Vitaz v Westform

In paragraph 10b of his report the Doctor states under the heading An Explanation of my Calculations : 'In relation to the cervical spine examination, there was a variance between the formal and informal aspect of the physical examination but my clinical assessment overall, as per the Directions of the WorkCover Guides page 4 paragraph 1.13 and page 11 paragraph 1.60 indicated that there was no significant clinical finding, no muscle guarding, no documented neurological impairment and no significant loss of motion segment integrity and no other indication of on-going impairment related to the subject injury.' Whilst the Doctor refers to the Criteria in his explanation he has nevertheless not made those findings in paragraph five (5) of his assessment. Without making those findings first the Doctor cannot then go on to determine an absence of DRE indicators respectively. In other words in the course of Doctor's [sic] examination he did not test for asymmetry or record asymmetry or guarding and has not made a note of this, then it is impossible for him to confirm later in the report that such findings were made. In relation to Cervical Spine the Doctor does not provide any assessment of the degree of movement on any of the plains of movement of the Cervical Spine i.e. lateral tilt or rotation. The Doctor has found pain. If the Doctor has finds at least two (2) criteria then he is directed by the Guides to assess a DRE II category' impairment.

Under the heading of Findings on Physical Examination the Doctor does not even mention the thoracic spine. Therefore one must assume that no examination took place and no findings can be made. However, later in paragraph 10b Doctor expresses a clinical view based upon the entirety of the consultation that 'There was no significant clinical finding, no observed muscle guarding, no documented neurological impairment and no documented changes in structural integrity'

Again the Doctor has not made any findings or recorded these findings in the body of his report and he has precluded from then reporting to give an explanation. It is clear that the Doctor has not assessed for spasm, asymmetry or guarding in the Thoracic Spine. Similarly the Doctor has found pain, asymmetry and then he is directed by the Guides to award a DRE II Category assessment of impairment. In this case however there is no record of an examination taking place and now measurements of asymmetry or any other basic pertinent matters which would enable the Doctor to make a decision either way.

The Doctor has deducted one-tenth for pre-existing conditions, The Doctor precluded from doing this on a correct interpretation of Section 323 of the Workers Compensation and Workplace Injury Management Act. There is no case law or legislation which purports to give an AMS or a Medical Examiner an entitlement to deduct one-tenth without first finding a pre-existing physical impairment. Doctor has not provided any history of pre-existing symptomotology [sic] upon which he can base his upon opinion and there is no evidence in the form of medical reports which confirm that the Claimant was suffering from pain or any other problem in the lumbar spine before his injury." 20 The submission concluded with the following (Petrovich affidavit, page 75): "Under the heading of Consistency and Presentation the Doctor states: 'The client's affect was greatly depressed and his ability to cooperate on the voluntary basis was markedly restricted. There were features of illness behaviour and symptoms s [sic] demonstrated by cogwheel rigidity and non medically based upper limb tremors.'

Despite these comments this would not prevent the Doctor from determining an impairment pursuant to criteria required by the diagnostic related estimates pursuant to the Directions that he is given in both the 5th Edition AMA Guides and the WorkCover Guides which deal with consistency and presentation and direct the Doctor to apply a modifier and provide adequate reasons. It is apparent that Dr Giblin could describe, more fully, the variance of movement during the entire period of examination. The Doctor must then weigh up that variation with movements upon formal examination and determine what, if any, deduction is justifiable, The Doctor has failed to do this, it was open to the Doctor to deduct one-third of the 8% assessment calculated by him yet any deduction could not be explained properly because of the Doctors failure to particularise how minimal or gross the variance was. The Doctor has failed to observe the correct criteria and has also committed demonstrable errors as stated above." 21 On 16 June 2009, the Appeal Panel (Arbitrator Carol McCaskie, Dr Richard Crane and Dr Kenneth Hume) provided a Statement of Reasons for Decision (Petrovich affidavit, pages 76-80). Pursuant to s.328(5) WIM Act, the Appeal Panel confirmed the medical assessment certificate of Dr Giblin. The Statement of Reasons recited that the Registrar was satisfied that at least one of the grounds for appeal was made out in accordance with s.327(4) WIM Act, so that the Registrar had referred the appeal to the Appeal Panel for review of the original medical assessment. The Statement of Reasons of the Appeal Panel included the following (Petrovich affidavit, pages 77-80): " PRELIMINARY REVIEW

The Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines.

As a result of that preliminary review, the Panel determined that it was not necessary for the worker to undergo a further medical examination because the Panel had sufficient material before it on which to make a determination.

The Panel has before it all the documents that were sent to the AMS for the original assessment and has taken them into account in making this determination.

The Panel had before it the Medical Assessment Certificate given by the AMS and has taken it into account in making this determination.

DECISION MADE AFTER PRELIMINARY REVIEW WITHOUT HOLDING AN ASSESSMENT HEARING

The Panel determined to consider the matter on the papers without an Assessment Hearing or further examination.

The Appellant made written submission which the Panel has considered. No Notice of Opposition was filed.

In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact 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. Where more than one conclusion is open it will be necessary to explain why one conclusion is preferred. On the other hand the reasons need not be extensive or provide detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement. 15. Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the AMS certificate is binding.

In this matter the Registrar has determined that she is satisfied that at least one of the grounds of appeal under section 327(3) is made out. The Panel has accordingly conducted a review of the material before it and reached its own conclusion concerning the correct assessment of the impairments and losses suffered by the worker.

This matter was referred to the AMS to assess WPI of the workers cervical, thoracic and lumbar spine, and left upper extremity for injury which occurred on 13 December 2007.

The AMS assessed the cervical spine, thoracic spine and left upper extremity as 0% and the lumbar spine as DRE Category II giving 5%WPI a further 1 % for ADL was added giving 6%WPI, a 1/10'1' section 323 deduction was applied giving a resultant 5% WPI.

The Appellant made submissions in relation to all body parts, submitting the cervical and thoracic spine should have been assessed as DRE Category II, the lumbar spine as DRE Category III and that the left upper extremity should have resulted in an impairment assessment of 8%. The Appellant further submits the AMS had no basis on which to apply a section 323 deduction,

The Appellant submits the AMS examination of the cervical spine was deficient in that the AMS was required to assess the clinical history, conduct a comprehensive examination and determine whether or not there are findings compatible with a specific injury and that findings may include muscle guarding or spasm, asymmetric loss of motion or non-verifiable radicular complaints. The Panel agree with this however the Panel notes the AMS was impeded in his examination he states 'In terms of the active range of motion of his cervical spine, this was grossly restricted on an active basis.' The AMS as part of his findings made informal observation 'there was no evidence of spinal muscle spasm' The AMS refers to assigning a DRE Category I based on both his formal and informal aspect of the examination which were at variance. This ground of appeal is not made out.

The Appellant submits the AMS does not mention findings on physical examination for this body part, the Panel agrees his findings do not appear at that heading they do however appear at part 10b of the MAC where the AMS clearly gives his findings in relation to the thoracic spine as follows 'referring to WorkCover Guides 3 rd Edition page 4, Table 1.3 and Page 11, paragraph 1.6, it was my clinical view, based upon the entirety of the consultation, that I remained satisfied that there was no significant clinical findings, no observed muscle guarding, no documental neurological impairment and no documented changes in structural integrity, other than those of a normal age related configuration'. This ground of appeal is not made out.

The Panel notes the AMS did not find evidence of radiculopathy, The Appellants submission that a I cm wasting of the thigh is evidence of radiculopathy is incorrect, the wasting must be 2cm or greater to be considered. The submission that pain on straight leg raising is 'an obvious sign of radiculopathy' is incorrect, The submission that medical imaging dated 2 January 2008 'conforms to the exact requirements of the definition and diagnosis of radiculopathy' is incorrect as findings must be consistent with clinical signs such imaging studies are contributory not of themselves determinative of radiculopathy.

The Appellant has submitted a definition of radiculopathy, however the AMS and likewise the Panel must be satisfied the worker meets the impairment assessment as set out in the WorkCover Guides 3 rd Edition and AMA5, The WorkCover Guides at point 4.23 are clear as to what must be assessed to find radiculopathy. They are as follows; Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):

• Loss or asymmetry of reflexes • Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution • Reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution • Positive nerve root tension (Box 15-1, p 382, AMA5) • Muscle wasting - atrophy (Box 15-1, p 382, AMA5) • Findings on an imaging study consistent with the clinical signs (p 382, AMA5) 4.24 Note that radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain), do not alone constitute radiculopathy

Based on the above the Panel is satisfied the AMS assessment regarding lumbar spine DRE Category II is correct, the fact there was insufficient criteria of radiculopathy is clearly demonstrated in the MAC. This ground of appeal is not made out.

The Appellant submits the AMS has failed to give reasons as to the findings at examination that were at variance with the observed upper limb use. The Panel does not agree with this submission, the AMS was required to undertake an assessment using his clinical skills with a worker who was inconsistent in presentation. The AMS stated range of motion was not an appropriate assessment tool with this worker nor was assessment based on specific neural injury or weakness. The AMS observed during physical examination 'no gross asymmetry in terms of muscle power, bulk, strength, or deep tendon reflexes.' The AMS observed when the worker was distracted no evidence of adhesive capsulitis in either shoulder. The WorkCover Guides 3rd edition refer to use of range of motion (albeit referring to the lower extremity) where the point is well made at 3.16 that: Although range of motion (ROM) (AMA5 Section 17.2f pp 535-538) appears to be a suitable method for evaluating impairment, it may be subject to variation because of pain during motion at different times of examination, possible lack of cooperation by the person being assessed and inconsistency. If there is such inconsistency then ROM cannot be used as a valid parameter of impairment evaluation. This ground of appeal is not made out.

The AMS clearly outlined in the MAC the difficulty presented in the examination using the standard assessments. Under consistency of presentation the AMS states, 'Throughout the examination, this clients affect was greatly depressed, and his ability to co-operate on a voluntary basis were markedly restricted. There were features of illness behaviour and somatization of symptoms as demonstrated by cog wheel rigidity, and non-medically based upper limb tremors'

The WorkCover Guides 3rd edition point l.60 and AMA5 page l9 state: Inconsistent presentation

'Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual's range of motion are good but imperfect indicators of people's efforts. The physician must use the entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the physician may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.' This paragraph applies to inconsistent presentation only. The requirements stated in paragraph 1.13 apply to all assessments. The Panel is satisfied the AMS has, on the basis of inconsistent presentation not erred in his assessment and has given sufficient reason for his findings in relation to the above body parts. The Panel notes Dr Marchant in his report dated 17 November 2008 also comments on inconsistent presentation, Dr Dixon in his report dated 2 July did not. The appeal in relation to the cervical, thoracic and lumbar spine and left upper extremity is not made out. SECTION 323 DEDUCTION 28. The AMS made a 1/10* section 323 deduction. The AMS referred to the deduction 'pursuant to pre-existing asymptomatic age related considerations. These considerations are viewed as facet joint arthritis which, is degenerative in nature and which, have not been clearly commented upon in the imaging studies that I viewed'. Section 323(2) provides that 'if the extent of a deduction under this section (or part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purposes of avoiding disputation) that the deduction (or relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence'. The evidence regarding the extent of the condition is limited. There is radiological evidence, which confirms its existence all of which post date the injury. It is the Panel's view that it would be difficult and too costly to determine the extent of the deduction and accordingly, the Panel considers the appropriate deduction to be 10% in all of the circumstances. . [sic] This ground of appeal is not made out.

29. For these reasons, the Panel has therefore determined that the Medical Assessment Certificate dated 26 February 2009 given in this matter is confirmed.

30. For the reasons set out in this statement of reasons, the decision in this matter is that: the Medical Assessment Certificate given in this matter should be confirmed." 22 On 18 August 2009, the Plaintiff commenced proceedings in this Court seeking orders setting aside the decisions of Dr Giblin and the Appeal Panel.

Relief under s. 69 Supreme Court Act 1970 23 The present proceedings invoke the exercise of the supervisory jurisdiction of this Court. There is no statutory appeal from the determination of an Approved Medical Specialist or the Appeal Panel to this Court: Zuanic v Gypro-Tech (Australia) Pty Limited (In Liq) [2006] NSWSC 739; 66 NSWLR 206 at 217 [30]. 24 The proceedings involve a claim for relief in the nature of certiorari under s.69 Supreme Court Act 1970. It is claimed, in substance, that there was error of law on the face of the record and/or jurisdictional error on the part of Dr Giblin and the Appeal Panel. 25 The Plaintiff also sought an order in the nature of mandamus or, alternatively, an order pursuant to s.65 Supreme Court Act 1970 that the Approved Medical Specialist exercise his power according to law. Relief of this type may be granted if jurisdictional error is established involving an actual or constructive failure to exercise jurisdiction: McBeatty v O'Gorman [1976] 2 NSWLR 560 at 564-565; Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 399, 418-420. 26 The Plaintiff bears the onus of proving the facts grounding an entitlement to such relief: Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 at 259.

Relief in the Nature of Certiorari 27 Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia [1995] HCA 58; 184 CLR 163 at 175-176. 28 Relief under s.69 may be granted in the case of error of law on the face of the record: Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275 at [28]. The face of the record includes the reasons expressed by Dr Giblin and the Appeal Panel for his and its ultimate determination: s.69(4) Supreme Court Act 1970. 29 In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 30 In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia, and continued at 351 [82]: "Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." 31 See, more recently, Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531 at 567-578 [56]-[90] concerning jurisdictional error and error of law on the face of the record for the purposes of relief in the nature of certiorari. The Confines of Judicial Review 32 The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin [1990] HCA 21; 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 33 This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272; Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at 152-154 [43]-[44]. 34 The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the Court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 40-41. 35 The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291. 36 A finding of fact may reveal error of law where it appears that the decision maker has misdirected himself or herself or where there is no evidence to support a finding: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155-6; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-357. 37 A failure on the part of an administrative tribunal to give any or any adequate reasons does not, without more, establish that the decision involved some error, although there may be cases that warrant the inference that the relevant tribunal has failed in some respect to exercise its powers or jurisdiction according to law: Absolon v New South Wales TAFE [1999] NSWCA 311 at [67]; YG v Minister for Community Services [2002] NSWCA 247 at [37]. As will be seen later in this judgment, the Court of Appeal in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 considered the duty of an Appeal Panel under s.327 WIM Act to give reasons. 38 Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-199: Bruce v Cole (1998) 45 NSWLR 163 at 183-184.

The Plaintiff's Grounds 39 Ms Nolan submitted that the Plaintiff was entitled to an order in the nature of certiorari setting aside the decision of the Approved Medical Specialist, Dr Giblin, upon the basis that it was vitiated by jurisdictional error and was of no effect because:

(a) he misdirected himself as to the effect of s.323 WIM Act;

(b) he failed to comply with the statutory task incumbent upon him pursuant to s.325 WIM Act or at common law to give reasons;

(c) he denied the Plaintiff procedural fairness by failing to advise the Plaintiff of his adverse conclusions arrived at which were not obviously open on the known material. 40 The Plaintiff submitted that the decision of the Appeal Panel dated 16 June 2009 was vitiated by jurisdictional error and was of no effect because:

(a) the Appeal Panel failed to conduct its own examination of the Plaintiff;

(b) the Appeal Panel relied on the facts found and the reasoning of Dr Giblin and failed to cure errors in his decision;

(c) the Appeal Panel affirmed the purported decision of Dr Giblin and thereby affirmed a decision that was no decision at all.

Ground 1 - Alleged Misdirection by Approved Medical Specialist as to Proper Construction of s.323 WIM Act

Ms Nolan made various detailed submissions concerning the proper construction and application of s.323 WIM Act. In broad terms, it was submitted that certain factual pre-conditions did not exist to permit Dr Giblin to properly make his deduction in the degree of whole person impairment attributable to the Plaintiff's lumbar spine. I have already set out Dr Giblin's reasons for assessment and making of the deduction at [15] above. 41 Section 323 WIM Act (as in force at the time the Plaintiff was examined) is in the following terms:

" 323 Deduction for previous injury or pre-existing condition or abnormality

(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%). (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter. (4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section."

42 The guidelines referred to in subsection (4) are those issued by the WorkCover Authority pursuant to s.376 WIM Act. At the time the Plaintiff was examined by Dr Giblin, the applicable guidelines were the WorkCover Guides for the Evaluation of Permanent Impairment, 3rd edition, 6 February 2009 ("the WorkCover Guides").

43 The construction of s.323 had not been the subject of judicial consideration until quite recently: Cole v Wenaline Pty Limited [2010] NSWSC 78 (Schmidt J). However, a substantial body of authority does exist in relation to the section's predecessor, s.68A Workers Compensation Act 1987. Notwithstanding variation in the drafting of the two provisions, both essentially concerned "the contribution of former injury, or causation, to the consequences of later injury": Cole v Wenaline Pty Limited at [12]. Having considered the authorities dealing with s.68A, Schmidt J concluded at [38]: "38 What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the second injury. Thirdly, what that proportion was." 44 Importantly, her Honour emphasised at [29]:

"For a deduction to be made from what has been assessed to be the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment." 45 This is consistent with the Court of Appeal's position in Matthew Hall Pty Limited v Smart [2000] NSWCA 284, where Giles JA (with whom Mason P and Powell JA agreed) said at [32] in respect of the former s.68A: "… it is necessary that the pre-existing condition was a contributing factor causing the loss." Application of s.323 to the Present Case

46 There was ultimately no issue at the hearing in this Court as to whether the Plaintiff had a "pre-existing condition or abnormality" for the purposes of s.323. Although it was originally submitted to the Appeal Panel that there was "no evidence of pre-existing symptomology" upon which Dr Giblin could make a deduction under s.323 (see [19] above), Ms Nolan conceded in this Court that the Plaintiff did have a pre-existing condition or abnormality (T11.49), namely "degenerative facet joint arthritis" (T13.34) to which Dr Giblin referred in his reasons for assessment (see [15] above). Ms Nolan also accepted that it was of no consequence in itself that the Plaintiff's pre-existing condition was asymptomatic, so long as it could be shown on the evidence to have contributed to the impairment after the second injury: Matthew Hall Pty Limited v Smart at [32]; Cole v Wenaline Pty Limited at [16]. 47 Adopting the multi-step approach taken in Cole v Wenaline Pty Limited, Ms Nolan submitted that once a pre-existing injury, condition or abnormality is found to exist, a finding must then be made that it was a cause of the relevant permanent impairment. It was further submitted that a finding of this type ought be viewed as a "jurisdictional fact" in the context of administrative decision making (T19.23), such that any error in making that finding would constitute an error of law and affect the status of the decision. 48 I do not consider it necessary in the circumstances of this case to delve into such involved and technical legal argument. The First Defendant did not appear to take issue with the proposition that s.323 requires the pre-existing condition to have contributed to impairment arising from the later injury, and I accept this to be the proper construction having regard to the authorities referred to at [43]-[45] above. The real question to be resolved in respect of Ground 1 was whether, in this particular case, Dr Giblin made a finding that the Plaintiff's degenerative facet joint arthritis contributed to the level of post-accident impairment of his back, and whether there was evidence available for him to do so. The latter is significant because it is insufficient to assume that the existence of a pre-existing injury or condition will always contribute to the impairment flowing from any subsequent injury: Cole v Wenaline Pty Limited at [30].

Dr Giblin's Findings Regarding the Plaintiff's Pre-Existing Condition 49 The Plaintiff submits that no such finding of causation or contribution to whole person impairment attributable to his pre-existing condition was apparent on the face of the reasons given by Dr Giblin. The First Defendant contends that specific portions, as well as a fair reading of Dr Giblin's reasons in their entirety, reveal that he did. 50 Overall, I am satisfied that Dr Giblin did find that the Plaintiff's pre-existing degenerative facet joint arthritis had contributed in some material way to the level of post-injury permanent impairment to his back. I reject the submission made at one point, on behalf of the Plaintiff, that some kind of express statement linking the degenerative facet joint arthritis to specific symptoms of the permanent impairment was required (T16.22). Dr Giblin made the deduction "pursuant to pre-existing asymptomatic age related conditions" in light of "the abovementioned comments", which I note concerned lumbar muscle spasms that he had observed during the involuntary or informal examination. 51 While there may be some degree of ambiguity in Dr Giblin's wording, a fair reading of his reasons shows it was implicit that he considered the muscle spasms to be clinically related to the pre-existing condition. It is not an error of law to omit to state expressly a finding that is clear on a fair reading of the decision-maker's decision: Polglaze v Veterinary Practitioners Board of NSW and Anor [2009] NSWSC 347 at [56]. In my view, any ambiguity was removed by Dr Giblin's summary of the Plaintiff's injuries and diagnoses at paragraph 7 of the medical assessment certificate (emphasis added):

"This client presents with a clear history of symptoms occurring in the spine and left shoulder as a result of the subject accident and consistent with abnormalities noted on the MRI scan of the spine and left shoulder." 52 I take the above extract as also being demonstrative of Dr Giblin's regard for the evidence available to him, and not merely an assumption that the Plaintiff's pre-existing condition must have contributed to his current level of permanent impairment: Cole v Wenaline Pty Limited at [28]. There was evidence of muscle spasms upon which Dr Giblin could, and implicitly did, conclude were in some form or another related to the degenerative facet joint arthritis disclosed by the MRI scans. If this were not the case, it is difficult to understand how the "clear history of symptoms in the spine" was "consistent with abnormalities noted on the MRI scan of the spine". The only assumption Dr Giblin made was pursuant to s.323(2) by applying a 10 percent deduction, because the "deductible proportion" would have been "difficult or costly to determine". This was obviously applied due to the absence of medical evidence as to the extent of the deductible proportion, since, according to Dr Giblin, the Plaintiff's pre-existing condition had "not been clearly commented upon in the imaging studies". 53 Having found, on the evidence, that the Plaintiff's pre-existing degenerative facet joint arthritis contributed to the level of impairment of his lumbar spine, Dr Giblin was entitled to make a deduction in accordance with s.323(1), which he did. The Plaintiff makes no complaint concerning the quantum of that deduction. 54 I am not persuaded that Dr Giblin misdirected himself as to the effect of s.323 WIM Act on the basis of facts where there was no evidence to support such findings. No error of law has been demonstrated in this respect. 55 I turn now to consider the Plaintiff's contention that Dr Giblin failed to provide adequate reasons for his assessment. Ground 2 - Alleged Failure by Approved Medical Specialist to Give Reasons

56 A statutory obligation to give reasons for an assessment of permanent impairment is imposed upon an approved medical specialist by s.325(2) WIM Act, which relevantly provides: "(2) A medical assessment certificate is to be in a form approved by the Registrar and is to: (a) set out details of the matters referred for assessment, and (b) certify as to the approved medical specialist's assessment with respect to those matters, and (c) set out the approved medical specialist's reasons for that assessment, and (d) set out the facts on which that assessment is based." 57 Both parties submitted that an obligation on an approved medical specialist to give reasons also arises from the common law. I accept that there is an implied statutory obligation on the basis that, in the same way an assessment by an Appeal Panel constituted under s.328 WIM Act, an assessment of permanent impairment by an approved medical specialist involves the application of a statutory test by which legal rights as between an employee and employer are determined, and ought therefore be considered an exercise in the nature of judicial function: Campbelltown City Council v Vegan at 394 [109]; see also Jones v The Registrar WCC [2010] NSWSC 481 at [34]. 58 It was submitted that Dr Giblin had failed to give adequate reasons when assigning the Plaintiff to the Diagnostic Related Estimate ("DRE") category 1 in respect of both his cervical and thoracic spine. The Nature of the Duty to Give Reasons 59 In Campbelltown City Council v Vegan, Basten JA said of the nature of an Appeal Panel's duty to give reasons at 397 [121]-[122] (emphasis added): "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 the 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 a 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 (at 281-282) (McHugh JA)."

60 In Bjoko v ICM Property Service Pty Limited [2009] NSWCA 175, the adequacy of reasons given by an Appeal Panel for not requiring a further medical examination of a worker was challenged. An appeal by the worker was rejected. The Court of Appeal said (by reference to authority referred to at [33] and [35] of this judgment) at [36] per Handley AJA (with whom the other members of the Court agreed): "The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court: '… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error'." 61 I am satisfied that the "minimum legal standard" described at [59] above is equally applicable to an approved medical specialist. The Plaintiff attempted to elevate this by submitting that the character of matters to be dealt with under s.325(2) means that the same standards applicable to expert opinion evidence have similar application here: Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; 52 NSWLR 705 per Heydon JA at 743 [85]. A comparison was also drawn between the decision of an approved medical specialist and that of a trial Judge, to the effect that the former must give reasons to the same standard or extent expected in the course of judicial fact finding (reference was made to Carlson v King (1947) 64 WN(NSW) 65 and Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402). 62 I do not accept either of these submissions. As James J said in Jones v The Registrar WCC (at [37]), an approved medical specialist is "not a judge or even a lawyer and he acts as both an expert and as the decision-maker". Further, the matters considered by Heydon JA in Makita (Australia) Pty Limited v Sprowles are directed specifically to the admissibility of expert opinion evidence, in particular, the Court's satisfaction that the expert is suitably qualified to give the relevant opinion. In contrast, an approved medical specialist is a practitioner appointed under statute and who may be restricted to assessing medical disputes within their specialty (s.320(2) WIM Act). That said, some regard should still be had to the principles of the requirement that judicial officers give reasons for their decisions, and to the important effect given to a medical assessment certificate by the WIM Act: Jones v The Registrar WCC at [38]. It is also necessary to refer to parts of the WorkCover Guides in so far as they indicate how relevant assessments are to be carried out: Ackling v QBE Insurance (Australia) Limited and Anor [2009] NSWSC 881 at [83]. 63 Section 322(1) WIM Act provides that an assessment of the degree of permanent impairment is to be made in accordance with the WorkCover Guides in force at that time (see [42] above). Paragraph 1.5 provides so far as is relevant: "Assessing permanent impairment involves clinical assessment on the day of assessment and determining…

• the degree of permanent impairment that results from the injury …

in accordance with diagnostic and other objective criteria as detailed in the WorkCover Guides ." 64 Paragraph 1.13 of the WorkCover Guides states (emphasis added): "The WorkCover Guides are meant to assist suitably qualified and experienced medical specialists to assess levels of permanent impairment. They are not meant to provide a 'recipe approach' to the assessment of permanent impairment. Medical specialists are required to exercise their clinical judgment in determining diagnosis, whether the original condition has resulted in an impairment and whether the impairment is permanent. The degree of permanent impairment that results from the injury must be determined using the tables, graphs and methodology given in the WorkCover Guides and AMA5."

65 "AMA5" refers to the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th edition. Table 15-4 of AMA5 relating to "DRE: Thoracic Spine" contains several columns, the first of which reads: " DRE Thoracic Category 1

0% Impairment of the Whole Person No significant clinical findings, no observed muscle guarding, no documentable neurological impairment, no documented changes in structural integrity, and no other indication of impairment related to injury or illness; no fractures." 66 Table 15-5 of AMA5 relating to "DRE: Cervical Spine" is set out in a similar manner. The first column reads: "DRE Cervical Category 1

0% Impairment of the Whole Person No significant clinical findings, no muscular guarding, no documentable neurological impairment, no significant loss of motion segment integrity, and no other indication of impairment related to injury or illness; no fractures." Did Dr Giblin Fail to Give Adequate Reasons for His Assessment? 67 Counsel for the Plaintiff submitted that Dr Giblin expressed his conclusions in the medical assessment certificate by simply asserting the relevant assessment criteria without reference to specific aspects of the clinical examination upon which those conclusions were based. The main findings which are impugned by the Plaintiff were:

(a) in respect of the cervical spine, "no significant clinical findings, no muscle guarding, no documented neurological impairment and no significant loss of motion segment integrity and no other indication of ongoing impairment related to the subject injury" ; and

(b) in respect of the thoracic spine, "no significant clinical findings, no observed muscle guarding, no documental neurological impairment and no documented changes in structural integrity, other than those of a normal age related configuration". 68 Ms Nolan pointed to the fact that Dr Giblin made limited reference to the Plaintiff's spine in the portion of his reasons headed "Findings on Physical Examination", although acknowledged this is not the only part of the report in which relevant findings can be made (T23.7). It was also said that Dr Giblin was required to expressly demonstrate in his reasons that he had taken into account all matters relevant to a diagnosis using the DRE method, as set out in the WorkCover Guides and Chapter 15 of AMA5. Ms Nolan submitted that Dr Giblin made reference only to those matters which formed part of his conclusion (T25.29). 69 The First Defendant submitted that Dr Giblin had fulfilled the minimum legal standard referred to in Campbelltown City Council v Vegan (see [59] above), as demonstrated by his reference to aspects of the clinical examination, the WorkCover Guides and the radiological investigations. 70 I pause to observe that no suggestion is made that Dr Giblin erred in preferring one conflicting body of evidence before him over another, or that he failed to explain in sufficient detail his substantive reasons for doing so: see, for example, Campbelltown City Council v Vegan at 397-398 [124]-[129]. In one sense, the Plaintiff's complaints concern formality and are directed to fine technical detail in a manner comparable to the "hyper-critical" approach taken by the appellant in Bjoko v ICM Property Service Pty Limited (see [60] above); see also Pateman v Peninsula Village Limited trading as Peninsula Village Retirement Centre and Ors [2007] NSWSC 586 at [17]. 71 I am not persuaded that any of the matters raised for the Plaintiff demonstrate a failure of Dr Giblin to provide adequate reasons. To again use the terms of James J in Jones v The Registrar WCC at [49]-[50], Dr Giblin was an approved medical specialist having the qualifications stated in the medical assessment certificate. The WorkCover Guides required him to assess the degree of permanent impairment by himself making a clinical assessment and by applying the diagnostic criteria in AMA5. 72 Dr Giblin made findings in respect of both the cervical and thoracic spine based on his "clinical assessment over all" carried out "as per the directions of the Workcover Guides …". There is a presumption of regularity that an approved medical specialist has performed such tests as might be required to determine whether certain diagnostic criteria are present: Jones v The Registrar WCC at [50]. There is no evidence to the contrary here. The medical science Dr Giblin was required to apply was not controversial and his reasons were not required to be extensive or detailed. 73 While Dr Giblin's findings were clearly in terms identical or at least similar to those used in the DRE criteria, I note the majority of those criteria are expressed in a conclusive and negative manner. It is difficult to conceive how one could expand meaningfully upon, for example, a finding of "no documented changes in structural integrity". Had Dr Giblin found any positive indicators of certain criteria, for example those listed in DRE 2 or DRE 3 for either the cervical or thoracic spine, then he may well have had to refer to evidence of such and comment on the nature and extent of their presence before arriving at a diagnosis. This is in fact what was done in assigning the Plaintiff to DRE category 2 in respect of the lumbar spine. In contrast, I do not consider it necessary for an approved medical specialist to systematically deal with each and every criterion he does not consider to be indicated in a particular case, simply so he can expressly say they do not apply. 74 I am satisfied that Dr Giblin satisfactorily discharged his statutory and common law duty to give reasons. Again, no error of law has been demonstrated in this regard. Ground 3 - Alleged Denial of Procedural Fairness by Approved Medical Specialist to the Plaintiff 75 The third basis upon which the Plaintiff contended that the decision of the Approved Medical Specialist was vitiated by jurisdictional error involves an allegation of denial of procedural fairness. It was argued that this occurred through Dr Giblin's failure to advise the Plaintiff of his adverse conclusions formed during the informal part of the examination, which it was submitted were not obviously open on the known material. 76 Three key questions arise in dealing with this ground. Firstly, is whether the rules of procedural fairness apply to an assessment of permanent impairment under Chapter 7 Part 7 WIM Act. Secondly, is whether the rules of procedural fairness dictated a right of the Plaintiff to have Dr Giblin's observations during the informal examination put to him then and there. Thirdly, consideration must be had to whether the particular denial of procedural fairness in this case (if there was one) actually resulted in the Plaintiff losing an opportunity to secure a successful or different outcome: Zurich Australia Insurance Limited v Motor Accidents Authority of NSW & Ors [2010] NSWSC 214 at [43]; Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145-147.

Obligation of Procedural Fairness 77 The Plaintiff submitted that the exercise of administrative power attracts with it the requirement for procedural fairness, and therefore must be observed by an approved medical specialist conducting an assessment of permanent impairment under the WIM Act. The Court was not directed to any case law or authority dealing directly with this proposition as it applies to approved medical specialists (as opposed to an Appeal Panel), and indeed there appears to be none. I do not consider it sufficient to assume that every exercise of administrative power will always attract the requirement for procedural fairness. 78 That said, I am satisfied that an approved medical specialist performing an assessment of permanent impairment is, at least as a starting point, under some obligation of procedural fairness. Chapter 7 Part 7 WIM Act confers power upon an approved medical specialist to make an assessment of a person's level of permanent impairment which may, depending on the outcome of that assessment, destroy, defeat or prejudice that person's rights or interests in recovering compensation under the WIM Act. The rules of procedural fairness therefore apply to the exercise of that power unless they are excluded by plain words of necessary intendment in the statute conferring the power: Annetts v McCann [1990] HCA 57; 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ. I am not persuaded that the relevant parts of the WIM Act disclose such exclusionary terms. 79 I turn now to consider what particular requirements of procedural fairness were dictated in the circumstances of the present case.

Submissions on Requirements of Procedural Fairness in the Present Case 80 The Plaintiff submitted that procedural fairness requires an approved medical specialist to advise a person likely to be affected by their decision of any adverse conclusion which has been arrived at, and which would not obviously be open on the known material: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited [1994] FCA 1074; 49 FCR 576 at 591-592. Ms Nolan relied on the Full Federal Court's reasons at 591-592 as to the nature of such a requirement, in particular the following passage: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question." 81 Dr Giblin relied on his observations of the Plaintiff during both formal and informal aspects of the examination to arrive at his various clinical findings, and ultimately his assessment. For example, the Plaintiff's active range of motion for both his cervical and lumbar spine was observed during the formal examination to be "grossly restricted on an active basis". However, the informal examination "included but was not restricted to, taking a shirt on and off, moving around the room when not obviously observed, placing sandals on the feet, and negotiating around furniture". It was Dr Giblin's observations during this part of the examination which, having regard to paragraph 1.60 of the WorkCover Guides dealing with "Inconsistent presentation", formed the basis for his decision to place the Plaintiff in DRE category 1 with respect to the cervical and thoracic spine. These conclusions were clearly adverse to the Plaintiff's claim. 82 The Plaintiff contends that these observations during the informal examination were conclusions not obviously open on the known material. It was submitted that, in order to satisfy the requirements for procedural fairness, Dr Giblin should have disclosed his tentative views or observations to the Plaintiff at the time of the examination, thereby affording him a chance to put information to Dr Giblin in support of an outcome favourable to his interests: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56; 216 CLR 212 and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 81 ALJR 515. In the circumstances, that opportunity would have been for the Plaintiff to provide an explanation of any inconsistency in his presentation. Ms Nolan suggested at the hearing that, hypothetically, a practical way of doing this would be for Dr Giblin to have said to the Plaintiff words to following effect (T7.7): "'In the active examination when I was asking you to do X, Y and Z you had difficulty moving and your movement was very restricted. However, when you were putting on your shoes, taking your shirt on and off, moving around the room when you were not aware that I was observing you, you didn't appear to have the same restriction of movement. Can you please provide me an explanation as to why that was the case?'"

83 The Plaintiff submitted that Dr Giblin would then have been required to pay regard to any explanation offered by the Plaintiff, but that this would not have necessarily required him to alter his decision or findings. 84 It is convenient to note that no complaint of the above kind was ever made to the Appeal Panel. It was argued for the first time in this Court and I will return to this issue later in the judgment (see [100] below). 85 The First Defendant denies that the obligation of procedural fairness required Dr Giblin to take the approach advanced by the Plaintiff. Having regard to the fact that the nature of proceedings and the jurisdiction being exercised may affect the way in which procedural fairness is applied (J v Lieschke [1987] HCA 4; 162 CLR 447 per Brennan J at 456), the First Defendant submitted that those requirements had been satisfied. It was submitted that in light of the provisions of Chapter 7 Part 7 WIM Act, the legislature had clearly intended for an independent assessor who complies with the statutory requirements to conduct a clinical examination along certain guidelines and produce a binding certificate. It was said that the Plaintiff had put his view to the Approved Medical Specialist by way of the documentary evidence, and that Dr Giblin was both entitled and qualified to make a clinical and determinative judgment in a clinical setting. It was noted that the Plaintiff did not make any allegation that Dr Giblin failed to take into account relevant factual material or arguments.

Consideration 86 The content of the rules of procedural fairness is variable: Kioa v West [1985] HCA 81; 159 CLR 550 at 612 per Brennan J. Their requirements depend on the circumstances of the case, the nature of the inquiry and the rules under which the decision-maker is acting as well as the subject matter: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 per Tucker LJ. Resolving the question of whether there was a denial of procedural fairness in this case is therefore one in which the application of relevant principles are very much influenced by the particular circumstances, including the relevant statutory context. 87 The Plaintiff's complaint only concerns the "hearing rule" element of procedural fairness. No allegation of perceived or actual bias was made against Dr Giblin. In Symbion Health Limited v Hrouda & Anor [2010] NSWSC 295, Hall J conveniently set out (at [92]) several propositions relevant to the determination of what the hearing rule requires in particular circumstances: (1) In determining the fairness or otherwise of procedures, it has been held that ' [F] airness is not an abstract concept. It is essentially practical … the concern of the law is to avoid practical injustice': Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 at 13 to 14 per Gleeson CJ. (2) Some broad considerations that determine the application of the hearing rule include the consequences of the decision for individual interests, the nature of the issues to be considered and the need for urgent action: Judicial Review of Administrative Action (supra) at [8.35]. (3) Regardless of how "fairness" is assessed, the onus of establishing that the standard has not been met will lie upon the party who seeks to prove breach of natural justice: Judicial Review of Administrative Action (supra) at [8.20]. It has been noted that whatever standard is adopted, a person should have a "reasonable opportunity" of presenting his case: per Tucker LJ in Russell (supra) cited by Brennan J in Kioa (supra). The grant of relief for a denial of procedural fairness is discretionary. Relief may be refused if the Court is satisfied that the alleged breach did not deprive the person of the possibility of a different or more favourable outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Revue Tribunal; ex parte Ala (2000) 204 CLR 82 at 88 to 89 (Gleeson CJ)." 88 I emphasise Gleeson CJ's remarks in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam that the concept of fairness is a practical one. It is therefore important to approach the present case with a sense of pragmatism. 89 Nothing in the WIM Act provides a person with the right to have informal observations made by an approved medical specialist in assessing that person's permanent impairment put to them during an examination. While certain procedural matters are proscribed with respect to appeals against an assessment (see ss.327, 328), the only statutory procedural requirement for assessments themselves is that they be carried out in accordance with the WorkCover Guides. The WorkCover Guides may be characterised as delegated legislation, and therefore unable to affect the proper construction of the WIM Act or limit rights governed by it: Ackling v QBE Insurance (Australia) Limited and Anor at [83]. However, with these qualifications in mind, it is still useful to consider the following relevant paragraphs (emphasis added):

"1.31 Assessors are reminded that they have an obligation to act in an ethical, professional and considerate manner when examining claimants for the determination of permanent impairment. 1.32 Effective communication is vital to ensure that the claimant is well-informed and able to maximally cooperate in the process. Assessors should: ensure that the claimant understands who the assessor is and the assessor's role in the evaluation ensure that the claimant understands how the evaluation will proceed take reasonable steps to preserve the privacy and modesty of the claimant during the evaluation not provide any opinion to the claimant about their claim ." 90 In my view, the above wording emphasises the fact that an assessment of permanent impairment under Chapter 7 Part 7 WIM Act is to be conducted by a qualified and independent medical specialist within a clinical setting, and whose professional and clinical judgment is presumed to be correct. It is not a quasi-judicial inquiry where a claimant has the right to advocate their interests. It is a medical examination first and foremost. It is an examination conducted in the context of various and often extensive documentation in support of the applicant's claim having already been made available to the approved medical specialist. In practical terms it would seem that, at least on its face, having to ask for and take into account a person's subjective response to informal observations made by a medical practitioner could undermine the clinical utility of those observations and the intended independence of the assessment process. The final requirement of paragraph 1.32 of the WorkCover Guides reinforces this view. 91 I reject the Plaintiff's submission that informal observations made by an approved medical specialist rise above the status of a mental process or provisional view, or that they are in some way material from another source such that they must be put to a person during an examination: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited ([80], [82] above). Again, it is a medical examination, not a hearing.

92 I am not persuaded that procedural fairness required Dr Giblin to disclose to the Plaintiff, his observations made during the informal examination. Further, in circumstances where it was submitted that any response by the Plaintiff need not necessarily alter Dr Giblin's decision, I am not satisfied that the Plaintiff lost any chance of securing a different or favourable outcome. No denial of procedural fairness has been established. 93 I will now deal with the grounds advanced by the Plaintiff as to why the decision of the Appeal Panel dated 16 June 2009 was vitiated by jurisdictional error or error of law and was of no effect.

Ground 4 - Failure by Appeal Panel to Conduct its Own Examination of the Plaintiff 94 The first ground upon which it was contended that the decision of the Appeal Panel contained jurisdictional error was that the Appeal Panel failed to conduct its own examination of the Plaintiff once an appeal was brought under s.327 WIM Act. 95 As mentioned at [16] above, the Plaintiff appealed against the decision of Dr Giblin on the grounds that his assessment was made on the basis of incorrect criteria and/or that the medical assessment certificate contained a demonstrable error. I have already set out at [19]-[20] above the relevant submissions made by the Plaintiff in respect of each ground in his application for review by the Appeal Panel. Despite submitting that Dr Giblin had failed to perform various tests that would have enabled him to make certain clinical findings upon which his overall assessment was based, the Plaintiff did not request that he be re-examined by the Appeal Panel (Petrovich affidavit, page 69). Similarly, no request was made by the Plaintiff to present oral submissions to the Appeal Panel, nor was leave sought to rely on any evidence that was not available to Dr Giblin prior to the initial assessment. 96 The Registrar was obviously satisfied that at least one of the grounds of appeal under s.327(3) WIM Act was, on the face of the application, made out and a preliminary review was conducted by the Appeal Panel in the absence of the parties. The Appeal Panel determined it was not necessary for the Plaintiff to undergo a further medical examination "because the Panel had sufficient material before it on which to make a determination" (Petrovich affidavit, page 77). No doubt this determination was influenced, at least in part, by the fact that even the Plaintiff himself did not consider it necessary or wish to be re-examined.

97 It is necessary to consider the manner in which the Plaintiff advanced this ground at the hearing in this Court, including written submissions. It was not submitted that the failure of the Appeal Panel to conduct its own examination of the Plaintiff was, in itself, a breach of procedural fairness or a failure to take into account relevant considerations. Rather, it was submitted that the failure to do so meant that the Appeal Panel relied on Dr Giblin's examination and findings, which it was said were infected by the Approved Medical Specialist's misdirection as to the effect of s.323 WIM Act, the inadequacy of his reasons and/or a denial of procedural fairness, none of which I have found to be established in this case. By not making independent findings, it was submitted that the decision of the Appeal Panel was infected by the same jurisdictional error(s) as Dr Giblin's assessment and ought therefore be similarly vitiated: Vekic v Registrar of the Workers Compensation Commission [2009] NSWSC 552 at [35] referring to Campbelltown City Council v Vegan [2004] NSWSC 1129 per Wood CJ at CL at [83]. 98 Having found that the decision of the Approved Medical Specialist contained no error of law, I am not persuaded that there was any necessity for the Appeal Panel to conduct its own examination of the Plaintiff. There was effectively no deficiency in Dr Giblin's reasons or decision to cure. 99 The Appeal Panel's reasons demonstrate that it understood the submissions put forward by the Plaintiff, and in fact went to some length in dealing with them, particularly with respect to the presence of radiculopathy in the assessment of impairment of the lumbar spine. The Appeal Panel even agreed with the Plaintiff's submissions with respect to deficiencies in the examination of the cervical spine, but noted that significant impediments had been encountered by Dr Giblin in conducting the examination. Having considered all of this, it was a clinical and discretionary decision by the Appeal Panel not to re-examine the Plaintiff, one it was entitled to make: Bukorovic v The Registrar of the WCC [2010] NSWSC 507 at [43], [57]. 100 In respect to the specific suggestion that the Appeal Panel's failure to re-examine the Plaintiff did not cure the alleged breach of procedural fairness raised in Ground 3, I reject this submission. As mentioned at [84] above, no complaint was ever made to the Appeal Panel that Dr Giblin had failed to put to the Plaintiff the observations made during the informal part of the examination. The Plaintiff was asked whether he wanted to make oral representations to the Appeal Panel, which would have provided him the opportunity to explain any inconsistency observed in his presentation to Dr Giblin. This opportunity was flatly declined. Even if it could be said that there had been some denial of procedural fairness by the Approved Medical Specialist in this respect (which is not the case), it is plain that no such error subsequently infected the decision of the Appeal Panel. 101 No jurisdictional error or error of law has been established in the decision of the Appeal Panel as asserted in Ground 4. Ground 5 - Failure by Appeal Panel to Cure Errors in Approved Medical Specialist's Decision

Ground 6 - Affirmation by Appeal Panel of Approved Medical Specialist's Decision Was No Decision 102 As mentioned at [98] above, I have already found that the decision of Dr Giblin contained no error(s) of law or jurisdictional error. It is therefore unnecessary to deal with Grounds 5 and 6 in relation to the Appeal Panel, as the foundation for each ground does not exist.

Conclusion 103 The Plaintiff has not demonstrated any error of law on the face of the record or jurisdictional error in respect of the decisions made by either Dr Giblin or the Appeal Panel. No grounds for relief under ss.65 or 69 Supreme Court Act 1970 have been established. 104 I make the following orders:

(b) the Plaintiff is to pay the costs of the First Defendant. 105 I make no order as to costs in respect of the submitting parties to the proceedings, namely the Second, Third and Fourth Defendants.

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.