Kitanoski v JB Metropolitan Distributors Pty Limited

By summons filed on 23 August 2019, Mitko Kitanoski (the plaintiff) seeks relief pursuant to s 69 of the Supreme Court Act 1970 (NSW), including an order setting aside the decision of the third defendant, the Medical Appeal Panel constituted by Ms Moore, Dr Berry and Dr Payten (the Panel), and an order setting aside the decision of the Registrar of the Workers Compensation Commission, the second defendant (the Registrar).

The plaintiff’s employer, against which his claim for whole person impairment (WPI) was made, was JB Metropolitan Distributors Pty Ltd, the first defendant (the Employer). The Panel and the Registrar have filed submitting appearances, leaving the Employer as the only active defendant.

In these reasons, all references to legislation are, unless otherwise specified, to the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

Section 151H of the Workers Compensation Act 1987 (NSW) provides that no damages may be awarded to an injured worker unless the degree of permanent impairment is at least 15%.

Part 7 of the Act provides for the resolution of “medical disputes”, which are defined, in s 319, to include a dispute between a claimant and the person on whom a claim is made about the degree of permanent impairment of the worker as a result of an injury. The Registrar is empowered to refer a matter for assessment at the request of one of the parties: s 321(1). If the parties do not agree on an approved medical assessor (AMS), the Registrar is to choose an AMS to assess the dispute: s 321(2).

Section 322 provides that the assessment of the degree of permanent impairment is to be made in accordance with the Workers Compensation Guidelines (the Guidelines) in force at the time the assessment is made and that impairments that result from the same injury are to be assessed together. The powers of an AMS are set out in s 324 and include a power to require the worker to submit to an examination: s 324(1)(c). Section 324(3) provides:

An AMS, on completion of the assessment, is to issue a medical assessment certificate (MAC) as to the matters referred for assessment: s 325(1). Section 325(2) provides:

The effect of s 325(2)(c) is that the Panel’s reasons form part of the record: Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152 at [27] (Leeming JA, Tobias AJA agreeing); Mulcahy v NRMA Insurance Ltd [2018] NSWCA 189; (2018) 85 MVR 337 at [14] (White JA, Beazley P and Meagher JA agreeing).

An assessment certified in a MAC is conclusively presumed to be correct as to various matters, including the degree of permanent impairment: s 326(1)(a).

A party may appeal under s 327 against a medical assessment but only if the Registrar is satisfied that at least one of the grounds of appeal specified in s 327(3) has been made out: s 327(4). Section 327(3) provides:

Section 328 provides for the procedure on appeal, relevantly as follows:

Section 329 provides that a matter may be referred by the Registrar for further assessment as an alternative to an appeal against the assessment under s 327.

Section 331 provides:

Section 376 provides that the Authority (which is defined by s 4 to mean the State Insurance Regulatory Authority) may issue Guidelines, which may adopt the provisions of other publications with or without modifications.

The Authority issued the 4th edition of the NSW Workers Compensation Guidelines for the evaluation of permanent impairment (1 April 2016) (the Guidelines). It was common ground that this was the appropriate version. The Guidelines substantially adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5).

Chapter 4 of the Guidelines, which deals with the spine, adopts AMA5 Chapter 15, with modifications. It provides:

Clause 4.18 of the Guidelines provides:

The Guidelines refer to radiculopathy, relevantly as follows:

Clause 6.3 of the Guidelines provides:

AMA5 summarises the categories for diagnosis-related estimates (DRE) of the lumbar spine in table 15-3. The category for 0% WPI (DRE Lumbar Category I) is appropriate where there are no significant clinical findings. The next category, for 5%-8% WPI (DRE Lumbar Category II), requires that the clinical history and examination findings be compatible with a specific injury. The third category, for 10%-13% WPI (DRE III) requires, of present relevance:

AMA5 addresses vestibular disorders in Chapter 11. In 11.2b, AMA5 says:

Table 11-4 sets out the various categories for the purposes of assessment of impairment of vestibular function. Class 1 (0%) covers those with symptoms or signs of vestibular disequilibrium without supportive objective findings. Class 2 (1-10%) covers persons whose disequilibrium is supported by objective findings and who can perform activities of daily living without assistance, except for certain complex tasks. The further classes are dependent on the capacity to perform various activities of daily living.

On 10 May 2004 the plaintiff suffered an injury when a box fell from a shelf. The injury was suffered in the course of his employment with the Employer. He claimed workers compensation, for which the Employer was accepted to be liable. He has not worked since.

The plaintiff claimed WPI and, on 12 August 2015, he was assessed at having a WPI of 0%. The MAC to that effect was confirmed on appeal by a Panel on 12 May 2015.

On 7 December 2017 the plaintiff made a further claim against the Employer for WPI as follows:

The Employer denied the claim and requested that the Registrar refer the claim for assessment. The medical assessment was undertaken by Dr Truskett, the lead AMS, who is a general surgeon, and Dr Ackroyd, a non-lead AMS, who is a cardiovascular specialist. The MAC also included the MAC of another specialist, Dr Brian Williams, an otolaryngologist, in respect of the plaintiff’s vestibular impairment. On 27 November 2018, the MAC was issued which certified a WPI of 7%. This figure was referable to the WPI found by Dr Ackroyd. Dr Truskett, who assessed the plaintiff’s lumbar spine, cervical spine and upper and lower digestive tracts, found 0% WPI, as did Dr Williams, who assessed the plaintiff’s vertigo for the purposes of assessing any vestibular impairment.

On 24 December 2018 the plaintiff applied to the Registrar for leave to appeal against the medical assessment on the grounds in s 327(3)(a) (deterioration of the plaintiff’s condition), (c) (incorrect criteria) and (d) (demonstrable error). The plaintiff did not rely on s 327(3)(b) (the availability of additional relevant information). In his application the plaintiff requested that he be examined by an AMS who was a member of the Panel. He did not request the opportunity to present oral submissions to the Panel. The plaintiff indicated that he sought leave to rely on additional evidence that he alleged was not previously available or could not reasonably have been obtained prior to the medical assessment.

On 17 January 2019, the Employer opposed the appeal.

On 15 March 2019 the Registrar, Michael McGrowdie, was satisfied, on the face of the application, that at least one of the grounds specified in s 327(3) had been made out, being the ground in s 327(3)(d) (demonstrable error), and referred the matter to the Panel. Although the Registrar identified error, he did not identify the error in his decision. The reasons for the Registrar’s decision included the following:

On 24 May 2019 the Panel dismissed the appeal and gave reasons for its decision. These reasons will be summarised or extracted below in sufficient detail to address the grounds of appeal. The paragraphs identified are the paragraphs in the Panel’s reasons for decision.

The Panel considered and refused the plaintiff’s request that he be re-examined, as follows:

As to the plaintiff’s application to adduce fresh evidence before the Panel, the Panel, referred, at [13], to the test in s 328(3). It listed the additional evidence as follows:

The documents in (a), (d) and (e) will be referred to as the Additional Reports.

In a report dated 21 December 2018 Dr Patrick said in part:

In his report dated 21 December 2018, Dr Scoppa said:

The Panel recorded the plaintiff’s submissions about the relevance of the reports of Drs Patrick and Scoppa as follows:

The Panel said, in its reasons, that the plaintiff did not address why the evidence could not have been obtained before the referral. It also said:

The Panel admitted evidence from St George Hospital dated 15 December 2018 on the basis that it could not reasonably have been available prior to the assessment and therefore fell within s 328(3).

The Panel referred to the plaintiff’s substantive arguments which were, of present relevance, as follows. The Panel, at [32] of the reasons, recorded the plaintiff’s submission that Dr Truskett had failed to perform an assessment of the lumbar spine in accordance with AMA5 and the Guidelines. The plaintiff also submitted, as noted in [33] of the reasons, that Dr Williams had failed “to perform a Hallpike test on multiple occasions to ensure an appropriate and just assessment of whole person impairment for vestibular injury was determined in accordance with AMA5 and the Guidelines."

In its reasons, the Panel quoted extensively from Dr Truskett’s reasons, including instances where Dr Truskett had noted disparities between the plaintiff’s history and other sources and where Dr Truskett had described the plaintiff’s conduct during the examination. These quotations included the following. The highlighted passages indicate the portions particularly relied upon by the plaintiff in this Court as amounting to an adverse assessment by Dr Truskett of the plaintiff’s credit.

The Panel’s reasons for rejecting the submission that Dr Truskett had not complied with the Guidelines included the following:

The Panel’s reasons for rejecting the challenge to Dr Williams’ MAC included the following:

The summons does not identify separate grounds in terms since the narrative and legal argument are included under the heading “grounds”. However the narrative contains allegations which I propose to regard as grounds. These can be reduced to the following:

The plaintiff contended that the Panel failed to accord procedural fairness to him by refusing to re-examine him and by failing to give sufficient reasons for its refusal. Further, the plaintiff contended that it was not open to the Panel to refuse to re-examine the plaintiff in circumstances where his credit was in issue.

The plaintiff contended that it was not open to the Panel to refuse to receive the Additional Reports since they could not have been obtained before the MAC because the reports deal with matters raised by the AMSs in coming to the assessment recorded in the MAC. Further, the plaintiff submitted that the Additional Reports constituted additional relevant information within the meaning of s 327(3)(b). In addition, the plaintiff argued that the Panel’s refusal to consider the Additional Reports amounted to procedural unfairness.

The plaintiff contended that it was not open to the Panel to refuse to consider his statutory declaration dated 22 December 2018; and that its refusal to consider the plaintiff’s statutory declaration dated 22 December 2018 amounted to procedural unfairness.

In effect, the plaintiff challenged the Panel’s treatment of his request to be re-examined; and the Panel’s refusal to admit the Additional Reports and the plaintiff’s statutory declaration dated 22 December 2018. There are two aspects to each of these matters: that the decision made by the Panel was not open and that the Panel’s refusal amounted to a denial of procedural fairness. With respect to the Additional Reports, the plaintiff also argued that they constituted “additional relevant information”.

Each of the grounds, as formulated above, amounts to a question of law and, if made out, amounts to an error of law. Thus, this Court’s jurisdiction under s 69 of the Supreme Court Act has been properly invoked as long as the alleged errors of law are either on the face of the record or amount to jurisdictional errors. The “record” includes the reasons for the decision. It does not include the transcript of the proceedings, the evidence, or the submissions: Craig v The State of South Australia (1995) 184 CLR 163 at 180-183; [1995] HCA 58; Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [29]-[30].

The MAC is conclusive evidence as to certain matters, including the percentage WPI. It is subject to the right of a party to appeal pursuant to s 327, but only in relation to particular grounds and subject to the gateway provision of s 327(4). The Panel is constrained by the grounds in conducting a review of the medical assessment the subject of the MAC. There is no right to an examination or an oral hearing of any type. Procedural fairness is provided for by the exchange of submissions, as occurred in the present case.

The role of the AMS was considered by the High Court in an analogous statutory context in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot). In Wingfoot, the County Court of Victoria referred certain medical questions for the determination of a Medical Panel under Part IV of the Accident Compensation Act 1985 (Vic). The Medical Panel issued certificates setting out its opinion. These certificates were challenged in proceedings brought for certiorari. The High Court described, at [47], the functions of the Medical Panel in the following passage, which is apt to describe the functions of the AMS in the New South Wales context under the Act:

As with the Medical Panel in the Victorian context, the AMS is obliged to give its own assessment on the medical question (in this case the degree of permanent impairment) “by applying its own medical experience and its own medical expertise”.

The Panel provides an avenue of review on certain limited grounds. As with the AMS, the Panel is constituted by medical experts who are obliged to apply their own medical experience and medical expertise. The Panel, like the Medical Panel in Wingfoot, has an obligation to provide procedural fairness although it is neither arbitral nor adjudicative. Its role is to decide whether, on the grounds raised by the applicant, it ought confirm the MAC or revoke it and issue a new certificate. When a Panel chooses to revoke a MAC and issue a new MAC, s 328 also applies to the new MAC. This regime confers a “review” function on the Panel, as well as a function which is akin to the function conferred on the AMS: namely, to issue a certificate setting out its opinion on the relevant question.

It is in this context that the reasons which the Panel is obliged to give and the procedural fairness which it is obliged to accord are to be judged. In Wingfoot, the High Court held that the reasons must set out “the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself”: [48]. As appears from the passage from Wingfoot at [47] cited above, procedural fairness in this context requires that the parties be given an opportunity to provide material and submissions. When the AMS is the relevant decision-maker, the material can include whatever relevant material either party wishes to put before the AMS. However, on appeal, the parties are limited by s 328(3) as to what can be put before the Panel, although the ultimate decision as to whether further material will be accepted is for the Panel.

It is plain from the provisions referred to above, that the Panel is to undertake a review of the medical assessment conducted by the AMS. Its role is not to undertake a fresh medical assessment unless it has decided to revoke the MAC and considers that it is obliged to do so to enable it to issue a new certificate. Therefore, there is no entitlement on the part of the plaintiff to be re-examined by the Panel.

Mr Emmett, who appeared on behalf of the Employer, referred me to decisions of this Court to the effect that the Panel has no power to re-examine a plaintiff unless and until the Panel is satisfied that there is an error in a MAC. In NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792, Davies J said:

In Midson v Workers Compensation Commission [2016] NSWSC 1352 N Adams J cited NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales with approval. Her Honour said at [52]:

Plainly, if the Panel had no power to examine the plaintiff, in the absence of error having been established such as would lead the Panel to revoke a certificate for error, it could not be an error to refuse to conduct such an examination. However, it is not necessary to address the correctness of these decisions, since the question that arises in the present case is a different question: whether the plaintiff can establish that it was not open to the Panel to refuse to examine the plaintiff.

Mr Turnbull SC, who appeared on behalf of the plaintiff, submitted that, for three separate, independent reasons, the Panel was obliged to re-examine the plaintiff. First, he submitted that a re-examination was necessary to permit the Panel to form its own view of the plaintiff’s credibility, which had been the subject of adverse comment by Dr Truskett. Secondly, he submitted that, because Dr Truskett had not measured the plaintiff’s calves to ascertain whether there was muscle wasting, it was incumbent on the Panel to examine the plaintiff for itself to determine whether there was muscle wasting. Thirdly, he submitted that because vestibular dysfunction was variable, the Panel was obliged to repeat the Hallpike test to see if a positive test could be obtained. In respect of each of these matters, Mr Turnbull contended that the Panel was in error (either of law on the face of the record or jurisdictional error) for failing in its duty to enquire. He relied on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI) and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (which was considered in SZIAI).

Before turning to the three matters raised by Mr Turnbull, I propose to address SZIAI, which concerned a challenge to a refusal to grant a protection visa to SZIAI, who applied for review of the Minister’s decision in the Refugee Review Tribunal (the Tribunal). In support of his application, SZIAI provided certificates from persons who purported to vouch that he was an Ahmadi. The issue whether he was an Ahmadi was relevant to whether SZIAI had a well-founded fear of persecution if he was deported from Australia to Bangladesh. The certificates contained contact details of the persons who made the certification. The Minister relied on a letter which he received from the association which had purported to issue the certificates. The letter was to the effect that SZIAI was not a member of the association and that the certificates were fake. The issue was whether the Tribunal’s decision was vitiated by error when it did not make further inquiries of the persons whose names and contact numbers were on the certificates. SZIAI succeeded in the Federal Court. The Minister appealed to the High Court.

The plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said, at [25]:

In SZIAI, the High Court found that there was nothing to indicate that further inquiry would have yielded a useful result and that there had been no denial of procedural fairness because SZIAI had been given an opportunity to comment on the letter.

I will now address the three matters raised by Mr Turnbull.

In substance, the plaintiff’s complaint is that the AMS formed an adverse view of his credit and that, in order to perform its review function, the Panel was obliged to examine him. I reject this submission. What the AMS was concerned to establish was the reliability of the plaintiff, in terms of the history given, the symptoms described and the conduct on examination. This is a different process than the assessment of credibility in a courtroom: see the discussion of credibility in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce). Where a medical expert, such as an AMS, notes a disparity between the history given and a known fact, or the symptoms described and known medical conditions or the conduct on examination and the AMS’s knowledge of medical science, the medical expert is not, at least for the purposes of assessing physical impairment, concerned (as a court might be) with the question whether a claimant is, for example, lying for financial gain or whether there is a functional overlay or another psychiatric explanation for the disparity.

In so far as the AMS assessed the plaintiff’s credit, its assessment was based on two matters: first, a disparity between the history the plaintiff gave and the objective facts as established by the documents which had been placed before the AMS; and second, a disparity between the symptoms described by the plaintiff and any known organic cause. The first matter was a matter of record. The second matter was one which called for medical expertise. Each of these matters was germane to the assessment of impairment since it was important to determine whether the plaintiff was a reliable historian and whether the findings on examination reflected an organic cause. This task was pre-eminently one for the AMS, as a medical expert. The Panel did not need to examine the plaintiff to review the AMS’s comparison between his stated symptoms and any known organic cause since this was a matter within its medical expertise. Nor did it need to have regard to the plaintiff’s statement since the fact of the disparity between findings on examination and known organic cause was not something that could be explained by the plaintiff himself.

There was no denial of procedural fairness since the plaintiff was given an opportunity by the Panel to make submissions about any errors made by the AMS. The plaintiff made detailed submissions to the Panel about this matter which, as is apparent from the Panel’s reasons, were considered by the Panel.

The Panel addressed the plaintiff’s submission that Dr Truskett was in error in failing to measure his calf circumference for the purpose of determining muscle wasting and concluded that “it was not of significance in terms of his examination of the lower limbs as a whole” (see [72] of the Panel’s reasons extracted above).

Mr Turnbull argued that, when one has regard to the Guidelines, it is plain that such a measurement is required. He relied on what Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] that the concern of the law in the context of procedural unfairness is to “avoid practical injustice”.

In order to address this submission it is necessary to consider the Guidelines and what they require. The DRE categories set out above indicate the significance of radiculopathy to DRE III. The Panel’s reasons for considering that Dr Truskett’s failure to measure calf circumference was of no consequence are explained in [72]-[73] of its reasons set out above. Whether calf circumference was of significance, in light of the other observations and findings on examination, was a matter squarely within the medical expertise of the AMS and the Panel. The Panel, in light of its finding that the lack of measurement was immaterial, was entitled to refuse to re-examine the plaintiff. It was not to the point that another doctor, Dr Patrick, had measured calf circumference and found a disparity between the left and the right calf. Such a disparity of itself was not determinative. Rather, wasting in the context of radiculopathy was what was of significance.

In these circumstances, it was open to the Panel to decline to examine the plaintiff. The refusal to examine him did not amount to a denial of procedural fairness. The Panel addressed the plaintiff’s submissions on the question of muscle wasting and was entitled to reject them. There was no practical injustice occasioned by the decision of the Panel to decline to examine the plaintiff. Its reasons were ample to explain why it had taken this approach.

Mr Turnbull submitted that, since the plaintiff had had one positive Hallpike test in 2010, and the Hallpike test was a “supportive objective finding”, he qualified for class 2 in Table 11-4. He relied on the extract from 11.2b in AMA5 set out above which required the examiner to “gauge functioning during episodes with exacerbations”. Mr Turnbull submitted that the AMS, or, on appeal, the Panel, were obliged to continue to repeat the Hallpike test until it was positive, as it would be expected to be at times of exacerbation, having regard to the earlier positive test.

The obligation to keep testing until a positive finding is made would appear to be inconsistent with the protocol in the Act for assessing permanent impairment and for reviews to appeal panels of such assessments. While s 329 empowers the Registrar to refer a claimant for further assessment as an alternative to an appeal, the Act does not contemplate that AMSs will be on call to assess exacerbations if and when they arise. Furthermore, the Panel, which had the benefit of considerable medical expertise, was in a position to address the detailed submissions made by the plaintiff as to the different findings made over time when the Hallpike test was administered. Its reasons at [81]-[89] addressed these submissions in detail. I am not persuaded that it was not open to the Panel to refuse to examine the plaintiff or that the refusal constituted a denial of procedural fairness.

Mr Turnbull submitted that the Additional Reports were important, of themselves, and also because they indicated that a further examination was mandated.

The reason for the limitation on material that can be placed before a Panel which is conducting a review of the medical assessment by an AMS is that the Panel is reviewing the assessment of the AMS and not conducting a fresh assessment (subject to the matters referred to above). It is plain from the Panel’s reasons that the Panel considered each of the Additional Reports in deciding whether to admit them as part of its review. As its reasons reveal, the Panel’s view was that the authors of the Additional Reports were merely providing commentary on the findings and reasons of the AMS. The Panel is an expert body which is well-placed to review the AMS, another expert or group of experts. A new report from a doctor which post-dates the assessment conducted by the AMS does not thereby constitute fresh evidence. Its contents must be examined to ascertain whether it is actually fresh or whether it merely rehashes old arguments or cloaks submissions in a new form. It was open to the Panel to consider that the Additional Reports fell into the latter category. The Panel’s refusal to admit the Additional Reports (although it considered them and gave reasons for its decision not to admit them) does not amount to an error of law. There was no denial of procedural fairness.

In his written submissions, Mr Turnbull contended, in respect of the plaintiff’s statutory declaration:

The Employer noted in its submissions in this Court that the plaintiff had not pressed the allegation that his lumbar spine had deteriorated. I understood from Mr Turnbull’s oral submissions that this was the case. Accordingly, this matter need not be addressed further.

Mr Turnbull submitted that the Panel was in error in failing to find that Dr Truskett had failed to comply with the Guidelines by not taking the plaintiff’s calf measurement. He also submitted that the Panel was in error in failing to find that Dr Williams had failed to comply with the Guidelines by not allowing WPI on the basis of a positive Hallpike test which had been recorded, although not on the day of assessment; or by failing to re-examine the plaintiff until a positive Hallpike test was obtained.

It is apparent from the extracts from Chapter 15 of the Guidelines and AMA5 set out above that calf measurement is not mandated in the absence of any finding of radiculopathy. The findings of the AMS, as set out in detail in the Panel’s reasons, show that there was no such finding. In these circumstances there was no obligation on the part of the AMS to measure the plaintiff’s calves. Wasting of calf muscles can be due to a number of causes. It is only relevant to a finding of WPI with respect to the lumbar spine when it is caused by radiculopathy. I discern no error in the Panel’s finding that Dr Truskett’s examination of the plaintiff had complied with the Guidelines.

This aspect of the plaintiff’s submissions can be dealt with briefly because it has already been addressed in the context of the submissions regarding the refusal of the Panel to examine the plaintiff. The question whether the plaintiff was entitled to a greater percentage than 0% WPI in circumstances where Dr Williams did not elicit a positive response to the Hallpike Test was a medical question within the expertise of Dr Williams, as AMS, and the Panel. No legal error has been established in their approach. There was no suggestion that Dr Williams had failed to carry out the Hallpike test competently.

The plaintiff has failed to make out any of the grounds in the summons. The parties agreed that costs ought follow the event in accordance with the usual rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

For the reasons set out above, I make the following orders: