Workers Compensation Nominal Insurer v Arcaba

The Second MAP reasons

1. After setting out the background, the reference by the Registrar, the Panel's preliminary review, the decision not to conduct a further examination and a reference to some decisions of the Court of Appeal concerning the Panel's obligations, the Second MAP said this: 20. The matter was referred to the AMS, Dr Roger Pillemer, for assessment of whole person impairment of the thoracic spine and lumbar spine as a result of the injury on 3 July 2009. 21. The AMS examined the respondent worker on 8 September 2014 and made an assessment of 15% WPI of the cervical spine and 5% WPI of the right upper extremity and 12% WPI of the lumbar spine. The AMS deducted one tenth pursuant to section 323 for pre-existing injury, condition or abnormality in respect of the assessment of the lumbar spine. The total combined WPI was 28% attributable to the injury on 3 July 2009. 22. The applicant's submissions are dated 29 September 2014 and have been taken into consideration by the Panel and it does not intend to repeat or refer to them all in detail. In summary the appellant contends that the AMS made a demonstrable error when providing a 15% WPI assessment of the cervical spine including by failing to properly, if at all, consider a previous MAC provided by Dr Bourke (sic), issued some 10 months earlier, wherein Dr Bourke assessed the WPI in respect of the cervical spine at 11%. It was contended the AMS had failed to consider the earlier assessment provided by Dr Bourke which was binding at the time of issue. 23. The respondent's submissions are dated 15 October 2014 and have been taken into consideration by the Panel and it does not intend to repeat or refer to them all In detail. In summary the respondent contends the AMS provided extensive details in support of the assessment and that the assessment undertaken by the AMS was in full compliance with WorkCover Guidelines. That the AMS was not required to explain why there was a deterioration as compared the assessment provided by Dr Bourke on an earlier occasion (sic). Discussion 24. The Panel reviewed the history recorded by the AMS, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above and the parties' submissions. 25. The Panel noted that the AMS concluded that the clinical findings fulfil the criteria for radiculopathy and therefore the (sic) came within cervical DRE Category III with a 15% whole person impairment. In this regard it is noted the AMS has indicated that tire (sic) clinical findings include '... hypoaesthesia to pinprick which on careful testing seems to be in the C6 distribution involving the thumb, index and middle finger, and the radial border of his distal forearm'. He refers to a CT scan of the cervical spine carried out on 9 October 2009 which showed '.,. disc narrowing at C5/6 and C6/7, with disc protrusion at the C5/6 level into the right intervertebral foramen which the radiologist felt was most likely displacing and compressing the right C6 nerve root...'. 26. The WorkCover Guides Section 4.23 (page 29) indicates with regard to radiculopathy that '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'. The AMS has referred to a major criterion namely the sensory deficit in the C6 nerve root distribution, and an additional criterion namely the CT scan evidence of C6 nerve root compression; he has therefore fulfilled the requirements for a diagnosis of radiculopathy. 27. The Panel was satisfied that the AMS carried out a thorough and careful examination and the Panel accepts the findings on examination that the AMS made and recorded in the MAC. 28. Although, as a matter comprehensiveness (sic), it may have been preferable for the AMS to refer to the conclusion reached in Dr Bourke's prior MAC, the AMS's failure to do so has not in any way compromised the AMS's reasons or conclusion regarding the AMS's assessment of the level of whole person impairment of the cervical spine at the time it was assessed by the AMS, The Panel is satisfied the AMS assessment is based entirely on the relevant criteria, and has been correctly explained and properly justified. DECISION 29. 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.

Submissions

1. As to ground 1, the Plaintiff points to what was said in paragraph 17 of the Second MAP reasons as follows: In this matter the Registrar has determined that he is satisfied that at least one of the grounds of appeal under s 327(3)(d) is made out, in relation to the assessment of the respondent's whole person impairment (WPI) of the lumbar spine. The Plaintiff says that that was fundamentally wrong because the assessment of the lumbar spine was never put in issue since Dr Beer's assessment.
2. As to ground 2, the Plaintiff submitted that there were three errors on the face of the record. The first of these was said to appear at paragraph 20 where the Second MAP reasons state: The matter was referred to the AMS Dr Roger Pillemer for assessment of whole person impairment of the thoracic spine and lumbar spine as a result of the injury on 3 July 2009. The Plaintiff submitted that that was fundamentally incorrect because the matter was referred to Dr Pillemer for assessment in respect of the worker's cervical spine and right upper extremity.
3. The second error was said to appear at paragraph 21 where the Second MAP's reasons read: The AMS examined the respondent worker on 8 September 2014 and made an assessment of 15% WPI of the cervical spine and 5% WPI of the right upper extremity and 12% WPI of the lumbar spine. The AMS deducted one tenth pursuant to s 323 for a pre-existing injury, condition or abnormality in respect of the assessment of the lumbar spine. The total combined WPI was 28% attributable to the injury on 3 July 2009. The Plaintiff submitted that that statement was incorrect because Dr Pillemer never assessed the worker's lumbar spine. Rather, he accepted the earlier assessment of 11% which had never been in issue.
4. The third error was said to be a mis-statement at paragraph 22 of the Second MAP's reasons of the Plaintiff's submissions on the appeal. Paragraph 22 read this way: In summary the appellant contends that the AMS made a demonstrable error when providing a 15% WPI assessment of the cervical spine including by failing to properly, if at all, consider a previous MAC provided by Dr Bourke (sic), some ten months earlier wherein Dr Bourke (sic) assessed the WPI in respect of the cervical spine at 11%. It was contended the AMS had failed to consider the earlier assessment provided by Dr Bourke (sic) which was binding at the time of issue. The Appellant said that that statement fundamentally mis-stated the position in the facts because Dr Burke had assessed WPI for the cervical spine at 0% not 11%.
5. In relation to ground 3, the Appellant submitted that the appeal raises the contradiction between the 0% assessment by the previous MAP and the 15% by Dr Pillemer when Dr Pillemer did not even refer to the First MAP's reasons or give any reasons for the difference in the assessments when Dr Burke's assessment occurred four years and four months after the injury and Dr Pillemer's occurred five years and two months post injury.
6. The Plaintiff pointed to four instances by the Second MAP of a failure to give reasons. First, there was no explanation given by Dr Pillemer or the Second MAP of the different considerations of the CT scan by Drs Burke and Pillemer. Dr Burke who viewed the actual scans was not satisfied that the CT scan showed any disc lesion whereas Dr Pillemer appeared merely to have summarised the radiologist's interpretation of the CT scan. Because there was a fundamental difference between the two interpretations there was an obligation on Dr Pillemer and the second MAP to given reasons to explain that difference.
7. Secondly, there was no explanation provided by Dr Pillemer or the Second MAP why the assessment of WPI for the right upper extremity had increased from 3% (as assessed by Drs Beer and Burke in 2013) to 5% as assessed by Dr Pillemer.
8. Thirdly, the Second MAP's reasons, whilst saying that it may have been preferable for Dr Pillemer to refer to the first MAP decision, determined that his failure to do so had not compromised his reasons or conclusions. The Second MAP's reasons focused in that regard on the wrong issue, considering only the assessment by Dr Pillemer at the time he conducted the assessment. Dr Pillemer and in turn the Second MAP were required to assess the worker's WPI as a result of the injury. It was not sufficient in that regard simply to re-examine the worker and come to a different conclusion without giving reasons why there were fundamental differences in the bases of assessment.
9. Fourthly, at paragraphs 27 and 32 of its appeal submissions the Plaintiff submitted that there was a demonstrable error in Dr Pillemer's decision failing to address the issue as to why there was a significant deterioration within a 12 month period. The Second MAP's reasons completely failed to address that appeal point.
10. As to ground 4, the Plaintiff submitted that in the presence of the First MAP's reasons the certificate by Dr Pillemer as confirmed by the Second MAP's reasons is so wrong as to be perverse. That is highlighted by the failure to explain the difference between the two.
11. The worker submitted that the various overlapping errors identified by the Plaintiff were essentially summed up by the complaint in paragraph 24 of the contentions in the Summons, namely, that the difference between Dr Pillemer's assessment (accepted and confirmed by the Second MAP) was so wrong as to be perverse because of its difference with the assessment of the First MAP that was said to be binding and conclusive.
12. The worker submitted that the assessment by Dr Burke and its acceptance by the First MAP was not binding at the time of the subsequent medical assessment by Dr Pillemer. Once the Commission had determined to appoint Dr Pillemer to determine the question of the degree of permanent impairment, he was required to deal with all aspects of the assessment and any prior assessment such as that of Dr Burke had historical status only. The worker submitted that the statutory task to be performed by Dr Pillemer was only to make findings and state reasons relevant to that assessment at the time it was carried out. His task did not include or extend to adjudicating on competing opinions of other assessments.
13. The worker submitted that the type of obligation discussed in Campbelltown City Council v Vegan (2006) 67 NSWLR 284; [2006] NSWCA 372 at [120]-[122] did not arise because the statutory task for Dr Pillemer was assessing the worker's physical injury on the day of consultation. That involved applying the Guidelines to see if radiculopathy was present. It was only of historical interest if Dr Burke had reached a different decision on radiculopathy at the earlier time.
14. The worker submitted that it was an error for the Plaintiff to focus on whether there was some form of deterioration that needed to be the subject of findings or explanation. The determination was whether the definition for radiculopathy was satisfied. Any focus on deterioration would arguably have been an irrelevant consideration to the statutory task being undertaken.
15. The worker submitted that the Second MAP correctly identified the issues before it and the submissions of the Plaintiff. The Second MAP noted that Dr Pillemer had not made reference to Dr Burke's assessment but held that that did not in any way compromise Dr Pillemer's reasons or conclusions.
16. The worker accepted that there was some mislabelling of body parts in the Second MAP's Statement of Reasons. However, they were not substantive errors and it was apparent from paragraphs 21-28 of the Second MAP's Reasons (the core paragraphs) that although there was mislabelling or typographical errors, the correct body parts were assessed.

Evidence

1. Before dealing with the grounds of appeal it is necessary to deal with an objection to some of the evidence put forward by the Plaintiff. The Plaintiff sought to read an affidavit of Timothy Peter Ainsworth sworn 22 October 2015. Mr Ainsworth is the solicitor for the Plaintiff. His affidavit simply annexed material. Objection was taken to annexures D, E, F and G. Those annexures are described in this way: D. Medical Assessment Certificate by AMS Dr Pillemer dated 11 September 2014. E. Workers Compensation Commission Amended Certificate of Orders dated 8 May 2014. F. Application to Resolve a Dispute dated 12 February 2014 (which includes the Medical Appeal Panel Certificate dated 29 October 2013 from page 26 thereof and the Certificate of Determination dated 22 November 2013 at page 40 thereof). G. Reply by Plaintiff to Application to Resolve a Dispute dated 5 March 2014 (which includes the Medical Assessment Certificate of AMS Dr Beer dated 26 March 2013 from page 10 thereof and the Medical Appeal Panel Decision dated 29 October 2013 from page 25 thereof).
2. The worker submitted that where the grounds concerned errors of law on the face of the record and the nature of the reasons the only material that can be considered are materials which make up the face of the record. Those materials do not include underlying materials that may be admissible if procedural fairness is part of the complaint.
3. Although at a theoretical level the worker's submissions in that regard are correct, there are two other considerations present in this case that justify reception of the annexures to which objection has been taken. First, and somewhat ironically, senior counsel for the worker relied heavily on the Plaintiff's submissions to the Second MAP when the Plaintiff sought a review of Dr Pillemer's assessment (part of annexure F) and also on what Dr Pillemer himself said in his reasons (annexure D). Secondly, to understand the argument being put forward by the Plaintiff on the present application, it was necessary to have regard to the material which had gone before, including Dr Beer's assessment, the First MAP's reasons, the Application to Resolve a Dispute and the Application to appeal against Dr Pillemer's assessment.
4. Further, the way the argument in relation to ground 1 was put certainly makes it necessary to have Dr Pillemer's report before the Court.
5. I consider that all of the evidence should be admitted.

Ground 1 - misunderstanding jurisdiction

1. Even a casual reading of the Second MAP's reasons demonstrates beyond serious argument that the Second MAP understood that it was reviewing Dr Pillemer's assessment, and that that assessment concerned the worker's cervical spine and right upper extremity. Everything in paragraphs 22 to 26 and 28 of the Second MAP's reasons discusses those injuries and not the lumbar spine. There is no evidence to suggest that the Second MAP did not read Dr Pillemer's report as paragraph 27 of its reasons asserts. The only mention by Dr Pillemer of the lumbar spine is to accept the 11% assessment by Dr Beer as undisputed.
2. This ground of appeal is without merit.

Ground 2 - errors on the face of the record

1. It may be accepted that the Second MAP incorrectly said at paragraph 20 of its reasons that the matter was referred to Dr Pillemer for assessment of whole person impairment of the thoracic spine and lumbar spine. However, it is perfectly clear from a reading of the remainder of the reasons that the Second MAP understood that in fact Dr Pillemer had been asked to assess the cervical spine and the right upper extremity.
2. As to the second asserted error, Dr Pillemer said at the outset of his report: I note in the referral that the lumbar spine has been accepted as having an 11% WPI. In relation to the body parts injured he recorded: Lumbar spine (accepting that there is an 11% whole person impairment of the lumbar spine). Those statements were true and the assessment of the lumbar spine at 11% was not challenged in the appeal to the First MAP nor in the subsequent appeal from Dr Pillemer. The worker submitted that the 11% assessment was included in Dr Pillemer's certificate, and that it had to be included in his certificate because of the provision of s 329(2) of the Act. In that sense he assessed 11% for the lumbar spine. The Plaintiff submitted that the words in the sub-section "to the extent of any inconsistency" meant that Dr Pillemer was not obliged to include the lumbar spine assessment in his certificate.
3. It is difficult to understand the basis on which the Plaintiff is making this matter an issue. The 11% assessment is not disputed in these proceedings. Dr Pillemer in fact included the assessment in his certificate. In that sense, he assessed it. So too did the First MAP without having given any consideration to the worker's lumbar spine. Even if what is said by the Second MAP in paragraph 21 of its reasons can be described as loose language, nothing flows from it.
4. In a similar manner to ground 1, it does not reflect well on the Plaintiff to identify as errors in the decision now sought to be reviewed the matters described as errors 1 and 2 which lead nowhere and cannot result in a different outcome. Adopting this approach is contrary to what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 when commenting on a statement by the Full Court of the Federal Court that the decision-maker's reasons were entitled to a beneficial construction (at 269-270): When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic . In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "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". These propositions are well settled. They recognise the reality that 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. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. (citations omitted)
5. The third error concerns the misstatement by the Second MAP that the Plaintiff had submitted that Dr Pillemer failed to consider an assessment by Dr Burke of the cervical spine of 11% when it was in fact 0%. This will be dealt with below.

Ground 4 - perverse decision

1. These grounds can conveniently be dealt with together because, in general terms, the complaints concern the failure of both the Second MAP and Dr Pillemer to have regard to Dr Burke's findings as contained in the reasons of the First MAP and to the incorrect reference in paragraph 22 of the Second MAP reasons to an assessment by Dr Burke of 11% WPI for the cervical spine. The Plaintiff's challenge was as much to Dr Pillemer as it was to the Second MAP and it is necessary, therefore, to have regard to what Dr Pillemer did and what he was bound to do.
2. The Plaintiff referred in its submissions to the binding nature of the certificate from the First MAP. That was true only to the point where Dr Pillemer issued his certificate or, arguably, to the point where the matter was referred to Dr Pillemer. Certainly, when Dr Pillemer issued his certificate the certificate of the First MAP ceased to be determinant of anything.
3. In Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 Harrison AsJ said: [82] There is no issue estoppel created by the first determination that operates to restrict the determination of any subsequent medical re-assessment. The present case is one where the initial determination may be reassessed at a later date if the injury has the potential to cause a subsequent variation of the degree of whole person impairment. Accordingly, the issue estoppel created by the first determination is limited strictly to the degree of impairment at the date of that determination, and does not impinge on the re-assessment of subsequent impairment. [83] Prisk v Department of Ageing, Disability and Home Care (No 2) and Abou-Haidar v Consolidated Wire Pty Ltd establish there is no issue estoppel running from a determination of the Commission as at a particular date to an assessment at a later time in circumstances capable of change. The Registrar stated at [11] that a degree of permanent impairment or loss of use that results from injury is a circumstance capable of change. The role of an Approved Medical Specialist at a later time is to give an opinion as to the degree of permanent impairment as a result of the work injury now present. The Approved Medical Specialist is not legally constrained by the prior award and is not required to ground their assessment, whether of improvement, deterioration or no discernible change, upon the previous determination of the commission. Any presumption of continuance falls away because the later certificate of the Approved Medical Specialist is conclusively presumed to be correct in that regard. [84] Dr Harvey-Sutton found a greater degree of impairment than Dr Schutz. The plaintiff asserted that Dr Harvey-Sutton failed to refer to Dr Schutz's assessment in her MAC. It was submitted that this failure was a demonstrable error or established that Dr Harvey-Sutton had applied incorrect criteria. The Registrar stated correctly at [11]-[12] that the role of an Approved Medical Specialist is to give an opinion as to the degree of impairment at the time of the examination without the legal constraint from any prior award. The Approved Medical Specialist is entitled to apply their expertise on the day of the examination.
4. The medical dispute in the present case had been referred to Dr Pillemer for determination. Clause 1.5 of the Permanent Impairment Guidelines provides: Assessing permanent impairment involves clinical assessment on the day of assessment and determining: whether the claimant's condition has resulted in impairment whether the condition has reached Maximum Medical improvement (MMI) whether the resultant impairment is permanent the degree of permanent impairment that results from the injury the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as detailed in the WorkCover Guides. (emphasis added)
5. The basis for Dr Pillemer's assessment was not that there had been a deterioration in the worker's condition although counsel for the Plaintiff made frequent reference to the notion of deterioration in suggesting that Dr Pillemer and the Second MAP should have explained why they differed from Dr Burke. Dr Pillemer's task was to make an assessment in accordance with the Guidelines and clause 1.5 in particular.
6. The task of the Second MAP was to review the medical assessment by Dr Pillemer with the review being limited to the grounds of appeal on which the appeal is made: s 328(2), New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [46] - [49]. The ground of appeal identified in the Application to Appeal was that found in s 327(3)(d), that is, that the medical assessment certificate contained a demonstrable error. However, the submissions of the Plaintiff suggested also that Dr Pillemer applied incorrect criteria.
7. It is of some assistance to set out the three paragraphs of those submissions upon which Senior Counsel for the worker placed most emphasis to base his submissions challenging the Plaintiff's approach: 26. The Appellant submits that Dr Pillemer has failed to turn his mind and attention to the existence of the previous MAC of Dr Burke and the COD that issued premised on this MAC less than a year before Dr Pillemer's examination of the Respondent. Dr Pillemer has considered and given detailed comment on the MAC of Dr Beer which was found by the previous Medical Appeal Panel to be demonstrably wrong and/or to have applied incorrect criteria. 27. The Appellant submits that the central issue that Dr Pillemer was asked to address was whether there had been a deterioration in the Appellant's condition since the MAC of Dr Burke and, to perform this task correctly, it was necessary for Dr Pillemer to both consider and address the MAC of Dr Burke as well as explain the basis upon which there could have been such a significant deterioration in the Respondent's condition in the period between 4 years and 4 months post injury and 5 years and 2 months post injury. Absent an explanation linking this deterioration in a 10 month period to the injury itself, Dr Pillemer has, in the Appellant's submission, made a demonstrable error. 28. For clarity, the Appellant submits that Dr Pillemer cannot simply have a difference of opinion with the MAC of Dr Burke as he is required to accept that the MAC of Dr Burke was binding at the time of issue and, indeed, the Commission made a determination based on that MAC. …
8. The Second MAP may be excused in those circumstances for stating in paragraph 4 that the appeal was made on those two grounds despite what appeared in the Application to Appeal. In any event, the demonstrable error is identified as Dr Pillemer's not linking the "deterioration" found by Dr Pillemer to the 10 month period between Dr Burke's and Dr Pillemer's examinations.
9. In Wingfoot Australia Partners Pty Ltd v Eyup Kocak (2013) 252 CLR 480; [2013] HCA 43 the High Court said: [47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. … [55] The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.
10. Although that case involved the Accident Compensation Act 1985 (Vic) it has been held that it is relevant to assessments under the Motor Accidents Compensation Act 1999 (NSW): Allianz Australia Insurance Limited v Mackenzie & Ors [2014] NSWSC 67; (2014) 66 MVR 124 at [27].
11. It must be said that there appears to be some tension between what was said in Wingfoot, at least at [47], and what was earlier said in Campbelltown City Council v Vegan where the following appears: [121] Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel. [122] On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis [Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247] at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.
12. However, when the passage in Vegan, particularly at [121], is carefully examined I do not consider that there is inconsistency at least as far as the present matter is concerned. I note in passing that the High Court seemingly approved what was said in Vegan at [129]-[130] when the joint judgment in the High Court was discussing whether inadequacy of reasons would be an error of law on the face of the record (at [28]). No reference was made to Vegan at either [47] or [55] of the High Court's judgment.
13. It may be noted that in the present case the Second MAP did not make their own assessment of the worker's condition. Had they done so, it might have been necessary for the Panel to give some explanation of its preference for one of a number of conclusions that were open: Vegan at [121]. In the present case, however, the Second MAP examined whether Dr Pillemer had correctly dealt with the criteria in relation to radiculopathy following the Guidelines at cl 4.23. They concluded that Dr Pillemer had correctly applied those Guidelines by the identification of both a major criterion as well as another criterion that was present. To the extent that applying incorrect criteria was a ground of appeal the Second MAP concluded that Dr Pillemer had not applied incorrect criteria.
14. Dr Pillemer did examine the worker. He reached his opinion that radiculopathy was present (whether or not it was present was at the heart of the medical dispute) correctly applying the Guidelines as to the presence of two criteria, one being a major criterion. Dr Pillemer found as the major criterion reproducible impairment of sensation that was anatomically localised to the C6 spinal nerve root distribution. He was also satisfied from the radiology that the findings were consistent with the clinical signs (the disc protrusion at the C5/6 level which was displacing and compressing the C6 nerve root).
15. The Plaintiff submitted that Dr Pillemer only read the report of the radiologist and did not view the films of the CT whereas the First MAP's reasons expressly said that Dr Burke had viewed the films. Dr Pillemer said: A CT of his cervical spine carried out on 9 October 2009 showed disc narrowing at C5/6 and C6/7, with disc protrusion at the C5/6 level into the right intervertebral foramen which the radiologist felt was most likely displacing and compressing the right C6 nerve root with a suggestion of a lateral disc protrusion at the C6/7 level with displacement of the right C7 nerve root. … My opinion is based on the clinical history obtained, my findings on clinical examination, examination of the investigations and reports thereof, as well as my review of the accompanying documents. (emphasis added) In the light of those statements, I do not think I should conclude that Dr Pillemer did not view the films but simply relied on reports of them.
16. In my opinion Dr Pillemer complied with what Vegan required. He discussed the different opinions of Dr Stephenson, Dr Habib and Dr Beer. With regard to Dr Beer he explained why he differed from Dr Beer in assessing the shoulder (the difference between 3% and 5%), about which the Plaintiff complains. Dr Pillemer said "according to the range of movement today" there was a greater restriction. That was a fulfilment of his obligations under the Guidelines. He was not under any obligation to go further to try to explain why it might be the case that the restriction he found was greater than previously found.
17. One can agree with the Second MAP's observation that from the point of view of comprehensiveness it might have been preferable if Dr Pillemer had made reference to Dr Burke's assessment. However, his comments regarding the other assessments I have mentioned were also apposite to Dr Burke. The principal difference he had from Dr Burke (and, for that matter, with Dr Stephenson and Dr Habib) was that Dr Pillemer found radiculopathy for the reasons he gave, and Dr Burke and the others did not.
18. In regard to what was said to be the demonstrable error the Second MAP considered that Dr Pillemer's failure to refer to Dr Burke's conclusion did not compromise Dr Pillemer's reasons or conclusion and stressed that his assessment was the relevant one at the time he assessed the worker. The Second MAP was otherwise satisfied with Dr Pillemer's examination and conclusions.
19. In my opinion, it was not part of Dr Pillemer's function to compare and contrast his findings with those of the previous Panel. His obligations were those that I have set out earlier which the Guidelines require. He was not required to assess deterioration that resulted in an increase in the degree of permanent impairment. He was entitled to come to a different opinion from the previous Appeal Panel. The fact that its certificate was binding until Dr Pillemer assessed the worker afresh did not impose upon him the obligation to make reference to that Panel's competing views and assessment. In the same way, Dr Pillemer was not obliged to explain why he reached a different view on the radiological evidence. That is essentially a matter for clinical judgment.
20. Whilst it is regrettable that the Second MAP wrongly stated that Dr Burke had assessed the cervical spine at 11%, it is pure speculation to suggest that that informed the Second MAP's reasoning and approach. The Plaintiff submitted, for example, that if the Second MAP had known that Dr Burke assessed the cervical spine at 0% they might have reached a different view about Dr Pillemer's assessment. However, it is clear that the Second MAP regarded any reference by Dr Pillemer to what Dr Burke had found as non-essential to his approach. That was why they said that while it might have been preferable as a matter of comprehensiveness for reference to have been made to that opinion, his not doing so did not otherwise compromise his reasons or conclusion.
21. It cannot be said that a prior medical report, even of an appeal panel, was a factor that by law was bound to be taken into account. In that sense it was not a relevant consideration. As was said by Gleeson JA (Macfarlan and Leeming JJA agreeing) in Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 at [85] the identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision-maker to act rather than from the particular facts of the case that the decision-maker is called on to consider. Although the Plaintiff did not suggest that there had been a failure to take into account a relevant consideration, in substance, that was the Plaintiff's point because the Plaintiff said that what it complained about was the failure to explain the difference between Dr Pillemer's assessment and that of Dr Burke. A failure to do so would only be an error of law if there was a requirement to make the comparison and provide the explanation now demanded.
22. For those reasons also there was no failure to give adequate reasons by either Dr Pillemer or the Second MAP because there was no obligation to provide the explanation the Plaintiff now says should have been given. In the light of the assessment of Dr Beer and Dr Stephenson it cannot reasonably be suggested that the result of Dr Pillemer's assessment, approved by the Second MAP, was perverse. That finding is invited simply because Dr Beer found 0% and Dr Pillemer found 15%. A similar argument could be levelled more forcefully against Dr Burke because of both Dr Beer's and Dr Pillemer's findings. Differences of clinical judgment in this way cannot produce error based on perversity. In any event, Dr Pillemer has explained why he reached his view - his findings were based on the presence of radiculopathy when he examined the worker.
23. In my opinion, no error of the kind alleged in these grounds has been shown.

Conclusion

1. I make the following orders: (1) Summons dismissed. (2) The Plaintiff is to pay the First Defendant's costs.

Amendments 25 November 2016 - Counsel section of cover sheet amended. 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: 25 November 2016