Wise v Sardale Pty Limited & 4 ors

Supreme Court of NSW|2005-12-08|Before: Hislop J, Mr AJ

Introduction 1 The plaintiff developed a latex allergy between 1995 and 2001 in the course of her employment with the first defendant. She made claims for lump sum compensation pursuant to the Workers Compensation Act 1987 s 66 in respect of permanent loss of use of both arms (25%), loss of sight of both eyes (25%), loss of sense of smell (85%), loss of sense of taste (70%), loss of sexual organs (50%), and severe facial disfigurement (20%). The claims were disputed by the first defendant. The dispute was referred for assessment by an approved medical specialist ("AMS") pursuant to the Workplace Injury Management and Workers Compensation Act 1998 ("WIM") s 321. 2 Dr Kaufman, the AMS to whom the dispute was referred, issued a medical assessment certificate on 22 July 2004 in which he certified the percentage permanent loss of use attributable to the injury at 3% for each of the claims made save for loss of sexual organs which he assessed at 2%. Those assessments were conclusively presumed to be correct (WIM s 326). 3 On 13 August 2004 the plaintiff lodged an application appealing against the decision of the AMS pursuant to WIM s 327 on the grounds of "demonstrable error and incorrect criteria". 4 The Registrar of the Workers Compensation Court (the fifth defendant) referred the appeal to an Appeal Panel pursuant to WIM s 327. The Panel comprised the second, third and fourth defendants. The Panel confirmed the medical assessment certificate of Dr Kaufman in accordance with WIM s 328(5). 5 The plaintiff by summons filed in this Court has sought judicial review of the decision of the Appeal Panel. In essence the plaintiff submits the Appeal Panel erred in two respects: (a) the decision in Campbelltown City Council v Vegan [2004] NSWSC 1129 required the Appeal Panel to conduct a review de novo. Instead it conducted an inquiry into whether the determination of the AMS was correct; and (b) the Appeal Panel erred in its assessment as it failed to have regard to the components relevant to the s 66 determination namely a continuing inability to expose herself to latex and the immediate consequences of particular episodes of allergic reaction if such exposure was to occur. 6 Each of the defendants, other than the first defendant, has filed a submitting appearance save as to costs.

The relevant principles 7 WIM, s 327, so far as relevant, provides: 327 (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds: (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists. … WIM s 328, so far as relevant, provides: (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal. … (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. … 8 The operation of the appeal provisions in WIM ss 327 and 328 was the subject of consideration by Wood CJ at CL in Campbelltown City Council v Vegan [2004] NSWSC 1129. In that case (at [74], [76]), his Honour accepted a submission: …that s 327 provides a gatekeeper role for the Registrar, whose task it is to consider, pursuant to s 327(4), whether "at least one of the grounds for appeal specified in subsection (3) exists". If it appears to the Registrar this is the case, then in accordance with s 327(4), the appeal can "proceed" and be referred to an Appeal Panel.

His Honour considered that, "Once a ground for appeal has been identified, (the Appeal Panel) should be free to conduct a full review de novo on the available material". He concluded (at [81]): It would follow, in the present case, that once the Registrar as gatekeeper was satisfied, of the existence of the 2% error appearing on the face of the table, or of any other error, then it was appropriate for the matter to be referred to the Appeal Panel. It was then free to conduct a review upon the basis of the material properly available before it, without any need to make a formal finding itself as to the existence of an error falling within an available ground of appeal, and without being confined to the correction of that error. 9 Leave to appeal to the Court of Appeal from his Honour's judgment has now been granted. It may be the Court of Appeal will take a different view of these matters, which as Wood CJ at CL observed, were not "clear or easy of determination". However, for reasons of judicial comity, it is appropriate I follow his Honour's decision. Accordingly I proceed on the basis Vegan was correctly decided. 10 In Passey v The Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1032 Patten AJ, in accordance with the principles of judicial comity, also followed the reasoning of Wood CJ at CL in Vegan. His Honour held: Accordingly, I hold that the Panel was bound to hold a completely fresh hearing, that is a hearing de novo and that it was not obliged to confine its attention to a determination as to whether any of the four grounds in s 327(3) had been established.

The reasons of the Appeal Panel 11 In its statement of reasons for decision, the Appeal Panel wrote, 16. In accordance with the authority of Campbelltown City Council v Vegan , this Panel does not therefore need to consider whether the Medical Assessment Certificate of the AMS contains a demonstrable error or whether his assessment was made on the basis of incorrect criteria. 17. Rather the Panel is charged with the task of conducting a review de novo of all of the material that is properly before the Panel, including the findings on examination by the AMS as set out in Medical Assessment Certificate. 18. The Panel has accordingly conducted a review of all of the material before it and reached its own conclusion concerning the impairments of the Appellant. 19. In the opinion of the Panel, having regard to all of the available evidence, including the histories taken by the Doctors including the very detailed history recorded by the AMS, which accords substantially with the histories taken by the other doctors, the findings of the AMS on physical examination and the results of the clinical investigations that the Appellant has undergone, and upon the correct application of the Workcover Guidelines and in accordance with the Table of Disabilities, that the Appellant's impairments correlate with the assessments made by the AMS. 20. That is, the Panel, having regard to all of the available evidence, has conducted a review and is satisfied that the assessments of the AMS should be confirmed.

12 The statement of reasons then continued: 21. For the record, the Panel wishes also to make it clear that it is the opinion of the Panel that the AMS conducted a thorough and clinically valid assessment, considered all the reports available to him, and was accurate in his reasoning. In the opinion of the Panel, the reasoning of the AMS supported his conclusion such that he reached a conclusion that was fair and consistent with the available data. 22. It must be remembered that the whole point of the referral to an AMS is that an independent assessment will be conducted. 23. A difference of opinion between the AMS and the Appellant's doctors or indeed the Respondent's doctors does not amount to a demonstrable error. A demonstrable error is essentially an error for which there is no information or material to support the finding made. 24. The Appellant's submissions suggest that the AMS and now the Appeal Panel should make assessments which more closely correlate to the Appellant's doctors own assessments or fall somewhere in between with the assessments of Dr Miller for the Appellant and Dr Carroll and Dr Land for the Respondent. There is no proper basis for this expectation. Again, it is an independent medical assessment that is conducted by the AMS. 25. The Panel considers that there was clearly sufficient evidence to support the findings made by the AMS in this matter. 26. The AMS reviewed in detail all of the material that was before him and provided reasons why his opinion differed from the other experts. 27. The Panel notes that there is a considerable range in the opinions provided by the various doctors qualified on behalf of both parties in this case. 28. The AMS was required to exercise his clinical judgment based on the history (which was recorded in considerable detail), the findings of the physical examination and the results of the investigations. On review of all of the medical evidence available in this matter, the Panel finds no basis to interfere with the clinical judgment of the AMS. 29. Moreover the Panel does not consider that the assessment of the AMS was made on the basis of incorrect criteria. In the opinion of the Panel, the AMS has applied correct criteria in assessing impairment under the table of disabilities for the injuries before 1 January 2002. The first alleged error - That the decision in Vegan required the Appeal Panel to conduct a review de novo. Instead it conducted an inquiry into whether the determination of the AMS was correct. The submissions of the plaintiff 13 The plaintiff submitted, in essence, that the Appeal Panel, in its reasons for decision, had correctly stated its task as identified in Vegan. However it was abundantly clear from its decision, read as a whole, that, in fact, it had not undertaken that task but had determined the appeal upon a consideration of whether the original AMS assessment was made on the basis of incorrect criteria or the certificate contained a demonstrable error. 14 In support of the conclusion contended for by her the plaintiff relied particularly on what was termed the irresistible inference from paragraphs 21 - 29 of the appeal decision; the absence of any independent reasoning by the Appeal Panel as to how it reached the figure for impairment adopted by it, the total failure to consider the reasoning or assessments of any of the other doctors whose reports were before the Panel and the fact it excluded the need for clinical examination of the plaintiff prior to conducting its review.

Discussion 15 I am unable to accept the plaintiff's submissions for the following reasons: (a) It is clear on the face of the record that the Appeal Panel directed itself in accordance with the principles in Vegan (reasons for decision paragraphs 16 and 17). (b) It is also clear from the record that the Appeal Panel purported to determine the dispute de novo, by having regard to all the available evidence and reaching its own conclusions on that evidence (reasons for decision paragraphs 18 - 20). Such a course is consistent with the requirements of Vegan . (c) I do not accept that the Appeal Panel, in effect, purported to apply the correct test but in reality applied a different test. There is no evidence to establish that the Appeal Panel failed to act in good faith in the matter, if that be the thrust of the plaintiff's submissions. (d) There is no general rule of the common law or principle of natural justice that requires reasons be given for administrative decisions, absent a statutory obligation to do so. There was no such obligation on the Appeal Panel - Vegan [44], [85]-[100]. In my opinion the Appeal Panel was not required to give reasons as to how it reached the figure for impairment adopted by it or to provide a detailed review of all of the medical evidence (e) The Appeal Panel excluded the need for further medical examination of the plaintiff prior to conducting its review. This was done in accordance with the WorkCover medical assessment guidelines [43]. It was a course which was requested by the plaintiff (reasons for decision paragraphs 7, 8 and 10). (f) The comments in paragraphs 21 - 29 of the reasons for decision were expressly said to be "for the record" and, as such, were additional to the actual reasons for decision. (g) The Registrar had referred the matter to the Appeal Panel on the grounds contained in WIM s 327(3)(c) and (d). In the opinion of the Appeal Panel the Registrar had erred in so doing. The decision in Vegan had been delivered after the application pursuant to WIM s 327(4) had been filed. The decision in Vegan had clarified the roles of the Registrar and the Appeal Panel. It was not inappropriate for the Appeal Panel to make some comments for the assistance of the Registrar in considering further applications under s 327(4). Vegan does not prohibit the Appeal Panel from having regard to the certificate of the AMS. Indeed the Appeal Panel's powers under WIM s 328(5) are confined either to confirming the certificate of assessment or revoking it and issuing a new certificate. 16 In my opinion the plaintiff has not demonstrated error by the Appeal Panel as to the first question. The second alleged error - Did the Appeal Panel err in its assessment? 17 The Appeal Panel's conclusion as to the appropriate assessment of the plaintiff's loss involved the Panel's independent clinical judgment or opinion based upon its consideration of all of the material before it. The reasoning process in support of the Panel's assessment has not been disclosed. In my opinion error by the Appeal Panel in its assessment has not been demonstrated nor is error to be inferred from the fact the Panel's assessment may differ from that of other examining medical practitioners or by reference to Dr Kauffman's report, assuming reference thereto is permissible.

18 Accordingly, in my opinion, the plaintiff's application fails.

Liberty to the parties to make written submissions as to costs within 14 days.

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.

CITATION : Wise v Sardale Pty Limited & 4 ors [2005] NSWSC 1264

Campbelltown City Council v Vegan [2004] NSWSC 1129 CASES CITED : Passey v The Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1032

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