Vekic v Registrar of Workers Compensation Commission and Ors

COUNSEL : Ms B Nolan - Plaintiff Mr C Egan - Third Defendant

SOLICITORS : NSW Compensation Lawyers - Plaintiff Edward Michael Lawyers - Third Defendant

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

Smiljana Vekic v Registrar of Workers Compensation Commission & Ors

1 These proceedings were commenced by Summons on 19 June 2008. It named as First Defendant the Registrar of the Workers Compensation Commission (WCC); as Second Defendant, Ms Anne Britton, Dr John Ashwell and Dr Edward Schutz, "constituting the Medical Appeal Panel of the Workers Compensation Commission" (the Appeal Panel); and as Third Defendant, Lynch Manufacturing NSW Pty Ltd (Lynch). 2 Thereafter directions as to evidence etc were given by the Registrar and a date for hearing fixed. On 3 February 2009, the day before the hearing date, Harrison J vacated it and gave the Plaintiff leave to file an Amended Summons within 7 days. 3 An Amended Summons was duly filed and it forms the basis for the relief under s69 of the Supreme Court Act sought before me. The Amended Summons added as a Fourth Defendant, Dr John Beer (Dr Beer). It also, it may be said, changed very considerably the grounds upon which the Plaintiff seeks relief. However, that aspect of the case was dealt with by the orders of Harrison J and was reflected in the costs order he made. 4 Before me, Ms B K Nolan appeared for the Plaintiff and Mr C Egan for Lynch. There was no appearance of the other defendants who had filed submitting appearances.

5 The relevant facts are not in dispute. Since October 2000 the Plaintiff; has been employed by Lynch trading as Lynch Flowers. Its business involves the growing and selling of cut flowers. 6 As at 2 February 2005, she was working in a factory where her duties required her to clean, sort and bunch flowers into a required size and mixture. On that morning sometime before her lunch break, she slipped and fell on the factory floor whilst carrying to her work table, a bunch of flowers which she had washed.. She suffered injury in the fall which kept her away from work altogether for 1 month and has left her, she claims, with the continuing pain and disability which gave rise to her proceedings in the WCC and are, in turn, the subject of the matter before me. 7 On 20 March 2007 she lodged an application in the WCC to resolve "matters in Dispute" identified as: "1.1B For referral for medical assessment by an Approved Medical specialist (s293 of 1998 Act) Lump sum compensation where degree of permanent impairment in dispute Threshold for work injury damages where the degree of whole person impairment in dispute." 8 The application was accompanied by documentation including statements and medical reports. The Lynch's Reply confirmed the matters in dispute and accompanied it with medical reports which it had procured. 9 The WCC referred the dispute pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act (WIM Act) to Dr Beer, an Approved Medical Specialist (AMS) in these terms: "Medical Dispute Referred for Assessment (319) 1998 Act) the degree of permanent impairment of the worker as a result of any injury (s319(c)) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d)) whether impairment is permanent (s319(f)) whether the degree of permanent impairment of the injured worker is fully ascertainable (s329(g)) Date of Injury: 2 February 2005 Body part/s referred: Cervical spine Lumbar spine Left lower extremity Method of assessment: Whole person impairment." 10 Dr Beer proceeded to examination of the Plaintiff on 25 June 2007 and provided a Medical Assessment Certificate dated 2 July 2007. Apart from his findings on examination of the Plaintiff he had the benefit of the documents accompanying her application to the WCC and the documents accompanying the employer's Reply. In the former category were unsigned and undated statements of both the Plaintiff and her daughter, Jelena Vekic, aged 29. These statements appear to have been made with the assistance of a lawyer. 11 The Plaintiff's statement included this passage: I was off work for 1 month then I returned on light duties of 7am to 11am on 3 days per week. I did this for 2 months. The work was making boxes and was very light. After this I went back to the line just putting bunches on the line. I did this from 10am to 2.30pm on Wednesdays and 10.30am to 3pm on Thursdays and Fridays. I did this for 4 months. My employer put pressure on me to work more hours but I couldn't. They put me back on my old job. I now work 3 days of 4 hours, 10am to 2.30pm on Wednesdays and 10.30am to 3pm on Thursdays and Fridays. For 2 weeks I tried to work 5 hours but I was not able to do this. I think this was in July 2006." 12 Later in a table describing "Activities of Daily Living", the Plaintiff against "Physical Activity", said: "Physical Activity I cannot do any heavy lifting I cannot use the vacuum cleaner I cannot mop the floors I cannot mow the lawns I cannot iron I cannot do heavy laundry I cannot carry heavy shopping bags I can only sit for 20 minutes I can only walk for ½ kilometre Climbing stairs is difficult" 13 A subsequent table indicated that her daughter, Jelena, carried out activities of daily living which included: "Activity: Shopping; driving to medical appointments; cleaning bathrooms/toilets; vacuuming; mopping; providing massages; gardening/mowing lawn; laundry; ironing; food preparation and cooking; washing up; dusting."

14 In her statement Jelena Vekic included these paragraphs:

"My mother used to be very easy going and very rarely got upset. Now she is irritable and gets cranky a lot because of the pain she is in all the time.

She now likes a lot more quiet time. Before she never used to worry about noise.

I hear my mother walking around in the night and I know that she has disturbed sleep.

She used to come and watch my kids do karate but this takes 2 hours and she cannot now stand for this long so she doesn't come any more.

Because she is in pain and is irritable all the time this has put a strain on family relationships. She does not have any patience anymore. She is particularly impatient with my kids who are aged 10 and 12 years." 15 Before coming to consider the Medical Assessment Certificate given by Dr Beer, it is appropriate to indicate that section 322 of the WIM Act in force at the date of assessment provided: 322 Assessment of impairment

(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose.

(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker .

(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker .

(4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made. " 16 As contemplated by s322(1) and as provided for by s376, the Work Cover Authority of NSW issued guidelines with respect to the assessment of the degree of permanent impairment of an injured worker as a result of an injury. Those relevant to the issues referred to Dr Beer namely the degree of impairment arising from injuries to the Plaintiff's lumbar spine and cervical spine are in evidence before me. They provided that all spinal impairments are to be expressed as a "percentage whole person impairment (% WPI)". 17 The guidelines also required an assessment of spinal impairment to take into account the impact of the injury upon activities of daily living (ADLs). They stated that "a percentage of from 0-3% may be added for the impact of the injury on the workers ADLs". 18 It was submitted to me that as the injury to each spine required separate assessment, it was appropriate for the AMS to make an ADLs assessment for each of the cervical spine and the lumbar spine. In theory, up to 6% could thus be awarded for impact upon ADLs. 19 The guidelines provided further assistance in the assessment of ADLs in respect of spinal injuries: "4.31 ….. if the worker's capacity to undertake activities of daily living has not been impaired, or only minimally impaired, 0% should be added to the base impairment level. If the worker's capacity to undertake tasks related to sport, recreation, gardening, etc has been impaired, the base impairment should be increased by 1%WPI. If the worker's capacity to undertake household tasks (eg cooking, climbing stairs) has been affected, increase the base impairment by 2%WPI. If the worker's capacity to undertake personal care activities (eg dressing, washing) has been affected, increase the base impairment by 3%WPI. 4.32 The maximum amount that the base impairment due to a spinal injury can be increased due to impact on ADLs is 3%. 4.33 The ADLs reported as being affected by the injury need to be consistent with the clinical evidence and with other reports such as functional assessments, physiotherapy reports, etc." 20 As it has transpired the impact of the spinal injuries upon the Plaintiff's ADLs became by the Amended Summons the focus of the issues before me. 21 As I have noted, Dr Beer provided his Medical Assessment Certificate on 2 July 2007. In the report which accompanied it he made passing reference to matters apparently relevant to the impact of the injuries on ADL's: "Compared to 6 months ago she feels as though she is in more pain every day with the spine and the neck. She says when describing her pain that the only thing she can do when she arrives home from work is to lie down." ………………………………… Social activities/ADL She has three children aged 31, 29 and 26 years. She is a widow. Home duties: Her daughter mainly does the washing and mopping and shopping. I was informed the worker does very little at home - the daughter and husband do most things including making the beds. Recreation activities: Nil" 22 He made no further reference to the subject of ADLs in his "summary", "evaluation of permanent impairment" or "Reasons for Assessment. 23 However, in the Medical Assessment Certificate, itself against "lumbar spine", Dr Beer certified permanent impairment at 5% and added "ADL= 1%. Immediately above his certification of lumbar spine, he certified cervical spine impairment also at 5% but made no mention of ADLs. Thus the Plaintiff's allowance for impact of the accident upon her ADLs was limited to 1% in respect of her lumbar spine. It should be added that Dr Beer certified impairment to the left lower extremity at 0% 24 On the face of the claims made by the Plaintiff in her unsigned statement, if accepted, they would warrant an ADLs finding of at least 2%. Dr Beer gave no indication in his reasons as to the extent he accepted those claims or as to the basis of his assessment of ADLs at 1%. Nor did he reflect his own findings on history or examination in relation to ADLs. 25 Pursuant to section 327 of the WIM Act, the Plaintiff appealed within the prescribed time, relying on the single ground "the assessment was made on the basis of incorrect criteria". 26 The appeal came before the Registrar in accordance with s 327 (4): "(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. "

27 Submissions were made in support of the Plaintiff's appeal which commenced with these two paragraphs: "Dr Beer has allowed 1% in accordance with table 15-3 for impairment to activities of daily living relating to the impairment to the lumbar spine. The doctor erred in first, not obtaining a post accident history and details from the Applicant in relation to how her activities of daily living have been affected. The doctor has only allowed 1% for impairment to activities of daily living for the lumbar spine but has failed to make an allowance for the cervical spine. There is no evidence that the doctor has considered impairment to activities of daily living within the body of his report. The doctor has failed to obtain from the applicant particulars of how her activities of daily living are affected in order to make a fully informed allowance for the lumbar spine and secondly to make any allowance at all for the cervical spine. Table 1.2 page 4 of the 5 th Edition Guides to the evaluation of permanent impairment provides a table upon which assessments of impairment to activities of daily living are based. The doctor has failed to consider this table and obtain particulars from the claimant as to how her activities of daily living are affected in accordance with this table, or at all. 28 For reasons given in a statement dated 27 August 2007, the Registrar ordered that the appeal be referred to a medical Appeal Panel, comprising an arbitrator, a specialist orthopaedic surgeon and a specialist general surgeon. The Registrar's statement contained this paragraph: "I accept the Appellant's submission that the AMS has erred in his consideration of Activities of Daily Living, and has "failed to provide reasons as to how he has concluded at 1% impairment to ADL for the lumbar spine and why he has failed to make an allowance for the cervical spine at all". On the face of the application and submissions made, I am satisfied that a ground of appeal as specified in section 327(3)(d) has been made out on this basis." 29 Although other matters were put in issue before the Appeal Panel, the only issue debated before me concerned the conclusions of the panel in relation to ADLs. In that connection the Appeal Panel said: "34. The Appellant argues that there is no indication that the AMS considered the extent to which her spinal impairment interfered with her ability to undertake activities of daily living. Had he done so, we understand it to be suggested, an allowance in excess of that awarded would have been made. 35. The AMS recorded the symptoms reported by the Appellant. Under the heading "social activities/ADL" he noted that she was a widow and reported that she did little at home and the domestic tasks were mainly undertaken by her adult daughter and son-in-law. 36. That the Appellant reported that others largely undertook 'home care' tasks does not automatically trigger an award of 2%. Having regard to the totality of the evidence and applying his clinical skill and judgment, it was open to the AMS in our view to find that the extent to which the assessed impairment of the lumbar spine affected the Appellant's activities of daily living was at the low end of the scale. 37. In respect of the assessment of the cervical spine, the AMS did not explain why he decided not to make any award for ADLs. This is regrettable. However, in the absence of evidence of any material functional restriction resulting from impairment of the cervical spine we believe no demonstrable error is disclosed. 38. We agree that the MAC would have benefited for more detailed reasons but we are not satisfied that in the assessment of ADLs the AMS has applied incorrect criteria or fallen into demonstrable error." 30 In the result, the Appeal Panel decided not to disturb the assessment of Dr Beer. His Medical Assessment Certificate was "affirmed". 31 An application to the Appeal Panel to reconsider its decision under s378 of the WIM Act was refused. 32 Both Dr Beer and the Appeal Panel had a duty to give reasons for their respective decisions (s325(2)(c) of the WIM Act, Campbelltown City Council v Vegan (2006) 67NSWLR 372. 33 In my opinion, as the Registrar of the WCC found, and the Appeal Panel apparently recognised, there was a failure by Dr Beer to provide reasons in support of his assessment as to the impact of the Plaintiff's impairment upon ADLs. This deficiency was capable of cure by the Appeal Panel but it passed the opportunity to do so. She, in my view, was entitled to know why her claim for impact upon ADLs was assessed at 1% and not a greater percentage, or for that matter a lesser percentage. It cannot have been that her claims were entirely rejected because she was allowed 1%. It was no answer, in my opinion, for the Appeal Panel to point to "the absence of evidence of any material functional restriction arising from the impairment of the cervical spine". It was not for the Plaintiff to attribute her impairment to one spine or the other, or apportion it between her lumbar spine and cervical spine. 34 Dr Beer, despite having the Plaintiff's claims of impaired ADLs before him, does not appear, as in my view, section 325 required him, to have taken a history from the Plaintiff as to how her ADLs were affected and as to why it was that her daughter was called upon to perform so many household tasks. I would have thought that his interest might have been excited by the history he did take from a comparatively young woman, without comment "that the only thing she can do when she arrives home from work is to lie down". 35 In my opinion, Dr Beer's Medical Assessment Certificate contained an error of law on its face, namely, it did not comply with section 325(2)(c) of the WIM Act. The error infected the Appeal Panel's decision, in that it forewent the opportunity of investigating the matter itself as required by law (See Campbelltown City Council v Vegan [2004] NSWSC 1129 per Wood CJ at CL para 83). 36 The error of law exposed on the face of the proceedings in the WCC enlivens the jurisdiction of this Court under section 69 of the Supreme Court Act. Mr Egan submitted that it would be futile to grant relief as a medical reassessment of the Plaintiff would be undertaken under new guidelines which prevent the impact of ADLs from being assessed for more than one spine. It is not likely, so Mr Egan submitted, that a fresh assessment will produce a different result. However, in my opinion that is not necessarily so, as a new assessment of the Plaintiff would be at large. In any event, in my view, the Plaintiff, in respect of such a significant matter is entitled to a Medical Assessment Certificate produced according to law. That being so, the determination of both Dr Beer and the Appeal Panel should be set aside.

1. I quash the Medical Assessment Certificate of Dr John Beer dated 2 July 2007. 2. I quash the decision of the Appeal Panel dated 7 January 2008. 3. I order that the proceedings be returned to the Workers Compensation Commission and there dealt with according to law. 4. I order the Third Defendant, Lynch Manufacturing NSW Pty Ltd, to pay the Plaintiff's costs. 5. I make no order as to the costs of the other defendants. 6, Exhibits may be returned.

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