Roads and Maritime Services v Rodger Wilson

This is a claim by the plaintiff, as employer, for judicial review of a decision of an Appeal Panel made under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”). The first defendant, Mr Wilson, took no part in the hearing of the plaintiff’s summons and consequently the Court has not had the benefit of a contradictor of the plaintiff’s submissions. The Workers Compensation Commission and the members of the Appeal Panel are second and third defendants respectively. They filed submitting appearances.

Mr Wilson injured his right ankle on 16 May 2008 when he stepped out of the cab of a tow truck on Sydney Harbour Bridge. His right foot landed on a raised lane marker of a type known as a "cat’s eye". This caused an inversion injury to the ankle. “Inversion" describes the rotation of the sole of his foot towards the midline of his body and the top or instep of the foot rolling outward.

At the time Mr Wilson was employed by the New South Wales Roads and Traffic Authority, now known as Roads and Maritime Services, the plaintiff. He suffered ongoing symptoms from his ankle and after some time (the evidence before this Court does not establish how long) he felt unable to continue in his employment with the plaintiff and resigned. He had come originally from New Zealand to Australia and after ceasing work with the plaintiff returned to New Zealand.

Under specialist orthopaedic advice in New Zealand he eventually had arthrodesis of the right ankle in August 2013. That is, the tibia of his right leg was fixed to the talus, the large bone of the ankle, with screws. This more or less fixed the angle of his foot to his lower leg, in multiple directions and planes. Unanimous medical opinion in evidence in the case is that the fixation was achieved at the optimum angle or position of the foot in relation to the lower leg.

Mr Wilson's claim for compensation under the Workers Compensation Commission Act 1987 (NSW) has led to a medical dispute between him and the plaintiff concerning the degree of permanent impairment which has resulted from the ankle injury sustained on 16 May 2008. This dispute was referred to Dr Anderson, an approved medical specialist, under ss 319 and 321 of the 1998 Act.

Dr Anderson issued a Medical Assessment Certificate under the 1998 Act dated 9 November 2015. This shows that he measured the range of movement of the right ankle of the worker in four directions and found varying degrees of restriction. He applied the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (“the AMA Guides”) to arrive at a whole person impairment (“WPI”) of only 2% on account of restriction of the right ankle movements. He measured wasting of the right calf and again applied the AMA Guides to arrive at 4% WPI on this account.

I infer that he did not consider that the two figures could be summed because his Medical Assessment Certificate was issued for just the greater of them, namely, 4%. I have not been able to find in the Certificate any explicit reasoning for not adding the figures together. I infer that Dr Anderson did not consider it would be appropriate to accumulate them, upon correct application of the AMA Guides which he was using.

Dr Anderson had before him evidence of prior injury to Mr Wilson's right ankle which had been sustained in 1976 and had at that time been treated with plaster cast immobilisation. This included a report of Dr Lynskey, Orthopaedic Surgeon, dated 10 December 2014 which also recorded further inversion injuries in 2006 and 2007, neither of which were said to have required any specific treatment.

There was radiological evidence available to Dr Anderson of wear on the boney surfaces of the joint between the fibula and the talus. Dr Anderson reviewed an MRI scan of Mr Wilson’s right ankle carried out on 4 September 2008 which showed tibio-talar chondral wear and a possible previous ligament injury. He also had a CT scan from 2 January 2009 which showed degenerative changes probably related to talar dome osteochondritis.

Dr Anderson had a report of Dr Cleary, Orthopaedic Surgeon, dated 12 March 2015 in which the opinion was expressed that the MRI scan suggested lateral ligament injury to the right ankle had occurred prior to the work incident on 16 May 2008 and that there was “mild to moderate arthritic change predominantly involving the talar dome posterior surface at the time of MRI scanning”.

These materials would suggest an injury, abnormality or condition prior to the work accident on 16 May 2008. However, Dr Anderson concluded his report by saying:

Dr Anderson’s failure to assess any contribution to Mr Wilson’s WPI from the pre-existing ankle damage and deterioration would not have been important to the plaintiff and would not have caused it to appeal the issue of the Medical Assessment Certificate because Dr Anderson’s final assessment was 4%, being less than the minimum 10% which is necessary for recovery of permanent impairment compensation under s 66 of the Workers Compensation Act 1987.

Section 376 of the 1998 Act provides that “the Authority”, being the Workers Compensation Commission, may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured worker as a result of an injury. That section provides in subs (4) that guidelines issued under this section may adopt the provisions of other publications with or without modification. Under s 376 the Commission has issued WorkCover Guides for the evaluation of permanent impairment.

Within the WorkCover Guides par 1.3 provides:

Mr Wilson applied to the Workers Compensation Commission on 7 December 2015 to appeal the decision of Dr Anderson. By force of s 327(3) this appeal could only be made on one or more of four grounds specified in that subsection. On 8 January 2016 the Registrar of the Commission issued a certificate permitting the appeal to an Appeal Panel on two grounds, namely, "the assessment was made on the basis of incorrect criteria" (s 327(3)(c)) and "the medical assessment certificate contains a demonstrable error" (s 327(3)(d)).

Mr Wilson's application to appeal was accompanied by six pages of grounds. These took issue with numerous aspects of Dr Anderson's Certificate, many of which could not readily be fitted into either of the two categories stipulated in paras (c) and (d) of s 327(3).

In determining the appeal the Appeal Panel did not undertake a medical re-examination of Mr Wilson. It revoked Dr Anderson's certificate and issued a new certificate in which it assessed his WPI at 15%. The Appeal Panel concluded its reason for decision as follows:

In this passage the term "ankylosis" refers to fusion of the bones of the lower leg with the talus. In this case ankylosis was achieved by the arthrodesis which was the surgical intervention to fix the bones together, presumably resulting in bone growth that consequently fused them. The reference to this fusion having resulted in 37% lower extremity impairment and 15% whole person impairment is evidently taken from Table 3.1 in par 3.18 of the WorkCover Guides.

The Appeal Panel's application of that paragraph appears correct. Paragraph 3.18 contains the following (so far as relevant):

Underneath that portion of par 3.18 Table 3.1 appears. This shows 15% of whole person impairment is to be attributed and 37% to the lower extremity for impairment from ankylosis in the optimum position at the ankle. There is a note under the table which specifically records that these figures suggested for ankle impairment are greater than those suggested in the AMA Guides.

It is clear that Dr Anderson's assessment of the degree of whole person impairment to be attributed to the ankylosed ankle applying the AMA Guides was erroneous because their operation is quite inconsistent with par 3.18 of the WorkCover Guides and the latter must prevail.

Under par 3.18 of the WorkCover Guides the measurement of available range of movement in the ankle after arthrodesis, as in this case, is irrelevant. According to par 3.18 the assessor is to apply 15% WPI to an ankle joint where arthrodesis has fixed the ankle in the optimum position irrespective of what may be the residual range of movement.

However, whilst the Appeal Panel appears to have been quite justified in revoking the Medical Assessment Certificate of Dr Anderson upon this basis, it was not, in my view, justified in failing "to deal with the other aspects of the appeal" – as referred to in the last sentence of par 35 of the reasons, quoted at [17] above. It is not entirely clear what the Panel meant by this last sentence of par 35. Certainly it is apparent on the face of the Appeal Panel’s reasons and the amended certificate issued that the Panel failed to evaluate or to attempt to evaluate the contribution of any pre-existing impairment or condition to the whole person impairment of 15% which they found on the reasoning considered and referred to above.

The Appeal Panel had all of the evidence Dr Anderson had seen. Hence they had the above-mentioned prima facie radiological evidence of pre-existing injury abnormality or condition. When the Appeal Panel revoked Dr Anderson’s assessment of Mr Wilson’s WPI they were bound to consider all medical issues and evidence which bore upon the assessment. This necessarily included consideration of whether any proportion of the WPI which was otherwise demonstrated was due to the previous injury, pre-existing condition or abnormality of the right ankle.

The WorkCover Guides include these paragraphs relating to pre-existing condition or injury:

Once the Appeal Panel had determined that Dr Anderson’s Medical Assessment Certificate should be revoked it was incumbent upon them, as a matter of law, to apply the WorkCover Guides fully in arriving at a fresh assessment and issuing a new certificate. That necessitated, in the present case, consideration of any contribution to the assessed WPI of 15% (derived by application of par 3.18 of the WorkCover Guides) which should be attributed to the pre-existing injury. In Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 Garling J explained this as follows:

It was not open to the Appeal Panel to disregard or to fail to assess the evidence of pre-existing injury which was before the Panel. Revocation of Dr Anderson’s Medical Assessment Certificate meant that all aspects of the application of the WorkCover Guides had to be brought to bear in order to produce a substitute certificate.

The Appeal Panel cited the decision of Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 regarding the effect of a 2010 amendment to s 328(2) of the 1998 Act. The Panel stated their understanding of his Honour's decision as being that the confinement of the appeal to "the grounds of appeal on which the appeal is made" was intended to mean that it was limited to those particular demonstrable errors identified by the appellant party in its submissions.

The Panel appears to have thought this decision meant that, in issuing a replacement certificate for that of Dr Anderson which they revoked, it was not necessary for them to consider any aspect of the assessment of WPI other than the correction of Dr Anderson's erroneous application of the AMA Guides. That is, a correction of his failure to give effect to par 3.18 of the WorkCover Guides. With respect, that is a mistaken view of Davies J’s decision. This subject was considered by his Honour at [39] to [53]. All that his Honour there identified was the limitation of the grounds to which regard could be had in determining whether or not the Medical Assessment Certificate under appeal should be revoked. Once a ground so raised by the appellant has been upheld by the Appeal Panel resulting in the revocation of the Medical Assessment Certificate, the whole matter of the assessment must be redone in order to provide the basis for generating a new certificate which will stand in the first one's stead.

There is no conflict between Davies J's decision and the decision of Garling J in Drosd. Upon Dr Anderson’s certificate having been revoked for want of proper application of the WorkCover Guides (in particular, pars 1.3 and 3.18) the Appeal Panel was bound, as part of its re-assessment of WPI, to make a determination of what, if any, contribution to Mr Wilson's whole person impairment had been made by his prior accident or by any other pre-existing condition.

I consider that the Panel's error of law in failing to address that question constitutes its issue of the fresh certificate an act beyond jurisdiction, warranting a declaration that the certificate and the reasons in support of it are void. Even if the error were not jurisdictional, it appears on the face of the record and would require that the certificate and the reasons be quashed: Supreme Court Act 1970 (NSW), s 69(3) and (4).

I also consider the terms in which the Appeal Panel purported to dispense with "the other aspects of the appeal" (the last sentence of par 35 of the reasons) so vague and uncertain as not to constitute adequate reasons for proceeding to issue the certificate at 15% WPI without any allowance for contribution to that impairment from prior injury or pre-existing condition. The requirement of adequate reasons, which must be given by an Appeal Panel, is laid down in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121] and [122]. There is in my view a deficiency of reasons in this respect constituting a further error, jurisdictional in nature, which invalidates the substitute Medical Assessment Certificate issued.

If by the Appeal Panel’s statement that they were “unable to deal with further aspects of the appeal” they meant that they considered themselves lacking in jurisdiction to re-determine any element in the WPI assessment other than the correct application of par 3.18 and Table 3.1 of the WorkCover Guides, then that was an erroneous conclusion of law. They were “able” to re-determine, also, the question of any contribution to WPI flowing from pre-existing injury etc, applying s 323 and pars 1.50 to 1.52 of the WorkCover Guides. They were not only “able” to do so but bound to do so, having determined to revoke the original Medical Assessment Certificate of Dr Anderson.

If the Appeal Panel meant that they were “unable” to consider afresh the contribution of past injury because Mr Wilson was not available for physical examination by a Panel member, that also constituted legal error. Section 324(3) of the 1998 Act empowered the Appeal Panel to undertake a further examination of the injured worker. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales that was regarded as the correct view of s 324 and related provisions and I respectfully agree. I also agree with Davies J that the further physical examination could only be requested once the Appeal Panel had determined that the original Medical Assessment Certificate was to be revoked: at [33]. That precondition was met here. At par 9 of the Panel’s reasons they said that they had been advised “a re-examination could not be performed as the appellant resides in New Zealand”. Any such advice was of no consequence or effect. If Mr Wilson had not submitted himself for an examination as required by the Panel his rights would have been suspended pending compliance: s 324(2).

Accordingly, the plaintiff's claim is upheld and the orders of the Court are as follows: