Strbac v QBE Insurance

Apthorpe v Repatriation Commission (1987) 77 ALR 42; (1987) 13 ALD 656 Attorney-General for New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 Broadbridge v Stammers (1987) 16 FCR 296; (1987) 14 ALD 469; (1987) 76 ALR 339 Bruce v Cole (1998) 45 NSWLR 163 Buck v Bavone (1976) 135 CLR 110 Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Craig v State of South Australia [19995] HCA 58; (1995) 184 CLR 163 Cross v McHugh [1974] 1 NSWLR 500 Gurleven v Minister for Immigration & Ethnic Affairs (Full Federal Court, 24 February 1984, unreported) Kirk v Industrial Relations Commission (NSW); [2010] HCA 1; (2010) 239 CLR 531 CASES CITED : Martin v Kelly [2008] NSWSC 577 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528; (1986) 68 ALR 441 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Abede v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 10 FCR 264; (1986) 64 ALR 466 Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; [2007] 235 ALR 609 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; (2005) 139 LGERA 296

TEXTS CITED : American Medicial Association Guides to the Evaluation of Permanent Impairment 5th ed WorkCover Guides for the Evaluation of Permanent Impairment 3rd ed (2009)

Bosko Strbac (Plaintiff) QBE Insurance (Australia) Limited (First Defendant) PARTIES : Dr Kalev Wilding in his capacity as an Approved Medical Specialist to the Workers Compensation Commission (Second Defendant) Medical Appeal Panel (Third Defendant) The Registrar of the Workers Compensation Commission (Fourth Defendant)

COUNSEL : B K Nolan (Plaintiff) M H Best (First Defendant)

NSW Compensation Lawyers (Plaintiff) SOLICITORS : Gillis Delany Lawyers (First Defendant) Submitting Appearance - I V Knight, Crown Solicitor (Second & Third Defendants)

LOWER COURT JURISDICTION : Workers Compensation Commission

LOWER COURT JUDICIAL OFFICER : Approved Medical Special; Appeal Panel

LOWER COURT DATE OF DECISION : 21 April 2009; 28 July 2009

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

2009/298040 BOSKO STRBAC v QBE INSURANCE (AUSTRALIA) LIMITED & 2 ORS

JUDGMENT (Judicial review - Registrar - AMS and Appeal Panel - WIMWCA) 1 HER HONOUR: By amended summons filed 12 October 2009, the plaintiff seeks, firstly, an order in the nature of certiorari setting aside the decision of the second and third defendants in WCC matter number M1 000545/09 dated 21 April 2009 and 28 July 2009 respectively on the basis that the decision was vitiated by jurisdictional error and was of no effect; and second, an order in the nature of mandamus or, alternatively, an order pursuant to s 65 of the Supreme Court Act 1970 that the second defendant exercise his power according to law. The plaintiff relied on the affidavit of Shaun Kerrigan dated 20 August 2009. 2 The plaintiff is Bosko Strbac ("Mr Strbac"). The first defendant is QBE Insurance (Australia) Limited ("QBE"). The second defendant is Dr Kalev Wilding in his capacity as an Approved Medical Specialist ("the AMS") to the Workers Compensation Commission. The third defendant is the Medical Appeal Panel ("the Appeal Panel"). The second and third defendants have filed submitting appearances. The fourth defendant is the Registrar of the Workers Compensation Commission ("the Registrar").

Grounds of appeal 3 Mr Strbac seeks judicial review of the decision of the second and third defendants dated 21 April 2009 and 28 July 2009 respectively on the basis that, firstly, the decisions were infected by error going to the exercise of their jurisdiction and/or error on the face of the record; second, the second defendant was under a duty to make further investigations; and third, that the third defendants failed to conduct its own examination by relying on the facts found by the second defendant, failed to cure the errors of the decision of the second defendant and by affirming the decision of the second defendant affirmed a decision that was no decision at all.

Judicial review 4 This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970. 5 In Martin v Kelly [2008] NSWSC 577 Johnson J, at [13]-[23], made some helpful remarks on the confines of judicial review. I respectfully adopt and repeat them here. They are: "13 The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

14 This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44].

15 The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40-41.

16 The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25]. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

17 Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.

19 In Craig v South Australia , Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals: 'If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'

20 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia , and continued at 351 [82]: 'Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.' 21 Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79].

22 In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 41.

23 Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-119; Bruce v Cole (1998) 45 NSWLR 163 at 183-184. …" 6 Recently, in Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 the High Court discussed jurisdictional error in Australia and considered Craig v South Australia (1994-1995) 184 CLR 163 at [66] - [68]. The proceedings in the Workers Compensation Commission 7 On 24 May 2006, Mr Strbac sustained injuries to his lower back, neck left knee and shoulder when on his way home from work he slipped on the gutter of a path and fell. On 27 January 2009, Mr Strbac applied to the Workers Compensation Commission ("the WCC") to resolve a dispute as to the award of permanent impairment compensation pursuant to s 65 of the Workplace Injury Management and Workers Compensation Act 1998 ("the Act"). These proceedings concerned a dispute regarding the permanent impairment of Mr Strbac's lumbosacral spine ("lumbar spine"), neck ("cervical spine"), lower left extremity and right upper extremity. The matter was referred to the AMS for assessment of permanent impairment in relation the lumbar spine; right upper extremity and lower left extremity. Challenge is only made to the determination in relation to the lumbar spine. Mr Strbac filed an application to appeal against the decision of the AMS. On 28 July 2009, the Appeal Panel affirmed the decision of the AMS.

The relevant provisions of the Act 8 For this application for judicial review the relevant sections of the Act are s 324, s 325 and s 328. 9 Section 324 of the Act sets out the powers of an AMS when carrying out the role of assessment. Counsel for Mr Strbac submitted that the AMS should have undertaken further investigations in accordance with s 324. Section 324 reads: "324 Powers of approved medical specialist on assessment

(1) The approved medical specialist assessing a medical dispute may: (a) consult with any medical practitioner or other health care professional who is treating or has treated the worker, and

(b) call for the production of such medical records (including x-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and

(c) require the worker to submit himself or herself for examination by the approved medical specialist." 10 Section 325 of the Act sets out what is to be contained in the medical assessment certificate. It reads: "325 Medical assessment certificate

(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, and

(c) set out the approved medical specialist's reasons for that assessment, and

(d) set out the facts on which that assessment is based. …" 11 And s 328 refers an appeal to the Appeal Panel. It reads: "328 Procedure on appeal

(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) … 12 I shall refer to these sections in more detail later in this judgment. Duty to give reasons - the AMS and Appeal Panel 13 Mr Strbac's counsel submitted that the statutory duty incumbent on the AMS was that he conduct his assessment exhaustively so as to find incontrovertibly that none of the indicia necessary to appropriate DRE Category II was present. Therefore, according to counsel for Mr Strbac, the AMS should have made further and more accurate investigations into the relevant differentiators such as nonverifiable radicular symptoms and asymmetry of spinal motion. 14 Counsel for Mr Strbac also submitted that the AMS did not make objective reproducible findings as to asymmetry and that he did not exhaust the indicia relevant to a history of radiating pain such as testing for strength, tone and reflexes in the lower limbs. This, according to Mr Strbac, has led to the AMS failing to complete his jurisdictional task and failing to provide sufficient reasons and this amounted to a breach of procedural fairness or a failure to take into account considerations made mandatory by the Act. According to Mr Strbac's counsel this error also constitutes an error on the face of the record and/or one going to the AMS's jurisdiction by reason of a failure to apply the correct test for the appropriation of a Diagnosis Related Estimate ("DRE") category to an injury to the cervical spine under the Act. 15 The duty to give reasons arises by implication from the statute not from the common law: see Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 at [117] - [118]. So far as the AMS is concerned, s 325 sets out what is to be contained in the certificate. The reasons of the AMS should set out details of the matters referred for assessment; the reasons for that assessment, and set out the facts on which that assessment is based; and certify as to the assessment with respect to those matters. 16 In so far as the Appeal Panel is concerned, Basten JA in Campbelltown City Council v Vegan stated that it should be accepted that the Appeal Panel was subject to an implied statutory obligation to give reasons and that conclusion follows from the analysis of the statutory context and from an understanding of the nature of the functions imposed on the Appeal Panel. The Appeal Panel has a statutory duty to either confirm the decision of the AMS or revoke the certificate and issue a new one. 17 Basten JA in Campbelltown City Council v Vegan continued, at [121] - [122]: "[121] Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, 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. [122] … to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialist in reaching a professional judgment. …" [citations omitted]

See also Bojko v ICM Property Services Pty Ltd & Ors [2009] NSWCA 175 at [36]. 18 Before I turn to the reasons of the AMS and the Appeal Panel, it is necessary to consider the role of the WorkCover Guides for the Evaluation of Permanent Impairment 3rd ed (2009) ("WorkCover Guides"). Guidelines in general have varying legal effects. Some guidelines amount to delegated legislation and are inflexible. Others exhibit no legislative intention to create precise or inflexible rules: see Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 and Apthorpe v Repatriation Commission (1987) 77 ALR 412 that are instructive.

The Guides 19 There are two types of guides, the WorkCover Guides and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition ("AMA5"). 20 The WorkCover Guides are issued pursuant to s 376 of the Act for the purpose of assessing the degree of permanent impairment that arises from a work related injury or condition in accordance with s 322(1) of the 1998 Act. The first edition of the WorkCover Guides was issued in December 2001. The focus of the workers compensation legislation is injury management which aims to assist the injured worker to recover and return to work. When a worker sustains a permanent impairment, however, these Guides are intended to ensure an objective, fair and consistent method for evaluating the level of permanent impairment. This current WorkCover Guides was issued on 6 February 2009. Section 376 refers to the issue of guidelines but is silent as to the effect these guidelines have.

21 The introduction to the WorkCover Guides provides at Clauses 1.3 and 1.4: "1.3 The WorkCover Guides adopt AMA5 in most cases. Where there is any deviation, the difference is defined in the WorkCover Guides . Where differences exist, the WorkCover Guides are to be used as the modifying document. The procedures contained in the WorkCover Guides are to prevail if there is any inconsistency with AMA5. 1.4 The WorkCover Guides are to be used wherever there is a need to establish the level of permanent impairment that results from a work-related injury or disease. The assessment of permanent impairment is conducted for the purposes of awarding a lump sum payment under the statutory benefits of the NSW Workers Compensation Scheme and also for determining access to Common Law, domestic assistance and commutation of claims." 22 The applicability of the WorkCover Guides is covered in Clause 1.13. It reads: "1.13 The WorkCover Guides are meant to assist suitably qualified and experienced medical specialists to assess level of permanent impairment. They are not meant to provide a "recipe approach" to the assessment of permanent impairment. Medical specialists are required to exercise their clinical judgement in determining diagnosis, whether the original condition has resulted in an impairment and whether the impairment is permanent. The degree of permanent impairment that results from the injury must be determined using the tables, graphs and methodology given in the WorkCover Guides and AMA5. Section 1.5 of Chapter 1 of the AMA5 (p 10) applies to the conduct of assessments and expands on this concept." Guidelines in relation to further investigations 23 So far as the ordering of further investigations are concerned, Clauses 1.25, 1.26, 1.47 and 1.48 are relevant. Clause 1.25 of the WorkCover Guides states that an AMS should be provided with all relevant medical and allied health information, including results of all clinical investigations related to the injury in question. Clause 1.26 indicates the information and investigations that are required to arrive at a diagnosis and to measure permanent impairment and states that the AMS must apply the approach outlined in the WorkCover Guides. Referrers must consult these documents to gain an understanding of the information that should be provided to the AMS in order to conduct a comprehensive evaluation. 24 Clauses 1.47 and 1.48 of the WorkCover Guides refer to the ordering of further investigations. Clause 1.47 provides that as a general principle, the AMS should not order additional radiographic or other investigations purely for the purpose of conducting an assessment of permanent impairment. Clause 1.48 provides that if the investigations previously undertaken are not as required by the WorkCover Guides or are inadequate for a proper assessment to be made, the medical assessor should consider the value of proceeding with the evaluation of permanent impairment without adequate investigations. 25 I shall refer to the specific guides in relation to the lumbar spine as set out in AMA5 later in this judgment. The AMS's reasons for determination dated 21 April 2009 26 So far as Mr Strbac's lumbar spine is concerned, the AMS had two reports of Dr Ellis both dated 2 September 2008 and a report of Dr Henry Lam, a pain medicine specialist, dated 4 February 2008 together with Mr Strbac's statement submitted by Mr Strbac's solicitors. QBE submitted reports of Dr Richard Powell, an orthopaedic specialist, dated 5 December 2008 and Mr Strbac's treating general practitioner Dr Peter Tjeuw dated 8 October 2008. 27 In addition, the AMS also had an MRI scan of the lumbar spine performed by Dr Sachinwalla dated 12 May 2009. This report relevantly stated: "Disc desiccation is present throughout the region with some loss of intervertebral disc space height at the L1/2 and L2/3 levels in particular. At the L2/3 level, a broadbased disc bulge is visible of a small profile with no encroachment on the adjacent neural structures. Some degenerative facet joint disease is noted at the L4/5 level bilaterally. This is present to a mild degree. There is no evidence to suggest any significant structure encroachment on the central spinal canal or associated nerve roots throughout the region. The neural exit foraminae appear to outline normally. Comment: There is some loss of intervertebral disc space height at the L2/3 level with a broad based central disc bulge, but no encroachment on adjacent neural structures. Disc desiccation is present thought the lumbosacral region. Some degenerative facet joint disease is noted in particular at the L4/5 level, this is only present to a mild degree. No other significant structural changes is seen." 28 Dr Ellis reported: "As a result of the fall on his way home from work on 24 May 2006, Mr Strbac has suffered a fractured left patella, musculo-ligamentous contusion, aggravation of degenerative change in his neck and back, a traumatic capsulitis of this right shoulder. His back was further aggravated by the need for a walking stick and altered gait and weight balance consequent on the left knee injury. … Consequent on the back injury, there are secondary effects in both lower limbs, referred pain and neurological deficit, particularly affecting the left leg. Radiological investigation has been referred to above. There are extensive degenerative changes in the lumbar spine which have been aggravated by the fall. There was previous back injuries, work related, and motor vehicle accident injuries referred to above from which she (sic) had recovered, and he was working full time in physically demanding work as a builder's labourer prior to the accident on the 24 th March 2006, without difficulty. …" 29 The AMS took a history of the accident from Mr Strbac as follows: "On 24/5/06 Mr Strbac was on his way home from work and had a lunch bag on his left shoulder. As he crossed a road he stepped around rubble on the road, but as he did so he lost his balance and fell forwards. He struck the road with his flexed left knee and he also had placed out his right hand to try and cushion the fall, (his outstretched right hand struck the road). Immediately following this he experienced pain in his left knee and he noticed aching in the posterior aspect of his right shoulder. He also experienced minor discomfort in his lower back. …" 30 The AMS referred to Mr Strbac's previous accidents, injuries and condition as follows: "There was a past history of accidents. I have referred to the letter from NSW Compensation Lawyers … dated 25/2/09 for the past injuries. I confirmed these injuries with Mr Strbac. … In 1985 he injured his back and was off work for one year. He received a settlement for his injury. … In 1997 he fell down an uncovered hole. Following this he experience low back pain and he received a settlement for this injury. … In 2000 he slipped and he experienced back pain and pain down the left leg and received a settlement for this injury. Mr Strbac said that he had passed a medical examination prior to commencing employment with Trazmet Pty Ltd. He also had a further medical after a year of employment and he passed this medical as well. 31 As a result of this latest accident Mr Strbac underwent operative surgery to his left knee. Subsequent to the operation on 7 August 2007, he began to use an elbow crutch in his right hand. In as far as the use of the elbow crutch was relevant to Mr Strbac's lumbar spine, the AMS recorded the following history: "Prior to using the elbow crutch he said he was experiencing intermittent discomfort in his lower back which occurred approximately once or twice a day and lasted for 5-10 minutes. After he had been using the elbow crutch the pain in his lower back increased, although it was still intermittent. He said that his back ached "whenever he moved" and also occurred when he sat. He intermittently experienced "shooting pain" down the right leg. He was unable to locate where the pain radiated down the leg but said "it just goes down the leg to the heel". The symptoms in his lower back were erased by rest and by lying down. He also said that the pain down the right leg occurred when he was standing or walking." 32 The AMS continued: "He complained that he experienced intermittent low back pain which radiated into the right buttock and down the right leg to the heel. He was unable to localise the pathway of the pain to any radicular pattern. When asked what aggravated his symptoms he replied "changes in the weather and bending and lifting". He also complained that his back was stiff and that he had difficulty putting on his shoes and socks." 33 The AMS conducted a physical examination of Mr Strbac's lumbar spine and made the following findings: "Examination of the lumbar spine revealed tenderness to very light touch in the lower lumbar spine. There was no paravertebral muscle guarding. Thoracolumbar movements were as follows:- Extension was diminished. As far as forward flexion was concerned he could place his fingertips to the level of the patella. Lateral flexion to both sides was markedly decreased symmetrically. Rotation to both sides was markedly decreased symmetrically. Sitting straight leg raise was 90 degrees on both sides. Straight leg raise on both sides was 40 degrees and at this level was actively resisted and he complained that he experienced low back pain. The stretch tests were negative. There were no neurological deficits in the lower limbs. 34 The AMS referred to the MRI scan, dated 12 May 2008, as reproduced earlier in this judgment, and the findings by Dr Sachinwalla in relation to the lumbar spine. 35 Under the heading "Summary" the AMS diagnosed Mr Strbac as suffering "… [a] musculoligamentous strain of the lumbar spine and aggravation of pre-existing degenerative change in the lumbar spine. …" 36 Under the heading of "Evaluation of Permanent Impairment" the AMS answered the following question: "… (e) Is any proportion of the loss of efficient use or impairment or whole person impairment, due to a pre-existing injury, abnormality or condition? Yes (f) If so, please indicate which body part is affected by the pre-existing injury, abnormality or condition. Lumbar spine: pre-existing degenerative change . Left knee: pre-existing degenerative change. " 37 Under the heading "Reasons for Assessment", the AMS stated: "a. my opinion and assessment of … whole person impairment WPI due to the lumbar injury is assessed as follows. There is no observed muscle guarding in the lumbar spine. The loss of range of motion is symmetric and therefore does not qualify as a DRE Lumbar Category II. The pain radiating down the left leg does not have a radicular nature. It does not follow a radicular pattern and therefore also cannot be classified as a DRE Lumbar Category II. There is no neurological impairment in the lower limbs. This results in an assessment as a DRE Lumbar Category I resulting in a 0% WPI (Reference - Table 15-3, Chapter 15, Pg 384 in AMA5). …" 38 The AMS answered the following question with an explanation: "c. my brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs I have noted the assessment of Dr M Ellis, a physician in his report dated 2/9/08. He has assessed the lumbosacral spine injury as a DRE Category III. I do not consider that the injury qualifies as a DRE Lumbar Category III. Reference to Table 15-3, Chapter 15, Pg 384 in AMA 5 indicates that there must be significant signs of radiculopathy, loss of muscle strength or measured unilateral atrophy. There is no evidence of a radiculopathy. Although there is evidence of wasting in the left lower limb this wasting is due to the injury to the left knee and furthermore the pain which he describes as radiating down his leg is relating to the right leg and the pain is also not of a radicular nature or pattern. It is non specific and there is no history or a herniated disc. Therefore the lumbar symptoms cannot be classified as a DRE Lumbar Category III." 39 AMA5, page 384, Table 15-3 relevantly reads: " DRE Lumbar Category I 0% Impairment of the Whole Person No significant clinical findings, no observed muscle guarding or spasm, no documentable neurologic impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness; no fractures.

DRE lumbar category II 5% to 8% Impairment of the Whole Person Clinical history and examination findings are compatible with the specific injury; findings, may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy." 40 Two definitions of clinical findings used to place an individual in a DRE category are relevant to Mr Strbac's submissions. They are asymmetry of spinal motion and nonverifiable radicular root pain. 41 Asymmetric loss of range of motion is defined at page 382 of AMA5 under the heading "Definition of clinical findings used to place an individual within a DRE Category" as follows: "Asymmetry of Spinal Motion Asymmetric motion of the spine in one of the three principle planes is sometimes caused by muscle spasm or guarding. That is, if an individual attempts to flex the spine, he or she is unable to do so moving symmetrically; rather, the head or trunk leans to one side. To qualify as true asymmetric motion, the findings must be reproducible and consistent and the examiner must be convinced that the individual is cooperative and giving full effect." 42 Nonverifiable radicular root pain is defined as: "Nonverifiable pain is pain that is in the distribution of a nerve root but has no identifiable origin; ie there are no objective physical, imaging, or electromyographic findings. For dermatomal distributions, see Figures 15-1 and 15-2." 43 Counsel for Mr Strbac submitted that the AMS should have made further and more accurate investigations into the relevant differentiators such as nonverifiable radicular symptoms and asymmetry of spinal motion. Counsel for Mr Strbac also submitted that the AMS did not make objective reproducible findings as to asymmetry and that he did not exhaust the indicia relevant to a history of radiating pain such as testing for strength, tone and reflexes in the lower limbs. Counsel referred to the MRI scan conducted by Dr Sachinwalla and asserted that the AMS, in his clinical findings and examination of Mr Strbac, observed decreased range of movement on all planes. According to Mr Strbac's counsel this assessment of the range of movement was not the subject of measurement and the clinical history and examination findings were not consistent or compatible with the injury detected in the MRI scan. 44 Counsel submitted that it was obvious that there was readily available to the AMS other factual material, including but not limited to, the findings of accurate measurements of the range of movement through the lumbar plane, which were centrally relevant and which were likely to be of critical importance in relation to a central issue for determination, and which were not obtained. The failure to pursue this assessment according to Mr Strbac was such as to establish that the AMS unreasonably failed to ascertain relevant facts known to be readily available to him. 45 QBE submitted that the AMS and the Appeal Panel had extremely limited investigative roles as constrained by s 324 and s 328 of the Act and the WorkCover Guides. Counsel for QBE asserted that the AMS did conduct testing for strength, sensation and reflexes, and recorded Mr Strbac's ranges of motion through the three lumbar planes, extension, flexion and rotation. Thus, the AMS complied with his statutory duty to explore his reasoning process, which required him to set out the facts on which his assessment was based. According to QBE, the result is that there is no error of law demonstrated on the face of the record requiring the intervention of this Court. 46 A review conducted by this Court does not involve a merits review. Nor should this Court construe the decision of the AMS with an eye keenly attuned to the perception of error. There were medical reports from both parties before the AMS. Some had commented on the pre-existing degenerative change. The AMS conducted his own examination of Mr Strbac and formed his own opinion as to Mr Strbac's degree of permanent impairment. The AMS considered the role that the pre-existing degenerative change played in the permanent impairment of Mr Strbac's lumbar spine. 47 The AMS determined that there was no observed muscle guarding in the lumbar region and the loss of range of motion was symmetric and therefore did not qualify as a DRE Lumbar Category II. The AMS also commented that the pain radiating down Mr Strbac's left leg did not have a radicular nature, nor did it follow a radicular pattern so it could not be classified as a DRE Lumbar Category II. The AMS also made a finding that there was no neurological impairment in the lower limbs. Hence, the AMS determined that the permanent impairment assessment was a DRE Lumbar Category I resulting in a 0% WPI. 48 The AMS may require the worker, Mr Strbac, to submit himself for examination pursuant to s 324(c). The AMS could have chosen to consult with a medical practitioner who had treated Mr Strbac and he could have called for the production of medical records including x-rays if he considered it necessary or desirable (s 324(a) and (b)). He chose not to. Had the medical reports submitted to the AMS referred to other reports that were not available to him, he may have requested them to be produced. But there were no other reports. The AMS acted in accordance with s 324.

49 In so far as the guides are concerned, the AMS has taken into account the MRI scan and report by Dr Sachinwalla. Clause 1.47 provides that the AMS should not order additional radiographic or other investigations purely for the purposes of conducting an assessment of permanent impairment. If, in the exercise of the AMS's clinical judgment, he determined that the investigations previously undertaken were inadequate, he could determine not to proceed with the determination. In my view, the AMS did not err in his approach to making his determination. The AMS set out details of the matter referred for assessment, the facts upon which his assessment was based, the reasons for that assessment and made an assessment of the permanent impairment of Mr Strbac's lumbar spine as being 0% as it fell within DRE Category I. 50 The AMS provided his reasons in accordance with s 325. The AMS was not obliged to make further investigations into the relevant differentiator as nonverifiable symptoms and asymmetry of spinal motion.

Determination of Appeal Panel dated 28 July 2009 51 An appeal against a medical assessment is heard by an Appeal Panel constituted by two approved medical specialist and one Arbitrator, chosen by the Registrar of the WCC. Section 328(2) of the Act provides that the appeal is to be by way of review of the original medical assessment. The WorkCover Guides provide for the procedure on an appeal. 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. Counsel for Mr Strbac submitted that because the Appeal Panel did not conduct its own assessment of Mr Strbac, combined with its failure to find an error in the decision of the AMS, it has affirmed no decision at all. QBE submitted that as the AMS's decision was free from error of law on the face of the record, the Appeal Panel acted correctly. 52 The Registrar referred the appeal on the basis that on the face of the application two grounds had been made out. They were that the assessment was made on the basis of incorrect criteria or that the medical assessment certificate contained a demonstrable error: see s 327(3)(c) and (d). 53 The determination of the Appeal Panel dated 28 July 2009 referred to the AMS report on examination (reproduced earlier) and continued, at [25] - [29]: "25. That assessment requires a determination of whether ranges of motion are asymmetric or not. In Mr Strbac's case the AMS reported that: 'Examination of the lumbar spine revealed tenderness to very light touch in the lower lumbar spine. There was no paravertebral muscle guarding. Thoracolumbar movements were as follows: Extension was diminished. As far as forward flexion was concerned he could place his fingertips to the level of the patella. Lateral flexion to both sides was markedly decreased symmetrically. Rotation to both sides was markedly decreased symmetrically. Sitting straight leg raise was 90 degrees on both sides. Straight leg raise on both sides was 40 degrees and at this level was actively resisted and he complained that he experienced low back pain. The stretch tests were negative. There was no neurological deficit in the lower limbs.' It is apparent that the AMS found no asymmetric range or motion: the precise measurements of those ranges are not required or necessary to make that determination. 26. Mr Strbac is correct that the AMS made no reference to muscle spasm. He did however observe that there was 'no paravertebral muscle guarding.' The point made by Mr Strbac is semantic rather than of substance. 27. The radiating pains Mr Strbac complained of did not follow a radicular pattern and therefore could not be classified as non verifiable radicular complaints (see the definition of non verifiable radicular nerve root pain at page 382 of AMA 5). 28. Thus it can be seen that on examination the AMS found: No muscle guarding or spasm; No documentable neurological impairment. No asymmetric loss of range of motion. Non verifiable radicular complaints. No documented neurological impairment. No fractures or documented alteration in structural integrity. 29. These findings compelled the conclusion that Mr Strbac's lumbar spine should be classified at DRE Lumbar Category 1, with a 0% whole person impairment. This is the conclusion the AMS reached, having applied the correct criteria. There is no demonstrable error in his reasoning." 54 The Appeal Panel, after reviewing the AMS's other findings, found no application of incorrect criteria or demonstrable error in the determination. Hence, the Appeal Panel affirmed the medical assessment certificate. 55 The Appeal Panel gave adequate reasons for affirming the decision of the AMS. It addressed the issues raised by Mr Strbac and agreed that the AMS made no reference to muscle spasm. However, the Appeal Panel commented that as the AMS did observe that there was "no paravertebral muscle guarding", the point was semantic rather than of substance. So far as complaint was made about nonverifiable radicular root pain, the Appeal Panel stated that the radiating pains that Mr Strbac complained of did not follow a radicular pattern. It was only if the pain followed a radicular pattern that he could have been classified as DRE Category II. 56 The Appeal Panel set out the findings made by the AMS, directed its attention to the submissions made by Mr Strbac and gave reasons as to why it did not agree. 57 There was no error on the face of the record nor was there jurisdictional error in the determination of the AMS. The Appeal Panel in affirming the determination of the AMS did not make an error on the face of the record. Nor did it make jurisdictional error. 58 The application for judicial review fails. The amended summons filed 12 October 2009 is dismissed. 59 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendant's costs as agreed or assessed. The court orders:

(2) The amended summons filed 12 October 2009 is dismissed.

(3) The plaintiff is to pay the first defendant's costs as agreed or assessed. **********

30/06/2010 - Date of Lower Court decision amended from 28 July 2002 to 28 July 2009Addition of First Defendant's solicitors Gillis Delaney Lawyers - Paragraph(s) Coversheet

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