Ryder v Sundance Bakehouse

Supreme Court of NSW|2014-11-07|Before: Campbell J

Background Facts

Before turning to the issues for determination, I think it is first necessary to set out the background of this matter, the relevant findings of the Panel, and of the AMS, so far as his decision is relevant to the decision of the Panel: Vitaz at [54].
Ms Ryder sustained an injury to her back during the course of her employment as a shop assistant at Sundance on 18th November 2005. She was injured lifting a box marked "lettuces" which instead contained pumpkins. She said that she felt immediate pain in her lower back which radiated down her right leg to her ankle. She was conveyed by ambulance to Cooma Hospital where she received analgesia and underwent x-rays and a CT scan of her lumbar spine. The CT scan was not before the AMS or the Panel.
She was sent for an MRI scan on 25th February 2006 which showed a L5/S1 disc lesion contacting both descending S1 nerve roots. Her general practitioner referred her for physiotherapy treatment and advised her to take pain relieving medication. She later underwent a L5/S1 peri-radicular block which was unhelpful.
On 12th September 2007 Ms Ryder was paid lump sum compensation in the amount of $8,750 under s 66 Workers Compensation Act 1987 (NSW) (WCA) for 7 per cent whole person impairment in respect of the condition of her lumbar spine. No deduction was made for any contribution by any pre-existing abnormality.
Her condition however deteriorated over time and in 2009 she underwent a L5/S1 discectomy surgery by way of micro-discectomy. This was performed by Dr Curtis, an orthopaedic surgeon. Following surgery she attended physiotherapy and remained pain free for almost 10 months until late January 2010 when she experienced a recurrence of her back pain and shooting pain down, this time, her left leg. She underwent a further MRI scan on 4th February 2010 which revealed a small central and left para-central disc protrusion and peri-neural fibrosis, worse on the right. The scan showed: At L5/S1, there is evidence of established degenerative disc disease with disc desiccation and abnormal morphological change. There is mixed modic type I/II reactive vertebral end plate change at this level. At this level there is a history of prior microdiscectomy. There is a small diffuse bulge of the degenerative disc at this level with a small posterior annular tear which is contained and there is a small broad based central/left paracentral disc protrusion which can be seen impinging on the left S1 nerve root. ….. All other discs are well hydrated and there is no further evidence of protrusion, stenosis or neural compromise. …. Summary At the post-surgical L5/1 level there is advanced degenerative disc disease and a small broad based central/left para-central disc protrusion associated with annular tear. … No other abnormality is seen at the L1/2 through L4/5 levels.

Assessment of degree of permanent impairment of Ms Ryder

In his MAC for Ms Ryder, the AMS, like the parties' referees, assessed her overall impairment as 15 per cent. This was a combination of 10 per cent whole person impairment rating baseline, 2 per cent due to the impact of her injures upon her capacity for activities of daily living and 3 per cent for residual radiculopathy following surgery. Unlike the parties' referees, he deducted 1/10th from this figure in accordance with s 323(2) WIM Act for what he must have regarded as the proportion of the impairment due to a pre-existing condition, namely disc degeneration in the lumbar spine (he did not express himself this way). This meant that the degree of whole person impairment resulting from her injury was 14 per cent (having been rounded up from 13.5 per cent).
In the reasons accompanying his certificate, Dr Home stated that the facts on which Ms Ryder's assessment were based included "the history provided by [her], the clinical findings and my review of the medical documentation and investigations" (Dr Home, reasons, p 6).
Dr Home gave the following reasons for his apportionment: I have determined a 1/10th deduction in accordance with Section 323 to reflect the impact of underlying degenerative changes upon her condition. Review of diagnostic imaging reveals evidence of significant disc desiccation at L5/S1 that would precede the accident. This degeneration has contributed to the development of the disc protrusion and relevant surgical requirements.
For the reasons explained in Vitaz the AMS' decision has limited relevance to my decision. However, in contradistinction to the Victorian system, the subject of the High Court's decision in Wingfoot Australia, the New South Wales statutory arrangements establish a form of dispute resolution. Because it is a form of dispute resolution by neutral expert evaluation, like the Victorian system in that respect, if I may adapt the language of the High Court at 61 - 2 [47], the functions may be described in the same way: The function of [an AMS] is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. However, in my view, as dispute resolution is involved, the obligation of procedural fairness is heightened. As Basten JA said in Vegan in relation to the obligations of an Appeal Panel at 397 [121]: … 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.
The AMS's finding in relation to pre-existing degenerative changes should be regarded as a finding of primary fact. However, this decision was at odds with the views of the parties' referees with whose reports he was provided, and not contended for by either party's legal representative. I acknowledge that the WorkCover Guides for the Evaluation of Permanent Impairment (WorkCover Guides), made under s 376 WIM Act, permit the identification of "any previously unidentified condition in their report": p 4, 1.6. This also must be subject to procedural fairness. In all these circumstances, in my view, procedural fairness required the AMS to give the parties an opportunity to be heard before the finding was made. Given that the finding of desiccation seems based on the MRI scan of 4th February 2010, some years after the injury, there may have been other explanations for the radiological appearances which the parties, Ms Ryder in particular, should have been given a chance to address. For the reasons given in Vitaz at [17], that Ms Ryder was permitted to appeal supersedes the decision of the AMS and perhaps "cures" the defect.
The AMS did point out that his reason for differing from Dr Cordato was because "there should be deduction for underlying degenerative change".

The Appeal Panel Decision

Ms Ryder was dissatisfied with the AMS's assessment and lodged an application to the Registrar under s 327 WIM Act to appeal against the decision on the grounds that the assessment was made on the basis of incorrect criteria and the MAC contained a demonstrable error (s 327(3)(c) and (d)). The Registrar was satisfied that at least one of the grounds was made out and in accordance with s 327(4) referred the appeal to the Panel for review of the medical assessment.
In accordance with applicable statutory guidelines, the Panel conducted a preliminary review of the matter and decided it was unnecessary to re-examine Ms Ryder or to convene an appeal assessment hearing. The decision of the appeal panel therefore proceeded as a review on the papers that had been before the AMS, the reasons of the AMS and the additional written submissions on appeal made by Ms Ryder and Sundance through their legal representatives. The main particulars of the grounds of appeal pressed upon the appeal panel were contained in the submissions of Ms Ryder's solicitor, dated 16th January 2014. Essentially, Ms Ryder relied on the decision of Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78, submitting that there was no evidence before the AMS justifying a deduction under s 323 1998 Act, and impugning the adequacy of the AMS's reasons.
The decision of the Panel, given on 20th June 2014 was that the MAC given by Dr Home should be confirmed. They referred to the findings of the AMS and the arguments advanced on behalf of Ms Ryder on appeal.
The Panel accepted that there was no evidence of Ms Ryder suffering back symptoms prior to her injury. They said that while such a factor must be taken into account, "it cannot be assumed" from that "that the condition does not contribute to a worker's disorder consequent upon injury". At [18]-[19] they said: Noting the MRI scan done of the appellant's lumbar spine done approximately three months after the appellant's injury revealed a disc protrusion, it is the Panel's view that in all likelihood the appellant had an abnormal disc predating her injury. The AMS said as much in the MAC. As the Panel has just indicated, it is the case that this abnormal disc had not manifested in any symptoms before the appellant's injury. However, the appellant's injury has caused this abnormal disc to protrude and hence the pre-existing abnormal disc was an integral party of the appellant's disorder that necessitated her surgery. The AMS has explained this in the MAC. In these circumstances, the appellant's pre-existing abnormal disc necessarily contributes to her present impairment, notwithstanding it was asymptomatic before her injury. To say that in a different way: her pre-existing pathology is an integral part of her present impairment, and therefore contributes now to her new impairment. In the Panel's view, the AMS has not based his conclusion that part of the appellant's permanent impairment is due to a pre-existing condition on any assumption. He has explained what the pre-existing condition is and identified the evidence upon which he based this finding. He has explained how it is, rather than assumed, that this condition has contributed to the appellant's disorder.
They were satisfied that the AMS correctly applied the criteria under s 323(1) and (2) and therefore considered there was no error "readily apparent".
It is noticeable from [18] of the Panel's decision that the Panel did not say that the MRI scan "done approximately 3 months after the appellant's injury" demonstrated, at that time, the existence of degenerative changes. Rather the Panel formed the "view that in all likelihood the appellant had an abnormal disc predating her injury". The AMS did not say that he regarded the MRI scan of 25th February 2006 as demonstrating pre-existing degenerative changes. He relied upon the February 2010 "repeat MRI scans" (see Panel decision [12]). In a report of 20th June 2007, which was before the Panel, Dr Peter Conrad described the 25th February 2006 scans as showing, inter alia, "L5/S1 moderately severe facet joint arthropathy and Grade 1 retrolisthesis L5/S1 with broadbased posterior disc protrusion". But neither the AMS nor the Panel referred to these matters. It is not clear whether Dr Conrad inspected the scans for himself or was relying upon the report of the radiologist. It is clear that no other report since, refers to any condition of the facet joints or a retrolisthesis. A report of 2nd October 2008, also before the Panel, refers to disc desiccation at L5/S1. Again this is three years after the event in circumstances where it seems clear that Ms Ryder suffered a discal injury lifting the box. I repeat, the Panel did not identify any specific pre-existing condition or abnormality said to be shown by the February 2006 scan, nor did it place any express reliance upon either the October 2008, or the February 2010 scan. Its reasoning seems to have been that because there was radiological evidence of "a disc protrusion 3 months after the injury" in "all likelihood" there was a previously abnormal disc. The nature of the abnormality is not further explained. Although expressing agreement with the AMS's approach, the Panel seems to have taken a different tack. The Panel's statement that "there is no error readily apparent" on review of the MAC seems to be an expression of agreement with the AMS's conclusion. But the Panel do not seem to have reached the same result by the same path.

The issues in the current proceedings

Ms Ryder advances her case on essentially three grounds, summarised as follows: 1. The Panel fell into legal error in their construction and application of s 323 WIM Act; 2. The Panel fell into legal error by asking themselves a wrong question in respect of whether there was a pre-existing condition and whether it contributed to the degree of permanent impairment resulting from the injury to the L5/S1 disc on 18th November 2005; 3. That there was no evidence, or material, available to the Panel to support a finding that a portion of the degree of permanent impairment was due to a pre-existing abnormality.

The first issue

Section 323 WIM Act 1998 is in the following terms: Deduction for previous injury or pre-existing condition or abnormality (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%). (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter. (4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section. (5) (Repealed) Note. Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.
It is clear that s 323 covers a number of different circumstances. The relevant circumstance with which this case is concerned may be expressed, omitting presently irrelevant words, as follows: In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment … that is due to any pre-existing condition or abnormality.
In a very careful written argument, Mr Romniuk contended that there can be no deduction, I will say, for the effects of a pre-existing condition or abnormality unless the condition or abnormality, of itself, gives rise to a rateable impairment under the WorkCover Guides. Learned Senior Counsel points out that the required approach to the assessment of permanent impairment of the back is highly prescriptive based upon what is referred to as "diagnosis-related estimates" (DRE). The argument is based on the consideration that "the different categories have prescribed degrees of permanent impairment ratings and contemplate nil per cent through to 28 per cent". (Plaintiff's submissions p 7 [35]). It is common ground that asymptomatic, pre-existing degenerative disc disease "could only result in a nil per cent assessment when DREI, table 15 - 3 of AMA 5 is assigned" (Submissions at [35]; 40.40 - 41.10T).
Dr Blount argues that Ms Ryder's argument runs contrary to the settled meaning of s 323 and its statutory predecessors.
The legislative history of s 323 statutory predecessors, s 68A WCA in various forms, and its interpretation, is summarised by Giles JA (Mason P and Powell JA agreeing) in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [30] - [32] in the following terms: [30] The background to the original s68A, in the decisions referred to in the passage next set out, was explained in D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unreported). In that case the appellant had pre-existing degenerative changes to her back, although they were asymptomatic. It was argued that a pre-existing condition which was asymptomatic and had not resulted in any prior impairment in the sense of physical disability or incapacity was insufficient to attract s68A. Cole JA, with whom Handley JA and Cohen AJA agreed, said - "The terms of s68A(1) are in my judgment tolerably clear. The employer who is liable in respect of an injury causing permanent impairment of the back, neck or pelvis is not liable in respect of 'any proportion of the loss that is due to' the factors referred to in (a) and (b). The circumstances referred to in (a) are those in respect of which compensation has been paid or is payable under Division 4. The approach of the courts in Rodios v Trefel [(1937) 11 WCR NSW 285], King v Hayward [(1943) 67 CLR 488] and TAFE v Pitt [(1993) 9 NSWLR CCR 309] is negated. However the legislature went further by enacting (b). Prior non-compensable injuries, pre-existing conditions or abnormalities result in a deductable [sic] proportion being determined for which the employer liable in respect of the injury causing the permanent impairment of the back, neck or pelvis is not to be responsible. The words 'any pre-existing condition' in my view include a degenerated back caused by the advent of age. Insofar as the permanent impairment of the back as found is due to that pre-existing condition, an appropriate deduction for the effects of the pre-existing condition is to be made. In the circumstances mentioned in subs(8), it is 10%." [31] In Government Cleaning Service v Ellul (1996) 13 NSW CCR 344 at 349 it had been said that s68A(1) was not concerned with any pre-existing condition or abnormality which was not causing any permanent impairment. Cole JA went on in D'Aleo v Ambulance Service of New South Wales to explain that, read in context, this meant that unless the pre-existing condition was a contributing factor causing permanent impairment, s68A(1)(b) had no application; so read, it was consistent with the view his Honour had earlier stated. In the result, therefore, it did not matter that the pre-existing condition had been asymptomatic, provided that the permanent impairment of the back as found was to some extent due to the pre-existing condition. [32] The same, in my view, must be said as to the current s68A(1). It does not matter that the pre-existing condition was asymptomatic, and if the loss is to some extent due to the pre-existing condition there must be deduction of the deductible proportion for that loss. But it is necessary that the pre-existing condition was a contributing factor causing the loss. And, of course, it is necessary that there was a pre-existing condition. (Emphasis added).
The continued application of this interpretation to s 323 was confirmed by Basten JA in Vitaz at [43] in the following terms: That opinion contained a legal assumption which is inconsistent with the approach adopted by this court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 ; 21 NSWCCR 34 at [30]-[32] and, more recently, by Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]). The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.
In Smart (at [33]) Giles JA emphasised that the questions of whether there is a pre-existing condition, and whether it is a contributing factor to the post-injury permanent impairment, are questions of fact. In Cole Schmidt J emphasised that it is inappropriate to assume that if a pre-existing condition, or injury, is made out on the evidence then it must contribute to the impairment ([28] - [30]).
Notwithstanding the highly prescriptive scheme for the assessment of impairment, especially of the back, I accept Dr Blount's argument that the approach contended for by Ms Ryder is contrary to the established interpretation of s 323. Where the issue is whether any proportion of the permanent impairment resulting from the work injury is due to a pre-existing condition, it is not necessary that the condition, pre-injury, of itself, would have given rise to a rateable percentage impairment by application of the diagnosis-related evaluation of impairment prescribed by the WorkCover Guides.
In the present context the critical question is the causation question which, expressed by adapting the terms of the statute is whether a portion of the 15 per cent whole person impairment Ms Ryder suffered as a result of her work injury was due to a pre-existing condition or abnormality i.e. degenerative disc disease. The argument advanced on behalf of Ms Ryder is effectively that the proportion must be capable of assessment in accordance with the WorkCover Guides for s 323(1) to be satisfied. With respect this overlooks the requirement that the section must be read as a whole and in its legislative context. Although s 323(2) does not use the word "proportion" it addresses the idea that in some, perhaps many, if not most, cases it may be "difficult or costly to determine" the relevant proportion. In that event, a rule of thumb ("assumption") of 10 per cent is to be adopted.
I acknowledge that the express words of s 323(1) require that some definite part, even if it is difficult or costly to assess in precise terms, of the impairment has been caused by, in this case, a pre-existing condition. But the interpretation adopted by the Court of Appeal is that the section is engaged if the pre-existing condition, or previous injury where applicable, is a concurrent necessary condition, with the work injury, of the degree of permanent impairment.

The second issue

The argument is related to the first issue and may be characterised as a misdirection point. The question that the Panel were required to ask, and answer, was whether any proportion of the 15 per cent impairment assessed as resulting from the work injury was due to the pre-existing abnormality in Ms Ryder's L5/S1 disc "that in all likelihood" the Panel considered pre-dated the injury. With respect, the Panel's statement of reasons does not explain the actual path by which the Panel reasoned to the conclusion that "in all likelihood" there was a pre-existing abnormality in Ms Ryder's L5/S1 disc. The Panel seemed to have accepted the views of the AMS that the desiccation shown on the 2010 MRI scan (the AMS did not refer to the 2008 scan) "pre-dated" the accident. The reasoning (Panel reasons [18]; see [30] above) then continues that the trauma of lifting the heavy box "caused this abnormal disc to protrude and hence the pre-existing abnormal disc was an integral part of the appellant's disorder that necessitated her surgery". The Panel goes on to explain that because of this "the appellant's pre-existing abnormal disc necessarily contributes to her present impairment" (my emphasis). With respect, there is a certain circularity in the conclusion that "her pre-existing pathology is an integral part of her present impairment, and therefore contributes now to her impairment".
What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.
It is jurisdictional error if an administrative tribunal, like the Panel, "falls into an error of law" which causes it to identify a wrong issue or to ask itself a wrong question: Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179; Minister for Immigration v Yusuf [2001] HCA 30; 206 CLR 323 at 351 [82]. In Yusuf, McHugh, Gummow and Hayne JJ emphasise that errors of that type are errors of law and if such an error affects the decision "the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it". Jurisdictional error "may be established by any admissible evidence": Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [15]. It is permissible, therefore, to go behind the record, including the reasons, for this purpose. I think it an important consideration that neither Dr Cordato nor Dr Watson, both of whom were aware of what was shown on the scans, was of the view that any proportion of the 15 per cent is due to pre-existing degeneration.
Looking at the Panel's reasons themselves, the question I have formulated was not expressly posed. I am not satisfied that it is implicit in the reasons given. The whole reasoning process seems to be that there was desiccation shown in an MRI scan, in all likelihood it predated the injury; that was the disc that prolapsed when the injury happened; and therefore it is part and parcel of everything that follows, including the impairment. There was no consideration of whether the physiological change by prolapse of the disc, which occurred on lifting the heavy box of pumpkins, might have occurred anyway in a healthy disc; nor is there any consideration of whether the resulting prolapse was worse because of the pre-existing abnormality; nor is there any express consideration of the means by which the pre-existing abnormality in the disc as found by the Panel contributed causally to the level of impairment, as opposed to the occurrence of the injury. There is a failure to even refer to the different opinion of the parties' medical referees.
I am conscious that the Panel is by majority a panel of experts constituted to review the assessment of another expert and in doing so the medical practitioners who are members of the Panel are entitled, indeed expected, to draw upon their relevant expertise. However, it seems to me that the considerations to which I have referred demonstrate that the Panel have failed to ask, expressly or by implication, the question the statute poses. They have thereby fallen into jurisdictional error. I am satisfied that this ground of review is made out.

The third Issue

Turning to the final point, I think that it is fair to say that the no evidence ground was not the subject of detailed analysis in the written submissions. It was ventilated in some detail during oral argument by Mr Romaniuk and I granted leave to parties to file supplementary submissions on the matter. I should point out that Mr Romaniuk did briefly make reference during argument about this point to the issue of a decision being manifestly unreasonable. However, as I understand it, this was not pressed as a separate ground of jurisdictional error. The cases he referred me to were used to show interplay between the two grounds of review in support of his "no probative evidence" argument.
It is well settled that whether there is any evidence to support a factual finding is a question of law, and not of fact: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6. The Panel's factual findings, that Ms Ryder's pre-existing disc desiccation was an "integral part" of the development of her injury suffered on 18th November 2005, and caused a proportion of her permanent impairment, necessarily required supporting evidence. As the plurality (Hayne, Heydon, Crennan and Kiefel JJ) said in Kostas (at [91]) "[w]hat amounts to material that could support a factual finding is ultimately a question for judicial decision."
Mr Romaniuk has pressed upon me the absence of probative evidence of the fact that, but for the pre-existing disc desiccation the injury suffered by Ms Ryder on 18th November 2005 would not have resulted in the disc protrusion. He says that no such inference can be drawn from the evidence and therefore it was not reasonably open to either the AMS or the Panel to conclude that Ms Ryder's pre-existing condition contributed to the injury suffered by her on 18th November 2005, or her impairment. Dr Blount on the other hand, contends that "an unsatisfactory basis for a decision may indicate jurisdictional error… [however] as long as there is some evidence, the unsatisfactory nature of the evidence cannot itself ground relief under judicial review". His submission, as I understand it in the simplest terms is that no evidence means no evidence, and in this case there was evidence and the Panel were entitled to, and did make, findings of fact based on that evidence.
In my view, Dr Blount is correct in saying that judicial review is not concerned with the quality of the evidence. To paraphrase Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (at 156) to say that a finding ignores the probative force of the evidence which is all one way is asking this court to set aside the decision because it is wrong in fact. Generally speaking administrative tribunals have the right to be wrong in fact, unless the fact is jurisdictional, or the finding manifestly unreasonable.
Whether or not there is evidence to support the factual findings of the Panel must be looked at in the context of the relevant section; that is s 323 WIM Act. The decision of the Panel will be invalid if there is no evidence, or material, to satisfy an essential statutory element of the decision. In saying this, if there is some evidence, regardless of its quality, to support the statutory conditions the factual findings of the Panel and its decision will not be invalid on this score; The Queen v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 119-120.
Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.
The Panel (at reasons [9]) said that they have taken all of the documents before the AMS into account in making their decision. At [12] the Panel quoted from the reasons of the AMS about what he derived from the scans he reviewed, namely I reviewed MRI scans of the lumbar spine performed on 25 February 2006. These demonstrate moderate L5/S1 disc protrusion contacting both S1 descending roots. The lumbar intervertebral discs between L1/2 and L4/5 are relatively well maintained. Repeat MRI scans performed following her surgery in February 2010 demonstrate a small central and left paracentral disc protrusion in contact with the left S1 nerve root. There is evidence of perineural fibrosis more so on the right than the left at S1. At [14] they also quoted the explanation given by the AMS for his reduction of Ms Ryder's whole person impairment: I have determined a 1/10th deduction in accordance with Section 323 to reflect the impact of underlying degenerative changes upon her condition. Review of diagnostic imaging reveals evidence of significant disc desiccation at L5/S1 that would precede the accident. This degeneration has contributed to the development of the disc protrusion and relevant surgical requirements. As I have said, it is evident that the AMS did not consider the February 2006 scan showed abnormality in the L5/S1 disc.
Yusuf (at [84]) demonstrates that an administrative tribunal which commits an error of law falls into jurisdictional error, at least where the error of law is material in the sense that it affects the tribunal's disposition of the case before it. Deciding an important fact where there is no evidence or material which could support it is also an error of law, and, by parity of reasoning, jurisdictional error. The question is whether there is evidence, or material, "capable of proving the fact" found: Smart at [42].
Particular considerations may arise in the case of an expert panel: compare J & H Timbers Pty Limited v Nelson [1972] HCA 12; 126 CLR 625 at 651; ICI Australia Operations Pty Ltd v Workcover Authority (NSW) [2004] NSWCA 55; 60 NSWLR 18 at 64 [232]. The expert members of the panel are obliged to bring their expertise to bear when deciding the facts that underpin the Panel's decision. To that extent, the expertise of the expert members of the Panel is material on which the Panel is required to rely in making its decision. I interpolate, hence the importance of a provision of a statement of reasons explaining in appropriate detail the actual path of reasoning followed to arrive at the decision: Wingford Australia at 63 [55].
There may be a cross-over between the requirements of an adequate statement of reasons by an expert panel and the conditions of admissibility of expert evidence in the ordinary courts. That is to say, the experts should explain how their expertise applies to the facts they find to produce the decision made: compare Vegan at 397 [122], and Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at 604 [37]. This is not just a question of discharging the obligation to give adequate reasons. The consideration here is disclosing the "material" which supports the factual finding made where that material necessarily includes reference to the experts' "specialised knowledge", especially as the parties to the medical dispute will not be privy to that material. I accept that the application of expertise to facts found may sometimes be "intuitive": Vitaz at [43]. But when that "material" is not expressed it may leave open the inference that there is no evidence capable of supporting essential aspects of the decision.
I accept that the MRI scans showing desiccation, and the expertise of the expert members of the Panel are "evidence" that Ms Ryder suffered from a pre-existing abnormality consisting of some abnormality in her L5/S1 disc.
I have already held that the Panel fell into jurisdictional error by asking itself the wrong question. Had it posed for itself the question as to causation raised by s 323, that question, which is at least partly one of medical causation, perhaps could have been answered by the application of the expert members' expertise. That application of expertise would have been the "evidence" to support a finding of medical causation connecting the pre-existing abnormality and the degree of impairment resulting from the work injury. In circumstances where the wrong question was asked, it is more difficult to say that medical expertise makes up what otherwise appears to be a shortfall in the material capable of proving the relevant connection. I am satisfied from the consideration of the Panel's reasons and the material before it (appended to the affidavit of Andrew Dent sworn on 28th October 2014) there was no evidence that some portion of the permanent impairment resulting from Ms Ryder's work injury was due to the pre-existing abnormality of the L5/S1 disc found by the Panel. Essentially the error is the same as that identified by Schmidt J in Cole, having found a pre-existing abnormality the Panel assumed a proportion of the degree of impairment was due to it. This constitutes an additional ground of jurisdictional error.

Reasons

In the course of oral argument Mr Romaniuk criticised the adequacy of the Panel's reasons (13.25 - .35T). There will often be an apparently symbiotic relationship between a "no evidence point" and the adequacy of reasons but these two grounds of error are conceptually different. It is from the statement of reasons actually given by the Panel that I have found the jurisdictional errors which Ms Ryder has succeeded in establishing.
Ms Ryder argued that the Workcover Guides, [1.50]-[1.52], relating to calculating the "deductible proportion" for the purpose of s 323 were invalid. It is unnecessary to decide this point. The Panel's decision does not turn on the express terms of these particular guides. Indeed they are not referred to.
My orders are: 1. Amend the record so the only defendants are, and are described as, Jema Pty Ltd trading as Sundance Bake House and Tea Rooms as first defendant; The Appeal Panel constituted under s 328 Work Injury Management and Workers Compensation Act 1988 as second defendant; and The Registrar of the Workers' Compensation Commission of New South Wales as third defendant; 2. Set aside the certificate issued by the second defendant in matter no M1-0168111/12 on 20th June 2004; and 3. Remit the matter to the third defendant for referral to an Appeal Panel constituted under s 328 of the said Act for determination according to law; 4. The first defendant to pay the plaintiff's costs of and incidental to the proceedings on the ordinary basis forthwith after they have been agreed or assessed.

Amendments 07 May 2015 - Catchwords added DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2015

Workplace Injury Management and Works Compensation Act 1998(NSW)

Parties to proceedings in the Court

Dr Blount and Ms Pittaway, who appear for Sundance, as a preliminary issue, contend that the challenge to MAC is out of the time fixed by Rule 59.10 Uniform Civil Procedure Rules 2005 (NSW) of 3 months, for bringing these proceedings. This must be correct, subject to the Court's power to extend time.
I raised with Mr Romaniuk SC and Ms Grotte, who appear for Ms Ryder, whether the AMS is a proper, let alone necessary, party to these proceedings.
In my judgment, he is not. The decision by the Panel that the MAC issued by AMS should be confirmed, is a determination by a competent and higher authority which "holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary": Wishart v Fraser [1941] HCA 8; 64 CLR 470 at 478. This follows from Basten JA's judgment (McColl JA and Handley AJA agreeing) in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [20], [24] and [54] - [56]. At [20] his Honour said: " a challenge by way of judicial review to the decision of the [AMS] is incompetent where there has been an appeal to an Appeal Panel." It also follows from Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 at 58 [25] where a unanimous High Court said: … an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an "apparent legal effect". An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable. (See Dyason v Butterworth [2015] NSWCA 52 at [34] by McColl JA, Barrett and Gleeson JJA agreeing.)
It is the decision of the Panel, therefore, confirming the decision of the AMS, which has "apparent legal effect" for the purpose of this review. The AMS is neither a proper or necessary party to these proceedings and as such, the jurisdiction of this Court does not extend to reviewing the legality of his decision (but compare Vitaz at [54].) It follows from this, then, that Rule 59.10 UCPR has no application to these proceedings as counsel for Sundance properly conceded (42.45T).
Where it otherwise, I would have extended the time for commencing proceedings challenging the MAC. The commencement of proceedings was delayed by Ms Ryder pursuing her statutory appeal to the Panel. This was the proper approach. The Panel delivered its decision on 20th June 2014 and proceedings were promptly commenced thereafter.
The next procedural issue is the correct method of designating the parties. This was briefly discussed, but not resolved, in argument. The issue here is whether the correct practice is to name the members of the Panel individually, or to simply identify the panel in its "official designation". Basten JA referred to this question in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372. He said at [55]: It will usually be preferable to identify the tribunal by its official designation, so that persons who may constitute the tribunal if it is reconstituted will be bound. However, where the tribunal is an ad hoc body, appointed by an official as occasion arises, a different course may be appropriate. Whether the particular Panel still exists is not known. It would not be appropriate to order them to take particular steps: c.f., in a case of prohibition, Clifford and Sullivan [1921] 2 AC 570 at 584. The registrar was not joined in this Court, but should have been because, if the appeal is allowed, an order should be made directing the Registrar to take appropriate steps.
In my view, applying the reasoning in Vegan, the correct approach is to identify the appeal panel by its "official designation". This may not be quite the right way of putting it. The WIM Act does not establish a medical appeal panel as a permanent or standing body. Rather, it creates the statutory office of approved medical specialist to which the President of the WCC (established by s 366 WIM Act) may appoint legally qualified medical practitioners. Where the procedures for an appeal from an assessment carried out by an approved medical specialist are invoked, if the requirements of s 327 are satisfied, "an Appeal Panel" is convened ("chosen") by the Registrar, "constituted by 2 approved medical specialists and 1 Arbitrator" (s 328(1) WIM Act). Arbitrators are members of WCC: s 368 WIM Act; AMS's are not, by necessary intendment deduced from the express terms of s 368. An Appeal Panel is not a division of the WCC: Campbelltown City Council v Vegan [2004] NSWSC 1129, at [31]-[36] by Wood CJ at CL. From these statutory arrangements, there would be much to be said for an argument that an Appeal Panel "is an ad hoc body, appointed by [the Registrar] as occasion arises": Vegan at [55] per Basten JA. However, as I understand his Honour's reasoning, the better view is that an Appeal Panel should be identified for the purpose of these proceedings "by its official designation" for the reasons given by reference to Clifford and Sullivan.
At the conclusion of these reasons I will make orders to correct these procedural irregularities.

(1996) 13 NSW CCR 344

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