Siddik v WorkCover Authority of New South Wales & 2 Ors

JUDGMENT 1 HIS HONOUR: The plaintiff claims to have suffered a permanent workplace injury (inter alia, to the neck). The first defendant (the employer being uninsured) brought an application to resolve a dispute in respect of permanent impairment. The application was referred to an Approved Medical Specialist (Dr Bosanquet). 2 Dr Bosanquet issued a Medical Assessment Certificate of permanent impairment. It contains the following:- " Present symptoms: Current symptoms include pain in his neck and restricted movement." My opinion and assessment of whole person impairment As he has had an injury to his neck and some restriction of movement I have put him into DRE Cervical Category II, 5 to 8%, and allotted the lower amount because his activities of daily living are not significantly restricted due to this." 3 The first defendant lodged an application to bring an appeal. An Appeal Panel purportedly dealt with the appeal pursuant to s328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act). The Appeal Panel revoked the certificate given by Dr Bosanquet. The statement of reasons for that decision contained, inter alia, the following:- "32. In considering the MAC the Panel observed that the AMS categorised the injury to the Respondents cervical spine as DRE Cervical Category II and allocated 5% whole person impairment in this regard. 33. The Panel confirmed the requirement for this category according to the AMA 5th edition is for a clinical finding of non-specific radiculopathy or an asymmetrical range of movement. 34. In this respect the Panel notes that the AMS did not make a finding of non-specific symptoms of radiculopathy or an asymmetrical range of movement. Rather the AMS noted that the Respondent had " some restriction of movement ". In this regard the Panel formed the view that the AMS based his assessment on incorrect criteria." 4 The plaintiff has brought proceedings in this Court seeking relief pursuant to s69 of the Supreme Court Act 1970 (NSW). There are three named defendants. The first defendant is the only party that has appeared in opposition to the claim for relief. Submitting appearances have been filed by the other defendants. 5 The proceedings were heard on 26 February 2007. The plaintiff seeks, inter alia, to have the decision of the Appeal Panel set aside (on the basis of either jurisdictional error or error of law on the face of the record). In support of that claim for relief, two matters were argued. 6 It was common ground that AMA5 Chapter 15 had application in the present case. It provides that evaluation of the impairment of the spine under WorkCover is to be done using diagnosis-related estimates (DREs). Table 15-5 summarises the DRE Cervical Categories. For present purposes, the following (which forms part of DRE Cervical Category II) contains the provisions that are regarded as being relevant by the parties:- " DRE Cervical Category II Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician; asymmetric loss of range of motion or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity." 7 In respect of the first matter of challenge, the submissions made on behalf of the plaintiff contain the following:- "13. The full table is attached to these submissions, and the error is straight-forward; DRE Cervical Category II, in the first of its three options, does not require one of the listed findings to be made; rather, it states that "findings may include " any of those listed. It is indicative of the types of findings that would bring someone within DRE II, but it is not an exhaustive list. 14. Section 328 mandates that the assessment be made in accordance with the Workcover Guidelines. The Guide has not been followed, the error appears on the face of the record (which extends to the reasons), and it is thus reviewable pursuant to section 69(3) of the Supreme Court Act. 15. It also represents a failure to comply with a procedure mandated by the Act, it is thus invalid, and may be quashed for jurisdictional error (SAAP v MIMIA (2005) 205 ALR 162)." 8 In my view, the plaintiff has failed to make out this challenge. I consider that it is misconceived and does not come to terms with what was done by the Appeal Panel.

9 The substance of the view taken by the Appeal Panel of the original medical assessment was that of lack of findings by Dr Bosanquet and of assessment by him using incorrect criteria. Further, I do not understand it as being one of taking an "exhaustive list" construction as contended by the plaintiff. 10 The Guidelines have a propensity to throw up problems of construction (some of which may be regarded as being difficult). This propensity is fast becoming productive of litigation in this Court. Indeed, it is with great concern that I observe the escalation in number of such cases. 11 In the present case, whilst the relevant provisions may have been capable of more felicitous expression, the intention seems to be reasonably clear. 12 I consider that those provisions have application only where there is clinical history and examination findings, which are comparable with a specific injury. This opening expression of criteria is then followed by a non-exhaustive definition of "findings" ("findings may include"). 13 What was found by Dr Bosanquet fell well short of making out this criteria. I see no error in a conclusion to the effect that Category II did not apply in the present case. It may be further observed that whilst not using the precise language of the Table (although the substance appears to be the same), it seems that the Appeal Panel proceeded to opine as to what may have been thought to be the only possibilities and then came to the view that there were no findings to support either of them. 14 The second matter of challenge looks to the language of s328 of the Act (in particular to sub-sections (1) and (4)). The section is as follows:- "(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment. (4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel. (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel." 15 The thrust of the argument is that the Appeal Panel should have embarked upon a hearing. It is common ground that no hearing, in the sense of an adversarial or oral hearing, took place. The plaintiff did not make any request for such a hearing. The appeal was done on the papers. Indeed, this course was taken with the consent of the parties. 16 Leaving other matters aside, it seems to me that in these circumstances this Court should not entertain the proposed challenge. 17 Be that as it may, the argument was put to Studdert J in Estate of Heinrich Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235 and rejected by him (see paragraphs 57 and 58 of the judgment). 18 I am not persuaded that His Honour erred in rejecting the argument. 19 As was said in Aircon Pty Limited v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 322 at paragraph 25, the use of the term "appeal" may be misleading. A similar approach may be taken to the use of the words "to be heard". In my view, the language of the section does not stipulate a hearing of an appeal as could be expected to take place in a court of law. It seems to me, that this approach is supported by what is said in sub-sections (1) and (2) concerning the constitution of the Appeal Panel and the nature of the process. The Appeal Panel is to be constituted by two Approved Medical Specialists and one Arbitrator. The Appeal is to be by way of review of the original medical assessment. What was intended has to be seen in this context. It seems to me that sub-section (4) merely enables an injured worker to be accompanied by a person (whether or not a legal advisor or agent) in those cases where the injured worker may attend the hearing by the Appeal Panel (such as when a further medical examination is conducted). 20 Section 328 enables the WorkCover Guidelines to make provision for the procedure on an appeal. This has been done (at the relevant time it was Practice Direction No.8). The Practice Direction contains the following:- " On the papers review Wherever possible the Appeal Panel will proceed to review the assessment on the basis of the documents provided by the parties. It is essential that the parties state their view on this issue in the application and reply to the appeal. Where the parties and the Appeal Panel agree to the matter proceeding "on the papers" the Appeal Panel will review the assessment and the parties will be advised in writing of the outcome." 21 This was the procedure followed in this case. It is not said by the plaintiff that it was carried out otherwise. 22 It was said that the Guidelines were unauthorised or ultra vires. Why this was said to be so was not the subject of elaboration. I do not find that the little of what was said on these matters to be persuasive. 23 I am not satisfied that the plaintiff has demonstrated any entitlement to relief. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibit may be returned.

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