Pateman v Peninsula Village Limited trading as Peninsula Village Retirement Centre and Ors

Pateman v Peninsula Village Limited trading as Peninsula Village Retirement Centre and Ors - [2007] NSWSC 586 - NSWSC 2007 case summary — Zoe

[16]

Factual Background 2 The Plaintiff was born on 29 September 1967. Between 1998 and early 2002, the Plaintiff worked in a nursing home at Umina run by the First Defendant, Peninsula Village Limited trading as Peninsula Village Retirement Centre, as a care-service employee performing a range of kitchen and general cleaning duties. On 18 October 2001, the Plaintiff reported discomfort in her back as a result of pushing a trolley. On 25 October 2001, the Plaintiff reported a tearing feeling in her back and down her right buttock and leg to above her right knee, as a result of lifting milk crates. 3 The Plaintiff lodged an application to resolve a dispute with the Workers Compensation Commission, claiming lump sum compensation under ss.66 and 67 Workers Compensation Act 1987 ("WC Act") in respect of the injuries said to have been sustained to her lower back arising out of the incidents on 18 and 25 October 2001 and generally between 1998 and 9 January 2002, when the Plaintiff took voluntary redundancy and her employment with the First Defendant came to an end. 4 The First Defendant disputed the claim for permanent impairment and, pursuant to s.321 WIM Act, the Registrar referred the matter for medical assessment under Part 7, Chapter 7 of the WIM Act, appointing Dr Roger Pillemer as the approved medical specialist. It is common ground that Dr Pillemer is an orthopaedic surgeon. 5 The Plaintiff underwent medical examination by Dr Pillemer on 19 April 2005 and, on or about 29 April 2005, the Workers Compensation Commission published Dr Pillemer's medical assessment certificate given under s.325(1) WIM Act. 6 On 20 May 2005, the Plaintiff lodged an application to appeal against Dr Pillemer's medical assessment under s.327(1) WIM Act. The Registrar determined, under s.327(3) and (4) WIM Act, that the appeal should proceed. The appeal was heard by an Appeal Panel constituted under s.328(1) WIM Act, comprising Mr Philip Harvey, Arbitrator, and Dr George Weisz, orthopaedic surgeon, and Dr Geoffrey Coffey, neurologist, as approved medical specialists. 7 On 12 September 2005, the Appeal Panel gave reasons for its decision under s.328(5) to confirm the certificate of assessment given in connection with the medical assessment of Dr Pillemer. 8 On 30 November 2005, the Plaintiff commenced proceedings by Summons in this Court seeking prerogative relief with respect to the decision of the Appeal Panel. The First Defendant has appeared to resist the claim for relief. The Registrar of the Workers' Compensation Commission was joined as a party to the proceedings (the Second Defendant) as was the Appeal Panel (the Third Defendant). In accordance with usual practice, the Registrar and the Appeal Panel have filed appearances submitting to the orders of the Court, except as to costs.

[25]

The Confines of Judicial Review 14 The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 15 This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44]. 16 The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40-41. 17 The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

[26]

Relief in the Nature of Certiorari 18 Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176. 19 In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 20 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia, and continued at 351 [82]: "Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." 21 To invoke error of law based upon a failure to take account of relevant considerations, it is necessary to identify matters the consideration of which is mandated by law: Saville v Health Care Complaints Commission [2006] NSWCA 298 at [55]. Where error is alleged by way of taking into account irrelevant considerations, legal error is demonstrated only where a matter is taken into account which the law prohibits: Saville v Health Care Complaints Commission at [57]. 22 A finding of fact may reveal error of law where it appears that the decision maker has misdirected himself or herself or where there is no evidence to support a finding: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155-6; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. 23 A failure on the part of an administrative tribunal to give any or any adequate reasons does not, without more, establish that the decision involved some error, although there may be cases that warrant the inference that the relevant tribunal has failed in some respect to exercise its powers or jurisdiction according to law: Absolon v New South Wales TAFE [1999] NSWCA 311 at [67]; YG v Minister for Community Services [2002] NSWCA 247 at [37]. As will be seen later in this judgment (at paragraphs 62 to 66), the Court of Appeal in Campbelltown City Council v Vegan [2006] NSWCA 284 considered the duty of an Appeal Panel under s.327 WIM Act to give reasons. 24 Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79]. 25 In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 41. 26 Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-199: Bruce v Cole (1998) 45 NSWLR 163 at 183-184.

[47]

(m) If the answer to the above is yes, please identify the pre-existing injury, abnormality or condition. As noted I feel that Ms Pateman may well have a mild mechanical problem in the low back but feel the majority of her symptoms are due to an underlying unassociated renal condition ." 37 Dr Pillemer answered a further set of standard questions concerning the s.323 WIM Act assessment in the following way (pages 9-10) (emphasis added): "8. My answers to the following questions regarding the assessment of whole person impairment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment and AMA5 with respect to the injury suffered in the accident are: a) Is the worker claiming for any body part outside your field of expertise? If so, please indicate the body part. Yes b) Has the worker's injury resulted in impairment? Yes c) Is the worker claiming that he/she suffered more than one injury to any body part? Yes d) Is the impairment related to the accident or accidents? Yes e) Is apportionment between the several accidents necessary? Where applicable, I have apportioned the impairment between the various accidents in columns 4 & 5 in Table 2 below. f) Have all body parts reached maximum medical improvement? Yes g) If not, please list those injuries not yet at maximum medical improvement. Not applicable h) If maximum medical improvement of any or all injuries has not been reached, when, in your opinion, will this occur? Not applicable i) Is the impairment permanent? Yes j) What is the total assessed whole person impairment? (Where applicable, I have use the Combined Values Chart of the AMA5 Guides to combine the whole person impairment ratings for all injuries) I have indicated the total % WPI in column 5 in Table 2 below k) Is any proportion of whole person impairment due to a pre-existing injury, abnormality or condition? Yes I) If so, please indicate which body part is affected by the pre-existing injury, abnormality or condition. As noted in 7(m) I feel she has an underlying bilateral renal condition . m) What is the % of this "deductible proportion"? (Section 323 formerly s68A provides that in some cases this may not be known or will be difficult to determine. In such cases, the deduction is one-tenth of the whole person impairment.) I have indicated the % amount of pre-existing impairment in column 6 in Table 2 below n) What is the total whole person impairment as a result of the injury after all deductions: I have indicated the total % WPl as a result of the injury in column 7 in Table 2 below." 38 Dr Pillemer provided the following reasons for his opinion and assessment in the certificate (pages 10-11) (emphasis added): "10. Below are the reasons for:-

[51]

Reasons of the Appeal Panel 45 To understand the challenges to the decision of the Appeal Panel, it is appropriate to set out parts of the Appeal Panel's statement of reasons of 12 September 2005. 46 The Appeal Panel stated that a preliminary review of the original medical assessment had been undertaken, in the absence of the parties and in accordance with the WorkCover Guidelines (paragraph 7). As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the Plaintiff to undergo a further medical examination because there was sufficient information to allow the Appeal Panel to make an assessment of the loss suffered by the Plaintiff (paragraph 8). 47 The Appeal Panel determined that fresh evidence ought be received, in accordance with s.328(2) WIM Act, in the form of the ultrasound report of Dr Milne dated 13 February 2003 (paragraphs 9-10). 48 It was stated that the Appeal Panel had before it all the documents that were sent to Dr Pillemer for the original assessment, and had taken them into account in making its determination (paragraph 11). 49 The Appeal Panel noted that the Plaintiff had sought an order that the matter be referred for further assessment or, in the alternative, that the Plaintiff should be re-examined by the Appeal Panel. It was noted that the Plaintiff submitted that the matter should not be dealt with on the papers, whilst the First Defendant submitted otherwise. The Appeal Panel expressed the view that the matter was suitable for determination on the papers (paragraph 12). 50 The Appeal Panel then summarised the written submissions made on behalf of the Plaintiff and the First Defendant in support of the appeal (paragraph 12). 51 Given the challenge to the decision of the Appeal Panel, it is appropriate to set out that part of its reasons in which the function of the Appeal Panel was summarised (paragraphs 13-15): "13. The role of the Appeal Panel was considered by the Supreme Court in the case of Campbelltown City Council v Vegan [2004] NSWSC 1129. The Panel's task is to conduct a review of the merits of the Approved Medical Specialist's assessment. Mr. Justice Wood determined in Vegan that the Panel's task is not to consider whether an error exists, but is to conduct a review de novo. It is free to conduct a review upon the basis of the material before it, without the need to make a formal finding itself as to the existence of an error falling within an available ground of appeal, and without being confined to the correction of that error.

[53]

In this matter the Registrar has determined that at least one of the grounds of appeal exists. The Panel has accordingly conducted a review of the material before it and reached its own conclusion concerning the impairments and losses suffered by the Appellant." 52 Thereafter, the Appeal Panel summarised the assessments made by Dr Pillemer in the medical assessment certificate. The Appeal Panel noted that Dr Pillemer had issued a "Combined Medical Assessment Certificate of Permanent Impairment" that considered injuries that occurred both before and after 1 January 2002, "so as to apply the Table of Disabilities to the pre-2002 injuries, and the Whole Person Impairment table to injuries occurring on or after 1 January 2002" (paragraph 16). The Appeal Panel described Dr Pillemer's findings and conclusions in the following way (paragraphs 17-18): "In respect of the Table of Disabilities, Dr Pillemer assessed the percentage of permanent loss of efficient use of the back following the injury of 18 October, 2001, as 4%, with nil relating to pre-existing injury, abnormality or condition. In respect of the back injury on 25 October, 2001, he found that the Appellant's permanent impairment of the back was 8%, but that half of this percentage was attributable to pre-existing injury, abnormality, or condition, and thus the percentage attributable to this particular injury was 4%. In respect of the injury to the lumbar spine claimed as a result of the nature and conditions of employment from 1 January, 2002, to 9 January, 2002, Dr Pillemer found that whilst she had a 5% whole person impairment, the entirety of this related to pre-existing injury, condition or abnormality, and that Ms Pateman was not entitled to any percentage of whole person impairment." 53 The Appeal Panel then turned to the submissions for the Plaintiff on appeal concerning Dr Pillemer's reference to a suspected renal condition. Given the significance of this issue in the present proceedings, which includes a submission that error of law and/or jurisdictional error are revealed (including error in the adequacy of reasons provided), it is appropriate to set out the totality of the reasons provided by the Appeal Panel on these issues (paragraphs 19-32): "19. The Appellant contends that the reductions allowed for pre-existing injury related to Dr. Pillemer's opinion that the Ms. Pateman had a suspected renal condition which he was not qualified to express an opinion on. The Panel accepts that, at first glance, it would be possible to interpret his assessments in that manner.

[68]

Nature of Appeal to Appeal Panel 57 With respect to the nature of an appeal to the Appeal Panel, Handley JA (McColl JA agreeing) observed at [15] that s.327 WIM Act authorises an appeal from the assessment of a medical expert to a panel including other medical experts. As the Appeal Panel is entitled to receive additional evidence, its jurisdiction is original and not strictly appellate when such evidence is acted on (at [19]). 58 It appears that the decision at first instance of Wood CJ at CL in Campbelltown City Council v Vegan [2004] NSWSC 1129 concerning the nature of an appeal to an Appeal Panel is unaffected by the decision of the Court of Appeal, which overturned the decision of Wood CJ at CL on other grounds. This was the view of the parties in Crawford v Registrar of the Workers Compensation Commission [2007] NSWSC 44 at [22], and the parties before me. 59 In Vegan, Wood CJ at CL observed that the Appeal Panel conducts a review afresh and is not itself required to determine whether any of the grounds referred to in s.327(3) WIM Act have been made good. Although there was a restriction concerning the use of fresh evidence before an Appeal Panel under s.328(3) WIM Act, Wood CJ at CL considered that the review remained a review de novo (at [77]). 60 I note that s.327 WIM Act has been amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005: cf Mahenthirarasa v State Rail Authority of NSW [2007] NSWSC 22 at [12]ff. It was common ground before me that this amendment, which took effect after the decision of the Appeal Panel in this case in September 2005, has no bearing on the present proceedings. 61 It was common ground before me that the Appeal Panel identified correctly its statutory task in paragraphs 13 to 15 of the statement of reasons of 12 September 2005 (set out at paragraph 51 above). The Plaintiff contends that the Appeal Panel fell into jurisdictional error thereafter, by not fulfilling its statutory function to conduct a review de novo.

[69]

Duty of Appeal Panel to Give Reasons 62 With respect to the duty to give reasons, Handley JA (McColl JA agreeing) observed in Vegan at [20] that a duty to give proper reasons is a legal incident of the judicial process, but is not normally a legally incident of administrative decision making, nor is it a legal incident of expert assessment pursuant to law such as that provided for in the WIM Act. His Honour concluded that the Appeal Panel does not have an express duty to give proper reasons, but such a duty should be implied for two reasons. Firstly, since the approved medical specialist has a duty to give proper reasons, the Appeal Panel, exercising a power and duty to correct error, should do what the medical specialist should have done, that is make the right decision and give proper reasons for it (at [26]). Secondly, a statement of reasons may be necessary to enable a party to exercise a right of appeal, or such rights as he or she may have, to contest the decision. This reasoning applies where there is an appeal from an administrative decision maker to a panel or from an expert to a panel of experts, such as the Appeal Panel (at [24]). 63 In a separate judgment in Vegan, Basten JA (Handley and McColl JJA agreeing) held that the justification for an obligation to give reasons is derived from the right of appeal granted in relation to an exercise of judicial power (at [105]). The assessment of permanent impairment undertaken by the Appeal Panel involves the application of a statutory test, by which legal rights as between an employee and employer are determined. It is an exercise in the nature of a judicial function, whatever the precise name or status of the Appeal Panel itself (at [109]). Accordingly, the Appeal Panel was subject to an implied statutory obligation to give reasons (at [117]). 64 With respect to the adequacy of reasons, Basten JA (Handley and McColl JJA agreeing) said at [121]-[122]: "Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.

[71]

The Plaintiff's Submissions 67 Mr Austin, counsel for the Plaintiff, submits that it is important, at the outset, to note that injuries after 1 January 2002 are assessed differently from injuries prior to that date. Injuries after 1 January 2002 are assessed as a percentage of "whole person impairment", whilst injuries prior to that date are assessed under a table or disabilities and were reflected as individual body part permanent losses of efficient use or impairments. 68 Mr Austin submits that the Plaintiff's "nature and conditions of employment injury" spans this temporal divide. For the purpose of these proceedings, however, Mr Austin does not take issue with the findings of the approved medical specialist or the Appeal Panel with respect to this particular injury, and this aspect may therefore be placed to one side. 69 In approaching the errors alleged by the Plaintiff with respect to the Appeal Panel's decision, Mr Austin emphasises that there was no reference in any of the medical reports before the approved medical specialist to any renal condition of the Plaintiff. Mr Austin submits that Dr Pillemer introduced this concept into the medical assessment certificate. 70 Mr Austin emphasises Dr Pillemer's acknowledgment in the certificate that any renal condition or symptoms arising from the urinary system, lay outside his field of expertise. 71 Mr Austin submits that a fair reading of the medical assessment certificate leads to a conclusion that Dr Pillemer had taken into account the suspected renal condition, the diagnosis of which lay outside his expertise, in reaching his conclusions with respect to permanent impairment. 72 It was submitted for the Plaintiff that Dr Pillemer's reasoning was infected by his finding that the Plaintiff suffers from a urological condition, and that the "majority of her symptoms are due to this underlying unassociated renal condition". Mr Austin notes that Dr Pillemer had power under s.324(1)(a) and (b) WIM Act to consult with the Plaintiff's treating medical practitioners and/or to call for production of radiological or other records, but Dr Pillemer did not take this step before issuing his certificate. 73 Mr Austin submits that the unavoidable inference is that Dr Pillemer had taken the urological condition into account in evaluating and assessing the Plaintiff's percentage permanent impairment under s.66 WC Act, as opposed to his finding under s.323 WIM Act. 74 Mr Austin submits that the Appeal Panel had addressed the s.323 finding (at paragraph 27 of its judgment), but not the s.66 finding. It was submitted that it followed logically that the whole reasoning process by which Dr Pillemer arrived at his assessment was vitiated by this error and that the assessment could not stand. 75 Mr Austin acknowledges that the present proceedings challenge the decision of the Appeal Panel, and not that of Dr Pillemer. Nevertheless, he submits that the approach of the Appeal Panel to Dr Pillemer's certificate made it both relevant and necessary to identify what, he submits, was a clear defect in Dr Pillemer's approach, so that the Plaintiff's challenge to the decision of the Appeal Panel could be understood and addressed. 76 Mr Austin submits that the Appeal Panel had failed to exercise its jurisdiction to review the certificate de novo, and that this failure was demonstrated by a number of features of the Appeal Panel's decision. Although the Appeal Panel directed itself correctly by reference to the decision of Wood CJ at CL in Vegan, and stated that it had read and considered all the documentary material provided for the purpose of the appeal, he submits that the Appeal Panel confined its attention thereafter to the question of whether there was error in the approach of Dr Pillemer. It was submitted that it was for the Appeal Panel to form its own independent view on the evidence before it, as to whether the certificate of assessment of Dr Pillemer ought be confirmed or revoked. 77 Mr Austin submits that, in truth, the Appeal Panel confined its attention to the renal condition issue, and then only with respect to the assessment for the purposes of s.323 WIM Act and not that under s.66 WC Act. In the result, he submits that the manner in which the Appeal Panel approached this case was more akin to an appeal from a judge in the strict sense or from a judge by way of rehearing, rather than an exercise of original jurisdiction by the Appeal Panel comprised, as it was, of two medical experts and a legal member: Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298; Vegan at [19] (per Handley JA). 78 Mr Austin submits that a further flaw in the Appeal Panel's reasoning process arose from the characterisation of the reference in Dr Pillemer's certificate to a "suspected renal condition" as a matter giving rise to "potential ambiguity". Mr Austin submits that Dr Pillemer's reliance upon the renal condition had unambiguously been taken into account in his assessments for the purposes of s.323 WIM Act and s.66 WC Act. As a result, he submits that the Appeal Panel has misunderstood the approach taken by Dr Pillemer with respect to this issue. Further, this approach of the Appeal Panel, he submits, demonstrated that a review de novo was not being undertaken, but rather an examination of Dr Pillemer's reasons to see if error existed. 79 Mr Austin acknowledges that the Plaintiff does not disagree with the finding of the Appeal Panel in regard to s.323 WIM Act. It was sufficiently clear, he submits, that Dr Pillemer had excised any renal condition from his reasoning in that respect. However, the Plaintiff takes issue with the diagnosis, evaluation and assessment of permanent impairment under s.66 WC Act. Mr Austin submits that the Appeal Panel misunderstood Dr Pillemer's certificate and had no regard to the fact that the alleged renal condition was taken into account, adversely to the Plaintiff, in Dr Pillemer's assessment under s.66. The Appeal Panel had wrongly concluded that Dr Pillemer made his assessment independently of his opinion that the Plaintiff was suffering from a urological illness. 80 Invoking the principles in Craig v South Australia at 179 (see paragraph 19 above), Mr Austin submits that the reasons of the Appeal Panel were affected by legal error in a number of respects. 81 Firstly, he submits that the Appeal Panel failed to identify the relevant primary findings of fact upon which the permanent impairment assessment of Dr Pillemer was based. He submits that these primary findings were critical to the evaluation and assessment process by the approved medical specialist. 82 Mr Austin submits that this represents a demonstrable mistake in the identification of the relevant issue for determination, a mistake which was critical to the resolution of the central issue in dispute and that this error vitiated the decision. 83 Secondly, it was submitted that the Appeal Panel premised this ultimate conclusion on irrelevant considerations. In this regard, the Appeal Panel placed reliance on the reasons and actual assessments of Dr Pillemer as if they were findings of fact which underpinned the permanent impairment assessment. It was submitted that, contrary to the view of the Appeal Panel, the renal condition weighed heavily of the mind of Dr Pillemer in terms of symptomology and restriction of movement. 84 Thirdly, Mr Austin submits that the Appeal Panel came to its ultimate conclusion premised on the erroneous finding that Dr Pillemer did not take the alleged renal condition into account in diagnosing, evaluating and assessing the Plaintiff's permanent impairment. In particular, he emphasised that the reference to a renal condition had tainted the assessment under s.66 WC Act. 85 A separate basis for relief was said to arise from the Appeal Panel's decision not to send the Plaintiff for reassessment or to itself examine the Plaintiff. It was submitted that this discretionary decision, in circumstances where there was a palpable error in Dr Pillemer's reasoning process, was manifestly unreasonable (in the Wednesbury sense) and was so unreasonable that no reasonable decision maker could properly have arrived at it. 86 Given the nature of the rights and liabilities which the Appeal Panel was determining, the Plaintiff submits that the only reasonable exercise of discretion open to it was to send the Plaintiff for re-examination or to re-examine the Plaintiff itself. 87 Finally, Mr Austin submits that the reasons of the Appeal Panel were so inadequate as to constitute error of law on the face of the record in the sense recognised by the Court of Appeal in Vegan. He points to the conclusions at paragraph 29 and 30 of the reasons of the Appeal Panel that, putting to one side entirely any suggestion that the Plaintiff suffered from a renal condition, Dr Pillemer's determinations were nonetheless "somewhat generous" and his "ultimate findings were appropriate". Mr Austin submits that cryptic statements of this type did not discharge the Appeal Panel's implied obligation to give reasons for its decision. 88 It was submitted that a proper review of the medical assessment certificate called for an evaluation of the medical evidence before Dr Pillemer, an evaluation of his findings on examination, an evaluation of the radiological investigations, including the renal ultrasound, and then a reasoned adjudication of the assessment. At the least, Mr Austin submits that a sufficient explanation must be given as to why the order was made: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 273. 89 Whilst acknowledging that a trier of fact need not detail every step in the reasoning process, Mr Austin submits that where a finding is central to the resolution of the issue in dispute, the reasoning process undertaken ought enable the reader to understand the essential steps in that process. He submits that the reader of the Appeal Panel's decision would be left wondering why Dr Pillemer's assessment was "somewhat generous". 90 Bearing in mind that the Appeal Panel is determining legal rights as between an employee and employer, he submits that the decision cannot stand. Although the direct monetary consequences of the assessment of impairment may not be very substantial (s.66 WC Act), Mr Austin submits that the s.66 assessment may have an impact upon the Plaintiff's future rights with respect to weekly payments, which can endure up to the age of 65 years, and also medical expenses for a lifetime. 91 Mr Austin acknowledges that relief under s.69 Supreme Court Act 1970 is discretionary in nature, but submits that no basis exists for a discretionary refusal of relief to which the Plaintiff was otherwise entitled.

[72]

The First Defendant's Submissions 92 Mr Rowles, counsel for the First Defendant, submits that the focus of attention must be upon the decision of the Appeal Panel which is under challenge, and not that of the approved medical specialist. He submits that the Plaintiff was, in reality, attempting to appeal to this Court (in the guise of a claim for prerogative relief) from the original decision of Dr Pillemer, which has been overtaken by the decision of the Appeal Panel. 93 Mr Rowles submits that the Appeal Panel properly understood its appellate function and had exercised it. The Appeal Panel had turned its mind to the question whether a further medical examination of the Plaintiff ought take place, or whether there was sufficient information to allow the Appeal Panel to make an assessment of the Plaintiff's loss. The Appeal Panel had a discretion in this respect. Mr Rowles submits that no error had been demonstrated on the Appeal Panel's part in reaching this conclusion. 94 The Appeal Panel had determined to admit Dr Milne's ultrasound report as fresh evidence under s.328(2) WIM Act. Thereafter, the Appeal Panel had regard to the report. Once again, Mr Rowles submits that this points to a clear understanding by the Appeal Panel of its statutory function. 95 The Appeal Panel considered the Plaintiff's submission to it that further assessment ought take place, or that the Plaintiff ought be re-examined by the Appeal Panel itself, but determined that these steps were not required. Once again, it was submitted that this discretionary determination was open to the Appeal Panel and no relevant error is revealed. 96 Mr Rowles submits that although minds may reasonably differ as to whether a further examination of the Plaintiff was desirable, it was open to the Appeal Panel to reach the conclusion which it did, and that such a conclusion was not manifestly unreasonable. 97 Mr Rowles submits that the Appeal Panel understood the obligation to undertake a review de novo and stated that it had "conducted a review of the material before it and reached its own conclusion concerning the impairments and losses suffered by the [Plaintiff]" (paragraph 15 of reasons of Appeal Panel). 98 Mr Rowles submits that it was for the Appeal Panel to determine how the appeal should proceed, and that no error had been demonstrated in the decision of the Appeal Panel to proceed in the manner in which it did: Estate of Heinrich Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 at [57]-[58]; Sittik v WorkCover Authority of NSW [2007] NSWSC 129 at [15]-[20]. 99 Mr Rowles submits that the Appeal Panel considered the submissions for the Plaintiff concerning Dr Pillemer's reference to a renal condition and determined that, fairly read, Dr Pillemer's certificate did not take into account in his assessments, in a manner adverse to the Plaintiff, the possible existence of a renal condition.

[73]

100 It was submitted that the Appeal Panel had reached the conclusion that Dr Pillemer, despite some ambiguity in the certificate, had not factored in the renal condition to the relevant assessments. In any event, Mr Rowles submits that the Appeal Panel considered all the material, and had turned its own mind to the question of appropriate assessments, excising any suggestion of a renal condition as a relevant factor. Having done so, Mr Rowles submits that the Appeal Panel had formed its own view that Dr Pillemer's ultimate determinations were, if anything, "somewhat generous" and that his "ultimate findings were appropriate". As a result, there was no necessity to revoke the certificate and to issue a fresh one. Mr Rowles submits that none of this reveals error of the type which could attract relief under s.69 Supreme Court Act 1970. 101 With respect to the adequacy of reasons, Mr Rowles submits that the Appeal Panel had explained itself clearly and concisely. The Appeal Panel excised the issue of any renal condition entirely from consideration. Having examined all reports and reached its own conclusion concerning the impairments and losses suffered by the Plaintiff, the Appeal Panel concluded that Dr Pillemer's ultimate determinations "were, if anything, somewhat generous, but not such as would require a further assessment". 102 Further, insofar as errors in the certificate were concerned, the Appeal Panel felt that "because the ultimate findings were appropriate there was no necessity to revoke the certificate and to issue a fresh one". Mr Rowles submits that these conclusions, properly understood, indicate that the Appeal Panel's own assessment of the Plaintiff's claim may have resulted in calculations and conclusions less favourable to the Plaintiff then that concluded by Dr Pillemer. Nevertheless, the Appeal Panel determined to confirm the certificate, despite these apparent misgivings. 103 Mr Rowles submits that no more elaborate reasons were required, to comply with the implied duty to give reasons, in the circumstances of this case. The Appeal Panel did not find that Dr Pillemer had erroneously taken into account any renal condition in reaching his assessment. Nevertheless, the Appeal Panel had put the issue of any renal condition to one side entirely, and had formed its own view on all the material before it. Having done so, it concluded that the assessments and conclusions of Dr Pillemer involved no error, and certainly no error which operated unfavourably to the Plaintiff. In these circumstances, no breach of the duty to give reasons had been established. 104 Mr Rowles submits that no basis for relief had been demonstrated by the Plaintiff.

[74]

Resolution of Competing Submissions 105 It is necessary to have regard to the reasons contained in Dr Pillemer's certificate, as well as the reasons of the Appeal Panel, for the purpose of determining the present proceedings. It is apparent that an understanding of the decision of the Appeal Panel involves comprehension of Dr Pillemer's reasoning. 106 In my opinion, a fair reading of the medical assessment certificate of Dr Pillemer suggests that he has not, in fact, taken into account for the purpose of the assessments under s.66 WC Act or s.323 WIM Act, the renal condition which he attributed to the Plaintiff. It is true that the manner in which Dr Pillemer referred to the suspected renal condition, at different points in the medical certificate, raised for consideration the question whether he had taken such a condition into account for the purposes of either, or both, of the assessments which he was required to make for the purpose of the combined certificate. So much was acknowledged in the reasons of the Appeal Panel where an analysis of the certificate was undertaken to determine whether Dr Pillemer had, in fact, taken into account in his assessments the suspected renal condition in a manner unfavourable to the Plaintiff. The Appeal Panel concluded that Dr Pillemer had not, in fact, utilised his suspicion of a renal condition in such an impermissible way. Having considered carefully the terms of Dr Pillemer's certificate and the reasons of the Appeal Panel on this point, I agree with the conclusions of the Appeal Panel. 107 I am satisfied that a fair reading of Dr Pillemer's certificate reveals that he did not take into account, for the purpose of his assessments under s.66 WC Act or s.323 WIM Act, any suspected renal condition of the Plaintiff. That part of Dr Pillemer's certificate which identified the injuries for which assessments were being made identified specifically the back injuries which were the subject of the claim. 108 The Appeal Panel approached its task by examining Dr Pillemer's certificate to determine whether he had, erroneously, taken into account the renal condition adversely to the Plaintiff. The Appeal Panel determined that he had not. In my view, no error is revealed in the reasoning of the Appeal Panel on this point. 109 It is clear that the Appeal Panel gave close consideration to the terms of Dr Pillemer's certificate and acknowledged that some parts of it suggested that the author had impermissibly taken into account the suspected renal condition for the purpose of the assessments to be made. However, having carefully considered the terms of the certificate, the Appeal Panel concluded that Dr Pillemer had not done so. Having undertaken the same process of construction of Dr Pillemer's certificate as that carried out by the Appeal Panel, I understand the conclusion of the Appeal Panel and agree with it. 110 Consistent with the exercise of its de novo review function, the Appeal Panel did not stop there. The Appeal Panel proceeded to form its own conclusions with respect to the Plaintiff. The Appeal Panel stated that it had examined all the documentary material and had reached its own conclusions with respect to the Plaintiff's impairment. Having done so, the Appeal Panel concluded, somewhat pithily, that Dr Pillemer's ultimate determinations were "somewhat generous" and that his "ultimate findings were appropriate". 111 In considering Mr Austin's submission that the Appeal Panel failed to give reasons on these matters, it is important to consider the reasons of the Appeal Panel as a whole. The Appeal Panel had summarised Dr Pillemer's findings and conclusions. Having determined that Dr Pillemer had not taken into account the suspected renal condition in the assessments and determinations to be made under s.66 WC Act and s.323 WIM Act, the Appeal Panel had regard to the totality of the documentary evidence before it, leading to the conclusions expressed in paragraphs 29 to 32 of the reasons of the Appeal Panel (set out at paragraph 53 above). In particular, the medical members of the Panel (see paragraph 29) applied their minds and expertise to these matters. 112 Unlike Vegan, this is not a case where a medical assessment certificate was revoked by the Appeal Panel and where there is an implied obligation to give reasons for reaching a different view to that of the approved medical specialist. Rather, the Appeal Panel has formed the view that Dr Pillemer's ultimate percentage determinations were appropriate and, indeed, generous to the Plaintiff, putting aside entirely any question of a renal condition. It may be taken that the Appeal Panel was otherwise endorsing and adopting the reasoning and conclusions of Dr Pillemer. 113 Although minds may differ as to whether a further medical assessment of the Plaintiff or an examination of the Plaintiff by the Appeal Panel itself may have been desirable, this was a discretionary matter for the Appeal Panel to consider. It is clear that the Appeal Panel considered this step and decided that an examination should not occur. A substantial hurdle lies in the way of the Plaintiff in demonstrating that such a discretionary determination is manifestly unreasonable (see paragraph 24 above). I am not satisfied that the Plaintiff has demonstrated that it was in this case. 114 I am not satisfied that there has been a failure to give reasons in this case. The conclusions of the Appeal Panel are clear enough. In reality, the Appeal Panel has determined, on all the evidence, that no better result should arise than that determined by Dr Pillemer, despite the Appeal Panel's view that this outcome may have been more favourable to the Plaintiff than was warranted. I do not consider that error of the type identified in Vegan is demonstrated in this case. 115 Having regard to the detailed submissions made for the Plaintiff, it is appropriate to summarise my conclusions in the following way. 116 Firstly, the Appeal Panel understood the nature of its task to conduct a de novo review with respect to the medical assessment certificate issued by Dr Pillemer. 117 Secondly, in the exercise of its statutory function, the Appeal Panel considered whether a further medical examination of the Plaintiff should take place or whether the Plaintiff should be examined by the Appeal Panel itself. The Appeal Panel determined that these steps ought not be taken in this case and this conclusion was open to the Appeal Panel in the exercise of discretion and was not manifestly unreasonable. 118 Thirdly, the Appeal Panel determined to proceed with the review upon the basis of the documents which had been provided to it. This discretionary conclusion was open to the Appeal Panel and no error has been demonstrated with respect to it. 119 Fourthly, the principal focus of the appeal to the Appeal Panel was the contention that Dr Pillemer had taken into account in his assessments, impermissibly, and in a manner adverse to the Plaintiff, the suspected renal condition to which reference was made. It was open to the Appeal Panel, and it constituted an appropriate approach to its task to examine, as a starting point, Dr Pillemer's certificate to ascertain whether the suspected renal condition had, in fact, been relied upon impermissibly in the assessment and determination process. The Appeal Panel concluded that it had not been relied upon by Dr Pillemer in this way. This conclusion was open to the Appeal Panel and was, in my view, the correct construction of Dr Pillemer's certificate. 120 Fifthly, to take this approach, as a starting point, did not involve any error in law or jurisdictional error on the part of the Appeal Panel. The review process under s.328 WIM Act does not require the Appeal Panel to ignore the certificate under challenge. After all, the question whether the Appeal Panel ought require further medical examination or conduct its own examination of an appellant may depend, in some way, upon the content of the certificate. Likewise, the question whether the Appeal Panel ought make its own detailed findings of fact, will depend upon the issues raised on appeal and, in particular, whether the Appeal Panel intends to reach a different conclusion to that revealed in the certificate under challenge. 121 Sixthly, the Appeal Panel's conclusion that Dr Pillemer had not taken into account in his assessments, impermissibly and in a manner adverse to the Plaintiff, the suspected renal condition operated against the need for any further medical examination of the Plaintiff or an examination of the Plaintiff by the Appeal Panel itself. 122 Seventhly, once again displaying an understanding of its statutory function, the Appeal Panel proceeded to consider the documentary material before it, including fresh evidence admitted on appeal (the ultrasound report) and to form its own conclusions with respect to the Plaintiff, excising completely from the picture any suggestion of a suspected renal condition. In undertaking this function, it was not essential that the Appeal Panel spell out in detail its own findings and conclusions concerning the Plaintiff. The Appeal Panel had determined already that Dr Pillemer's findings, properly and fairly read, had excised the suspected renal condition from his determinations. The Appeal Panel was not reaching a different conclusion to that reached by Dr Pillemer. To the contrary, having formed its own independent view based upon the material before it, the Appeal Panel reached the same conclusions as did Dr Pillemer, with the exception that the Appeal Panel observed that Dr Pillemer's ultimate determinations were "somewhat generous" and his "ultimate findings were appropriate". These variations, which suggest that the Appeal Panel's conclusion would have led to a determination less favourable to the Plaintiff, did not require further elaboration as a matter of law. It is clear enough, from the totality of the reasons of the Appeal Panel, why it reached its decision to confirm Dr Pillemer's certificate. The Appeal Panel was not required, as a matter of law, to give more detailed reasons than those actually given and no breach of the duty to give reasons has been established in accordance with the principles arising from the decision of the Court of Appeal in Vegan.

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