Treverrow v Registrar, WCCC

" Movement Range %Upper extremity impairment Flexion 150° 2 Extension 50° 0 Abduction 150° 1 Adduction 20° 1 Internal rotation 60° 2 External rotation 60° 0° Total 6%

(6% upper extremity impairment equates with 4% whole person impairment) … As noted Ms Treverrow feels she also injured her left shoulder at the time of her fall, in October 2001. In my opinion the symptoms in her left shoulder would not have been significant and would have improved fairly rapidly and the reasons for this are gone into in detail in Item 8g. In my opinion the present symptoms in her left shoulder would have occurred after July 2005." 16 At Item [8(g)] the AMS elaborated: "EVALUATION OF PERMANENT IMPAIRMENT (g) … As noted Ms Treverrow feels she injured her left shoulder region at the time of her fall October 2001. She also feels she mentioned this to the initial doctor she saw in hospital and to numerous doctors thereafter. However, I have read through all the medical reports forwarded to me, and it would seem that the first report of any problems with the shoulder region is in November 2005.

Of particular importance is the report of Dr Gabor Major, the Director of the Dept Rheumatology at the Royal Newcastle Hospital. As noted Ms Treverrow seems to recall, being admitted to hospital under the care of Dr Major for problems with her left shoulder region. However, on referring to Dr Major's report of 19 July 2005, he notes that she presented with pain around her right sternoclavicular joint which interfered with her ability to lie on her side and lift her arm. She was also experiencing milder symptoms in the sternoclavicular joint on the left side. Specifically there is no mention of a discomfort in the shoulder region itself.

Later in the report Dr Major notes `she has not had any other joint problems'.

It is worth pointing out that Dr Major is a rheumatologist, and when investigating patients for undiagnosed sternoclavicular symptoms, one of the key factors to be taken into consideration would be problems with any other joints. Dr Major would therefore specifically have enquired with regard to problems with any other joints and as noted he notes that there has not been any other joint problems. This was in July 2005, and onew (sic) can be quite confident then, that Ms Treverrow did not have left shoulder symptoms that time, and in my opinion then ongoing problems with the left shoulder region would have developed subsequent to July 2005.

In my opinion then, any injury to the left shoulder region at the time of the accident on 10 October 2001 would have settled down.

As instructed in the template, any impairment which is felt to have occurred subsequent to the injury under consideration, needs to be subtracted in 8g, and not reflected in Table 1 or Table 2. These Tables therefore reflect a 0% permanent impairment/WPI in relation to the left shoulder. I would certainly accept that there might well have been an injury at the time of her original fall in October 2001 to her left shoulder, but in my opinion and for the reasons given, these symptoms would have settled down." 17 On page 10 of the MAC under the heading "Reasons for Assessment" the AMS outlined the consequences of his findings and stated: "a. my opinion and assessment of whole person impairment …

As far as the left upper extremity is concerned, Ms Treverrow is entitled to a 4% whole person impairment, but the Table does not allow for deductions to be made for injuries or incidents after the subject injury, and this amount of 4% whole person impairment has been deducted under Item 8g as indicated in the template. I have therefore reflected a 0% whole person impairment in relation to the left upper extremity.

In Table 1, I have suggested a 25% permanent loss of efficient use of her right arm at or above the elbow as a result of her injury. Similarly, I have suggested a 0% permanent loss of efficient use of the left arm at or above the elbow as a result of her injury on 10 October 2001.

Reference text: AMA Guides to the Evaluation of Permanent Impairment, 5th Edition:

(1) page 472, figure 16-34 and page 474, figure 16-37 (2) page 506, table 16-27 (3) page 439, table 16-3" 18 Table 1 referred to by AMS in the MAC is as follows: Table 1 - Assessment in accordance with the Table of Disabilities for injuries received before 1 January 2002 Body Part (describe the body part as per Table of Disabilities) Date of Injury Total amount of permanent % loss of efficient use or impairment Proportion of permanent impairment due to pre-existing injury, abnormality or condition Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4) e. g. " right leg at or - above the knee Right arm at or above the elbow 10/10/01 25% nil 25% Left arm at or above the elbow 10/10/01 0% not applicable 0%

19 Table 2 referred to by AMS in the MAC is as follows: Table 2 - Assessment in accordance with AMA5 and WorkCover Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002 Body Part or system Date of Injury Chapter, page and paragraph number in WorkCover Guides Chapter, page, paragraph, figure and table numbers in AMA5 Guides % WPI % WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality Sub-total/s % WPI (after any deductions in column 6) Right upper extremity 10/10/01 Chapter 2 Pages 13 & 14 Chapter 16 Pages 433 to 521 13% Nil 13% Left upper extremity 10/10/01 Chapter 2 Pages 13 & 14 Chapter 16 Pages 433 to 521 0% not applicable 0% 13% Total % WPI (the Combined Table values of all sub-totals)

20 On 23 April 2007 Mrs Treverrow filed a Notice to Appeal Against the Decision of Approved Medical Specialist on the grounds that the AMS used incorrect criteria in making his assessment (see s 327(3)(c) of the 1998 Act) or in the alternative that the MAC contains a demonstrable error (s 327(3)(d)). On 2 May 2007 Chubb filed a Notice of Opposition to the Appeal Against the Decision of the Approved Medical Specialist.

Appeal against medical assessment 21 Section 327(3) and (4) of the 1998 Act read: "(3) The grounds for appeal under this section are any of the following grounds: (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,

(b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment),

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out." 22 The plaintiff's grounds of appeal were under s 327(3)(c) and (d), namely the assessment was made on the basis of incorrect criteria and/or the medical assessment certificate contains a demonstrable error.

The role of the Registrar and the reasons of the Delegate 23 On 19 June 2007 Jason Cabarrus a Delegate of the Registrar of the Workers Compensation Commission refused Mrs Treverrow leave to appeal against the MAC issued by the AMS. 24 The Delegate in his reasons dated 19 June 2007 stated: "3. Section 327(4) of the Act provides that an appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and submissions made to the Registrar, at least one of the grounds of appeal as specified in section 327(3) of the Act has been made out.

After considering the application and submissions made, the Registrar is not satisfied that a least one of the grounds of appeal as specified in section 327(3) has been made out.

The Appellant submits that the AMS has made a determination as to causation that he is not entitled to make, and, has failed to assess the permanent loss of efficient use of the left arm at or above the elbow as a result of the injury on 10 October 2001.

The medical assessment process requires the AMS to assess "the degree of permanent impairment as a result of an injury" (q.v. section 319, section 326(1)(a) of the Act). The AMS has accepted that the injury referred for assessment (to the left arm at or above the elbow/left upper extremity) did occur, and has assessed the degree of permanent impairment as a result of that injury.

The AMS found that there is no permanent impairment as a result of that injury, and provided detailed reasons for this finding - see page 6 of the MAC. The AMS examined the medical history and assessed permanent impairment with reference to the medical evidence, before him, which indicated that the symptoms from the injury to the left shoulder would have "settled down", and that "ongoing problems with the left shoulder reason would have developed subsequent to July 2005". The finding of 0% permanent impairment as a result of the injury on 10 October 2001 was open to the AMS based on that evidence

On the face of the application and submissions made, I am not satisfied that a ground of appeal has been made out on this basis. The AMS has no made a determination on causation. The AMS has accepted that an injury (as caused by the Applicant's employment with the respondent) occurred to the relevant body part on the date specified. He then assessed the degree of permanent impairment as a result of that injury, with reference to the medical evidence. It appears that the AMS has understood and properly performed the task required of him by the Act.

As the Registrar is not satisfied that at least one of the grounds of appeal as specified in s 327(3) has been made out, the appeal is not to proceed. 25 In Pitsonis v Registrar of the Workers Compensation Commission, the Court of Appeal cautioned (at [31]) that the reasons of an administrative decision-maker (especially one who is not a judge) are not to be "construed minutely and fine with an eye keenly attuned to the perception of error" (see Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 271-2, approving Collector of Customs v Pozzolanic (1993) FCR 280 at 287). A court should exercise restraint lest it mistakes looseness in language for errors of substance." 26 Section 322 provides that an AMS in assessing a claimant's degree of permanent impairment must only apply the relevant WorkCover Guidelines. Thus, if s 322 does not apply, the applicable test is the loss of efficient use criteria outlined in the Table of Disabilities: Campbelltown City Council v Vegan [2004] NSWSC 1129 at [62] per Wood CJ at CL. 27 As the injury occurred before 1 January 2002, the applicable assessment criteria by virtue of r 223 was the loss of efficient use measurements outlined in the Table of Disabilities.

Mahenthirarasa v State Rail Authority of New South Wales 28 It is convenient that I now refer to the recent Court of Appeal decision Mahenthirarasa v State Rail Authority which is instructive. In Mahenthirarasa v State Rail Authority, the AMS stated that in relation to the first surgery on Mr Mahenthirarasa's left knee the MRI showed a chronic tear of the anterior cruciate which was not caused by the fall and there was also evidence of chronic articular damage. According to the AMS, the most likely sequence of events is that the knee gave way because of the anterior cruciate deficiency resulting in a blow to the front of the knee and a tear of the medial meniscus as well as a more minor tear of the lateral meniscus. The AMS concluded that the injury was an aggravation and acceleration of a pre-existing condition. 29 In Mahenthirarasa v State Rail Authority, the main complaint to the Delegate was that, although the tests for the two forms of assessment, namely under s 68A of the Workers Compensation Act and s 323 of the1998 Act were substantially identical, the results provided in the two tables differed significantly. 30 In Mahenthirarasa v State Rail Authority, Dr Breit assessed the total percentage of permanent loss attributable to the injury using s 68A of the Workers Compensation Act 1987 for injuries received before 1 January 2002 and s 323 of the 1998 Act for injuries received on or after this date. The assessment process involved ascertaining the proportionate loss due to pre-existing injury. Even though the forms of assessment under both sections were substantially identical, the results differed: the proportion of loss ascribed to pre-existing injury was 75% under s 68A and 10/11ths under s 323. 31 Mr Mahenthirarasa was dissatisfied with the certificate and appealed to the Registrar of the Workers Compensation Commission on the grounds that the medical assessment was made on the basis of "incorrect criteria" and the certificate contained a "demonstrable error", pursuant to ss 327(1), 327(3)(c) and (d) and 327(4) of the 1998 Act. On 14 July 2005, a delegate of the Registrar decided that the appeal should not proceed because he was not satisfied that any of the specified grounds "existed" (s 327(4)). On 12 September 2005, Mr Mahenthirarasa sought judicial review of the Registrar's decision. Malpass AsJ dismissed the application. Mr Mahenthirarasa appealed to the Court of Appeal. 32 The New South Wales Court of Appeal in Mahenthirarasa v State Rail Authority, held that firstly, the Delegate did not address the demonstrable error in the certificate, notwithstanding that it had been described and relied upon by Mr Mahenthirarasa. When the delegate provided reasons, and did not refer to this point, it should be inferred that the delegate either overlooked the ground entirely or misunderstood the matter being put, thus constructively failing to exercise his functions under s 327(4): [6], [58], [72]; secondly, that the AMS attributed a higher proportion for pre-existing injury under s 68A than for the equivalent exercise under s 323: this was an unexplained inconsistency, which could constitute a demonstrable error in the certificate: [5], [24]-[26], [72]; and thirdly, that the primary judge erred in failing to find that the Delegate had misconceived his function in not allowing this appeal to proceed to an Appeal Panel: [58], [61]. 33 Returning to these proceedings, the AMS was similarly called upon to assess the total percentage loss attributable to the injury under the Workers Compensation Act 1987 for injuries received before 1 January 2002 and the 1998 Act for injuries received after that date. The AMS provided his reasons as to why he decided that the plaintiff did not suffer any permanent impairment to either her left arm at or above the elbow and left upper extremity at pages 5 and 6 of his reasons. The AMS recorded upon examination, 6% upper extremity impairment in the left shoulder but attributed these present symptoms to have occurred after July 2005 and concluded that any injury to the left shoulder region at the time of the accident in October 2001 would have settled down. The AMS explained that 6% upper extremity impairment equates with 4% whole person impairment. On the pre 1 February 2002 assessment of the left arm at or above elbow, the assessment is zero.

Incorrect criteria 34 On the topic of incorrect criteria, Mason P in Pistonis had this to say at [40]: "40. The expression " incorrect criteria " is undefined in the Act. In Campbelltown City Council v Vegan [2004] NSWSC 1129, Wood CJ at CL referred (at [58]) to a statement in the minister's Second Reading speech to the effect that s 327(3)(c) was designed to cover circumstances where the Guides themselves had been incorrectly applied. His Honour observed (at [59]) that this tended to suggest that the " criteria " upon which assessment is to be based are to be found in any relevant guides including guides issued by WorkCover. At [60] his Honour observed that this view drew support from the requirement in s 322(1) that the assessment is to be made " in accordance with the WorkCover Guidelines ". 35 Mason P agreed with Basten JA's (with whom McColl JA agreed) approach in Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372), when his Honour stated [95] that, while it was arguable that factual errors made by an approved medical specialist, as recorded in the Certificate, may be "demonstrable errors" within s 327(3)(d), they would not usually satisfy the "incorrect criteria" ground. The incorrect criteria ground must refer to such matters as the tests set out in the Guidelines, where they are applicable. 36 Counsel for Mrs Treverrow submitted that the MAC does not determine the assessment of permanent loss of efficient use in the worker's left arm, at or above the elbow, despite the referral by the Commission for this to be assessed and this is demonstrable in sub-heading [5] of the MAC where AMS applied the Whole Person Impairment assessment. According to counsel for Mrs Treverrow this assessment is based on incorrect criteria. 37 Mrs Treverrow further submitted that the Medical Assessment Certificate then demonstrates the application of instructions in the "template", to subtract, pursuant to "8g" any "impairment which is felt to have occurred subsequent to the injury". According to Mrs Treverrow this application cannot be made on the appropriate assessment under the Table of Disabilities and is therefore based on incorrect criteria. 38 Chubb submitted that AMS did assess Mrs Treverrow's permanent loss of efficient use of her left arm. According to Chubb the AMS concluded that her claim failed in both measurements, the Table of Disabilities and the Whole Person Impairment and this much is made clear in the findings set out in Table 1 and 2 (reproduced earlier in this judgment). 39 Sub-heading [8] of the AMS's reasons is "Evaluation of Permanent Impairment". The Table of Disabilities provided in Division 4 of Part 3 of the Workers Compensation Act is a table of percentages for permanent injuries. The category "arm at or above elbow" appears at (d1). The table that appears at the end of the certificate of the AMS is headed "Table of Disabilities". Hence, it is not surprising that the Delegate did not dwell on the submission that the AMS did not apply the Table of Disabilities. 40 The table is designed to assign a percentage of maximum amount payable for loss or impairment to a particular body part. That value can be assigned but if the loss is not permanent, the reason for not assigning this value is provided elsewhere. In this case, the explanation is found in the reasons of the AMS. The Delegate addressed this issue by saying that the AMS found no permanent impairment as a result of the injury because he accepted that the ongoing problem with the left shoulder settled down and made a finding of 0% permanent assessment.

Demonstrable Errors (s 327(3)(d)) 41 A "demonstrable error" is any error readily apparent from an examination of the MAC and the document referring the matter to the AMS for assessment: Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39] per Hoeben J and Pitsonis v Registrar of the Workers Compensation Commission (at [49]) but see [60] of Mahenthirarasa v State Rail Authority of NSW. 42 Mrs Treverrow submitted that the medical assessment certificate contains a demonstrable error because the AMS made findings about causation concerning the injury to her left shoulder and that these findings are inconsistent with the referral made by the Registrar. Chubb submitted that no inconsistency arose in this case because the referral required the AMS to assess whether Mrs Treverrow was suffering from a permanent impairment induced by her accident on 10 October 2001 and that was exactly what the AMS did. Chubb's points to par 8(g) of the MAC, where the AMS concluded that Mrs Treverrow may well have suffered injury to her left shoulder because of her accident on 10 October 2001, but that injury would have "settled down" and that the further symptoms she now presented before him "would have developed subsequent to July 2005". 43 Mrs Treverrow submitted that there is an inconsistency between the report produced by Chubb from Dr Michael Shatwell and the findings of the AMS. Both medical reports conclude that whatever impairment Mrs Treverrow is suffering to her left shoulder it was not caused by the accident on 10 October 2001. This case is distinguishable from Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor [2005] NSWSC 954 which involved a situation where an AMS made findings that were expressly inconsistent with the previous ruling of an arbitrator. 44 One of the tasks the AMS was required to undertake was to assess the degree of permanent impairment the left arm at or above the left elbow as a result of the injury. It does not follow that every injury suffered will result in a permanent impairment. The AMS was making an assessment of whether the injuries to the left arm at or above the elbow and left upper extremity resulted in permanent impairment. Under both assessments he found that there was none. The AMS is not making a determination in relation to causation. The Delegate addressed these issues raised by the plaintiff in relation to causation in his reasons at [6]. 45 The Delegate, in his reasons, considered the causation submission at [5] and [6] and stated that the AMS accepted that the injury to the left arm at the elbow/left upper extremity did occur and has assessed the degree of permanent impairment as a result of the injury. The Delegate determined that the AMS did not make a determination on causation. 46 It is my view that the decision of the Registrar by his Delegate in refusing Mrs Treverrow an appeal on the grounds of either incorrect criteria or demonstrable error is correct. The summons filed 31 August 2007 is dismissed. 47 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the second defendant's costs as agreed or assessed.

(1) The plaintiff's summons dated 31 August 2007 is dismissed.

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

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