Cincotta v Police Citizens Youth Clubs NSW Ltd & Ors

HIS HONOUR: The plaintiff moves on a Summons, filed 1 June 2018. The second, third and fourth defendants entered submitting appearances so that the matter was conducted by the first defendant.

The orders sought in the Summons are:

The plaintiff identified the decision makers as the Medical Appeal Panel of the Workers Compensation Commission of New South Wales (the Commission) in respect of the decision of the Appeal Panel, dated 8 March 2018, and the Approved Medical Specialist (AMS), Dr Mohammed Assem, as the decision maker in respect of the Medical Assessment Certificate Further Assessment or Re-consideration, dated 22 November 2017.

The grounds relied upon by the plaintiff are as follows:

In the course of the hearing, the plaintiff abandoned Grounds 16(iii) and 18(viii).

I have a preliminary difficulty with the form of the Summons in that I do not understand how, in the context of the Workplace Injury Management Act 1998 (NSW) (the Act) and as a matter of principle, the plaintiff can or needs to challenge the Medical Assessment Certificate Further Assessment or Reconsideration dated 22 November 2017. (For ease of reference, I will refer to this Certificate as MAC 2.)

It is clear from the Act that once the Medical Appeal Panel had issued its reasons that became the operative decision so far as these proceedings are concerned. That is the effect of the structure of the Act and in particular, ss 325A, 328(5) and 329(2). Section 328(5) effectively provides that a certificate issued by an Appeal Panel takes the place of any previous Medical Assessment Certificate (MAC). Significantly, if this Court were to find error in the Appeal Panel decision, the appropriate remedy (whether or not there was an error in the MAC 2) would be to remit the decision to the Appeal Panel. Alternatively, if the Court were to find an error in the MAC 2, but there was no error in the Appeal Panel decision, the effect of such a finding would be that the Appeal Panel decision had cured such an error.

As a matter of principle, that is the approach normally followed in legislation which provides for an appeal process. In Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; 139 FCR 344 the Court (Finn, Mansfield and Gyles JJ) said:

In any event, I decline as a matter of discretion to deal with the plaintiff’s challenge to the MAC 2 and reasons on the basis that the Act provides an effective and convenient remedy if there is error in the certificate and reasons of an AMS by way of the Medical Appeal Panel as provided by s 327 of the Act. That was the first option for the plaintiff if he wished to challenge the MAC 2, rather than by way of bringing s 69 proceedings in this Court. Moreover, not only did the plaintiff have an avenue for appeal by way of the Medical Appeal Panel, but he exercised that right.

On 7 September 2017, the plaintiff filed an Application to Resolve a Dispute (ARD) in the Commission. By the ARD, the plaintiff sought referral to an AMS in relation to “lump sum compensation where degree of permanent impairment in dispute”. The primary injury, the subject of the ARD, occurred on 2 October 2015 when the plaintiff tripped on a raised section of carpet causing him to stumble and fall, twisting his back as he struck a cabinet with his body.

In the ARD the plaintiff gave the following description of the injury which he claimed had resulted from the fall.

The plaintiff claimed the following permanent impairment:

The plaintiff claimed a degree of permanent Whole Person Impairment (WPI) of 22 per cent.

The plaintiff had undergone surgery to address the injury resulting from the fall on 8 December 2015 (the surgery) (TB Tab 1, p115). Dr Matthew Giblin, orthopaedic surgeon, who had treated the plaintiff in relation to an earlier injury (for which the plaintiff underwent surgery in 2007), removed a Wallis device (which had been inserted in response to the earlier injury), removed a fragment of bone from “underneath the posterior longitudinal ligament” and carried out a “neurolysis of the L5 nerve root”. Dr Giblin also inserted a Corflex device (TB Tab 1, p 115).

Some weeks after the 2015 surgery, as the plaintiff’s pain resolved, he reported to Dr Giblin that he “had some weakness in [his] left leg”. Dr Giblin noted that the plaintiff “had a similar problem” following the earlier surgery (TB Tab 1, p 117). Over the following weeks and months, the plaintiff’s weakness in his left leg increased, which Dr Giblin found “surprising” (TB Tab 1, p 118-125). Dr Giblin suspected that it “may be a vascular event to the nerve root”. A later neurological report suggested diabetic neuropathy to be the cause, which Dr Giblin considered to be consistent with his initial view (TB Tab 1, pp 119, 123, 124 and 125).

In his ARD, the plaintiff relied primarily on a report by Dr Sheikh M Habib, dated 31 March 2017. Dr Habib diagnosed the plaintiff with “L4/5 discopathy with left radiculopathy requiring surgery and left foot drop”. Dr Habib expressed the view that the plaintiff’s left foot drop was caused by the 2015 surgery. Dr Habib acknowledged that the plaintiff had been compensated in 2008 for an injury to his lumbar spine in relation to an earlier injury (TB Tab 1, pp 11-18).

On 26 September 2017, the first defendant filed its Reply to the ARD in the Commission. The first defendant included with its Reply a letter from its insurer, GIO Insurance (GIO) to the plaintiff’s lawyers, dated 11 September 2017 (TB Tab 2, pp 223-224).

Relevantly, the GIO’s Reply was in the following terms:

The reference to Professor Miniter’s report appears to be a reference to that doctor’s opinion at p 5 of his report of 23 June 2017 where he said:

Two reports of Professor Miniter were included in the first defendant’s Reply. In the June report, Professor Miniter set out his conclusions as follows:

In a report of 20 July 2017, Professor Miniter expressed the view that the plaintiff had a six per cent WPI:

On 29 September 2017, a delegate of the Registrar of the Commission referred the medical dispute to the AMS. The referral was in the following relevant terms:

On the same date, the Registrar’s delegate sent a copy of the referral to the parties and invited each to lodge any objection within three working days. No objection was lodged by either party.

On 25 October 2017, the AMS issued his certificate entitled “Medical Assessment Certificate: Assessment of Degree of Permanent Impairment” (MAC 1) (TB Tab 5, pp 227-238).

By letter dated 30 October 2017, the first defendant sought reconsideration of the MAC 1 by the AMS. By letter dated 31 October 2017, the plaintiff objected.

On 13 November 2017, the Registrar’s delegate returned the MAC 1 to the AMS for reconsideration (TB Tab 8, p 242).

On 21 November 2017, the plaintiff made an application to appeal against the MAC 1.

On 22 November 2017, the AMS issued the MAC 2 (TB 11, pp 251-255). Under the Act this certificate prevailed over the earlier MAC (s 329(2)) of the Act.

On 24 November 2017, the plaintiff made an application to appeal against the MAC 2. The grounds of appeal were:

On 16 December 2017, the first defendant lodged a Notice of Opposition.

On 8 March 2018, the Appeal Panel confirmed the MAC 2.

On 1 May 2018, the Commission issued a certificate of determination which was consistent with the MAC 2.

Relevant parts of the Appeal Panel’s Reasons for Decision are as follows:

The plaintiff submitted that there was no issue of causation to be decided by the AMS and subsequently the Appeal Panel. The plaintiff submitted that the AMS and therefore the Appeal Panel should have proceeded to assess his foot drop on the basis that there was a causal nexus between it and the lumbar spinal injury. The plaintiff submitted that the sole question to be decided by the AMS and subsequently the Appeal Panel was what degree of permanent impairment existed on the assumption that the body part referred to, i.e. “lumbar spine peripheral spinal nerve root impairment [left]” had been injured as a result of the work injury. The plaintiff submitted that the AMS and subsequently the Appeal Panel had asked themselves the wrong question. The plaintiff submitted that there was no issue of causation to be decided by the AMS or the Appeal Panel because the causation issue had not been referred to it for assessment.

The plaintiff submitted that the Appeal Panel had erred in making a finding as to causation and in proceeding on the basis that there was no consequential injury as a result of the fall at work, being the left foot drop. The plaintiff submitted that the Appeal Panel had erred because it focused its attention on whether it was open to the AMS to find that there was no consequential injury in the form of a spinal nerve root injury causing left foot drop.

The plaintiff submitted that as a result, the Appeal Panel had misdirected itself in relation to its statutory task, thereby committing jurisdictional error. The plaintiff submitted that the Appeal Panel ought to have found that the AMS had erred in that he failed to determine the extent of any permanent impairment resulting from the consequential injury and instead determined whether there was a consequential injury. The plaintiff submitted that the Appeal Panel should have examined whether the AMS had performed his statutory task and having determined that he had not done so, proceeded to determine for itself the degree of permanent impairment resulting from the work injury.

In summary, the plaintiff’s position was that there was no issue as to causation before the Appeal Panel and that the task of both the AMS and the Appeal Panel was to simply determine the degree of permanent impairment which existed without considering the question of causation. Put another way, the plaintiff submitted that the Appeal Panel had erred in concluding that the question of whether the permanent impairment was caused by the work injury was part of a medical dispute that may be determined by an Approved Medical Specialist or an Appeal Panel.

The Reply by the first defendant’s insurer sufficiently raised the issue of causation. It did so when it identified the following two matters:

It is true that liability was not in issue in relation to the fall and anything consequential upon it. As such, had there been a determination by the AMS/Appeal Panel that the plaintiff’s left foot drop was caused by the fall and the 2015 surgery, liability for the plaintiff’s left foot drop would not have been disputed. However, that does not mean that there was no dispute as to whether the plaintiff’s left foot drop, being the condition said to cause the permanent impairment, was caused by the injury for which liability had been accepted. That was a matter very much in dispute and that was made clear by the insurer’s Reply.

The scope of an AMS’s task, and therefore that of the Appeal Panel, was defined by two factors – the dispute referred to the AMS/Appeal Panel and the relevant legislative provisions. In this case, the referral to the AMS/Appeal Panel included:

The referral was made in the context of a dispute as to whether the plaintiff’s left foot drop was relevantly related to, or caused by, the fall or the 2015 surgery. The referral did not challenge the fact that the fall and the subsequent surgery in 2015 had occurred and were work injuries, but challenged the medical consequences, i.e. the extent to which the degree of permanent impairment was due to any previous injury or pre-existing condition or abnormality.

The relevant provisions of the Act are found in Part 7 of Chapter 7. This is headed “Medical Assessment”. It concerns a referral of medical disputes to an AMS for binding determination, subject to limited appeal and reconsideration rights. Section 319 defines the terms “Approved Medical Specialist” and “Medical Dispute”. “Medical Dispute” is defined relevantly as:

A “Medical Dispute” concerning permanent impairment may be referred to an AMS for assessment by the Registrar of the Commission (s 321(1), 321(4) of the Act). Upon completion of the assessment, the AMS issues a MAC (s 325 of the Act). In relation to the degree of permanent impairment resulting from an injury and the proportionate permanent impairment due to a previous injury or pre-existing injury or abnormality an assessment certified in a MAC is to be conclusively presumed to be correct (ss 326(1)(a), 326(b) of the Act). The Registrar of the Commission may refer a MAC to the AMS for reconsideration (s 329 of the Act). A MAC issued following reconsideration prevails over any earlier assessment certificate (s 329(2)).

Those sections and that process have been considered by the Court of Appeal. In Haroun v Rail Corporation New South Wales and Ors [2008] NSWCA 192 Handley AJA (with whom McColl JA and McDougall J agreed) said:

Further guidance was provided in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 where Emmett JA (with whom Ward JA agreed) said:

In Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 White JA (with whom Macfarlan JA agreed) said:

As can be seen, the submissions of the plaintiff in these proceedings are similar to those put forward unsuccessfully by Mr Bindah and should fail for the same reasons. The degree of permanent impairment which the AMS and Appeal Panel were required to assess in this case was the degree of permanent impairment resulting from the injury in question, i.e. the fall and the 2015 surgery. Given paragraph (d) of the definition of “Medical Dispute” and the terms of the referral by the Registrar, the AMS and Appeal Panel were required to consider the degree of permanent impairment attributable to other causes and to differentiate between these and the degree of permanent impairment resulting from the fall and the 2015 surgery.

Once this is accepted, it is apparent that the AMS and Appeal Panel were required to engage in such assessment of causation as was necessary to discharge their statutory task of determining the degree of permanent impairment resulting from the injury in question. That is not to say that the whole of the question of causation is a matter for an AMS/Appeal Panel to determine. For example, in this case had the first defendant disputed liability on the basis that the fall was not itself caused by any relevant act or conduct by it, that aspect of causation would have been a matter for the Commission itself applying the relevant principles of causation.

It follows that the Appeal Panel did not commit jurisdictional error by misdirecting itself as to its statutory task, nor did it ask itself the wrong question. The Appeal Panel’s statutory task was to consider whether the AMS had made the correct decision on the question referred to him. The question referred to the Appeal Panel was whether the MAC 2 assessment of the plaintiff’s permanent impairment contained a demonstrable error. The only error identified by the plaintiff in that regard was the incorrect application of the relevant assessment table. That ground was abandoned at the hearing. The Appeal Panel’s reasons must be understood in light of this process of referral.

As can be seen from the way in which the Appeal Panel’s reasons were structured, it considered in detail the plaintiff’s history and the findings made by the AMS. The Appeal Panel confirmed the decision of the AMS in the MAC 2 and the approach which the AMS followed. The Appeal Panel determined “we cannot see how the peripheral neuropathy could be associated with the lumbar spine and a spinal nerve root lesion …”. This was confirmed by the Appeal Panel’s reference to the results of the nerve conduction studies carried out by Dr Yiannakis. Doctor Yiannakis opined that the results he saw “would argue against a sciatic nerve lesion”.

While the Appeal Panel did identify factual error (in relation to the AMS’s comment concerning the plaintiff having undergone a spinal fusion) this was not material to the appeal and the task which the Appeal Panel had to perform. This is clear from the Appeal Panel’s conclusion:

For the reasons set out above, the question for the Appeal Panel was whether there was demonstrable error in the MAC 2 involving as it did the AMS’s application of various tables to the plaintiff’s permanent impairment. The Appeal Panel confirmed the AMS’s decision in this and in other respects, and in doing so asked itself the correct question and carried out its statutory task.

For the reasons set out above, the Summons ought to be dismissed. In its written submissions the first defendant expressly eschewed any claim for costs in these proceedings. Accordingly, the order which I make is that the Summons be dismissed.