with respect to errors of law on the face of the record or jurisdictional errors. Section 69(4) provides that the reasons of a court or tribunal are to form part of the record. It is not necessary to determine whether the AMS or the Appeal Panel constitutes a tribunal as s 325 of the Act provides that the certificate is to include the reasons. This is sufficient to make the reasons in the certificate part of the record for the purposes of s 69: Pham v NRMA Insurance Ltd [2014] NSWCA 22 at [27] (Leeming JA, Tobias AJA agreeing).

The alleged errors of law or jurisdictional errors

The grounds of relief which the claimant continues to press are set out in the amended summons (with the numbering changed for ease of reference) as follows: 1. "The [AMS] misconstrued and misapplied clause 2.20 of the applying guidelines in respect of the calculation of impairment by reference to the contralateral joint. The [AMS]'s path of reasons show that the [AMS] treated the application of clause 2.20 as being required, without more, in the Plaintiff's case. In so doing, the [AMS] failed to perform his statutory task." 2. "The [AMS]'s path of reasons does not address, as required, the 'rationale' for the application of clause 2.20, and does not show the path of reasons as to facts found, or other rationale, justifying the application of clause 2.20." 3. "The [Appeal Panel] was in error in failing to appreciate and understand the error made by the [AMS] outlined in [(1) and (2)] above. Further, the [Appeal Panel] was in error in the beneficial reading it applied to the [AMS]'s reasons by filing the gaps in the [AMS]'s reasoning with steps of reasoning, or a path of reasoning, not present in the [AMS]'s reasons and not justified by the correct application of a beneficial reading. In so doing, the [Appeal Panel] failed to perform its statutory task and did not correctly apply s 327 and 328."
In substance, the claimant alleged, in his amended summons, that the AMS had failed to correctly apply cl 2.20 of the Guidelines. He contended that the reasons of the AMS indicated that he applied cl 2.20: first, "in accordance with instructions from SIRA regarding unexplained loss of contralateral range of motion in the opposite extremity" and, second, "inconsistent presentation as noted above". It was argued on behalf of the claimant that the AMS failed to set out his rationale for his decision to use the "uninvolved joint" as a baseline to be subtracted from the involved (injured) joint, as required by cl 2.20, which incorporated AMA5, section 16.4c. Mr Baran described the language of the AMS as "parsimonious" and contended that it was inadequate to explain his rationale.
Further, Mr Baran contended that the Appeal Panel found that the AMS's explanation was insufficient and, accordingly, the Appeal Panel had identified error. He submitted that, in these circumstances, the Appeal Panel was obliged, and failed, to form its own medical opinion on the % WPI in accordance with the principles articulated in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [100] (McColl JA, Mason P agreeing). He contended the Appeal Panel ought be taken to have found error (on the basis of the alleged inadequacy of reasons by the AMS to explain the rationale for using cl 2.20) and that, in these circumstances, it had to determine the matter for itself afresh. Mr Baran argued that this failure had the consequence that, at the very least, the decision of the Appeal Panel ought be set aside for jurisdictional error and the matter remitted to it for determination in accordance with law.
Mr Baran also sought to argue that the AMS and the Appeal Panel ought to have had regard to the provisions of the Guidelines identified above which address inconsistent presentation and range of motion. I do not regard this argument as falling within the relief claimed in the amended summons. It was not a matter raised by the claimant before the AMS or the Appeal Panel. Further, it is inconsistent with the acceptance by the parties, as noted by the Appeal Panel that "neither party challenged the method by which the AMS assessed that appellant's impairment, namely loss of range of movement of the left wrist and right shoulder."

Alleged failure to apply cl 2.20 of the Guidelines

The referral to the AMS for the purposes of the assessment of permanent impairment was limited to the left wrist and right shoulder which was consistent with the determination made by the Commission following the decision by Arbitrator Wynyard. The AMS's finding that "there have been no injuries to the contralateral wrist or shoulder but there is an abnormal examination" was one that he was bound to make because Arbitrator Wynyard had found that any abnormality in the right wrist or left shoulder (being contralateral joints to the injured ones) was not as a result of an injury within the meaning of s 4 of the 1987 Act.
Clause 2.20 of the Guidelines required the AMS, and in due course, the Appeal Panel, to compare measurements of the relevant joints in both extremities. It appears to have been common ground that the relevant joints were the shoulder and wrist joints. The "involved" joints were the left wrist and the right shoulder. The "non-involved" or "contralateral" joints were the right wrist and the left shoulder.
AMA5, section 16.4c addressed two situations: first, the usual or orthodox situation where the person being assessed had accepted average active range(s) of motion for each non-involved joint as reported in the impairment tables and pie charts; and, second, where the contralateral "normal" joint has a less than average mobility where the deduction method would be appropriate. As cl 2.20 of the Guidelines indicates, it is important in either case to compare measurements of involved and contralateral joints. Clause 2.20 requires the rationale for the decision as to how to measure the relative impairment (by reference to the contralateral) to be explained and references the relevant section of AMA5.
The AMS's rationale for using the deduction method appears from the following part of his reasons: "There have been no injuries to the contralateral wrist or shoulder but there is abnormal examination including loss of active range of motion and abnormal illness behaviour. … In accordance with instructions from SIRA [which was accepted to be a reference to the Guidelines] regarding unexplained loss of contralateral range of motion in the opposite extremity and inconsistent presentation as noted above, impairment of the right wrist upper extremity to be deducted from the left, this equates to 10% upper extremity impairment related to the left wrist." [Emphasis in original.]
It is well-established that the reasons of a decision-maker such as the AMS or the Appeal Panel are to be given a fair and beneficial reading: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6. Applying this principle, it is, in my view, clear from the AMS's reasons that his rationale for using the deduction method set out in cl 2.20 was: 1. there had been no injury to the contralateral joints of the left shoulder and the right wrist (because Arbitrator Wynyard had found that the contralateral joints had not suffered injuries within the meaning of s 4 of the 1987 Act); 2. notwithstanding (1), there was a loss of active range of motion in the contralateral joints of the left shoulder and the right wrist which manifested itself, either partly or wholly, in abnormal illness behaviour; 3. as a consequence of (1) and (2), the average range of motion set out in the impairment tables and the pie charts was inapplicable to the assessment of the claimant's permanent impairment; 4. for this reason, the deduction method set out in cl 2.20 of the Guidelines (described by the AMS as "instructions from SIRA") was at least suitable, if not required, in the present case to calculate impairment for loss of range of movement in the involved joint (the left wrist and the right shoulder).
The rationale for using the deduction method has been adequately explained. No "gap-filling" is required to discern the pathway of reasoning since the reasons are sufficient to show how and why the AMS applied cl 2.20 of the Guidelines as part of his assessment of the claimant's % WPI.
Although the AMS did not, when addressing the impairment to the left wrist, repeat the reference to "instructions from SIRA", which I understand to be a reference to cl 2.20 of the Guidelines, he plainly applied the same reasoning to the assessment of impairment of the right shoulder. I do not discern any non-compliance with cl 2.20 of the Guidelines in the decision of the AMS, whose reasons were sufficient to indicate "the actual process of reasoning" to expose how he had come to the assessment and, in particular, why he had used the deduction method rather than calculating impairment by reference to average figures: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) at [65] (French CJ, Crennan, Bell, Gageler and Keane JJ). The AMS was required to "form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise": Wingfoot at [47]. The alleged error has not been made out.
Since the alleged error in the Appeal Panel's decision was that it failed to pick up and correct the error of the AMS, it follows from what I have said above, that the alleged error in the decision of the Appeal Panel has not been made out.
I reject Mr Baran's submission that it was not open to the Appeal Panel to confirm the certificate by the AMS. The Appeal Panel's powers included such a power: s 328(5). It is plain from the Appeal Panel's reasons that it considered the matter for itself and endorsed the approach taken by the AMS because it considered it to be correct. It was not required to do more than this.
It is necessary, for completeness, to address the apparent acceptance in the Appeal Panel's reasons in [35] that the AMS did not explain the rationale for using the deduction method "beyond noting that the Guidelines required that it be done". Despite this somewhat definite statement in [35], the Appeal Panel purported to rephrase its conclusion in [36] (as indicated by the prefatory words, "[s]aying that slightly differently"), by finding that the AMS had "explained [his rationale] in a very narrow manner". Further, the Appeal Panel's statement that "[t]he fact that the AMS did not more fully explain the rationale for doing that" indicates that it was satisfied that some explanation had been provided.
The Appeal Panel appears to have considered that the AMS used the deduction method because it was "the best method" since the uninjured contralateral joint represented the "baseline" of what the worker's range of motion in his injured joint would have been before the injury. I am not persuaded that there is any inadequacy in the Appeal Panel's reason for so finding. Its view, as expressed in its reasons, was the product of its own expertise. Indeed, given that the contralateral joint in each case exhibited a restricted range of motion, the average figures in the pie charts and tables were plainly inapposite. This left, as the only alternative method expressly contemplated by cl 2.20 and the relevant portion of AMA5 for assessing impairment in the joint, the comparison between the injured and non-injured joints. The obvious applicability and suitability of the deduction method meant that the reasons of the AMS, and in turn, the Appeal Panel needed only to be brief to be sufficient. Thus, it did not follow from the Appeal Panel's conclusion that the AMS did not explain the rationale for using the deduction "beyond noting that the Guidelines required that it be done" that more was required since the AMS's reasons were sufficient to explain why cl 2.20 applied and why the deduction method was appropriate.

Costs

It was common ground that costs ought follow the event in accordance with the general rule: UCPR, r 42.1.

Orders

For the reasons given above, I make the following orders: 1. Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 59.10(2), extend the time for filing the summons to 30 March 2020. 2. Dismiss the amended summons. 3. 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: 03 December 2020

Pursuant to Uniform Civil Procedure Rules 2005(NSW)

(the Act). The Workers Compensation Act 1987(NSW)

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