Sakr v Merrylands Christian Preschool Association Inc

Supreme Court of NSW|2021-06-09|Before: Garling J

Judgment

By Further Amended Summons dated 4 May 2021, the plaintiff seeks the following relief: 1. The decision of the second defendant, a Medical Appeal Panel of the since-replaced Workers Compensation Commission constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 ("1998 Act"), made on 30 November 2020 be set aside; 2. The Certificate of Determination of an Arbitrator of the Workers Compensation Commission made on 5 January 2021 be set aside; 3. The matter be remitted to the third defendant to be dealt with in accordance with law; 4. The first defendant pay the plaintiff's costs.
The Court's power under s 69 of the Supreme Court Act 1970 to judicially review the decision of the second defendant is limited in that the second defendant's decision is only reviewable if it made a jurisdictional error or an error of law on the face of the record.

Background

On 12 September 2013, the plaintiff was injured in the course of her employment by the first defendant, in the playground of a preschool operated by the first defendant. The plaintiff tripped on a toy, fell and hit the left side of her forehead and her right forearm.
On 9 July 2019, under s 66 of the Workers Compensation Act 1987 ("1987 Act"), the plaintiff claimed compensation for permanent impairment resulting from the injury suffered on 12 September 2013 which was said to have affected the "right upper extremity". The claim was also for permanent impairment resulting from "trigeminal nerve impairment".

The Medical Appeal Panel's Decision

On 30 November 2020, the Medical Appeal Panel ("the Panel") allowed the first defendant's appeal.
In relation to the ground of appeal regarding a "demonstrable error" by the AMS by assessing a body part not referred for assessment, the Panel said the following: "[37] The Direction and the Referral issued by the Registrar required the AMS to… assess for CRPS. The Referral did not specify that the right upper extremity was to be assessed independently of any assessment of CRPS. … [43] … [T]he medical evidence illustrates what was essentially a minor injury to the right hand which developed into a pain syndrome. The medical evidence does not suggest a physical injury involving a physiological change to every joint in the right upper extremity. Whilst injury is not in issue, the basis of the claim put forward, as articulated by Dr Ho, was expressed in vague terms of 'soft tissue injury to the right upper limb'. It is in that context that the claim form and the assessment of Dr Ho was based on an extremely high assessment because it was alleged that the [plaintiff] had CRPS which affected the entire right upper extremity. [44] There is no doubt that the AMS must determine the 'degree of impairment as a result of injury'. However, the AMS does not determine 'injury' and does not determine the 'nature of the injury'. … [49] … [T]he parties' respective submissions have referred to vague pleadings suggesting 'injury' to the entire right upper extremity. Whilst it is not up to the [Panel] to address issues of injury, we observe that the Directions made by the Commission Arbitrator (who could have determined any injury issues) and the Referral issued by the Registrar referred 'CRPS' for assessment. There was no referral of the right upper extremity. … [51] … The [plaintiff] suffered a soft tissue injury to the hand and developed a pain condition. The matter was referred to the AMS as there was an acceptance of injury. That injury, apart from the forehead laceration, was apparently the soft tissue injury to the hand."
The Panel concluded: "[66] These authorities establish that an AMS is restrained by the terms of the Referral and the medical dispute. The approach is consistent with the concept of the 'injury' sustained by the worker, a matter solely within the jurisdiction of the Commission, and the role of the AMS who assesses the degree of permanent impairment as a result of the injury. [68] The AMS was required to assess the degree of impairment if the [plaintiff] was diagnosed with CRPS. Based on the findings by the AMS that CRPS was not present, there is only one conclusion, that is, an assessment of CRPS was 0%. [69] The AMS erred in assessing the right upper extremity because, absent a finding that the [plaintiff] suffers from CRPS, it fell outside the terms of the referral. The addition by the AMS of the words 'right upper extremity' adjacent to 'CRPS' in the table of the MAC only emphasised that there was an assessment of matters outside the terms of the Referral. [70] In these circumstances, the [Panel] accepts that the [first defendant] has established that the MAC contains a demonstrable error by assessing loss of movement of every joint in the right upper extremity in the absence of a diagnosis of CRPS. This ground of appeal is upheld."
The Panel did not consider it necessary to deal with the second ground of appeal, namely that the AMS had performed his assessment on the basis of incorrect criteria, and it is unclear whether the Panel would have ruled for or against the first defendant on this ground alone. The Panel did record, however, its concerns regarding the approach taken by the AMS in this regard. It said: "[82] The two matters to note with respect to paragraph 1.12 [of the Guidelines] is that there was no evidence of an 'underlying condition' with respect to the fingers, wrist, elbow and shoulder. There was evidence, referred to earlier, of joint osteoarthritis of the thumb. [83] The second matter is that contrary to the [first defendant]'s submission, conditions associated with chronic pain (other than CRPS) are assessed in accordance with the underlying condition. [84] The AMS has only assessed loss of motion of the various joints in the right upper extremity by reference to pain without any consideration of any underlying condition."

Grounds of Review

By the time of hearing, the plaintiff relied upon the following five grounds of review: "1 That the decision of the [Panel] contains an error on the face of the record by determining that the MAC decision contains a demonstrable error by assessing loss of movement of every joint in the right upper extremity in the absence of a diagnosis of CRPS. 2 That the [Panel] erred in law on the face of the record and made a jurisdictional error by finding that the AMS's power was limited to the assessment of specific body parts by the terms of referral as issued by the Registrar of the Workers Compensation Commission (now known as the third defendant). 3 … 4 That the [Panel] has made an error in law on the face of the record in finding that the [AMS] assessed loss of motion in the right upper extremity by reference to pain without consideration of any underlying condition in each joint where the AMS has assessed loss of range of movement applying Chapter 16 of [the American Medical Association's Guide to the Evaluation of Permanent Impairment ("AMA5")]. 5 The [Panel] erred in law on the face of the record and made a jurisdictional error when it held that the AMS was not entitled to make an assessment of the impairment in the right upper extremity as a result of CRPS when there had been no dispute that the injury consisted of CRPS. 6 The [Panel] erred in law on the face of the record and made a jurisdictional error when it held that the AMS was only entitled to assess the impairment as CRPS when the referral properly read was to assess the impairment resulting from an injury determined as CRPS."

Grounds 1, 2, 5 and 6

The plaintiff's written and oral submissions dealt simultaneously with Grounds 1, 2, 5 and 6 and, at the hearing of this matter, the plaintiff accepted that Ground 6 was the clearest statement of the complaint encompassed by these grounds. Although the first defendant responded to each of these grounds separately in its written submissions, given the conduct of the parties at the hearing of the matter and that each of these grounds relates to the Panel's reasons in respect of the "demonstrable error" which was the primary basis for its decision, it is convenient to deal with them at the same time.
In addition to the written submissions filed before the hearing and the oral submissions made at the hearing, the plaintiff and first defendant filed written submissions by 30 July 2021 in relation to the Court of Appeal's decision in Skates v Hills Industries Ltd [2021] NSWCA 142 ("Skates (CA)"), which was published on 14 July 2021. As will become apparent, these submissions are primarily relevant in relation to Grounds 1, 2, 5 and 6 of this appeal.

Plaintiff's Submissions

The plaintiff submits that "by agreement [between the plaintiff and first defendant] it was determined that the plaintiff suffered relevantly from a soft tissue injury to the right upper limb resulting in CRPS1" and that, in those circumstances, the AMS and the Panel "were required to accept the determination of the injury".
The plaintiff further submits, contrary to the Panel's findings, that the AMS did not err in assessing the permanent impairment caused to the plaintiff's right upper extremity by the workplace injury suffered on 12 September 2013. The plaintiff says that an AMS should not be limited by the strict terms of a referral and should instead be limited only by the "relevant touchstone", namely "the compensable injury". The plaintiff says the medical dispute which was referred for assessment under Part 7 of the 1998 Act was "the degree of permanent impairment of the worker" and not whether the plaintiff in fact suffered from CRPS. The plaintiff points to the terms of the permanent impairment claim, which notes the "body system affected by the injury is right upper extremity" and the subsequent Application to Resolve a Dispute, which describes the injury as "soft tissue injury to… right upper limb resulting in CRPS1".
The plaintiff also points to the breadth of the terms of the Registrar's referral to the AMS, which included, as extracted at paragraph [10] above, four elements of the definition of "medical dispute" as provided for in s 319 of the 1998 Act. Notwithstanding these general terms, the referral failed to identify "the injury". In those circumstances, the plaintiff submits: "[t]he only way to give sense to the Referral is to read right upper extremity and left frontal region being the injury. To read the Referral any other way would be to make the Referral meaningless".
The plaintiff submits that Skates (CA) is authority for the proposition that the scope of the medical dispute was defined by the terms of the permanent impairment claim, the Application to Resolve a Dispute and the medical reports attached to those documents. In circumstances where the first defendant's responses did not dispute the description of the injury in those documents, the subsequent referral could not alter the scope of the medical dispute referred to the AMS for assessment. The plaintiff further submits that an examination of those relevant documents leads to a conclusion that the medical dispute was "the degree of permanent impairment of the entirety of the right upper extremity", that the AMS did not err in his assessment of that medical dispute, and that the Panel erred in overturning the AMS's assessment.

First Defendant's Submissions

The first defendant contests the plaintiff's submission that an AMS may deviate from the terms of a referral under the 1998 Act. The first defendant submits that, in this case, the task of the AMS was "to determine the degree of permanent impairment that resulted from the injury". In circumstances where the "accepted injury" was CRPS, because that particular condition: "was not found to be present in the plaintiff … a conclusion that there is no resulting impairment is inevitable".
The first defendant submits that the central dispute between the parties was whether the plaintiff met the diagnostic criteria for CRPS and that, therefore, the referral should be read as being limited to a determination of that issue. The first defendant observes, as the Panel did in its reasons, that the plaintiff did not object to the terms of the referral when they were proposed by the Commission Arbitrator at the teleconference on 13 May 2020.
Given that central dispute between the parties, the first defendant says that the plaintiff is wrong to suggest that the parties ever reached an agreement that the plaintiff in fact suffered from CRPS.
The first defendant submits that the Court of Appeal's decision in Skates (CA) reinforces the above submissions and "confirms the correctness of the [Panel]'s approach". The first defendant further submits that, because the dispute between the parties was whether the plaintiff suffered from CRPS, it never "agreed to a general referral absent a diagnosis of CRPS".

Discernment

It is necessary at this stage to consider the statutory provisions that are relevant to the issues in this case. It is to be observed that the relevant legislation has been materially amended since the plaintiff made her application to the Commission.
Section 293(1) of the 1998 Act provides: "When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may (subject to the regulations under section 321A (Referral of medical dispute concerning permanent impairment)) refer the medical dispute for medical assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment."
"Medical dispute" is defined in Part 7, s 319, of the 1998 Act in the following terms: "medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim - … (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, … (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable."
Section 325 of the 1998 Act provides: "(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment. (2) A medical assessment certificate is to be in a form approved by the Registrar and is to - (a) set out details of the matters referred for assessment, and (b) certify as to the approved medical specialist's assessment with respect to those matters, …"
As observed by Basten JA in Skates (CA) at [17]: "The elements of the definition [of 'medical dispute'] are not entirely independent. Each is a matter which can be assessed by an AMS, pursuant to s 322 and s 323. The various elements in the definition of 'medical dispute' are identified as 'matters' and the medical specialist is to give a certificate (a medical assessment certificate) 'as to the matters referred for assessment': s 325(1)."
A medical assessment certificate is conclusively presumed to be correct as to certain "matters", including the degree of permanent impairment of the worker as a result of an injury: s 326 of the 1998 Act.
A party to a medical dispute may appeal against a medical assessment on certain grounds: s 327 of the 1998 Act.
Grounds 1, 2, 5 and 6 of this appeal seem to me to be capable of resolution only after determining the scope of the medical dispute which was referred to the AMS for assessment. The Court of Appeal considered a similar issue in Skates (CA).
In Skates (CA), the applicant made a claim for a workplace injury to his left wrist, ring finger and scarring, for which the employer accepted liability. There was a dispute about, at least, the degree of permanent impairment. Subsequently, the terms of a referral to an AMS were erroneously limited to "left upper extremity (joint ring finger), scarring (TEMSKI)". The employer conceded that the referral was wrongly limited and that the claimant's injury should be assessed by reference to, also, his left wrist. An issue arose, however, when the AMS proceeded to assess the claimant's impairment of restriction of the left shoulder, left elbow, left thumb, index, middle and little fingers.
Basten JA observed in Skates (CA) that the jurisdiction of the Commission is limited by reference to the claim for compensation submitted by the claimant. The scope of that claim is determined by the identification and description of the injury in the correspondence between the parties, the Application to Resolve a Dispute and the various medical reports enclosed with the Application: [27]‑[30]; see also [44]-[46] (Leeming JA).
Leeming JA, who agreed with Basten JA, added the following reasons by way of emphasis to this point: "[47] Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences 'Referral of medical dispute' and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate. [48] The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the 'referral' to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute. [49] The document signed by the Registrar's delegate and dated 1 September 2017 described itself as a 'Referral for Assessment of Permanent Impairment to Approved Medical Specialist'. Its first numbered subheading was 'Medical Dispute Referred for Assessment' and there it stated, wrongly, 'Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)'. That was wrong insofar as it did not include Mr Skates' wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. The Appeal Panel was correct to state that the Approved Medical Specialist had gone beyond assessment of the medical dispute which had been referred to him."
In dissent, McCallum JA considered that the AMS was entitled to assess the degree of impairment of the whole of the left upper limb, including the shoulder, elbow and other fingers. That conclusion, however, seems to me to reflect a difference in the application of broadly similar reasoning to that employed by the majority, namely that "the medical dispute referred [by the Registrar to the AMS] must be the medical dispute the parties have sought to be resolved", which is determined by reference to the claimant's Application and the various medical reports: see [81]-[82].
Skates (CA) must be read in the context of other authorities relied on by the parties and referred to in the Panel's decision, especially Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2006] NSWSC 322 ("Aircons"), Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 ("Bindah") and Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88. In Skates v Hills Industries Ltd [2020] NSWSC 837 ("Skates (SC)") from [54], Adamson J considered Aircons, Bindah, Dening v Oltoy Pty Ltd t/as Noble Toyota [2014] NSWSC 1224 and Cincotta v Police Citizens Youth Clubs NSW Ltd [2018] NSWSC 1588. I broadly adopt Adamson J's observations regarding those cases. I also note the observations of McCallum J regarding Aircons in Skates (CA) at [79]-[80].
As I read the judgments in Skates (CA) of Basten JA and Leeming JA, as well as McCallum J in dissent, there would be appealable error even if the employer did not concede that the scope of the referral should have included the assessment of the claimant's left wrist. This is because the scope of the medical dispute referred to the AMS is determined primarily by reference to the legal dispute between the parties evidenced by the Application to Resolve a Dispute and associated documents, and it would therefore be an error of law on the face of the record to, without notice or argument on the issue, limit the scope of the medical dispute by the strict terms of the referral.
In the present case, the dispute between the parties crystallised with the exchange of claim and response on 9 July and 31 October 2019, respectively, as more fully described at [4]-[6] above. It is clear that the first defendant has never disputed that the plaintiff suffered an injury caused by the trip and fall which occurred on 12 September 2013.
As evidenced by the first defendant's response on 31 October 2019, the first defendant disputed, and has always disputed since then: 1. that the plaintiff suffers from CRPS; and 2. the extent of the plaintiff's WPI caused by the workplace injury suffered on 12 September 2013.
I reject the plaintiff's submission that the first defendant, at one point or another, agreed that the plaintiff suffered from CRPS. That diagnosis has always been contested; it was the central focus of Dr O'Sullivan's report.
However, that specific dispute as to diagnosis does not encapsulate the underlying medical dispute between the parties. In my view, the fundamental medical dispute between the parties, within the terms of s 319, has always been "the degree of permanent impairment of the worker as a result of [the] injury", namely a "soft tissue injury to… [the plaintiff's] right upper limb". The Panel concluded as much at paragraph 51 of its reasons.
The true effect of this finding, however, is that, subject to the operation of the Guidelines, the determination of the plaintiff's claim did not ultimately depend on a diagnosis of CRPS. It was therefore open for the AMS to assess the permanent impairment of the plaintiff, notwithstanding the finding that the diagnostic criteria for CRPS had not been met.
In reaching this conclusion, I particularly emphasise the terms of the permanent impairment claim form dated 9 July 2019, which did not mention CRPS at all and instead indicated that the plaintiff was seeking compensation for an injury suffered on 12 September 2013, which affected the "right upper extremity". It is unfortunate that the parties' respective medical reports then focussed on the degree of permanent impairment based primarily on a diagnosis of CRPS, because CRPS was not the underlying injury in relation to which a claim was being made. CRPS is a complex pain syndrome which develops after a traumatic injury - it is not itself an injury. This fact appears to have been overlooked by the first defendant's medical expert Dr O'Sullivan, who, once he had concluded that the plaintiff did not suffer from CRPS, failed to consider the plaintiff's degree of permanent impairment, despite conceding that the plaintiff has "the inability to use her right upper limb". In those circumstances, however, it cannot be that the plaintiff's claim was limited by the failure of the first defendant's expert to address the broader impairment claim.
I do not accept the first defendant's submission (and the Panel's reasoning) that, by failing to object to the terms of the referral, the plaintiff somehow waived her broader claim for compensation. There is no material before me to suggest that the plaintiff did so waive before the Commission Arbitrator, and the Commission Arbitrator's short statement of reasons do not evidence any intention to limit the scope of the dispute between the parties.
On a related point, I reject the proposition which appears to have been advanced by the Panel in its reasons, at paragraph 49, that the Commission Arbitrator "determined any injury issue" by limiting the terms of the referral to CRPS. As the Panel stated only two paragraphs later, at paragraph 51, there was an "acceptance of injury" by the parties, namely that the plaintiff had suffered "a soft tissue injury to the hand". There is no material before me that suggests that either party contended before the Commission Arbitrator that the "injury" to be assessed should have been limited to CRPS and, in the context of the documentation regarding this case and for the reasons above, I do not interpret the Commission Arbitrator's reasons as indicating any intention to determine the injury to the plaintiff.

Ground 4

Ground 4 of the Further Amended Summons concerns the Panel's reasoning in relation to whether the AMS performed his assessment on the basis of incorrect criteria. As indicated earlier, the Panel did not consider it necessary to deal with that issue. Given the conclusion that I have reached in relation to the other grounds of judicial review, it is necessary to consider this ground in order to ensure that the Commission properly deals with the whole of the plaintiff's claim.

Plaintiff's Submissions

The plaintiff submits that she was not given an opportunity to be heard before the Panel on the issue of whether paragraph 1.12 of the Guidelines operates to exclude the calculation of permanent impairment by reference to pain in the absence of an underlying condition.
In any event, however, the plaintiff submits that paragraph 1.12 only excludes Chapter 18 of AMA5. In this case, the AMS assessed the degree of permanent impairment of the right upper extremity in accordance with Chapter 16 of AMA5, which "does not require a specific diagnosis [of an underlying condition] before making an assessment" of permanent impairment.
Furthermore, given it was accepted "that there had been a soft tissue injury to the right upper extremity resulting in CRPS1", there was an underlying condition to which the AMS could have reference to in establishing the degree of permanent impairment.

First Defendant's Submissions

The first defendant submits that, in accordance with paragraph 1.12 of the Guidelines, CRPS "should be assessed in accordance with Chapter 17 of the Guidelines" and, "as, in the present case, CRPS has not been established, there are no other impairments to be assessed".

Discernment

As earlier discussed, the AMS concluded that the plaintiff did not suffer from CRPS. Having reached that conclusion, the AMS assessed the plaintiff's impairment "based on a limitation [of] motion to all of the joints in her right upper extremity". This was purportedly done in accordance with Chapter 16 of AMA5.
Paragraph 1.12 of the Guidelines provides: "AMA5 Chapter 18, on pain, is excluded entirely at the present time. Conditions associated with chronic pain should be assessed on the basis of the underlying diagnosed condition, and not on the basis of the chronic pain. Where pain is commonly associated with a condition, an allowance is made in the degree of impairment assigned in the Guidelines. Complex regional pain syndrome should be assessed in accordance with Chapter 17 of the Guidelines."
Chapter 16 of AMA5 provides the relevant "criteria for evaluating permanent impairments due to anatomic impairments of the hand and the upper extremity".
The first defendant's submissions on this ground are based on the assumption that the medical dispute referred to the AMS was properly limited to the diagnosis of CRPS which, as I have explained, is incorrect. It seems to me that the Panel's reasoning is infected with the same mistake.
With respect, I particularly disagree with the Panel's finding that the AMS "only assessed loss of motion of the various joints in the right upper extremity by reference to pain without any consideration of any underlying condition". In fact, the AMS assessed the plaintiff's "best active range of motion" without reference to pain. In those circumstances, the reference by the Panel to paragraph 1.12 of the Guidelines is misleading, as is the purported requirement to assess "on the basis of the underlying diagnosed condition".
This conclusion is consistent with my earlier finding that the medical dispute referred to the AMS was the plaintiff's degree of permanent impairment. The AMS was not limited to assessing the diagnosis of CRPS or permanent impairment by reference to pain.
Finally, the plaintiff submits that, because they did not specifically consider a particular aspect of the AMS' report regarding the proper application of the Guidelines, the Panel failed to give reasons. This was not a pleaded ground of review and, in any event, the submission has no basis. I reject it.

Orders

In light of the above findings, it is necessary to remit the matter to the third defendant to deal with the matter in accordance with law.
As Basten JA explained in Skates (CA) at [39]-[40], the institutional arrangements regarding this type of claim have recently changed. The Workers Compensation Commission has been replaced by the Personal Injury Commission and the remittal should therefore be directed to the "new decision‑maker" i.e., the third defendant, in accordance with s 14C of Sch 1 of the Personal Injury Commission Act 2020.
I make the following orders: 1. The decision of the second defendant made on 30 November 2020 be set aside; 2. The Certificate of Determination of an Arbitrator of the Workers Compensation Commission made on 5 January 2021 be set aside; 3. The matter be remitted to the third defendant to be dealt with in accordance with law; 4. The first defendant pay the plaintiff's costs.

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: 16 June 2022

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Judgment (14 paragraphs)

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Cases Cited (7)