Nguyen v Pasarela Pty Ltd

By summons filed on 30 March 2020, Van Nguyen (the claimant) seeks relief under s 69 of the Supreme Court Act 1970 (NSW) in respect of a decision made by Dr Greggory Burrow, the third defendant, an approved medical specialist (the AMS), on 4 November 2019 and a decision made by the fourth defendant (the Appeal Panel) on 13 February 2020. Both decisions relate to the assessment of the claimant’s % whole person impairment (WPI) arising from injuries found to have been sustained in the course of the claimant’s employment with Pasarela Pty Ltd, the first defendant (the employer).

The plaintiff subsequently filed an amended summons on 23 April 2020.

The employer is the only active defendant and is represented by its insurer, Employers Mutual NSW Limited (the insurer). The second defendant, the Workers Compensation Commission (the Commission), and the third and fourth defendants have each filed submitting appearances.

All references to legislation in these reasons are, unless otherwise stated, to be read as references to the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act). The Workers Compensation Act 1987 (NSW) will be referred to as the 1987 Act.

I note for completeness that the decision of the Appeal Panel is the operative decision as the decision of the AMS was confirmed on appeal: see the discussion in Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [79]-[85] (Sackville AJA, Leeming JA and Adamson J agreeing).

The amended summons contained two main challenges to the decisions of the AMS and the Appeal Panel. First, the claimant contended that the AMS had failed to comply with cl 2.20 of the relevant guidelines as he had failed to explain his rationale for using the deduction method. He contended that the Appeal Panel was in error in failing to consider the matter afresh. Second, the claimant contended that the AMS had failed to engage with his case based on the report of Dr Peter Endrey-Walder. Mr Baran, who appeared on behalf of the plaintiff, abandoned the second challenge on the morning of the hearing.

Rule 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) requires proceedings to be commenced within 3 months of the date of the decision. It was common ground that the summons was filed within time in respect of the decision of the Appeal Panel. However, the claimant requires an extension of time to challenge the decision of the AMS, since it was made on 4 November 2019 and the summons was filed on 30 March 2020. The employer objects to an extension of time being granted under UCPR r 59.10(2).

Mr Combe, who appeared with Dr Townsend for the employer, submitted that time ought not be extended because there was no basis for relief to be granted in respect of the decision of the AMS since the claimant’s rights were not affected by the decision. He contended that there was no dispute about whether the AMS had applied the correct test and that the only issue was whether he had set out his rationale sufficiently to comply with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines). He argued that, in these circumstances, if the claimant succeeded in setting aside the Appeal Panel’s decision, the matter could be remitted to the Appeal Panel for its further determination and that no relief ought be granted in respect of the decision of the AMS.

While there is much to be said for the arguments put on behalf of the employer, these are matters which arise for consideration in this Court’s substantive determination and can be dealt with in that context. I am satisfied that it is appropriate to extend time to file the summons to challenge the decision of the AMS and will order accordingly.

Before turning to the relief sought in the amended summons, it is convenient to summarise the background to the claim for relief in so far as it is relevant to the grounds raised by the claimant.

In about 2013 the claimant was engaged by the employer as a picker and packer. On 7 October 2015 he suffered injuries in the course of his employment with the employer. The claimant subsequently made a claim against the employer for injuries to his right shoulder, lower back and left wrist. The employer referred the claim to the insurer.

On 19 May 2017 the insurer issued a notice under s 74 of the Act denying liability with respect to alleged injuries to the claimant’s right shoulder and lower back. The employer accepted that the claimant had suffered an injury to his left wrist in the incident on 7 October 2015.

On 15 June 2017 the claimant’s % WPI was assessed by Dr Uthum Dias at the request of his solicitors. Dr Dias assessed the claimant’s % WPI at 35%. This comprised 19% for his right shoulder (which amounts to 11% WPI); 4% for his right wrist (which amounts to 4% WPI), 15% for his left shoulder (which amounts to 9% WPI) and 17% for his left wrist (which amounts to 10% WPI).

Using the Combined Values chart, the claimant’s % right upper limb impairment was 25% (which amounts to 15% WPI) and his left upper extremity impairment was 29% (which amounts to 17% WPI). According to the chart, the claimant’s total % WPI was 35%. This assessment formed the basis of his claim for compensation pursuant to s 66 of the 1987 Act.

On 7 December 2017, Dr Roger Pillemer, at the request of the employer’s solicitors, assessed the claimant’s % WPI at 0%.

On 14 February 2018 the claimant commenced proceedings 765/2018 in the Commission (the 2018 proceedings) by filing an application to resolve a dispute in the Commission. He claimed to have injured his right upper extremity (shoulder and wrist) and his left upper extremity (shoulder and wrist) as well as his lumbar spine. He claimed 35% WPI on the basis of the report of Dr Dias referred to above. On 7 March 2018 the employer filed its reply. It admitted that the claimant had sustained an injury to his left wrist on 7 October 2015 but denied that the claimant suffered an injury to his right wrist, left shoulder, right shoulder or lumbar spine.

The 2018 proceedings came before Arbitrator John Wynyard on 4 May 2018. On 16 May 2018 the Arbitrator gave ex tempore reasons which included the finding that he “[could] not be satisfied that the injury to the right wrist, the shoulders and the lumbar injury are connected to the injury and, in that respect, there will be an award for the respondent [the employer]”. On 21 May 2018 the Commission issued a certificate of determination to that effect pursuant to s 294 of the Act. The claimant did not appeal against the order which was made in the 2018 proceedings.

On 29 October 2018, at the request of the claimant’s solicitors, Dr Endrey-Walder assessed the claimant’s % WPI at 25%, which comprised 19% upper extremity impairment of the left wrist (which was equivalent to 11% WPI) and 27% upper extremity impairment of the right shoulder (which was equivalent to 16% WPI). The combined values of these figures resulted in a % WPI of 25%.

On 5 November 2018 the claimant made a claim on the insurer for 25% WPI pursuant to s 66 of the 1987 Act based on the report of Dr Endrey-Walder. On 13 December 2018 the employer issued a notice under s 74 of the Act in which it accepted that the claimant suffered an injury to his left wrist on 7 October 2015 but denied the claim in respect of injury to his right shoulder. It relied on the Commission’s certificate issued as a consequence of the Arbitrator’s decision which determined the 2018 proceedings which it contended operated to estop the claimant from claiming in respect of injuries other than the injury to his left wrist, which had been accepted by the insurer.

On 18 April 2019 the insurer issued a notice as required by s 78 in which it disputed the claimant’s claim and alleged that the claimant was estopped from any entitlement to compensation in respect of any alleged injury to the lumbar spine having regard to the Commission’s decision in the 2018 proceedings which it alleged was final and binding in accordance with s 350 of the Act.

On 8 May 2019 the claimant commenced further proceedings in the Commission, 2217/2019 (the 2019 proceedings), by filing an application to resolve a dispute. He claimed weekly payments and a lump sum of $63,640, being the amount referable to 25% WPI.

On 31 May 2019, the insurer filed a reply dated 29 May 2019 in the 2019 proceedings in which it referred to its s 74 notice issued on 13 December 2018 and its s 78 notice issued on 18 April 2019.

The 2019 proceedings were heard by Arbitrator Cameron Burge. On 11 September 2019, as a consequence of Arbitrator Burge’s decision, the Commission issued a certificate pursuant to s 294 of the Act in the following terms:

On 23 September 2019 the Arbitrator’s delegate issued a referral for assessment of the claimant’s % WPI to the AMS. The referral indicated that the parties had agreed that Dr Burrow would be appointed the AMS. The body parts referred were the claimant’s left upper extremity (wrist) and right upper extremity (shoulder), which corresponded with the Commission’s certificate dated 11 September 2019. The medical disputes referred for assessment were:

The amended referral dated 21 October 2019 did not change the medical disputes referred for assessment or the body parts referred. The amendment related to the claimant’s application to admit further documents. On 22 October 2019 the AMS examined the claimant as part of the assessment.

On 4 November 2019 the Commission, following the assessment performed by the AMS, issued a medical assessment certificate (the MAC). In his reasons for assessment which formed part of the MAC, the AMS said:

On 2 December 2019 the claimant filed an application to appeal against the AMS’s decision. He nominated the ground of appeal in s 327(3)(c), namely, that the assessment was made on the basis of incorrect criteria. He also relied on s 327(3)(d), namely that there was demonstrable error.

On 19 December 2019 the insurer filed a notice of opposition to the claimant’s appeal.

On 10 January 2020 the Commission issued a decision pursuant to s 327(4) of the Act. It found that a ground of appeal as specified in s 327(3)(d) (demonstrable error) had been made out and referred the appeal to the Appeal Panel. As it was common ground (between the parties, the AMS and the Appeal Panel) that cl 2.20 of the Guidelines applied, the ground raised under s 327(3)(c) need not be further addressed.

On 13 February 2020 the Appeal Panel, which comprised Arbitrator Marshal Douglas, and two approved medical specialists, Dr Drew Dixon and Dr Tomasino Mastroianni, decided that the MAC ought be confirmed. Its reasons included the following:

On 31 March 2020 the Commission issued a certificate of determination pursuant to s 294 of the Act in which it certified:

Section 4 of the 1987 Act relevantly defines “injury” as a “personal injury arising out of or in the course of employment”. Section 4 of the Act defines injury in the same terms.

Section 66 of the 1987 Act relevantly provides:

Section 74 (now repealed) of the Act relevantly provided that if an insurer disputes liability for a claim it must give notice of, and reasons for, the dispute. Section 78 of the Act requires an insurer to give notice of any decision it makes to dispute a claim.

Section 294 of the Act relevantly provides:

Section 319 relevantly provides:

Section 322(1) of the Act provides that the assessment of the degree of permanent impairment of an injured worker for the purposes of the 1987 Act is to be made in accordance with the Guidelines issued for that purpose.

Section 325 relevantly provides:

Section 327 relevantly provides:

Section 328 of the Act relevantly provides:

The effect of s 328(2), which was amended in 2010, was considered by Gleeson JA (Macfarlan JA and Barrett AJA agreeing) in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [22] as follows:

Section 331 of the Act relevantly provides that medical assessments and appeals under Part 7 of the Act (entitled “Medical assessments”) are subject to the Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments.

Section 350 of the Act provides:

Section 376 of the Act confers power on the State Insurance Regulatory Authority (SIRA) to issue guidelines, including with respect to the assessment of the degree of permanent impairment of an injured worker as a result of an injury. These guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time: s 376(4).

It was common ground the relevant Guidelines are the fourth edition published on 1 April 2016 and that they were made pursuant to s 376 of the Act.

Clause 1.1 of the Guidelines states that the Guidelines adopt the 5th edition of the American Medical Association’s Guides to the evaluation of permanent impairment (AMA5) “in most cases”. It also provides that where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail. The parties did not identify any relevant “deviation” between the Guidelines and the AMA5 for present purposes.

Clause 1.6 of the Guidelines relevantly provides:

Clause 1.36 makes provision for inconsistent presentation. It sets out an extract from AMA5 which includes the following: “The assessor must use their entire range of clinical skill and judgment when assessing whether or not the test results are plausible and consistent with the impairment being evaluated.”

Chapter 2 of the Guidelines provides for assessment of impairment in the upper extremity. It refers to the relevant chapters of AMA5 and reiterates that the Guidelines are to take precedence over AMA5. Clause 2.5 provides for the approach to assessment of the upper extremity and hand and refers to circumstances where there is an inconsistency in range of motion.

Clause 2.20 of the Guidelines provides:

Section 16.4c of AMA5 says:

Pursuant to s 69 of the Supreme Court Act, this Court has jurisdiction to grant relief in the nature of the prerogative writs with respect to errors of law on the face of the record or jurisdictional errors. Section 69(4) provides that the reasons of a court or tribunal are to form part of the record. It is not necessary to determine whether the AMS or the Appeal Panel constitutes a tribunal as s 325 of the Act provides that the certificate is to include the reasons. This is sufficient to make the reasons in the certificate part of the record for the purposes of s 69: Pham v NRMA Insurance Ltd [2014] NSWCA 22 at [27] (Leeming JA, Tobias AJA agreeing).

The grounds of relief which the claimant continues to press are set out in the amended summons (with the numbering changed for ease of reference) as follows:

In substance, the claimant alleged, in his amended summons, that the AMS had failed to correctly apply cl 2.20 of the Guidelines. He contended that the reasons of the AMS indicated that he applied cl 2.20: first, “in accordance with instructions from SIRA regarding unexplained loss of contralateral range of motion in the opposite extremity” and, second, “inconsistent presentation as noted above”. It was argued on behalf of the claimant that the AMS failed to set out his rationale for his decision to use the “uninvolved joint” as a baseline to be subtracted from the involved (injured) joint, as required by cl 2.20, which incorporated AMA5, section 16.4c. Mr Baran described the language of the AMS as “parsimonious” and contended that it was inadequate to explain his rationale.

Further, Mr Baran contended that the Appeal Panel found that the AMS’s explanation was insufficient and, accordingly, the Appeal Panel had identified error. He submitted that, in these circumstances, the Appeal Panel was obliged, and failed, to form its own medical opinion on the % WPI in accordance with the principles articulated in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [100] (McColl JA, Mason P agreeing). He contended the Appeal Panel ought be taken to have found error (on the basis of the alleged inadequacy of reasons by the AMS to explain the rationale for using cl 2.20) and that, in these circumstances, it had to determine the matter for itself afresh. Mr Baran argued that this failure had the consequence that, at the very least, the decision of the Appeal Panel ought be set aside for jurisdictional error and the matter remitted to it for determination in accordance with law.

Mr Baran also sought to argue that the AMS and the Appeal Panel ought to have had regard to the provisions of the Guidelines identified above which address inconsistent presentation and range of motion. I do not regard this argument as falling within the relief claimed in the amended summons. It was not a matter raised by the claimant before the AMS or the Appeal Panel. Further, it is inconsistent with the acceptance by the parties, as noted by the Appeal Panel that “neither party challenged the method by which the AMS assessed that appellant’s impairment, namely loss of range of movement of the left wrist and right shoulder.”

The referral to the AMS for the purposes of the assessment of permanent impairment was limited to the left wrist and right shoulder which was consistent with the determination made by the Commission following the decision by Arbitrator Wynyard. The AMS’s finding that “there have been no injuries to the contralateral wrist or shoulder but there is an abnormal examination” was one that he was bound to make because Arbitrator Wynyard had found that any abnormality in the right wrist or left shoulder (being contralateral joints to the injured ones) was not as a result of an injury within the meaning of s 4 of the 1987 Act.

Clause 2.20 of the Guidelines required the AMS, and in due course, the Appeal Panel, to compare measurements of the relevant joints in both extremities. It appears to have been common ground that the relevant joints were the shoulder and wrist joints. The “involved” joints were the left wrist and the right shoulder. The “non-involved” or “contralateral” joints were the right wrist and the left shoulder.

AMA5, section 16.4c addressed two situations: first, the usual or orthodox situation where the person being assessed had accepted average active range(s) of motion for each non-involved joint as reported in the impairment tables and pie charts; and, second, where the contralateral “normal” joint has a less than average mobility where the deduction method would be appropriate. As cl 2.20 of the Guidelines indicates, it is important in either case to compare measurements of involved and contralateral joints. Clause 2.20 requires the rationale for the decision as to how to measure the relative impairment (by reference to the contralateral) to be explained and references the relevant section of AMA5.

The AMS’s rationale for using the deduction method appears from the following part of his reasons:

It is well-established that the reasons of a decision-maker such as the AMS or the Appeal Panel are to be given a fair and beneficial reading: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6. Applying this principle, it is, in my view, clear from the AMS’s reasons that his rationale for using the deduction method set out in cl 2.20 was:

The rationale for using the deduction method has been adequately explained. No “gap-filling” is required to discern the pathway of reasoning since the reasons are sufficient to show how and why the AMS applied cl 2.20 of the Guidelines as part of his assessment of the claimant’s % WPI.

Although the AMS did not, when addressing the impairment to the left wrist, repeat the reference to “instructions from SIRA”, which I understand to be a reference to cl 2.20 of the Guidelines, he plainly applied the same reasoning to the assessment of impairment of the right shoulder. I do not discern any non-compliance with cl 2.20 of the Guidelines in the decision of the AMS, whose reasons were sufficient to indicate “the actual process of reasoning” to expose how he had come to the assessment and, in particular, why he had used the deduction method rather than calculating impairment by reference to average figures: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) at [65] (French CJ, Crennan, Bell, Gageler and Keane JJ). The AMS was required to “form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise”: Wingfoot at [47]. The alleged error has not been made out.

Since the alleged error in the Appeal Panel’s decision was that it failed to pick up and correct the error of the AMS, it follows from what I have said above, that the alleged error in the decision of the Appeal Panel has not been made out.

I reject Mr Baran’s submission that it was not open to the Appeal Panel to confirm the certificate by the AMS. The Appeal Panel’s powers included such a power: s 328(5). It is plain from the Appeal Panel’s reasons that it considered the matter for itself and endorsed the approach taken by the AMS because it considered it to be correct. It was not required to do more than this.

It is necessary, for completeness, to address the apparent acceptance in the Appeal Panel’s reasons in [35] that the AMS did not explain the rationale for using the deduction method “beyond noting that the Guidelines required that it be done”. Despite this somewhat definite statement in [35], the Appeal Panel purported to rephrase its conclusion in [36] (as indicated by the prefatory words, “[s]aying that slightly differently”), by finding that the AMS had “explained [his rationale] in a very narrow manner”. Further, the Appeal Panel’s statement that “[t]he fact that the AMS did not more fully explain the rationale for doing that” indicates that it was satisfied that some explanation had been provided.

The Appeal Panel appears to have considered that the AMS used the deduction method because it was “the best method” since the uninjured contralateral joint represented the “baseline” of what the worker’s range of motion in his injured joint would have been before the injury. I am not persuaded that there is any inadequacy in the Appeal Panel’s reason for so finding. Its view, as expressed in its reasons, was the product of its own expertise. Indeed, given that the contralateral joint in each case exhibited a restricted range of motion, the average figures in the pie charts and tables were plainly inapposite. This left, as the only alternative method expressly contemplated by cl 2.20 and the relevant portion of AMA5 for assessing impairment in the joint, the comparison between the injured and non-injured joints. The obvious applicability and suitability of the deduction method meant that the reasons of the AMS, and in turn, the Appeal Panel needed only to be brief to be sufficient. Thus, it did not follow from the Appeal Panel’s conclusion that the AMS did not explain the rationale for using the deduction “beyond noting that the Guidelines required that it be done” that more was required since the AMS’s reasons were sufficient to explain why cl 2.20 applied and why the deduction method was appropriate.

It was common ground that costs ought follow the event in accordance with the general rule: UCPR, r 42.1.

For the reasons given above, I make the following orders: