Queanbeyan Racing Club Ltd v Hannah Burton

1. [1]

   By summons dated 23 March 2020, the plaintiff, the Queanbeyan Racing Club (“QRC”), seeks judicial review of a decision of the third defendant, a Medical Appeal Panel (“the Panel”) constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”) on 5 March 2020. The first defendant, Ms Hannah Burton, is the injured worker and the second defendant is the Registrar of the Workers Compensation Commission. The second and third defendants have filed submitting appearances.

2. [2]

   QRC invokes this Court’s supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW), and contends that the Panel fell into jurisdictional error when assessing the degree of Ms Burton’s whole person impairment (“WPI”). It seeks an order that the application be remitted to the second defendant for referral to a Medical Appeal Panel for determination according to law.

Relevant legislation

1. [3]

   Part 7 of Chapter 7 of the 1998 Act provides for medical assessment of an injured worker seeking workers compensation where there is a “medical dispute”. This part has been amended as of 1 March 2021. The relevant provisions I have extracted below are as they stood on 5 March 2020, which is the date of the relevant decision.

2. [4]

   Part 7 of Chapter 7 of the 1998 Act also provides for an internal review process by way of an appeal panel. Section 320 of the 1998 Act concerns the appointment of an approved medical specialist (“AMS”). Section 321 provides for the referral of a medical dispute for assessment. Section 322 concerns the assessment of impairment and s 322A provides that only one assessment may be made of the degree of permanent impairment of an injured worker. Section 324 of the 1998 Act sets out the powers of an AMS as follows:

3. [5]

   Section 325 of the Act relevantly sets out what is to be included in a Medical Assessment Certificate (“MAC”) and s 326 provides that a MAC is presumed to be correct in relation to matters such as the WPI. Section 327 of the Act sets out the appeal rights from or against a MAC and is in these terms:

4. [6]

   Section 328 of the 1998 Act provides for the appeal procedure and is in the following terms:

Background

1. [7]

   As at 5 June 2013 Ms Burton was employed by QRC. On that day she was injured when she fell from her horse at Queanbeyan Racecourse. The horse bucked, causing her to be thrown off onto the ground, landing on her right hip. She claimed injury to her lumbar spine and both lower extremities and secondary psychological injury including aggravation.

2. [8]

   Ms Burton subsequently made a claim under s 66 of the Workers Compensation Act 1987 (NSW). She relied upon an assessment of Dr W.G.D Patrick dated 16 April 2018. Dr Patrick assessed her as having a 3% WPI for each lower limb because of a diagnosis of dysesthesia over the region of the lateral cutaneous nerve bilateral and 12% WPI for the lumbar spine. He then deducted 1.2% WPI from the lumbar spine and 0.3% from each leg, resulting in an overall WPI of 17%.

3. [9]

   QRC disputed this WPI assessment. It contended that Ms Burton had not suffered any impairment as a result of her work injury. It relied upon a report from Associate Professor Paul Miniter who was of the opinion that her physical presentation was “underpinned by a lack of specific physical signs that tie her location of discomfort to a particular abnormality”.

4. [10]

   When agreement could not be reached as to Ms Burton’s WPI she subsequently lodged an Application to Resolve a Dispute in the Workers Compensation Commission.

5. [11]

   On 4 December 2019, Dr Michael Davies, an AMS, issued a MAC in respect of the dispute concerning Ms Burton’s WPI. Dr Davies based this assessment on the history he received from Ms Burton, his clinical examination and his review of the documents. A summary of the history relating to the injury is extracted below at [22].

6. [12]

   Dr Davies assessed a total of 7% WPI for the lumbar spine. After referring to the WorkCover Guides, specifically Chapter 3, paragraph 3.32 and AMA-5, Table 17-37, Dr Davies then found that there was impaired sensation over the distribution of the lateral femoral cutaneous nerve in each lower limb. Dr Davies found that there was “no hypersensitivity but there is reduced sensation in the area”. He found that Ms Burton had 1% WPI in each lower extremity.

7. [13]

   In relation to Dr Patrick’s diagnosis of dysesthesia, Dr Davies stated the following:

8. [14]

   Dr Davies also noted that Dr Assem, in a MAC dated 20 March 2019 (relating to a treatment dispute arising from Ms Burton’s claim), found no evidence of dysesthesia. The findings of the earlier MAC are extracted briefly below at [40].

9. [15]

   Dr Davies assessed Ms Burton’s overall WPI as 9%.

10. [16]

    On 23 December 2019, Ms Burton lodged an application to appeal against the decision of Dr Davies. She argued that there had been a demonstrable error pursuant to s 327(3)(d) of the Act due to Dr Davies’ alleged failure to make any specific finding as to dysesthesia, or to assess dysesthesia in the WPI. Written submissions were attached to the application which identified the error in these terms:

11. [17]

    The error identified by Ms Burton was that although the AMS noted symptoms consistent with dysesthesia, in particular “impaired sensation to light [touch]”, he went on to say that there was no hypersensitivity. Ms Burton submitted that dysesthesia does not require hypersensitivity and the failure to make a finding as to dysesthesia was a demonstrable error.

12. [18]

    The written submissions of QRC in their entirety were as follows:

13. [19]

    It is to be noted that QRC did not address Ms Burton’s submissions regarding the symptoms of dysesthesia and how it is to be assessed.

14. [20]

    On 8 January 2020 the matter was referred to the Panel by the Registrar under s 327(4) of the 1998 Act, namely, that the MAC contained a demonstrable error. Consistent with the “gatekeeper” function of the Registrar, there was satisfaction that on the face of the application at least one ground of appeal had been made out.

15. [21]

    The decision of the Panel was made on 5 March 2020.

16. [22]

    The Panel noted in its reasons that the review had been conducted on the original MAC, limited to the ground of appeal on which the appeal was made. The Panel noted that the issue on appeal was “the assessment of the lower extremities, and whether there should have been as assessment for dysesthesia in both lower extremities.”

17. [23]

    The Panel set out the background as recorded by Dr Davies at Part 4 of the MAC as follows:

18. [24]

    After setting out Ms Burton’s work history, the Panel went on to note the following additional history:

19. [25]

    The Panel noted that it had conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines. After that preliminary review the Panel determined that further medical examination of Ms Burton was not necessary.

20. [26]

    The submissions of the parties were then referred to. It was noted that the respondent, QRC, sought leave to make oral submissions but the Panel determined that it could deal with the issues in the appeal without oral submissions.

21. [27]

    The Panel noted Ms Burton’s submission that the AMS had erred in failing to diagnose and assess dysesthesia and that Dr Patrick had assessed an additional 3% WPI for each leg for that deficit. Ms Burton further submitted that the findings on examination by the AMS were consistent with dysesthesia and that although the AMS said that he found no hypersensitivity that is not a requirement for a diagnosis of dysesthesia.

22. [28]

    It was noted that QRC, on the other hand, submitted that there was no demonstrable error on the part of the AMS, and nor was there any obligation on the AMS to make a finding either way as to dysesthesia. Nor was there any obligation to accept the findings of Dr Patrick. It was further noted that Dr Assem had not found any dysesthesia in an earlier MAC dated 20 March 2019. It was submitted that the MAC should be confirmed.

23. [29]

    The Panel noted that under s 328 of the 1998 Act, the appeal was to be by way of review of the original MAC, limited to the grounds on which the appeal was made. After setting out its role in assessing the appeal, the Panel went on to note the relevant findings of Dr Davies in the MAC dated 4 December 2019:

24. [30]

    After setting out this and other extracts, the Panel observed that it appeared that the AMS had accepted that there was impaired sensation over the distribution of the lateral femoral cutaneous nerve but implied that because hypersensitivity was absent a diagnosis of dysesthesia was not indicated. The Panel then agreed with the submission of Ms Burton that that is not the test for dysesthesia.

25. [31]

    The Panel noted Dr Patrick’s opinion that:

26. [32]

    The Panel went on to note that, as submitted by QRC, there was no obligation on the AMS to accept Dr Patrick’s opinion, and that the AMS was required to use his own clinical judgement. It was then noted that Associate Professor Miniter and the other practitioners relied on by QRC had not addressed the question of dysesthesia directly, although Dr Assem, in a previous MAC, did not find dysesthesia on examination.

27. [33]

    The Panel then provided a definition of dysesthesia found in the International Association for the Study of Pain (IASP) as follows:

28. [34]

    The Panel then opined as follows:

29. [35]

    The Panel noted that the AMS assessed 1% WPI for reduced sensation over the distribution of the lateral femoral cutaneous nerve in each lower limb, but found that:

30. [36]

    The Panel was thus satisfied that the alleged error (failure to assess dysesthesia) had been made out. Having identified the error alleged and considered the evidence in the MAC, the Panel was satisfied that dysesthesia was present in both legs. The Panel concluded its reasons as follows:

31. [37]

    It is to be noted that an earlier MAC had been issued on 20 March 2019 concerning a treatment dispute arising from Ms Burton’s claim.

32. [38]

    Dr Mohammed Assem was the AMS who assessed Ms Burton in March 2019 for the purposes of that dispute. Ms Burton’s “present symptoms” at that time were recorded as:

33. [39]

    Under the heading “Findings on Physical Examination”, Dr Assem noted:

34. [40]

    He diagnosed meralgia paraesthetica (rather than dysesthesia) in both thighs. Dr Assem noted Dr Patrick’s earlier diagnosis of dysesthesia involving the lateral femoral cutaneous nerve of the thigh, and commented that:

Grounds of review

1. [41]

   QRC relies on the following three grounds of review:

2. [42]

   In relation to the first ground of appeal, QRC submitted that the Panel had to “first identify error as particularised in the written submissions of the applicant, before it [had] jurisdiction to revoke the certificate of assessment”, and that the Panel’s alleged failure to do so constituted jurisdictional error. QRC submitted that the Panel “[i]mpermissibly went beyond the error particularised by the worker, identifying its own error, and substituting its own reasoning”.

3. [43]

   It was contended that the error alleged by Ms Burton was that the AMS had “failed to make a finding with respect to dysesthesia” and failed to assess it in relation to the lateral femoral cutaneous nerve. QRC submitted that the Panel failed to consider this alleged error and instead introduced a “definition” of dysesthesia generally, and then inferred that the AMS had made an error with respect to this definition. QRC alleged that the Panel found error in relation to a failure to consider “spontaneous dysesthesia”, which the Panel found was present on the history recorded in the MAC. It submitted that this “was not the basis upon which the application to appeal was made”, and the Panel thus found an error not alleged by Ms Burton. Reliance was placed on the decision in Midson v Workers Compensation Commission & Ors [2016] NSWSC 1352 ("Midson"), which I will consider below.

4. [44]

   As for the second ground, QRC submitted that the “introduction of new material”, (the IASP definition of dysesthesia) constituted a new line of reasoning to which the parties were not given an opportunity to respond. This was submitted to give rise to a breach of procedural fairness and jurisdictional error. Reliance was placed on the decisions in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 ("Siddik") and Pascoe v Mechita Pty Ltd [2019] NSWSC 454 ("Pascoe") which I will consider below.

5. [45]

   As for the third ground, QRC submitted that, having identified an error and revoked the MAC, the Panel was required to review every aspect of the MAC before issuing a new MAC. QRC submitted that by simply adding dysesthesia to the existing MAC, without considering for itself whether the other WPI assessments were correct or whether any adjustment was necessary, the Panel fell into jurisdictional error and error on the face of the record. Reliance was placed on Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 ("Wilson") and Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 ("Drosd") which I will also consider below.

6. [46]

   In relation to the first ground, Ms Burton submitted that the Panel clearly addressed the alleged error by acting on the evidence before it. Ms Burton submitted that the conclusions made by the Panel were open in light of the expertise of the Panel and the evidence before it.

7. [47]

   In relation to the second ground, Ms Burton submitted that there was no controversy as to the meaning of dysesthesia, and that QRC’s submission that the definition used was “general” and “may not be particularly pertinent” was not substantiated. It was submitted that the IASP definition was merely a convenient way for the Panel to describe the condition. It was contended that QRC failed to explain how the IASP definition involved any departure from the conventional understanding of dysesthesia.

8. [48]

   The decision in Pascoe was distinguished on the basis that the Panel merely defined a term that is common in medical practice, readily understood and in accordance with common knowledge. This was distinguished from the extrinsic material in Pascoe which was complex, specific, and detailed. Ms Burton further submitted that QRC’s submissions did not indicate any practical disadvantage arising from the use of the definition.

9. [49]

   In relation to the third ground, Ms Burton submitted that it was clear from the Panel’s reasons that it conducted an assessment according to law and that QRC did not assert any error in respect of the Panel’s assessment of the other matters in the MAC.

Consideration

1. [50]

   The first alleged jurisdictional error relied upon by QRC is that is that the Panel misapprehended its jurisdiction by exceeding its statutory task. The specific complaint is that the Panel did not address the “demonstrable error” within the meaning of s 327(3)(d) of the 1998 Act relied upon by Ms Burton and instead considered a different error.

2. [51]

   There can be no doubt that the Panel is confined initially to addressing the error referred to it by the Registrar and no other error. As I observed in Midson:

3. [52]

   In Midson, the Appeal Panel erred in ordering a further examination to assess whether a ground was made out, rather than finding demonstrable error in the MAC and then determining that further examination was necessary to correct the error. This constituted jurisdictional error.

4. [53]

   In the present matter the Panel identified the demonstrable error referred to it as follows (at [13]): “the appeal concerns the assessment of the lower extremities, and whether there should have been an assessment for dysesthesia in both lower extremities”. In reliance upon Midson, QRC contends that that was not the error as disclosed in the written submissions attached to Ms Burton’s application to appeal extracted above at [16].

5. [54]

   The written submissions make clear that the “demonstrable error” relied upon, and upon which the Registrar was satisfied, was that the examination conducted by the AMS was consistent with the presence of dysesthesia (at [4]), that, contrary to the implied finding of the AMS, dysesthesia does not require “hypersensitivity” (at [5]) and that despite this no specific finding was made that there was no dysesthesia (at [6]). This is what was contended by Ms Burton and this is the error the Panel considered and upheld.

6. [55]

   I am unable to accept the factual basis that underpins this first ground of review. Contrary to the contention by QRC, Ms Burton’s complaint was not that something went wrong during the initial physical examination. Any fair reading of those submissions discloses that the “demonstrable error” relied upon by Ms Burton is the failure to assess dysesthesia. Nor do I accept QRC’s contention that once a decision was made by the Panel that no further physical examination was required, there was no basis to uphold the appeal. This was not a case where the only way that the demonstrable error could be cured was by a further examination of Ms Burton.

7. [56]

   In this case, the Panel took a different view of the findings of the AMS based on the same examination. The statutory task for the Panel was to consider and determine the demonstrable error, namely, that the assessor failed to find dysesthesia. The Panel upheld this ground and went on to assess dysesthesia on the material before it.

8. [57]

   No error is established under ground 1.

9. [58]

   Turning to the second ground of review, it is well accepted that a denial of procedural fairness can amount to jurisdictional error. As I observed in QBE Insurance (Australia) Limited v Meredith & Ors [2017] NSWSC 466 at [54]:

10. [59]

    The denial of procedural fairness asserted is that the Panel had regard to both the examination of Ms Burton by the AMS and her history to assess dysesthesia, which QRC contends took it by surprise and denied it the opportunity to address this issue.

11. [60]

    In support of this ground reliance was placed on the decision in Siddik, in which McColl JA (Mason P agreeing) held that:

12. [61]

    In Siddik, the Appeal Panel expressly rejected both grounds on which the Registrar had allowed the appeal to proceed, but nevertheless found error on the basis of other grounds: at [25]-[26]. The Panel revoked the MAC and issued a new MAC.

13. [62]

    Reliance was also placed on the decision of Button J in Pascoe, where it was found that the Appeal Panel failed to afford the plaintiff procedural fairness in taking into account extrinsic material adverse to the plaintiff without notice: at [70]-[71]. His Honour noted that:

14. [63]

    In that case, the use of “ISO Tables”, used to calculate progressive hearing loss induced by noise, was not common knowledge. It was in those circumstances that it was held that the failure to give notice was a denial of procedural fairness: at [79].

15. [64]

    In reliance upon these decisions QRC submitted that it was denied the opportunity to address the question of whether the general definition of dysesthesia included in the reasons of the Panel applied to Ms Burton. To put this another way, it was suggested that it was unknown whether an injury to the lateral femoral cutaneous nerve would always be able to be evoked on examination. I do not accept this submission.

16. [65]

    Ms Burton made it clear in the written submissions attached to her appeal that her complaint was that dysesthesia had not been assessed, that she had symptoms of it and that hypersensitivity is not required. QRC had the opportunity to respond to those submissions and put anything relevant contrary to that assertion. Instead, it chose to simply assert that there was no dysesthesia without addressing the specific complaints made by Ms Burton. Given that appeals under the 1998 Act are conducted on the papers, the importance of an appellant fully responding to the arguments raised in written submissions attached to the Notice of Opposition is readily apparent. QRC had the opportunity to do this and instead responded in the limited way extracted above at [18].

17. [66]

    I have considered the complaint that the Panel did not foreshadow that a history of particular pain might be relevant to the determination of dysesthesia. I am not satisfied that it has been made out. The appeal system has been set up such that Appeal Panels are comprised of specialists. It was not suggested by QRC that the definition relied upon was wrong nor, necessarily, the approach. The complaint is that it was not given the chance to fully submit on the approaches to assessing dysesthesia. But QRC was given this chance in its written submissions attached to the Notice of Opposition and chose not to take it.

18. [67]

    I am not satisfied that QRC was denied procedural fairness by the Panel.

19. [68]

    Turning to the third ground of review, the complaint is that after being satisfied of the demonstrable error the Panel then corrected that error and otherwise endorsed the findings made by the AMS. It was submitted that this was contrary to the statutory role and thus the Panel fell into jurisdictional error.

20. [69]

    Section 328(5) provides that on appeal the Panel may, inter alia, “revoke” the MAC and “issue a new certificate as to the matters concerned”. his is precisely what the Panel did. Having found demonstrable error concerning the assessment of dysesthesia it re-assessed it, added it to the assessment already made by the AMS and issued a new MAC. Although QRC accepted that this was the case, it contended that s 328(5) must be read in the context of the principles derived from the authorities which, it was suggested, requires a Panel in every case to start from scratch and re-assess all aspects of the MAC whether there is error or not. The two decisions relied upon in support of this proposition are as follows.

21. [70]

    In Wilson the AMS erred in applying the AMA-5 Guide rather than the WorkCover Guides, which provided for a greater WPI: at [21]. In the event of any inconsistency, the WorkCover Guides prevailed: at [14]. The AMS also considered radiological evidence that suggested a pre-existing condition, but, erroneously, did not make any deduction: at [11]. Although the worker challenged the first of these two errors before the Appeal Panel, he did not challenge the latter as it benefited him.

22. [71]

    The Panel revoked the MAC and issued a new MAC using the WorkCover Guides which assessed the worker’s WPI at 15%. In doing so the Panel did not address the additional error that no deduction was made for the pre-existing conditions. It was in that context that Fagan J held that:

23. [72]

    Fagan J further held that, given the Panel had before it “prima facie radiological evidence of pre-existing injury abnormality or condition”, it was bound to take this into account in accordance with the WorkCover Guides in issuing a new MAC: at [24]. His Honour held that:

24. [73]

    There were other additional grounds of appeal in Wilson but the Panel determined that it was unable to deal with them as it would have required a re-examination of the worker who was in New Zealand. Fagan J held that the Panel’s decision that it was “unable” to deal with the remaining grounds constituted a deficiency of reasons amounting to jurisdictional error: at [32].

25. [74]

    The ratio of this decision is that once the Panel is required to issue a new MAC (error having been established) it cannot endorse findings that are contrary to law.

26. [75]

    In Drosd, the AMS found a WPI of 30% for the lower right extremity, 10% for the lower left extremity and attributed 50% of the impairment in the lower right extremity and all of the impairment in the lower left extremity to a pre-existing condition.

27. [76]

    On appeal, the Appeal Panel found that the MAC contained a demonstrable error as the pathology in the lower left extremity was not entirely attributable to a pre-existing condition; it was also a result of the injury to the worker’s right knee and a consequent increase on loading in his left knee. The Appeal Panel proceeded to revoke the MAC and issue a new MAC. In doing so, the Appeal Panel adopted the finding of the AMS of 10% WPI for the worker’s left lower extremity and noted in its reasons that:

28. [77]

    The finding of 10% WPI in the lower left extremity was challenged in this Court. Such a finding was not in fact available from the AMA-5 Guide on which the AMS purported to rely. Table 17-33 of this Guide provided for three categories of impairment: “good”, “fair”, and “poor”, with WPI figures of 15%, 20% and 30% respectively. The AMS had purported to categorise the impairment as “good” but had nevertheless applied a WPI of 10% rather than 15%. In this context Garling J held that:

29. [78]

    In Drosd there had been no complaint about the fact that the Panel had not made its 10% WPI assessment in accordance with the legislation and the WorkCover Guides. The ratio of this decision is that, even if no specific complaint is made about an error, the Panel is still required to issue a MAC according to law.

30. [79]

    These decisions do not assist QRC. None of them provide a basis for review in this Court on the basis that the Panel adopted findings of the AMS which are legally correct and not in dispute.

31. [80]

    Once the Panel found that there was evidence of dysesthesia present in each leg the MAC could no longer be sustained. The statutory task of the Panel was then to issue a new MAC, based on the evidence before it. Although no complaint is made about the adequacy of the reasons provided on this discrete issue, the nub of the complaint made by QRC is that the Appeal Panel omitted to include words to the effect of “we agree with the AMS as to the other measurements of impairment”.

32. [81]

    The Panel clearly allowed the 1% for each limb and 7% for lumbar in its final assessment of 15% WPI because it accepted those findings made by the AMS. QRC does not make any complaint about those findings. Nor is it suggested they are contrary to the 1998 Act (as opposed to what occurred in Wilson and Drosd). As Ipp J, with whom Bryson JA and Stein AJA agreed, explained in Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174 at [59]:

33. [82]

    Had QRC been able to identify some error in the findings of the AMS which the Panel confirmed, then its complaint would have some force, but it has not. The Panel is permitted to rely on a finding of an AMS if it agrees with it. What it cannot do is endorse such a finding when it is contrary to the Act or the Guidelines. It did not do so here. It would have been preferable had the Panel included words such as “we otherwise see no reason to depart from the findings of the AMS” but in the circumstances of this case I am not satisfied that any error is disclosed in failing to do so. Even if this was an error, which I do not accept, there is the additional issue of a lack of materiality in any event.

34. [83]

    In these circumstances the third ground of review fails as well.

Conclusion

1. [84]

   The plaintiff has been unsuccessful. No submission was made other than that the usual costs order should be made. Accordingly, costs follow the event and the plaintiff is to pay the first defendant’s costs.

ORDERS

1. [85]

   Accordingly, I make the following orders:

   1. (1)

      The summons is dismissed.

   2. (2)

      The plaintiff is to pay the first defendant’s costs of the proceedings.