Starr v Pendergast Painting Pty Ltd

Supreme Court of NSW|2020-06-05|Before: Adamson J

Solicitors: CMC Lawyers (Plaintiff) Hall & Wilcox Lawyers (First Defendant) Crown Solicitor for NSW (Second and Third Defendants) File Number(s): 2019/298267

Introduction

By summons filed on 24 September 2019, the plaintiff, Michael Starr (the claimant) seeks relief under s 69 of the Supreme Court Act 1970 (NSW) to set aside the decision made by the Medical Appeal Panel, the second defendant (the Appeal Panel) on 27 June 2019, which confirmed the assessment of the claimant's whole person impairment (WPI) by Dr Assem, an Approved Medical Specialist (AMS).
The decisions made by the Appeal Panel and the AMS were made under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act). All references to legislation in these reasons are, unless otherwise indicated, references to the Act.
This Court's jurisdiction under s 69 of the Supreme Court Act extends to jurisdictional error and errors of law on the face of the record. It was common ground that the reasons of the Appeal Panel formed part of the record for this purpose.
The Appeal Panel and the third defendant, the Registrar of the Workers Compensation Commission (the Registrar), have filed submitting appearances. The only active contradictor is the first defendant, Pendergast Painting Pty Ltd (the employer).

The grounds of appeal

The claimant relies on the following four grounds of appeal: 1. the Appeal Panel failed to correct the error by the AMS; 2. the Appeal Panel failed to consider the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed) (the Guidelines); 3. the Appeal Panel failed to give adequate reasons and came to a decision that was not open to it; 4. the Appeal Panel failed to conduct a re-examination in circumstances which amounted to a denial of procedural fairness to the claimant.
Before turning to the grounds, I propose to outline the relevant statutory scheme.

The relevant statutory provisions

A claimant cannot commence court proceedings for the recovery of work injury damages unless the degree of WPI has been assessed by an AMS to be at least 15%: ss 313 and 314. A dispute between a claimant and an employer as to the degree of permanent impairment is a "medical dispute" within the meaning of s 319 in Part 7 of the Act. The Registrar may refer a medical dispute to an AMS: s 321. The assessment of the degree of permanent impairment is to be made in accordance with the Guidelines: s 322(1). An AMS may call for the production of medical records and other information and require a claimant to submit himself or herself for examination: s 324(1). An AMS to whom a medical dispute has been referred is to give a medical assessment certificate as to the matters referred for assessment: s 325(1). The certificate is to certify the assessment, the reasons for assessment and the facts on which the assessment is based: s 325(2).
A party may appeal against a medical assessment on certain grounds: s 327. The grounds include that the assessment was based on incorrect criteria (s 327(3)(c)) and that the certificate contains a "demonstrable error" (s 327(3)(d)). The appeal is made by application to the Registrar and is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions, at least one of the specified grounds of appeal is made out: s 327(4). An appeal against a medical assessment is to be heard by an Appeal Panel constituted by two medical practitioners and one arbitrator: s 328(1). It is to be by review, but is limited to the grounds of appeal: s 328(2). The Appeal Panel may confirm the AMS's certificate or may revoke it and issue a new certificate: s 328(5).
The Registrar may also refer a matter for reconsideration as an alternative to an appeal: s 329(1). A certificate following a reconsideration prevails over any previous certificate to the extent of the inconsistency: s 329(2).
Section 331 provides: "331 Guidelines Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments."
Chapter 14 of the Guidelines relates to skin. Of present relevance, it provides: "… 14.6 A scar may be present and rated as 0% WPI. Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment. 14.7 The table for the evaluation of minor skin impairment (TEMSKI) (see Table 14.1) is an extension of Table 8-2 in AMA5. The TEMSKI divides class 1 of permanent impairment (0-9%) due to skin disorders into five categories of impairment. The TEMSKI may be used by trained assessors (who are not trained in the skin body system), for determining impairment from 0-4% in the class 1 category, that has been caused by minor scarring following surgery… 14.8 The TEMSKI is to be used in accordance with the principle of 'best fit'. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories. 14.9 Where there is a range of values in the TEMSKI categories, the assessor should use clinical judgement to determine the exact impairment value. …"
Table 14.1, the table for the evaluation of minor skin impairment (TEMSKI) sets out, of present relevance, the criteria for a score of 0% and 1% as follows: Table 14.1 Table for the evaluation of minor skin impairment (TEMSKI) Criteria 0% WPI 1% WPI Claimant is not conscious or barely conscious of the scar(s) or skin condition. Claimant is conscious of the scar(s) or skin condition. Description of the scar(s) and/or skin condition(s) Good colour match with surrounding skin, and the scar(s) or skin condition is barely distinguishable. Claimant is unable to easily locate the scar(s) or skin condition. Some parts of the scar(s) or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes. (shape, texture, colour) No trophic changes. Claimant is able to locate the scar(s) or skin condition. Any staple or suture marks are barely visible. Minimal trophic changes. Any staple or suture marks are visible. Location Anatomic location of the scar(s) or skin condition not clearly visible with usual clothing/hairstyle. Anatomic location of the scar(s) or skin condition is not usually visible with usual clothing/hairstyle. Contour No contour defect. Minor contour defect. ADL/treatment No effect on any ADL. Negligible effect on any ADL. Adherence to underlying structures No treatment, or intermittent treatment only, required. No treatment, or intermittent treatment only, required. No adherence. No adherence.

The factual background

On 14 November 2014 the claimant injured his right shoulder rolling paint on the external wall of a residential property in the course of his employment with the employer. He claimed compensation pursuant to the Workers Compensation Act 1987 (NSW). He had two operations on his right shoulder, the first on 16 April 2015 and the second in May 2016. On 22 June 2017 the claimant had an operation on his left shoulder, which was accepted to have been caused by over-compensating for his injury to the right shoulder.
After the surgery on the right shoulder, but before the surgery on the left shoulder, the claimant made a statement dated 3 April 2017 which was provided to the employer. In this statement he made no mention of the scarring on his right shoulder from the two operations to that joint.
On 9 October 2018 Dr Bodel opined that the claimant had a total of 15% WPI, comprising 9% for the right upper extremity, 6% for the left upper extremity and 1% for the skin, due to scarring from the operations referred to above. I note for completeness that the total WPI is not determined by mere addition of the respective percentages but is determined by the Combined Values Chart at pp 604-606 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA5), which is made applicable by cl 1.18 of the Guidelines. On the basis of Dr Bodel's report, the claimant made a claim for 15% WPI. Ultimately, the Registrar referred the assessment of the claimant's WPI to Dr Assem, an AMS.
The AMS examined the claimant on 6 February 2019 and, on 19 February 2019, he issued a certificate which determined that the claimant had suffered a 9% WPI of the left upper extremity, a 6% WPI of the right upper extremity and 0% of the skin. The combined total of these figures was 14%.
The AMS's reasons for the certificate included the following findings on examination: "FINDINGS ON PHYSICAL EXAMINATION Mr Starr appeared in no apparent physical distress. He was cooperative throughout the examination. He appeared to present in a straight forward manner. His height was 167cm and he weighed 132kg. He was able to remove his shirt without any significant discomfort. There were extensive tattoos over both of his shoulders and upper arms. As a result, the minor arthroscopic surgical scars were barely visible. He had normal shoulder contours. There was tenderness laterally but no joint crepitations. Active range of motion was consistent on repeated testing as follows. Right Left Forward flexion 140° 140° Extension 40° 40° Abduction 130° 130° Adduction 20° 20° External Rotation 40° 40° Internal Rotation 50° 50°"

The AMS included three photographs: two depicting the claimant's left shoulder and the third depicting the right shoulder. Both shoulders have coloured tattoos.
The reasons also included the following: "There are minor arthroscopic surgical scars as shown in the attached photographs. The scars were barely visible and did not give rise to an impairment rating according to the TEMSKI scale."
The AMS also said: "There is no disagreement with regards to range of motion observed by Dr Bodel, his methodology and calculations of whole person impairment. However, I did not believe that the scarring would give rise to 1% whole person impairment."
By email dated 20 February 2019 the claimant wrote to the Registrar seeking that the AMS reconsider the certificate. The application was supported by submissions and three photographs.
On 24 April 2019, the AMS issued a further certificate in which he said: "I have considered the photographs and additional information provided. It does not persuade me to change the WPI assessment I have previously completed."
On 29 April 2019 the claimant filed an application to appeal with the Registrar on two grounds: that the assessment was made on the basis of incorrect criteria and that the certificate contained a demonstrable error. In substance, the claimant submitted that the observations of his scarring were a better fit for 1% than they were for 0%, having regard to the TEMKSI.
On 13 May 2019 the Registrar permitted the appeal to proceed on the ground that the certificate contained a demonstrable error.
On 27 June 2019 the Appeal Panel confirmed the AMS's certificate and gave reasons for its decision which included the following: "PRELIMINARY REVIEW 16. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines. 17. The appellant requested a re-examination by a Panel AMS. However, the photographs relied upon by Mr Starr were clear, in focus and in colour. A re-examination would not have assisted the Panel any further."
The Appeal Panel summarised the parties' submissions and set out extracts from the TEMSKI and the Guidelines.
The Appeal Panel then continued: "47. The challenge made to the assessment detailed five points of contention. i. No explanation regarding the injured worker being conscious of the scars 48. The medico-legal referee retained by the respondent, Dr Chris Harrington, reported on 19 December 2018 that on examination the arthroscopic scars were seen over Mr Starr's shoulder and said: "…There are small arthroscopic scars which are barely noticeable with his dermal artwork around his shoulder girdle muscles." 49. We have not found any material that would establish that Mr Starr was conscious of his scars. In particular, Mr Starr made a statement on 3 April 2017 in which he did not mention his scars. We accordingly infer that Mr Starr is not conscious of his scars, indeed the scarring had been circled in texta in the colour photographs provided, as they were so mild that they were hard to distinguish from the tattoos. ii. There is obvious colour contrast 50. We note that all medical opinion is that the scars are amongst Mr Starr's tattoos. The submission that such colour contrast was "obvious" overlooks the highly coloured nature of the tattoos themselves. Those scars that are outside the tattooing are mild and barely distinguishable. Those that are within the tattoos are effectively disguised by the dermal artwork, to use Dr Harrington's expression. 51. As indicated, all of the photographs were in colour and were in focus and clear. We concur with the opinion of all of the medical practitioners, including Dr Bodel, that the appearance of the scarring is of a mild nature. Although Dr Bodel described them as being "mildly complicated", he did not elaborate on the nature of the complication, and made no mention of the relevant criteria. iii. Claimant able to locate (as was the AMS) 52. We note that the relevant criteria with regard to this aspect of the assessment is in relation to a nil % WPI: "Claimant is unable to easily locate the scars or skin condition". [Emphasis in original] 53. There is no evidence before us as to how easily the scarring was located, but it would be unsurprising when Mr Starr was a claimant seeking compensation for the purposes of the scar, if he had been able to locate it. Again, the failure by Mr Starr to mention his scars in his statement, we find to be a relevant factor in assessing these submissions. iv. No explanation as to trophic changes 54. In view of the fact that an AMS has a wide discretion given by the footnote and Chapter 14.8 in making his assessment, it is not necessary for an AMS to discuss each criterion in the category. The AMS is in the best position to make an assessment relying on his expertise and experience. There is no evidence before us that there were indeed minimal trophic changes or changes at all. The colour photographs do not reveal trophic changes and the submissions do not give any reason why an explanation might reasonably be expected. v. As per attached "mick scar 9" suture marks are clearly visible 55. This is a reference to one of the colour photographs before the AMS. Again, we note the difference between the two categories is that in a nil WPI category the suture marks are "barely visible" whereas in 1% WPI the suture marks "are visible". The relevance of that particular criteria has to be considered in the light of the discretionary power given to the AMS in the footnote to the Table and Chapter 14.8. 56. Mr Starr alleged that the AMS ought to have provided detailed reasons in accordance with Chapter 14.8 of the Guides. However such reasons are only required when the skin disorder does not meet the criteria of the impairment category. 57. We would observe that the AMS did not consider that the criteria for 1% WPI finding were present. His description of Mr Starr's surgical scars as being "minor arthroscopic" and being "barely visible" together with his reference to the TEMSKI scale were sufficient identification of the reasons why the AMS exercised his discretion in the way he did. 58. The respondent relied upon State of New South Wales (NSW Department of Education) v Kaur (2016) NSWSC 346 at 26 Campbell J said: "… It is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessments. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that descried [sic] by the High Court.... That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise ..." 59. For these reasons, the Appeal Panel has determined that the MAC issued on 19 February 2019 should be confirmed." [Footnotes omitted.]

Consideration

It was common ground that the decision of the Appeal Panel was the operative decision and that, had the Appeal Panel revoked the original certificate, it would have been obliged to re-examine the claimant before issuing a new certificate.
Mr Morgan, who appeared with Mr Beran for the claimant, did not make submissions with specific reference to the grounds set out in the summons. However, the employer, for whom Mr Blount appeared, responded both to the grounds in the summons and to the submissions. In these circumstances I propose to consider the submissions made by the claimant as well as the grounds. I am satisfied that this is required as a matter of fairness to the claimant and does not cause unfairness to the employer who has responded to the submissions, both in writing and orally.
I understood that the claimant no longer pressed his contention that the reconsideration by the AMS was the operative decision and was therefore amenable to review by this Court. If that contention were pressed it must be rejected for the reasons given by Basten JA (McColl JA and Handley AJA agreeing) in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [20].
Mr Morgan initially submitted that it was not open to the Appeal Panel to determine that it was not necessary to re-examine the claimant. However, he subsequently revised the submission to contend that the Appeal Panel's reasons for not re-examining the claimant were inadequate and that the refusal to re-examine the claimant amounted to a denial of procedural fairness. He submitted that the Appeal Panel would not be able to detect trophic changes from a photograph and would need to see the scars. Further, he submitted that procedural fairness required the claimant to be re-examined so that he could be asked whether he was conscious of his scars. Mr Morgan also contended that it was unfair of the Appeal Panel to take into account that the claimant had not mentioned the scars in his statement of 3 April 2017 because at that stage his only scars were on his right shoulder. Mr Morgan accepted that there was no material before the AMS which showed that the claimant was conscious of his scars. He contended that it was not open in these circumstances for the Appeal Panel to infer that the claimant was not conscious of his scars.
I am not persuaded that there is any deficiency in the reasons given by the Appeal Panel for its decision not to re-examine the claimant. I reject Mr Morgan's submission that the reasons were "pro forma". Although paragraphs 16 and 17 of the reasons are brief, they are sufficient to explain why the Appeal Panel did not see the need to examine the claimant for itself.
I reject the claimant's submission that the Appeal Panel was obliged to examine the claimant as a matter of procedural fairness. The present case is to be distinguished from a case such as Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 where the Appeal Panel "reached a different conclusion from that reached by the AMS and, in doing so, made significant adverse credibility findings in relation to the Worker" ([73] (Emmett AJA, Macfarlan JA agreeing)). In the present case, the Appeal Panel relied on the examination conducted by the AMS but did not reach a different conclusion. It drew an inference in favour of the claimant, namely, that he could locate the scars, and noted that he had not said (either in his statement or in the examination by the AMS) that he was conscious of them. Nor is the present a situation such as arose in Boyce v Allianz Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 where it was held that the failure by the State Insurance Regulatory Authority to inform the Panel that the claimant insisted on being re-examined resulted in practical injustice: [132]-[134] (Sackville AJA, Macfarlan JA agreeing). In the present case, the Appeal Panel knew that the claimant wanted to be re-examined but decided that it would not be assisted by any such re-examination.
Procedural fairness required that the claimant be given the opportunity to have his evidence and submissions taken into account. The claimant did not adduce any material to the AMS to the effect that he was conscious of his scars. In these circumstances, it was open to the AMS and the Appeal Panel to proceed on the basis that he was not (which fulfilled the criteria for 0%) or that there was no evidence that he was (therefore falling short of the criteria for 1%). Thus, the claimant had the opportunity but failed to avail himself of it. This does not amount to a denial of procedural fairness.
The claimant also submitted that the Appeal Panel's reasons for its decision were inadequate. I reject that submission. The extract from the reasons of the Appeal Panel set out above shows that it addressed all the relevant matters, being the five points of contention raised by the claimant in his challenge to the assessment. The Appeal Panel was confined in its review to the ground of appeal which the Registrar had allowed to proceed, namely that the certificate contained a demonstrable error.
To the extent to which Mr Morgan maintained the submission that the Appeal Panel had constructively failed to exercise its jurisdiction, I reject it. The reasons of the Appeal Panel demonstrate its application of the correct criteria in performing its review of the AMS's assessment.

Conclusion

The claimant has not raised any basis on which this Court could intervene to disturb the decision by the Appeal Panel.

Costs

The parties agreed that there was no reason why costs ought not follow the event in accordance with the usual rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

Orders

For the reasons set out above, I make the following orders: 1. Summons dismissed. 2. Order the plaintiff to pay the first defendant's costs of the proceedings.

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: 11 June 2020

At a glance

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