Ziraki v The Australian Islamic House Liverpool Area

1. [1]

   HER HONOUR: This is a judicial review from a decision of a Medical Appeal Panel of the Workers Compensation Commission of NSW.

2. [2]

   By summons filed 8 February 2019, the plaintiff seeks firstly, declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for the decision of the third defendant and issued by the second defendant on 17 December 2018 are void and of no effect; and secondly, an order setting aside the decision and the statement of reasons for decision of the third defendant and issued by the second defendant on 17 December 2018.

3. [3]

   The plaintiff is Pouria Ziraki. The first defendant is the Australian Islamic House Liverpool Area. The second defendant is the Workers Compensation Commission of NSW. The third defendant is the Medical Appeal Panel of the Workers Compensation Commission of NSW constituted by Arbitrator John Wynyard and Approved Medical Specialists Dr Mark Burns and Dr Roger Pillemer (the “Appeal Panel”). The second and third defendants have filed submitting appearances.

Background

1. [4]

   The plaintiff arrived in Australia from Iran in 2013 and was employed as a plasterer and painter by the first defendant.

2. [5]

   On 15 December 2016, the plaintiff slipped on plastic while alighting from a ladder and fell heavily onto his right arm, sustaining a distal radial fracture and consequent carpal tunnel syndrome.

3. [6]

   On 3 August 2018, the plaintiff’s degree of permanent impairment resulting from the workplace injury was assessed by Dr Neil Berry, an Approved Medical Specialist (“the AMS”), as being 11% whole person impairment (“WPI”) for injury to the right upper extremity.

4. [7]

   On 31 August 2018, the plaintiff appealed the decision of the AMS. On 16 October 2018, the Registrar was satisfied that, on the face of the application, at least one ground of appeal had been made out and referred the application to the Appeal Panel for determination.

5. [8]

   On 17 December 2018, the Appeal Panel rejected the plaintiff’s appeal and confirmed the decision of the AMS.

6. [9]

   I shall briefly outline the relevant provisions of the statutory scheme. For a worker to receive compensation under s 9(1) of the Workers Compensation Act 1987 (NSW), the worker must show an injury which is defined in s 4 as follows:

7. [10]

   No compensation is payable under the Workers Compensation Act pursuant to s 9A(1) in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.

8. [11]

   Chapter 7, Part 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”) provides for medical assessment, including the assessment of the degree of WPI, by both an AMS and appeal panels by way of review. The scheme was designed to take the function of assessment of injury out of the adversary court system: see Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [1] per Basten JA.

9. [12]

   Approved Medical Specialists are appointed under the WIM Act to deal with medical disputes, which are defined in s 319 as follows:

10. [13]

    Section 323 of the WIM Act provides for the deduction for previous injury or pre-existing condition or abnormality. It relevantly reads:

11. [14]

    Section 325 relates to the medical assessment certificate. It relevantly reads:

12. [15]

    Appeals against medical assessments are governed by ss 327 and 328 of the WIM Act.

13. [16]

    Section 327 relevantly reads:

14. [17]

    Section 328 relevantly reads:

15. [18]

    Section 328 confines the grounds of appeal which an Appeal Panel may consider to the grounds on which the appeal is made. Relevantly under s 327, the Appeal Panel is confined to consider whether additional relevant information became available, whether the assessment was made on the basis of incorrect criteria or whether the certificate contained a demonstrable error.

16. [19]

    Section 331 of the WIM Act required the Appeal Panel to apply the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016) (“the SIRA Guidelines”) in conducting its review. Section 331 of the WIM Act relevantly reads:

17. [20]

    The SIRA Guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed) (“the AMA5 Guides”). Clause 1.1 of the SIRA Guidelines provides that where there is deviation from the AMA5 Guides, “any difference is defined in the [SIRA] Guidelines and the procedures detailed in each section are to prevail.”

18. [21]

    Clause 1.6 of the SIRA Guidelines provides “a basic summary of some key principles of the permanent impairment assessments.” They include:

19. [22]

    The AMA5 Guides contemplate three scenarios which warrant varying assessments of the degree of permanent impairment:

20. [23]

    The assessment of the degree of permanent impairment for carpal tunnel syndrome is governed by p 495 AMA5 Guides, modified by cl 2.9 of the SIRA Guidelines.

21. [24]

    Page 495 of AMA5 Guides reads:

22. [25]

    Clause 2.9 of the SIRA Guidelines states:

23. [26]

    The matters which were referred for assessment by the AMS were the right upper extremity (elbow, wrist and hand) and scarring.

24. [27]

    Under the heading “Present symptoms”, the AMS stated:

25. [28]

    The AMS stated at [5]-[6]:

26. [29]

    In his reasons for assessment, the AMS stated at [10]:

27. [30]

    Having stated his reasons, the AMS assessed Mr Ziraki’s’s WPI in relation to his upper right extremity at 11%, and his scarring at 0%. Mr Ziraki’s WPI in its entirety was assessed at 11%.

28. [31]

    On 11 August 2018, the defendant lodged an application to appeal against the decision of the AMS.

29. [32]

    On 16 October 2018, the delegate of the Registrar referred the plaintiff’s appeal to the Appeal Panel. The delegate’s decision is as follows:

30. [33]

    The matter was referred to the Appeal Panel for determination. Both parties provided written submission to the Appeal Panel.

Grounds of appeal

1. [34]

   The plaintiff appealed against the MAC on the basis that the AMS erred in the following ways:

2. [35]

   The plaintiff made various submissions in support of his appeal to the Appeal Panel against the assessment of the AMS. They are as follows:

3. [36]

   The plaintiff submitted that the AMS erred in making an assessment based on a diagnosis of carpal tunnel syndrome in contravention of p 495 of the AMA5 Guides and procedural fairness. This was because the AMS had ignored the fact that there was no optimal recovery time because there was no surgical decompression, and the plaintiff could not have known that the AMS would rely on the carpal tunnel provisions of AMA5 Guides, as neither party was aware of the report upon which the AMS based that opinion.

4. [37]

   The first defendant’s submissions in opposition of the plaintiff’s appeal to the Appeal Panel against the assessment of the AMS are as follows:

5. [38]

   In its decision, the Appeal Panel stated at [20], [23], [25]:

6. [39]

   The Appeal Panel noted that although the plaintiff failed to “tick the box” at Part 3 of the application to appeal, it was quite clear from the submissions that he wished to rely upon a further report of his medico-legal referee Dr Peter Endrey-Walder dated 30 August 2018. In the report, Dr Endrey-Walder disagreed with the opinion of the AMS.

7. [40]

   The Appeal Panel at [45]-[54] stated:

8. [41]

   The Appeal Panel determined that there had been no lack of procedural fairness and confirmed the MAC issued on 3 August 2018.

Judicial review generally

1. [42]

   This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including both an AMS and Medical Appeal Panel, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act.

Grounds of judicial review

1. [43]

   The plaintiff’s grounds of judicial review were set out at [11] of its summons. They are as follows:

2. [44]

   As there is significant overlap in the submissions and issues in relation to these grounds, I will first consider grounds (a), (c) and (d) together, followed by (b), (e) and (f) together.

3. [45]

   The plaintiff submitted that the correct application of p 495 the AMA5 Guides is important. It identifies that the assessment of the degree of permanent impairment is a matter for clinical examination and assessment, and notes that “[t]here are many presentations of CTS” and that “[n]ot all symptoms are necessarily present in any one case”.

4. [46]

   The plaintiff argued that these statements make it plain that para 1 of p 495 of the AMA5 Guides identifies an overlap of symptoms consistent with the condition, and that not all symptoms need to be present. The plaintiff argued that in the circumstances, the AMA5 Guides clearly establish that clinical examination is the foundation for any assessment of impairment in respect of carpal tunnel syndrome.

5. [47]

   The second paragraph of the AMA5 Guides sets out the scheme of assessment with reference to three scenarios. If the assessment of the degree of permanent impairment is undertaken in accordance with scenarios 2 or 3, then because of how the rated assessment of upper limb extremity impairment is converted into WPI, the injured worker cannot obtain an assessment of 15% WPI or greater, which is the threshold for the availability of a work injury damages claim.

6. [48]

   Scenario 1 is the only scenario that permits an assessment that may satisfy the 15% degree of permanent impairment threshold.

7. [49]

   Scenario 1 identifies the following criteria:

8. [50]

   It is uncontroversial that the plaintiff satisfied the requirement for “electrical conduction delay(s)”. Accordingly, the material question for the Appeal Panel, which would have a crucial bearing on the attendant assessment of the degree of WPI, was whether the plaintiff also satisfied the requirement of “positive clinical findings of median nerve dysfunction”.

9. [51]

   The plaintiff submitted that despite the importance of clinical assessment and examination to the operation of the AMA5 Guides, especially to the application of scenario 1, the Appeal Panel did not examine the plaintiff, and the Appeal Panel dismissed the plaintiff’s request for examination.

10. [52]

    The plaintiff says it was an error for the Appeal Panel to fail to examine him, given that the AMA5 Guides are based fundamentally upon clinical examination and assessment.

11. [53]

    The Appeal Panel simply, and erroneously, stated at [12]:

12. [54]

    The plaintiff argued that the Appeal Panel’s statement was incorrect. The relevant provisions in the AMA5 Guides are founded upon clinical examination and assessment. The question of assessment of the degree of permanent impairment arising in this case required the AMS, and the Appeal Panel, to specifically consider which scenario applied. The relevant AMA5 Guideline therefore required the AMS and the Appeal Panel, as a core requirement, to undertake a clinical examination as the necessary foundation of any assessment.

13. [55]

    Although it was critical to determine whether the plaintiff met the requirement for “positive clinical findings of median nerve dysfunction”, the relevant AMA5 Guides provide no definition of what satisfies the criteria for the purposes of scenario 1. The plaintiff argued that the absence of a definition further suggests that clinical examination and assessment are essential. Nonetheless, the Appeal Panel’s conclusion at [54] was limited to the following inadequate observations:

14. [56]

    The plaintiff argued that the Appeal Panel’s reasons at [54] make it plain that it applied an undisclosed definition of median nerve dysfunction. The proper application of the AMA5 Guides required the Appeal Panel to make factual findings material to the application of the carpal tunnel syndrome assessment scheme, and, having made those findings, the Appeal Panel was then required to provide reasons as to why it was incorrect that the plaintiff be placed in scenario 1, and why it was correct that the plaintiff be placed in scenario 2.

15. [57]

    Rather, the Appeal Panel, in half a sentence, stated that there was “no evidence” that the plaintiff was suffering a median nerve dysfunction as defined by scenario 1.

16. [58]

    The Appeal Panel failed to explain its path of reasoning as to why there was “no evidence” of median nerve dysfunction. The plaintiff submitted that it is not possible to fill in the gaps to reconstruct its reasoning in reaching its conclusion. The plaintiff submitted that in this case, there was a whole body of evidence about clinical matters which fulfilled the description, in a clinical assessment sense, of “positive clinical findings of median nerve dysfunction”.

17. [59]

    The plaintiff argued that either the Appeal Panel did not consider that evidence, or it applied a definition that excluded it. Without a path of reasoning showing how it reached its decision, its process is unknown.

18. [60]

    The plaintiff referred to the decision of Sadsad v NRMA Insurance Limited [2014] NSWSC 126 (“Sadsad”), where Hamill J stated at [47]-[48]:

19. [61]

    The first defendant noted that ground [11](a) appears to involve multiple asserted errors:

20. [62]

    As to the first of those grounds, the first defendant argued that the Appeal Panel correctly construed and applied p 495 if the AMA5 Guidelines and cl 2.9 of the SIRA Guidelines. Having regard to the text of p 495, the Appeal Panel was correct to conclude that Scenario 1 only applied where there were positive clinical findings of median nerve dysfunction and electrical conduction delay. The Appeal Panel relied upon the nerve conduction studies of Dr Dowla which showed no evidence of specific nerve injury, which was consistent with scenario 2. It was open to the Appeal Panel to find that this meant there were no positive clinical findings of median nerve dysfunction, and that as such scenario 1 was not applicable.

21. [63]

    The plaintiff submitted that the Appeal Panel erred in concluding that scenario 1 applied only where there was “defined” median nerve dysfunction, when p 495 did not define median nerve dysfunction. The defendant argued that the Appeal Panel correctly and clearly set out the relevant criteria for scenario 1, demonstrating its understanding of the correct test at [24] and [47] of its decision. The defendant argued that at its highest, this ground of review challenged the Appeal Panel’s reasoning at [54] where it stated that “[w]hilst abnormal latencies were detected in the nerve conduction testing in the slowing of the median nerve, and there were some abnormal sensory latencies in the numbness complained of in the thumb and the index and little fingers, there is no evidence that [the plaintiff] was suffering a median nerve dysfunction as defined by [scenario 1].”

22. [64]

    As such, the defendant argued that this part of the plaintiff’s argument seeks to review a factual finding, which is not a jurisdictional error.

23. [65]

    The defendant argued that the Appeal Panel’s reasoning did not amount to an incorrect understanding or application of scenario 1. It was open to the Appeal Panel to conclude that the evidence before it, particularly the nerve conduction studies showing no evidence of a specific nerve injury, did not demonstrate that the plaintiff suffered from “median nerve dysfunction”. This did not require an express definition of “median nerve dysfunction” beyond that apparent from the term itself. Nor does the Appeal Panel’s statement “median nerve dysfunction as defined by [scenario 1]” imply that the Appeal Panel proceeded upon an unstated definition of scenario 1. Rather, the Appeal Panel’s decision makes it clear that it concluded that abnormal latencies did not amount to “dysfunction”.

24. [66]

    In reaching its conclusion that there was no evidence of “median nerve dysfunction”, the Appeal Panel at [50] considered Dr Dowla’s evidence of right median nerve slowing at the wrist, typical of carpal tunnel syndrome, but nonetheless concluded that this was not sufficient to satisfy the “dysfunction” required under scenario 1 ([54]). The defendant argued that the finding was clearly stated and entirely logical: if “right median nerve slowing at the wrist typical of carpal tunnel syndrome” were capable of amounting to “median nerve dysfunction”, all forms of carpal tunnel syndrome bearing that “typical” symptom would be able to satisfy scenario 1, limiting or eliminating the utility of the three “scenarios”. The identification of three separate scenarios required “dysfunction” to be given a meaning other than mere abnormality.

25. [67]

    As to the plaintiff’s submissions concerning failure to provide reasons, the defendant argued that the Appeal Panel set out its findings as to why scenario 2, as modified by cl 2.9 of the SIRA Guidelines, was applied. It noted that cl 2.9 provided a deviation from p 495 of the AMA5 Guidelines at [35]-[38] of its decision.

26. [68]

    It considered the 2017 Endrey-Walder Report and indicated why it did not accept Dr Endrey-Walder’s assessment of WPI. In particular, it did not accept Dr Endrey-Walder’s assessment on the basis that he was not aware of the modification to p 495 of the AMA5 Guides made by cl 2.9 of the SIRA Guidelines, and therefore failed to apply the appropriate AMA5 Guide.

27. [69]

    The Appeal Panel then explained at [55] that scenario 2, not scenario 1, was applicable. It stated that Dr Dowla’s nerve conduction studies showed, consistent with scenario 2, no evidence of specific nerve injury and no evidence of a median nerve dysfunction for the purposes of scenario 1.

28. [70]

    The defendant argued that the Appeal Panel’s reasons in each respect, including as to why scenario 2 was applicable and why scenario 1 was not, were sufficient to explain why the Appeal Panel reached its conclusion and not that argued by the plaintiff: see Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, 397 [121] per Basten JA.

29. [71]

    The defendant noted that the weight to be afforded to the evidence was a matter for the Appeal Panel: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, at [74] (Griffiths J). As the plaintiff accepts, the term “median nerve dysfunction” is not defined within p 495 of the AMA5 Guides. The defendant argued that the Appeal Panel correctly found at [50] that Dr Endrey-Walder was unable to consider the criteria in scenario 1 absent nerve conduction studies.

30. [72]

    The defendant argued that it was open to the Appeal Panel to determine that evidence other than (or which made no reference to) Dr Dowla’s conduction studies was incapable of establishing, or irrelevant to identifying, “median nerve dysfunction”. The Appeal Panel made clear the role it afforded to the nerve conduction studies at [58]: “The nerve conduction studies have confirmed the nature of the injury and the applicable method of assessment”. In turn, Dr Dowla’s evidence was considered by the Appeal Panel and found insufficient to amount to “median nerve dysfunction”. This was a finding within the Appeal Panel’s power to make. For these reasons, the defendant argued that there is no jurisdictional error or error of law.

31. [73]

    Ground [11](a) alleges that the Appeal Panel misapplied and misconstrued the operation of the AMA5 Guides and the SIRA Guidelines. In submissions and at the hearing of these proceedings, counsel for the plaintiff argued that p 495 of the AMA5 Guides conveys the “primacy” of clinical examination to an assessment of carpal tunnel syndrome, and that to give effect to its instructions, the Appeal Panel should have conducted a re-assessment of the plaintiff’s condition. At Part 4 of the plaintiff’s application to appeal against the decision of the AMS, he had ticked the box requesting to be examined by the Appeal Panel.

32. [74]

    However, this ground of appeal, insofar as it concerns a failure to re-examine the plaintiff, was not articulated in the summons. Moreover, there is no requirement for an Appeal Panel to re-examine a plaintiff in the context of a workers compensation claim. In order to re-examine a plaintiff, the Appeal Panel must first have identified an error in the MAC, which in this case the Appeal Panel declined to do: see NSW Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 [30]-[33] (Davies J); Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101 [40]-[42] (Harrison AsJ); Midson v Workers Compensation Commission [2016] NSWSC 1352 [50]-[57] (N Adams J).

33. [75]

    Ultimately, the Appeal Panel’s decision as to whether or not to re-examine a worker is clinical and discretionary: see Bukorovic v Registrar of the WCC [2010] NSWSC 507 at [43], [57] (Harrison AsJ); Vitaz v Westform (NSW) Pty Ltd [2010] NSWSC 667 [99] (Johnson J).

34. [76]

    For these reasons, the Appeal Panel’s decision not to re-examine the plaintiff was not a misconstrual of its function or of the AMA5 Guides and SIRA Guidelines, nor did it constitute a jurisdictional error.

35. [77]

    Grounds [11](a),(c)-(d) more generally allege that after declining to re-examination the plaintiff to determine if he exhibited “positive clinical findings of median nerve dysfunction”, the Appeal Panel applied an “undisclosed definition” of the condition in concluding that he did not.

36. [78]

    At [53]-[54], the Appeal Panel stated:

37. [79]

    Counsel for the plaintiff maintained that the Appeal Panel fell into error in concluding at [54] that “there is no evidence that Mr Zikari was suffering a median nerve dysfunction as defined by alternative (1).” Specifically, he alleged that the Appeal Panel erred in stating that there was “no evidence”, and in seeming to allude to a “definition” of median nerve dysfunction contained in scenario 1 or another undisclosed source. The plaintiff argued that for the Appeal Panel to operate on its own understanding of what “positive clinical findings of median nerve dysfunction” were, but fail to provide that definition, constituted a failure to provide legally sufficient reasons (T 8.30-32).

38. [80]

    The standard to which a medical Appeal Panel must provide reasons is set out in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64 (“Wingfoot”) at [55]:

39. [81]

    The first defendant also referred to Campbelltown City Council v Vegan (2006) 67 NSWLR 372, where McColl JA stated at [121]-[122]:

40. [82]

    It is by these principles that I assess the Appeal Panel’s reasons in relation to these and other grounds of appeal. The approach that I adopt is that both the AMS and the Appeal Panel’s decisions must be read as a whole, and that I “should not read the reasons of the decision maker with an eye finely tuned for error”: McGinn v Ashfield Council [2012] NSWCA 238 (“Ashfield”) per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 at [67] per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at 291.

41. [83]

    As such, the Appeal Panel statement that there was “no evidence” must be read fairly and as a whole: see Ashfield above at [79] of this judgment. It is my view that in the context of para [54], the Appeal Panel’s statement intends to convey that while there was evidence of abnormal latencies detected in the nerve conduction testing in the slowing of the median nerve, and of abnormal sensory latencies in the numbness complained of in plaintiff’s fingers, neither that evidence nor any other which the Appeal Panel considered constituted evidence of median nerve dysfunction under scenario 1. Counsel for the defendant noted that although the Appeal Panel may have “awkwardly” expressed its opinion, its function was to address the question of whether the AMS fell into error. The Appeal Panel’s finding, and its reasons, clearly convey that the AMS did not. Although it may have been “preferable” to provide more details, it is not a jurisdictional error not to have done so, particularly where the finding was that there was no error. For these reasons, it is my view that the Appeal Panel did not fall into error in this respect.

42. [84]

    Furthermore, the Appeal Panel’s reference to median nerve dysfunction “as defined by alternative (1)” must also be read with an eye not finely tuned for error. Understood in context, it is my view that the Appeal Panel may be read to refer simply to median nerve dysfunction as referred to, or used, in scenario 1. The paragraph merely communicates the finding of the Appeal Panel, which is that there was no error by the AMS and that there was not median nerve dysfunction for the purposes of scenario 1. As such, it is my view that the Appeal Panel’s reasons satisfy the standard set out in Wingfoot at [55], and that it did not err in applying p 495 of the AMA5 Guides. Grounds [11](a), (c)-(d) are not made out.

43. [85]

    The defendant submitted that ground [11](b) alleges that the Appeal Panel should have determined that the AMS was in error:

44. [86]

    The defendant argued that none of these errors appear to be pressed and ought to be regarded as abandoned.

45. [87]

    All three errors are expressed by reference to errors by the AMS. The defendant argued that either the relevant decision in respect of which judicial review is available is that of the Appeal Panel, not the MAC, or, if judicial review remains available in relation to the MAC, the Court should exercise its discretion to refuse relief.

46. [88]

    Further, the defendant noted that the Appeal Panel’s power is constrained by the grounds of appeal by s 328(2) of the WIM Act. To the extent that the errors alleged go beyond the grounds in the plaintiff’s appeal to the Appeal Panel, the Appeal Panel cannot have erred by either not considering them or not finding in the plaintiff’s favour.

47. [89]

    Furthermore, the defendant argued that the plaintiff’s grounds of appeal did not include any ground to the effect either that the wrong scenario was applied (rather, the plaintiff argued on his appeal to the Appeal Panel that p 495 of the AMA5 Guides ought not have been applied at all), or that the AMS had failed to make any findings or to state legally sufficient reasons as to why scenario 2, rather than scenario 1, was applied. As a consequence, the Appeal Panel was not only not required to consider these arguments, but it had no power to do so. These grounds of appeal thus raise no error of law on the part of the Appeal Panel.

48. [90]

    With regards to the plaintiff’s procedural fairness grounds, the defendant noted that they arise from the AMS’s “fail[ure] to deal with the Plaintiff’s articulated case through the materials of Dr Endrey-Walder that scenario 1 was the scenario that applied to the determination of permanent impairment”. The defendant noted that that was not the failure alleged in the plaintiff’s submissions to the Appeal Panel. Instead, the plaintiff alleged that the AMS had erred in adopting a method of assessment, and applying provisions of AMA5 Guides, which had not previously been considered or of which notice had not previously been given to the plaintiff.

49. [91]

    The Appeal Panel noted the plaintiff’s claim that he had not been afforded procedural fairness in that respect, but did not accept that claim. Once again, the Appeal Panel was neither required nor empowered to consider the error alleged, and so that ground of review reveals no error on the part of the Appeal Panel.

50. [92]

    Further, no jurisdictional error or error of law is revealed by any component of this ground. The defendant argued that it should be dismissed.

51. [93]

    With regards to grounds [11](e)-(f), the plaintiff submitted that Dr Endrey-Walder applied scenario 1 on the basis of the plaintiff’s complaints and symptoms, and understood that the plaintiff had only had one operation.

52. [94]

    The defendant argued that the Appeal Panel did not misunderstand Dr Endrey-Walder’s medico-legal opinion. As correctly set out in the Appeal Panel’s Decision, the 2017 Endrey-Walder Report (implicitly) and the 2018 Endrey-Walder Report (expressly) proceeded upon a misunderstanding of the effect of p 495 of the AMA5 Guides. The fact that the plaintiff had had only one operation was irrelevant in circumstances where, as expressly provided by cl 2.9 of the SIRA Guidelines, “[t]he assessment of carpal tunnel syndrome post-operatively is undertaken in the same way as assessment without operation”. The Appeal Panel referred to this misunderstanding at [49] as a “fail[ure] to appreciate that the [AMA5] Guides do not require that there be a surgical decompression”.

53. [95]

    Similarly, as the Appeal Panel correctly concluded at [50] the 2017 Endrey-Walder Report was incapable of applying scenario 1 in the absence of nerve conduction studies.

54. [96]

    Further or in the alternative, the defendant argued that to the extent that the Appeal Panel misunderstood Dr Endrey-Walder’s medico-legal opinion, that misunderstanding was not material to the basis on which the Appeal Panel rejected the 2017 Endrey-Walder Opinion and the 2018 Endrey-Walder Report. The Appeal Panel affirmed the AMS’s determination by considering the relevant evidence (in particular, Dr Dowla’s nerve conduction studies) and by concluding, having regard to that evidence, that scenario 2 applied rather than scenario 1. In circumstances where the Appeal Panel independently reached this conclusion without any material reliance upon any misunderstanding of either Dr Endrey-Walder Report, any misunderstanding would have been immaterial and thus incapable of giving rise to any jurisdictional error or error of law: see Minister for Immigration v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 at [45]-[50] (Gageler, Bell and Keane JJ).

55. [97]

    The defendant argued that no jurisdictional error or error of law is revealed by this ground, and that it should be dismissed.

56. [98]

    Grounds [11](b),(e)-(f) allege that the Appeal Panel erred in failing to reassess the plaintiff as satisfying the criteria for scenario 1, on the basis that it misunderstood the medico-legal opinion of Dr Endrey-Walder. The plaintiff submitted that Dr Endrey-Walder applied scenario 1 on p 495 of the AMA5 Guides, and that he also applied cl 2.9 of the SIRA Guidelines.

57. [99]

    The Appeal Panel’s relevant statements in relation to Dr Endrey-Walder’s report(s) began at [13]-[14] of its decision:

58. [100]

    At the hearing of these proceedings, counsel for the plaintiff characterised the Appeal Panel’s attitude towards Dr Endrey-Walder’s 30 August 2018 report as “hostile” (T 17.31). He argued that the Appeal Panel’s statement at [14] that the report “simply seeks to cavil with the decision of the AMS, whose opinion is conclusively presumed to be correct” reveals a misunderstanding of the operation of ss 327-328 of the WIM Act. Far from enshrining the opinion of an AMS, those provisions provide for the mechanism by which a worker may challenge a decision when it is incorrect.

59. [101]

    Sections 327 and 328 of the WIM Act are set out at [16]-[17] of this judgment. Section 328(2) limits the Appeal Panel’s powers of review. Counsel for both the plaintiff and defendant agreed that following the amendments made to s 328 of the WIM Act in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (“Siddik”), the Appeal Panel’s statutory task is two staged (T 19.18-22). The first is to determine if the AMS fell into error; the second is to review and correct that error.

60. [102]

    In Siddik, the Court of Appeal had held that while an appeal panel is prima facie confined to the grounds the Registrar has allowed, it can consider other grounds capable of coming within one or other of the heads of review under section 327(3) of the WIM Act, reproduced at [16] of this judgment. However, following amendment which took effect in 2011, s 328 of the WIM Act now provides that an appeal of a MAC is limited to the grounds on which the appeal is made.

61. [103]

    In this case, when specifying the grounds of appeal in its application to appeal against the decision of the AMS, the plaintiff only ticked the boxes for “the assessment was made on the basis of incorrect criteria” and “the medical assessment certificate contains a demonstrable error” (s 327(3)(c)-(d)). However, at [2] of its decision, the Appeal Panel identified the appellant’s grounds of appeal as including “availability of additional relevant information” (s 327(3)(b)). As [14] of its decision excerpted above, the Appeal Panel acknowledged that the plaintiff’s failure to tick the box correlating with s 327(3)(b) seemed to have been an omission, and determined to address the content of the plaintiff’s submissions in relation to the new report.

62. [104]

    The Appeal Panel’s statements at [13]-[14] of its decision must also be understood in the context of s 328(3) of the WIM Act. The report of Dr Endrey-Walder to which the Appeal Panel refers at [14], dated 30 August 2018, was not before the AMS. Pursuant to s 328(3) of the WIM Act, the Appeal Panel could only receive such a report if it constituted “new evidence”, which is evidence “not available to the party before the medical assessment” and which “could not reasonably have been obtained by the party before that medical assessment”. In light of the statutory context, it is my view that read as a whole and fairly, the Appeal Panel’s dismissal of the report does not reflect a general hostility towards medical opinions which differ to that of an AMS, but rather a restatement of its statutory duty to reject fresh reports which do not constitute new evidence for the purposes of an appeal.

63. [105]

    The Appeal Panel then addressed the content of Dr Endrey-Walder’s 20 December 2017 report at [42]-[43]:

64. [106]

    The Appeal Panel then continued to address the content of the 2017 report at [45]-[50] of its decision, reproduced at [40] of this judgment. The Appeal Panel noted that Dr Endrey-Walder’s 2017 report revealed his unawareness of the modification made to the AMA5 Guides by cl 2.9 of the Guidelines, such that he mistakenly referred to Tables 16-15 and 10a of the AMA5 Guides instead of first considering the three alternate categories at p 495. As such, it was the Appeal Panel’s view that Mr Zikari’s reliance upon the report was misconceived (at [49]).

65. [107]

    At [50] of its decision, the Appeal Panel continued:

66. [108]

    The Appeal Panel then continued at [51]-[54] of its decision to consider whether scenario 1 was applicable to the determination of permanent impairment. The Appeal Panel concluded at [54] that scenario 2 was applicable in light of the evidence before it. Specifically, it found that as it did not consider there to be evidence of median nerve dysfunction, the plaintiff did not satisfy the criteria for scenario 1. That conclusion was one which the Appeal Panel was entitled to make, and its reasons sufficiently addressed its line of reasoning, including its reasons for disagreeing with the reports of Dr Endrey-Walder.

67. [109]

    For these reasons, it is my view that the Appeal Panel did not fail to engage with the plaintiff’s articulated case through the materials of Dr Endrey-Walder as alleged in grounds [11](e)-(f). It is also my view that the Appeal Panel did not fail to afford the plaintiff procedural fairness by failing to deal with the plaintiff’s articulated case through the materials of Dr Endrey-Walder that scenario 1 on p 495 was the scenario that applied, as alleged under Ground [11](b). As such, grounds [11](b),(e)-(f) reveal no error of law.

68. [110]

    The application for judicial review fails.

69. [111]

    The summons filed 8 February 2019 is dismissed.

70. [112]

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