Workers Compensation Nominal Insurer v Arcaba

1. [1]

   The First Defendant (the worker) was injured on a construction site when stripping form work on 3 July 2009. He fell awkwardly onto his knees when a beam suddenly flipped up. In falling and twisting to avoid a three metre drop behind him he injured his lower back, his right shoulder and his neck.

2. [2]

   The worker’s employer, Brooklyn Labour Pty Ltd (the Fourth Defendant) was uninsured and as a result the Plaintiff became liable to pay compensation to the worker under the Uninsured Liability Scheme.

3. [3]

   On 27 March 2012 the worker made a claim for lump sum benefits pursuant to s 66 of the Workers Compensation Act 1987 (NSW) claiming 16% whole person impairment (WPI) in respect of his lumbar spine, cervical spine and right upper extremity. The claim was referred to an Approved Medical Specialist, Dr John Beer, for assessment. Dr Beer assessed the worker’s lumbar spine at 11% WPI, his cervical spine at 14% and his right upper extremity at 3%. The combined certificate was issued at 25% applying Combined Table values of sub-totals.

4. [4]

   The Plaintiff brought an appeal against Dr Beer’s assessment but there was no challenge to Dr Beer’s assessment of 11% WPI for the lumbar spine. The Medical Appeal Panel (the First MAP) had one of its members, Dr Burke, examine the worker. The First MAP issued its decision on 29 October 2013. It assessed the worker’s WPI at 14% being lumbar spine 11%, cervical spine 0% and right upper extremity 3% (the First MAP reasons). It revoked the assessment by Dr Beer. A Certificate of Determination ordering the Plaintiff to pay s 66 lump sum compensation in respect of the 14% WPI was issued by the Registrar of the Workers Compensation Commission on 22 November 2013.

5. [5]

   On 27 November 2013 the worker was examined by Dr Brian Stephenson. Dr Stephenson issued his report on 5 December 2013 and assessed the Plaintiff’s WPI at 7% for the cervical spine and 5% for the right upper extremity.

6. [6]

   On 12 February 2014 the worker filed an Application to Resolve a Dispute in the Workers Compensation Commission seeking additional lump sum compensation in accordance with the assessment by Dr Stevenson. On 8 May 2014 that claim was referred to an AMS Dr Roger Pillemer. Dr Pillemer assessed the worker at 28% WPI consisting of 11% for the lumbar spine, 15% for the cervical spine and 5% for the right upper extremity. Dr Pillemer simply accepted the lumbar spine assessment by Dr Beer when issuing his certificate.

7. [7]

   On 29 September 2014 the Plaintiff appealed against that assessment to a Medical Appeal Panel. The MAP (the Second MAP) issued its Statement of Reasons and assessment on 23 July 2015. The Second MAP confirmed the medical assessment certificate given by Dr Pillemer.

8. [8]

   It is in those circumstances that the Plaintiff filed the present Summons on 23 October 2015 seeking to quash the decision by the Second Defendant (the Second MAP) and seeking that the proceedings be remitted to the Third Defendant (the Registrar) to refer the matter to a new Medical Appeal Panel to determine the matter according to law. The grounds upon which the orders are sought are these:

The Second MAP reasons

1. [9]

   After setting out the background, the reference by the Registrar, the Panel’s preliminary review, the decision not to conduct a further examination and a reference to some decisions of the Court of Appeal concerning the Panel’s obligations, the Second MAP said this:

Submissions

1. [10]

   As to ground 1, the Plaintiff points to what was said in paragraph 17 of the Second MAP reasons as follows:

2. [11]

   As to ground 2, the Plaintiff submitted that there were three errors on the face of the record. The first of these was said to appear at paragraph 20 where the Second MAP reasons state:

3. [12]

   The second error was said to appear at paragraph 21 where the Second MAP’s reasons read:

4. [13]

   The third error was said to be a mis-statement at paragraph 22 of the Second MAP’s reasons of the Plaintiff’s submissions on the appeal. Paragraph 22 read this way:

5. [14]

   In relation to ground 3, the Appellant submitted that the appeal raises the contradiction between the 0% assessment by the previous MAP and the 15% by Dr Pillemer when Dr Pillemer did not even refer to the First MAP’s reasons or give any reasons for the difference in the assessments when Dr Burke’s assessment occurred four years and four months after the injury and Dr Pillemer’s occurred five years and two months post injury.

6. [15]

   The Plaintiff pointed to four instances by the Second MAP of a failure to give reasons. First, there was no explanation given by Dr Pillemer or the Second MAP of the different considerations of the CT scan by Drs Burke and Pillemer. Dr Burke who viewed the actual scans was not satisfied that the CT scan showed any disc lesion whereas Dr Pillemer appeared merely to have summarised the radiologist’s interpretation of the CT scan. Because there was a fundamental difference between the two interpretations there was an obligation on Dr Pillemer and the second MAP to given reasons to explain that difference.

7. [16]

   Secondly, there was no explanation provided by Dr Pillemer or the Second MAP why the assessment of WPI for the right upper extremity had increased from 3% (as assessed by Drs Beer and Burke in 2013) to 5% as assessed by Dr Pillemer.

8. [17]

   Thirdly, the Second MAP’s reasons, whilst saying that it may have been preferable for Dr Pillemer to refer to the first MAP decision, determined that his failure to do so had not compromised his reasons or conclusions. The Second MAP’s reasons focused in that regard on the wrong issue, considering only the assessment by Dr Pillemer at the time he conducted the assessment. Dr Pillemer and in turn the Second MAP were required to assess the worker’s WPI as a result of the injury. It was not sufficient in that regard simply to re-examine the worker and come to a different conclusion without giving reasons why there were fundamental differences in the bases of assessment.

9. [18]

   Fourthly, at paragraphs 27 and 32 of its appeal submissions the Plaintiff submitted that there was a demonstrable error in Dr Pillemer’s decision failing to address the issue as to why there was a significant deterioration within a 12 month period. The Second MAP’s reasons completely failed to address that appeal point.

10. [19]

    As to ground 4, the Plaintiff submitted that in the presence of the First MAP’s reasons the certificate by Dr Pillemer as confirmed by the Second MAP’s reasons is so wrong as to be perverse. That is highlighted by the failure to explain the difference between the two.

11. [20]

    The worker submitted that the various overlapping errors identified by the Plaintiff were essentially summed up by the complaint in paragraph 24 of the contentions in the Summons, namely, that the difference between Dr Pillemer’s assessment (accepted and confirmed by the Second MAP) was so wrong as to be perverse because of its difference with the assessment of the First MAP that was said to be binding and conclusive.

12. [21]

    The worker submitted that the assessment by Dr Burke and its acceptance by the First MAP was not binding at the time of the subsequent medical assessment by Dr Pillemer. Once the Commission had determined to appoint Dr Pillemer to determine the question of the degree of permanent impairment, he was required to deal with all aspects of the assessment and any prior assessment such as that of Dr Burke had historical status only. The worker submitted that the statutory task to be performed by Dr Pillemer was only to make findings and state reasons relevant to that assessment at the time it was carried out. His task did not include or extend to adjudicating on competing opinions of other assessments.

13. [22]

    The worker submitted that the type of obligation discussed in Campbelltown City Council v Vegan (2006) 67 NSWLR 284; [2006] NSWCA 372 at [120]-[122] did not arise because the statutory task for Dr Pillemer was assessing the worker's physical injury on the day of consultation. That involved applying the Guidelines to see if radiculopathy was present. It was only of historical interest if Dr Burke had reached a different decision on radiculopathy at the earlier time.

14. [23]

    The worker submitted that it was an error for the Plaintiff to focus on whether there was some form of deterioration that needed to be the subject of findings or explanation. The determination was whether the definition for radiculopathy was satisfied. Any focus on deterioration would arguably have been an irrelevant consideration to the statutory task being undertaken.

15. [24]

    The worker submitted that the Second MAP correctly identified the issues before it and the submissions of the Plaintiff. The Second MAP noted that Dr Pillemer had not made reference to Dr Burke’s assessment but held that that did not in any way compromise Dr Pillemer’s reasons or conclusions.

16. [25]

    The worker accepted that there was some mislabelling of body parts in the Second MAP’s Statement of Reasons. However, they were not substantive errors and it was apparent from paragraphs 21-28 of the Second MAP’s Reasons (the core paragraphs) that although there was mislabelling or typographical errors, the correct body parts were assessed.

Consideration

1. [26]

   Before dealing with the grounds of appeal it is necessary to deal with an objection to some of the evidence put forward by the Plaintiff. The Plaintiff sought to read an affidavit of Timothy Peter Ainsworth sworn 22 October 2015. Mr Ainsworth is the solicitor for the Plaintiff. His affidavit simply annexed material. Objection was taken to annexures D, E, F and G. Those annexures are described in this way:

2. [27]

   The worker submitted that where the grounds concerned errors of law on the face of the record and the nature of the reasons the only material that can be considered are materials which make up the face of the record. Those materials do not include underlying materials that may be admissible if procedural fairness is part of the complaint.

3. [28]

   Although at a theoretical level the worker’s submissions in that regard are correct, there are two other considerations present in this case that justify reception of the annexures to which objection has been taken. First, and somewhat ironically, senior counsel for the worker relied heavily on the Plaintiff’s submissions to the Second MAP when the Plaintiff sought a review of Dr Pillemer’s assessment (part of annexure F) and also on what Dr Pillemer himself said in his reasons (annexure D). Secondly, to understand the argument being put forward by the Plaintiff on the present application, it was necessary to have regard to the material which had gone before, including Dr Beer’s assessment, the First MAP’s reasons, the Application to Resolve a Dispute and the Application to appeal against Dr Pillemer’s assessment.

4. [29]

   Further, the way the argument in relation to ground 1 was put certainly makes it necessary to have Dr Pillemer’s report before the Court.

5. [30]

   I consider that all of the evidence should be admitted.

6. [31]

   Even a casual reading of the Second MAP’s reasons demonstrates beyond serious argument that the Second MAP understood that it was reviewing Dr Pillemer’s assessment, and that that assessment concerned the worker’s cervical spine and right upper extremity. Everything in paragraphs 22 to 26 and 28 of the Second MAP’s reasons discusses those injuries and not the lumbar spine. There is no evidence to suggest that the Second MAP did not read Dr Pillemer’s report as paragraph 27 of its reasons asserts. The only mention by Dr Pillemer of the lumbar spine is to accept the 11% assessment by Dr Beer as undisputed.

7. [32]

   This ground of appeal is without merit.

8. [33]

   It may be accepted that the Second MAP incorrectly said at paragraph 20 of its reasons that the matter was referred to Dr Pillemer for assessment of whole person impairment of the thoracic spine and lumbar spine. However, it is perfectly clear from a reading of the remainder of the reasons that the Second MAP understood that in fact Dr Pillemer had been asked to assess the cervical spine and the right upper extremity.

9. [34]

   As to the second asserted error, Dr Pillemer said at the outset of his report:

10. [35]

    It is difficult to understand the basis on which the Plaintiff is making this matter an issue. The 11% assessment is not disputed in these proceedings. Dr Pillemer in fact included the assessment in his certificate. In that sense, he assessed it. So too did the First MAP without having given any consideration to the worker’s lumbar spine. Even if what is said by the Second MAP in paragraph 21 of its reasons can be described as loose language, nothing flows from it.

11. [36]

    In a similar manner to ground 1, it does not reflect well on the Plaintiff to identify as errors in the decision now sought to be reviewed the matters described as errors 1 and 2 which lead nowhere and cannot result in a different outcome. Adopting this approach is contrary to what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 when commenting on a statement by the Full Court of the Federal Court that the decision-maker’s reasons were entitled to a beneficial construction (at 269-270):

12. [37]

    The third error concerns the misstatement by the Second MAP that the Plaintiff had submitted that Dr Pillemer failed to consider an assessment by Dr Burke of the cervical spine of 11% when it was in fact 0%. This will be dealt with below.

13. [38]

    These grounds can conveniently be dealt with together because, in general terms, the complaints concern the failure of both the Second MAP and Dr Pillemer to have regard to Dr Burke’s findings as contained in the reasons of the First MAP and to the incorrect reference in paragraph 22 of the Second MAP reasons to an assessment by Dr Burke of 11% WPI for the cervical spine. The Plaintiff’s challenge was as much to Dr Pillemer as it was to the Second MAP and it is necessary, therefore, to have regard to what Dr Pillemer did and what he was bound to do.

14. [39]

    The Plaintiff referred in its submissions to the binding nature of the certificate from the First MAP. That was true only to the point where Dr Pillemer issued his certificate or, arguably, to the point where the matter was referred to Dr Pillemer. Certainly, when Dr Pillemer issued his certificate the certificate of the First MAP ceased to be determinant of anything.

15. [40]

    In Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 Harrison AsJ said:

16. [41]

    The medical dispute in the present case had been referred to Dr Pillemer for determination. Clause 1.5 of the Permanent Impairment Guidelines provides:

17. [42]

    The basis for Dr Pillemer’s assessment was not that there had been a deterioration in the worker’s condition although counsel for the Plaintiff made frequent reference to the notion of deterioration in suggesting that Dr Pillemer and the Second MAP should have explained why they differed from Dr Burke. Dr Pillemer’s task was to make an assessment in accordance with the Guidelines and clause 1.5 in particular.

18. [43]

    The task of the Second MAP was to review the medical assessment by Dr Pillemer with the review being limited to the grounds of appeal on which the appeal is made: s 328(2), New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [46] – [49]. The ground of appeal identified in the Application to Appeal was that found in s 327(3)(d), that is, that the medical assessment certificate contained a demonstrable error. However, the submissions of the Plaintiff suggested also that Dr Pillemer applied incorrect criteria.

19. [44]

    It is of some assistance to set out the three paragraphs of those submissions upon which Senior Counsel for the worker placed most emphasis to base his submissions challenging the Plaintiff’s approach:

20. [45]

    The Second MAP may be excused in those circumstances for stating in paragraph 4 that the appeal was made on those two grounds despite what appeared in the Application to Appeal. In any event, the demonstrable error is identified as Dr Pillemer’s not linking the “deterioration” found by Dr Pillemer to the 10 month period between Dr Burke’s and Dr Pillemer’s examinations.

21. [46]

    In Wingfoot Australia Partners Pty Ltd v Eyup Kocak (2013) 252 CLR 480; [2013] HCA 43 the High Court said:

22. [47]

    Although that case involved the Accident Compensation Act 1985 (Vic) it has been held that it is relevant to assessments under the Motor Accidents Compensation Act 1999 (NSW): Allianz Australia Insurance Limited v Mackenzie & Ors [2014] NSWSC 67; (2014) 66 MVR 124 at [27].

23. [48]

    It must be said that there appears to be some tension between what was said in Wingfoot, at least at [47], and what was earlier said in Campbelltown City Council v Vegan where the following appears:

24. [49]

    However, when the passage in Vegan, particularly at [121], is carefully examined I do not consider that there is inconsistency at least as far as the present matter is concerned. I note in passing that the High Court seemingly approved what was said in Vegan at [129]-[130] when the joint judgment in the High Court was discussing whether inadequacy of reasons would be an error of law on the face of the record (at [28]). No reference was made to Vegan at either [47] or [55] of the High Court’s judgment.

25. [50]

    It may be noted that in the present case the Second MAP did not make their own assessment of the worker’s condition. Had they done so, it might have been necessary for the Panel to give some explanation of its preference for one of a number of conclusions that were open: Vegan at [121]. In the present case, however, the Second MAP examined whether Dr Pillemer had correctly dealt with the criteria in relation to radiculopathy following the Guidelines at cl 4.23. They concluded that Dr Pillemer had correctly applied those Guidelines by the identification of both a major criterion as well as another criterion that was present. To the extent that applying incorrect criteria was a ground of appeal the Second MAP concluded that Dr Pillemer had not applied incorrect criteria.

26. [51]

    Dr Pillemer did examine the worker. He reached his opinion that radiculopathy was present (whether or not it was present was at the heart of the medical dispute) correctly applying the Guidelines as to the presence of two criteria, one being a major criterion. Dr Pillemer found as the major criterion reproducible impairment of sensation that was anatomically localised to the C6 spinal nerve root distribution. He was also satisfied from the radiology that the findings were consistent with the clinical signs (the disc protrusion at the C5/6 level which was displacing and compressing the C6 nerve root).

27. [52]

    The Plaintiff submitted that Dr Pillemer only read the report of the radiologist and did not view the films of the CT whereas the First MAP’s reasons expressly said that Dr Burke had viewed the films. Dr Pillemer said:

28. [53]

    In my opinion Dr Pillemer complied with what Vegan required. He discussed the different opinions of Dr Stephenson, Dr Habib and Dr Beer. With regard to Dr Beer he explained why he differed from Dr Beer in assessing the shoulder (the difference between 3% and 5%), about which the Plaintiff complains. Dr Pillemer said “according to the range of movement today” there was a greater restriction. That was a fulfilment of his obligations under the Guidelines. He was not under any obligation to go further to try to explain why it might be the case that the restriction he found was greater than previously found.

29. [54]

    One can agree with the Second MAP’s observation that from the point of view of comprehensiveness it might have been preferable if Dr Pillemer had made reference to Dr Burke’s assessment. However, his comments regarding the other assessments I have mentioned were also apposite to Dr Burke. The principal difference he had from Dr Burke (and, for that matter, with Dr Stephenson and Dr Habib) was that Dr Pillemer found radiculopathy for the reasons he gave, and Dr Burke and the others did not.

30. [55]

    In regard to what was said to be the demonstrable error the Second MAP considered that Dr Pillemer’s failure to refer to Dr Burke’s conclusion did not compromise Dr Pillemer’s reasons or conclusion and stressed that his assessment was the relevant one at the time he assessed the worker. The Second MAP was otherwise satisfied with Dr Pillemer’s examination and conclusions.

31. [56]

    In my opinion, it was not part of Dr Pillemer’s function to compare and contrast his findings with those of the previous Panel. His obligations were those that I have set out earlier which the Guidelines require. He was not required to assess deterioration that resulted in an increase in the degree of permanent impairment. He was entitled to come to a different opinion from the previous Appeal Panel. The fact that its certificate was binding until Dr Pillemer assessed the worker afresh did not impose upon him the obligation to make reference to that Panel’s competing views and assessment. In the same way, Dr Pillemer was not obliged to explain why he reached a different view on the radiological evidence. That is essentially a matter for clinical judgment.

32. [57]

    Whilst it is regrettable that the Second MAP wrongly stated that Dr Burke had assessed the cervical spine at 11%, it is pure speculation to suggest that that informed the Second MAP’s reasoning and approach. The Plaintiff submitted, for example, that if the Second MAP had known that Dr Burke assessed the cervical spine at 0% they might have reached a different view about Dr Pillemer’s assessment. However, it is clear that the Second MAP regarded any reference by Dr Pillemer to what Dr Burke had found as non-essential to his approach. That was why they said that while it might have been preferable as a matter of comprehensiveness for reference to have been made to that opinion, his not doing so did not otherwise compromise his reasons or conclusion.

33. [58]

    It cannot be said that a prior medical report, even of an appeal panel, was a factor that by law was bound to be taken into account. In that sense it was not a relevant consideration. As was said by Gleeson JA (Macfarlan and Leeming JJA agreeing) in Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 at [85] the identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision-maker to act rather than from the particular facts of the case that the decision-maker is called on to consider. Although the Plaintiff did not suggest that there had been a failure to take into account a relevant consideration, in substance, that was the Plaintiff’s point because the Plaintiff said that what it complained about was the failure to explain the difference between Dr Pillemer’s assessment and that of Dr Burke. A failure to do so would only be an error of law if there was a requirement to make the comparison and provide the explanation now demanded.

34. [59]

    For those reasons also there was no failure to give adequate reasons by either Dr Pillemer or the Second MAP because there was no obligation to provide the explanation the Plaintiff now says should have been given. In the light of the assessment of Dr Beer and Dr Stephenson it cannot reasonably be suggested that the result of Dr Pillemer’s assessment, approved by the Second MAP, was perverse. That finding is invited simply because Dr Beer found 0% and Dr Pillemer found 15%. A similar argument could be levelled more forcefully against Dr Burke because of both Dr Beer’s and Dr Pillemer’s findings. Differences of clinical judgment in this way cannot produce error based on perversity. In any event, Dr Pillemer has explained why he reached his view – his findings were based on the presence of radiculopathy when he examined the worker.

35. [60]

    In my opinion, no error of the kind alleged in these grounds has been shown.

Conclusion

1. [61]

   I make the following orders: