McKeough v Zoological Parks Board of New South Wales

1. [1]

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

2. [2]

   By further amended summons filed 6 December 2016, the plaintiff seeks firstly, a 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 6 June 2016 is void and of no effect; secondly, an order setting aside the decision and the statement of reasons for the decision of the third defendant and issued by the second defendant on 6 June 2016; and thirdly, an order remitting the matter back to a differently constituted medical appeal panel pursuant to s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the Act) to determine the matter according to law.

3. [3]

   The plaintiff is Rebecca Ann McKeough. She is also referred to as the claimant in the Workers Compensation Commission. The first defendant is the Zoological Parks Board of New South Wales. The second defendant is the Registrar of the Workers Compensation Commission of NSW (“the Registrar”). The third defendant is the Medical Appeal Panel of the Workers Compensation Commission constituted by Arbitrator John Wynyard and Approved Medical Specialists Dr Brian Noll and Dr Mark Burns (“the Appeal Panel”). The second and third defendants have filed submitting appearances.

4. [4]

   The plaintiff relied upon the affidavit of Ben de Quetteville Robin filed 30 March 2017. All parties relied upon the joint court book.

Factual background

1. [5]

   The plaintiff was born in September 1971. On 17 September 1990, she commenced employment as a zookeeper at Taronga Park Zoo (“the Zoo”). Her work included animal care and labouring tasks. During the course of this employment the plaintiff suffered three injuries. On 12 September 1993, the plaintiff was preparing a new set up replacing the Asiatic World Dog site with a desert and hills landscape to accommodate North American Bobcats. This involved shovelling and positioning of heavy fill, soil and sand. At the end of the day the plaintiff was aware of pain at the base of her neck on the right hand side with spasm. She reported the incident but continued to work.

2. [6]

   On 13 September 1993, while wheeling a wheelbarrow fully laden with tussocks, the plaintiff momentarily lost control of the wheelbarrow; she experienced acute pain in her right scapular region. The plaintiff reported the incident and was placed on light duties. The plaintiff continued working on light duties but did not completely recover.

3. [7]

   In July 1994, the plaintiff ceased working for the Zoo to pursue an acting career.

4. [8]

   In 1996, the plaintiff resumed working at the Zoo. On 16 November 1996, the plaintiff retrieved an object which a visitor to the Zoo had dropped into the duck pond. In order to retrieve the object she had to enter the duck pond. As she clambered out of the duck pond onto a wooden bridge, she slipped and fell (approximately 1.5 metres) onto a sandstone rock landing heavily on her coccyx and onto her back. Liability for all three injuries was accepted.

5. [9]

   In about February 1998, the plaintiff ceased work at the Zoo.

6. [10]

   On 31 October 2002, the plaintiff was awarded lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW), 5% permanent loss of efficient use of the right arm at or above the elbow ($4,000), 6% permanent impairment of the neck ($2,400) and 7% permanent impairment of the back ($4,200). Pursuant to s 67 of the Workers Compensation Act, the plaintiff was awarded $4,400 for pain and suffering.

7. [11]

   On 23 June 2008, the plaintiff made a claim for further losses.

8. [12]

   On 19 November 2008, the plaintiff signed a complying agreement with Allianz, the Zoo’s insurer, pursuant to s 66A of the Workers Compensation Act. It was agreed that the plaintiff would be paid additional lump sum compensation for further losses in the order of a further 7% permanent impairment of the neck ($2,800) and a further 5% permanent loss of efficient use of the right arm at or above the elbow ($4,000) and for a further 2% permanent impairment of the back ($1,200).

9. [13]

   On 8 April 2015, the plaintiff again made a claim for further lump sum compensation pursuant to s 281 of the Act on the basis that her injuries had deteriorated and impairments increased. She claimed a further 12% permanent impairment of the neck resulting from the injury on 12 September 1993, a further 5% permanent loss of efficient use of the right arm at or above the elbow resulting from the injury on 13 September 1993 and a further 28% permanent impairment of the back resulting from the injury on 16 November 1996.

10. [14]

    On 8 July 2015, the plaintiff’s solicitors received a notice from Allianz disputing the plaintiff’s claim for further lump sum compensation on the basis that there had been no deterioration and no further losses.

The claimant’s latest application to the Workers Compensation Commission

1. [15]

   I shall set out this judgment in chronological order and refer to the relevant statutory provisions where they are relevant.

2. [16]

   On 16 July 2015, the claimant lodged an application to resolve a dispute with the Workers Compensation Commission.

3. [17]

   On 21 August 2015, by consent, arbitrator Grahame Edwards remitted the matter to the Registrar for referral to an AMS to assess the following losses under the Table of Disabilities:

4. [18]

   (a) permanent impairment of the neck as a result of the injury of 12 September 1993;

5. [19]

   (b) permanent loss of efficient use of the right arm at or above the elbow as a result of the injury on 13 September 1993; and

6. [20]

   (c) permanent impairment of the back as a result of injury on 16 November 1996.

7. [21]

   Pursuant to s 319 of the Act an:

8. [22]

   The medical dispute referred for assessment is as follows:

9. [23]

   The method of assessment for all three injuries is the Table of Disabilities. The medical dispute was referred to approved medical specialist Dr T Davies a general surgeon (the AMA).

10. [24]

    Section 326 of the Act refer to medical assessments and reads:

The decision of the AMS

1. [25]

   On 2 February 2016, the claimant was examined by the AMS.

2. [26]

   As set out in the consent order, the details of matters referred to the AMS for assessment pursuant to s 319 of the Act were correctly recorded as follows:

3. [27]

   The AMS took a history from the claimant of her present symptoms and recorded:

4. [28]

   The AMS also made the following findings on physical examination:

5. [29]

   The AMS diagnosed an aggravation of cervical spondylosis, musculo-ligamentous injury to the right shoulder and arm above the elbow and aggravation of lumbar spondylosis.

6. [30]

   So far as consistency of presentation is concerned the AMS made a finding that the claimant presented generally as a cooperative, credible witness.

7. [31]

   The AMS stated that as a result of the nature and conditions of the claimant’s employment the claimant suffered injuries to her neck, right arm above the elbow and to her back. The AMS stated that these varying injuries had been treated conservatively, with the claimant receiving analgesic and anti-spasmodic medication and continued under the care of a pain management specialist, Dr L R Holford. The AMS diagnosed the claimant as suffering from aggravation of cervical spondylosis, musculo-ligamentous injury to the right shoulder and arm above the elbow and aggravation of lumbar spondylosis.

8. [32]

   The AMS provided an explanation of his assessment of permanent impairment as follows:

9. [33]

   On 10 February 2016, three certificates of assessment were issued.

Claimant’s application to appeal and submissions

1. [34]

   Section 327 of the Act deals with appeals against a medical assessment. It relevantly reads:

2. [35]

   The claimant lodged an application to appeal against the AMS on two grounds. Firstly, that the assessment was made on the basis of incorrect criteria; and secondly, the medical assessment certificate contained a demonstrable error (s 327(3)(c) and (d)). The application indicated that the claimant requested to be re-examined by an AMS who was a member of the Appeal Panel. Submissions were attached to the application to appeal.

3. [36]

   In the submissions the claimant addressed “incorrect criteria” as follows:

4. [37]

   The submissions in relation to demonstrable error are as follows:

5. [38]

   The insurer filed a notice of opposition together with submissions.

6. [39]

   On 11 April 2016, the delegate of the Registrar (the gatekeeper) upon the examination of the medical assessment certificate and on the face of the application and submissions made, was satisfied that a ground of appeal as specified in s 327(3)(d) was made out in relation to the AMS’s assessment of the claimant’s neck and back. On that day the appeal was referred to an Appeal Panel. (Ex 1).

7. [40]

   In oral submissions, counsel for the defendant argued that the plaintiff on appeal can only rely upon s 327(3)(d), namely a demonstrable error as that was the only ground of appeal that the Registrar was satisfied was made out.

8. [41]

   Both parties referred to New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 (NSW Police Force).

9. [42]

   In NSW Police Force, Davies J at [49] stated:

10. [43]

    In NSW Police Force, Davies J explained that the Appeal Panel is confined to the grounds of appeal identified by the plaintiff, namely (c) and (d) together with the plaintiff’s submissions.

Correspondence – medical examination

1. [44]

   On 1 March 2016, the delegate of Registrar wrote to the claimant’s solicitors (Ex A) stating:

2. [45]

   On 3 March 2016, the claimant’s solicitor wrote to the Registrar enclosing amended submissions which addressed the need for a panel AMS to re-examine the claimant.

3. [46]

   Paragraph 7 of the amended submissions (Ex A) stated:

The appeal

1. [47]

   The procedure on appeal is set out in s 328. It relevantly reads:

The decision of the Appeal Panel

1. [48]

   It is the decision of this Appeal Panel dated 6 June 2016 that is the subject of this judicial review. The Appeal Panel was comprised of Arbitrator John Wynyard and approved medical specialists Drs Brian Noll and Mark Burns.

2. [49]

   In so far as the claimant’s request for a re-examination is concerned, the Appeal Panel recorded at [9] the claimant sought to be re-examined by an AMS who was a member of the Appeal Panel, however for the reasons given below the Appeal Panel determined that a re-examination was not necessary. The Appeal Panel did not specifically refer to the claimant’s request for re-examination again. I will refer to this later in my judgment.

3. [50]

   The Appeal Panel in its reasons continued:

4. [51]

   On 6 June 2016, the Appeal Panel determined that the medical assessment certificate dated 10 February 2016 should be confirmed.

Grounds of review

1. [52]

   The plaintiff seeks judicial review of the whole of the decision of the Appeal Panel dated 6 June 2016 on the basis that is contains both jurisdictional error and error on the face of the record. The grounds of review are that:

   1. (1)

      The Appeal Panel asked itself the wrong question in that it focused its attention on whether the AMS accepted the subjective complaints of the plaintiff instead of asking itself whether the AMS had carried out his statutory task correctly and whether the AMS had carried out the assessment of permanent impairment pursuant to the Table of Disabilities by way of a comparison with a most extreme case and in terms of impaired functionality (or loss of use), thereby committing a jurisdictional error;

   2. (2)

      The Appeal Panel failed to deal with a substantial, clearly articulated argument put to it by the plaintiff. The clearly articulated argument was that the AMS had failed to carry out the assessment of the degree of permanent impairment pursuant to the Table of Disabilities by way of a comparison with a most extreme case and in terms of impaired functionality (or loss of use) thereby committing a jurisdictional error:

   3. (3)

      The Appeal Panel failed to accord the plaintiff procedural fairness by failing to deal with a substantial, clearly articulated argument put to it by the plaintiff thereby committing an error of law on the face of the record.

   4. (4)

      The Appeal Panel failed to deal with a substantial, clearly articulated argument put to it by the plaintiff. The clearly articulated argument was that the AMS had applied incorrect criteria by inappropriately assessing the degree of permanent impairment using the whole person impairment regime.

   5. (5)

      The Appeal Panel failed to accord the plaintiff procedural fairness by failing to deal with a substantial, clearly articulated argument put to it by the plaintiff thereby committing an error of law on the face of the record.

   6. (6)

      The Appeal Panel misapprehended the claim of demonstrable error made to it by the plaintiff regarding the assessment by the approved medical specialist in respect of the neck, and thereby failed to deal with a substantial, clearly articulated argument put to it by the plaintiff that there had been no injury to the neck on 13 September 1993 and therefore the full 10% permanent impairment of the neck assessed ought to have been attributed to the date of injury of 12 September 1993.

   7. (7)

      The Appeal Panel failed to accord the plaintiff procedural fairness by failing to deal with a substantial, clearly articulated argument put to it by the plaintiff thereby committing an error of law on the face of the record.

2. [53]

   The first defendant denies that the plaintiff is entitled to any of the orders sought and denies that the third defendant made jurisdictional error or error on the face of the record or was denied procedural fairness.

3. [54]

   I shall deal with review grounds 6 and 7 followed by review grounds 1 to 5, if necessary.

Review Grounds 6 and 7

1. [55]

   Review Ground 6 is that the Appeal Panel misapprehended the claim of demonstrable error made to it by the plaintiff regarding the assessment by the AMS in respect of the neck, and thereby failed to deal with a substantial, clearly articulated argument put to it by the plaintiff that there had been no injury to the neck on 13 September 1993 and therefore the full 10% permanent impairment of the neck assessed ought to have been attributed to the date of injury of 12 September 1993. Review Ground 7 is that the Appeal Panel failed to accord the plaintiff procedural fairness by failing to deal with a substantial, clearly articulated argument put to it by the plaintiff thereby committing an error of law on the face of the record.

2. [56]

   The plaintiff submitted that the Appeal Panel asked “Was the AMS asked to provide an assessment for the neck in respect of the date of injury of 13 September 1993” rather than “Should the AMS have attributed the entire 10% assessment to the 12 September 1993 date of injury?”

3. [57]

   The first defendant referred to the plaintiff’s submission on review that stated that the entire 10% ought to have been attributed to the 12 September 1993 incident, as that is when it was accepted that the plaintiff injured her neck and there was no evidence that she injured her neck on 13 September 1993. The first defendant argued that this submission could have been made to the Appeal Panel but was not and if it had the Appeal Panel could have directed its attention to the proposition that not all of the permanent impairment to the plaintiff’s neck was caused by the injury on 12 September 1993 and either confirmed the AMS’ decision, or substituted its own decision. I disagree. In the claimant’s submissions under the heading of “demonstrable error” at [7] to [9] the same issue in relation to the neck as has been raised in this Court was raised before the Appeal Panel.

Consideration

1. [58]

   The medical dispute referred to the AMS for assessment was in respect of three injuries. The first injury occurred on 12 September 1993 and permanent impairment of the neck was to be assessed. The second injury occurred on 13 September 1993 for injury of loss of efficient use of the right arm at or above the elbow was to be assessed. The third injury occurred on 16 November 1996 and the injury of permanent impairment of the back was to be assessed. The method of assessment for all three injuries is the Table of Disabilities.

2. [59]

   Both parties referred to the decision of Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192 (Haroun). The brief facts in Haroun are that an arbitrator made findings by consent that two falls at work “continued to contribute to any impairment” suffered by the worker made a referral for medical assessment pursuant to s 321 of the Act. The AMS disregarded the finding by the arbitrator that the falls at work continued to contribute to the worker’s impairment. An appeal by the worker to an Appeal Panel failed and the assessment of the AMS was confirmed. The worker sought certiorari to quash the Appeal Panel’s certificate for error of law on the face of its reasons which revealed that the Appeal Panel had disregarded the arbitrator’s findings.

3. [60]

   In Haroun, Handley AJA (with McColl and McDougall JJA agreeing) at [11] stated:

4. [61]

   In Haroun, Handley AJAS explained the interrelationship of the statutory provisions at [16] to [22]:

5. [62]

   In Haroun, the Court of Appeal held that the Appeal Panel had not erred in law because the arbitrator had no jurisdiction to determine the medical disputes and his findings made without jurisdiction could not bind the Appeal Panel or even be persuasive.

6. [63]

   Returning to the judicial review before me, so far as the permanent impairment of the neck is concerned, the AMS stated that there is a 10% impairment of the neck, of which 7% could be attributable to the incident of 12 September 1993 and 3% to the incident of 13 September 1993. There was no medical dispute referred to the AMS concerning a neck injury that occurred on 13 September 1993 (referred by the AMS to as an incident). The 3% impairment to the neck that occurred on 13 September 1993 was not included in the medical assessment certificate. The AMS assessed a 7% impairment for the neck for the injury that occurred on 12 September 1993 and it was only this 7% that is included in the certificate of assessment issued in relation to the neck.

7. [64]

   So far as the plaintiff’s neck is concerned, the Appeal Panel recorded that the plaintiff also submitted that the AMS made a demonstrable error because it was alleged that he had found that there was a 10% impairment of the back [this should be a reference to the neck, not the back], of which 7% could be attributed to the incident of 12 September 1993 and 3% to the incident of 13 September 1993. It stated that a perusal of page 6 of the MAC shows that the AMS found that there was a 10% impairment of the neck, not the back. (The Appeal Panel continued that there was a typographical error in the plaintiff’s submissions to the Appeal Panel. The plaintiff’s submissions referred to back when it should have been neck). The plaintiff submitted (accurately) that the MAC stated only that there was 7% impairment to the neck for the date of injury, 12 September 1993 and that the AMS fell into error when he failed to assess also a 3% impairment for the neck for the injury of 13 September 1993, in view of his finding.

8. [65]

   The Appeal Panel pointed out that a perusal of page 6 of the MAC showed that the AMS had in fact found that there was a 10% impairment of the neck. The Appeal Panel recorded the plaintiff’s submissions that the MAC only stated that there was a 7% impairment to the neck for the date of injury, 12 September 1993 and that the AMS fell into error when he failed to also assess a 3% impairment for the neck for the injury of 13 September 1993. The Appeal Panel rejected that submission and determined that the AMS was bound by the terms of the referral as to the matter he was required to certify. According to the Appeal Panel, in relation to the injury of 13 September 1993 the AMS was only asked to assess the right arm at or above the elbow and not the neck.

9. [66]

   I accept that the approach this Court should adopt is not to read the reasons of the decision maker with an eye finely tuned for error: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 (at [67]) per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at 291).

10. [67]

    In Haroun, the arbitrator acted beyond power in determining that the two falls at work “continued to contribute to any impairment”. The arbitrator had no jurisdiction to determine medical disputes. The Court of Appeal held that both the AMS and the Appeal Panel correctly treated the arbitrator’s finding as irrelevant.

11. [68]

    In this judicial review, the AMS’s task was to determine whether each injury gave rise to any permanent impairment. In assessing the permanent impairment of the plaintiff’s neck injury that occurred on 12 September 1993 the AMS did not have jurisdiction to attribute a percentage of that permanent impairment to the neck to an incident that occurred on the next day. The AMS in doing so acted beyond jurisdiction. It follows that the Appeal Panel by accepting this approach of the AMS as being correct also acted beyond jurisdiction.

12. [69]

    Unlike Haroun, in these current proceedings before this Court, the arbitrator acted within power when he or she made the referral. It was the AMS who acted beyond his jurisdiction. It is for these reasons that the decision of the Appeal Panel should be quashed and be remitted to the Registrar of the Workers Compensation Commission to be determined according to law.

13. [70]

    I should add that the Appeal Panel also stated that the Workers Compensation Commission routinely served on the parties the proposed referral to the assessment taking place to give them an opportunity to object to its terms. The Appeal Panel noted that there was no evidence that any objection was made to the referral as the AMS received it and accordingly no error had been shown. The first defendant submitted that this was an option open to the plaintiff but in my view this would not have provided any remedy because the referral of the arbitrator was in fact correct.

Table of disabilities

1. [71]

   Before I deal briefly with review grounds 1 to 5, it is convenient that I set out some amendments made to the workers compensation legislation. In 2002 and 2012, there were significant amendments made to the workers compensation legislation. However, the regime for assessing the degree of permanent impairment pursuant to the Table of Disabilities resulting from injuries received prior to 1 January 2002 was preserved.

2. [72]

   In these proceedings, the plaintiff’s injuries were received prior to 1 January 2002 and the assessment assessed using the Table of Disabilities (the Table) (former s 73 Table 5 of the Workers Compensation Act now replaced by the Workers Compensation Legislation Amendment Act 2001 (NSW)). The Table sets out the nature of the injury being a loss of something and the percentage of the maximum payable in compensation. The note at (a) at the end of the Table stated that “the maximum percentage is payable only in a most extreme case and the percentage payable in any other case shall be reasonably proportionate to that maximum percentage having regard to the severity of the matter.”

Review grounds 1 to 5

1. [73]

   It is not necessary that I deal with these grounds of review but I will briefly deal with them and express my tentative views.

2. [74]

   These grounds of review can be summarised as firstly whether the AMS applied the wrong methodology, secondly whether the AMS failed to take into account the plaintiff’s subjective complaints of pain; and finally whether the Appeal Panel did not offer procedural fairness. As these proceedings are to be remitted to the Workers Compensation Commission for determination according to law for reasons already given, it is not necessary that I deal with these issues, but I shall briefly refer to them. The first defendant argued that the plaintiff’s submission that the Table of Disabilities was not correctly applied expressly limits the plaintiff’s appeal on the Table of Disabilities to the issue of her subjective complaints of pain.

3. [75]

   In submissions on appeal, the plaintiff stated that it was apparent that the AMS did not take into account any subjective factors, because he had used language that indicated that he did not accept the complaints of pain and how they impacted on function. However, the plaintiff submitted that in terms of the second ground of review the Appeal Panel ignored and failed to deal with the other part of the complaint being that the AMS failed to apply the correct methodology in that it failed to assess how her pain impacted on her functionality. The plaintiff submitted that the Appeal Panel misconstrued the complaint and therefore the task thereby misdirecting itself which amounts to jurisdictional error.

4. [76]

   The AMS stated that the method of assessment he used was the Table of Disabilities. The plaintiff drew this Court’s attention to the AMS’s statement “An assessment of permanent impairment is made using the Table of Disabilities’ as compared with a most extreme case excluding any pre-existing conditions or incident.” I do interpret this statement the same way that the plaintiff urges me to. While the AMS misstated the test in the Table and had loosely referred to s 326(b) of the Act, overall I accept that the AMS did apply the Table of Disabilities.

5. [77]

   As to subjective pain, the AMS made a finding that so far as the consistency of the plaintiff’s presentation is concerned, she presented generally as a co-operative, credible witness. The AMS then went on to make findings under the heading “cervical spine” at page 4 that “All movements are allegedly limited by neck pain.” Under the heading “lumbar spine” the AMS made a finding that “Motor function … all alleged tenderness to palpation, maximum over the lower lumbosacral/coccygeal region.” In other words, on the issue of subjective pain he did not accept the plaintiff’s complaints in relation to her neck and lumbar spine as being genuine.

6. [78]

   However, the AMS did conduct a physical examination of the neck and lumbar spine. For both the neck and back he noted that there was the normal lordosis without evidence of muscle wasting or muscle spasm. He then tested motor function and sensory function. I shall briefly refer to two authorities, Pacific Dunlop Ltd v Krivec (1996) 12 NSWCCR 353 and Borovac v Corporate Ventures Pty Ltd (1995) NSWCCR 84 (Borovac).

7. [79]

   In Borovac, the Court of Appeal stated at [37] that the injury may produce pain causing the worker to be able to do less with their spine than would otherwise be possible, or pain may be produced without affecting the functioning of the neck or back or there may be a combination of these effects.

8. [80]

   The Appeal Panel stated it concurred with the submission by the plaintiff that the AMS did not accept the complaints made by the plaintiff to him. However it does not agree that the plaintiff is correct when she submitted that in effect the AMS must believe everything that he is told. It explained that the purpose of an assessment by an AMS is to obtain an impartial and unbiased opinion as to the true degree of impairment or loss. The Appeal Panel stated that this requires the AMS to consider not only the complaints, but the documentary evidence that is before him and indeed to use his clinical judgment and experience in the course of the interview. The Appeal Panel opined that it is plain from the language used by the AMS that he had reservations about the accuracy of the complaints given to him. Overall, the Appeal Panel concluded that the AMS had based his opinion, as he said, on the facts as determined above and a review of the medical reports in the documentation supplied and the facts as determined above included the results of his physical examination.

9. [81]

   While the Appeal Panel did not specifically use the words “impaired functionality”, it concluded that the AMS had based his opinion on a number of factors, namely the review of medical reports and other documentation, his clinical judgment and experience in order to determine the true degree of the impairment to the plaintiff’s neck and lumbar spine. Procedural fairness was afforded to the plaintiff. It is my tentative view that the determination of the Appeal Panel on this issue is correct.

10. [82]

    Although it is not clear, it seems to follow that because the Appeal Panel did not find any error in the AMS’s approach to the plaintiff’s subjective account of pain in her neck and back, it determined that there was no utility in it conducting its own re-examination.

Result

1. [83]

   For reasons given earlier the Appeal Panel has acted beyond jurisdiction and the matter has been remitted to the Registrar of the Workers Compensation Commission to be dealt with according to law.

2. [84]

   Even though the plaintiff has not sought an order that the decision of the AMS be quashed, the AMS made his decision that was without jurisdiction. It is my view that this decision should be quashed. I make such a declaration and order.

3. [85]

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