[2006] NSWCA 284
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Collector of Customs v Pozzolanic (1993) FCR 280
[1993] FCA 456
Ferguson v State of New South Wales [2017] NSWSC 887
Fox v Percy (2003) 214 CLR 118
[2003] HCA 22
Frost v Kourouche [2014] NSWCA 39
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
[2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259
Source
Original judgment source is linked above.
Catchwords
[2006] NSWCA 284
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Collector of Customs v Pozzolanic (1993) FCR 280[1993] FCA 456
Ferguson v State of New South Wales [2017] NSWSC 887
Fox v Percy (2003) 214 CLR 118[2003] HCA 22
Frost v Kourouche [2014] NSWCA 39
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332[2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259ex parte Lam (2003) 214 CLR 1
By his amended summons filed on 25 October 2017 the plaintiff seeks judicial review of a decision made on 31 August 2017 by an Appeal Panel under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Act"). The first defendant is the plaintiff's former employer. The Workers Compensation Commission and the Appeal Panel are the second and third defendants. Both have filed submitting appearances.
The plaintiff suffered a lower back injury on 6 March 2009 whilst working as a demolition labourer in the employ of the first defendant. He was unable to return to this work and received workers compensation benefits up to September 2009. In late 2016 a dispute arose between the plaintiff and the first defendant regarding the degree of ongoing whole person impairment the plaintiff has suffered as a result of the injury of 6 March 2009. This dispute was referred under s 321 of the Act to an approved medical specialist, Dr Rosenthal. On 11 April 2017 Dr Rosenthal issued a medical assessment certificate pursuant to s 325 of the Act. He assessed the plaintiff's whole person impairment at 22%. He determined for the purposes of s 323 that no part of this impairment was due to previous injury or pre-existing condition or abnormality.
On 5 May 2017 an application was made by the first defendant to the Registrar by way of appeal against the medical assessment certificate, pursuant to s 327 of the Act. Subsection (4) of s 327 provides, in part:
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.
Submissions to the Registrar in support of the appeal expressly identified the particular aspect of Dr Rosenthal's medical assessment certificate which the first defendant sought to impugn. Namely, that he had "not applied any deduction for pre-existing condition". The statutory grounds which the first defendant invoked as the basis of its appeal were as follows:
(a) the assessment was made on the basis of incorrect criteria in accordance with Section 327(3)(c) of the [Act];
(b) the [medical assessment certificate] contains a demonstrable error in accordance with Section 327(3)(d) of the [Act].
The Registrar was satisfied that, on the face of the application and submissions, ground (c) and/or ground (d) in s 327(3) was made out. The Registrar referred the appeal to the Appeal Panel for decision in accordance with the procedure laid down in s 328, as follows:
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 but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can 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 by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party 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.
In the first defendant's application to the Registrar for the appeal to proceed it requested that the plaintiff be re-examined by a member of the Appeal Panel but did not attach any submission as to why this was justified. The first defendant did not seek to rely upon any evidence additional to that which Dr Rosenthal had considered. In the plaintiff's opposition to the appeal he answered "No" to the question "Can the appeal be decided by an Appeal Panel solely on the basis of the written application and any written notice of opposition lodged?" The plaintiff did not attach any reasons as to why a hearing would be necessary.
The Appeal Panel conducted a preliminary review of Dr Rosenthal's medical assessment in the absence of the parties. They "determined that it was not necessary for the [plaintiff] to undergo a further medical examination". The Panel noted the first defendant's request that a member of the panel should conduct his or her own examination but concluded "we have sufficient material before us to properly review" the medical assessment certificate. For reasons which accompanied the Appeal Panel's medical assessment certificate issued on 31 August 2017, the Panel concluded Dr Rosenthal had erred in finding that the plaintiff's whole person impairment was not due in any proportion to previous injury or pre-existing condition or abnormality. The Appeal Panel assessed his whole person impairment at 24% and concluded that 50% of this was due to previous injury to his lumbar spine in 2008, giving rise to deduction under s 323(1) and certification for a net impairment of 12%.
The amended summons alleges jurisdictional error on the part of the Appeal Panel, error of law on the face of the record, unreasonableness of the decision, failure to accord procedural fairness and failure to give adequate reasons. On these grounds the plaintiff seeks orders setting aside the Appeal Panel's medical assessment certificate of 31 August 2017, pursuant to s 69 of the Supreme Court Act 1970 (NSW). To understand the reasons of the Appeal Panel and the parties' arguments on the amended summons it is necessary that the evidence before the Panel be summarised. As stated in the Panel's reasons they had before them "all the documents that were sent to [Dr Rosenthal] for the original assessment". The Panel expressly stated that they took those documents into account in making their decision.
[3]
The evidence before Dr Rosenthal and the Appeal Panel
The plaintiff was born on 25 November 1984. According to his statement, in 2008 at age 23 years he was employed by Effective Demolitions in heavy labouring work. He "developed a gradual onset of back pain". He told Dr Gray (at examination on 27 April 2009) that he "had a long history of low back discomfort", that "over the years he had experienced pain with heavy manual work; generally it had become worse towards the end of each working day but then settled overnight" and that the pain "had always been localised in the low back". In the first half of 2008 the plaintiff "experienced increasing low back pain with activity" and in April of that year "there was the onset of specific pain into the right leg as well as the low back". His condition deteriorated "until he could not maintain his normal duties" with Effective Demolitions.
On 5 June 2008 a CT scan was carried out on the plaintiff's lumbar spine. The radiologist's report is not in the materials which were before Dr Rosenthal and the Appeal Panel. The plaintiff's general practitioner summarised the indications of the scan to a neurosurgeon, Dr Cherukuri at Wollongong Hospital, in a letter of referral dated 15 July 2008. That was provided to both Dr Rosenthal and the Panel. The summary is in these terms:
CT Scan lumbar spine - L5/S1 - large central intervertebral Disc prolapse & minimal bulging of the annulus at the L4/5 level without compromise of neural foramina.
The plaintiff told Dr Gray in April 2009 that he had kept working after the CT scan of 5 June 2008 "but the situation deteriorated further and he then took time off work and was referred to [Dr Cherukuri]". An MRI scan was done on 27 July 2008. Again the radiologist's report of this was not before Dr Rosenthal or the Appeal Panel. Its content is summarised as follows in a report which they did have before them, from Dr Cherukuri to the plaintiff's general practitioner, dated 31 July 2008:
MRI scan showed a large extruded disk protrusion at L5/S1 more prominent on the right than the left with the compression of the cauda equina nerve roots. There is an annular fissure L4/5 with mild disc protrusion.
In the same report Dr Cherukuri recorded that in consultation with the plaintiff on 30 July 2008 he had:
advised him he had quite severe compression of the nerves at L5/S1 disk protrusion. I advised him the options of management as surgery versus non-operative management with the surgery to be seriously considered in view of bilateral signs and symptoms in the lower extremities and large extruded disk protrusion. … [The plaintiff gave] consent for a bilateral L5/S1 laminotomy and micro lumbar diskectomy at L5/S1.
[4]
Dr Rosenthal's medical assessment certificate, 11 April 2017
The medical assessment certificate issued by Dr Rosenthal included the following passages which are relevant to the issues argued on the hearing of the summons in this Court. In Section 7 Dr Rosenthal gave this summary of the plaintiff's injuries and diagnoses:
[The plaintiff] sustained a L5/S1 disc injury and recurrent disc protrusion in the injury that occurred on 6 March 2009 at work. He had a previous disc abnormality which had been surgically repaired and apparently had resolved, allowing him to return to work. The 2009 injury appeared to be a new frank injury. He subsequently had a spinal fusion performed as the result of that disc injury by Dr Cherukuri.
In Section 8, containing Dr Rosenthal's evaluation of permanent impairment, he included the following (bold in original):
e. Is any proportion of loss of efficient use or impairment or whole person impairment due to previous injury, pre-existing condition or abnormality? The determination as to whether there was a pre-existing condition to warrant a deduction is a difficult one to determine. In reference to [Cole v Wenaline Pty Ltd [2010] NSWSC 78] can be considered a new frank injury and unrelated to the 2008 injury which had been surgically repaired. In this case the repair disc protrusion from 2008 would be considered to have resolved, and then a new disc protrusion occurred from the 2009 injury which would not be considered to be an aggravation or extension of the 2008 injury. Thus in reference to [Cole v Wenaline Pty Ltd] the injury does not warrant a deduction. Based on this information I believe that no deduction should be applied.
In Section 10c, where Dr Rosenthal provided his reasons for assessment, he made the following comments regarding other medical opinions and findings which had been submitted by the parties and, where applicable, the reasons for his different opinion:
… Dr Bodel … assessed [the plaintiff] on 5 July 2010. At that stage he had not had his surgical fusion [Dr Cherukuri's operation of 2 June 2015] but he was classified as DRE III and then he apportioned the impairment based on a recurrence of his old injury in 2008. However under the rules of apportionment the old injury would have had to be contributing to his current impairment and Dr Bodel has not established such a contribution in his report. Indeed when he gave his next report on 23/08/2016 he assessed 22% WPI for the fusion and activities of daily living. This time Dr Bodel determined there was no deduction for the pre-existing impairment. He did not elaborate on why he has changed his view from his 2010 assessment.
… Dr Gray noted that he essentially recovered from his 2008 surgery before having the new injury in 2009, but he considered that [the plaintiff] had probably suffered an aggravation of the pre-existing condition. He then thought that the new injury was related to the L4/5 disc but did not have the latest MRI at the time of his assessment.
[5]
The Appeal Panel's reasons
In the reasons forming part of the Appeal Panel's replacement medical assessment certificate, the Panel quoted the history taken by Dr Rosenthal and set out the doctor's findings on examination as recorded in his reasons. The Panel's understanding of the first defendant's submissions in support of the appeal was that they "essentially focus on the various reports of Dr Bodel". The Panel therefore summarised Dr Bodel's reports of July 2010 and August 2016 at [30]-[38], concluding with the observation that "Dr Bodel did not provide any explanation for his change of opinion".
At [39] and [40] the Panel cited Cole v Wenaline Pty Ltd [2010] NSWSC 78 for the propositions, correctly stated, that it would be "an error to proceed on the basis that once a person has had surgery to the lumbar spine, irrespective of the outcome, that person has a residual level of impairment" and that what is required is "a conclusion, based on all the evidence, that the pre-existing injury, condition or abnormality caused or contributed to that impairment". The Panel cited Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 for the further proposition that "if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury".
The Appeal Panel concluded that there should be a 50% deduction for the contribution of the pre-existing injury to the plaintiff's whole person impairment. Their findings and reasoning are expressed in the following paragraphs:
43. To begin with, the report of Dr Bodel of 5 July 2010 clearly indicated that "in reality, the pathology is all the same pathology" although he accepted that "an additional structural injury has occurred at the time of the second work injury …".
44. The radiological investigations certainly indicate to us that the [plaintiff] sustained an injury in March 2009 at the same level. As Dr Bodel noted, he had "a recurrence" of the 2008 injury in March 2009.
45. The treating surgeon, Dr Cherukuri, has not really addressed this issue - his reports essentially document the treatment he provided.
46. Dr Gray saw the [plaintiff] at the request of the insurer on 27 April 2009. In a report of the same date, he concluded that he "has probably suffered an aggravation of a pre-existing condition … this present exacerbation may represent a recurrent disc prolapse at the same level (L5/S1) that was initially dealt with in 2008 …". Dr Gray did think there may have been a further new injury at the L4/5 level but as [Dr Rosenthal] noted, "he did not have the latest MRI at the time of assessment".
47. In short, in our view there was ample evidence that the injury in March 2009, only some seven months after the earlier injury and surgery, and at the same level, contributed to the current impairment. The consensus of medical opinion suggested that the 2009 injury represented a "recurrence" of the earlier injury, although we accept that some additional impairment arose after the 2009 injury which led to a spinal fusion and impacted his activities of daily living.
48. Dr Bodel's opinion is flawed to the extent that he has simply not explained his reasons for changing his opinion, and in these circumstances, it is difficult for us to reconcile the competing opinions.
49. Although we accept that the [plaintiff] felt that he had recovered well from the 2008 surgery, and was apparently asymptomatic at the time of the 2009 injury, that of itself is not necessarily sufficient to exclude a deduction. (See Vitaz).
50. The evidence seems clear that the [plaintiff] suffered from a discal instability after the 2008 surgery. Any interference with a disc will produce that result. Moreover the recurrence occurred within a fairly short time.
51. For these reasons, and having carefully considered all of the evidence, we are of the view that a one-half deduction in this case is appropriate.
[6]
Summons grounds 1-4: the Panel's substitution of its own view
The first four grounds of the amended summons collectively allege a jurisdictional error of the Appeal Panel or an error of law on the face of the record constituted by it allegedly having "substituted its own view for that of [Dr Rosenthal]" without having found an error of either of the kinds referred to in pars (c) or (d) of s 327(3). That is, without finding that Dr Rosenthal's assessment was made on the basis of incorrect criteria or that it contained a demonstrable error. In the particulars given under ground 3 it is repeated, in various formulations, that the Appeal Panel was limited to finding and correcting error in Dr Rosenthal's assessment and that it was not permitted to "substitute its own opinion" or to "reassess the plaintiff's impairment".
The plaintiff's written submissions on grounds 1 to 4 include the following. Oral submissions were made on the hearing of the summons to similar effect:
… it is apparent from the face of the decision that the course taken was to review the evidence before reaching its own conclusion concerning the application of a deduction under s 323 and its measure.
The [Appeal Panel] did not address the reasoning of [Dr Rosenthal] in relation to the deduction for the pre-existing condition, or identify that [Dr Rosenthal] had fallen into error within subs 327(3)(c) or subs 327(3)(d). … Rather, the [Appeal Panel] substituted its preferred view, after considering the medical evidence. The expression of a "view" does not equate to a finding of relevant error.
The fact that minds may differ, or that the [Appeal Panel] was of a different "view" is not to the point. [Dr Rosenthal] formed a clinical judgment, and the [Appeal Panel] did not identify any error in his reasoning.
The starting point for addressing these arguments is to recognise that s 327(3)(c) and (d) specify the permissible grounds of appeal in generic terms. In most if not all appeals which rely upon pars (c) and (d), the appellant will particularise his or her grounds. That is, the appellant will either identify a specific respect in which it is contended "the assessment was made on the basis of incorrect criteria" or identify a particular error in the medical assessment certificate which is said to be "demonstrable". In the first defendant's submissions supporting its application to the Registrar the one aspect of Dr Rosenthal's decision which was particularised as constituting a ground within s 327(3)(c) and/or (d) was his finding under s 323 of nil causative contribution to the plaintiff's impairment from the 2008 L5/S1 disc injury and pathology.
[7]
Summons ground 5: unreasonableness
Ground 5 in the plaintiff's summons is that the decision of the Appeal Panel "is tainted by legal unreasonableness". This is expanded as involving failure "to give adequate weight to relevant factors of great importance", giving "excessive weight to factors of no importance" and lacking "evident and intelligible justification".
The last of these formulations is of course taken from Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ). I reject the characterisation of the Appeal Panel's conclusion of 50% deduction under s 323 as lacking evident and intelligible justification. The reasons are relevantly extracted at [41] and my understanding of them is set out below in relation to ground 8, at [77]-[82]. I regard the Panel's reasoning as transparent and, upon the basis that the medically qualified Panel members had the expertise to evaluate the relevant material, quite understandable.
I am unable to see in the materials before the Court evidence of any "relevant factor of great importance" which could be said not to have been given adequate weight; or evidence of any "factor of no importance" which was given excessive weight. These evaluative propositions are, in any event, not valid grounds for judicial review. Particulars under this ground also assert that the Panel misapplied Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254. The Panel's reasons do not disclose that they made such an error. In accordance with authority, they evaluated the medical evidence to determine as a matter of fact whether the plaintiff's previous accident and disc degeneration contributed to his post 6 March 2009 impairment. They correctly did not treat the absence of symptoms after the operation of 4 August 2008 as determinative, one way or the other, of the question whether there was contributory causation or, if so, its degree. That is particularly apparent from the phrase "not necessarily" in par 49 of their reasons.
Ground 5 is rejected.
[8]
Summons ground 7: denial of procedural fairness
The plaintiff did not request that he be re-examined by the Appeal Panel but he did submit the appeal should not be decided solely on the papers (see [6]). The plaintiff's complaint under ground 7 is that if the Panel came to the view that Dr Rosenthal had erred in deciding there should be nil contribution under s 323 they "should have provided the plaintiff with the opportunity to address that finding before [they] made a decision adverse to him".
In Frost v Kourouche [2014] NSWCA 39 the Court of Appeal considered the obligation of a review panel to accord procedural fairness to a claimant whose medical assessment had been referred to the panel pursuant to s 63(3) of the Motor Accidents Compensation Act 1999 (NSW). The panel had examined the claimant with respect to psychiatric damage which she claimed to have suffered as a result of a motor accident. They concluded the claimant had suffered nil psychiatric damage. Leeming JA at [30] said the principal issue in the appeal was whether:
procedural fairness required, in the circumstances of this case, an obligation upon the panel to issue a warning as to its potential finding, grant an adjournment so that Ms Kourouche could obtain further legal advice, and permit her to address the panel on a subsequent occasion.
The following paragraphs from the judgment of Leeming JA (with whom Beazley P and Basten JA agreed) are pertinent to the present case (extracted so far as relevant):
[31] It was common ground that the panel was obliged to accord procedural fairness to Ms Kourouche. […]
[32] It was also common ground that the content of the obligation upon the panel to accord procedural fairness extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond. That is consistent with what has often been held, in a wide range of contexts, including Kioa v West (1985) 159 CLR 550 at 587 ("the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it"). […]
[33] The appeal was conducted on the basis that this occurred during the examination itself on 26 September 2012. It was no part of Ms Kourouche's complaint that this had not occurred.
[34] The gravamen of Ms Kourouche's submissions to the primary judge and on appeal was that the evidence before the review panel pointed to a range of expert opinion as to whole person impairment for psychological injury from 7% to 25%. It was said that the possibility that the review panel might form the view, against the totality of that body of professional opinion, that in fact there was nil whole person impairment was "an incredible and wholly unforeseen and unexpected finding" such that procedural fairness required an adjournment, an opportunity to be given to Ms Kourouche to consult her lawyers, and an opportunity to address the panel further. In substance, that submission was accepted by the primary judge.
[35] There is a well-established line of authority for a complementary proposition to that in Kioa v West referred to above to the effect that critical facts need to be drawn to the claimant's attention. The complementary proposition is that it is not necessary, in order to discharge the obligation to accord procedural fairness, to go further.
[36] In Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9], French CJ and Kiefel J said (emphasis added):
"Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision."
[37] The distinction drawn in that passage reflects what was said by a unanimous Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592, which had in turn been endorsed by a unanimous High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [29]. The same distinction was applied in this Court in Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; 52 NSWLR 213 at [40].
[38] [...]
[39] It is possible for statute to impose additional incidents to the obligation to accord procedural fairness. In Alphaone at 592, the pre-decision conference process under the Trade Practices Act 1974 (Cth) was given as an example. Another is the obligation to provide a draft determination to a person under review in accordance with s 106T of the Health Insurance Act 1973 (Cth) (as to which see Traill v McRae [2002] FCAFC 235; 122 FCR 349 at [141]-[142]). However, statutory provisions like those are unusual. In the cases to which they apply, they impose an obligation substantially greater than that to which even courts must adhere.
[40] There is nothing in the [Motor Accidents Compensation Act] to support any such heightened obligation. To the contrary, the self-evident purpose of non-curial assessment of disputes as to permanent impairment was to reduce the role of courts in respect of claims to which assessment applied. There is no reason for any greater content to the obligation to accord procedural fairness to be discerned in a non-curial procedure. That conclusion is wholly consistent with what was said, of the obligation to afford procedural fairness in a substantially similar regime, in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [47].
[41] Ultimately, the question of the content of the obligation to accord procedural fairness is one of practical justice. Gleeson CJ said that "Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]. In connection with the Act, in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 at [8], Allsop P said that "procedural fairness would require any and all necessary steps to ensure a fair hearing".
[42] The materials before the Court do not suggest any practical injustice or absence of a fair hearing. It was perfectly clear that NRMA was contending that Ms Kourouche's claimed psychological conditions did not accord with what was recorded in her social media profile. It was perfectly clear that NRMA submitted that Ms Kourouche's history was false. It was perfectly clear that NRMA submitted that the review panel should certify a psychological impairment of less than 10% such that s 131 would apply. And it was perfectly clear when the review panel determined to re-examine Ms Kourouche that the possibility that all or some of its members might disbelieve her history was real. This is a not a case where the possibility of the panel's adverse conclusion ought to have taken Ms Kourouche by surprise.
[9]
Summons ground 8: failure to provide any or sufficient reasons
Ground 8 in the plaintiff's amended summons is:
The Panel failed to provide any reasons (or any adequate reasons) for its conclusion that a one-half deduction was appropriate.
The Panel was subject to an implied statutory obligation to give reasons: Campbelltown City Council v Vegan [2006] NSWCA 284 at [26] (Handley JA) and [117] (Basten JA). As to the standard which such reasons must meet, Basten JA (with the agreement of McColl JA) said this:
[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] On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see [Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247] at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.
[128] No doubt the assessment of physical impairment involves matters of evaluation and judgment by medical specialists. Such matters are often not reducible to precise explanations, and the choice of a particular figure will only be a point within a legitimate range. The content of reasons must be assessed with those factors in mind. …
Applying these criteria to the Panel's reasons (extracted at [41]), in my view they adequately referred to the evidence upon which the Panel based their primary findings of fact concerning the pre-accident pathology. The Panel referred to the course of radiological investigations dating back to June 2008, albeit without reciting or quoting individual radiological findings. They referred, again without quotation of detail, to Dr Cherukuri's reports of treatment which included his pre-operative findings of mid-2008 and his post-operative summary of the 4 August 2008 spinal decompression procedure.
[10]
Orders
For these reasons the orders of the Court are:
1. The summons is dismissed.
2. The plaintiff is to pay the first defendant's costs.
[11]
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: 03 May 2018
The operation recommended by Dr Cherukuri was carried out on 4 August 2008. Dr Cherukuri reported on 25 September 2008 as follows:
He has undergone L5/S1 laminotomy, micro lumbar diskectomy and foraminotomy on the right side on the 4th August 2008. He reports significant improvement of his symptoms following the surgery both in terms of back pain and leg pain. On examination, gait is normal. Heel/toe gait is normal. The power and sensation are normal. Reflexes are elicited and symmetrical. The operative site shows a well healed, non-tender scar. I advised him to start physiotherapy. I advised him to start gradual return to work after 1 month. In view of his excellent progress in the absence of symptoms or signs, I have discharged him from neurosurgical follow-up … .
Laminotomy is the removal of part of a vertebra, apparently in this case to gain surgical access to the intervertebral disc. Discectomy is the removal of part of a bulging or protruding disc. Here this was evidently done to relieve pressure on nerve roots exiting the spinal column at the L5/S1 level. Foraminotomy is clearing out the foramina, being the passage through the vertebrae in which nerve roots are located, again in this case to relieve contact or pressure of other tissue upon the nerve roots.
According to the plaintiff's statement no workers compensation claim was made in respect of this 2008 injury and operation. He resumed work with Effective Demolitions. By inference, that would have been about one month after Dr Cherukuri's report and therefore about three months after the operation (that is, approximately in late October 2008). According to the plaintiff's statement Effective Demolitions "wouldn't make allowances for [him]" and at some time in late 2008 or early 2009 he commenced work with the first defendant. He stated that at that time his back "felt better than it did before the operation" and that he "was able to do very heavy demolition and labouring work".
According to the plaintiff's statement, on 6 March 2009 while lifting a sheet of roofing iron he felt a sudden severe pain in his lower back and leg pain. He was able to descend the ladder from the roof on which he had been working but he could not resume work.
On 27 April 2009 the plaintiff was examined by Dr Gray. Part of the history he gave to Dr Gray has been quoted above at [9] and [11]. Dr Gray's report of 27 April 2009 contained these passages by way of diagnosis and opinion:
[The plaintiff] appeared to have a long-standing disc problem at L5-S1, from the history of localised low back pain dating back several years and related to heavy manual work. There appears to have been a specific disc prolapse at L5-S1 on the right occurring in April 2008. The symptoms were exacerbated by labouring type work activities and marked enough at that stage to require surgery. He apparently underwent a discectomy with a good short-term relief of both the low back and particularly the right lower limb pain.
He returned to heavy manual work and changed employer. It is difficult to know the exact amount of discomfort he was having in his low back while working with the new employer. [The plaintiff] says he had no significant pain until the episode on 6 March 2009 … . [The plaintiff] has either a recurrence of the disc prolapse at L5/S1 or possibly the onset of a central disc prolapse at L4-5. He is about to have an MRI examination lumbar spine and this should help differentiate and refine the specific diagnosis of his present situation.
I consider that [the plaintiff] has probably suffered an aggravation of a pre-existing condition. As per report above, this present exacerbation may represent a recurrent disc prolapse at the same level (L5/S1) that was initially dealt with in 2008; there is the possibility that the present problem arises from the disk above at L4-5 causing a central disc prolapse - this would be a new injury related to his present employer, although there were some pre-existing changes at that level (L4-5) in the MR scan of 2008. There is the requirement to await further definition with the result of a repeat MRI examination.
On 28 April 2009 a further MRI scan of the plaintiff's lower back was conducted with the following findings at the L5/S1 level (I have omitted the radiologist's report on the L4/5 intervertebral joint as neither Dr Rosenthal or the Appeal Panel considered any pathology at that level to be relevant):
At L5/S1 there has been right sided laminectomy. …
There is signal abnormality left posterior centrally at the L5/S1 level in a patient with previous laminectomy. The enhancement is at the margin of this but the overall configuration is that of minor residual disc plus some scar tissue. It is unlikely that there is an extruded disc fragment within this. Direct correlation with prior imaging is needed.
Although there is no evidence that this MRI scan was shown to Dr Gray, objectively it answered his uncertainty as to whether the pathology post-6 March 2009 was at L5/S1 or at the next intervertebral space above. There was no evidence before Dr Rosenthal or the Appeal Panel of any further consideration given to the matter by Dr Gray or of any further opinion obtained from him.
Dr Bodel, orthopaedic surgeon, assessed the plaintiff on 5 July 2010 and on that date issued to the plaintiff's solicitors a five-page report and a two-page assessment of impairment. The five-page report included the following:
[After the workplace injury on 6 March 2009 the plaintiff] had an MRI scan done of the lumbosacral spine in April 2009 and that shows clear evidence of a change in the appearance at the L5/S1 level in comparison to the previous MRI scan from 25 July 2008. There is a central and left-sided disc prolapse which is a recurrence of the previous disc injury at that level.
The report of the MRI scan of the lumbosacral spine on 27 July 2008 confirms the large right-sided disc prolapse at the L5/S1 level and the central bulging at L4/5.
It is rather a complex history as he really first suffered his work-related injury at a previous place of employment, probably Effective Demolitions and had decompressive surgery with a very good result.
He has subsequently had a recurrence of that injury on 6 March 2009 while employed with the new employer, Worldwide Demolitions Pty Ltd. There is a definite difference in the appearance of the abnormality at the L5/S1 level in the two MRI scans that I have seen and therefore an additional structural injury has occurred at the time of the second work injury.
[The plaintiff] has had a recurrent disc prolapse at the lumbosacral junction as a result of the injury at Worldwide Demolitions Pty Ltd on 6 March 2009.
There is a direct causal link between [the plaintiff's] injury on 6 March 2009 and his ongoing complaints. The previous injury is also a contributing factor.
[The plaintiff] requires domestic assistance for household maintenance and cleaning activities as a consequence of the totality of his injuries and I would estimate a requirement of about six hours'domestic assistance per week at the moment. About half of this is due to his original work related injury … and the remaining half for the current injury … .
In Dr Bodel's two-page assessment of 5 July 2010 he referred to Dr Cherukuri's decompression procedure of 4 August 2008 as "surgery for radiculopathy". Dr Bodel considered the plaintiff had reached maximal medical improvement and he assessed whole person impairment at 15%. The doctor concluded his assessment as follows:
Apportionment of liability is a very difficult issue. [The plaintiff] clearly had a previous work related injury which led to a decompressive surgical procedure. He has had a recurrence of that injury on 6 March 2009. Further treatment is probably warranted but on the basis of today's clinical presentation I would apportion approximately two-thirds of the total pathology to the original injury and one-third to the injury on 6 March 2009. In reality the pathology is all the same pathology although there has been a further "injury" which has changed the underlying pathology which had been achieved after the decompressive surgery.
Apparently Dr Bodel's assessment at that time was accepted by both the plaintiff and the first defendant, as no medical dispute arose or was referred to an approved medical specialist under the Act. It has been mentioned that the plaintiff received benefits up to September 2009. By then he was medically certified fit for light duties. According to the plaintiff's statement his back pain did not improve over time and in fact got worse up to 2015.
On 1 February 2014 a CT scan of the plaintiff's lumbar spine was done. According to the radiologist's report, he was then suffering sciatica. The radiologist found the following:
Degenerative changes are present at the lumbar sacral junction [ie L5/S1]. The intervertebral disc spaces are preserved elsewhere. Despite the history no definite stigmata of previous back surgery are demonstrated, query previous discectomy. There is no canal stenosis. There is effacement of the adipose tissue panes around the L5 nerve roots bilaterally in a symmetrical pattern. This defect is relatively mild … but may be responsible for the L5 radicular irritation.
Degenerative changes L5/S1 with associated slight encroachment upon the L5 root bilaterally in a symmetrical pattern.
On 5 September 2014 an MRI scan was performed and was reported as follows:
Secondary to discectomy at L5/S1 there is disc space narrowing at this level. The rest of the disc spaces are normal. … [N]o posterior disc protrusion into the canal was noted and there is no far lateral disc herniation into the intervertebral foramina. There is oseophytosis of the vertebral body endplates and hypertrophic facet joint osteoarthrosis at L5/S1. Osteophytes originating from the vertebral body endplates and hypertrophic facet joints project into the intervertebral foramina at L5/S1 resulting in mild foraminal narrowing at this level.
Comment: Secondary to discectomy at L5/S1 there is disc space narrowing and spondylotic change with osteophyte formation of the vertebral body endplates and facet joints. Consider the possibility of nerve root impingement at L5/S1 due to foraminal narrowing.
On 13 October 2014 yet another MRI scan was performed on the plaintiff's lumbar spine. On 14 October 2014 the radiologist reported the results in these terms:
There is a circumferential osteophytosis of the vertebral body and endplates at L5/S1 and disc space narrowing at this level secondary to previous L5/S1 discectomy. There was a right laminotomy performed at L5 to get access for discectomy at L5/S1. There is moderate recurrence of disc protrusion at L5/S1 with posterior central disc bulging and far lateral disc protrusion into the right intervertebral foramen at L5/S1. Due to disc protrusion and osteophytosis there is distortion of the keyhole configuration of the intraforaminal fat bilaterally at L5/S1, but more prominent on the right side. There is impingement of the right exiting nerve root in a narrow right intervertebral foramen at L5/S1. There is also moderate foraminal narrowing at L5/S1 on the left side.
Comment: … Post L5/S1 discectomy a moderate recurrent protruding disc is present at this level which is prominent on the right side resulting in right foraminal narrowing and impingement of the right exiting nerve root. There appears to be mild impingement of the left exiting nerve root at L5/S1.
After review of this radiology Dr Cherukuri consulted with the plaintiff on 17 October 2014 and provided a report to the plaintiff's general practitioner on 29 October 2014. Dr Cherukuri said:
He has had MRI scan which shows degenerative disc disease at the lower two lumbar levels with L5/S1 disc protrusion, slightly more prominent on the right.
Dr Cherukuri again consulted with the plaintiff on 18 November 2014 and reported as follows by letter of 24 November 2014:
He has gone back to work, however, is unable to do much of the work due to severe pain in the back which radiates to the right gluteal region. … I advised him higher risks in view of redo surgery. In view of recurrent disc at the same level with significant back pain with Modic changes and bone scan showing degenerative disc disease, he is best served by fusion rather than simple decompression.
That advice was accepted by the plaintiff and he gave consent for "L5/S1 posterior lumbar interbody and posterior lateral fusion". He was placed on a waiting list and the operation was performed by Dr Cherukuri on 2 June 2015. The plaintiff was mobilised the day after this procedure and was discharged home on 4 June 2015. After a follow-up consultation on 9 July 2015 Dr Cherukuri reported on 13 July 2015 as follows:
[The plaintiff] presents to my rooms for follow-up following his L5/S1 laminotomy, foraminotomy, discectomy and L5/S1 posterior lumbar interbody and posteriolateral fusion with cage/screws/fixation … In summary [the plaintiff] has improved quite well following surgery and is pleased with the result.
Dr Bodel examined the plaintiff at the request of his solicitors on 19 August 2016 and issued on that date a five-page report and a two-page assessment of whole person impairment. Dr Bodel's recitation of the history in his five-page report included the following:
[The plaintiff] has had a previous injury and previous surgery and with that earlier injury it was back pain and right leg pain. … [The MRI scan of 28 April 2009 - see [18]] showed clear evidence of disc pathology at the L5/S1 level with a central and left-sided disc prolapse. This was a recurrence of the injury at the L5/S1 disc but to the left-hand side rather than the previous injury to the right hand side.
The [previous] operation was done on 4 August 2008 for back pain and right-sided sciatic pain and he had a good recovery.
The five-page report of 19 August 2016 concluded with this statement of Dr Bodel's diagnosis:
The diagnosis here is a disc rupture at the lumbosacral junction. The initial date of injury for this accident is 6 March 2009. He had had a previous injury at the same level for which he had appropriate decompressive surgery. He was relatively asymptomatic at the time of the injury on 6 March 2009 and therefore a new "injury" occurred at that level at that time.
In Dr Bodel's two-page assessment of 19 August 2016 he assessed a 22% whole person impairment with no deduction for contribution from pre-accident injury, condition or abnormality. The assessment concluded as follows (emphasis added):
I am aware that [the plaintiff] has had a previous injury in 2008 and previous surgery. He made a good recovery and had returned to normal heavy physical work prior to this injury. [The plaintiff] was coping with heavy manual work for quite some time before he commenced work at Worldwide Demolitions Pty Ltd and had been functioning in a normal capacity prior to the event that occurred on 6 March 2009. In this circumstance therefore there is no basis for a deduction for pre-existing impairment.
The last sentence in that passage misstates the issue. Under s 323 a deduction from the percentage of whole person impairment is made not for "pre-existing impairment" but for the extent to which post-injury impairment is "due to" previous accidents or pre-existing conditions or abnormality. Although it is not material to the determination of the summons, I observe that misapprehension of the issue may have been the reason for the difference in deduction, from two-thirds to nil, between Dr Bodel's 2010 and 2016 reports.
Notably neither of Dr Bodel's documents of 19 August 2016 made any reference to the conclusion he had reached on 5 July 2010 concerning a two-thirds contribution of the 2008 injury to the degree of permanent impairment exhibited by the plaintiff after 6 March 2009. Having made no reference to his earlier reports Dr Bodel did not identify any fact or circumstance which had been relied upon as the basis for changing his view on deduction under s 323 and provided no reasoning to explain why a two-thirds contribution which had seemed appropriate in July 2010 should now be reduced to nil.
Dr Bodel said in his five-page report of August 2016 that the plaintiff had suffered right-sided leg pain in 2008 but exhibited left-sided disc protrusion on the MRI of 28 April 2009. However he did not identify this as a basis for his change of view. The material before Dr Rosenthal and the Appeal Panel showed that the plaintiff's L5/S1 disc pathology was in fact not limited to the right side in 2008. Dr Bodel's August 2016 reports made no reference to the radiology of June and July 2008 which did not suggest the left side was unaffected. At that time the L5/S1 disc bulge was central and "more prominent to the right". Dr Bodel did not refer to Dr Cherukuri's observation of "bilateral signs and symptoms in the lower extremities" as at 30 July 2008 (see [12]). The material also showed that after 6 March 2009 the L5/S1 pathology was not limited to the right side. In his August 2016 reports Dr Bodel did not refer to the radiology of 1 February 2014 which identified bilateral L5/S1 nerve impingement at that date, nor to the MRI of 13 October 2014 on which there could be seen "post L5/S1 discectomy [ie post the operation of 4 August 2008] a moderate recurrent protruding disc … at this level which is prominent on the right side resulting in right foraminal narrowing and impingement of the right exiting nerve root" (see [25]).
As mentioned in the introductory paragraphs of this judgment, Dr Rosenthal assessed 22% whole person impairment with no deduction under s 323 for contributory causation by the 2008 injury and pathology.
Grounds 1-4 in the plaintiff's summons and his submissions in support appear to me to involve a misapprehension. They treat the Appeal Panel's finding that the previous injury and disc degeneration were 50% causative of the plaintiff's impairment, in substitution for Dr Rosenthal's finding of nil contribution, as if this were something different from resolution of the appeal ground. The plaintiff submits the Panel's reversal of Dr Rosenthal's factual finding could only be sustained if the Panel separately identified and upheld other grounds of appeal, falling within the descriptions in s 327(3)(c) and/or (d) and constituting error in the way Dr Rosenthal arrived at his own finding.
The true position is that substitution by the Appeal Panel of its factual finding of 50% contribution is, of itself, the identification of error of fact on the part of Dr Rosenthal. As discussed below, it is relevant to consider whether this successful ground of appeal fits either of the generic descriptions in pars (c) or (d). But that is a matter of classification of the successful ground, not of identifying additional or collateral errors. On the issue of contributory causation of impairment, that which the plaintiff refers to as the "substitution of [the Panel's] own view" on the evidence is, far from being in excess of the Panel's power, just another way of describing the Panel's determination that Dr Rosenthal's finding on the evidence was an error of fact, thereby upholding the appeal.
Before the appeal could proceed s 327(4) required that the Registrar had to be "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". As recorded at par 6 of the Appeal Panel's reasons, the Registrar was so satisfied with respect to "at least one of the grounds for appeal". In Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 the manner of applying this restriction upon permissible appeal grounds was explained at [20] by Mason P (McColl and Bell JJA agreeing). At the date relevant to the Court of Appeal's decision s 327(4) specified that it should appear "to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists". Mason P characterised the role of the Registrar as "that of a gatekeeper". Subsequent amendment of the subsection, to the formulation quoted at the beginning of this paragraph, has heightened the standard to which the Registrar must be satisfied. But the characterisation of "gatekeeper" remains apposite: Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [89]-[90] (McColl JA).
Identifying the role of the Registrar does not answer the question whether the Appeal Panel, upon determining an appeal which the Registrar has let through, is obliged to make a finding as to whether any appeal ground which it has upheld falls within the generic description of either par (c) or (d) of s 327(3) or, if so, whether the Panel is obliged to give reasons for so characterising the successful ground. On the hearing of the summons counsel was not able to cite authority one way or the other about this. I find nothing in the provisions of the Act to support the imposition of such obligations on the Panel.
However I conclude that, as a substantive matter, any ground which an Appeal Panel upholds must, objectively, satisfy one or other of (c) or (d) (in a case like the present, where there is no question of (a) deterioration of the worker's condition or (b) availability of additional evidence). The filtration mechanism provided for in s 327(4) does not in my view exhaust the substantive limitation in subs (3). Only grounds of appeal in one of the four specified categories may be determined. If a non-complying ground has been upheld then the Appeal Panel has made an error of law and/or has exceeded its jurisdiction. If that should appear upon review in this Court, relief should be granted under s 69 of the Supreme Court Act even though the Registrar let the appeal through. This was not decided in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 (see [82] (Basten JA)) and nor, so far as I am aware, has it been otherwise authoritatively determined.
The only alternative view of s 327 would appear to be that the decision made by the Registrar under subs (4) is the last opportunity for the statutory limitations upon the scope of the right of appeal to be applied. On that view, if the Registrar should err and refer to a Panel an appeal upon unauthorised grounds, this would be beyond remedy. It is unlikely the legislature would have intended that enforcement of the restrictions upon the class of permissible appeal grounds should be so limited. On this interpretation of s 327, if a prospective appellant should raise a non-conforming ground and the Registrar allow it through, the respondent would be obliged to seek judicial review of the Registrar's decision on pain of losing the right to insist upon confinement of the appeal grounds to the prescribed types. This would be an inconvenient result, inviting judicial review at multiple levels of the procedure. Again, it is unlikely the legislature intended this.
The sole challenge to Dr Rosenthal's decision which was considered and upheld by the Panel, being with respect to the erroneous finding of nil contributory causation from the 2008 L5/S1 disc injury and pathology, in my view could not be characterised as a ground that the original assessment was made "on the basis of incorrect criteria". But it did concern a "demonstrable error". It was not within par (c) of s 327 but it was within par (d).
As to par (c), the parties agreed during the hearing of the plaintiff's amended summons that s 323 is one of the "criteria" for assessment. It was said in Campbelltown City Council v Vegan [2004] NSWSC 1129 at [59] (Wood CJ at CL) that the criteria are the Guidelines for assessment issued by the State Insurance Regulatory Authority under s 376. In any event, the Guidelines replicate the requirements of s 323: see New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition, 18 April 2016, cl 1.6. But although Dr Rosenthal's determination of nil deduction under s 323 (or under cl 1.6 of the Guidelines) concerned a relevant criterion for the assessment of whole person impairment, what was involved in this appeal was an asserted erroneous finding of fact (namely, the causative effect of the previous accident and pre-existing pathology) to which that criterion was to be applied.
In Campbelltown City Council v Vegan in the Court of Appeal, Basten JA said at [95]:
It is arguable that factual errors made by an approved medical specialist, as recorded in the certificate, may be "demonstrable errors", but they would not usually satisfy the "incorrect criteria" ground. That must refer to such matters as the tests set out in the Guidelines, where they are applicable.
That conclusion was accepted by Mason P (McColl and Bell JJA agreeing) in Pitsonis v Registrar of the Workers Compensation Commission at [42]. The latter case concerned judicial review of the Registrar's decision under s 327(4) not to allow an appeal to proceed. The learned President said at [43]:
The manner in which the applicant framed her complaint about the [Medical Assessment] Certificate in the Submissions [to the Registrar, to institute an appeal] did not amount to an assertion that the doctor had based the Certificate on "incorrect criteria". It rose no higher than alleging errors in the factual data that the specialist applied to the appropriate criteria.
On the basis of those authorities I do not consider that the appeal ground which the Panel upheld satisfied par (c). As to par (d), the meaning of a "demonstrable error" was expounded in Pitsonis v Registrar of the Workers Compensation Commission at [47]-[49] (Mason P) as follows:
[47] The word "demonstrable" means capable of being demonstrated (The Macquarie Dictionary 4th ed, The Macquarie Library Pty Ltd, Australia, 2005, New Penguin English Dictionary 1st ed, Penguin, London, 2000). If the word "contained" in para (d) were read as no more than "have within itself" (Macquarie Dictionary), then it would follow that s 327(3)(d) would confer the equivalent of a right of appeal on all grounds subject only to the persuasive burden being carried by the appellant. This would render para (c) redundant and would tend to trespass over the areas addressed in paras (a) and (b).
[48] One thing, I think, is clear, namely that the "appeal" to the Appeal Panel is not intended as the opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than the Appeal Panel being invited to decide the application afresh. I agree with the observations of Basten JA in Vegan at 400 [137] when he stated that two factors suggested that the jurisdiction and powers of the Appeal Panel are limited:
First, if the Appeal Panel's powers were at large, the need to specify grounds of appeal limited to particular categories, would be rendered largely otiose. Second, the Appeal Panel is not a tribunal which has any powers other than those necessary to deal with the appeals in question.
[49] I am therefore driven to conclude that s 327(3)(d) uses "contained" in the more intense meaning of having as a constituent part, comprising or including (Macquarie Dictionary). Thus understood, the paragraph requires the would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s 327(3) (a) or (b) being adduced in the appeal. This conclusion accords with that reached by Hoeben J in Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39] ("an error which is readily apparent from an examination of the medical assessment certificate and the document [referring] the matter to the [approved medical specialist] for assessment").
The appeal ground considered and upheld by the Panel in the present case was of the character described in s 327(3)(d). Dr Rosenthal's reasons (incorporated in his medical assessment certificate and extracted at [35]-[38] above), taken together with the reports and other materials in the referral of the medical dispute to him, demonstrated on their face what his conclusion was and the evidence which either justified it or did not. Thus, his error in finding nil contributory causation by previous accident or prior condition, if error the Panel should find it to have been, was demonstrable in the sense expounded by Mason P. For an error to be demonstrable within this meaning it is not necessary that it should be so self-evident that no consideration of the evidence, no reasoning or no application of clinical judgment is required. If par (d) were intended to limit the appellability of findings of fact as tightly as that, it would hardly be necessary for a ground under (d) to be considered by a Panel comprising two medical experts.
The plaintiff's contentions that the Appeal Panel were not entitled to "substitute [their] own preferred view" on the factual question of contributory causation go so far as to assert that the formation of a view upon the evidence different from Dr Rosenthal's "does not equate to a finding of relevant error" and that the Panel could only uphold the ground if they identified error in Dr Rosenthal's reasoning to this conclusion. These arguments set up a false dichotomy between, on the one hand, an appellate body coming to a different conclusion from that of the primary decision maker on an issue of fact which constitutes an appeal ground and, on the other hand, the appellate body finding appellable factual error. The authorities to which I will refer below show that in a s 328 appeal such as the present, where no fresh evidence is introduced, the Panel have power to make their own findings of fact on the evidence which was before the approved medical specialist. The Appeal Panel's conclusion on the evidence, contrary to that of the primary decision maker, is the finding of factual error. There is no more for the Panel to say about why or how the primary decision maker erred than to state (as they did) adequate reasons for coming to their own substituted conclusion of fact.
In Siddik v WorkCover Authority of NSW at [95]-[97] and [100] McColl JA expressed the following conclusions regarding the nature of the appeal under s 328 (some citations omitted):
[95] Section 327(3)(c) and (d) permit an appellant to attack the MAC [medical assessment certificate] on the basis of errors on the part of the AMS [approved medical specialist]. That suggests, in my view, a jurisdiction to revoke the MAC which is only exercisable in the event error is identified in it, in other words an appeal by way of review which has indicia of an appeal by way of rehearing.
[96] However s 327 is not only an error-based jurisdiction. It also contemplates an appeal arising because of changed circumstances: either a deterioration of the worker's condition or the 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): s 327(3)(a) and (b). While the power to receive further evidence is suggestive of a rehearing function, the availability of that power to what might be classed as an administrative body is not determinative.
[97] In such circumstances the Appeal Panel might be expected to review the MAC to determine whether the changed circumstances affect the conclusions the AMS reached. If it reaches that conclusion, then it must have the power to conduct the assessment anew, including, if necessary, undertaking an examination of the injured worker as contemplated by s 324. That appears to presume something in the nature of a hearing de novo, a proposition Basten JA found attractive in Vegan (at [85]).
[98] Further, while the express limitations on opening the gate to an appeal are suggestive of an appeal limited to the grounds identified by the appellant, there is much to be said for the view that when used in the context of the review of an MAC by a panel including two specialists, that they should be entitled to determine "the true and correct view": State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 (at [30]). The purpose of setting up a panel with experts is to enable it to resolve questions within its expertise: Kalil v Bray [1977] 1 NSWLR 256 (at 262) per Street CJ (Moffitt P and Glass JA agreeing).
[99] Such an approach recognises the importance of the medical assessment in the process of determining an injured worker's rights to, and an employer's obligation to pay, workers' compensation and/or damages. Although the legislature has deliberately separated determination of those issues from the curial decision-maker, it would be a curious to find it intended that the Appeal Panel could not cure an error in a conclusive certificate merely because the parties had not identified it, with the result that a court could be required to determine the parties' rights on the basis of what, in the Appeal Panel's view, was an erroneous MAC. The inclusion of two specialists on the Appeal Panel must have been intended, in part, to permit them to bring their expertise to bear on the contents of the MAC.
[100] While a conclusion that an appeal by way of review may, depending on the circumstances, involve either a hearing de novo or a rehearing invokes a novel form of appeal, it ensures the legislature has created a flexible model which […] assists the objectives of the legislature. …
Section 328(2) has subsequently been amended in such a way that her Honour's observations concerning the scope for an appeal to extend beyond the grounds originally nominated to the Registrar are no longer applicable. However, the general conclusions that an appeal in a case such as the present "has indicia of an appeal by way of rehearing" and the importance of the medically qualified Panel members being able to decide questions of fact within their expertise remain pertinent following the amendment.
Consideration of the functioning of other appellate tribunals that proceed by way of rehearing readily shows that a ground of error of fact in an impugned decision is properly upheld simply by the appellate body reviewing the evidence upon which the first instance decision was made and drawing its own different factual conclusion. For example this is fully discussed in relation to the Court of Appeal and s 75A of the Supreme Court Act in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [20]-[31] (Gleeson CJ, Gummow and Kirby JJ). There, reference is made to the extent to which the Court of Appeal should recognise advantages in fact-finding enjoyed by a first instance judge.
No such advantage is enjoyed by an approved medical specialist relative to an Appeal Panel when the appeal concerns a "demonstrable error" of fact within s 327(3)(d). In such a case, as here, the Appeal Panel are on an equal footing with the first instance decision maker. Far from it being beyond jurisdiction for the Panel to form their own conclusion, that is precisely what they are constituted to do. They are empowered and required to substitute their own conclusion if different. The medically qualified Panel members are obliged to bring their professional expertise to bear: Ferguson v State of New South Wales [2017] NSWSC 887 at [13]; Guidelines, cl 1.6b.
The plaintiff cited the decision of Schmidt J in Versace v Australia's Best Tyres & Auto Pty Ltd [2016] NSWSC 1540 as having disapproved an Appeal Panel's formation and substitution of a conclusion contrary to that of the approved medical specialist. However on my reading of her Honour's judgment, particularly at [63], the error identified was that the Panel did not confine themselves to consideration of the specific grounds of appeal before them, at all. Rather, from the outset, the Panel reviewed the material with which they were presented and reached their own conclusion on the ultimate question of the injured worker's "impairments and losses". Apparently, having come to a different view concerning "assessment of the impairments and losses" the Panel then concluded "that the medical specialist must have erred". Her Honour considered that that was the reverse of the correct appellate process (see [76]-[79]), with which I would respectfully agree.
Nothing of the kind occurred in the present case. The Panel did not purport to take the whole of the material which had been before Dr Rosenthal and start afresh, making their own assessment of whole person impairment and then working backwards to determine whether the specific factual error of which the first defendant complained was demonstrated. Contrary to the plaintiff's submissions, Versace v Australia's Best Tyres & Auto Pty Ltd is not authority for the proposition that an Appeal Panel lacks power to uphold a ground of appeal concerning error of fact by drawing its own conclusion on the evidence and substituting that for the conclusion of the primary decision maker.
I reject grounds 1-4.
Frost v Kourouche differed from the present case in that the claimant there was examined by the review panel. It was a psychiatric assessment case. The panel would no doubt have considered an examination necessary in order to obtain the claimant's subjective account of her symptoms. In the present case the plaintiff did not request an examination and the first defendant makes no complaint about the Panel's rejection of its request for one. The issue before this Panel turned upon consideration of historical records of the plaintiff's previous injury in order to make a professionally informed evaluation of the causative involvement of that previous injury in the post-6 March 2009 impairment. The fact that the plaintiff was not examined in this case does not relevantly distinguish it from Frost v Kourouche with respect to principles concerning procedural fairness.
The significant point in Frost v Kourouche, which arises in exactly the same way in the present case, was that the claimant there was fully on notice of the critical issue the review panel was considering. The issue came to her attention through exchange with panel members in the course of their examination of her. Here, the critical issue of deduction from impairment on account of previous injury or pre-existing condition was made known to the plaintiff through the first defendant's written submissions, provided to the Registrar and responded to by the plaintiff.
The requirement that the plaintiff be accorded procedural fairness did not in my view include that he should be invited to make representations following upon the Panel tentatively forming their view on the application of s 323 of the Act. The Guidelines concerning procedure of Appeal Panels, in Chapter E, cll 41-47, do not contain such a requirement. There was no denial of procedural fairness and ground 7 is rejected.
The extent to which the plaintiff's post-March 2009 impairment was due to the pre-accident pathology identified in this material was, in the words of Basten JA at [121] in Campbelltown City Council v Vegan, a matter upon which "more than one conclusion [was] open" and upon which the members of the Panel "made their own assessment … [and came] to a different conclusion from that reached by other medical practitioners", in this case the conclusions of Dr Rosenthal and Dr Bodel (in the latter's August 2016 reports). In my view the Panel's reasons adequately explain how they arrived at their conclusion. At par 43 they quoted, with evident agreement, Dr Bodel's opinion of 5 July 2010 that "in reality, the pathology [at the L5/S1 level] is all the same pathology". They also evidently agreed with Dr Bodel that "an additional structural injury has occurred at the time of the second work injury". It was well open to the Panel, two of whose members were medically qualified, to exercise their clinical judgment to agree with Dr Bodel in this respect. It is also clear enough from pars 43-51 taken as a whole that, when they quoted at par 44 Dr Bodel's view that the 6 March 2009 injury was "a recurrence" of the 2008 injury, again they were agreeing with him.
I consider it sufficiently clear from pars 46 and 47 of the reasons that the Panel regarded Dr Gray's opinions (that in March 2009 the plaintiff had "probably suffered an aggravation of a pre-existing condition" and that "this present exacerbation may represent a recurrent disc prolapse at the same level (L5/S1) that was initially dealt with in 2008") as part of a medical consensus which operated until Dr Bodel issued his further reports in August 2016. It is clearly implicit in par 46 that the Panel considered Dr Gray's reservation (concerning the possibility of L4/5 involvement in the March 2009 accident) was resolved when a further MRI showed it was again the L5/S1 disc causing the plaintiff's symptoms.
At par 48 the Panel referred to "Dr Bodel's opinion" as being flawed, without expressly distinguishing between his different opinions of July 2010 and August 2016. However on a fair reading it is clear in my view that the Panel was rejecting the conclusion of the August 2016 reports. Their reason for doing so is stated and is readily understandable. Namely, that in August 2016 Dr Bodel provided no explanation for departing from his opinion of July 2010.
In par 50 the medically qualified Panel members applied their clinical judgment to conclude that the L5/S1 disc was affected by "instability" following the 4 August 2008 operation, in which part of the disc was removed to relieve nerve compression. The Panel referred to the short interval of time from August 2008, when the disc was bulging so severely as to require the discectomy, to 6 March 2009. It is evident that the instability which the Panel considered would be present and the shortness of this interval were two factors which in combination supported the conclusion that the pre-existing pathology was a contributing cause of the plaintiff's impairment from March 2009 onwards.
Like the overall assessment of whole person impairment to which Basten JA referred at [128] in Campbelltown City Council v Vegan, the questions for this Panel (1) whether the 2008 injury and pathology contributed to the plaintiff's impairment and (2) if so, in what degree, were "matters of evaluation and judgment by medical specialists". They were "not reducible to precise explanations". If the Panel got to question (2), the degree or extent of contribution would "only be a point within a legitimate range". As his Honour said, the adequacy of reasons must be assessed with those parameters in mind.
It has been held that the reasons of an administrative decision-maker (especially one who is not a judge) are not to be "construed minutely and finely with an eye keenly attuned to the perception of error" (see Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259; [1996] HCA 6 at 271-2, approving Collector of Customs v Pozzolanic (1993) FCR 280; [1993] FCA 456 at 287). A court exercising powers such as those under s 69 of the Supreme Court Act is required to observe restraint lest it mistake looseness in language for errors of substance.
In Minister for Immigration and Ethnic Affairs v Wu the following principles were amongst those listed by Kirby J at 291 (citations omitted):
1. The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.
2. This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others. This is not to condone double standards between the reasons and decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker.
The plaintiff argued that because one member of the Panel was, as required by the Act, an arbitrator, that person would have legal expertise and the Court should have higher expectations with respect to the standard and sufficiency of the reasons provided than would be the case if all members of the Panel were trained in medicine only. I reject that submission because the sole subject matter of the appeal before the Panel was a matter of medical judgment entirely within the medical members' expertise. The expression of the Panel's reasons on the critical matter would therefore necessarily fall to the medical members and reasonable allowance must be made in the fair reading of those reasons.
Applying the above principles I consider the Panel's reasoning to the conclusion of a 50% contribution is sufficiently explained in pars 43-51. Ground 8 is, accordingly, rejected