Hutchison v Wyong Race Club Limited and Ors

1. [1]

   JOHNSON J: By Amended Summons filed on 2 June 2020, the Plaintiff, Bruce James Hutchison, seeks relief by way of judicial review under s.69 Supreme Court Act 1970 with respect to decisions made under the Workplace Injury Management and Workers Compensation Act 1998 (“WIM Act”).

2. [2]

   The Defendants in the proceedings are Wyong Race Club Limited (First Defendant), the Appeal Panel constituted under s.328 WIM Act (Second Defendant) and the Registrar of the Workers Compensation Commission (Third Defendant).

3. [3]

   The First Defendant appeared to resist the Plaintiff’s claim for relief. In accordance with usual practice, submitting appearances were filed on behalf of the Second and Third Defendants.

The Amended Summons

1. [4]

   In the Amended Summons, the Plaintiff seeks the following relief:

Hearing of the Amended Summons

1. [5]

   The Amended Summons proceeded to hearing before me on 29 October 2020. Mr Hart of counsel appeared for the Plaintiff and Mr Jackson of counsel appeared for the First Defendant.

2. [6]

   A court book containing relevant documents was tendered by consent (Exhibit A). Copies of the Workers Compensation Commission Approved Medical Specialist Code of Conduct and the Registrar’s Guideline (Appeal Against Medical Assessment) were also tendered (Exhibit B).

3. [7]

   Written submissions had been provided by counsel and counsel spoke to those written submissions at the hearing.

Factual Background

1. [8]

   On 8 June 2011, the Plaintiff (then aged 38 years) was engaged in duties as a groundsman and barrier attendant at the First Defendant’s track at Wyong. He had worked for the First Defendant in that capacity since 2009. The Plaintiff was injured in a workplace accident on 8 June 2011 when he was crushed against a gate by a restive horse as the horse was moving into the barriers.

2. [9]

   The First Defendant admitted liability with respect to this incident for the purpose of the Workers Compensation Act 1987.

3. [10]

   In due course, the Plaintiff made a claim for benefits based on whole person impairment (“WPI”) and the matter was referred by the Third Defendant to an Approved Medical Specialist under s.321 WIM Act.

4. [11]

   On 16 December 2019, the Plaintiff was examined by Dr Philip Truskett, a specialist in general surgery and trauma, in his capacity as an Approved Medical Specialist under the WIM Act.

5. [12]

   On 8 January 2020, Dr Truskett issued a Medical Assessment Certificate with respect to the Plaintiff pursuant to s.325 WIM Act. In that certificate, Dr Truskett reported 0% WPI with respect to each of the cervical spine, lumbar spine, right shoulder and digestive tract with a total 0% WPI.

6. [13]

   The Medical Assessment Certificate had statutory force under ss.325 and 326 WIM Act. It is conclusively presumed to be correct in proceedings before a court or the Workers Compensation Commission concerning, amongst other things, the degree of permanent impairment of the Plaintiff as a result of the injury sustained in the workplace incident on 8 June 2011: s.326(1)(a) WIM Act.

7. [14]

   On 7 February 2020, the Plaintiff submitted to the Third Defendant an application for leave to appeal to an Appeal Panel with respect to the assessment contained in the Medical Assessment Certificate of 8 January 2020.

8. [15]

   On 17 March 2020, the Third Defendant allowed the Plaintiff’s application for leave to appeal to an Appeal Panel under s.327 WIM Act.

9. [16]

   In accordance with s.328(1) WIM Act, the Plaintiff’s appeal was heard by an Appeal Panel constituted by two Approved Medical Specialists (Dr Richard Crane and Dr Gregory McGroder) and one Arbitrator (Ms Deborah Moore) chosen by the Third Defendant. The appeal was by way of review of the original medical assessment limited to the grounds of appeal on which the appeal was made. Having undertaken the appeal, an Appeal Panel may confirm the certificate of assessment or may revoke the certificate and issue a new certificate in accordance with s.328(5) WIM Act. It is a matter for the Appeal Panel to determine whether an injured worker is further examined by one or more members of the Appeal Panel which, of course, comprises two Approved Medical Specialists.

10. [17]

    In a decision dated 15 April 2020, the Appeal Panel determined that the Medical Assessment Certificate dated 8 January 2020 should be confirmed.

11. [18]

    On 13 May 2020, the Plaintiff filed a Summons in this Court seeking judicial review with respect to the Medical Assessment Certificate dated 8 January 2020 and the decision of the Appeal Panel dated 15 April 2020.

12. [19]

    As noted earlier, the hearing in this Court proceeded by way of an Amended Summons filed on 2 June 2020.

Basis of the Plaintiff’s Claim for Relief

1. [20]

   The Amended Summons contains a number of overlapping grounds which seek to challenge the two decisions made by the Approved Medical Specialist, Dr Truskett, and then the Appeal Panel.

2. [21]

   The essence of the claim in this Court is that the Plaintiff was denied procedural fairness by the Approved Medical Specialist who issued the Medical Assessment Certificate by reference to findings made concerning the Plaintiff’s right shoulder and also by the Appeal Panel in the determination of the Plaintiff’s appeal.

3. [22]

   It is submitted, as well, that the Approved Medical Specialist, and also the Appeal Panel, made findings which were unreasonable in the legal sense concerning the Plaintiff’s right shoulder so that those findings should be set aside with an order being made for the Plaintiff to be considered by a further Appeal Panel.

4. [23]

   It is appropriate to set out parts of the Medical Assessment Certificate dated 8 January 2020 and the decision of the Appeal Panel dated 15 April 2020 before moving to consider the submissions made and determining the Plaintiff’s claim for relief.

Medical Assessment Certificate Dated 8 January 2020

1. [24]

   Dr Truskett identified the matters referred for assessment under s.321 WIM Act as being the Plaintiff’s cervical spine, lumbar spine, right upper extremity (right shoulder) and digestive system with the assessment involving a WPI method of assessment.

2. [25]

   A range of documents, reports and images were furnished to Dr Truskett for the purpose of his assessment.

3. [26]

   The Plaintiff was examined by Dr Truskett on 16 December 2019. Dr Truskett noted that, at the time of the injury on 8 June 2011, the Plaintiff was employed by the First Defendant as a groundsman and barrier attendant, having worked for the First Defendant in that capacity from 2009 to 2012.

4. [27]

   Under the heading “History Relating to the Injury”, Dr Truskett recounted a history of the incident, the onset of symptoms and of subsequent related events including treatment (Exhibit A, pages 51-52). In the course of that history, Dr Truskett said with respect to the Plaintiff’s right shoulder (Exhibit A, pages 51-52):

5. [28]

   Dr Truskett then summarised the Plaintiff’s present treatment and present symptoms. With respect to the Plaintiff’s right shoulder, Dr Truskett said (Exhibit A, page 53):

6. [29]

   A little later, Dr Truskett said (Exhibit A, page 53):

7. [30]

   Dr Truskett recounted the following additional matters stated by the Plaintiff (Exhibit A, page 54):

8. [31]

   Dr Truskett then recorded his findings on physical examination of the Plaintiff. He commenced that part of the certificate in the following way (Exhibit A, pages 54-55):

9. [32]

   Dr Truskett recorded that the Plaintiff was 175 cm tall and weighed 130 kg. This provided him with a body mass index of 42.4 kg/square metre and placed him in the obesity Class 3 of 3. Dr Truskett noted “all movements during examination were extremely laborious and appeared to be very uncomfortable”.

10. [33]

    Dr Truskett described the examination of the Plaintiff’s right upper limb in the following way (Exhibit A, page 55):

11. [34]

    The certificate continued with a description of other aspects of the physical examination of the Plaintiff.

12. [35]

    The Medical Assessment Certificate then stated with respect to range of movement (Exhibit A, page 56):

13. [36]

    Dr Truskett then outlined details and dates of special investigations including CT scans, MRIs, ultrasounds and x-rays performed in 2011. Thereafter, the Medical Assessment Certificate included the following summary (Exhibit A, pages 56-57):

14. [37]

    Dr Truskett then moved to an evaluation of permanent impairment, providing answers to specific questions posed in that respect. In the course of that evaluation, Dr Truskett identified a question to which he responded in the following way (Exhibit A, page 58):

15. [38]

    In identifying the facts on which the assessment was based, Dr Truskett noted that the WPI assessment had been undertaken by reference to “physical examination and history taken today, in combination with documentation reviewed and imaging provided”.

16. [39]

    The Medical Assessment Certificate then set out the reasons for the assessment which included Dr Truskett’s opinion of a total WPI of 0%. In explaining this opinion, Dr Truskett stated, by reference to the Plaintiff’s right shoulder (Exhibit A, page 59):

17. [40]

    Dr Truskett then referred to other medical opinions and findings and set out his reasons concerning those opinions and findings (Exhibit A, pages 59-60):

18. [41]

    Dr Truskett noted that there was no deduction or any proportion of the impairment that was due to previous injury or pre-existing condition of abnormality (Exhibit A, page 60).

19. [42]

    The Medical Assessment Certificate issued for the purpose of s.325 WIM Act stated the following (Exhibit A, page 62):

Decision of Appeal Panel Dated 15 April 2020

1. [43]

   As noted earlier, the Third Defendant referred the Plaintiff’s appeal to an Appeal Panel which proceeded by way of review under s.328 WIM Act. The reasons of the Appeal Panel dated 15 April 2020 commence with the following background (Exhibit A, page 71):

2. [44]

   The Appeal Panel undertook a preliminary review which was described in the following way (Exhibit A, page 71):

3. [45]

   It was submitted for the Plaintiff in this Court that the Appeal Panel had erred in determining that it was not necessary for the Plaintiff to undergo a further medical examination for the purpose of the determination of the appeal. It was noted that the Plaintiff had ticked a box on the appeal form indicating that a further medical examination was sought. Although it was accepted by counsel for the Plaintiff that his client did not have an automatic right to further examination as part of the appeal, it was submitted that, in the circumstances of this case, a further medical examination of the Plaintiff was essential to allow procedural fairness to him where he could be asked questions by the examining practitioner concerning his right shoulder and any other incident or factor that may have contributed to his right shoulder problem.

4. [46]

   The Appeal Panel stated that it had before it all the documents which had been before Dr Truskett and had taken them into account in making its determination. Also taken into account were written submissions made by the legal representatives for the Plaintiff and First Defendant. The Appeal Panel summarised the issue raised in the appeal in the following way (Exhibit A, page 72):

5. [47]

   Under a heading “Findings and Reasons”, the Appeal Panel set out the procedures to be followed under s.328 WIM Act and the principles to be applied in accordance with the decision of the Court of Appeal in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284. The Appeal Panel stated (Exhibit A, page 72):

6. [48]

   The Appeal Panel then set out extracts from the Medical Assessment Certificate containing the history, findings on physical examination and other matters recounted by Dr Truskett including his opinions (Exhibit A, pages 72-76). These extracts included parts of the Medical Assessment Certificate reproduced earlier in this judgment (at [27]-[40]).

7. [49]

   The Appeal Panel then recounted the Plaintiff’s grounds of appeal (Exhibit A, pages 76-77):

8. [50]

   The Appeal Panel then considered the grounds of appeal (Exhibit A, pages 77-78):

9. [51]

   The Appeal Panel then considered matters relating to the cervical and lumbar spines and rejected the Plaintiff’s submissions on those matters which are not the subject of challenge in the present proceedings.

10. [52]

    The Appeal Panel concluded that, for the reasons stated in the decision of 15 April 2020, the Medical Assessment Certificate dated 8 January 2020 should be confirmed.

Submissions for the Plaintiff

1. [53]

   Mr Hart submitted that both the Approved Medical Specialist, Dr Truskett, and the Appeal Panel were required to afford procedural fairness to the Plaintiff and to ensure that decisions were made according to law and based on relevant and logically probative information. In this respect, counsel referred to the Approved Medical Specialist Code of Conduct (24 November 2009) and the Registrar’s Guideline (February 2011) (Exhibit B).

2. [54]

   Counsel submitted that practical injustice to the Plaintiff had resulted in this case, applying the principles in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [30]; Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [31]-[39] and Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 at [112]-[121].

3. [55]

   It was submitted that a statutory decision maker is required to act reasonably and not illogically or irrationally and that the final conclusion of the decision maker should not be “unreasonable in a legal sense”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [72].

4. [56]

   Counsel for the Plaintiff submitted that the Approved Medical Specialist had acted in a procedurally unfair manner with respect to the Plaintiff’s right shoulder, in that a finding had been made of the existence of a subsequent injury to the right shoulder after 2013 which was said to explain the problem that the Plaintiff was experiencing with his right shoulder. It was submitted that Dr Truskett was obliged, as a matter of procedural fairness, to raise that issue with the Plaintiff during the medical examination before making an effective finding of a subsequent injury to the right shoulder and that he did not do so thereby constituting a denial of procedural fairness.

5. [57]

   It was submitted that Dr Truskett had misread Dr Kemp’s report of 18 March 2013 which had not stated that the right shoulder had recovered. That error, it was argued, was carried through into other findings made in the Medical Assessment Certificate so as to constitute a finding that was unreasonable in the legal sense as well as a denial of procedural fairness.

6. [58]

   The Plaintiff’s grounds of appeal as contained in the Amended Summons advanced these propositions in different ways in support or the argument that the Court should set aside the Medical Assessment Certificate of 8 January 2020.

7. [59]

   With respect to the decision of the Appeal Panel dated 15 April 2020, counsel for the Plaintiff submitted that the denial of procedural fairness and process of unreasonable decision making had carried through from the Medical Assessment Certificate as a result of the Appeal Panel effectively adopting and confirming the reasoning contained in the Medical Assessment Certificate.

8. [60]

   It was submitted that it was essential in this case that the Plaintiff be further examined medically for the purpose of the appeal to the Appeal Panel and that this was not done without the expression of any reasons for that position. Reliance was placed upon Ah-Dar v State Transit Authority of NSW (2007) 69 NSWLR 468; [2007] NSWSC 260 at [63]-[69]; Sydney Night Patrol & Inc Co v Absolom [2015] NSWSC 60 at [34]-[40] and Cobar Shire Council v Harpley-Oeser [2018] NSWSC 964 at [91].

9. [61]

   Although it was acknowledged that no written submissions had been made to the Appeal Panel in support of further examination of the Plaintiff, it was emphasised that the Plaintiff had ticked the box seeking re-examination for the purpose of the appeal.

10. [62]

    Contrary to the finding of the Appeal Panel that there was ample evidence to permit Dr Truskett to make the assessment of the Plaintiff in this case, it was submitted that there was no evidence to support this conclusion. Whilst the Appeal Panel had noted Dr Truskett’s raising of inconsistencies with the Plaintiff for comment, it was submitted that the Appeal Panel had erred in its acceptance of Dr Truskett’s approach to the Plaintiff’s right shoulder.

11. [63]

    It was submitted that the Appeal Panel had erred (at paragraphs 43-44 of the Decision at [50] above) in stating that there was no requirement for an Approved Medical Specialist to seek an explanation from the worker concerning matters which are the subject of his physical examination and assessment. Mr Hart submitted that this was inconsistent with the requirement placed on Approved Medical Specialists to abide by the principles of procedural fairness and to ensure that decisions are made according to law and based on relevant and logically probative information (Exhibit B).

12. [64]

    Counsel for the Plaintiff submitted that as the Medical Assessment Certificate and the decision of the Appeal Panel were affected by jurisdictional error, each should be quashed with the Plaintiff’s matter being remitted to the Third Defendant to refer his appeal to a fresh Appeal Panel.

Submissions for the Defendant

1. [65]

   Mr Jackson submitted that the Plaintiff had not made good his claim for relief and that the Amended Summons should be dismissed.

2. [66]

   Counsel for the First Defendant submitted that the Medical Assessment Certificate did not contain error, with the approach to the Plaintiff’s right shoulder and the conclusion reached by Dr Truskett not involving a denial of procedural fairness, nor any unreasonable approach to findings so as to entitle the Plaintiff to the relief he seeks by way of judicial review.

3. [67]

   It was submitted that procedural fairness does not require a decision maker to disclose what they are minded to decide or to invite comment on their process of reasoning: Woolworths Limited v Michelle Howarth [2015] NSWSC 1624 at [32] (Hamill J). The Approved Medical Specialist was entitled to draw upon his expertise and to reach conclusions without disclosing his reasoning to the Plaintiff or giving him an opportunity to comment: Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235 at [62] (Studdert J). The Appeal Panel was entitled to draw upon the expertise of its members in exercising its function: Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors at [62].

4. [68]

   With respect to the Plaintiff’s complaint that the Appeal Panel did not conduct a further medical examination of him, Mr Jackson relied upon the decision of the Court of Appeal in Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [34] in support of the proposition that the reasons of the Appeal Panel indicated that consideration had been given to a further medical examination of the Plaintiff, but it had been decided that the matter could be dealt with on the papers without one.

5. [69]

   With respect to the Plaintiff’s reliance upon authorities concerning the exercise of discretionary power, Mr Jackson submitted that caution was needed in relying upon those authorities as the Appeal Panel was not exercising a discretionary power, but a statutory appellate function under the WIM Act. In that respect, it was submitted that, provided there is some logical basis for making the relevant decision, the Court will not interfere with it. Reliance was placed upon Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] with respect to a challenge to an administrative decision upon the basis that it was illogical or irrational.

6. [70]

   Counsel for the First Defendant submitted that the Appeal Panel had acknowledged that part of the Medical Assessment Certificate could have been expressed more clearly (paragraphs 34-35, 37 at [50] above). However, the Appeal Panel explained its understanding of the Medical Assessment Certificate which did not reveal appellable error on the part of the Approved Medical Specialist. It was submitted that this approach was open to the Appeal Panel.

7. [71]

   It was submitted for the First Defendant that the Plaintiff had not demonstrated an entitlement to relief and that the Amended Summons should be dismissed with costs.

Decision

1. [72]

   The Plaintiff’s claim for relief is directed to the last operative decision being that of the Appeal Panel dated 15 April 2020. However, it is reasonable to have regard to the Medical Assessment Certificate of 8 January 2020 for the purpose of determining the Plaintiff’s challenge to the decision of the Appeal Panel. This is because the reasons contained in the Medical Assessment Certificate were confirmed, with some further explanation, in the decision of the Appeal Panel.

2. [73]

   I accept that there is a requirement specified in the Approved Medical Specialist Code of Conduct (part Exhibit B) that Approved Medical Specialists should, amongst other things, abide by principles of procedural fairness and ensure that decisions are made according to law and based on relevant and logically probative information. This is a general statement which requires further consideration as to its content depending upon the particular circumstances under challenge.

3. [74]

   In Phillips v JW Williamson and RW Williamson trading as Williamson Bros [2016] NSWSC 1681, Schmidt J summarised helpfully the relevant principles concerning procedural fairness as they apply to Approved Medical Specialists and an Appeal Panel and the need to read the decision under challenge fully and fairly. Her Honour said at [36]-[37]:

4. [75]

   In Woolworths Limited v Michelle Howarth, Hamill J considered the requirements of procedural fairness concerning an Approved Medical Specialist and an Appeal Panel under the WIM Act. His Honour said at [30]-[32]:

5. [76]

   The present proceedings do not involve merits review. As Brennan J said in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36; [1990] HCA 21:

6. [77]

   To the extent that relief is sought upon the basis of findings and reasons which are sought to be impugned, it is for the Plaintiff to demonstrate unreasonableness in the sense identified by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS at [130]:

7. [78]

   In approaching the challenge to the Medical Assessment Certificate, it is necessary to keep in mind that an Approved Medical Specialist is a medical practitioner and not a lawyer. This aspect, of course, does not prevent legal obligations applying to Approved Medical Specialists exercising the important statutory function under ss.324-326 WIM Act. In Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254, Basten JA (McColl JA and Handley AJA agreeing) said at [34]-[36]:

8. [79]

   It has not been demonstrated that Dr Truskett was required to do any more than he did for the purpose of ensuring procedural fairness to the Plaintiff during the examination on 16 December 2019 before issuing the Medical Assessment Certificate dated 8 January 2020. A good example of compliance with the requirement of procedural fairness which arose in the circumstances of the Plaintiff’s case is Dr Truskett’s chance observations of the Plaintiff before the examination, and his capacity to contrast that aspect with what he observed during the examination. Dr Truskett raised that issue directly with the Plaintiff for comment (see [31] above). Further, Dr Truskett raised for comment what appeared to be an unusual feature concerning the Plaintiff’s use of a walking stick (see [31] above). Had Dr Truskett not raised with the Plaintiff his own observations made before the examination commenced, there would have been practical injustice to the Plaintiff because the Approved Medical Specialist would have relied upon his own private observations of the Plaintiff outside the examination room without raising those observations for comment by the Plaintiff: cf Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW (2010) 56 MVR 108; [2010] NSWSC 833 at [21]-[25]; Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558 at [73]-[95].

9. [80]

   With respect to the Plaintiff’s right shoulder, Dr Truskett undertook a physical examination of the Plaintiff and had regard to all the material furnished to him including the letters from Dr Kemp in 2012 and 2013 referred to in the Medical Assessment Certificate (see [27], [37] and [40] above). It should be kept in mind that the task being undertaken by Dr Truskett was to assess the degree of impairment of the Plaintiff arising from the workplace incident on 8 June 2011 by reference to a number of parts of his body including the right upper extremity (right shoulder). Dr Truskett undertook that task and reported on it in the Medical Assessment Certificate.

10. [81]

    Dr Truskett was entitled to refer to the reports and materials which had been furnished to him for the purpose of his examination of the Plaintiff. He was entitled to rely upon the contents of Dr Kemp’s letters concerning the Plaintiff’s right shoulder. As Dr Truskett noted, Dr Kemp’s letter of 6 September 2012 referred to the Plaintiff’s right shoulder and the presence of “significant capsulitis”. Dr Kemp’s letter of 18 March 2013 recorded very significant improvement with the Plaintiff having “almost fully resolved his frozen shoulder”. Dr Kemp stated that he would only see the Plaintiff again “if he is having trouble” with the right shoulder. Dr Kemp did not review the Plaintiff again (see [27] above). It was open to Dr Truskett to note the absence of any follow-up medical treatment for the Plaintiff concerning the right shoulder after Dr Kemp’s 2013 letter. It was likewise open to Dr Truskett to conclude that the Plaintiff’s right shoulder injury reported on by Dr Kemp on 6 September 2012 and 18 March 2013 had later resolved with the result that there was no right shoulder injury to be linked causally to the workplace incident on 8 June 2011.

11. [82]

    It should be noted that a medico-legal report of Dr Harrington dated 6 August 2019 pointed to a reduction in right shoulder movement which was said to be “unrelated” (see [40] above). The parties were on notice before Dr Truskett examined the Plaintiff that there was a live issue concerning the right shoulder.

12. [83]

    It is not the case that the Medical Assessment Certificate, fairly read, involved a finding of impairment to the Plaintiff’s right shoulder which was sought to be explained directly by reference to some other subsequent incident. Rather, the Medical Assessment Certificate indicated that, if the Plaintiff was experiencing any problems with his right shoulder as at 16 December 2019 (which was an open question), there was no causal link between such an injury and the workplace incident on 8 June 2011.

13. [84]

    It is true that Dr Truskett used infelicitous language in his conclusion with respect to the Plaintiff’s right shoulder. Dr Kemp’s letter of 18 March 2013 did not state expressly that there had been “full recovery” or “complete recovery” from the right shoulder injury (see [37] and [39]-[40] above). However, it was open to Dr Truskett to so conclude in light of Dr Kemp’s letter of 18 March 2013 and the absence of any follow up concerning the right shoulder.

14. [85]

    It is important to keep in mind that Dr Truskett had been requested to determine, amongst other things, whether there was any impairment to the Plaintiff’s right upper extremity (right shoulder) as a result of the workplace incident on 8 June 2011. Dr Truskett did not find impairment to the right shoulder arising from the events on 8 June 2011 and he provided his reasoning for this conclusion.

15. [86]

    It is also the case, as the Appeal Panel observed, that Dr Truskett used inapt language in using the term “deducted” with respect to the right shoulder (see [37], [39] above). As Dr Truskett stated correctly, there was no deduction for any previous injury or pre-existing condition (see [41] above). There was no deduction to be made for the purpose of s.323 WIM Act (see [42] above). The reasoning of Dr Truskett was that no WPI had been demonstrated for the Plaintiff’s right shoulder arising from the workplace incident on 8 June 2011.

16. [87]

    I am not satisfied that there was a denial of procedural fairness nor unreasonableness in the conclusions reached in the Medical Assessment Certificate. Although, as the Appeal Panel noted, there may have been some looseness in the language used in this respect, this aspect was understood and explained sufficiently by the Appeal Panel in its decision (see paragraphs 29-37 at [50] above). The reasons of the Approved Medical Specialist, as contained in the Medical Assessment Certificate, are to be read fully and fairly in this respect.

17. [88]

    The Appeal Panel was comprised of a legal practitioner (an Arbitrator) and two Approved Medical Specialists. As noted by Basten JA in Vitaz v Westform (NSW) Pty Ltd (see [78] above), this combination meant that the makeup of the Appeal Panel was different to that of an Approved Medical Specialist determining the assessment process alone.

18. [89]

    It was open to the Appeal Panel to determine that a further medical examination of the Plaintiff was not necessary in this case: Bojko v ICM Property Service Pty Ltd at [34]. It is noteworthy that the written submissions prepared by counsel for the Plaintiff, in advance of the appeal undertaken by the Appeal Panel, did not themselves urge that a further medical examination was an essential feature of the appeal.

19. [90]

    The Plaintiff, of course, had no automatic entitlement to a further medical examination merely because he ticked the box on the form asking that it occur. It was a matter for the Appeal Panel to determine whether that step ought be taken. The Appeal Panel determined that it was not necessary for the Plaintiff to undergo further examination (see paragraph 7 at [44] above). This conclusion was open to the Appeal Panel: Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [48]. The approach adopted by the Appeal Panel on this issue does not disclose any basis upon which the Plaintiff is entitled to relief nor does it provide assistance to that claim when considered in conjunction with other arguments advanced on the Plaintiff’s behalf.

20. [91]

    Contrary to the Plaintiff’s submissions, no error is demonstrated in paragraphs 30-33 of the Appeal Panel’s decision (see [50] above). The Appeal Panel considered closely the reasons provided by Dr Truskett in the Medical Assessment Certificate. It is apparent that, having undertaken that task, the Appeal Panel brought its own independent scrutiny to bear in observing that greater clarity may have been appropriate in some features of the Medical Assessment Certificate (paragraphs 33-44 of the Appeal Panel’s decision at [50] above). This is not a case where the Appeal Panel has simply rubber stamped, without further consideration or scrutiny, the reasoning of the Approved Medical Specialist in the Medical Assessment Certificate.

21. [92]

    I do not accept the Plaintiff’s submission that there was a fundamental misunderstanding on the part of Dr Truskett which was effectively endorsed by the Appeal Panel with respect to the Plaintiff’s right shoulder.

22. [93]

    Rather, it is clear that careful attention was given by the Appeal Panel to the reasoning in the Medical Assessment Certificate in light of the submissions made by the parties to the Appeal Panel concerning that aspect which was under challenge in the appeal. The reasoning of the Appeal Panel serves to explain what Dr Truskett had actually found, whilst noting that the finding was open to him as an Approved Medical Specialist.

23. [94]

    Fairly read, the extent of the finding made by Dr Truskett, and confirmed by the Appeal Panel, was that the Plaintiff’s right shoulder was not impaired as a result of any injury sustained in the workplace incident on 8 June 2011.

24. [95]

    In my view, the decision of Dr Truskett does not rise above a limited level of untidy reasoning, which falls well short of the requirement for demonstrating unreasonableness in judicial review proceedings. It was open to the Appeal Panel to reach the conclusion which it did. The Plaintiff has not demonstrated illogicality or irrationality of the type which is required to found relief by way of judicial review.

25. [96]

    It has not been demonstrated that the Plaintiff was denied procedural fairness by the Approved Medical Specialist or the Appeal Panel. Nor has it been demonstrated that there was unreasonableness in the legal sense in the decision making of the Approved Medical Specialist or the Appeal Panel in reaching a decision with respect to the Plaintiff’s right shoulder as part of the assessment process. The Plaintiff has not established jurisdictional error with respect to the decisions made under the WIM Act.

Conclusion

1. [97]

   The Plaintiff has not made good his claim for relief as sought in the Amended Summons.

2. [98]

   The ordinary rule is that costs should follow the event: Rule 42.1 Uniform Civil Procedure Rules 2005. There is no reason to depart from that rule so that an order will be made that the Plaintiff should pay the costs of the First Defendant. However, allowance will be made in the orders of the Court in case any party seeks a different costs order.

3. [99]

   I make the following orders: