Yates v Flavorjen Pty Ltd

1. [1]

   HER HONOUR: This is a judicial review of a decision of an Appeal Panel of the Personal Injury Commission of New South Wales.

2. [2]

   The plaintiff is Timothy Yates. The first defendant is Flavorjen Pty Ltd (“the employer”). The second defendant is a Medical Appeal Panel constituting of Brett Batchelor and Drs Mark Burns and Drew Dixon (“the Appeal Panel”). The third defendant is the President of the Personal Injury Commission of NSW. The second and third defendants filed submitting appearances.

3. [3]

   The parties relied on a joint court book comprising of 3 volumes (“Ex A(1)-(2)”).

4. [4]

   By summons filed 21 May 2021, the plaintiff relevantly seeks (Ex A(1), 1):

   1. (1)

      a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for decision issued by the second defendant on 23 February 2021 is void and of no effect;

   2. (2)

      an order setting aside the decision and the statement of reasons for decision issued by the second defendant on 23 February 2021;

   3. (3)

      an order setting aside the Certificate of Determination dated 1 April 2021;

   4. (4)

      an order that the matter be remitted to the second defendant and/or third defendant to be determined according to law.

Background

1. [5]

   On 11 August 2015, the plaintiff commenced employment with the employer as a factory process worker. His usual duties primarily involved manually grinding and tampering coffee beans with a large metal rod. On 13 October 2015, he noticed swelling, weakness and numbness in both of his hands and wrists whilst at work performing the grinding and tampering.

2. [6]

   He sought medical attention through his GP. He was referred for investigations including an MRI scan and nerve conduction studies of both upper limps. As a result of the nerve conduction studies he was referred to Dr Tawik, orthopaedic surgeon. This culminated in a right carpal tunnel decompression surgery on 14 March 2016 (Ex A(2), 329-330).

3. [7]

   On 15 March 2018, the plaintiff was referred to Dr Tisch, neurologist. In his report of this consultation, Dr Tisch noted (Ex A(1), 173):

4. [8]

   On 25 November 2019, the plaintiff was examined by orthopaedic surgeon, Dr Bodel (Ex A(1), 17-24). He took a history of the plaintiff which stated that he developed a gradual onset of neck, shoulder girdle pain and bilateral upper limb pain, the right worse than the left, associated with the nature and conditions of his work. He recorded that the symptoms began within three weeks of the plaintiff starting work with the employer and resulted from the intense, heavy and repetitive nature of the work that he was doing.

5. [9]

   Dr Bodel described the plaintiff as having developed a very complex set of injuries which include aggravated degenerative change in the cervical spine; a complex regional pain syndrome (“CRPS”) involving both upper limbs, mainly the right arm, probable carpal tunnel syndrome in both wrists and rotator cuff pathology in the region of both shoulders. Dr Bodel further stated that the plaintiff’s prognosis remained very guarded. He recorded that there was clinical symptoms that suggested that the CRPS is improving, but there was still florid signs of this condition on testing. Dr Bodel stated that the plaintiff is likely to continue to have symptoms indefinitely. However, he stated that he does not anticipate further complications, and was hopeful of further improvement over time: see Ex A(1), 23-24.

6. [10]

   Dr Bodel’s report was accompanied by an impairment assessment dated 25 November 2019 (Ex(1), 25). With regards to his opinion on the whole person impairment (“WPI”) of the plaintiff, Dr Bodel made the following findings:

7. [11]

   As can be seen from this exerpt, Dr Bodel’s assessment included the left upper extremity, the right upper extremity, cervical spine and CRPS. In respect of the right upper extremity, Dr Bodel assessed impairment in the shoulder, wrist and a sensory loss in the median nerve distribution which constituted 15% WPI. With respect to the cervical spine, Dr Bodel assessed a WPI of 7%. In relation to the left upper extremity he assessed the plaintiff’s WPI at 2%. He assessed a total WPI of 23%. Dr Bodel also considered that the criteria in Table 17-1 of the WorkCover Guidelines had been met to allow assessment on the basis of CRPS.

8. [12]

   On 4 February 2020, the plaintiff made a claim for permanent impairment compensation (Ex A(1), 29). The permanent impairment claim form described the plaintiff’s injury as ‘cervical spine, left and right upper extremities’ and relied upon the reports of Dr Bodel.

9. [13]

   On 16 March 2020, Dr Rimmer, Orthopaedic surgeon, examined the plaintiff (Ex A(2), 227). In his report dated 23 March 2020, Dr Rimmer notes that the plaintiff’s symptoms included numbness and pins and needles in both hands, an increasing resting tremor in his right upper limb and intermittent pain in his cervical spine. According to Dr Zimmer, the plaintiff did not suffer from the effects of any injury on 13 October 2015, or due to his employment and the overwhelming issue was his current and ongoing narcotic use. Dr Rimmer’s opinion was that it was likely that the plaintiff suffered from Parkinson’s disease however he notes that this is not his area of expertise. As a result of this, Dr Rimmer assessed the plaintiff’s WPI at 0% as a result of the 13 October 2015 injury.

10. [14]

    On 6 April 2020, by way of notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”), the employer declined liability in respect of the claim for permanent impairment compensation (Ex A(1), 33). This declinature relied upon the opinion of Dr Rimmer and stated that as the plaintiff did not suffer from the effects of any injury on 13 October 2015 or due to his employment with the employer, the plaintiff did not qualify for any compensation for permanent impairment. It should also be noted that the notice stated (Ex A(1), 34):

11. [15]

    On 1 August 2019, the plaintiff had a follow up consultation with Dr Tisch (Ex A(1), 193). Dr Tisch recorded:

12. [16]

    On 21 July 2020, the employer arranged for the plaintiff to be examined by a neurologist, Dr Mellick (Ex A(1), 214). In his report dated 7 August 2020, Dr Mellick recorded the plaintiff’s tremor was of considerable severity, is variable and impairs normal function of his dominant right hand. Dr Mellick disagreed with Dr Rimmer’s comments as to the diagnosis of Parkinson’s Disease and agreed with the comments of Dr Tisch regarding the absence of that disease. Dr Mellick considered that the plaintiff had suffered from bilateral carpal tunnel syndrome and also agreed with Dr Tisch’s diagnosis of a functional tremor. Dr Mellick stated that the tremor obstructed testing of motor and sensory function in the right hand which prevented from making a valid WPI assessment.

13. [17]

    On 17 August 2020, the employer filed a second s 78 notice with the additional information following Dr Mellick’s examination of the plaintiff (Ex A(1), 61). As Dr Mellick was unable to provide an assessment of permanent impairment, the employer maintained their position that the degree of impairment resulting from the injury was not more than 10% WPI and therefore the plaintiff did not qualify for compensation.

14. [18]

    On 28 September 2020, the plaintiff lodged an Application to Resolve a Dispute (“ARD”) with the Workers Compensation Commission (Ex A(1), 38). The ARD describes the injury as “gradual onset of symptoms affecting the neck, right and left shoulder and right and left arms, wrists and hands due to the vigorous, repetitive manual work duties.” The claim for permanent impairment identified the cervical spine, left upper extremity, right upper extremity, nervous system and chronic pain as the ‘body systems’ claimed. The ARD specified that the total WPI claimed is 23%.

Referral to the Approved Medical Specialist

1. [19]

   On 13 October 2020, the employer’s solicitor wrote to the plaintiff’s solicitors submitting that the correct terms of the referral to the Approved Medical Specialist (“AMS”) should be as follows (Ex A(1), 195):

2. [20]

   On 14 October 2020, the plaintiff consented to the amendment of the referral to the AMS (Ex A(1), 196). The plaintiff’s solicitor replied by way of email:

3. [21]

   The amendment meant that with regards to the right upper extremity, the assessment was to be confined to an assessment with regards to CRPS and with regards to the left upper extremity the assessment was to be confined to the shoulder.

4. [22]

   On 19 October 2020, the employer lodged a reply to the ARD (Ex A(1), 198). Under the heading ‘Matters in Dispute’ the employer selected ‘confirmed as per dispute notice(s) attached to the application’.

5. [23]

   On 19 October 2020, Mr Dray, Delegate to the Arbitrator (“the Delegate”) referred the matter for assessment by the AMS (Ex A(2), 410). They described the body parts referred as ‘cervical spine, left upper extremity, right upper extremity, nervous system, chronic pain.’

6. [24]

   On 20 October 2020, the employer’s solicitor emailed the Delegate requesting that the referral be amended as per the agreement between the parties (Ex A(2), 411). On that day the Delegate prepared an amended referral (Ex A(2), 414). The described body parts in the referral were amended to ‘Cervical Spine, Chronic Regional Pain Syndrome (right arm), Left upper extremity (shoulder)’.

The AMS reasons dated 16 November 2020

1. [25]

   On 9 November 2020, Dr Assem, the AMS, examined the plaintiff and on 16 November 2020 issued a Medical Assessment Certificate (Ex A(2), 415).

2. [26]

   Under the heading ‘Summary of injuries and diagnoses’ the AMS stated: (Ex A(2), 419-420):

3. [27]

   Under the heading ‘My opinion and assessment of whole person impairment’ the AMS made findings in relation to the plaintiff’s WPI: (Ex A(2), 421-422). The AMS assessed the impairment of the cervical spine as 0%. In respect of the right upper extremity, he found limitation of motion in the right shoulder, right elbow and right wrist. He assessed the sensory symptoms as analogous to residual carpal tunnel syndrome present after surgery and he assessed the tremor applying AMA-5, Table 13-16. In respect of the left upper extremity, the AMS assessed restriction of motion in the right shoulder, right elbow and right wrist to which he added an additional assessment for the sensory symptoms similar to residual carpel tunnel syndrome. The AMS assessed the plaintiff’s WPI at 24%.

4. [28]

   On 1 December 2020, the employer lodged an appeal from the Medical Assessment Certificate (Ex A(2), 428). The grounds of appeal were that, firstly, the assessment of impairment for the left upper extremity, in particular the left elbow, wrist and nerves were not available to the AMS based on the terms of the amended ‘Referral for Assessment of Permanent Impairment.’ Secondly, it was argued that the assessment for impairment for CRPS (right arm) was an assessment based on incorrect criteria, and a demonstrable error, given the diagnostic findings of the AMS that the plaintiff did not meet the criteria under chapter 17 for a diagnosis of CRPS.

5. [29]

   On 18 December 2020, the plaintiff lodged a notice of opposition to the appeal (Ex A(2), 437). The plaintiff submitted the dispute between the parties was the degree of impairment to be ascribed in respect of the cervical spine and the left and right upper extremities. As such, the assessment made by the AMS was referable to the body parts and systems in respect of which the claim was made. The plaintiff submitted that this was not a case where the assessment went beyond the limits of the dispute between the parties. It was also submitted that the reference to CRPS in the referral did not prevent the AMS from assessing the right upper extremity, applying other chapters of the Guides.

6. [30]

   On 19 January 2021, the principal lawyer as Delegate of the Registrar found that a ground of appeal had been made out and referred the matter for consideration by the Appeal Panel (Ex A(2), 446).

7. [31]

   On 27 January 2021, the plaintiff, through his solicitor, requested that the Proper Officer, Anne Macleod, amend the terms of the referral to the AMS and the Appeal Panel to read as follows: (Ex A(2), 447)

8. [32]

   This request may be viewed as a proposal to widen the scope of the dispute to the terms of the original referral. As can be seen, this would involve a separate assessment of the right upper extremity and CRPS, as well as an assessment of the entire left upper extremity.

9. [33]

   On the 27 January 2021, the solicitor for the employer wrote back to the Proper Officer saying that there was no basis for the plaintiff’s request (Ex A(2), 449).

10. [34]

    On the same day, the parties were advised by the Proper Officer that the referral could not be amended (Ex A(2), 452):

The Appeal Panel decision

1. [35]

   On 23 February 2021, the Appeal Panel delivered their decision and statement of reasons (Ex A(2), 453). At [16] to [18] the Appeal Panel stated:

2. [36]

   Under the heading ‘Findings and reasons’ at [56], [58], [66] and [72]-[74] the Appeal Panel stated:

3. [37]

   The Appeal Panel revoked the Medical Assessment Certificate of 16 November 2020 and issued a new certificate which assessed a 2% WPI.

Relevant legislation

1. [38]

   Section 288 of the Workplace Injury Act governs the referral of disputes for determination by the Commission. It reads:

2. [39]

   Where there is a medical dispute, the Registrar (now the President) can refer the dispute for assessment pursuant to s 293 which reads:

3. [40]

   The term ‘medical dispute’ is defined by s 319 of the Workplace Injury Act. This provision reads:

4. [41]

   An assessment of permanent impairment is to be made in accordance with ss 322 and 323 of the Workplace Injury Act. They read:

5. [42]

   A medical assessor issues a medical assessment certificate in accordance with s 325 that reads:

6. [43]

   Sections 326-328 apply to the Medical Assessment Certificate. They relevantly read:

7. [44]

   Section 331 of the Workplace Injury Act requires the Appeal Panel to apply the Guidelines in conducting its review. Section 331 relevantly reads:

The Guidelines

1. [45]

   The NSW workers compensation guidelines for the evaluation of permanent impairment (4th edition) (“the guidelines”) are the relevant guidelines in this Judicial Review. The guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed) (“AMA5”).

2. [46]

   Chapter 17 of the guidelines concerns the assessment of impairment resulting from CRPS. Chapter 17 of the Guidelines relevantly reads:

Relevant law

1. [47]

   Both parties referred to Skates v Hills Industries Ltd [2020] NSWSC 837 (“the primary judge’s decision”) and Skates v Hills Industries Ltd [2021] NSWCA 142 (“Skates”). It should be acknowledged that while the Appeal Panel referred to the primary judge’s judgment decision, the Court of Appeal decision had not yet been handed down.

2. [48]

   In Skates, Basten and Leeming JJA at [29]-[30], [33], [35]-[36], [38], [43]-[44], [46] and [48]-[49] stated:

3. [49]

   In dissent, McCallum JA stated at [51], [76], [80] and [82]-[83]:

4. [50]

   The result was that, despite the appeal ultimately being dismissed, the matter was remitted to the President of the Personal Injury Commission for determination according to law.

The grounds of judicial review

1. [51]

   The grounds of Judicial Review set out in the plaintiff’s summons are as follows:

   1. (1)

      The Appeal Panel erred in point of law and made a jurisdictional error when it held that the AMS had erred by assessing impairment of the right upper extremity on the basis of loss of range of motion;

   2. (2)

      The Appeal Panel erred in point of law and made a jurisdictional error when it held that the AMS had erred by assessing impairment in the left elbow and left wrist;

   3. (3)

      The Appeal Panel erred in point of law and made a jurisdictional error when it held that the AMS was restricted by the referral to only assessing the left shoulder and CRPS in the right arm;

   4. (4)

      The Appeal Panel erred in point of law and made a jurisdictional error when it held that the AMS could not assess the impairment resulting from CRPS when the AMS was required to accept that the injury was CRPS, and he was required to assess the degree of impairment resulting from that injury; and

   5. (5)

      The Appeal Panel erred in law and made a jurisdictional error when it held that the AMS was confined to assessing the body parts mentioned in the Referral and not the degree of impairment resulting from the injuries as agreed between the parties being the neck, right and left shoulder and right and left arms, wrists and hands as set out in the ARD and not disputed in the Reply.

2. [52]

   As can be seen from these Judicial Grounds, the central issue of this matter is the scope of the medical dispute. There are two positions taken by the plaintiff. Firstly, grounds (1)-(3) argue that the AMS was entitled to look beyond the scope of the dispute defined by the referral form (“scope of the dispute”). Grounds (4)-(5) argue that, in what may be viewed as a fallback position, that the Appeal Panel erred when it did not find that the AMS was required to accept that the plaintiff had the injuries deposed in the referral form and was confined to assessing the permanent impairment resulting from those injuries (“nature of the dispute”). I will group the submissions of the parties accordingly.

Judicial grounds (1), (2) and (3) – Scope of the dispute

1. [53]

   The plaintiff submitted that the initiating ARD made a claim in respect of an injury which was described as including the right shoulder, right arm, wrist and hand. The claim for permanent impairment compensation claimed impairment in respect of the right upper extremity. The medical dispute was the extent of the impairment in the body parts claimed as a result of the injuries alleged. There was no dispute about the injury, only about the extent of the impairment.

2. [54]

   The status of the Registrar’s referral was considered recently by the Court of Appeal in Skates. In that matter, the appellant had made a claim for permanent impairment compensation in respect of injuries to the left wrist, left ring finger and scarring. The AMS had assessed an impairment in the entirety of the left upper extremity on the basis that the appellant now had a functionally useless left arm. The Appeal Panel had found a demonstrable error by the AMS on the basis that the referral had only requested an assessment of the ring finger and scarring. Before the primary judge, the employer had conceded that the Appeal Panel should have included an assessment of the left wrist because there was no dispute about the injury to that body part. The worker appealed, arguing that, properly read, the dispute had been in respect of the impairment in the entirety of the left upper extremity. The appeal was unsuccessful with Basten JA and Leeming JA both holding that the medical dispute had only been in respect of the wrists and ring finger. McCallum JA, in dissent, considered that the dispute had been in respect of the entirety of the left upper extremity.

3. [55]

   With respect to the status of the referral document, Basten JA said (at [35]) the primary judge was correct in finding that the Appeal Panel (subject to the identified concession which was held should have been taken into account when assessing the claim) was correct in concluding that Dr Machart’s assessment contained demonstrable error in failing to be limited to the terms of the claim. His Honour considered that other than the failure to include the left wrist, the referral had been consistent with the terms of the claim. It is clear from His Honour’s reasoning that the limitation placed on the AMS was from the nature of the medical dispute and not from the wording of the referral.

4. [56]

   Leeming JA said at [44] “the starting point is a ‘medical dispute.’ The term is defined by reference to the existence of a ‘dispute between a claimant and a person on whom the claim is made’ about any seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime, at least in most cases, the dispute will have been identified by a written exchange or competing claims. His Honour went on to consider that the dispute had been crystalised by the correspondence attached to the plaintiff’s application. His Honour observed (at [48]) ‘the paperwork associated with the administration of the legislation seems to have led to a tendency to give to that document comprising the ‘referral’ to an AMS a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. ‘His Honour observed (at [51]) that the purpose of the statutory regime was to resolve a medical dispute and that ‘a dispute is identified by the disputants’ competing claims.’

5. [57]

   McCallum JA took a different view as to the scope of the dispute as identified by the ARD and the medical reports. She considered that the terms of the referral did not reflect Mr Skates’ case. Her Honour held (at [82]) that the medical dispute referred must be the medical dispute that the parties have sought to have resolved. She said (at [83]) “in my view, that medical dispute referred, and indeed the only medical dispute the Registrar had power to refer to the AMS, included a dispute as to the impairment in the left upper extremity”.

6. [58]

   All of the judges were of the view that the role of the AMS was to make an assessment to resolve the dispute between the parties. The dispute was to be determined by reference to the claim, the medical evidence relied upon and the ARD. The Registrar’s only power was to refer that dispute. The Registrar did not have the power to otherwise constrain the AMS when performing their role in accordance with the Workplace Injury Act.

7. [59]

   In this matter, the relevant claim was for the entirety of the right upper extremity including the shoulder, wrists and hands. The report of Dr Bodel had made an assessment of the entirety of the right upper extremity and in particular made assessments of the right shoulder and the right wrist. The employer had not disputed any of the injuries. The dispute had been limited to the degree of permanent impairment that resulted from those injuries.

8. [60]

   Chapter 2 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment provides that the impairment assessment of the upper extremities is to be carried out in accordance with Chapter 16 of AMA-5. When carrying out the assessment, the AMS applied Chapter 16 to assess the loss of range of movement in the right upper extremity. That assessment was in accordance with the Guidelines. Otherwise, the AMS assessed the tremor by analogy applying Chapter 15. The employer did not challenge that methodology but merely argued that the AMS was only entitled to assess the right upper extremity applying Chapter 17.

9. [61]

   It is the plaintiff’s submission that the Appeal Panel considered the question of the assessment of the right upper extremity (at [66]-[72]). The Appeal Panel took the view that the referral in s 325 to ‘details of the matters referred for assessment’ is a reference to the body parts of systems identified in the referral form. The Appeal Panel took the view (at [68]) that the only referral to the AMS was for a CRPS in the right arm. It considered that there was no other referral in respect of the assessment of this limb. More particularly, at [72], the Appeal Panel expressly rejected the contention that the AMS was entitled to assess the plaintiff with reference to injury in the body parts and systems in respect of which the claim was originally made in the ARD, namely, cervical spine, left upper extremity, right upper extremity, nervous system and chronic pain. The Appeal Panel was of the view, incorrectly, that the AMS was restricted by the terms of the referral form completed by the Delegate.

10. [62]

    Under the statutory scheme, the Registrar only has the power to refer a dispute. The Registrar does not have the power to determine questions of injury or to determine any aspect of the dispute. Accordingly, to the extent that any referral is inconsistent with the medical dispute between the parties, it is the terms of the dispute which prevail and not the terms of the referral form. This much is clear from their Honours’ reasoning in Skates.

11. [63]

    The plaintiff submitted that the Appeal Panel was wrong in law when it held that it was the terms of the referral which prevailed, and it rejected the submission that the AMS was to assess the dispute by reference to the claim originally made in the ARD. The Registrar did not have the power to in effect direct that the AMS could only carry out an assessment applying Chapter 17 of the Guidelines.

12. [64]

    The Appeal Panel misinterpreted the effect of the referral form. The effect of the referral was that the parties had agreed that the plaintiff’s injury had included CRPS. The task for the AMS would be to assess the impairment that results from the fact that the plaintiff had suffered from CRPS as a result of the work injury.

13. [65]

    An assessment of impairment of the upper extremity is carried out applying Chapter 16 of AMA-5. In circumstances where the criteria for CRPS persist at the time of the examination by the AMS, Chapter 17 provides for an assessment whereby two assessments are able to be combined. Those two assessments are an assessment on the basis of loss of range of movement and a separate assessment for sensory deficit and pain. Both are carried out applying Chapter 16. However, in the absence of a finding of CRPS, the two separate assessments cannot be combined. Properly read, the Guideline does not prevent an assessment on the basis of loss of range of movement in respect of the consequences of a previously diagnosed CRPS. The chapter allows an assessment whenever there is a loss of range of movement as a result of the compensable work injury. There was no error by the AMS when he made that assessment.

14. [66]

    In relation to Judicial Ground (2), the plaintiff submitted that the ARD alleged injury to the left upper extremity including the shoulder, wrist and hand. The claim for permanent impairment compensation was also in respect of the left upper extremity as a whole.

15. [67]

    The AMS assessed the left arm in the same way that he assessed the right. He considered the loss of range of movement in the arm and made an additional allowance because of the tremor in the arm.

16. [68]

    The employer did not challenge the methodology or the accuracy of the assessment. The challenge was again limited to an assertion that because of the terms of the referral document, the AMS was only entitled to make an assessment of the loss of movement in the left shoulder. As with the right shoulder, the Appeal Panel did not refer to and consider the terms of the claim made either in the claim letter or in the ARD. The Appeal Panel again considered that the referral form defined the terms of the medical dispute and in effect where there was inconsistency between the other documentation and the referral form, it was the referral form which prevailed. As with the right upper extremity, this approach was wrong in law.

17. [69]

    In relation to Judicial Ground (3), the Appeal Panel held that, because of the terms of the referral, the AMS could only assess impairment in the left shoulder when assessing the left upper extremity. It also found that an assessment of the right arm could only be made on the basis of the Chapter applying to CRPS and not with respect to any other chapter. The Appeal Panel was of the view that because of the terms of the referral form the only assessment that could be made in the right arm was for a CRPS in the right arm.

18. [70]

    The medical dispute as defined by the claim and the ARD was in respect of the impairment in the left and right upper extremities as a result of accepted injury to the left and right arms, shoulders, wrists and hands. That was the only dispute which the delegate of the Registrar could refer for assessment. It was that dispute which the AMS assessed.

19. [71]

    The delegate did not have the power to redefine the dispute or to refer a different dispute for assessment. The delegate’s only power was to refer the dispute which existed between the parties.

20. [72]

    The reference to CRPS in the referral form is problematic. The referral form merely refers to ‘body part(s) referred.’ CRPS is not a body part. The body part referred is the right arm. The ARD had not claimed that the injury was CRPS. It is accepted that Dr Bodel had found that the criteria for an assessment based on CRPS were present and had assessed impairment applying Chapter 17.

21. [73]

    The referral form had been amended at the request of the employer. It was the employer who wished the referral to specifically refer CRPS for assessment. That amendment can only have one of two meanings.

22. [74]

    The first and most likely meaning is that the injury to the plaintiff’s right upper extremity was CRPS. It is accepted that the reference to CRPS should be read as a reference to CRPS. If it is accepted that the concession concerned injury then the task for the AMS was to assess the impairment that resulted from that injury. That would include an assessment of loss of range of movement. The other alternative is that the employer accepted that the criteria for CRPS in Chapter 17 had been met. In those circumstances, the AMS was then free to make an assessment of the right upper extremity involving both restriction of range of movement and the nerve restriction, applying Chapter 17.

23. [75]

    The Appeal Panel had interpreted the referral as meaning that the AMS could only assess applying Chapter 17 and then only if the criteria for CRPS were independently established at the examination by the AMS. This was not what the referral said and it was not an interpretation that was available to the Appeal Panel.

24. [76]

    The dispute between the parties was for the assessment of WPI resulting from injuries to the left and right upper extremities and that is what the AMS assessed. The Appeal Panel erred in law when it held otherwise.

25. [77]

    The employer submitted that each of the grounds in the summons stems from the same central issue, namely, what are the bounds of the medical dispute referred to the AMS. It is convenient to address that issue in broad terms before turning to the specific grounds of review.

26. [78]

    In Skates, the Court of Appeal recently emphasised the importance of understanding the bounds of the relevant medical dispute. At [29], Basten JA referred to the medical dispute arising from medical reports enclosed with the application, concluding at [30] that “this material defined the proper scope of the referral.” His Honour also upheld the primary judge’s conclusion “that [the AMS’s] assessment contained demonstrable error in failing to be limited to the terms of the claim”: at [35].

27. [79]

    Leeming JA, agreeing with Basten JA, held at [43]: “infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute.”

28. [80]

    While McCallum JA dissented in the result (in the sense that her Honour reached a different conclusion as to what the medical dispute was), Her Honour held at [82]: “I do not mean to suggest that an AMS is free to ignore the terms of the referral. However, the medical dispute referred must be the medical dispute the parties have sought to have resolved.” To the extent Her Honour’s interpretation can be said to give rise to the potential for a broader understanding of the medical dispute, that was in the context where the worker in that case had specified injuries in his application to the Commission and where his description of those injuries was “not disputed by the insurer” (at [54]).

29. [81]

    Here, contra the plaintiff’s written submissions, the medical dispute “crystallised in the documents” which “defined the proper scope of the referral”, being “the medical dispute the parties have sought to have resolved”, was entirely consistent with the terms of the referral itself, having regard to the full factual background.

30. [82]

    The starting point in this respect is the plaintiff’s original claim on this issue, made on 4 February 2020. That claim was based on two reports by Dr Bodel dated 25 November 2019, which were included as part of the plaintiff’s ARD. In those reports, while Dr Bodel considered the range of movement in the plaintiff’s shoulders and wrists (noting no restriction of elbow movement), he used that consideration to opine as to a diagnosis of CRPS in relation to the plaintiff’s right upper extremity and impairment in his left shoulder. Those diagnoses then formed the basis for his assessment of the plaintiff’s degree of permanent impairment. Specifically, Dr Bodel assessed the plaintiff’s degree of permanent impairment in relation to his right upper extremity on the basis of the diagnosis of CRPS and his degree of permanent impairment in relation to his left shoulder. No separate assessment was made in relation to range of motion alone in relation to the right upper extremity, and no assessable impairment was identified in relation to the plaintiff’s left elbow or wrist.

31. [83]

    Dr Bodel’s assessment formed the basis of the plaintiff’s claim to GIO on 4 February 2020 and his ARD.

32. [84]

    That claim, incorporating the underlying assessment, is the claim to which the employer, through its insurer, responded, by way of:

33. [85]

    The claim and the s 78 notices (including the independent medical investigations underlying them) are particularly critical, because a dispute about a claim for lump sum compensation could only be referred to the Commission, where there was either a dispute as to liability or a failure to determine a claim: Workplace Injury Act s 289(3). That is, the dispute which was referred could not go beyond the claim itself.

34. [86]

    Having regard to the above, on the basis of the reasons given by each of Basten JA and Leeming JA in Skates, the medical dispute as crystallised between the parties was precisely that reflected in the amended referral. In relation to the plaintiff’s right upper extremity, that was limited to CRPS. In relation to the plaintiff’s left upper extremity, it was limited to his shoulder.

35. [87]

    Even if McCallum JA’s judgment does give rise to a broader interpretation of the medical dispute as referred, her Honour’s reasons do not assist the plaintiff. As set out above, the dispute cannot be broader than the claim itself (that is, the claim as originally made), and her Honour does not suggest otherwise.

36. [88]

    While it is true that, in his ARD, the plaintiff identified, relevantly, the “right upper extremity” and the “left upper extremity” as systems in respect of which he had claimed, an important distinction between this case and the circumstances of Skates is that the employer did dispute the descriptions of the relevant injuries, and did so immediately: first in correspondence, and then in its reply to the ARD. Moreover, the plaintiff, through his solicitors, agreed to the terms proposed the employer, even before it filed its reply to the ARD. He did not object when the employer’s solicitor drew attention to the agreed terms of the referral, and he did not object to the referral as amended.

37. [89]

    As such, even if the plaintiff could rely on a claim in his ARD which travelled beyond the claim described in Dr Bodel’s reports which formed the basis of his claim for lump sum compensation, which is not a course available to him in light of s 289 of the Workplace Injury Act – or, to put it another way, even if it is the terms of the ARD which should be treated as setting the terms of the medical dispute – the employer’s actions in immediately seeking a correction of the terms of the referral and the plaintiff’s agreement to that correction constituted an effective amendment of the claim as made in his ARD.

38. [90]

    In Skates, both Basten JA and Leeming JA considered it material that the parties had ample opportunity to ventilate the dispute: at [36], [43].

39. [91]

    The AMS made a positive finding that the plaintiff “did not satisfy the diagnostic criteria for CRPS”. That resolved the aspect of the medical dispute that related to the plaintiff’s right upper extremity, notwithstanding the AMS’ findings in relation to loss of range of motion, because there was no separate referral of the plaintiff’s impairment in his right upper extremity on the basis of a loss of range of motion.

40. [92]

    The Appeal Panel accepted that, in relation to the right limb, “the only referral of [the plaintiff] to the AMS was for a CRPS in the right arm” (at [68]) and, consequently, found that the AMS erred in making an assessment on the basis of loss of range of motion in relation to the right limb (at [74]).

41. [93]

    In relation to Judicial Ground (2), the employer submitted that the Appeal Panel correctly identified that Dr Bodel “assessed the left upper extremity as a result of loss of range of movement in the shoulder only” and that the AMS’s assessment went beyond that (at [64]). The Appeal Panel further identified that the terms of the referral, vis-à-vis the left upper extremity, were limited to the shoulder.

42. [94]

    In the circumstances, the Appeal Panel was correct to find “that the MAC contains a demonstrable error in that the AMS has assessed the left upper extremity by reference to loss of range of motion in the left elbow and left wrist, and for sensory symptoms, when the referral was for the left shoulder only”. While the Appeal Panel there made reference only to the terms of the referral, that should be understood in light of its correct identification of the limits of the claim as made by the plaintiff, that is, to the terms of the assessment made by Dr Bodel.

43. [95]

    In relation to Judicial Ground (3), the employer submitted that the Appeal Panel accepted, correctly, that, in relation to the right upper extremity, the “only referral of the respondent to the AMS was for a CRPS in the right arm. There was no other referral in respect of the assessment of this limb”. The referral, in relation to the left arm, “was for the left shoulder only”. As the Appeal Panel observed, the assessment of the AMS in relation to the left shoulder equated to the same percentage WPI as the assessment by Dr Bodel (though a 1% difference in the calculation of upper extremity impairment).

44. [96]

    The Appeal Panel also acknowledged that the plaintiff’s cervical spine was also the subject of the referral to the AMS, but this was not an issue on appeal.

45. [97]

    As stated above, the central issue of this judicial review is the scope of the ‘medical dispute’ which was referred to the AMS. The recent Court of Appeal decision of Skates provides guidance on this subject. However, for the reasons I will outline below, the factual circumstances of the case before this Court provide a significant point of difference.

46. [98]

    The term ‘medical dispute’ is defined by s 319 of the Workplace Injury Act, reproduced earlier in this Judgment. In Skates, His Honour found that the scope of the dispute between the parties was crystallised by the correspondence attached to the ARD which set out each side’s claim (at [46]).

47. [99]

    From my reading of the evidence, the scope of the dispute can first be ascertained by the report of Dr Bodel. In his report, he assesses the plaintiff’s WPI with respect to injuries sustained to the right upper extremity, left upper extremity, cervical spine and CRPS. In the plaintiff’s ARD, each of these areas of injury were listed as the ‘systems claimed’ in the dispute. I interject here that the terms ‘body parts’ and ‘systems’ are used interchangeably and are problematic as these terms do not appear in the Statute. However, identification of the extent of impairment by reference to individual body parts and body systems is required by the Guidelines and Guides which the statute obliges the AMS to follow: see Skates as per Basten JA at [33].

48. [100]

    In the employer’s two s 78 notices, while the fact that the plaintiff did suffer an injury on 18 October 2015 was not disputed, the extent and nature of each of those injuries was disputed. The Delegate referred the dispute listing the ‘body parts’ of the dispute in correspondence with the plaintiff’s ARD. The terms read: “Cervical Spine, Left Upper Extremity, Right Upper Extremity, Nervous System, Chronic pain”.

49. [101]

    On 14 October 2020, following email correspondence from the employer’s representatives, the plaintiff, through his solicitor, agreed that the ‘body parts’ listed on the referral form should read: “Cervical Spine, Chronic Regional Pain Syndrome (right arm), Left Upper extremity (shoulder).” It is quite clear through a comparison between the original referral and the amended referral that the dispute as to right upper extremity was now confined to a consideration of CRPS and with regards to the left upper extremity the dispute was confined to the left shoulder. In other words, by consent of the parties, the scope of the dispute had been narrowed.

50. [102]

    In assessing the plaintiff with respect to Ch 17 of the guidelines, the AMS made a finding that the plaintiff “did not satisfy the diagnostic criteria for CRPS”. That resolved the aspect of the medical dispute that related to the plaintiff’s right upper extremity. The AMS then provided an impairment rating for loss of range of motion to the right upper extremity, a consideration outside of Ch 17 of the Guidelines and therefore outside of the scope of the dispute as per the consent agreement of the parties: see Ex A(2), 498. With regards to the left upper extremity, the AMS made an assessment by reference to loss of range of motion in the left elbow and left wrist, and for sensory symptoms, when the referral was confined to an assessment of the left shoulder only.

51. [103]

    On 27 January 2021, the plaintiff requested that the Proper Officer amend the terms of the referral to read as the original referral read, listing the injuries as “Cervical Spine, Left upper extremity, right upper extremity, nervous system and chronic pain”. However, by this time the AMS had already conducted their assessment with regards to the amended referral. This request was refused by the Appeal Panel who stated that the original referral no longer existed as it had been amended (Ex A(2), 452). In my view, the Appeal Panel was correct in making this decision as the legislation stipulates that there can be only one assessment of the degree of permanent impairment that results from an injury or collection of injuries arising from a single accident: see s 322A of the Workplace Injury Act.

52. [104]

    In its decision, the Appeal Panel found that in relation to the right upper extremity, the only referral of the plaintiff for assessment by the AMS was for CRPS and, consequently, found that the AMS erred in making an assessment on the basis of loss of range of motion in relation to the right limb: see Appeal Panel decision at [72]. In their decision, the Appeal Panel also found (at [64]) that in relation to the plaintiff’s left upper extremity, that as per the referral, the assessment was to be confined to the shoulder only and the AMS’s assessment went beyond that.

53. [105]

    As can be seen above, the factual circumstances of the present case differentiate from that of Skates. In Skates, a significant factor in Basten JA’s (with whom Leeming JA agreed) decision to remit the matter for redetermination was that, through the specific wording in the referral form completed by the Delegate, the dispute was defined in a way that omitted a key body part of the plaintiff’s claim for assessment: See Skates at [38]. This was also a significant factor in McCallum’s dissenting decision (at [51]), in which Her Honour found that the Registrar was not confined to an assessment of the body part/s referred by the Delegate and could be informed by the ARD and the attached correspondence between the parties.

54. [106]

    In my view this does not apply in a situation, such as in the present case, where the parties have expressly agreed to the terms of the dispute. To say otherwise would be to undermine the ability of parties to mediate and come to an agreement as to the boundaries of the dispute. This is a key characteristic of administrative law that enables the quick and efficient resolution of disputes.

55. [107]

    In this case, the parties expressly agreed to the narrowing of the terms of the dispute. Under s 321 of the Workplace Injury Act, it is the statutory duty of the Delegate to refer the medical dispute to the AMS. The Delegate correctly adopted the exact words of this agreement in the terms of the referral form to the AMS as the parties had agreed to define the terms of the dispute in that way. In this case, the dispute between the parties was ‘crystallised’ by the consent agreement.

56. [108]

    While it is true that one must look beyond the referral form to be informed as to the true nature of the medical dispute, one also cannot ignore the terms set out in the referral form: See Skates at [82] as per McCallum JA. Furthermore, in my view the importance of the referral form is exacerbated where, such as in the present case, the parties had agreed to the terms of the referral.

57. [109]

    As such, it is my view that, in accordance with the decisions of Basten and Leeming JJA in Skates, the Appeal Panel was correct to state the AMS should have been constrained to an assessment within the scope of the referral. Judicial Grounds (1), (2) and (3) fail to establish error on behalf of the Appeal Panel.

Judicial Grounds (4) and (5) – Nature of the dispute

1. [110]

   The plaintiff submitted that if the referral form was to be given the standing that was given to it by the Appeal Panel, then the form could only be read as involving an agreement between the parties that the plaintiff suffered from CRPS in the right upper extremity. When the AMS examined the plaintiff, he did observe that at the time of his examination the plaintiff did not satisfy the diagnostic criteria in Table 17.1 of the Guidelines. He accepted, however, that the plaintiff had developed symptoms suggestive of CRPS following the surgery to decompress the bilateral carpal tunnel syndrome. As previously outlined, he then went on to assess impairment on the basis of loss of range of movement with an additional allowance for the tremor.

2. [111]

   In their decision, the Appeal Panel found (at [68]) that the only referral was for a CRPS in the right arm. It did not go on to consider what that referral actually meant. It merely referred to Part 17 of the Guidelines. It then held without further reasoning that because the plaintiff did not satisfy the diagnostic criteria for CRPS, the AMS was not at liberty to go beyond the terms of his referral and determine permanent impairment by way of analogy. The Appeal Panel does not explain why or how the referral could be interpreted in the way that it did. It also erred when it said that the AMS had assessed the right arm by way of analogy. The assessment of loss of range of movement was not an analogy and the AMS did not conduct all of the assessment by analogy. In any event this was not one of the grounds of appeal and the Appeal Panel erred when it considered a matter that was not before it.

3. [112]

   The bulk of the assessment in the right upper extremity was for loss of range of movement. It was only the tremor that was assessed by way of analogy.

4. [113]

   The employer did not dispute that this was an appropriate way to assess the tremor. The employer’s sole position was that the AMS could not assess the right arm at all once he had found that the criteria in Table 17.1 of Chapter 17 of the Guides did not exist on the day of the assessment. No explanation was ever given as to why this would be so other than a view that the Delegate had the power by means of the referral form to restrict the medical dispute referred to the AMS in a way that meant something other than the medical dispute between the parties which was referred for assessment. The delegate did not have the power to say that an assessment could only be carried out applying Chapter 17. By finding that the AMS was restricted in that way, the Appeal Panel made an error of law.

5. [114]

   In relation to Judicial Ground (5), the plaintiff submitted that the ARD had claimed injuries to the entirety of both upper extremities. Those injuries are not disputed. The medical dispute was the degree of impairment that resulted from those injuries. It was only that dispute which could be referred to the AMS. The Delegate’s only power was to refer that dispute for assessment. The Appeal Panel proceeded on the basis that it was only specific matters referred to in that part of the referral form labelled ‘body parts referred’ that could be considered by the AMS. It did this without any consideration of what constituted the dispute or what the referral powers of the Delegate were.

6. [115]

   It also failed to conduct any analysis of what was actually meant by the referral. Rather, without reference to any of the other material, the Appeal Panel held that the AMS could only make an assessment of the degree of impairment resulting from the accepted injury to the right upper extremity if he found signs and symptoms sufficient to make a diagnosis of CRPS applying Table 17-1. No reasons were given as to why this is so. Similarly, the Appeal Panel held that the AMS could only assess the left shoulder despite the fact that the accepted injury was to the entirety of the left upper extremity. Again, no reason was given as to why this is so. As has been explained, the task for the AMS was to assess the impairment resulting from the accepted injuries. This is precisely what the AMS did. The Appeal Panel erred in law when it held otherwise and particularly when it held that the AMS was constrained to making an assessment in respect of only the left shoulder and CRPS.

7. [116]

   The employer submitted that it had not at any stage accepted Dr Bodel’s diagnosis of CRPS. In the s 78 notice dated 6 April 2020, GIO referred to a medical report of Dr Rimmer that concluded that the plaintiff had 0% WPI as a result of the October 2015 injury.

8. [117]

   In the s 78 notice dated 17 August 2020, GIO also referred to a subsequent report of Dr Mellick. The consequence of the s 78 notices was that Dr Bodel’s diagnosis of CRPS was very much in dispute as between the parties.

9. [118]

   The parties corresponded about the terms of the referral and agreed that they should reflect the question of whether or not the findings made by Dr Bodel were correct. The email from the employer, by its solicitor, to the plaintiff’s representatives on 13 October 2020 expressly stated, after setting out terms of a proposed referral (with which the plaintiff subsequently agreed): “Dr Bodel assessed the cervical spine, CRPS (Ch 17 SIRA Guides) and the left shoulder. The proper terms of referral for these injuries are noted above.”

10. [119]

    As such, the question of whether that diagnosis was correct was part of the medical dispute referred to the AMS, whether on the terms of the referral or otherwise.

11. [120]

    As the Appeal Panel noted, the AMS had concluded that the plaintiff did not meet the diagnostic criteria for CRPS. This is consistent with the view expressed at all stages by employer and its representatives.

12. [121]

    In relation to Judicial Ground (5), the employer submitted that the terms of the referral were agreed between the parties, and accurately reflected the terms of the dispute: broadly, whether or not the injuries diagnosed and assessed by Dr Bodel existed and, if so, what was the appropriate assessment of the plaintiff’s degree of permanent impairment. In those circumstances, the Appeal Panel was correct in determining “[t]he AMS is bound by the terms of the referral of the matter to him” (at [72]), particularly when understood in the context, set out above, of the medical dispute as crystallised between the parties, which was accurately reflected in the referral.

13. [122]

    In these Grounds, the plaintiff submits that the Appeal Panel fell into error when it did not find that the AMS was required to accept that the plaintiff had the injuries deposed in the ARD and simply assess the degree of impairment resulting from these injuries.

14. [123]

    For the following reasons, I do not accept these submissions. The starting point is McCallum JA’s decision in Skates where at [82] Her Honour states “I do not mean to suggest that that an approved medical specialist is free to ignore the terms of the referral. However, the medical dispute referred must be the medical dispute the parties have sought to have resolved.” By extension, this can be taken to mean that while the AMS may be informed as to the nature of the dispute from the ARD and other correspondence between the parties, they cannot ignore the referral form. As stated above, in my view, the importance of the referral form is amplified when the parties have expressly agreed to its construction as is the case here.

15. [124]

    When the plaintiff’s ARD and the employer’s response to it are considered, the s 78 notices lodged by the employer on 6 April and 17 August 2020 state that while it is not disputed that the plaintiff suffered injuries on 13 October 2015 the nature and extent of these injuries is in dispute (Ex A(1), 33, 61). In particular, the plaintiff’s diagnosis of CRPS is disputed by the employer.

16. [125]

    The amended referral form sets out s 319(c) of the Workplace Injury Act as one of the ‘matters’ of the medical dispute to be assessment by the AMS. Section s 319(c) involves a consideration of the degree of permanent impairment of the worker as a result of the injury. It was therefore the task of the AMS to assess the permanent impairment resulting from the plaintiff’s injuries in accordance with the corresponding chapter, page or paragraph number of the Guidelines and AMA5 Guides that correspond with the ‘body parts/systems’ set out in referral form as agreed by the parties: See Skates at [33] as per Basten JA.

17. [126]

    In relation to CRPS, the task of the AMS was to assess the plaintiff in accordance with Ch 17 of the SIRA guidelines, as specified in the agreed referral form which stated “Chronic Regional pain syndrome (right arm)” (Ex A(2), 414). The AMS made an assessment that the plaintiff did not satisfy the diagnostic criteria for CRPS (Ex A(2), 420). Put differently, the AMS assessed the plaintiff to have 0% WPI in relation to CRPS in the right upper extremity. The AMS was not required to make any further assessments and in doing so, fell into error. In my view the Appeal Panel was correct in making this finding.

18. [127]

    In relation to the left upper extremity, the task of the AMS was to assess permanent impairment resulting from the plaintiff’s injury in an assessment that was to be confined to a consideration of the shoulder region. This is articulated in the referral form to which the parties agreed which states “Left upper extremity (shoulder)” (Ex A(2), 414). The AMS’ assessment included the plaintiff’s right wrist and elbow, areas outside of the agreed scope of the dispute (Ex A(1) 422). The Appeal Panel correctly found that in doing so, the AMS fell into error, and concluded that the correct WPI for the left upper extremity was 2%.

19. [128]

    In regards to Judicial Ground (5), I do not accept the plaintiff’s submission that the Appeal Panel erred in law and made a jurisdictional error when it held that the AMS was confined to assessing the body parts mentioned in the Referral and not the degree of impairment resulting from the injuries as agreed between the parties being the neck, right and left shoulder and right and left arms, wrists and hands as set out in the ARD and not disputed in the Reply.

20. [129]

    For these reasons, it is my view that Judicial Grounds (4) and (5) fail to establish error on behalf of the Appeal Panel.

Result

1. [130]

   The result is that the application for judicial review fails. The summons filed 21 May 2021 is dismissed.

Costs

1. [131]

   Costs are discretionary. Costs follow the event. The plaintiff is to pay the first defendant’s costs on an ordinary basis.