Vitaz v Westform

Court of Appeal (NSW)|2011-04-04|Before: McColl JA, Basten JA, Johnson J

Mr R Lancaster SC/Ms B Nolan - Appellant Mr I Todd - First Respondent Submitting appearances - Second to Fourth Respondents Solicitors:

NSW Compensation Lawyers - Appellant Turks Legal - First Respondent I V Knight, Crown Solicitor - Second to Fourth Respondents File Number(s): CA 2009/298051 Decision under appeal Citation: Vitaz v Westform (NSW) Pty Ltd [2010] NSWSC 667 Date of Decision: 2010-06-22 00:00:00 Before: Johnson J File Number(s): 2009/30073

HEADNOTE [This headnote is not to be read as part of the judgment] On 13 December 2007 the applicant suffered an injury to his back and left shoulder, when lifting heavy material in the course of his employment. A dispute arose as to the extent of the impairment resulting from the injury and the extent of the contribution to such impairment from existing degenerative conditions to the applicant's spine, for the purposes of awarding compensation under the Workplace Injury Management and Workers Compensation Act 1988 (NSW). On 23 February 2009 a medical assessment certificate, given by an approved medical specialist, found that the degree of 'whole person impairment' was 7%, as assessed pursuant to the Workcover Guidelines. That figure allowed a 10% reduction on account of the pre-existing condition. Following the rejection of an appeal from the approved medical specialist, brought before an Appeal Panel, the applicant sought judicial review of both decisions in the Common Law Division of the Supreme Court. On 22 June 2010 Johnson J handed down judgment, dismissing the summons on the basis that the applicant did not demonstrate any error of law on the face of the record or jurisdictional error in respect of the decisions made by either the approved medical specialist or the Appeal Panel. The Applicant appealed to this Court from his Honour's judgment. The issues for determination on appeal were: (i) whether the approved medical specialist had correctly construed and applied the principles of the Workplace Injury Management and Workers Compensation Act 1988 (NSW); (ii) whether the reasons provided by both the approved medical specialist and the Appeal Panel were adequate, in accordance with s 325 of the Workplace Injury Management and Workers Compensation Act 1988 (NSW). The Court held, dismissing the appeal: In relation to (i)

Judgment 1McCOLL JA : I agree with Basten JA's reasons and the orders his Honour proposes. 2BASTEN JA : On 13 December 2007 the applicant suffered an injury to his back and left shoulder when lifting heavy material in the course of his employment. A dispute arose as to the extent of the consequent impairment resulting from the injury and the extent of the contribution to such impairment from existing degenerative conditions of the applicant's spine, for the purposes of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act "). 3On 23 February 2009 a medical assessment certificate, given by an approved medical specialist, Dr Peter Giblin, found that the degree of "whole person impairment", as assessed pursuant to the WorkCover Guidelines, was 7%. That figure included, in respect of the lumbar spine, a reduction of 10% on account of a pre-existing condition. 4The applicant brought an appeal from the approved medical specialist to an Appeal Panel, pursuant to s 327 of the Workplace Injury Act . On 16 June 2009, the Panel rejected the appeal. 5The applicant then sought judicial review of both decisions in the Common Law Division of this Court. On 22 June 2010 Johnson J handed down judgment dismissing the summons. The present application for leave to appeal is brought from his Honour's judgment. 6The two principal challenges brought by the applicant were, first, a complaint that the approved medical specialist had not made a finding with respect to any causal connection between the pre-existing degenerative condition of the lumbar spine and the impairment consequent upon the compensable injury; secondly, the reasons of both the specialist and the Appeal Panel were challenged as inadequate, for the purposes of the Workplace Injury Act . The applicant sought leave to appeal and sought to have both decisions set aside.

Challenge to decisions at two levels 7The applicant did not initially seek to challenge the original decision of the specialist by way of judicial review, accepting rather the opportunity for a statutory appeal to the Appeal Panel. It is not necessary to consider what might have been the fate of proceedings brought to the Supreme Court without first invoking the procedure for appeal. However, it is necessary to identify the status of the original decision of the specialist in the light of the subsequent decision of the Appeal Panel. The applicant contended that each of the specialist and Appeal Panel was required to make relevant findings and each was required to give sufficient reasons for their respective decisions. Whilst it might be correct to conclude that failings on the part of the specialist could be "cured" by proper findings from the Appeal Panel, it was contended that that could not occur where the decision of the Appeal Panel was itself flawed in material respects. 8It was not submitted, either in the Common Law Division or in this Court, that the supervisory jurisdiction of this Court did not extend to the original medical assessment. However, insufficient attention was paid to the consequences for the original medical assessment of a decision by an appellate body "confirming" the original assessment. 9It will be necessary to return to the question of whether an appellate hearing can "cure" defects in the original assessment: there is potentially a more substantial problem that stands in the way of the applicant's attempt to review the decision of the approved medical specialist. In Wishart v Fraser [1941] HCA 8; 64 CLR 470, an issue arose as to whether it was open to a defendant to challenge the conviction and orders of a magistrate where the conviction was affirmed by a Court of Quarter Sessions. Dixon J stated at 482: "To that question there can, I think, be only one answer. It is not denied that the order of the Court of Quarter Sessions was within its jurisdiction and was validly made. While it stands it is a judicial declaration by a competent court exercising Federal jurisdiction establishing the order of the magistrate and preventing its being called in question. If this court made an order setting aside the conviction, there would be two inconsistent judicial orders in operation at the same time, that of the Court of the Quarter Sessions confirming the conviction and that of this court discharging it." 10The same conclusion was reached by other members of the Court, Starke J expressing the following view at 478: "If the Court of Quarter Sessions had reversed the decision of the stipendiary magistrate, its judgment would have held 'the field to the exclusion' of the conviction by the stipendiary magistrate. And when Quarter Sessions affirmed the conviction, its judgment was equally conclusive, for it operated as a judicial determination by a competent and higher authority that the conviction was right. .... That judgment therefore holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary." 11This principle has been applied in subsequent decisions of this Court, including Blacker v Parnell [1978] 1 NSWLR 616, in which concurrent appeals were taken to the District Court (under s 122 of the Justices Act 1902 (NSW)) and to the Supreme Court by way of statutory prohibition (under s 112 of the Justices Act ). The appellants sought to withdraw their District Court appeals to permit the proceedings in the Supreme Court to go ahead, but upon seeking withdrawal, the District Court judge made orders dismissing the appeals and confirming the convictions and orders of the magistrate. In accordance with the reasoning in Wishart v Fraser , the proceedings in the Supreme Court challenging the decisions of the magistrate were thereby rendered incompetent, despite the fact that the District Court had not addressed the substance of the challenges: at 619 (Moffitt P, Reynolds and Samuels JJA agreeing). 12The principle was also applied in respect of a challenge to the decision of a Deputy President of the Australian Conciliation and Arbitration Commission, there having been an appeal to the Full Bench of the Commission, which had confirmed the order of the Deputy President. Citing Wishart , the High Court required the applicant to join the Full Bench and challenge its order, rather than that of the Deputy President: The Queen v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation [1981] HCA 33; 147 CLR 471 at 476 (Mason J, Murphy and Aickin JJ agreeing at 489 and 493). 13The principle was applied in respect of an order made by a Commissioner in the Industrial Relations Commission, which had been subject to an appeal to the Commission in Court Session. Handley AJA held that the orders made by the Commissioner had been "superseded by the orders of the Court Session and were no longer operative": Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209; 166 IR 192 at [6], (Spigelman CJ and Mason P agreeing). These principles were also applied in Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252 at [74] (Spigelman CJ, Beazley JA agreeing). 14The application of these principles in the present case depends on three propositions, namely that: (a) the principles applicable in judicial proceedings have the same operation in relation to medical assessments for the purposes of the Workers Compensation Act 1987 (NSW) reviewed by an Appeal Panel; (b) the principles apply in respect of an appeal which does not lie as of right, but only in respect of particular grounds and with the approval of the Registrar, and (c) the principles continue to apply despite the orders made by the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531. 15In respect of the first point, the answer must depend upon the specific statutory scheme rather than the effect under general law principles of a judicial determination. The need to address the relevant provisions of the Workplace Injury Act indicates that the first and second points should be considered together. 16The matter for consideration by an approved medical specialist is a "medical dispute" which is referred for assessment: s 321(1). The assessment may be the subject of an appeal, but only in respect of matters identified in s 327(3), which include that the assessment was made "on the basis of incorrect criteria" or that the certificate contains "a demonstrable error": s 327(1) and (3)(c) and (d). Although these grounds appear to involve limitations on the rights of review, they are not necessarily restrictive. Because the certificate includes the reasons and other matters referred to in s 325(2), the reference to "demonstrable error" in the certificate would seem to allow reasonably broad scope for an appeal. If the Registrar is not satisfied that at least one of the grounds has been made out, the appeal will not proceed, and the Appeal Panel will not make orders. In such a case the specialist's certificate will remain operative. It does not appear that the Registrar has power to prevent other aspects of the appeal being pursued, if satisfied that "at least one of the grounds for appeal specified in subsection (3) has been made out": s 327(4). Further, because there is a power to adduce "fresh evidence" which could not reasonably have been obtained before the assessment, and because the person may seek a further examination by a member of the Panel, the appeal conducted by the Appeal Panel is in the nature of a rehearing, and is described as being "by way of review": s 328(2). 17It is at least arguable that a form of jurisdictional error, including want of procedural fairness, could provide a ground of appeal for the purposes of s 327. The fact that they would render the certificate invalid, will not preclude an appeal: cf Calvin v Carr [1980] AC 574 at 590. However, the very fact that a right of appeal exists in such circumstances implies that the result of the appeal will supersede the original decision. Were it otherwise, the decision of the appellate body would, at best, be contingent upon there being no successful challenge by way of judicial review of the original decision. Such a result should only be the consequence of a clear statutory intention to that effect. 18The possibility, noted in respect of domestic tribunals in Calvin v Carr at pp 592-593, that the statutory scheme requires compliance with particular procedural protections at each level of decision-making. In respect of procedural fairness, judges have variously held that the existence of a statutory appeal: (a) negates the obligation which might otherwise be implied to provide procedural fairness at the initial decision-making stage; (b) provides an adequate (or exclusive) remedy for any earlier denial of procedural fairness; (c) provides a basis for the supervisory court, in the exercise of its discretion, to refuse relief in respect of the initial decision, and (d) precludes a challenge to the first decision, because the aggrieved party has "elected" to treat the first decision as valid, by appealing from it. 19The earlier case law with respect to procedural unfairness was helpfully summarised by Fitzgerald JA (with whom Beazley JA agreed) in Hill v Green [1999] NSWCA 477; 48 NSWLR 161 at [155]-[164]. The manner in which obligations with respect to procedural fairness may be affected have since been explained by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [146]. However, neither the express language nor the scheme of the Workplace Injury Act requires that the claimant have fair procedures at each stage, so that an omission by the medical specialist cannot be "cured" by an Appeal Panel. 20The powers of the Appeal Panel are to "confirm" the certificate of assessment or revoke the certificate and issue a new certificate: s 328(5). Although the provisions of s 326 (dealing with the status of medical assessments) are expressly stated to apply to a new certificate, that is not said about a decision confirming an existing certificate. However, it does not follow that the confirmed certificate obtains its validity from the opinion of the original specialist, despite its review by an Appeal Panel. The authorities with respect to judicial proceedings support the conclusion that an order "confirming" a certificate, may constitute the exclusive authority for the decision under review. A similar conclusion should be accepted by reference to the statutory scheme in respect of a decision of an Appeal Panel, being a body exercising judicial functions: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [104]-[109] and [117]; cf Sherlock v Lloyd [2010] VSCA 122 at [22] (Maxwell P, Ashley JA and Byrne AJA). It would follow that a challenge by way of judicial review to the decision of the specialist is incompetent where there has been an appeal to an Appeal Panel. 21There are other areas in which similar problems arise. Each requires attention to its own statutory scheme. In the area which has given rise to most judicial review cases in recent years, namely refugee claims under the Migration Act 1958 (Cth), analogous issues could arise. The original decision made by a delegate of the Minister is subject to review by the Refugee Review Tribunal: Migration Act , s 414. That Tribunal generally has power to "affirm", vary, or set aside the decision and substitute a new decision: s 415(2). Where the decision is varied, or set aside and substituted, the Act specifically provides that the Tribunal's decision is taken to be a decision of the Minister. As with the scheme under the Workplace Injury Act , no such express provision is made in respect of a decision which is "affirmed". 22In Ex parte Miah , an applicant sought to review a delegate's decision, his solicitor having failed to lodge a timely appeal to the Refugee Review Tribunal. The availability of the proceedings for review was not in doubt; nor was relief refused on discretionary grounds: see also NAJT v Minister for Immigration and Multicultural Affairs [2005] FCAFC 134; 147 FCR 51; NAMG v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FMCA 181. The Court has no knowledge of any case where judicial review has been sought of a delegate's decision in circumstances where there has been a review by the Refugee Review Tribunal. Thus, practice at least in this statutory arena is consistent with the application of Wishart . 23There remains a question as to whether the approach of the High Court in Kirk is inconsistent with this conclusion. The question arises because Mr Kirk and his company were convicted in the Industrial Court in respect of contraventions of the Occupational Health and Safety Act 1983 (NSW). From the judgment of a single judge an appeal was taken to a Full Bench of the Industrial Court, although leave was limited to a single point and the appeal was dismissed. Neither Wishart v Fraser , nor its progeny, were referred to in Kirk . Accordingly, there is no reason to suppose that they do not apply, although there may be an issue as to whether their operation may be qualified in some circumstances. 24The conclusion that, following a decision of an appellate body, judicial review proceedings may not be brought in respect of the original decision, does not mean that the original decision is irrelevant for all purposes. For example, the reasoning of the original decision-maker would remain relevant if it were adopted by the appellate body. Further, if the decision of the appellate body were set aside, the operation of the original decision would revive, subject to disposal of the undetermined appeal from it. The original decision might have significance in other respects, depending upon the nature of the challenge raised to the decision on appeal. For example, if there were an alleged defect in the commencement of the proceedings, that may infect both the original decision and the decision on appeal, if it cannot be rectified. Such arguments were raised in The Queen v Marks ; see also Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240 at [46]-[50].

Application of principles 25The applicant invited this Court (and the primary judge) to consider first the original medical assessment and then to consider whether any error had been "cured" by the decision of the Appeal Panel. The alternative course, dictated by the principles set out above, is to ask whether the decision of the Appeal Panel is attended by reviewable error and only if it is, to review the decision of the specialist. The latter step may be justified on the basis that, rather than send the matter back to the Appeal Panel for rehearing, if the decision of the specialist were legally flawed, it would be open to the Court to remit the matter to another approved medical specialist for reconsideration.

Deduction for pre-existing condition: absence of finding 26It is convenient to commence with the challenge based on the failure to make a finding with respect to causation. The Workplace Injury Act requires that, 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 pre-existing condition or abnormality": s 323(1). 27On the approach suggested above, it is appropriate to consider first whether the Appeal Panel made any relevant error in its consideration of this issue. The primary judge did not consider the matter in this way, and made no findings with respect to the Appeal Panel decision, because his Honour rejected the challenges to the original medical assessment. 28The Panel referred to the deduction made by the specialist and the condition which led to that course being taken. The Panel then referred immediately to the provision in s 323(2) permitting a deduction of 10% of the impairment "if the extent of a deduction ... will be difficult or costly to determine". The Panel continued: "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." 29It is clear that the Panel did not make an express finding of the kind sought by the applicant, namely that any portion of the permanent impairment resulting from the injury "is due to" the pre-existing condition. Nor was it asked to do so. 30If it were still open to the applicant to challenge the decision of the specialist, and assuming the statutory provision is engaged by an age-related degenerative condition, it is not correct to say that the specialist failed to make a specific finding. Thus, in paragraph 8 of his certificate, he asked and answered the following questions: "(e) Is any proportion of loss of efficient use or impairment or whole person impairment, due to a pre-existing injury, abnormality or condition? Yes. (f) If so, please indicate which body part is affected by the pre-existing injury, abnormality or condition. Lumbar spine." 31The answer to these questions are sufficient to identify a pre-existing condition in the lumbar spine, to which some proportion of the impairment was due. It cannot be said that the specialist made no finding in these respects. Nor was this finding challenged on appeal to the Panel.

Requirement for reasons 32The Workplace Injury Act requires the specialist to give reasons for his or her assessment: " 325 Medical assessment certificate (1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate ) as to the matters referred for assessment. (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." 33Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 involved the adequacy of reasons for a decision by a judge of the Compensation Court. The judge relied upon a CAT scan at a particular date to conclude that the applicant before him was thereafter "fit for all work": see p 276E. Whilst asserting the importance of giving reasons for findings of that kind, the majority in this Court (Mahoney and McHugh JJA) concluded that there was no legal error in the implied finding "that the applicant was fit for work because the CAT scan did not reveal any abnormality": at 282C-D (McHugh JA). 34Questions as to the adequacy of the reasons given by an approved medical specialist are different in kind. Although reasons are required so that the unsuccessful party may know why he or she has failed, it does not follow that a medical specialist has to give reasons which are immediately comprehensible to a person with no medical expertise. For example, a medical expert speaking to other practitioners might say that some degree of impairment was self-evidently caused by a pre-existing condition, despite the fact that the person was asymptomatic prior to the injury. On the other hand, such a conclusion may be medically contestable. In order for the applicant to succeed in this Court in asserting inadequacy of reasons, there must at least be material properly before the Court which demonstrates that the opinion falls into the latter category. The Court was not taken to any material which indicated that to be the case. 35Perhaps surprisingly, there is no express statutory requirement that the Appeal Panel provide reasons for its decision. However, in Campbelltown City Council v Vegan (at [20] above), this Court held that such an obligation should be implied: at [26] (Handley JA, McColl JA agreeing); [117] (in my judgment, Handley and McColl JJA agreeing generally). 36It is at least arguable (although the issue was not fully addressed on the application) that the reasons required of the Appeal Panel differ in kind from those required of the specialist. While two members of the Appeal Panel are approved medical specialists, the third is an arbitrator. An arbitrator must be an Australian lawyer or someone having other relevant qualifications, skills or experience: s 369(3). He or she may therefore be expected to have some understanding of the kinds of reasons required to be given by quasi-judicial bodies. Further, no review of an Appeal Panel decision is available by other experts: the decision of the Appeal Panel is thus the final decision on the merits in respect of a medical dispute and is "conclusively presumed to be correct" for the purposes identified in s 326(1), even though it is in form a confirmation of the certificate issued by the approved medical expert. Because the only forum for challenging such a decision is the Court, it might be considered appropriate that the reasons should be transparent to lawyers advising a claimant and to the Court. On the other hand, the reasons will resolve a "medical dispute" and it is thus inevitable that they may adopt terminology and reach conclusions in terms which will not be fully comprehensible to persons without medical training or experience. 37In relation to the content of the reasons required of the Appeal Panel, I suggested in Vegan : "[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. .... [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 (at 273-274) (Mahoney JA) and (at 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."

Adequacy of reasons: deduction for pre-existing condition 38Matters which may give rise to a "medical dispute", as that term is defined in s 319, include: "(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion." 39In an orderly fashion, one might expect the certificate, which is in effect a statement of findings and reasons, to set out the facts before reaching an assessment or giving reasons for the assessment. That is largely what happened in the present case, although the structure of the certificate is somewhat confusing. The specific issue of apportionment of the cause of the impairment was not identified as such in the statement of matters referred for assessment (Certificate, par 1) but, as already noted, it has been answered in the part requiring evaluation of permanent impairment (par 8). Accepting that it is part of the assessment for which reasons must be given, there is a further question as to whether the reasons must extend to the findings of fact upon which the assessment is based. Further, and perhaps curiously, the questions in respect of apportionment simply asked whether "any proportion" of the impairment was due to a pre-existing condition. If, as appears, this was a standard form question, it is surprising that the next question did not seek to identify the relevant proportion. 40In paragraph 10 of his certificate, headed "Reasons for Assessment", the specialist set out his brief factual findings in relation to the lumbar spine and stated: "There was a difficulty in placing the categorisation of the lumbar spinal injury, but given the abovementioned comments, he was assigned a DRE 2 category injury, with a deduction of 1/10 th 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 the imaging studies that I viewed." 41Paragraph 12 of the certificate, however, was in the following terms: "12 Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality 1/10 th deduction due to constitutional changes in the lumbar spine." 42The appeal to the Appeal Panel did not expressly identify an erroneous failure to give reasons. Rather, the submissions on the appeal, which appear to set out the grounds of challenge, complained that there can be no deduction under s 323, as a matter of law, in the absence of a pre-existing physical impairment. It was further submitted, by reference to the opinion of three medical commentators in a local publication: "If a worker develops permanent pain and symptoms due to work consistent with spondilosis in the neck region, that condition might be assessed at DRE II. Although the spondilosis is likely to have been degenerative, if there were no symptoms in the period prior to the work related complaint, then there was no rateable impairment at that time. So nothing would be subtracted from the current impairment." 43That opinion contained a legal assumption which is inconsistent with the approach adopted by this Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]-[32] and, more recently, by Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]). The resulting principle is 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. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available. 44It is arguable that the Panel failed to address this challenge, but it was based on a false assumption as to the law and no reliance was placed on it in this Court. 45If it be an available cause for complaint, there is an elision in the reasons provided by the specialist: the pre-existing condition is identified, but its causative relationship with any element of impairment is not. However, the "medical dispute" presented to the Appeal Panel did not encompass this complaint and it should be taken for the purposes of this review to have been abandoned.

Absence of reasons: thoracic spine 46The applicant's complaint before this Court focused on the fact that the specialist had given no reasons for finding that there was no impairment resulting from any injury to the thoracic spine. In fact, the specialist was not satisfied that there was an injury to the thoracic spine, concluding that the only changes were those of a "normal age-related configuration": Reasons, par 10(b). In this Court, the applicant accepted that there was a relevant finding, but contended that the reasons did not identify why the moderate disc protrusion at T2/3, which the specialist had noted, associated with a tear in the annulus and other spondylitic changes, could not have been due, in part, to the accident. 47The applicant's challenge before the Appeal Panel asserted that the certificate did not record any physical examination of the thoracic spine and inferred that none had been undertaken. In response to that complaint, the Appeal Panel noted that while no findings on a physical examination were set out in the body of the relevant part of the report, the "reasons" expressed a "clinical view" that there were "no significant clinical findings, no observed muscle guarding, no documental [sic] neurological impairment and no documented changes in structural integrity, other than those of a normal age related configuration": at par 21. The Appeal Panel dealt with the issue which had been raised before it. There was no reviewable error on its part. 48The primary judge accepted the entitlement of the applicant to challenge the decision of the specialist on the basis of inadequate reasons for the purposes of s 325 of the Workplace Injury Act . His Honour held that there was no failure in that regard. 49This challenge demonstrates why it should not be open to the applicant to challenge the specialist's decision in this way. The reasons given by the specialist served an immediate purpose, which was to allow the applicant to assess (with relevant professional advice) whether an appeal should be taken from the decision. That happened. Perhaps curiously, given that the complaints raised on this aspect of the appeal were failures to conduct a physical examination and to make findings with respect to the thoracic spine, no request was made for the Appeal Panel to conduct its own examination. The opportunity to seek such an examination was available, by indicating in the relevant part of the application form that a further examination was sought: at paragraph 4.3. Nor was medical evidence highlighted before the Appeal Panel in support of the view that the condition of the thoracic spine demonstrated injury resulting from the accident. 50It is necessary to assess any alleged inadequacy of the reasons provided by the specialist in the context of their statutory purpose. That purpose having been fulfilled, any inadequacy or omission is no longer material. Although the certificate was not replaced by the Appeal Panel, the conclusion to "confirm" the certificate is one having statutory effect, so that any invalidity of the certificate as issued by the specialist, is no longer relevant. As has been explained, the challenge must be directed to the reasons given by the Appeal Panel, which must be judged by reference to matters raised with it.

Absence of reasons: cervical spine 51The specialist attributed no level of impairment to the condition of the cervical spine following the accident. The substance of the complaint to the Appeal Panel was an insufficient explanation of the examination carried out on the cervical spine and a failure to make proper findings. The Appeal Panel stated that it agreed with the submission as to what was required on examination, but noted that the specialist was impeded in his examination, as he had stated, because the applicant was thought to be grossly restricting his assessment "on an active basis": at par 20. 52In this Court, the applicant noted that one of the reports before the specialist was that of Dr David Ho, who had conducted an MRI procedure and opined that there was "post-traumatic mechanical derangement of cervical spine". Dr Tom Ecker, who had conducted CT imaging, stated that "no post-traumatic abnormality was seen". To the extent that these conclusions were inconsistent, it is true that the specialist did not explain which he preferred and why. However, this was a complaint in relation to fact-finding which should have been dealt with before the Appeal Panel. It was not expressly raised in those terms and, as a result, the same conclusion must flow as in respect of the complaint in relation to the assessment of the applicant's thoracic spine.

Conclusions 53Whether relief can lie against the original decision-maker where there has been an independent review of his or her decision, on the merits, will depend upon the obligation said to have been breached and the nature of the statutory scheme. To challenge the original decision as "invalid" is not to preclude the applicant exercising a right of appeal to the Appeal Panel. Indeed, the ground of invalidity, may constitute an available ground of appeal under s 327(3). 54Where the approved medical specialist has failed to make a necessary finding or has failed to give reasons in accordance with s 325(2) of the Workplace Injury Act , that decision may be the subject of challenge by way of judicial review in the Supreme Court. However, a more convenient and satisfactory remedy will usually be obtainable from the Appeal Panel. Where appellate relief has been sought and refused, a challenge to the original decision can only be brought in the Supreme Court if the matter was one which was not and could not reasonably have been raised before the Appeal Panel and remains relevant. Otherwise, the decision of the Appeal Panel must be taken as the decision in respect of the substantive issues resolving the medical dispute. 55In the present case, a review was available before an Appeal Panel including two approved medical specialists (and an arbitrator), being an expert tribunal well-placed to assess the adequacy of the fact-finding process undertaken by the approved medical specialist and the inferences which he drew, based upon their own examination of the applicant (if sought) and the medical reports available to it. 56There was no suggestion in this case that the merits of the applicant's claim could not properly be dealt with by the Appeal Panel. The applicant had an opportunity to request a further physical examination, but did not seek it. There was no suggestion that any deficiency in the certificate issued by the approved medical specialist prevented the Appeal Panel from conducting a review of the original medical assessment, pursuant to s 328(2). Nor has it been shown that the decision of the Appeal Panel was itself attended by error reviewable in the Supreme Court's supervisory jurisdiction. 57If it were necessary or appropriate to review the certificate and reasons given by the approved medical specialist, I would not be satisfied that reviewable error has been established on that basis either. 58Because there is doubt as to the basis on which the primary judge addressed the issues before him, leave should be granted to appeal, but the appeal from the judgment of Johnson J must be dismissed. The applicant must pay the respondent's costs in this Court. 59HANDLEY AJA : I agree with Basten JA.

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: 30 August 2011

Justices Act 1902(NSW)

Workplace Injury Management and Workers Compensation Act 1988(NSW)

Occupational Health and Safety Act 1983(NSW)

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