Wilkinson v C & M Leussink Pty Ltd

1. [1]

   By summons filed 17 December 2013, the plaintiff seeks an order in the nature of certiorari quashing two decisions of the second defendant. The first was a decision of a Medical Appeal Panel dated 14 February 2013 revoking a medical assessment certificate issued by an Approved Medical Specialist (“the Appeal Decision”). The second was a decision of the same Medical Appeal Panel on 14 October 2013 refusing to reconsider its earlier decision (“the Reconsideration”). The plaintiff further seeks declarations that the Appeal Decision, the Reconsideration and the Medical Assessment Certificate issued by the panel are void. Finally, the plaintiff seeks an order that the matter be remitted to the third defendant to determine the matter according to law.

2. [2]

   The plaintiff is George Sutherland Wilkinson (“Mr Wilkinson”). The first defendant is C & M Leussink Pty Ltd (“Leussink”). The second defendant is the Medical Appeal Panel of the Workers Compensation Commission of New South Wales, which consisted of Marshall Douglas, Dr Robert Breit and Dr Peter Burke (“the Appeal Panel”). The third defendant is the Registrar of the Workers Compensation Commission of New South Wales (“the Registrar”). The second and third defendants have filed submitting appearances.

3. [3]

   Mr Wilkinson relied upon the affidavit of Trevor Wells sworn 7 March 2014. Leussink relied upon the affidavit of Mark William Underwood affirmed 7 April 2014.

Factual Background

1. [4]

   On 18 February 2004, Mr Wilkinson was employed by Leussink as a sales manager and sustained an injury to his right hip and lumbar spine. While the decision of the Appeal Panel and the Reconsideration involved Mr Wilkinson’s injuries to his lumbar spine and right hip, it is important to appreciate that, it is only the injury to the right hip that is the subject of this judicial review.

2. [5]

   On 16 November 2004, Mr Wilkinson underwent arthroscopic surgery to a labral tear to his right hip.

3. [6]

   On 31 July 2008, Mr Wilkinson and Leussink entered into a complying agreement pursuant to s 66A of the Workers Compensation Act 1987 (NSW) (“the Complying Agreement”) for payment of compensation of $2,500 in respect of the claim of injury to his right hip for Whole Person Impairment (“WPI”) of 2 %.

4. [7]

   On 10 May 2012, Mr Wilkinson lodged an application in the Workers Compensation Commission to resolve a dispute, claiming compensation for pain and suffering in respect of an injury to the “Lumbar spine; right lower extremity (hip)”. Mr Wilkinson sought a lump sum compensation payment and stated that the degree of permanent impairment and the threshold for work injury damages were in dispute.

5. [8]

   On 11 December 2012, an arbitration hearing took place between the parties. This dispute between the parties as to the degree of permanent impairment was not resolved.

6. [9]

   On 13 December 2012, the Registrar referred the matter to an Approved Medical Specialist, Dr Thomas Rosenthal (“the AMS”) to be assessed. The AMS held that Mr Wilkinson had a total WPI of 18% with 6% being attributable to his right hip. I shall refer to the decision of the AMS in more detail later in this judgment.

7. [10]

   Leussink appealed the decision of the AMS to the Medical Appeal Panel. The Appeal Panel (“Appeal Panel”) undertook a preliminary review and determined that Mr Wilkinson should undergo a further medical examination. After taking into account this further medical examination the Appeal Panel issued a certificate attributing a total WPI of 13% but a WPI of 0% in respect of Mr Wilkinson’s right hip. I shall also refer to the decision of the Appeal Panel in more detail later in this judgment.

8. [11]

   Mr Wilkinson then sought to appeal the decision of the Appeal Panel. However, this did not proceed, as the Commission has no process that allows for the filing of an appeal against the decision of an Appeal Panel. Mr Wilkinson applied for the Appeal Panel to reconsider its decision. The Appeal Panel declined to reconsider its decision. I shall also refer to this decision in more detail later in this judgment.

(A) Preliminary issue

1. [12]

   Counsel for Leussink raised a preliminary issue as to whether the application for judicial review has been brought in time. Leussink submitted that if the judicial review seeks to quash the appeal decision of the Appeal Panel then the application for judicial review has not been brought in time.

2. [13]

   Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) reads:

3. [14]

   While the parties have been unable to cite any direct authority on this preliminary issue, it is common ground that if the review is brought in relation to the Reconsideration, the application for judicial review is in time. If, however, the judicial review is brought in relation to the decision of the Appeal Panel then it is out of time.

4. [15]

   UCPR 59.10(2) allows for an extension of time to commence the proceedings. At the hearing of the judicial review application, senior counsel for Mr Wilkinson orally sought an extension of time to commence proceedings if it is deemed necessary.

5. [16]

   It is my view that the summons is framed to seek judicial review of both the Appeal Panel’s decision and its Reconsideration, so leave may be required at least so far as the Appeal Panel’s decision is concerned.

6. [17]

   It is helpful to examine why s 378 (the reconsideration provision) was inserted into the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIMWC Act”) and the Workers Compensation Act.

7. [18]

   Section 378 currently relevantly reads:

8. [19]

   In 2005, s 378 was inserted into the WIMWC Act and replaced in 2010. In the agreement in principle speech the Honourable Dr Andrew McDonald identified in the Workers Compensation Legislation Amendment Bill 2010 (NSW) that the purpose was (at 24637-8):

9. [20]

   The legislature created this provision to be utilised by parties seeking to expedite the resolution of their matters. Mr Wilkinson has availed himself of a remedy contained in s 378 of the WIMWC Act.

10. [21]

    In these circumstances, it is my view that Mr Wilkinson was entitled to utilise the reconsideration provision of the Act prior to seeking judicial review in this Court and no extension of time is required.

11. [22]

    However, if I am wrong and an extension of time is required, after taking into account the factors in Part 59.10(3) and particularly that no prejudice has been caused to Leussink, I would extend time to file the summons pursuant to Part 59.10(2).

12. [23]

    It is now necessary to briefly refer to firstly, the decision of the AMS; secondly, the decision of the Appeal Panel; and finally, the Reconsideration.

(1) The decision of the AMS

1. [24]

   On 13 December 2012, a delegate of the Registrar referred the medical dispute to the AMS for assessment of the lumbar spine and the right lower extremity (right hip). The following medical matters were to be assessed by him:

   1. (1)

      The degree of permanent impairment of the worker as a result of an injury (s 319(c));

   2. (2)

      Whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s 319(d));

   3. (3)

      Whether impairment is permanent (s 319(f));

   4. (4)

      Whether the degree of permanent impairment of the injured worker is fully ascertainable (s 319(g)).

2. [25]

   The AMS took into account medical records and reports including clinical records of Dr Rao and medical reports of Dr Giblin, Dr Silva, Dr Rao and Dr Sullivan. On 4 August 2011, Dr Giblin provided a medical report noting that since 2007 Mr Wilkinson had Parkinson’s disease of a moderate extent requiring medication and affecting his upper and lower extremities [Ex TW-1 30-36]. Dr Giblin noted that the MR arthrogram right hip dated 14 September 2004 reported a diagnosis of “a focal tear of the superoanterior labrum” and the MRI scan of both hips dated 19 January 2011 reported “some early arthritic change in the right hip.” [ExTW-1 34].

3. [26]

   Dr Sullivan, in his report dated 28 January 2001, noted that the results of the MRI scan of Mr Wilkinson’s hip showed the very early degenerative changes in the hip and some labral degeneration but no frank tear or full thickness articular cartilage loss [Ex TW-1 98]. On 7 April 2005, Dr Sullivan stated that there were indications of degenerative change in an MRI of Mr Wilkinson’s right hip [Ex TW-1 136]. In a supplementary report (dated 8 August 2008), Dr Sullivan reported that on 21 April 2005, a MRI scan “showed chondral changes in the hip joint and probable progression in his degenerative changes”. He opined, “the prognosis for Mr Wilkinson’s hip is for gradual progression of degenerative changes and the end result is likely to be total hip replacement” [Ex TW-1 94].

4. [27]

   In his written reasons, the AMS outlined the medical history of Mr Wilkinson relating to the injury. Relevantly the AMS stated (pp 2 and 3):

5. [28]

   On examination, the AMS made the following findings (p 3):

6. [29]

   The AMS outlined the reasons for his assessment of the right hip as follows (p 5):

7. [30]

   Hence, the AMS referred to the existence of Parkinson’s disease but was of the opinion that there was no evidence that it affected Mr Wilkinson’s hip movements.

8. [31]

   The AMS noted that an x-ray of the pelvis and right hip dated 25 August 2011 showed no significant abnormalities, and that the MRI of the hips dated 19 January 2011 showed cartilage wear and degenerative fraying in both hips (page 4).

9. [32]

   The AMS noted that his opinion differed from that of Dr Giblin (report dated 4 August 2011) but explained that Dr Giblin had erroneously applied Table 4.2 of the WorkCover Guides, which only implies for persistent radiculopathy, which was not present. The AMS noted that his opinion also differed from that of Dr Silva. According to the AMS, Dr Silva found only 2% impairment for the right hip because he made a different clinical finding in relation to the range of motion for the right hip.

10. [33]

    The Certificate issued by the AMS summarised the injuries and diagnosis of the right hip as follows (p 4):

11. [34]

    It is fair to say that other than noting that an MRI scan of both hips dated 25 August 2011 showed cartilage wear and degenerative fraying in both hips, the AMS did not make any finding as to whether the presence of arthritis in both hips was significant in the assessment of the WPI to the right hip.

12. [35]

    On 14 February 2013, the AMS issued a Medical Assessment Certificate, which attributed a WPI of 6% to Mr Wilkinson’s right hip.

The appeal decision

1. [36]

   On 14 March 2013, Leussink lodged an application to appeal against the decision of the AMS and relied upon s 327(3)(c) and (d) of the WIMWC Act, arguing that the assessment was made on the basis of incorrect criteria (s 327(3)(c)) and that the medical assessment certificate contains a demonstrable error (s 327(3)(d)).

2. [37]

   On 18 April 2013, a delegate of the Registrar stated that she was satisfied that one ground of appeal, namely s 327(3)(d) of the WIMWC Act, was made out “in relation to the AMS’s assessment of [Mr Wilkinson’s] permanent impairment of the lumbar spine and right lower extremity”.

3. [38]

   Leussink relied on five principal submissions in support of its grounds of appeal. Four of these related to the findings of the AMS in respect of Mr Wilkinson’s lumbar spine, which are not relevant to this judicial review. For present purposes, it is necessary to refer only to the submission that concerned Mr Wilkinson’s right hip.

4. [39]

   Leussink argued:

5. [40]

   Leussink expanded upon this submission by saying:

6. [41]

   It is fair to say that the primary issue raised in Leussink’s appeal submissions was whether the AMS failed to examine Mr Wilkinson’s left hip, which ought to have occurred for the purpose of determining whether any proportion of the right hip impairment could have resulted from the subsequent non-work Parkinson’s disease. There was no specific mention of arthritis in these submissions but there was a passing reference to the failure by the AMS to compare the extent to which the worker’s Parkinson’s disease has restricted the movement and flexibility in the contralateral, uninjured left hip and failure to conduct a comparative analysis in terms of considering non-work explanations for the further decreased range of movement in the right hip between June 2008 and February 2013 (Emphasis added).

7. [42]

   On 9 April 2013, Mr Wilkinson responded to these submissions in his Notice of Opposition as follows:

8. [43]

   This submission does not anticipate that Mr Wilkinson would be medically examined by a member of the Appeal Panel. Hence, does not address Parkinson’s disease nor any “non-work explanation” in relation to the injury of his right hip.

The decision of the Appeal Panel

1. [44]

   The Appeal Panel was comprised of Arbitrator Mr Marshall Douglas, Orthopaedic Surgeon Dr Robert Briet, and General Surgeon Dr Peter Burke. The Appeal Panel conducted a preliminary review and determined that Mr Wilkinson should be re-examined. Dr Burke examined Mr Wilkinson and the Appeal Panel adopted his findings.

2. [45]

   The Appeal Panel identified the ground of appeal in relation to the right hip as being that the AMS failed to examine Mr Wilkinson’s left hip. The Appeal Panel stated:

3. [46]

   The Appeal Panel concluded:

4. [47]

   The Appeal Panel identified the demonstrable error as being that there was no record within the Medical Assessment Certificate of the range of movement of the left hip (AP [33]). After examination of both hips, the Appeal Panel adopted the findings made by Dr Burke when he examined Mr Wilkinson and took into account the radiological investigations of Mr Wilkinson’s hips. The Appeal Panel concluded that Mr Wilkinson had 0% permanent impairment from the injury to his right hip. Accordingly, the Medical Assessment Certificate dated 14 February 2013 was revoked and a new certificate issued. As a result, Mr Wilkinson’s total WPI was assessed at 13% (the WPI assessment for the lumbar spine only).

5. [48]

   On 27 August 2013, Mr Wilkinson applied for reconsideration of the Appeal Panel’s decision under s 378 of the WIMWC Act.

6. [49]

   The main issue raised for reconsideration is whether the Appeal Panel went beyond the ground of appeal put forward by Leussink. Mr Wilkinson contended that this ground of appeal was limited to “the extent to which the worker’s progressive Parkinson’s disease had reduced the range of movement in his hips bilaterally” and that by finding that arthritis was affecting Mr Wilkinson’s right hip, the Appeal Panel went beyond the ground of assessing for Parkinson’s disease.

7. [50]

   On this topic, Mr Wilkinson further submitted that the AMS determined that whatever impairment arose out of the affected hip it was not related to the injury referred to be assessed. Mr Wilkinson submitted that the Appeal Panel fell into error in failing to make a WPI assessment for the injury referred and for failing to follow the approach set out in Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365 at 124, to which I shall later refer.

8. [51]

   Other errors relied upon by Mr Wilkinson were that the parties were denied the opportunity to obtain relevant expert medical opinions on the question of arthritis, that Dr Burke had failed to use a goniometer in assessing the lower limbs and that the Appeal Panel had failed to make an assessment of permanent impairment and failed to have regard for the Complying Agreement. It was also noted that, while arthritis was said to be bilateral, on examination it was only present in the right hip.

9. [52]

   On 14 October 2013, the Appeal Panel declined to reconsider its decision.

The Reconsideration

1. [53]

   In its Reconsideration, the Appeal Panel stated that Leussink relied on ss 327(3)(c) and (d) of the WIMWC Act, and that:

2. [54]

   This statement is incorrect as the only ground referred to the Appeal Panel was s 373(d), that there was a demonstrable error. The Registrar did not allow s 327(3)(c) through the gateway to the Appeal Panel.

3. [55]

   In relation to Mr Wilkinson’s submission that the Appeal Panel went beyond the grounds raised by Leussink, the Appeal Panel stated (at [13]):

4. [56]

   The Appeal Panel also said that, even if the submission of Leussink were not as wide, the Appeal Panel still had the power to assess the impact of arthritis for the following reasons (at [15]):

5. [57]

   The Appeal Panel went on to cite comments made by McColl JA in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [98]-[99] to support the proposition that the Appeal Panel is entitled to come to the “true and correct view”, even if arriving at such a point goes beyond the grounds of appeal (at [16]). The Appeal Panel stated that the “upshot” of this situation is that it allows the Appeal Panel to identify and correct an error even if such an error was not raised by the parties (at [17]). The Appeal Panel noted that s 328(2) of the WIMWC Act was amended after Siddik, but stated that the amendment would not negate the principle established in that case. The Appeal Panel (at [18]) continued:

6. [58]

   In dealing with Mr Wilkinson’s submission that the parties had been denied the opportunity to put forward evidence, the Appeal Panel stated that s 328(3) of the WIMWC Act does not allow the Appeal Panel to receive any additional evidence, unless the evidence was not available to the party before the medical assessment, or could not reasonably have been obtained by the appellant before the medical assessment (paragraph 20). The Appeal Panel relevantly stated:

7. [59]

   In relation to the assertion that the arthritis was only symptomatic in Mr Wilkinson’s right hip, the Appeal Panel stated that this was of no relevance. The Appeal Panel stated (at [25] and [27]):

8. [60]

   The Appeal Panel did not accept Mr Wilkinson’s submission that the approach it adopted was the reverse of what should have been done as set out in Elcheikh. The Appeal Panel stated (at [28]):

9. [61]

   In relation to the Complying Agreement, the Appeal Panel stated (at [30]):

10. [62]

    The Appeal Panel concluded:

The application for judicial review

1. [63]

   Mr Wilkinson challenges the legality of both the Appeal Decision and the Reconsideration.

Grounds of review

1. [64]

   It was submitted that the Appeal Decision was invalid for jurisdictional error in that the Appeal Panel:

   1. (1)

      Exceeded its jurisdiction by determining the appeal on grounds which were not the ground on which the appeal was made;

   2. (2)

      Asked itself the wrong question and misconceived its function by determining the issue of causation;

   3. (3)

      Made a constructive jurisdictional error by failing to address s 323 of the WIMWC Act;

   4. (4)

      Denied Mr Wilkinson procedural fairness.

2. [65]

   It was submitted in relation to the Reconsideration that:

   1. (1)

      The Reconsideration was invalid for jurisdictional error because the Appeal Panel:

3. [66]

   In the alternative, Mr Wilkinson relied upon the following grounds:

   1. (1)

      If the Appeal Panel was held to have acted within jurisdiction in making the Appeal Decision, it made non-jurisdictional errors of law on the face of the record by making any or all of the errors contained in Grounds 1, 2 and 3;

   2. (2)

      If the Appeal Panel was held to have acted within jurisdiction in making the Reconsideration, it made non-jurisdictional errors of law on the face of the record by making any or all of the errors set out in sub-paragraphs (i) to (v) of Ground 5.

4. [67]

   It will be observed from the foregoing that Ground 5 substantially overlaps with Ground 1. Senior Counsel for Mr Wilkinson dealt with these grounds together in her submissions. For ease of reference, I will adopt the same approach in my reasons.

Whether the Appeal Panel exceeded its jurisdiction (Grounds 1 and 5(i) and (ii))

1. [68]

   These grounds contain two principal assertions. Firstly, it was argued that the Appeal Panel exceeded its jurisdiction by considering each of ss 327(3)(c) and (d). Secondly, it was argued that the Appeal Panel, in making its Reconsideration, failed to take into account a relevant consideration, namely the error just mentioned.

2. [69]

   Mr Wilkinson submitted that the Appeal Panel impermissibly considered both grounds of appeal raised by Leussink, in circumstances where the Registrar was satisfied only in relation to the “demonstrable error” ground. In support of this submission, Mr Wilkinson relied on [5] of the Appeal Decision, where the Appeal Panel stated:

3. [70]

   Mr Wilkinson then directed this Court’s attention to the following paragraphs of the Reconsideration:

4. [71]

   Mr Wilkinson submitted that these passages reveal a misapprehension on the part of the Appeal Panel that its function extended to any ground of appeal on which Leussink had relied, rather than confine itself only to the ground referred to it by the Registrar. It was also submitted that this misapprehension amounted to a relevant consideration of which the Appeal Panel was required to take into account in the Reconsideration. The misapprehension when making the Appeal Decision, and the failure to take it into account when making the Reconsideration, amounted to jurisdictional errors, so it was contended.

5. [72]

   It was submitted on behalf of Leussink that the Appeal Panel did not misapprehend the scope of its role. Leussink contended that, on a fair reading of the Appeal Decision, the Appeal Panel did not determine the appeal on the ‘incorrect criteria’ ground. Rather, it found that there was a demonstrable error.

6. [73]

   As to the references to s 328 (c) and (d) by the Appeal Panel in the Reconsideration, it was submitted on behalf of Leussink that these were merely misstatements of fact made four months after the Appeal Decision, and were not reflective of an error of substance in the approach taken by the Appeal Panel. In any event, Leussink submitted that these misstatements could not be relied upon to impugn the earlier Appeal Decision.

7. [74]

   The four grounds on which a party may appeal against a medical assessment are set out in s 327(3). They are:

8. [75]

   An appeal is made by application to the Registrar: s 327(4) WIMWC Act. According to s 327(4), an appeal is not to proceed unless:

9. [76]

   The Appeal Panel is constituted under s 328(1) WIMWC Act. The procedure on the appeal is governed by s 328(2). This subsection was amended in 2010 by the Workers Compensation Legislation Amendment Act 2010 (NSW).

10. [77]

    The predecessor of s 328(2) read:

11. [78]

    The current s 328(2) reads:

12. [79]

    I accept that the Registrar was satisfied only one ground, namely s 327(3)(d), was made out. It is important to note that s 328(2) does not contain any reference to the Registrar or to s 327(4).

13. [80]

    Leussink raised two grounds of appeal, namely, s 327(3)(c) and s 327(3)(d). While the appeal is limited to the grounds on which it is made, the authorities indicate that those grounds must be read in conjunction with the submissions made by the parties: see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [49] and [52] per Davies J; Inghams Enterprises Pty Ltd v Lakovska [2013] NSWSC 1489 at [34] per Hidden J. Davies J in New South Wales Police Force concluded that the Appeal Panel could not consider any matter that fell within one of the grounds identified in the application to appeal. It had to be a matter that fell within the relevant paragraph and which had been identified by the appellant (at [51]).

14. [81]

    The phrase “grounds for appeal” that appears in s 328(2) is also used in ss 327(1), 327(4) and 327(5) of the 1998 Act. When the phrase is used it is with reference to the grounds identified in s 327(3).

15. [82]

    In 328(2) the words “grounds of appeal” appear whereas s 327 refers to “grounds for appeal”. I do not discern any different meaning arising from the use of a different preposition.

16. [83]

    The ordinary meaning of the words “the review is limited to the grounds of appeal on which the appeal is made” does not add the words “that the Registrar was satisfied had been made out”. In the present case, Leussink raised two grounds of appeal, 327(c) and 327(d).

17. [84]

    A difficulty for the Appeal Panel occurred because Leussink’s submissions on its appeal failed to differentiate between what it asserted to be ‘incorrect criteria’ on the one hand, and what it asserted to be ‘demonstrable errors’ on the other. For example, at [2.1] of its submissions, Leussink stated that “the AMS applied incorrect criteria and/or made demonstrable errors in the following ways …” In relation to the failure of the AMS to examine Mr Wilkinson’s left hip, it was said in these submissions that “this amounts to the application of incorrect criteria and constitutes a demonstrable error”.

18. [85]

    The Appeal Panel identified the error (at [30]) as “it was not apparent from the [Medical Assessment Certificate] that the AMS had examined uninjured collateral joint (in his left hip) and [at 33] concluded that “…the [Medical Assessment Certificate] contained a demonstrable error because there was no record within it of the range of motion of [Mr Wilkinson’s] left hip”. The Appeal Panel was empowered to consider both s 327(c) and (d). The Appeal Panel confined itself to identifying a demonstrable error and dealt with that issue. The approach of the Appeal Panel does not contain any error.

19. [86]

    The Appeal Panel in its Reconsideration indicated that the grounds on which C&M Leussink Pty Ltd relied in its appeal were s 327(3)(c) and (d). It went on to say that it determined the appeal by reference only to those grounds and did not consider the grounds provided in s 327(3)(a) and (b). The Appeal Panel had jurisdiction to consider both s 327(c) and (d). The Reconsideration does not reveal any error here. This ground of judicial review fails.

(2) De novo review or rehearing (Grounds 1 and 5(iii))

1. [87]

   It was submitted that the Appeal Panel misconstrued its jurisdiction under s 328(2) by conducting a de novo review, in circumstances where it was required to conduct a review in the nature of a rehearing.

2. [88]

   Mr Wilkinson referred this Court to [16] of the Appeal Decision, where the Appeal Panel stated:

3. [89]

   Reference was also made to the following statement at [31]:

4. [90]

   Mr Wilkinson also argued that the Appeal Panel upheld this approach in its Reconsideration. In particular, at [16] of the Reconsideration, the Appeal Panel incorrectly stated that the judgment of McColl JA in Siddik authorised it to conduct the review de novo. Mr Wilkinson also referred to the decision in New South Wales Police Force, supra, where Davies J held that an appeal panel had erred in basing its assessment on an examination undertaken by one of its members, and finding an error via that examination rather than an error that was readily observable on the Medical Assessment Certificate.

5. [91]

   In the present case, it was also submitted, one of the members of the Appeal Panel conducted a medical examination of Mr Wilkinson without finding error in the Medical Assessment Certificate. This error amounted to a misapprehension of the role of the Appeal Panel.

6. [92]

   It was submitted on behalf of Leussink that the Appeal Panel did not fall into error. Leussink argued that the Appeal Panel identified a demonstrable error pursuant to s 327(3)(d), being the failure of the AMS to investigate Mr Wilkinson’s left hip, and it was only after identifying that error that the Appeal Panel went on to examine Mr Wilkinson. It was submitted that, while the Appeal Panel stated that it was empowered to conduct a de novo review, it is clear that it did not.

7. [93]

   It was not in dispute in the present case that the Appeal Panel was required to undertake a review in the nature of a rehearing. This is because the grounds of appeal were under s 327(3)(c) and 327(3)(d).

8. [94]

   Clause 45 of the WorkCover Medical Assessment Guidelines empowers an appeal panel to conduct certain procedures “in accordance with the needs of the individual case”. These procedures include preliminary reviews, “on the paper” reviews, further medical examination by an approved medical specialist on the appeal panel, and, if necessary, assessment hearings.

9. [95]

   Once a re-examination is triggered, s 324(3) applies. It reads:

10. [96]

    It further provides that “an approved medical specialist who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under this section on an assessment of a medical dispute.”

11. [97]

    I bear in mind what was said by the Court of Appeal in Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36]:

12. [98]

    It is true that the statement of reasons for the Reconsideration misstated the principles espoused by McColl JA in Siddik in respect of the nature of its task. However, what is relevant is the actual approach taken by the Appeal Panel. That approach should fairly be described as a rehearing. That is, the Appeal Panel reviewed the Medical Assessment Certificate for error.

13. [99]

    The approach taken by the Appeal Panel in these proceedings is distinguishable from that which occurred in New South Wales Police Force. In that case, Davies J stated at [33]:

14. [100]

    It is important to appreciate that the Appeal Panel identified the error as being the failure of the AMS to examine the worker’s left hip (AP decision [30]). This falls within s 328(3)(d), namely, a demonstrable error. Having satisfied itself that there was error, the Appeal Panel only then proceeded to examine Mr Wilkinson itself. It was not submitted by Mr Wilkinson that the Appeal Panel was not entitled to conduct its own examination. This approach is consistent with s 324(3) WIMWC Act.

15. [101]

    This ground of judicial review fails.

Grounds 1 and 5(iv) - arthritis

1. [102]

   It was submitted that the Appeal Panel erred in its construction of the grounds of appeal raised by Leussink. Mr Wilkinson argued that the grounds of appeal complained only of the effect of Parkinson’s disease on the assessment of Mr Wilkinson’s permanent impairment. That is, it did not raise the issue of arthritis. It was submitted that, while the grounds of appeal referred briefly to “non-work explanations”, the only non-work explanation which Leussink alleged had contributed to Mr Wilkinson’s impairment movement was Parkinson’s disease. In these circumstances, it was asserted that the Appeal Panel’s task was confined to the question of whether the failure of the AMS to conduct a comparative analysis of Mr Wilkinson’s left hip to determine the effect of Parkinson’s disease amounted to a demonstrable error.

2. [103]

   Mr Wilkinson also asserted that the Appeal Panel erroneously believed that its jurisdiction extended to a consideration of any matter of clinical relevance to Mr Wilkinson’s right hip.

3. [104]

   It was submitted on behalf of Leussink that its submissions in support of the grounds of appeal particularised the demonstrable error as being a failure to examine Mr Wilkinson’s uninjured left hip for the purposes of comparison with the right hip. While the submissions referred to Parkinson’s disease, it was submitted that they were broad enough to encompass other possible explanations. For example, the reference in the submissions to “non-work explanations” meant the Appeal Panel had not trespassed its jurisdiction by considering arthritis as an explanation.

4. [105]

   The question for determination is whether the Appeal Panel, upon a proper reading of the original grounds of appeal and submissions, was required to confine its analysis to the effect of Parkinson’s disease on Mr Wilkinson’s right hip, or whether it was permitted to also consider other “non-work explanations”.

5. [106]

   The Appeal Panel was required to confine its task to “the grounds of appeal” on which the appeal was made. In this case, the relevant ground of appeal was that the Medical Assessment Certificate contained a demonstrable error for the purpose of s 327(3)(d). That ground of appeal was particularised as follows:

6. [107]

   In my view, the demonstrable error raised by Leussink on its appeal was the failure of the AMS to examine Mr Wilkinson’s left hip. Parkinson’s disease may have been offered as an explanation; however, the question on the appeal was whether the failure to examine the left hip amounted to a demonstrable error.

7. [108]

   The results of the medical examination in relation to both hips were adopted. The Appeal Panel referred to the radiological investigations done of Mr Wilkinson’s hips and concluded that they reveal the respondent has bilateral osteoarthritis in these joints. This disease is symptomatic in Mr Wilkinson’s right hip. Dr Burke found from his examination of Mr Wilkinson, that Mr Wilkinson’s reduction in movement in each joint was equal. The Panel inferred that Mr Wilkinson’s restriction of movement in his right hip is not due the injury Mr Wilkinson suffered to this joint on 18 February 2004, but rather is in all likelihood a consequence of Mr Wilkinson’s arthritis in his hips.

8. [109]

   It is my view that a proper reading of the grounds of appeal and submissions did not confine its analysis to Parkinson’s disease. The Appeal Panel was entitled to consider other ‘non-work” explanations. While this ground of judicial review fails, I will refer to the Appeal Panel’s conclusion that Mr Wilkinson’s restriction of movement in Mr Wilkinson’s right hip is not due to the injury Mr Wilkinson suffered to this joint on 18 February 2004, but rather is in all likelihood a consequence of Mr Wilkinson’s arthritis in his hips.

Grounds 1 and 5(v)

1. [110]

   Mr Wilkinson submitted that the Appeal Panel exceeded its jurisdiction by recording a finding of 0% WPI, in disregard for the Complying Agreement in which WPI was agreed at 2%. It was submitted that, on a true construction of s 66A, the Appeal Panel was prohibited from reducing the WPI below that which was agreed to under s 66A. In effect, Mr Wilkinson contended that both the AMS and the Appeal Panel were bound by the Complying Agreement. It was suggested that they were permitted to increase WPI, but they could not decrease it. To the extent that the Appeal Panel considered itself not bound by the terms of the Complying Agreement when making its Appeal Decision and Reconsideration, it was submitted that the Appeal Panel was in error.

2. [111]

   Mr Wilkinson referred to the decision of Rail Services Australia v Dimovski [2004] NSWCA 267, on which the Appeal Panel had relied in its Reconsideration. At [30] of the Reconsideration, the Appeal Panel stated:

3. [112]

   Mr Wilkinson submitted that this was not a correct statement of the proposition in Dimovski. It was contended that that case was authority for the proposition that a consent order could not give rise to an issue estoppel in relation to a changing situation. Mr Wilkinson submitted that Dimovski was inapplicable to the present case.

4. [113]

   Leussink submitted that the Appeal Panel was not bound by the Complying Agreement when assessing WPI. It was asserted that Mr Wilkinson cannot rely upon a determination of his WPI on 31 July 2008 to establish his WPI in respect of the same injury on 5 July 2013. Leussink relied on O’Donel v The Commissioner for Road Transport and Tramways (NSW) [1938] HCA 15; (1938) 59 CLR 744, where Evatt J stated (at 763):

5. [114]

   Similarly here, what the appellant is trying to do is to eke out a conclusive determination that incapacity through blindness as at an anterior point of time can, by additional proof of absence of any change in the meantime, be converted into a conclusive determination of incapacity through blindness at a later point of time. But this method, though logically sound, is not permitted by law. Estoppel by judgment estops not only as to the res determined but also as to the fundamental issues necessarily involved in the determination, but it does not authorize the use of each issue originally determined merely as the first but unbreakable link in establishing a separate and independent issue. In other words, as against a successful party the unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be.”

6. [115]

   Leussink further submitted that Presidential Decisions of the Workers Compensation Commission are consistent with the proposition that s 66A agreements deal with the finality of the agreement as to the worker’s entitlement (CSR Limited v Gonzales [2010] NSWWCCPD 118), that an estoppel only operates for degree of WPI at the date of agreement (Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66), and an estoppel cannot operate in the face of a changing situation such as a claim for a lump sum (Abou-Haider v Consolidated Wire Pty Limited [2010] NSWWCCPD 128).

7. [116]

   It was also put forward by Leussink that the Complying Agreement was not made pursuant to a Medical Assessment Certificate conclusively presumed to be correct in respect of the degree of WPI to Mr Wilkinson’s right hip. Indeed, Leussink further submitted that the Application to Resolve a Dispute that Mr Wilkinson filed on 10 May 2012 generated a “medical dispute” between the parties as to the degree of impairment to Mr Wilkinson’s right hip as at the date of the filing of the application on which there was no agreement.

8. [117]

   Leussink disputed Mr Wilkinson’s contention that, by reason of the terms of s 66A, the Appeal Panel had no power to decrease the agreed figure of permanent impairment to the right hip. Further, it was stated by Leussink that the Complying Agreement had been discharged by payment of the agreed sum of $2,500.00. Therefore, it was asserted that Mr Wilkinson’s entitlement to compensation was not, in fact, decreased.

9. [118]

   The Complying Agreement was entered into on 31 July 2008. By that agreement, Leussink agreed that Mr Wilkinson suffered 2% WPI to his right hip, and compensation was paid to Mr Wilkinson for the amount of $2,500.00 plus costs. The issue to be decided is whether the Complying Agreement bound the Appeal Panel to the extent that the Appeal Panel could not assess WPI as being lower than that provided for in the agreement.

10. [119]

    In Prisk v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 13, Roche DP summarised the authorities dealing with this issue (at [55]-[60]):

11. [120]

    In Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231, I stated (at [80] and [83]):

12. [121]

    In having regard for the decisions outlined above, it is important that the provisions of s 66A are properly understood.

13. [122]

    Section 66A creates a binding contractual agreement between an employer and its employee. Pursuant to subsection 66A(5) such an agreement is an exception to s 234 WIMWC Act, which is a provision that normally prohibits parties from contracting out of the application of the WIMWC Act.

14. [123]

    Subsection 66A(3) outlines the circumstances in which the Commission may award additional compensation. That is, where one of the following is established:

15. [124]

    Subsection 66A(2) entitles the employee to compensation in respect of the degree of permanent impairment that is agreed between the parties. Leussink cannot deny the binding nature of the Complying Agreement it entered into with Mr Wilkinson. Indeed, it did not attempt to do so. The $2,500.00 plus costs that has been paid to Mr Wilkinson is final and cannot be undone by the Commission.

16. [125]

    However, it should also be noted that the finding of 0% by the Appeal Panel in respect of the degree of permanent impairment associated with Mr Wilkinson’s right hip is separate from the Complying Agreement. The valid finding of a demonstrable error by the Appeal Panel, and the subsequent finding of arthritis is all a consequence of the original referral by the Registrar for the AMS to assess the four factors:

17. [126]

    The Complying Agreement does not affect the ability of the Appeal Panel, or the Commission more generally, to assess Mr Wilkinson’s degree of permanent impairment, even if the figure reached is lower than what was agreed to in the Complying Agreement. The arthritis that was discovered by the Appeal Panel is a condition that has affected Mr Wilkinson’s ability to move both his right and left hip. A considerable amount of time has elapsed between the workplace accident in 2004 and the Appeal Panel assessment in 2013. Consequently, it is highly likely that a condition, such as arthritis, could develop as an alternative factor that is affecting Mr Wilkinson’s use of his right hip. It is my view that the Appeal Panel is not estopped, due to the Complying Agreement, from finding a lower WPI.

18. [127]

    Accordingly, this ground of judicial review fails.

Ground 2 – causation

1. [128]

   This ground relates only to the Appeal Decision. It was submitted that the Appeal Panel asked itself the wrong question, and misconceived its function under s 328, by determining the causation of Mr Wilkinson’s injury to his right hip. Thereby, the Appeal Panel purported to exercise a power that was not vested in it.

2. [129]

   At [30] of the Appeal Decision, the Appeal Panel stated that:

3. [130]

   The Appeal Panel continued at [32]:

4. [131]

   It was submitted that an approved medical specialist, and, therefore, a panel constituted under s 328 to conduct an appeal, is not empowered to determine the question of causation of an injury. It was submitted that this was a matter that could not be referred for assessment by reason of s 321(4)(a). That sub-section provides that a Registrar may not refer for assessment:

5. [132]

   Mr Wilkinson referred to the decision of Schmidt J in Elcheikh at [124], where her Honour stated:

6. [133]

   Mr Wilkinson submitted that Leussink had conceded liability in respect of the impairment to his right hip by entering into the Complying Agreement. It follows, so it was submitted, that causation and liability were not in issue.

7. [134]

   Leussink conceded that there was some “looseness in the language and some unhappy phrasing” in the relevant passages of the Appeal Decision. Nevertheless, it was argued that this Court should not presume that the Appeal Panel was not aware that it was not authorised to determine the question of causation.

8. [135]

   It is my view that the statements of the Appeal Panel at [30] and [32] of the Appeal Decision are findings in relation to causation. The Appeal Panel considered that the impairment to Mr Wilkinson’s right leg was not due to his work-related injury, but rather to an underlying arthritic condition. This was the basis on which the Appeal Panel assessed Mr Wilkinson’s permanent impairment at 0%. In doing so, the Appeal Panel purported to exercise a statutory function it did not have. This amounted to jurisdictional error.

Approach to s 323(1) – Ground 3

1. [136]

   This ground follows directly from Ground 2. In circumstances where the Appeal Panel was satisfied that there was an underlying non-work-related condition, Mr Wilkinson submitted that the correct approach was for the Appeal Panel to address the test in s 323(1) of the WIMWC Act. That test provides that:

2. [137]

   “In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury … or that is due to any pre-existing condition or abnormality.”

3. [138]

   Mr Wilkinson submitted that the question of arthritis was only permitted to be taken into account in accordance with the approach under s 323(1). Failure to do so, it was argued, amounted to a jurisdictional error.

4. [139]

   Leussink noted that Mr Wilkinson’s contention presupposes the existence of permanent impairment in the right hip of more than 0% WPI, as there can be no deduction from a workplace injury rated at 0% WPI. As I understand it, Leussink was submitting that there was no practical distinction between 0% WPI arrived at under s 323, and the same figure arrived at by the processes adopted by the Appeal Panel.

5. [140]

   The failure of the Appeal Panel to address s 323 amounted to error. The correct approach was to assess Mr Wilkinson’s permanent impairment arising from his work-related injury, and deduct from that such a figure as represented the proportion of the impairment that was due to his arthritis. This amounts to jurisdictional error.

Procedural fairness – Ground 4

1. [141]

   It was argued under this ground that the Appeal Panel denied Mr Wilkinson procedural fairness by not disclosing to him the issue of arthritis before making the Appeal Decision.

2. [142]

   Mr Wilkinson referred to Markovic v Rydges Hotels Ltd [2009] NSWCA 181. There, the Court of Appeal found that a worker was denied procedural fairness by an appeal panel of the Workers Compensation Commission when it did not give him an opportunity to be heard on new issues raised by the panel itself.

3. [143]

   Moreover, Mr Wilkinson submitted that the denial of procedural fairness was not ‘cured’ by the Reconsideration under s 378(1). This was so, it was submitted, because the Reconsideration did not provide a rehearing on the merits, with an opportunity to adduce fresh evidence.

4. [144]

   Leussink submitted that Mr Wilkinson was not denied procedural fairness. It was contended that Mr Wilkinson was on notice of the issue of arthritis prior to the Appeal Decision, and, therefore, was not denied a reasonable opportunity to present his case. Moreover, Leussink pointed to the fact that arthritis was the not the central issue before the Appeal Panel. The central issue, it was submitted, was whether the failure to examine the left hip amounted to a demonstrable error.

5. [145]

   In support of its submissions, Leussink relied on the report of Dr Giblin dated 4 August 2011. In that report, Dr Giblin referred to MRI scans of Mr Wilkinson’s hips undertaken on 19 January 2011, which revealed “some early arthritic change in the right hip”. The AMS noted the report of Dr Giblin in the original Medical Assessment Certificate. No specific reference was made, however, to arthritis. The Appeal Panel referred to the MRI scans in its Appeal Decision. Again, however, no reference was made to arthritis. Leussink referred to Dr Giblin’s report in its submissions in response to Mr Wilkinson’s application for a reconsideration of the Appeal Decision. Accordingly, Leussink submitted that Mr Wilkinson was on notice.

6. [146]

   In Siddik v WorkCover Authority of NSW at [101] and [104] McColl JA stated:

7. [147]

   In Markovic v Rydges Hotels Limited it was held that where the Appeal Panel did not give the worker, an opportunity to be heard on the new issues they themselves raised, and having thus misconceived their role, the nature of their jurisdiction and their duty, the Panel’s Medical Assessment Certificate must be quashed and the appeal from the Medical Assessment Certificate of the AMS heard by a fresh Panel.

8. [148]

   In my view, the failure of the Appeal Panel to put the parties on notice that it intended to consider the role of arthritis as an explanation for the restriction of movement in Mr Wilkinson’s right hip amounted to a denial of procedural fairness. While it is true that Dr Giblin briefly referred to arthritis in his report, arthritis was not mentioned as being a non-work explanation and was not the subject of submissions to the Appeal Panel. A fair reading of Leussink’s submissions identified the non-work explanation as Parkinson’s disease. It was only after a member of the Appeal Panel examined Mr Wilkinson’s hips that the significance of arthritis became an issue. Up until this time, no medical specialist nor the parties had appreciated the significance of the presence of arthritis in both hips. In these circumstances, it is my view Mr Wilkinson was denied a reasonable opportunity to present his case and was denied procedural fairness.

9. [149]

   The next question that arises is whether the denial of procedural fairness in the Appeal Decision was ‘cured’ by the Reconsideration under s 378. Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 stated (at 14):

10. [150]

    While I accept that before the Reconsideration took place, Mr Wilkinson was aware that arthritis was central to the Appeal Panel’s decision. However, the Appeal Panel had already concluded that the restriction in movement in Mr Wilkinson’s right hip was due to arthritis and the denial of procedural fairness had already occurred. The parties should have been given the opportunity to make submissions and seek to rely on medical evidence dealing with this issue before the Appeal Pane reached its conclusion.

11. [151]

    As there are other jurisdictional errors, I need not decide this point. However, I will make these tentative comments. On reconsideration, while an Appeal Panel can rescind, alter or amend its decision, it can only do so if it is satisfied that its decision contains an obvious error. Its jurisdiction is limited. The Appeal Panel may not consider that a denial of procedural fairness is an obvious error. However, as I have quashed the decision of the Appeal Panel, the Reconsideration can no longer stand and it is infected by error. I quash the Reconsideration.

Grounds 6 and 7

1. [152]

   In view of my earlier decisions, it is not necessary to determine Grounds 6 and 7.

Conclusion

1. [153]

   There have been a number of jurisdictional errors in the Appeal Panel’s decision. These errors were not cured by the Reconsideration. Hence, in my view both decisions should be quashed. The proceedings should be remitted to the Workers Compensation Commission for determination according to law.

2. [154]

   Costs are discretionary. Cost usually follow the event. The first defendant is to pay the plaintiff’s costs as agreed or assessed.