Woolworths Limited v Michelle Howarth

1. [1]

   On 18 January 2008 Michelle Howarth (the first defendant or worker) was working for Woolworths (the plaintiff or employer). In attempting to access a packet of crumpets she developed a sharp shooting pain that shot up her left arm and shoulder and into her neck. There is no dispute that the injury so occasioned was a work related injury and that Ms Howarth was eligible for payments under the statutory scheme established by the Workers Compensation Act 1987 (NSW) (the Act) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act).

2. [2]

   The first defendant submitted a claim form on 26 January 2008. In the section of the form concerning “what part of body was affected (e.g. upper right arm)”, the claim form referred to the “left shoulder/back”. On 21 January 2014 the first defendant made a permanent impairment claim. In the section entitled “body system affected by the injury” she identified the “cervical spine and left upper extremity”. In the context of the claim for permanent impairment, a “medical dispute” (as defined in s 319 WIM Act) developed between the parties.

3. [3]

   Following a telephone conference on 9 July 2014, a Senior Arbitrator of the Workers Compensation Commission remitted the matter to the Registrar for referral under s 321 WIM Act to an approved medical specialist (AMS) to assess the defendant’s whole person impairment (WPI). Associate Professor Cyril Wong was appointed as the AMS. On 3 September 2014, Dr Wong published a Medical Assessment Certificate in which he assessed the worker’s WPI at 17%. The plaintiff seeks an order that the Certificate be quashed. Dr Wong is the second defendant and submits to the orders of the Court.

4. [4]

   Before seeking judicial review in this Court, the employer applied under s 327 WIM Act to appeal against the medical assessment to a review panel. On 16 January 2015, a delegate of the Registrar of the Workers Compensation Commission made an order under s 327(4) WIM Act that the appeal was not to proceed. This was on the basis that none of the grounds specified in s 327(3) were made out. The summons also seeks review of this decision. The Registrar is the third defendant and has also filed a submitting appearance. However, the primary subject of the dispute before me was whether Dr Wong conducted the medical assessment in accordance with the law. Apart from the contention that the Registrar erred in failing to recognise that Dr Wong’s Certificate was “made on the basis of incorrect criteria” or “contains a demonstrable error”, there appears to be no additional substantive argument that the decision of the Registrar was attended by error.

5. [5]

   The employer’s case is that it was not aware prior to Dr Wong’s assessment that the worker suffered (or said that she suffered) from right shoulder pain resulting (indirectly) from her work related injury. A medical expert retained by the employer (Dr Robert Breit) identified restricted flexibility in the right shoulder in the course of preparing a report dated 28 June 2012. However, Dr Breit proceeded on the basis that the right shoulder was “normal” and took the lack of flexibility in that joint as a “baseline” for the application of the guidelines that inform the assessment of WPI. Accordingly, in calculating the worker’s WPI, Dr Breit deducted the loss of mobility in the right joint from the loss of mobility in the left joint in accordance with the guidelines. The AMS took a different approach to the reduced flexibility in the right shoulder. His opinion was that the loss of mobility in the right shoulder was caused by overuse consequent upon the workplace injury. Accordingly, it was not representative of a “normal” lack of mobility in the joint and therefore not appropriate to be used as a baseline to reduce the assessment of the defendant’s WPI.

6. [6]

   At the heart of the present application is the question of whether the approach of the AMS was open as a matter of law and whether, in approaching the matter in this way, he fell into jurisdictional error. The employer’s contention is essentially two fold. Firstly, it says that it was denied procedural fairness. Secondly, it submits that Dr Wong failed to apply the provisions of the relevant guidelines and that he erred in accepting what the worker told him and/or in failing to provide adequate reasons for his decision.

7. [7]

   The orders sought by the plaintiff are set out in its Summons:

8. [8]

   The grounds are as follows:

9. [9]

   It is convenient to dispose of ground 4 first and quickly. This ground asserts error in the failure of the Registrar to allow the plaintiff to appeal against the decision of the AMS. The ground, as pleaded, asserts specific error in “misconceiving the bases of the appeal” particularly in what were paragraphs 8 and 9 of the proposed appeal. These related to the argument that the worker had not previously alleged that the restrictions in movement to the right shoulder arose from overuse as a result of the injury to the left shoulder.

10. [10]

    In the way the case was argued in this Court, it will not be necessary to address this ground in any detail. The plaintiff indicated at the hearing that its case for judicial review was essentially directed to the medical assessment and that ground 4 was raised as “back up”. In essence, the plaintiff argues that the Registrar failed to recognise the errors in the Medical Assessment Certificate, and in the approach taken by the AMS, which form the basis of the application for judicial review in this Court. The first defendant accepts that if jurisdictional error is established in the medical assessment, the decision of the Registrar will necessarily need to be quashed also. As it was put by Senior Counsel for the plaintiff:

11. [11]

    The parties agree that if the plaintiff succeeds in its case that the Medical Assessment Certificate should be quashed, the matter would then be remitted to the Commission to be determined according to law. That may involve appeal proceedings to a medical review panel or a further determination by an Arbitrator as to whether the worker’s right shoulder injury should be included as part of her claim. As to the second of those alternatives, in a note provided after the hearing (by email on 25 September 2015 – marked in chambers as MFI 3), the employer undertook not to press any limitation that may arise under s 322A WIM Act.

12. [12]

    Dr Breit examined the worker on 10 March 2011 and prepared a report dated 10 March 2011. He examined her again on 25 June 2012 and prepared a report on 28 June 2012 in which he assessed her WPI at 4%. Dr James Bodel examined the first defendant on 23 December 2013 on a referral from her solicitors. He assessed her WPI at 12%. The AMS examined the worker on 20 August 2014 and considered the various documents referred by the Registrar (including the reports of Dr Breit and Dr Bodel). He assessed the WPI at 17%.

13. [13]

    The different assessments as to the defendant’s WPI arose for three reasons. Firstly, Dr Breit assessed the WPI arising from the injury to the cervical spine at “zero percent” while Dr Wong and Dr Bodel assessed this aspect of the WPI at 7%. Secondly, Dr Wong found that there was a “genuine deterioration” in the left shoulder injury. There is no complaint as to those aspects of the Medical Assessment Certificate.

14. [14]

    Dr Breit assessed the WPI arising from the left shoulder at 4% while Dr Wong assessed it at 11%. It is this aspect of the Certificate that the plaintiff says is attended with jurisdictional error. The difference in outcome arises from the approach that the two doctors took to the restrictions in movement to the worker’s right shoulder. The plaintiff submits that the right shoulder was not part of the referral and that the AMS had “gone outside his remit” by proceeding on the basis that the problem with the right shoulder arose from overuse due to the injury to the left shoulder. As a result, the plaintiff submits that it was denied procedural fairness. It also submits that the AMS failed to apply the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fifth Edition) (“AMA 5”) concerning “contralateral ‘normal’ joints”.

15. [15]

    Dr Breit’s report noted:

16. [16]

    The basis of Dr Breit’s calculation of the WPI is as follows:

17. [17]

    The AMS was aware of the approach taken by Dr Breit, noting the basis of those calculations at p. 6 of the Certificate. The Certificate set out the history of the defendant’s injuries:

18. [18]

    As to the specific injuries, the Certificate noted:

19. [19]

    The AMS then set out his findings as to the worker’s shoulder in the following table:

20. [20]

    The reasons for the final assessment are set out at the end of the Certificate:

21. [21]

    While not covered by any of the specific grounds of appeal, an integral part of the plaintiff’s argument is that Dr Wong went beyond the terms of the questions and issues remitted for his consideration by the Registrar. Further, and specifically referable to Ground 1 in the summons, the plaintiff asserts it was denied natural justice by the AMS.

22. [22]

    The terms of the referral were as follows:

23. [23]

    The plaintiff submits that by making an assessment that the loss of movement to the right shoulder was caused by overuse resulting from the disability to the left shoulder, the AMS exceeded his jurisdiction. It notes that the first time that the first defendant complained about pain in her right shoulder and its cause (overuse) was during the examination by Dr Wong. Counsel for the first defendant could identify no earlier evidence of such a complaint in the extensive material but referred to some earlier investigation of the right shoulder and the report of Dr Breit.

24. [24]

    It is true that Item 1 in the referral to Dr Wong only made specific reference to the left shoulder and cervical spine and made no reference to the right shoulder. However, Item 2 referred to the material to which the AMS was to have access. This included the employer’s reply to the application to resolve the dispute. That reply included a number of annexed documents including, importantly, Dr Breit’s report of 28 June 2012 in which the lack of mobility in the right shoulder was used as a baseline (i.e contra-lateral “normal” joint) against which the loss of movement in the left shoulder was assessed. Dr Wong took a different approach to this disability. A failure to consider Dr Breit’s approach and to come to some conclusion as to the relevance and significance of the issues in the right shoulder would have been an omission of which the employer would have been entitled to complain. The fact that the AMS came to a different (medical) conclusion does not mean that he made a jurisdictional error or exceeded the terms of the referral.

25. [25]

    It is important to observe that Dr Wong did not add the loss of mobility in the right shoulder in his calculation of the WPI. Had he done so, he would have exceeded his jurisdiction: cf Wikaira v Workers Compensation Commission [2005] NSWSC 954. The AMS did not make an assessment of the restriction in movement in the right shoulder and the consequent WPI for the purpose of treating it as a separate injury or disability. Rather, his reference to the right shoulder was merely to consider the approach adopted by Dr Breit and to determine whether his assessment of the impairment to the left shoulder should be reduced by reference to a “normal” contralateral joint in accordance with the AMA 5 Guidelines.

26. [26]

    The plaintiff relied on the case of Wikaira v Workers Compensation Commission. In that case, a doctor appointed as an AMS purported to find that there was no injury in circumstances where the fact of the injury had already been established. The task of the AMS was to assess the WPI based on the injury, not to determine whether there was an injury at all. That is not this case. Dr Wong did not proceed on the basis that was contrary to the findings made by the Arbitrator or the facts agreed by the parties. He did not determine either that there was no injury, or that there was an additional injury that needed to be assessed to determine the total WPI. Rather, he considered the approach that the employer’s doctor had taken to the issue identified in the right shoulder. That approach was an integral part of the medical dispute that was referred to him.

27. [27]

    The plaintiff also sought to rely on the Court of Appeal’s decision in Haroun v Rail Corporation [2008] NSWCA 192; 7 DDR 139. In that case an arbitrator made findings that a worker’s (various) injuries contributed to the impairment that she suffered. The matter was referred to an AMS to make an assessment of the worker’s WPI. Rather than acting on the arbitrator’s finding, the AMS found that some of the injuries resulted from a previous injury or pre-existing condition. This involved the application of s 323 WIM Act (which is not relevant to the current case). The worker appealed under s 327(3) and the Registrar referred the appeal to an Appeal Panel. The Appeal Panel held that the AMS’s comments “were inconsistent with the referral and the Arbitrator’s findings as to injury.” However, the panel agreed with the ultimate conclusions made by the AMS, noting that the Arbitrator “had purported to make findings about permanent impairment” and that this was the function of the AMS, not the Arbitrator. The worker appealed to this Court and the dismissal of her claim for judicial review was, in turn, subject of an appeal to the Court of Appeal. The worker contended that the appeal panel was bound to give effect to its finding that the AMS’s finding was inconsistent with that of the Arbitrator. This argument was rejected. Handley AJA (with whom McColl JA and McDougall J agreed) held that the Appeal Panel was not only entitled to disregard the finding of the Arbitrator but was bound to do so if it came to a different conclusion. His Honour noted that the question of the degree of permanent impairment and the question of whether there should be apportionment based on a pre-existing injury were “medical disputes” to be determined by the AMS and appeal panel, not by the arbitrator.

28. [28]

    The case of Haroun v Rail Corp does not support the contention that the AMS erred by exceeding the terms of the reference. Dr Wong’s statutory role was to assess the WPI. In doing so, he had access to the report of Dr Breit. Because of the contents of that report, the AMS was required to consider the restricted movement in the right shoulder and the approach taken by Dr Breit (that is, to treat it as “normal” and to subtract it as a baseline in accordance with AMA 5 Guidelines).

29. [29]

    Further, the plaintiff was not denied natural justice. It was provided the opportunity to reply to the worker’s application to resolve the dispute. In providing its reply, the plaintiff included the report of Dr Breit in which he referred to the “interesting” finding in relation to the right shoulder and made the somewhat obscure remark that it was “said to be asymptomatic”. Based on those things, Dr Breit found that the 7% upper extremity impairment “must be subtracted from the impairment assessment of the right side [sic]”. The plaintiff says that this is the approach that the AMS should have adopted. It had the opportunity to put that position and did so through the report of Dr Breit’s. Further, the AMS took Dr Breit’s opinion and approach into account. However, he came to a different medical opinion as to the proper application of the AMA 5 Guidelines (a matter to which it will be necessary to return) and the role that the restriction to the right shoulder should play in an assessment of the worker’s WPI. Although not subject of argument, Dr Bodel did not reduce the WPI resulting from the left shoulder injury by reference to the findings relating to the right shoulder and his report records different findings as to the right shoulder.

30. [30]

    It is established that an Appeal Panel reviewing a certificate issued by an AMS is required to afford the parties procedural fairness: see, for example, Markovic v Rydges Hotels Ltd [2009] NSWCA 181 at [34]-[35], Hatch v Peel Valley Exporters Pty Ltd [2010] NSWSC 23 at [39]-[41]. In those cases, the Appeal Panel introduced a new issue and procedural fairness required the party affected to be afforded an opportunity to be heard. In each case reference was made to the judgment of McColl JA in Siddick v WorkCover Authority of NSW [2008] NSWCA 116 at [104]:

31. [31]

    It is accepted that similar considerations arise as to a medical certificate issued by an approved medical specialist and that Dr Wong was required to provide the parties procedural fairness. However, the issues surrounding the plaintiff’s right shoulder were not new – it was raised by the doctor retained by the employer.

32. [32]

    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: see, for example, Hoffmann-La Roche v Trade Secretary [1975] AC 295 at 369, Re Minister for Immigration and Multicultural Affairs and Anor; Ex Parte Miah [2001] HCA 22; 206 CLR 57 at [31], Sinnathamby v Minister for Immigration (1986) 86 ALR 502 at 506, Ansett v Minister (1987) 72 ALR 469 at 499, Asiamet (No 1) v Federal Commissioner of Taxation [2003] FCA 35 196 ALR 692. In Asiamet Emmett J explained at [79]:

33. [33]

    A question that arose at the hearing was what action the AMS could have taken in order to afford the plaintiff natural justice. Various answers were provided to this question. Firstly, the plaintiff submitted that Dr Wong could have consulted another medical practitioner under s 324 WIM Act. Alternatively, it was put that “he should have referred it back to the Registrar and he can issue a medical assessment certificate that is not able to be assessed at that time. He could have sent it back to the Registrar and say: Look, in this situation this should be determined before I issue my certificate.” A question as to where the power to do that existed in the legislation remained unanswered. Finally, the following submission was made:

34. [34]

    That submission leads to the question of whether Dr Wong acted unlawfully in the approach that he took to the relevant guidelines. I am not otherwise persuaded that the plaintiff was denied procedural fairness by the failure of Dr Wong to put it on notice that he proposed to approach the matter in a different manner to that adopted by Dr Breit.

35. [35]

    No specific ground of appeal was addressed to the contention that the AMS erred or constructively failed to exercise his jurisdiction by failing to apply the AMA 5 guidelines. However, the submission was integral to the plaintiff’s submissions in support of each of grounds 1 – 3.

36. [36]

    Section 376 WIM Act provides that the WorkCover Authority may issue guidelines, including with respect to the assessment of the degree of permanent impairment. Section 377 provides that guidelines with respect to the degree of permanent impairment must be developed in consultation with relevant medical colleagues. Section 322 provides that “the assessment of permanent impairment of an injured worker … is to be made in accordance with the WorkCover Guidelines”. The Authority has issued such guidelines and the parties agree that the relevant version is the WorkCover Guides for the Evaluation of Permanent Impairment (3rd ed 2009, NSW Government) (“the Guides”). Clause 1.1 notes that the Guides are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed 2002, American Medical Association) (“AMA 5”) and 1.3 notes that the Guides adopt AMA 5 in most cases. Clause 2.1 of the Guides refers to AMA 5 Chapter 16 (pp 433-521) as the relevant section concerning the upper extremities. Clause 2.14 notes that “most shoulder disorders with an abnormal range of movement are assessed according to AMA 5 section 16.4”.

37. [37]

    There is no submission that the AMS did not otherwise approach his task by reference to the Guides and with the relevant parts of AMA 5. However, the plaintiff submits that the AMS failed to apply the following part of AMA 5:

38. [38]

    The approach taken by Dr Breit was to deduct the value of the impairment in the right shoulder (7%) from the value of the impairment in the left shoulder (14%), thus resulting in a 7% upper extremity impairment. This translated (according to the relevant conversion chart in AMA 5) to a WPI of 4%. There are two observations to be made in regard to this approach. First, the approach involves an assumption that the right upper extremity was a “normal” joint. Dr Breit appeared to base this assumption on the fact that it was “said to be asymptomatic”. The second is that Dr Breit used mandatory terms in saying that the 7% impairment “must be subtracted from the impairment assessment of the right (sic) side” whereas the terms of AMA5 is permissive (“can serve as a baseline”).

39. [39]

    The AMS (Dr Wong) was conscious of AMA 5 and its provisions relating to “contralateral ‘normal’ joints”. He was also familiar with the way in which they might impact on an assessment of upper extremity impairment. He referred to and considered the approach and conclusion taken in Dr Breit’s report. However, the AMS noted that the worker told him that:

40. [40]

    The AMS also noted that his assessment was worse than the earlier assessment because the worker had (on advice) not taken her medication in advance of the examination. Based on his clinical examination he was “happy with the cooperation from Ms Howarth in my examination. I believe that there is a genuine deterioration in her left shoulder.”

41. [41]

    It was open to the AMS to approach the matter in the way that he did. It was open to him to come to a different medical opinion to the one reached by Dr Breit. He assessed the loss of movement in the right shoulder and set out the relevant values in a chart on page 4 of his report. The chart identified (on the right side) a 10% upper extremity impairment (UEI) which converted to a 6% WPI.

42. [42]

    It is important again to note that he did not add the numerical value of the restriction to the right shoulder to his total assessment of the WPI. In other words, he did not treat the impairment to the right shoulder as a separate impairment or injury resulting from the same incident: cf s 322(2) WIM Act. As I have said earlier in this judgment, had he done so he would have fallen into the error for which the plaintiff contends. Rather, the AMS made a medical assessment and determined that the right shoulder impairment ought not to be deducted from the 11% WPI in the left shoulder.

43. [43]

    As required by AMA 5 he explained the rationale of his decision in the report.

3. The Second Defendant failed to give any reasons or adequate reasons why he accepted the First Defendant’s version in the face of all the material before him.

1. [44]

   These grounds can conveniently be dealt with together and require some consideration of the statutory basis of the examination conducted and Certificate issued by the AMS.

2. [45]

   Section 319 defines “approved medical specialist” and “medical dispute”. Section 320 provides for appointments of approved medical specialists by the President. Section 321 provides for referral of medical disputes to an AMS. The nature of the scheme was explained by Emmett JA (with whom Ward JA agreed) in Bindah v Carter Holt Harvey Woodproducts [2014] NSWCA 264:

3. [46]

   Section 324 sets out the powers of the AMS and these include the power to “require the worker to submit herself for examination by the approved medical specialist.” The AMS conducted a medical examination in the present case and it was on the basis of that examination, along with the extensive documentation provided by each of the parties, that the AMS reached his medical conclusion. There is nothing in the material that supports the suggestion that he “merely accepted” what the worker told him or that he failed to “test that version against other evidence”. The Certificate identified the documentary evidence as being the material “listed in the referral form from the Registrar dated 10 July 2014”. The Certificate of Determination under s 294 dated 9 July 2014 said:

4. [47]

   The contents of the Certificate, and the reference to other reports within the material, suggests that Dr Wong was familiar with and took into account the documentary evidence. Dr Wong indicated that he was satisfied with the co-operation of the worker and accepted what she said about her right shoulder pain and impairment. That involved an issue of, or in the nature of, causation and was the kind of “[finding] of fact necessary for the performance of the function” that was given to the AMS under the WIM Act: cf Bindah at [110].

5. [48]

   It is not for this Court to conduct a merits review of the decision taken by the AMS. Not all factual or legal errors give rise to an appropriate case for judicial review. The Workers Compensation Scheme, and the legislative framework under which it operates, cast the responsibility of assessing the worker’s WPI upon AMS and not on this Court. It is not appropriate to parse the language of the Certificate or to examine Dr Wong’s reasons with a critical eye attuned to error: see, for example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272, Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 287. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-272:

6. [49]

   See also, for example, Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 136 ALR 84 at 94-95 (Sackville J), Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36] (Handley AJA), Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [121]-[122] (Basten JA).

7. [50]

   Of course, there are limits to the proposition that an administrative decision maker's reasons should be construed beneficially. In SZCBT v Minister for Immigration and Multicultrual Affairs [2007] FCA 9, Stone J said at [26]:

8. [51]

   Further, to "fulfil a minimum legal standard, the reasons need not be extensive", but "where more than one conclusion is open, it will be necessary for the [decision maker] to give some explanation of its preference for one conclusion over another": Campbelltown City Counsel v Vegan (supra) at [121]-[122] (Basten JA).

9. [52]

   This is a case where there was more than one conclusion or approach available in relation to the issue with the worker’s right shoulder and the AMA 5 guide to contra-lateral normal joints. It was necessary for the AMS “to give some explanation of its preference for one conclusion over another”. Section 325(2) also required the AMS to provide reasons. Clause 1.41 of the WorkCover Guides required that the report be “accurate, comprehensive and fair” and 1.42 required other reports to be appropriately referenced.

10. [53]

    A fair reading of Dr Wong’s report shows that he fulfilled each of these obligations. He explained the reasons that he took a different approach to Dr Breit and the method that he used in coming to his conclusions. Those reasons were not irrational or unreasonable.

11. [54]

    While a different decision maker may have taken a different approach, the report does not demonstrate that Dr Wong misconceived his task or otherwise failed to exercise his function in accordance with the law.

12. [55]

    The specific grounds raised in the summons are not established and I am not otherwise satisfied that the AMS fell into jurisdictional error or that the Medical Assessment Certificate is attended with error.

13. [56]

    Accordingly, the summons must be dismissed and the plaintiff should pay the first defendant’s costs.