Thomas Gray v Geoff Groom Building Pty Ltd

1. [1]

   LEEMING JA: Mr Thomas Gray has invoked this Court’s supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW) to set aside the decision of a Medical Appeal Panel of the Workers Compensation Commission of NSW dated 26 February 2019. That Panel allowed an appeal against the decision of an Approved Medical Specialist, who had found a whole person impairment of 13%. The Panel assessed Mr Gray’s whole person impairment at 14%. However, so called “modified common law damages” under Part 5 of the Workers Compensation Act 1987 (NSW) are only available if the degree of permanent impairment is at least 15%: s 151H. Mr Gray’s submissions observed that “the gateway to a claim for ‘work injury damages’ opens if the Plaintiff secures an assessment of whole person impairment of 15% or greater”. Hence, the present proceedings.

2. [2]

   It is common ground that this Court’s examination is confined, in that Mr Gray needs to make out a case of jurisdictional error or alternatively error of law on the face of the record. The amended summons failed to distinguish between jurisdictional error and error of law on the face of the record. The distinction is important, and arises at the outset, because (aside from anything else), it affects the material to which the Court may have regard. The Court of Appeal has repeatedly emphasised this: see, without attempting to be exhaustive, Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [19] (“These considerations require the applicant to identify with a degree of precision which grounds are said to involve jurisdictional error and which errors of law on the face of the record”); Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 at [85] and AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; 77 MVR 348 at [45] (“As has been repeatedly emphasised, the distinction is important”).

3. [3]

   The amended summons also failed with any particularity to identify the errors of which Mr Gray complains. It did not comply with the obligation to state “with specificity, the grounds on which the relief is sought”: UCPR r 59.4(c). To the contrary, it describes five errors, in paragraphs 11(a)–(e), the first of which is a description occupying eight sentences and more than half a page as to how it is said the Medical Appeal Panel misapplied the guidelines. The third and fourth grounds (each of which contains six sentences) are similarly discursive.

4. [4]

   Constructively, Mr Romaniuk SC, who appeared with Mr Moffet for Mr Gray, refined the articulation of errors during the course of the hearing, and addressed them in a somewhat different order. These reasons align with the way submissions were developed during the hearing.

Factual background

1. [5]

   Mr Gray suffered an injury to his left hand on 21 October 2015 in the course of his employment with the defendant while using a circular saw. He suffered a partial amputation through the proximal phalanx of his left little finger, and severed tendons in the fourth and fifth fingers. He underwent further surgery, in March and July 2016, and January and July 2017, including having a right anterolateral thigh free flap taken from his right thigh and grafted to the back of his left hand.

2. [6]

   Mr Gray has made a claim for lump-sum payment pursuant to s 66 of the Workers Compensation Act. He was assessed, on 31 July 2018, as having a whole person impairment of the left upper extremity of 10%, and consequential scarring at 3%, resulting in a whole person impairment of 13%. His solicitor retained Professor Allan Meares, hand surgeon, who expressed the view that his scarring equated to a 9% whole person impairment, while the impairment to his left hand equated to a 13% whole person impairment. The result according to Professor Meares was a whole person impairment of 22%.

3. [7]

   Mr Gray filed an appeal against that decision in October 2018 pursuant to s 327(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act). A Medical Appeal Panel comprising two Approved Medical Specialists (Drs Curtin and Giles) and an arbitrator (Mr Dalley) conducted a preliminary review and determined that Mr Gray should undergo a further medical examination. Their reasons record that:

4. [8]

   Save for a submission going to power, no criticism was made of that aspect of the decision.

5. [9]

   Mr Gray was examined by Dr Giles on 6 February 2019, and his report was included verbatim as three pages of the 12 page determination. That report described Mr Gray’s history as follows:

6. [10]

   Dr Giles described five scars as follows:

7. [11]

   Two pictures of the scars (on his left anterior iliac crest and anterial thigh flap) were included in the report.

8. [12]

   This aspect of the report continued:

9. [13]

   The Medical Appeal Panel assessed whole person impairment in respect of the injury to the left hand at 10%, and no issue was taken with that element of the assessment. The challenge in this Court was wholly directed to the assessment based on scarring at 4%, which accorded with the views of Dr Giles. The Panel’s reasons in that respect were as follows:

10. [14]

    The most convenient way of dealing with the various grounds of review is to summarise each of them and resolve them in turn thereafter.

The examination by Dr Giles

1. [15]

   In his summons, Mr Gray submitted that there was no power to delegate the function of examining Mr Gray to one of its members. That submission was withdrawn following the defendant pointing to cl 5.17 of the Workers Compensation Medical Dispute Assessment Guidelines, which were published in the Government Gazette of 21 December 2018. It was common ground that those guidelines applied to Mr Gray’s appeal even though it had been commenced in October 2018, consistently with what was stated in their “general introduction”, namely, that “These Guidelines apply to all existing disputes in the Commission …”.

2. [16]

   Clauses 5.14–5.23 form a section headed “Procedure of the medical appeal panel”. Those guidelines provide as follows:

3. [17]

   It will be seen that cl 5.17 in terms authorises either the appeal to be determined “on-the-papers” or following further examination by one of the Panel’s members, or a further hearing involving all three of the Panel’s members. However, Mr Gray submitted that, in the particular case of his appeal, a determination involving “clinical judgment” was required, and that could not be performed by only one member and not all members of the Panel. Further, he submitted that “the needs of the individual case” in cl 5.17, which in his case turned upon the whole person impairment related to his scarring, had not been considered by the Panel, which would not have ordered further medical examination by one of its members had it done so.

4. [18]

   In addition to the Medical Dispute Assessment Guidelines referred to above, it is also necessary to refer to what I shall call the Permanent Impairment Guidelines (formally, the “NSW workers compensation guidelines for the evaluation of permanent impairment” (4th edition – 1 April 2016)). The Permanent Impairment Guidelines made provision in Chapter 14 for scarring to the skin. Under the heading “Introduction”, it was provided:

5. [19]

   Table 14.1 identified five columns of whole person impairment, of which presently relevant are columns 4 and 5 (3-4% WPI and 5-9% WPI). Each column contained descriptions of criteria corresponding to the band of whole person impairment. Those two columns provided as follows:

6. [20]

   At the bottom of the table is stated:

7. [21]

   Mr Gray’s submission focussed upon the requirement (so it was said) to use “clinical judgment” in cl 14.9. It was said that in the circumstances of this case, the other members of the panel, one of whom was medically qualified, the other not, were not able to comply with the obligation to use clinical judgment in applying the TEMSKI categories. The photographs reproduced in Dr Giles’s report were insufficient to permit that to occur.

8. [22]

   The Medical Dispute Assessment Guidelines engage s 331 of the WIM Act, thereby regulating the conduct of the appeal. In compliance with cl 5.14, the Medical Appeal Panel constituted to hear Mr Gray’s appeal comprised two Approved Medical Specialists and an arbitrator. The two specialists were required to be qualified medical practitioners with specialist expertise in the matters giving rise to the appeal. Each of those people would be able to apply the clinical judgment required in the Guidelines. There is no reason to think that an arbitrator would be able to do so.

9. [23]

   Although stated in a different context, Studdert J’s observation in Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Ltd [2006] NSWSC 235 at [62], to which Mr Stanton, who appeared for the defendant, relied, is apposite here. One member of a Panel conducted an examination, which influenced the other members of the Panel. Studdert J said that “The Appeal Panel was entitled to draw upon the expertise of one of its members, as plainly it did in this case”. Studdert J also agreed with and relied upon what had been said by Beaumont J in Minister for Health v Thomson (1985) 8 FCR 213 to the effect that it was reasonable to assume that the defendant was at all times on notice that the members of the committee would be likely to make use of their own expertise and experience in such matters.

10. [24]

    True it is that cl 14.9 states that an assessor “should” use clinical judgment to determine the exact impairment value. The express reference to the use of clinical judgment there does not deny that in many other aspects of the process described in the Guidelines, clinical judgment will have to be exercised. Indeed, the first “principle of assessment” stated in cl 1.6 is that “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment …”. Further, much of the language of the Guidelines is in technical medical terminology. For example, the principle of “best fit”, as stated in 14.8, seems to my mind to carry with it a deal of unstated medical expertise. If, as it states, “detailed reasons” must be given why a category for which the skin disorder does not meet all of the criteria is chosen as that which best reflects the skin disorder being assessed, the obligation to give detailed reasons will require recourse to the training and expertise of the assessor.

11. [25]

    In submissions in reply, Mr Romaniuk accepted, in my view properly and correctly, that at least in some cases, a qualified medical practitioner could use clinical judgment without seeing the patient (the example given was a radiographer). Mr Romaniuk contended that the second hand reliance upon Dr Giles’s report did not permit the other members of the panel to exercise clinical judgment as required by cl 14.9:

12. [26]

    To that submission there are at least four obstacles.

    1. (1)

       The first obstacle is that the submission seeks to elevate cl 14.9 into a rule of law, whereas it is a clause in a Guideline given limited force by the WIM Act. Even if a provision that an assessor “should use clinical judgment” is regarded as mandatory and is not complied with, it does not without more follow there has been any error of law.

    2. (2)

       The second difficulty is that the Medical Dispute Assessment Guidelines proceed on the basis that one member of the Panel will be an arbitrator who need not be medically qualified and therefore will be unable to exercise clinical judgment.

    3. (3)

       The third is that cl 14.9 is directed to determining the exact impairment value within a range. But Mr Gray was assessed pursuant to Table 14 at 4%, at the very top of the range. Clause 14.9 is not directed to identifying the correct category; that is addressed by cl 14.8.

    4. (4)

       The fourth difficulty is that the submission requires one to form the view that in the particular case of Mr Gray, it was not possible lawfully to determine to have a further medical examination by one member of the Panel. Indeed, it is far from clear how it could be said that even if there was a further assessment hearing (pursuant to cl 5.17.3) an arbitrator who lacked medical qualifications could nonetheless apply clinical judgment.

13. [27]

    This ground is not made out. It is not necessary fully to analyse all of the above difficulties, which were not fully developed in submissions. The approach articulated by Studdert J in Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Ltd is applicable here. It is sufficient to say that the Panel was empowered, in the circumstances of this case, to proceed pursuant to cl 5.17.2, with one of its members undertaking a further medical examination of Mr Gray, and with the Panel as a whole informing itself based on Dr Giles’s report.

Procedural fairness/constructive failure to exercise jurisdiction

1. [28]

   Mr Gray submitted that the Medical Assessment Panel failed to deal with a significant element of his case, namely, that Professor Meares had expressed the opinion that he suffered from a 9% whole person impairment for his scarring, which was accompanied by trophic changes, easily identifiable, not only evident from touch but also visible. This submission turned upon the brevity of what was said to be the dispositive reasoning at [70]–[72], which is reproduced above. It was framed either as a denial of procedural fairness or a constructive failure to exercise jurisdiction, with reliance being placed on a failure to respond to a substantial argument as articulated in Roger v De Gelder [2015] NSWCA 211; 71 MVR 514 at [109]. Necessarily, it was (ultimately) advanced on the basis of jurisdictional error. This was ground (e) of the amended summons.

2. [29]

   Not only did the Medical Assessment Panel say that it had taken into account all the original documents and the written submissions which were “not repeated in full, but have been considered by the Appeal Panel” but also it summarised the essence of Mr Gray’s submission. The very points highlighted by Mr Romaniuk in oral submissions were referred to, expressly, under the heading “Scarring”, especially at [54] and [55], when summarising the submissions. It is quite plain, even in the dispositive paragraphs [70]–[72], that the Panel had regard to Mr Gray’s submission that (in accordance with Mr Meares’s opinion) the scarring fell within the 5% – 9% range, rather than the range found by the original assessor. I do not accept that the submission was not dealt with. The submission was a basic one, and the gravamen of the determination addressed it squarely, by applying Chapter 14 and reaching conclusions which were inevitably inconsistent with those expressed by Professor Meares.

3. [30]

   This ground is not made out.

Failure to make findings and provide reasons

1. [31]

   Mr Gray accepted that grounds (b) and (c) could be dealt with collectively, amounting to jurisdictional error to make findings and give reasons. The ground did not attach to what was described as the “tension” as to the precise legal status of the guidelines. Rather, it was submitted that “our point about them not understanding that it was on the boundary and it could have been put up, and also that whatever meaning they are giving to scarring and to restriction of grooming and dressing hasn’t been exposed.”

2. [32]

   In support of this ground, Mr Gray relied on what had been said in Campbelltown City Council v Vegal (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121], while the defendant relied upon [122]. The passages are as follows:

3. [33]

   Mr Gray also relied upon the statement in cl 14.8 that “the assessor must provide detailed reasons” where the skin disorder did not meet all of the criteria within the impairment category chosen. It was said that, by parity of reasoning, the obligation to provide detailed reasons also applied where, as here, it may have been open to choose the 5%-9% category but that course had not been taken.

4. [34]

   A second element of this complaint was narrowly focussed upon what was said to be the contradiction, or at least contrast, between Dr Giles’s report and the dispositive paragraph [71]. Dr Giles had said that the scars did restrict the normal activities of daily life “because they embarrass him and limit the clothes he will wear”. The Panel however had said “the scarring does not restrict his grooming or dressing”. The latter picks up the express language in table 14.1 of the Guidelines.

5. [35]

   Mr Romaniuk contended that the fact that Mr Gray did not consider himself to be free to wear clothes of his choice, something which was prominent in the submissions to the Panel, had been found by Dr Giles but could not be reconciled with the statement that the scarring did not “restrict his grooming or dressing”. I do not think this is the correct way to read that portion of the decision. I reach that view merely as a matter of ordinary use of language, but I am confirmed in that conclusion because Mr Gray’s submission results in an inconsistency between what Dr Giles reported and what the three men agreed to in applying his report. Contrary to Mr Gray’s submission, the sentence “the scarring does not restrict his grooming or dressing” refers to whether the everyday tasks of washing, shaving, getting dressed or undressed and so on, were affected by the scarring. The example given in argument was a heat sensitive scar which might make it difficult or impossible to wash one’s hair in a shower. Read in that way, there is no inconsistency. Further, it was accurate to state that Mr Gray made no complaint as to any difficulty in the everyday process of grooming, dressing and undressing.

6. [36]

   In part, this ground turns upon the fact that in the row described “ADL/treatment” in Table 14.1 there are three words in bold: “and” in the 3-4% WPI column, and “including” and “and” in the 5-9% WPI column. The natural way of reading the latter is that in order to qualify for the 5-9% WPI column in relation to ADL/treatment, the limitations in the performance of few ADL must include some restriction in grooming or dressing. I did not understand there to be any dispute as to that reading of the table. That explains the significance of the second sentence of [71] of the Panel’s reasons. Thus, applying the approach stated in the Guidelines, the fact that Mr Gray’s skin disorder did not satisfy the ADL/treatment row of the 5-9% WPI was one matter pointing towards the 3-4% column being the “best fit”.

7. [37]

   As noted above, Mr Gray submitted that it was open to an assessor to “put up” the outcome of the application of table 14.1 in circumstances where a claimant satisfied some, but not all, of the criteria in a particular column. It is far from clear to me that that is the case. The application of the principle of “best fit” may indeed, in some cases, have that effect. But it does not by any means follow that in all cases, or indeed in Mr Gray’s case, that there was some discretion which needed to be considered and addressed with “detailed reasons” in order to conclude that the appropriate category in which he fell was the only category in which he satisfied all the criteria. The Guidelines required detailed reasons when another category was regarded as appropriate. While that is what Mr Gray sought, it did not mean that there was an obligation to give detailed reasons when the Panel determined not to place his scarring withn a category in which he did not satisfy all the criteria.

8. [38]

   The foregoing descends, perhaps inappropriately, to the merits of the complaints advanced by Mr Gray. I have done so because of the way the submissions were presented, and in order to illustrate that this aspect of the complaint does not turn on some legal technicality.

9. [39]

   However, the shorter and equally dispositive proposition is that there is no error of law, still less jurisdictional error, in the Panel giving the explanation that it did in making the finding that it did concerning the absence of a restriction to his grooming or dressing.

Error of law in failing to apply the Guidelines

1. [40]

   Essentially, it was said that there is an error of law on the face of the record in the failure to apply Chapter 14 and Table 14.1 of the Permanent Impairment Guidelines. Aspects of this ground, which was ground (a) of the summons, have already been addressed when dealing with the other grounds.

2. [41]

   This submission failed to attend to the proposition that even if there were a misapplication or misconstruction of this part of the Guidelines, it does not follow that the error is one of law. However, it is not necessary to take that point any further, because, for the reasons already given, no misapplication or misconstruction of the Guidelines has been established.

Orders

1. [42]

   None of the grounds of challenge has been made out. It follows that the amended summons filed 27 March 2019 should be dismissed. There is no reason so far as I can see why costs should not follow the event.