Robertson v Registrar of the Workers Compensation Commission & Beny's Joinery Pty Ltd

" 327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds: (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment, (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless 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. (5) If the appeal is on a ground referred to in subsection (3)(c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal. (6) The Registrar may refer a medical assessment for further assessment or reconsideration under section 329 as an alternative to an appeal against the assessment. (7) There is 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. (8) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section. Note. Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success." 11 There is no time limit on two of the four grounds of appeal under s 327(3), that is where there is a deterioration of the worker's condition resulting in an increase in the degree of permanent impairment and where additional relevant information has become available. However where the appeal is made on the grounds mentioned in s 327(3)(c) - assessment on the basis of incorrect criteria - and in s 327(3)(d) - medical assessment certificate contains a demonstrable error - an appeal against the medical assessment must be made within 28 days unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal. Both parties to a medical dispute would be able to appeal on grounds (b), (c) and (d) but it is only the worker who is likely to exercise the right of appeal on ground (a). 12 The reasons why there is no time limitation for appeals under s 327(3)(a) and (b) are obvious. The deterioration may take place some months or years later. The additional relevant information may not become available for some time.

Supplementary Aids To Interpretation 13 The objectives stated in s 3 of the Workplace Management and Workers Compensation Act 1998 do not bear directly upon the present problem save that one of the objectives is to provide injured workers with payment for permanent impairment. 14 The Explanatory Note for the Bill provides "(k) Part 7 deals with the appointment of approved medical specialists and the assessment by them of medical disputes. The assessment of degree of permanent impairment is required to be in accordance with WorkCover Guidelines. An assessment of a medical dispute by an approved medical specialist will only be conclusive as to degree of permanent impairment, proportion of impairment due to previous injury, extent of loss of hearing and whether an impairment is permanent."

15 In the Minister's Second Reading Speech in the Legislative Council on 26 June 2001 (Hansard) he stated that the then existing system did not handle disputes well and was not delivering to injured workers. He added that the deficit for the existing scheme continued to grow at the rate of $1 million per day and that the scheme's projected deficit would hit around $3 billion in 2003, without significant action. 16 The Minister explained that a major dispute prevention initiative was the proposed introduction of permanent impairment guidelines. WorkCover was to be required to issue guides to assess the degree of permanent impairment rather than simply relying on the AMA guides. 17 The Minister dealt with various provisions and changes to be introduced. He then said: "The bill now provides that the advice of approved medical specialists will be binding only when the issue referred relates to permanent impairment, including hearing loss. In other cases, such as treatment disputes and medical issues relating to causation, the certificate of the approved medical specialist will be prima facie evidence. However, sufficient weight will need to be given to the advice of the approved medical specialist. To address concerns regarding the binding nature of permanent impairment assessments, an appeal system has been included. Appeals will be made to a panel consisting of an arbitrator and two approved medical specialists. The injured worker will be entitled to be accompanied by another person, including, if so selected, a legal representative, who will be allowed to help the worker to tell his or her story to the panel. Arbitrators will primarily carry out the decision-making functions of the commission. Arbitrators will be appointed by the president and will generally be legally qualified."

Relief Under s 69 of the Supreme Court Act 18 Relief may be granted under s 69 of the Supreme Court Act in respect of the decision of the delegate of the Registrar. I agree with the decision of Sully J in Massie v Southern Timber and Hardware Pty Ltd [2006] NSWSC 1045 at [34] and that of Adams J in Tattersall v Registrar of the Workers Compensation Commission of NSW [2007] NSWSC 453 at [15] and cases there cited. I also agree with his summary of the role of the Registrar at [16] - [17]. 19 Of course, relief in the nature of certiorari may only be granted under s 69 in accordance with the principles identified in Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351. 20 As Hoeben J pointed out in Zuanic v Gypro-Tech (Aus) Pty Ltd (in liq) 66 NSWLR 206 at [33] "Relief may be granted in the case of error of law on the face of the record where the face of the record includes the reasons expressed by the tribunal for its ultimate determination ( Hanna v Department of Immigration Multicultural and Indigenous Affairs (2004) NSWCA 275 at [28], [ Campbelltown City Council v Vegan 67 NSWLR at [49] - [50]], s 69(4), Supreme Court Act 1970.)" Alleged Errors 21 Mr Robertson submitted that the delegate of the Registrar identified the wrong issue and asked himself the wrong question. It was contended that the delegate had ignored relevant matters. 22 Counsel submitted that there were two errors in the delegate's decision: i) In adopting the reasoning in the decision of Aguiar v Registrar to the Workers Compensation Commission [2005] NSWSC 1017 , the delegate impermissibly excluded relevant evidence. Counsel relied on the sentence "The circumstances to which regard is usually given for the granting of an extension of time are not intended to be sufficient to satisfy this provision" in the reasons of the Associate Justice in Aguiar. ii) In the reasoning of the Registrar's delegate identified in paragraphs 11 and 12 of his reasons for decision. Mr Robertson submitted that the decision of Hoeben J in Petrovic v B.C. Serv No 14 Pty Limited & Ors [2007] NSWSC 1156 was erroneous in so far as it restricted the interpretation in s 327(3)(b) of the words "availability of additional relevant information" to "information of a medical kind or which is directly related to the decision required to be made by the [Approved Medical Specialist]" and held that it does not include matters going to the process whereby the AMS makes his or her assessment. 23 Mr Robertson also challenged this further statement of Hoeben J: "Such matters may be picked up, depending on the circumstances, by s 327(3)(c) and (d) but they do not come within subs.327(3)(b)".

Increase in appeal period for appeals on s 327(c) and (d) 24 By his decision of 18 December 2007 the Registrar's Delegate held:

"3. Section 327(5) of the Act provides that if the appeal is on a ground referred to in subsection 3(c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal. The final day for making an appeal in this matter was 8 October 2007. The appeal was lodged 18 days out of the 28-day appeal period. 4. In Aguiar v Registrar to the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1017, Malpass AsJ made the following observations regarding section 327(5): 'The policy behind the provision seems to be to bring about expeditious disposition and finality. The language of the provision expresses an emphasis on the need for strict compliance with the time limitation for the bringing of such an appeal. An increase can only be granted where there are justifying special circumstances. The circumstances to which regard is usually given for the granting of an extension of time are not intended to be sufficient to satisfy this provision. There must be something over and above that which is usual or ordinary. The requisite circumstances must fall within the category of special. [at 19-20].' 5. His Honour also referred to the following definitions of 'special': ""Different from what is ordinary or usual" and "extraordinary"; exceptional"" [at 17] 6. In considering the Appellant's submissions the Registrar is not satisfied that any special circumstances justify an increase in the period for an appeal. 7. The Appellant submits that special circumstances exist to satisfy the extension of the appeal period. The Appellant submits that upon receiving the MAC the Appellant's legal representative has acted promptly in seeking the Appellant's instruction and contacting the Appellant's treating doctor for his medical opinion. Unfortunately the Appellant's treating doctor was not able to provide the information until 18 October due to the doctor's commitments overseas. The Appellant submits that until 18 October 2007 they were not in a position to ascertain if there was any proper basis or justification for appeal as the legal representative is required by law to certify that there are reasonable grounds for appeal. 8. The present case is analogous to the circumstances in the case of Aguiar where the failure to obtain a medical opinion within the 28 days period was also due to the unavailability of the medical practitioner and the plaintiff's legal representative chose to await the report rather than bring the appeal within the prescribed period. It was held that the circumstances could not be regarded as 'special'. 9. Similarly, I do not accept that the circumstances described by the Appellant in the present case (including the unavailability of the Appellant's treating doctor and the unwillingness of the Appellant's legal representative to certify and lodge the appeal) are something beyond the normal course of events so as to be extraordinary or special. 10. As I am not satisfied that special circumstances justify an increase in the appeal period, the appeal on grounds s 327(3)(c) and (d) is not to proceed." 25 In para 21 of Aguiar Malpass AsJ added: "Generally speaking when regard is being had to an extension of time, circumstances including matters such as the length of the period of default, the explanation for the default, the prejudice and the merits of what is sought to be litigated are taken into account."

26 Mr Robertson submitted that the delegate of the Registrar, although bound by the decision of Malpass AsJ in Aguiar v Registrar to the Workers Compensation Commission & Ors [2005] NSWSC 1017 applied an incorrect test in that Malpass AsJ incorrectly formulated the test to be applied. The delegate also reasoned from factual decisions rather than principles. 27 Malpass AsJ does not make it clear to which provisions for extension of time he was referring when he used the clause "the circumstances to which regard is usually given". He may have been referring to those cases where the test for an extension of time is expressed in slightly different language, for example, "upon sufficient cause shown": Sophron v Nominal Defendant (1957) 96 CLR 469. See also the review of the authorities by the Court of Appeal in Stollznow v Calvert [1980] 2 NSWLR 749 at 750 - 753 where the application of the defendant was to dismiss the plaintiff's action for want of prosecution. The general observations of Moffit P and the passages he quotes from the High Court's judgment in Sophron are helpful. Moffit P (with whom Hope and Mahoney JJA agreed) stated:

"As a matter of principle, the blamelessness of a plaintiff personally for the delay is a fact relevant to be considered, along with other relevant facts. The submission of the appellant to the contrary, namely, that the fault of the respondent's solicitor should be attributed vicariously to the respondent [plaintiff] so that, despite the absence of any personal fault she should be held to be to blame and the proceedings necessarily dismissed, should be rejected." 28 The President commented: "… it is difficult to see how some principle of general deterrence, adopted from the criminal law, to deter other lawyers in future cases from being dilatory in the prosecution of their clients' cases … can be a proper exercise of discretion to do that which is just between particular parties before the Court in civil proceedings." 29 In the need to be satisfied that special circumstances exist care must be taken, especially when considering other cases, that an element of deterrence does not creep into the decision making process. 30 Counsel for Mr Robertson pointed out that when Aguiar was decided s 327(8) of the Act was not a relevant consideration. That section places significant restrictions on Mr Robertson's solicitor. It applies s 345 of the Legal Profession Act 2004 to and in respect of the provision of legal services in connection with an appeal under s 327. A legal practitioner responsible for the provision of those services has to believe on the basis of provable facts and a reasonably arguable view of the law, that the claim has reasonable prospects of success. Before a practitioner can proceed he requires provable facts. The solicitor in the present case sought to ascertain that these existed before he proceeded. He took the responsible course, as the Act requires. The doctor involved, Dr Manohar, took a considered and responsible course. 31 The phrase "special circumstances" must be construed in the light of the statutory context in which it appears. However, it is a phrase which has been used in many statutes both in England and in New South Wales. An early leading case is In Re G.B.B Norman (1886) 16 QBD 673. In that case it was held that the "special circumstances" which under 6 and 7 Vict c 73 s 37 allow a solicitor's bill of costs to be referred for taxation although 12 months have elapsed since it was delivered to the client were not merely pressure and overcharge or overcharging amounting to fraud. Lord Esher MR at 675 and Lopes LJ at 677 adopted what Bowen LJ had said in In re Boycott 29 Ch D 571 at 579, namely:

"Special circumstances, I think, are those which appear to the judge so special and exceptional as to justify taxation. I think no Court has a right to limit the discretion of another Court, though it may lay down principles which are useful as a guide in the exercise of its own discretion." 32 Lindley LJ agreed with Lord Esher and added that the Court ought not to restrict the natural and ordinary meaning of "special circumstances". His Lordship remarked that the amount of the bill was monstrous and described the combination of circumstances as very striking (at 677). 33 Lopes LJ at 677 said that the words "special circumstances" were wide, comprehensive and flexible words and that no Court can or ought to lay down any exhaustive definition of them.

34 Lopes LJ following Bowen LJ in In re Boycott, held that once there were special circumstances the judge has a discretion as to whether they were sufficient to authorise taxation. 35 Norman is unlikely to have been the first case in which a solicitor had delivered a rather high bill that called for moderation. The Court did not look at other cases in which high bills had been delivered. The Court asked whether the circumstances were so special as to justify taxation. The amount of the bill appeared to be the principal special circumstance. 36 In Jess v Scott & Others (1986) 12 FCR 187 the Full Federal Court (Lockhart, Sheppard and Burchett JJ) considered the matters necessary to establish the existence of "special reasons" justifying the grant of leave to appeal pursuant to Federal Court Rules O.52 r 15(2). Because of a misunderstanding on the part of the applicant's solicitor as to the date of delivery of judgment, the notice of appeal was filed and served on the day after the last day limited for the filing of a notice of appeal under the rules. 37 The Full Court held that the cases establish that leave to appeal out of time is to be determined by the Court's view of the demands of justice in accordance with a broad judicial discretion and not simply upon the application of any verbal formula. The Full Court reviewed many older and more modern authorities noting that there had been a shift of judicial opinion. The Full Court referred to modern English authorities where the legislation or rules used the phrase "special circumstances". In Mehta [1975] 1 WLR 1087 the English Court of Appeal (Lord Denning MR, Browne and Geoffrey Lane LJJ) per Lord Denning said at 1091: "One of the special circumstances here was the fact that the omission [to lodge an appeal] was the mistake of Miss Mehta's solicitors." 38 That Court rejected a submission that the mistake of her solicitors could not amount to special circumstances. Lawyers are not supposed to make a mistake or mistakes as to time limits. They may amount to a special circumstance. 39 Lord Denning added: "I should have thought that the appellate authority [An Immigration Appellate Tribunal] might well adopt the practice which we adopt in the Court of Appeal here. We are often asked to extend the time of giving notice of appeal. We never let a party suffer because his solicitors make a mistake and are a day or two late in giving notice of appeal. We always treat it as a ground for extending the time: see Gatti v Shoosmith [1939] Ch 841". 40 The Full Federal Court referred to the modern practice in the Supreme Court of Victoria but the rule dealing with extensions of time uses the test of "good reason" and that may pose some different considerations. 41 The Full Federal Court then referred to a number of New South Wales decisions. In the joint judgment of Reynolds, Hutley and Bowen JJA in Outboard Marine Australia [1974] 1 NSWLR 27 at 30 it was stated: "… the Rules of Court, particularly those relating to time, should never be allowed to be an instrument of tyranny. They do, however, have purposes, one of which is that the parties may know where they stand …" 42 The other NSW decisions dealt with extensions of time in different contexts. The principles applied followed the remarks of Walsh J in Martin v Nominal Defendant (1954) 74 WN (NSW) 121 and Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411-412 that the Court's discretion should not be trammelled by set rules but should be exercised wherever sufficient cause is shown upon an examination of the circumstances of the particular case. 43 At 195-196 the Full Court concluded: "What is needed to justify an extension of time is indicated in r 15(2) by the words 'for special reasons'. It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this. The proposition cannot be accepted that r 15(2) was intended to constrict the broad measure of justice for the individual case which the Court could award upon the principle of Gatti v Shoosmith . No return was contemplated to the old law by which the discretion of the Court to waive the rules was itself fettered by further rules. We agree with the dictum of Davies J cited earlier in these reasons, and we think the construction of the rule we have adopted is in line with the decisions in Ex parte Meht a, the Palata Investments case and Avery's case. It should not be overlooked that r 15(2) enables leave to be given 'at any time'; the 'special reasons' relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year, equally, it may be said, something much less significant might justify leave where a party is a few days late. 'Special reasons' must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. As Walsh J emphasised, a discretion to relax the requirements of general rules should not itself become entangled in a web of rules spun out of the Court's discretionary decisions. The tendency in some of the decisions we have discussed to regard a particular factor considered previously, in the light of other circumstances, as requiring the same effect to be given to it in the different situation before a court on a later occasion is a temptation which a court should resist. Decisions are not authorities upon the facts but upon principles, the facts must be regarded as unique to the particular case." 44 There is not a lot of difference between the phrase "special reasons" and "special circumstances". 45 There is nothing unusual about fixing a time limit for appeals. This enables people to know where they stand and regulate their affairs. Nor is there anything unusual in stipulating that "special circumstances" must be established. That phrase is used in numerous statutory provisions in relation to extensions of time. See, for example, the Corporations Act 2001 and the examples in the cases cited, Perpetual Nominees Ltd v DY2 Pty Limited [2005] NSWSC 1072 at [6]. I have earlier referred to Norman, Mehta and Jess v Scott. 46 It appears from Norman that it is the combination of circumstances that may be special rather than the circumstances taken individually. That is important in the present case where there is slight delay and a combination of the solicitors acting promptly to obtain advice and not being able to do so within the time limited for appeal and the solicitor requiring advice before he is prepared to provide legal services - see s 327(8) and s 345 of the Legal Profession Act. A further consideration arises, namely holding that a worker is not entitled to a finding of special circumstances where his solicitor holds a reasonably arguable opinion that he needs further medical advice before he can discharge his obligations under s 345 of the Legal Profession Act. I do not need to consider the case where the solicitor is plainly mistaken that he needs extra medical advice before lodging an application for leave to appeal. That may involve more complex considerations. 47 The appellate Courts have emphasised that in deciding whether an extension of time should be granted and special circumstances exist or some other criterion be met attention should focus on the facts of the particular case. Jess v Scott at 196 warned against reasoning from particular facts in a previous case without paying sufficient regard to the different situation before the decision maker on a later occasion. There is valuable guidance in Jess v Scott at 195 where it is pointed out how the concept of "special reasons" should be approached. I would apply this approach to "special circumstances" in s 327(5). The Full Court pointed out that the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. The Courts have held and urged Tribunals to hold that a solicitor's mistake takes the case out of the ordinary. See Mehta and Jess v Scott. Here there are circumstances which take the case out of the ordinary and the combination is striking. A statutory duty is imposed on the solicitor. It is not a question in applying the test of special circumstances, of saying that because in other earlier cases certain events have occurred the circumstances in the later case are not special. In my opinion the delegate has approached the question of special circumstances incorrectly. 48 I respectfully disagree with Malpass AsJ that the circumstances in Aguiar could not be regarded as "special" in the required sense. There the circumstances were that Mr Aguiar's solicitors sought advice of a doctor, a medicolegal specialist qualified by the plaintiff, on 11 March 2005, that is promptly after receipt of the certificate of an approved medical specialist on 9 March 2005. A response was required from him no later than 28 March 2005. Despite numerous requests a report from him was not obtained until 20 April 2005. The obtaining of the report had been delayed by reason of the doctor being away from work and undergoing surgery on his heel. An appeal was lodged on 20 April 2005. It was accompanied by a statement of grounds of appeal and a copy of the doctor's report. An extension of time was sought. Mr Aguiar's solicitor was aware of the 28 days appeal time limit. The solicitors took the view that without the report they were unable to fully advise their client and so advised the Registrar. They also held the view that the course they had taken was the appropriate one for a prudent solicitor. Malpass AsJ commented that the plaintiff's solicitors had knowingly allowed the appeal period to expire and that this would seem to have happened, inter alia, because there had been a failure to first ensure that any medical opinion required by Mr Aguiar's solicitors was obtained within the 28 day period and the course was taken to await the report rather than bring the appeal within the prescribed period. No attention seems to have been directed to the question whether it would have been practicable to obtain a report from another suitably qualified and experienced doctor in a short time in the requisite field. While the solicitor may have made a mistake which is doubtful, it does not appear to be one that could fairly be attributed to the client. 49 The blamelessness of a plaintiff or applicant for the delay and the mistake of a solicitor (including his dilatoriness) are capable of constituting special circumstances. When the "mistake" of the solicitor in not meeting the time limit for the appeal application is because he takes the view that he cannot provide legal services because of s 327(8) of the Act without additional medical advice which cannot be obtained within the time limit that is also capable of constituting a special circumstance and one justifying an extension of time. This is especially so when the solicitor takes prompt steps to obtain such advice, particularly from the treating doctor, there is reason for the delay (overseas commitments) and the envisaged delay is relatively short. The solicitor cannot be expected when the period of delay is relatively short to embark upon the expense of engaging other medical advice of the requisite quality at short notice with all that involves. The power to grant or refuse an extension of time should not be exercised in an arbitrary fashion nor be encumbered by a series of further rules. Great care must be taken in using other cases. It will rarely be correct to single out one or more common factors in the later case and note that they existed in the earlier case. Solicitors would be wary of committing a breach of s 327(8) of the Act and s 345 of the Legal Profession Act 2004. Under s 347(1) of that Act the provision of legal services by a law practice without reasonable prospects of success is capable of being unsatisfactory professional conduct or professional misconduct. Section 327(8) was introduced by the Workers' Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005, No 113 assented to 7 December 2005 and in operation since 2006. 50 I have not felt able to subscribe to the views expressed by Malpass AsJ in Aguiar. 51 The delegate has stated in paragraph 9 of his determination that he does not accept that the unavailability of Mr Robertson's treating doctor and the unwillingness of his solicitor to certify and lodge an appeal are something beyond the normal course of events so as to be extraordinary or special. That reveals an incorrect approach and possibly a misapplication of the judgment of Malpass AsJ in Aguiar. It is not the case that special circumstances do not exist because in the normal course of events treating doctors are unavailable or sometimes unavailable to attend to a matter as promptly as desired or required or because solicitors may decline to provide legal services by preparing and lodging an appeal application and associated submissions or because solicitors may decline to certify under s 327(8) of the Act (or s 345 of the Legal Profession Act) pending the supply of further evidence. I doubt if it is relevant to consider whether others have suffered from similar difficulties. What has to be looked at are the particular circumstances of Mr Robertson. This may involve looking at the reasons for the doctor's unavailability, the period of delay, the course of dealing between the doctor and the applicant (and probably, his solicitors), the availability of other suitably qualified and experienced medical practitioners in the field at short notice within the 28 day period, any extra expense involved in a shift and the prudence of making a late change. As earlier mentioned, the delegate would need to consider not only the solicitor's refusal to provide legal services to certify but possibly the underlying reasons bearing in mind the terms of ss 345 and 347(1) of the Legal Profession Act. Further, the blamelessness of the worker and his reliance on his solicitor would also require consideration. 52 The delegate appears to have paid too much attention to Aguiar and not enough attention to the particular circumstances of Mr Robertson's case. In so doing the delegate has misdirected himself. The delegate erred in applying one aspect of Aguiar, namely the failure to obtain the needed medical opinion within 28 days, such failure being due to the unavailability of the medical practitioner and the applicant's solicitor's awaiting the report rather than lodging the appeal application within 28 days. The delegate noted that in Aguiar the circumstances were held not to be special.

Additional Relevant Information 53 I have earlier set out the terms of s 327. The Registrar's delegate, in refusing leave to appeal, concluded that the allegedly insufficient manner in which the Approved Medical Specialist conducted the medical assessment could not be admitted as additional relevant information under s 327(3)(b). In doing so, the delegate relied upon the reasoning of Hoeben J in Petrovic, supra. 54 Paragraphs 11 and 12 of the delegate's determination read: "11. The Appellant seeks to rely on a statutory declaration the Appellant made on 22 October 2007 as additional information under s 327(3)(b). In Petrovic v BC Serv No 14 Pty Limited & Ors [2007] NSWSC 1156 Hoeben J made the following comments regarding the scope of section 327(3)(b) 'Additional relevant information' for the purposes of s 327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment.' [at 31] 12. The statutory declaration, in the present case, only raises issues regarding the way the AMS carried out his examination and the way in which questions and answers were exchanged during the examination. Therefore, it is not 'additional relevant information' for the purposes of s 327(3)(b). I am not satisfied that the ground of appeal under s 327(3)(b) has been made out." 55 Immediately before the passage quoted by the delegate Hoeben J had remarked: "… the words 'availability of additional relevant information' qualify the words in parenthesis in s 327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by sub s 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s 326 as to which a MAC is conclusively taken to be correct."

56 Counsel for Mr Robertson submitted that the distinction which Hoeben J drew in paragraphs 31 and 32 of his judgment between "information of a medical kind which is directly related to the decision required to be made by the AMS" and the manner and conduct of the medical examination by the AMS was not one that was available from the language of the statute. 57 Counsel for the insurer submitted that the decision and reasoning of Hoeben J in Petrovic was correct. 58 Mr Robertson submitted that what happened at the medical assessment was additional relevant information and was evidence that was not available to him before the medical assessment and that the words should not be read down. Mr Robertson did not cavil with the contention that "the additional relevant information" had to be of a medical kind. It was submitted that there was no basis for concluding that those wide and unconstrained words did not include matters going to the process whereby the AMS makes his or her assessment. 59 The insurer contended that the terms of Part 7 of the Act warranted the construction adopted by Hoeben J. Under Part 7 medical disputes as to the degree of permanent impairment of the worker as a result of an injury are to be determined by an approved medical specialist. Under s 320(6) a matter or thing done or omitted to be done by an AMS in the exercise of function under the Act does not, if the matter or thing was done or omitted in good faith, subject the AMS personally to any action, liability, claim or demand. Such a provision is to be expected. 60 Section 322(1) provides that the assessment of the degree of permanent impairment is to be made in accordance with WorkCover Guidelines. Section 324 confers wide powers on the AMS. 61 Section 325 requires the AMS to give a certificate as to the matters referred for assessment and to certify as to his assessment with respect to those matters and set out his reasons and the facts on which the assessment is based. 62 Section 326(1) provides that the AMS' assessment is conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of an injury. 63 In his statement of 22 October 2007 lodged with his appeal application Mr Robertson estimates that the time he spent with Dr Yiu-Key Ho at his rooms in Wollongong on 27 August 2007 was "literally about five minutes" and that when he walked into his rooms Dr Ho quickly explained to him that he could not ask him (Ho) questions. Mr Robertson gives this account of what happened next: "5. He pointed towards a whole lot of files in his room and said to me words to the effect 'I've got all these files to read.' And then looked at a skinny file on his desk no more than 10mm thick and said: 'Your file is only this thick.' 6. He then said to me words to the effect: 'This is a straightforward matter. I don't know why you're here.' 7. He then looked at my left hand and said as best I can recall: 'You've lost 2 centimetres off your index finger, 1.5 centimetres off your middle finger.' 8. He then asked how my partially amputated fingers felt. I said words to the effect: 'Have you ever hit yourself with a hammer on the finger and had it feel all thick after the initial pain? Well that's how my index finger feels all the time. And the middle finger feels like the screw is right up at the end. Every time I slightly knock it I get blood blisters on the end.' 9. He then asked for my x-ray looked at it, gave it back to me, told me that was the end of the examination and said his report would be sent to my solicitor. 10. I then left his room." 64 The complaint is that there was no adequate clinical examination and no adequate consideration of the issue of sensory loss. Perhaps the colourful and somewhat colloquial reply was not fully understood. The reply of Mr Robertson was not expressed in medical terms. 65 In his statement of 2 March 2007 lodged with his application to resolve the dispute Mr Robertson stated that he had considerable pain in his left hand following the injury and had undergone physiotherapy. He stated: I continue to suffer from the following ongoing disabilities · Pain and restriction of movement of my left hand, fingers (which is aggravated if my hand is bumped, blood blisters develop in middle finger if it is bumped with force) · Inability to grip with my left hand/fingers … I constantly experience pain in the affected fingers. If I knock the fingers the pain is severe and blood blisters form …" 66 Mr Robertson detailed that his sleep was disturbed because of pain in his fingers and the difficulties he has in attending to many daily tasks, in playing social golf and in doing tasks at work. He states that the ends of his injured fingers have lost sensitivity so that he can no longer judge the thickness of the material he is working with or feel if the material is in the correct position. 67 Counsel referred to this material as providing some evidence that Mr Robertson has suffered sensory loss and that there is a basis for the matter to be considered by an Appeal Panel. 68 In Petrovic at [31] Hoeben J said that matters going to the process whereby the AMS makes his or her assessment may be picked up, depending on the circumstances by s 327(3)(c) and (d). The later decision of the Court of Appeal in Pitsonis v Registrar of The Workers Compensation Commission & Anor, 2008 NSWCA 88 suggests that this is probably not so. "Incorrect criteria" probably covers the case where the Guides had been incorrectly applied. See [40] - [41]. At [41] Mason P noted that Basten JA in Vegan had observed that the "incorrect criteria" ground "must refer to such matters as the tests set out in the Guidelines where they are applicable" 69 In Pitsonis at [49] Mason P, with whom McColl and Bell JJA agreed said that s 327(3)(d) requires the would-be appellant to demonstrate to the Registrar that "there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s 327(3)(a) or (b) being adduced in the appeal." 70 At [50] Mason P added: "…One must avoid a mindset that regards every decision affecting rights as appealable, let alone appealable on unconstrained grounds." 71 At [59] Mason P reiterated that alleged errors had to be demonstrable on the face of the Certificate. At [60] Mason P added: "I do not exclude the possibility that a Certificate might be capable of challenge by way of judicial review on the ground that there was, for example, a denial of procedural fairness. Sometimes, but only sometimes, the failure of a decision-maker to hear or address relevant factual material or arguments will ground a successful challenge upon this ground." 72 I have referred to these matters at some length because it was contended that if s 327(3)(c) or (d) were not available then an additional reason for interpreting the phrase "availability of additional relevant information" in s 327(3)(b) as extending to the conduct of the assessment was that it provided a way of ensuring that the medical assessment (including an examination) was conducted satisfactorily or, perhaps more accurately, could be reviewed if there were serious complaints about the process. Otherwise no adequate mechanism existed for ensuring that the process of assessment met the requirements of Part 7. The primary argument was that there was no warrant for reading down the wide and unrestricted words in s 327(3)(b). 73 The interpretation adopted by Hoeben J in Petrovic is one that is reasonably available. As a matter of judicial comity I would not be justified in not following it. I accept that the contrary interpretation based on not qualifying the words "additional relevant information" has considerable strength. It follows from the foregoing that I am of the opinion that no relevant error has been established in relation to the second ground, that is, that based on s 327(3)(b) because I have felt that I should follow Petrovic for reasons of judicial comity. I will not consider that ground further.

Prerogative Relief 74 The granting of any form of prerogative relief is discretionary. It should be apparent that it will serve a useful purpose. However, the Court must not assume the role of the decision maker. 75 Dr Ho had before him the reports of Drs Manohar, McKessar and Isaac, the last named being the treating doctor. Dr McKessar considered the question of sensory loss and concluded that the scarring as to both fingers was non-tender and that there was no neuroma sensitivity. The report of 10 February 2006 of Dr I J Isaacs, the treating surgeon is that Mr Robertson had had no particular discomfort in the fingertips and that his only complaint was morning stiffness of his left index and middle fingers which settles during the day. Dr Isaacs wrote, "His sensory disturbance is only to the very distal segment of the middle finger ...". 76 In his Medical Assessment Certificate Dr Ho wrote "Present symptoms: He noticed some discomfort at the tip of the finger especially over the middle finger and sometimes he has blood blister. The patient is suspicious that it may due to the screw inside the bone which was used for the fusion. The fingers have a bit of pins and needles, actually on both fingertips. Other than that he is functioning quite well." 77 Dr Ho wrote that on physical examination, "There are no sensitivities". 78 Dr Ho wrote that he had based his assessment of whole person impairment on detailed history taking, very careful physical examination, and reviewing all the radiological investigations and medical reports. 79 Dr Ho also wrote: "Based on Table 16-1: the 45% impairment of the index finger will be equivalent to 9% impairment of the hand. The 49% impairment of the middle finger is equivalent to 10% impairment of the hand. Adding the 2 together that will give rise to 19% impairment of the hand which based on table 16-2, 16-3 will convert to 17% impairment of upper extremity and 10% whole person Impairment."

80 Dr Ho wrote that his opinion and findings were more or less the same as Dr McKessar. 81 Mr Robertson attacked this portion of the Certificate, particularly the first quoted paragraph: "I do not agree with the assessment of Dr Manohar. I do not know his criteria and which particular table he has based his assessment. I do not agree that the sensory loss in this particular case that he used for assessing extra disability of the middle finger is acceptable, because the patient did not complain of sensory loss due to a case of digital nerve injury in the proximal level. He only complained of difference in sensation as a result of the amputation of the fingertip and different sensation in the residual stump. I cannot work out how a distal interphalangeal joint that was fused in the middle finger will give rise to a 14% hand impairment because based on our calculation, that should only be 7% of the hand impairment. This may explain the discrepancy of our calculation and the final assessment level."

Little was said by counsel about the second quoted paragraph. 82 The applicant submitted that in saying that he (Ho) did not know Dr Manohar's criteria and on which particular table Dr Manohar has based his assessment, Dr Ho had not sufficiently taken into account that on P.3 of his report Dr Manohar had written:

Partial, Table 16-7 Ulnar Digital Hand Impairment = 3% "Sensory Loss 30% of Digit Length of the Middle Finger Radial Digital Hand Impairment = 5% Total Sensory Impairment = 8%"

83 In the course of considering that Dr Ho wrote that he did not know Dr Manohar's criteria and on which particular table he based his assessment and Dr Manohar's purported reliance on Table 16.7 it became apparent that there were divergent views and that Table 16.7 was not before the Court. I considered it insufficient to proceed on the simple basis that there were such divergent views. Accordingly, a letter was sent to the solicitors for the parties pointing out that I was provisionally of the view that before it could be said that there was an arguable case that the criteria adopted by Dr Ho is incorrect and that a broad view of sensory loss should be taken this should be demonstrated by reference to Table 16 or such other Guidelines or material as are relied upon by Mr Robertson. I raised whether Mr Robertson wished to consider his position and seek to tender relevant materials. The parties were advised that I doubted whether it was sufficient to say that Drs Ho and Manohar appeared to have different views. 84 This elicited a detailed response from Mr Robertson's legal advisers. The plaintiff sought leave to reopen his case to put in evidence the affidavit of Mr I Simic of 17 July 2008. That purported to annex a copy of pp 433-466 and pp 511-512 of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Fifth Edition. 85 Mr Robertson submitted the following detailed argument:

(a) The WorkCover Guidelines issued under s 376 of the Workplace Injury Management and Workers Compensation Act 1998 provide that the degree of permanent impairment that results from the injury must be determined using the tables, graphs and methodology given in the WorkCover Guides and AMA5.

(b) In effect, the end of each of his fingers was cut off, a little bit further down on the index finger than the middle finger.

(c) Cutting off the end of the fingers means also severing the nerves that run down each finger at the point of amputation.

(d) The two nerves that run down each finger are the ulnar digital nerve and the radial digital nerve (see Table 16-7 of the AMA Guides at page 448).

(e) Dr Ho records Mr Robertson's digital sensory symptoms as

"he notices some discomfort at the tip of the finger, especially over the middle finger and sometimes he has blood blister … . The fingers have a bit of pins and needles, actually on both finer [finger] tips. Other than that he is functioning quite well."

(f) The pins and needles in each finger and the discomfort at the tip of the middle finger must arise due to nerve impairments of the ulnar and distal nerves.

(g) Dr Isaacs in his report of 10 February 2006 writes

"[Mr Robertson's] sensory disturbance is only to the very distal segment of the middle finger."

(h) Dr Manohar in his clinical assessment of the plaintiff wrote

"He needs assistance at work whilst cutting laminate as he cannot feel how much is overlapping. There is some pain in the middle finger if he bumps it slightly. He has blood blisters when he hits his fingers with some force. He tells me the fingers feel cold and hard constantly."

(i) With the injuries mentioned and the clinical history Dr Manohar assessed impairment for sensory loss as partial for both the ulnar digital and ulnar radial nerves as 30% of the middle finger.

(j) Dr McKessar noted in the history section of his report that Mr Robertson's principal "concern is whether he will obtain normal sensation in the very tip of his middle finger amputation stump, in which at this stage he has limited sensation, but he really has normal sensitivity still in the residual stump" and expressed the opinion, "The very minor sensory disturbance of the tip of the digit does not rate in that he has normal sensation in the residual one half of the terminal pulp". 86 It is against this background that I turn to the AMA5 Guides.

16.1 This summarises the principles of impairment evaluation.

Evaluation of sensory function in the hand considers all modalities of sensibility, including perception of pain, warmth, cold and touch pressure, as well as vibration.

16.3b Digital Nerve Sensory Impairment Evaluation (p446) states:

Only unequivocal and permanent sensory deficits are given permanent impairment ratings. Sensory impairment is rated according to the sensory quality and the distribution of the sensory loss.

Digit Impairment for Transverse and Longitudinal Sensory Losses in Index, Middle and Ring Fingers Based on the Percentage of Digit Length Involved.

A detailed Table follows along with explanatory notes. 87 Counsel for Mr Robertson submitted that:

(a) Table 16-7 provides digital impairment values for each digital nerve for the index, middle and ring fingers (p 449 of the AMA Guides) resulting in sensory loss.

(b) The AMA Guides make it quite clear when assessing sensory loss due to digital nerve lesions that all types of sensory impairment must be considered. See the passage earlier quoted under cl 16.3a. That includes the perception of pins and needles and the "post hammer" sensation and "cold" sensations described at various times by the plaintiff. Only Dr Manohar considers these sensory losses in the whole person impairment assessment. Dr Ho's failure to do so and to apply the AMA Guides amounts to a demonstrable error, and/or a failure to apply correct criteria.

(c) Table 16.7 at p 448 of the Guides provides for different assessments depending on whether the sensory loss is partial or total. There is no warrant in the guides for giving a nil impairment where the partial loss is modest. Accordingly, Dr McKessar's approach was in error. Equally the approach of Dr Ho, to simply ignore Table 16-7 and the sensory loss of Mr Robertson (despite being directed to such loss by the report of Dr Manohar) is in error. Any reasonable perusal of Table 16-7 in its context in the AMA Guides supports Mr Robertson's allegations of error by Dr Ho. 88 The Second Defendant made the following submissions:

(a) There is no suggestion that the plaintiff has lost feeling in the injured hand - to the contrary there is a degree of hypersensitivity.

(b) It drew attention to cl 16.3b of the Guides (quoted earlier).

(c) Dr Ho thought that there was no basis for a finding of impairment under the AMA Guides, especially having regard to 16.3b of the Schedule. Dr Manohar did proffer an impairment assessment. His report does not demonstrate why he found the partial degree of impairment of sensory loss specified of 30%. He makes no mention of any digital nerve. (Perhaps that is to be implied.) He gives no indication that in making a finding of permanent impairment for sensory deficits he first identified any nerve damage such as would validate such a finding.

(d) Dr Ho was well aware of the existence and portent of Chapter 16.3 and of Table 16.7 contained therein but did not, on the basis of his examination of Mr Robertson and the materials at his (Ho's) disposal consider it relevant to the assessment of permanent impairment in respect of the plaintiff's injuries in this case. Whilst it may have been helpful if Dr Ho had stated that he did not think that Ch 16.3 had any relevance in this case, he did state that there was no complaint of sensory loss due to a case of digital nerve injury in the proximal level but only complained of difference in sensation.

(e) Dr Ho disagreed with Dr Manohar and regarded Dr Manohar's assessment as flawed.

(f) Dr Manohar having erred in his assessment of "sensation", there is no basis for a finding in Mr Robertson's favour because he does not have an arguable case. Accordingly, the Court would not exercise its discretion to grant the relief sought by Mr Robertson. 89 The Second Defendant submitted that while it was appropriate that the Court be afforded the benefit of the relevant "AMA Guides" it was not reasonable that the plaintiff be given leave to reopen his case. 90 The Second Defendant submitted that such reopening would visit injustice on it in that "the further argument advanced on behalf of Mr Robertson raised matters of medical rather than legal 'fact' in respect of which it was significantly disadvantaged in that it has had insufficient time to obtain further medical opinion required to properly meet the plaintiff's assertions". For example, at paragraph 11 of Mr Robertson's submissions it is stated that various symptoms complained of by the plaintiff must "clearly … arise due to nerve impairments". Mr Robertson thereby seeks to make unqualified assertions as to medical matters. Even if the second defendant were bound to meet such arguments, it suffers significant prejudice in being unable, especially given time constraints, to call qualified medical evidence on the point. [Mr Robertson has outlined the case he seeks to make on the existing materials including the AMA Guides. He is not entitled to make unqualified assertions as to medical matters. Others decide medical matters. The Court's role in these proceedings is limited.] 91 The Second Defendant further submitted that the Guides provide methodology for measurement of "Digital Nerve Sensory Impairment" (see commentary at 16.3d on p 449) which Mr Robertson's medical experts and not his legal representatives were required to address. Mr Robertson should not be given leave to advance unqualified medical argument. [I interpolate that he will not be and has not been given such leave.] 92 The Second Defendant contended that apart from excerpt from "the Guides", there was nothing in Mr Robertson's submissions which could not have been advanced at the hearing. He should not be allowed "to have a further go a what rightly should have been (and by and large was) argued at the hearing". I have sought clarification of what was argued. 93 I am not satisfied that there is an arguable case of demonstrable error on the face of the Medical Assessment Certificate. See Pitsonis, supra. 94 I have earlier held that the delegate of the Registrar made an error of law in his approach to the construction of the phrase "special circumstances" in s 327(5) of the Workplace Injury Management and Compensation Act 1998. The correct course is to make a declaration to this effect and to remit the matter to be considered afresh by the Registrar according to law. The primary decision is his, not mine. 95 I was not familiar with the terms of the WorkCover Guidelines, and the AMA5 Guides and the Tables contained in the Guides prior to hearing this case. It was apparent that the legal representatives of the parties were and, I would expect, the Registrar of the Workers Compensation Commission and his delegates would also be familiar with them. 96 Without the AMA Guides it was not easy to understand fully the submissions of the parties. I have admitted portion of the AMA Guides being Annexure A to the affidavit of Ivan Simic of 17 July 2008 into evidence. 97 Having seen them and received the arguments of both parties there is arguably some material for the Registrar to consider on the issue whether there is an arguable or prima facie case on the ground specified in s 327(3)(c). That is a matter for the Registrar to decide and not for me if he decides that special circumstances justify an increase in the period for an appeal. It will be a matter for the parties and the Registrar what further submissions, if any, are made to him. 98 I have noted that the Registrar does not previously appear to have turned his mind to whether there is an arguable or prima facie case on the ground specified in s 327(3)(c). 99 As to costs, I think that the plaintiff should have his costs of the proceedings before this Court other than those related to the placing of the AMA Guides before the Court and the further written submissions lodged with the Court. That could have been attended to on the second day of the hearing. 100 I make the following declaration and orders:

1. Declare that the delegate of the Registrar erred in law in his construction of "special circumstances" in s 327(5) of the Workplace Injury Management and Compensation Act 1998.

2. Quash the decision of 18 December 2007 of the delegate of the Registrar of the Workers Compensation Commission refusing to allow an increase in the appeal period and holding that the appeal on the ground in s 327(3)(c) is not to proceed.

3. Remit the matter to the Registrar to be determined according to law and in accordance with these reasons.

4. Order the defendant, Beny's Joinery Pty Ltd, to pay the plaintiff's costs of these proceedings other than those of placing the AMA Guides before the Court and the further written submissions. **********

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