RIVERINA WINES PTY LTD v REGISTRAR OF THE WORKERS COMPENSATION COMMISSION OF NSW & ORS [2007] NSWCA 149 (25 June 2007)

Last Updated: 3 July 2007

NEW SOUTH WALES COURT OF APPEAL

CITATION: RIVERINA WINES PTY LTD v REGISTRAR OF THE WORKERS COMPENSATION COMMISSION OF NSW & ORS [2007] NSWCA 149


FILE NUMBER(S):
40993/05

HEARING DATE(S): 1 May 2007

JUDGMENT DATE: 25 June 2007

PARTIES:
Riverina Wines Pty Limited - Appellant
Registrar of the Workers Compensation Commission of NSW - First Respondent
Abeer Alkhozouz - Second Respondent
Workcover Authority of NSW - Third Respondent

JUDGMENT OF: Hodgson JA Campbell JA Handley AJA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 30011/05

LOWER COURT JUDICIAL OFFICER: Hislop J

LOWER COURT DATE OF DECISION: 8 December 2005

LOWER COURT MEDIUM NEUTRAL CITATION:
Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1260

COUNSEL:
P W Neil SC; T Wardell - Appellant
No Appearance - First Respondent
P Taylor SC; J Jobson - Second Respondent
R Lancaster; G Mahony - Third Respondent

SOLICITORS:
Edwards Michael Moroney Lawyers - Appellant
IV Knight Crown Solicitor (submitting appearance) - First Respondent
Bale Boshev Lawyers - Second Respondent
IV Knight Crown Solicitor - Third Respondent

CATCHWORDS:
WORKERS’ COMPENSATION – Medical Assessment Certificate (MAC) – where statute allows appeal against Medical Assessment Certificate on limited grounds – where grounds of appeal were deterioration of the worker’s condition that resulted in an increase in the degree of permanent impairment and availability of additional relevant information – where appeal not to proceed unless it appears to the Registrar of the Workers Compensation Commission that at least one of the grounds for appeal exists – criterion for appeal proceeding is not the objective existence of any of the grounds of appeal but the opinion of the Registrar concerning whether one of those grounds exists – what counts as a ground of appeal ‘existing’ – whether Registrar required to decide if ground of appeal is made out on balance of probabilities before appeal can proceed – where statute confers on Registrar the power to refer a matter for further medical assessment as an alternative to an appeal before an Appeal Panel – whether pre-conditions for appeal must exist before Registrar can refer a matter for further medical assessment – Workplace Injury Management and Workers Compensation Act 1998 – Workers Compensation Act 1987
ADMINISTRATIVE LAW – particular tribunals of bodies – Workers Compensation Commission – Medical Assessment Certificate (MAC) – where statute allows appeal against Medical Assessment Certificate on limited grounds - where appeal not to proceed unless it appears to the Registrar of the Workers Compensation Commission that at least one of the grounds for appeal exists - criterion for appeal proceeding is not the objective existence of any of the grounds of appeal but the opinion of the Registrar concerning whether one of those grounds exists – where Registrar allowed appeal to proceed – whether ‘no evidence’ to support Registrar’s decision – whether Registrar bound to provide reasons for decision – whether Registrar’s decision of a judicial character – whether Registrar engaged in determining the legal rights and duties of parties – where Registrar not making any inquiry concerning facts – where Registrar’s decision did not finally decide any legal rights and duties – whether special circumstances required Registrar to provide reasons for decision
WORKERS’ COMPENSATION – transitional arrangements on introduction of new system for the calculation of compensation for non-economic loss – conclusiveness of Medical Assessment Certificate – Workers Compensation Act 1987 - Workplace Injury Management and Workers Compensation Act 1998
COURTS AND JUDGES – appeals – whether trial judge failed to accord natural justice – whether opportunity to put additional submissions to appellate court cures breach of natural justice
COURTS AND JUDGES – appeals – whether trial judge failed to provide adequate reasons
STATUTES – Acts of parliament – construction – construction by reference to objectives of statute - illegitimacy of construing statute by reference to practice directions – Workplace Injury Management and Workers Compensation Act 1998, s 327

LEGISLATION CITED:
Judiciary Act 1903 (Cth)
Public Sector Management Act 1988
Workers Compensation Act 1987
Workers Compensation Regulation 2003
Workers’ Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005
Workplace Injury Management and Workers Compensation Act 1998

CASES CITED:
Attorney General of NSW & Anor v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Campbelltown City Council v Vegan [2004] NSWSC 1129
Campbelltown City Council v Vegan [2006] NSWCA 284
FAI Insurances Limited v Winneke [1982] HCA 26; (1982) 151 CLR 342
Inghams Enterprise v Iogha & Ors [2006] NSWSC 456
Orellana-Fuentes v Standard Knitting Mills Pty Ltd & Anor; Carey v Blasdom Pty Ltd T/As Ascot Freightlines & Anor (2003) 57 NSWLR 282; [2003] NSWCA 146
Pettitt v Dunkley [1971] 1 NSWLR 376
Public Service Board v Osmond [1986] HCA 7; (1985) 159 CLR 656
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361
Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1260
Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492

DECISION:
[By majority]
(1) Appeal dismissed.
(2) Appellant to pay costs of the first and second respondent of the appeal.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40993/05

SC 30011/05

HODGSON JA

CAMPBELL JA

HANDLEY AJA

25 JUNE 2007

RIVERINA WINES PTY LIMITED v THE REGISTRAR OF THE WORKERS COMPENSATION COMMISSION OF NSW & ORS

Judgment

1 HODGSON JA: I agree with the orders proposed by Campbell JA and with his reasons.

2 I would add the following comments.

3 Although the existence of a MAC certifying nil impairment and a later medical report evidencing some impairment is some evidence of deterioration resulting in an increase in the degree of impairment, this does not mean that a Registrar faced with such material would necessarily be satisfied that the ground in s.327(3)(a) existed. If the later medical report is from a doctor who gave an earlier report to similar effect, with which the MAC conflicted, the Registrar could well take the view that there was merely an attempt being made to avoid the conclusive effect of the MAC, and that there was no sufficiently realistic prospect of the ground (deterioration) being made out to warrant the appeal proceeding.

4 In this case, the Registrar did not take that view, and no ground is made out for review of her decision.

5 I agree with Campbell JA that there was no need for reasons for a decision allowing a matter to go forward to a further decision-making process. It may be different where the Registrar’s decision prevents the matter going forward, and this has the potential to finally determine rights.

6 CAMPBELL JA:

Nature of the Dispute

7 This is an appeal from a judgment given in the Administrative Law List of the Supreme Court of New South Wales on 8 December 2005: Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1260.

8 The Appellant, who I will refer to as "Riverina Wines", employed Mrs Abeer Alkozous, who I will refer to as "the Worker", as an administrative assistant. She is the Second Respondent to this appeal. On 12 July 2001, the Worker sustained injury to her right arm in the course of her employment. She made a claim for 70% permanent loss of use of the arm, pursuant to the Workers Compensation Act 1987. That claim was disputed by Riverina Wines. The dispute was referred to an approved medical specialist (“AMS”), Dr Cummine, for assessment pursuant to section 321 Workplace Injury Management and Workers Compensation Act 1998 (“WIM Act”). I set out relevant parts of the WIM Act at para [58] below.

9 On 26 September 2002, Dr Cummine issued a Medical Assessment Certificate (“MAC”) pursuant to section 325 WIM Act. It certified that the Worker had a zero percent loss of efficient use of the right arm. On 25 June 2004, the Worker made a written application to the Registrar of the Workers Compensation Commission for "further medical assessment". The Registrar (by her delegate) made a decision on 1 October 2004 that the matter would be referred for further assessment. In the court below, Riverina Wines sought, in broad terms, the setting aside of that decision of the Registrar, on administrative law grounds. The primary judge did not set the decision aside.

10 On the present evidence, it is doubtful that the amount in dispute exceeds $100,000, but leave to appeal was granted on 25 August 2006 conditionally upon the Appellant paying the Worker’s costs of the application for leave and the appeal.

11 The Registrar is the First Respondent to this appeal, but takes no active part in it, having filed an appearance submitting to any order save as to costs. The only other party to this appeal is the WorkCover Authority of NSW. Consistently with the decision of this court in Campbelltown City Council v Vegan [2006] NSWCA 284 at [57]–[64], the Authority appears as amicus curiae.

Medical Treatment and Examination of the Worker Prior to the MAC

12 The Worker first saw her general practitioner, Dr Peter Tjeuw, on 14 July 2001. He found tenderness on the lateral aspect of the right elbow.

13 On 22 July 2001 she saw a partner of Dr Tjeuw, complaining of pain around her right elbow, which radiated up to her upper arm and down to her hand. He found tenderness around the elbow and the right thumb.

14 On 31 July 2001 Dr Tjeuw saw her again. She reported her pain persisted. An x-ray of the right elbow revealed no abnormality. He gave her a steroid injection to the right elbow.

15 On 31 August 2001 Dr Tjeuw saw her again. She reported the symptoms as persisting, and that she could not lift, squeeze or carry out other simple daily activities involving the use of the right hand or arm. She reported the steroid injection had not helped her at all. Dr Tjeuw referred her to an orthopaedic surgeon, Dr Duckworth.

16 Dr Duckworth saw her on 11 September 2001. His opinion was "she may have early signs of epicondylitis however she does have signs of a developing reflex sympathetic dystrophy". He arranged for an MRI to be performed.

17 The MRI was carried out on 17 September 2001. It revealed a minor tear on the origin of the extensor carpi radialis brevis, but no other significant pathology.

18 Dr Duckworth reviewed her again on 21 September 2001. He found on examination that day that she continued to be painful medially, laterally and posteriorly around her elbow, and that the pain extended down to her extensors and flexors. He recommended she should not work for the next eight weeks, and that she should have physiotherapy.

19 Dr Tjeuw reports that over the subsequent weeks the symptoms did not improve despite the physiotherapy, and the features of reflex sympathetic dystrophy became more prominent. He referred her to Dr Salmon, a pain management specialist.

20 Dr Salmon saw the Worker on 12 October 2001. He noted her complaint as being:

“... of constant pain in the lateral and medial right elbow that varied from a moderate dull ache to a severe, sharp, burning sensation. The severe pain was both spontaneous, and evoked by movement and attempted use; soft touch could evoke pain. The severe pain lasted for hours. An aching sensation extended to the lateral arm, and to the lateral and medial forearm. Associated with the pain was a swollen elbow and hand, a dark discolouration of the periphery, and sensation of temperature variations from hot to cold, and sweating. She had not noticed cold sensitivity, nor changes in her nails. There was an episodic tremor in the forearm. For relief she used Nurofen and Panadeine Forte. She was able to get to sleep, but could wake with pain.”

21 On examination he found she could make only a three-quarter fist, and had restricted movement of the wrist, elbow and shoulder. He noted:

“... there was increased circumference of the right arm (2cm), forearm (1.5cm), wrist (1cm), and palm (1cm). The hand was swollen, of increased temperature, slightly moist, and of dark discolouration.”

22 He concluded that:

“In addition to the musculotendinous trauma Mrs Alkhozouz has features of Complex Regional Pain Syndrome Type 1.”

23 He arranged for her to have a bone scan, and a sympathetic block of the right upper limb.

24 On 18 October 2001, Dr John Roarty, an orthopaedic surgeon instructed by the workers compensation insurer, reported on a recent examination of the Worker. He reported no swelling, and no deformity, extreme local tenderness over part of the elbow, resistance to movement in the right wrist and hand, and a very poor grip in the right hand. His conclusion was:

“The MRI imaging of the elbow would indicate that there is some damage to the extensor tendon origin and her present complaints are consistent with the injury as described above. This injury should settle with appropriate rest over the next two to three months. It is reasonable at this time that she would be unable to do any active work involving use of the right wrist and hand or constant gripping or lifting but the long term prognosis for a full recovery is favourable.”

25 He also expressed the view:

“It is too early to issue any assessment of any potential permanent impairment of her elbow.”

26 A bone scan was conducted on 22 October 2001. The doctor who conducted it, reported that it "showed minor diffusely reduced flow to right forearm compared to left". He concluded:

“The minor diffusely reduced flow to right forearm and right elbow may [be] due to disuse. The study is otherwise normal. In particular there are no scan features of reflex sympathetic dystrophy in right upper limb.”

27 The Worker saw Dr Tjeuw again on 28 December 2001. He found she still had symptoms of stiffness, pain and excessive sweating. By that time she had had a sympathetic block, on 17 December 2001, from Dr Salmon. Dr Tjeuw reported:

“So far there was no beneficial effect. Her (R) arm was still very much symptomatic and was placed in a splint. Any movements or exertions would cause undue pain. The (R) palm sweat [sic] excessively. She tried hard to do some works at home. She was extremely frustrated by her disabilities. Returning to work at this stage was not an option.

... the incident occasioned on 12.7.2001 at work was the cause of Mrs Alkhozouz’s initial problem of pain on (R) elbow, diagnosed as Epicondylitis. Inexplicably, over the subsequent months, her problem developed into a more severe condition of Reflex Sympathetic Dystrophy or Complex Regional Pain Syndrome Type 1. This is a very difficult management problem and has no simple solution.”

28 She saw Dr Tjeuw again on 2 April 2002. At that time, she reported that a second nerve block, done on 18 February 2002, had afforded her some symptomatic relief. However she still complained of pain in the right forearm, could not fully stretch the elbow, and was unable to clench a full fist. The sweating had decreased.

29 On 30 April 2002 the Worker saw Dr Noel Kinny, who I infer from his FRACS qualification to be a surgeon, at the request of the workers compensation insurer. He observed no colour difference between the right and left hands, and found both were dry. He found the right arm slightly larger than the left, but thought that was consistent with greater muscular development in the right limb, which in turn was consistent with her being right hand dominant. She reported various kinds of pain, and inability to achieve the full range of movements of joints involved in her right limb. In his view, "A clear impression of contrived falsity was received from the results of physical examination". The Worker told Dr Kinny that she had been informed she had “RSD” (reflex sympathetic dystrophy). His examination of the results of the bone scan found no evidence of RSD in that scan, something he regarded as "a significant point against the diagnosis". In his view, her condition was "now largely or even entirely psychologically-based and not genuinely physically-based".

30 On 6 May 2002 the Worker saw Dr Alan Searle, a consultant orthopaedic surgeon, at the request of her own lawyers. He reported her account of where and how often she felt pain, that the skin of the right arm was often purple and mottled, that it sweat a lot, was always colder than the left arm, and that the arm and hand were usually swollen. His examination found tenderness at various sites, and restrictions on movement of various joints associated with the right limb. While he noted the results of the bone scan, he said "I have little faith in the ability of a bone scan to reveal reflex sympathetic dystrophy". His opinion was that the work injury on 12 July 2001:

“... caused right lateral epicondylitis including a tear of the ECRB tendon but more importantly the complication of Complex Regional Pain Syndrome (RSD) has developed. The ongoing symptoms from this are severe and may well be permanent. She is unfit for all forms of work, and almost all forms of activity.”

31 He recommended that a final assessment of residual disability and prognosis should be delayed for six months. However, he expressed the view that if she did not improve she had (amongst other things) a “70 percent permanent loss of efficient use of the right arm at or above the elbow to include the whole limb, as a result of her work injury on 12/7/01".

32 Dr Salmon gave her two further nerve block injections on 20 May 2002 and 5 August 2002. Dr Tjeuw reported on 9 June 2003, concerning the nerve block injections: "There are some noticeable improvements from the injections".

The MAC

33 The MAC that Dr Cummine issued on 26 September 2002 was the result of an examination he conducted on 2 September 2002. The history set out in the MAC records the Worker as saying that since the last of the injections "she has had so much pain that she has ceased physiotherapy". On examination he found:

“... right and left upper limbs were equal and symmetrical in appearance. They were similar in temperature.

Normal pulses were present. There was no evidence of sweating or atrophy.”

34 He noted occasions, in the course of the examination, when she exhibited signs of suffering severe pain when particular body parts were touched, or when she was asked to perform particular functions. He noted that the bone scan showed no features to confirm reflex sympathetic dystrophy. His certificate included the following:

“ Matters referred for assessment

The worker was referred for an assessment of percentage loss of efficient use of the right arm on the basis of the Table of Disabilities.

· Reasons for assessment of percentage loss of efficient use

This woman complains of extensive pain far beyond the right elbow and right forearm. I consider the finding on MRI to be incidental, and not diagnostic of significant organic pathology.

A number of the physical findings were inconsistent with the history offered, and were suggestive of attempts to maximise or embellish apparent disability.

· Facts on which the assessment is based

I have relied on the historical details provided to me by the patient, my findings on physical examination and the information contained in the referral documents and accompanying X-rays.”

The certificate did not identify the physical findings that in his view were inconsistent with the history offered.

Medical Examination and Treatment of the Worker after the MAC

35 Dr Salmon issued another medical report, to the Worker’s lawyers, on 15 May 2003. The section of it dealing with pain reproduced almost exactly the section I have quoted at para [20] above. The section recording the results of examination included almost verbatim the passage that I have quoted at para [21] above. The report also included, however, nearly four pages of new material. That new material gave details of the observations made, symptoms reported, and treatment recommendations made on eleven separate occasions, from 30 November 2001 to 30 April 2003. Of those occasions, five occurred after the Worker had been seen by Dr Cummine. Dr Salmon reported concerning some (but not all) of those five occasions that the Worker had demonstrated sweating, temperature differences between the two hands, and larger circumference of the right arm and forearm by comparison with the left. Concerning the occasion when he saw the Worker on 30 April 2003, he reported on the degree of movement achievable in her right shoulder and right elbow, and that the hand was "blue, warm and moist". He expressed the view that she had suffered a permanent injury, and that:

“My assessment is that the permanent loss of efficient use of the right upper arm at or above the elbow, taking into consideration the injuries below the elbow is 45 percent.”

36 Dr Tjeuw issued a report to the Worker’s lawyers dated 9 June 2003. Its first page-and-a-third repeats, virtually verbatim, his report of 25 April 2002. It records that from December 2001 the Worker was solely under the care of Dr Salmon. It differs from Dr Tjeuw's earlier report by stating some of the matters that Dr Salmon had reported to Dr Tjeuw, but those matters are themselves covered in Dr Salmon's report of 15 May 2003. It gives for the first time an account of her pre-injury condition, from which one can conclude that she had no problem with her right arm prior to 12 July 2001. (However, it had never been suggested by anyone that she had any such pre-existing condition in her right arm.) The report goes on to express the view that she has approximately 50% permanent functional impairment of her right arm. It is not clear from the report to what extent, if at all, Dr Tjeuw had seen the Worker, even for purposes unconnected with treatment of her right arm, in the period since December 2001.

37 Dr Salmon issued a report dated 22 October 2003, which responded to various reports of doctors who had been instructed by the insurer, including that of Dr Kinney of 30 April 2002, and the MAC of Dr Cummine. Dr Salmon disagreed with the conclusion of each of those reports, giving brief reasons for so doing, and reiterated the opinion he had given in his previous report.

Events in the Commission Relating to the Worker’s Claim

38 The workers compensation insurer wrote to the Worker on 29 May 2002, denying liability for the claim, and providing two weeks’ notice that compensation would cease to be paid, for both medical expenses and weekly benefits, beyond 11 June 2002. On 17 June 2002 the solicitor for the Worker lodged an application in the Workers Compensation Commission, seeking continuation of weekly benefits from 11 June 2002, medical expenses from 29 May 2002, and lump sum compensation for permanent impairment/pain and suffering.

39 After the issue of the MAC, the Worker appealed against the assessment, on the grounds specified in section 327(3)(c) and (d) WIM Act. That appeal was unsuccessful. On 1 April 2003 the Commission issued a Certificate of Determination confirming the MAC dated 26 September 2002. Though it appears from that Certificate that the Medical Appeal Panel provided a Statement of Reasons, that Statement of Reasons was not in evidence in the present case.

40 On 25 June 2004 the Worker lodged in the Commission a further application seeking to appeal against the MAC. This time, the grounds relied upon for the appeal were those in section 327(3)(a) and (b) WIM Act. The application sought that the matter be referred for further medical assessment, rather than to an Appeal Panel.

41 That application was supported by written submissions from the Worker’s solicitor. In support of the ground under section 327(3)(a), those submissions referred to the report of Dr Salmon of 15 May 2003 and the report of Dr Tjeuw of 9 June 2003, and submitted that they showed a deterioration in the worker's condition which resulted in an increase in the degree of permanent impairment. In support of the ground under section 327(3)(b), those submissions referred to the report of Dr Salmon of 15 May 2003, the report of Dr Tjeuw of 9 June 2003, and the report of Dr Salmon of 22 October 2003. It submitted that those reports provided "a clearer diagnosis of the Applicant's injuries which were not available at the time of examination with the Approved Medical Specialist", that Dr Salmon’s report of 15 May 2003 provided a formal diagnosis of the Worker having sustained features of complex regional pain syndrome type 1 (RSD), that Dr Salmon's report of 22 October 2003 pointed out "errors" in reports that were available to Dr Cummine at the time of his examination, and that the report of Dr Tjeuw "provides further comments in confirmation of the injuries sustained to the Applicant and the diagnosis of complex regional pain syndrome".

42 I should say here that, while the submission was correct in pointing out that Dr Salmon’s report of 15 May 2003 said that the Worker had sustained features of Complex Regional Pain Syndrome Type 1, the report of 15 May 2003 did so in exactly the same words as I have quoted at para [22] above from Dr Salmon’s report of October 2001. Thus, to that extent, it was not new information. Any significance that that information had could lie only in the fact that in May 2003 Dr Salmon was prepared to repeat what he had said in October 2001, as though it was still relevant.

43 Dr Salmon’s report of 15 May 2003 was the first time any doctor instructed for the Worker had expressed an opinion about her percentage of permanent impairment in the arm. (Dr Searle’s figure of 70% was conditional on the Worker not improving.)

44 On 15 July 2004 Riverina Wines filed its submissions in the Commission, in opposition to the application for further medical assessment. It submitted, in broad terms, that the question of whether the Worker was suffering Complex Regional Pain Syndrome was a live one at the time of Dr Cummine’s examination, and that Dr Cummine had rejected that possibility. It submitted that the material relied upon as providing additional relevant information was material that had not been shown to be material that could not reasonably have been obtained before the MAC.

45 On 1 October 2004 a delegate of the Registrar considered the matter, and decided to send it for further assessment. The delegate wrote to the respective solicitors for Riverina Wines and the Worker on 1 October 2004, saying:

"I refer to the Application – Appeal Against Decision of Approved Medical Specialist in this matter and advise that I intend to exercise my power under s 329(1) (a) of the 1998 Act and refer the matter for further assessment ..."

46 The only record of the reasons of the delegate for making that decision is an internal file note dated 1 October 2004 that gives the reason as being "deterioration from AMS MAC dated 26.9.02". It is that decision concerning which Riverina Wines sought judicial review.

The Relevant Legislation

47 Through the whole of the period from when the Worker sustained her injury to 1 January 2002, the Workers Compensation Act 1987 made provision, in Division 4 of Part 3, for a particular manner of calculation of compensation for non-economic loss. Division 4 of Part 3 ran from section 65 to section 73. Pursuant to section 65, "loss", in relation to a particular body part, included "the permanent loss of the use, or of the efficient use, of" that body part. Section 66(1) provided:

"A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker’s employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $100,000 set out opposite to that loss in that Table."

48 The Table there referred to listed many body parts, senses and functions, and attributed a particular percentage or range of percentages as the tariff for loss of each such item. The Table made provision for 80% being the applicable tariff for “loss of right arm at or above elbow”. Section 68(1) provided:

"If a loss suffered by a worker consists of the loss of a proportion (but not all) of a thing mentioned in the Table to this Division, a percentage of the compensation payable for the total loss of the thing equal to the percentage lost by the worker is payable as compensation under section 66."

49 A new system for the calculation of compensation for non-economic loss under the Workers Compensation Act 1987 came into operation from 1 January 2002. It abandoned completely the system of seeking to assess percentage loss of use of particular body parts, senses or functions, and substituted a system that depended, broadly, upon assessing the percentage impairment of the whole person as a consequence of the injury.

50 Transitional provisions contained in Part 18C of Schedule 6 Workers Compensation Act 1987 provided, in Clause 3, that those amendments did not apply in respect of an injury received before the commencement of the amendments (save with some exceptions not presently relevant). Thus, if the Worker in the present case was entitled to any lump-sum compensation at all, its quantum was to be assessed in accordance with the pre-1 January 2002 manner of calculation.

51 The amendments to the legislation governing workers compensation that came into effect on 1 January 2002 also made provision for taking "disputes" regarding compensation under section 66 Workers Compensation Act 1987 out of the hands of the Compensation Court, and providing for such disputes to be determined by a process that involved assessment by an AMS. An assessment certified by AMS was “conclusively presumed to be correct” as to certain listed factual matters, and for certain identified purposes.

52 Section 250 WIM Act commenced on 1 January 2002. It defined “existing claim” as (relevantly for present purposes) a claim made before the commencement of section 250, and “new claim” as any claim that is not an existing claim.

53 In the present case the Worker had made a claim prior to 1 January 2002. (The claim itself is not in evidence, but a medical report from a Dr Kafataris that is in evidence refers to it as having been completed on 13 September 2001, and the Worker was being examined by medical practitioners on behalf of the insurer before the end of 2001.) Thus, if the definition of "existing claim" in section 250 were applied by itself, her claim would be an existing claim. However, Clause 5 of the transitional provisions contained in Part 18C of Schedule 6 Workers Compensation Act 1987 enabled regulations to make provision with respect to requiring a class or classes of existing claims to be treated as new claims for the purposes of the Workers Compensation Acts. Such a regulation appears in Clause 224 Workers Compensation Regulation 2003, which provides:

“(1) On and from 1 April 2002, each existing claim in respect of which there is no pending application for determination by the Compensation Court is to be treated as a new claim for the purposes of the Workers Compensation Acts (under clause 5 of Part 18C of Schedule 6 to the 1987 Act).”

54 It is pursuant to that regulation that the Worker’s claim comes to be treated as a "new claim". It is common ground between the parties to this appeal that it should be treated as a "new claim".

55 Another transitional provision in Part 18C Schedule 6 Workers Compensation Act 1987 also applies to this particular Worker’s claim. It is Clause 4, which provides:

“4 Disputes concerning lump sum compensation claims

(1) In the case of a new claim in respect of an injury received before the commencement of the lump sum compensation amendments, compensation under Division 4 of Part 3 (as in force before the commencement of those amendments) may not be awarded by the Commission if there is an impairment dispute unless the dispute has been assessed by an approved medical specialist under Part 7 of Chapter 7 of the 1998 Act.

(2) An assessment certified in a medical assessment certificate pursuant to the medical assessment of an impairment dispute is conclusively presumed to be correct as to the matters in dispute in any proceedings in respect of the claim for compensation concerned.

(3) For the purposes of this clause, Part 7 of Chapter 7 of the 1998 Act extends (with such modifications as may be prescribed by the regulations) to the assessment of an impairment dispute as if it were a medical dispute under that Part.

(4) In this clause, impairment dispute means a dispute about whether a loss or impairment exists and, if so, the nature and extent of the loss or impairment.”

56 When this clause refers to “the lump-sum compensation amendments" it is referring to the amendments that introduced the new system for calculating compensation for non-economic loss that came to be applicable from 1 January 2002. When the clause refers to "the 1998 Act", it is referring to the WIM Act.

57 Part 7 of Chapter 7 WIM Act extends from section 319 to section 331 inclusive. It came into operation on 1 January 2002. It established the process whereby disputes regarding compensation under section 66 Workers Compensation Act 1987 came to be decided by a process involving the use of an AMS.

58 In the form in which Part 7 of Chapter 7 WIM Act came into operation on 1 January 2002, it included the following provisions:

“319 Definitions

In this Act:

approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist.

medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:

(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),

(b) the worker’s fitness for employment,

(c) the degree of permanent impairment of the worker as a result of an injury,

(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

(e) ...

(f) whether impairment is permanent,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.

...

321 Referral of medical dispute for assessment

(1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.

...

322 Assessment of impairment

(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines issued for that purpose.

...

325 Medical assessment certificate

(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.

(2) A medical assessment certificate is to be in a form approved by the Registrar and is to:

(a) set out details of the matters referred for assessment, and

(b) certify as to the approved medical specialist’s assessment with respect to those matters, and

(c) set out the approved medical specialist’s reasons for that assessment, and

(d) set out the facts on which that assessment is based.

...

326 Status of medical assessments

(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:

(a) the degree of permanent impairment of the worker as a result of an injury,

(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,

(c) ...

(d) whether impairment is permanent,

(e) whether the degree of permanent impairment is fully ascertainable.

(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.

327 Appeal against medical assessment

(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3) The grounds for appeal under this section are any of the following grounds:

(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,

(b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment),

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error.

(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists.

(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.

(6) If the appeal is on a ground referred to in subsection (3) (a) or (b), the Registrar may refer the medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment.

(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.

328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.

(2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal.

(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment.

(4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.

(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.

(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.

329 Referral of matter for further medical assessment

(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:

(a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or

(b) a court or the Commission.

(2) A certificate as to a matter referred again for further assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.

....

331 Guidelines

Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the WorkCover Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments.”

These provisions remained in the same form as at 1 October 2004, the relevant date for the present case.

59 I note that sections 327 and 329 WIM Act have now been amended by the Workers’ Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005, with the amendments commencing from 1 November 2006. However, it is legislation in the form set out above that was current on 1 October 2004, and it is by reference to the legislation that was current at the time that the decision of the delegate of the Registrar that is in question in this case should be assessed.

60 I have included numerous of these sections to demonstrate how the wording of the sections is repeatedly concerned with assessment of the degree of permanent impairment of the worker – that is, whole-person impairment, the concept that matters for assessment of lump-sum compensation under the post-1 January 2002 version of the Workers Compensation Act 1987. That concept, however, is different to the particular impairments of particular bodily parts, senses or functions that were the means whereby quantum was calculated immediately prior to 1 January 2002. Thus, to the extent that it deals with permanent impairment of the worker, Part 7 of Chapter 7 cannot be directly applied to assess lump-sum compensation for pre-1 January 2002 injuries.

61 The reader will recall that Clause 4 of Part 18C of Schedule 6 Workers Compensation Act 1987 provides that Part 7 of Chapter 7 WIM Act extends to impairment disputes concerning injuries sustained prior to 1 January 2002 with such modifications as might be made by the regulations. The only such modification made by the regulations is that arising under Clause 223 Workers Compensation Regulation 2003, which provides:

“223 Assessment of impairment dispute

The following modifications are prescribed to Part 7 of Chapter 7 of the 1998 Act as that Part applies to a new claim in respect of an injury received before the day on which that Part commences:

(a) omit section 322 (Assessment of impairment),

(b) omit section 323 (Deduction for previous injury or pre-existing condition or abnormality).”

62 Section 326(1) WIM Act could not apply to give any conclusiveness to the particular MAC involved in this case, because that MAC did not on its face state any of the matters listed in section 326(1)(a)-(e). However, the case was argued on the basis that the MAC is conclusively presumed to be correct pursuant to Clause 4(2) of the transitional provisions quoted at para [55] above, because it certifies as to the percentage loss of efficient use of the right arm on the basis of the Table of Disabilities, the matter that was the topic of the particular impairment dispute involved in the present case. Thus, the Worker’s percentage loss of efficient use of the right arm on the basis of the Table of Disabilities is a matter "appealable under this section", within the meaning of section 327(2) WIM Act. (Strictly, the relevant item in the Table was “loss of right arm at or above right elbow”, while the MAC had certified the “percentage loss of efficient use of the right arm on the basis of the Table of Disabilities”, but no one submitted that the difference between those two expressions was of any significance.)

63 The ground for appeal stated in section 327(3)(a) is "deterioration of the worker’s condition that results in an increase in the degree of permanent impairment". It is to be noted that, unlike some other provisions of Part 7 of Chapter 7 WIM Act, it does not use the phrase "permanent impairment of the worker". Thus, in the case of a pre-1 January 2002 injury, where there is a dispute concerning the existence or extent of loss of use, or of the efficient use, of a particular body part, it is capable of applying, without any need to be modified mutatis mutandis, to a situation where an appeal is sought on the ground that there has been a deterioration of the worker’s condition that results in an increase in the degree of permanent loss of use, or of the efficient use, of that body part. All active parties to the appeal proceeded on the basis that section 327(3)(a) should be construed that way.

Natural Justice Grounds of Appeal

64 Two of the grounds of appeal related to an alleged failure of the trial judge to accord natural justice, in that he allegedly relied upon a matter that had not been specifically addressed by the parties. At the hearing of the appeal Mr Neil SC accepted that, had the significance of that matter been a live issue in the court below, it would have resulted in additional submissions being made, but that the course of the hearing below would not have otherwise been affected.

65 Riverina Wines has had a full opportunity to put those additional submissions to this Court. That cures any breach of natural justice that may have occurred in the court below. Further, in circumstances where this appeal is proceeding on the basis that Riverina Wines is to pay the costs of the Worker regardless of the outcome, whether the allegation of denial of natural justice in the court below is correct will not affect even the costs order that is made in this appeal. In these circumstances, the allegation of denial of natural justice deserves no further consideration.

Inadequacy of Trial Judge’s Reasons

66 Another ground of appeal relates to the alleged failure of the trial judge to provide adequate reasons for his conclusion. Even if such a ground of appeal were to succeed, the only effect is that the matter comes to be considered again. In the present case, Riverina Wines has said everything it wishes to say about the reasons why it asserts the trial judge came to the wrong conclusion. It does not allege that, on any rehearing, there would be any additional relevant evidentiary material to put forward. In these circumstances, without entering into the question of whether the reasons of the trial judge were adequate, there would be no point in upholding this ground of appeal. In disposing of the matter in this way, it should not be thought that I have formed a view that the reasons of the trial judge were in fact inadequate.

Construction of Section 327(4)

67 The trial judge took the view, at para [15] of the decision below, that the determination of whether a ground of appeal under section 327(4) exists is a matter for the Registrar to determine on the balance of probabilities. Further, he took the view at para [24] of the decision below, that such a construction:

"... requires the Registrar to determine the second precondition on the balance of probability. In my opinion it would not be sufficient for the Registrar to merely determine that the application purports to rely on ground (3)(a) or (3)(b) or that there is an arguable case the grounds or one or other of them may be established.”

68 The Worker, by a Notice of Contention, challenges that construction of section 327(4). It is convenient to deal with the construction of section 327(4) now.

69 Section 327 has a clear internal structure. Sub-section (1) confers a right of appeal against a medical assessment, but provides that such an appeal exists only concerning limited subject matters, and only on limited grounds.

70 Sub-section (2) identifies the subject matters concerning which the appeal can be had, and sub-section (3) identifies the grounds.

71 Sub-section (4) is, in its first sentence, purely procedural, stating the manner of making an appeal. Within the meaning of section 327(4), an appeal being “made” means that it is instituted, not that it is carried through to finality. That necessarily follows from the fact that that part of the appeal process can involve action by someone other than the Registrar, namely the Appeal Panel.

72 As Wood CJ at CL correctly observed in Campbelltown City Council v Vegan [2004] NSWSC 1129 at [74], section 327 thereby provides a “gatekeeper role” for the Registrar.

73 It is of significance that the criterion for the appeal proceeding is that it “appears to the Registrar” that at least one of the grounds for appeal specified in sub-section (3) exists. That is to say, the criterion for the appeal proceeding is not the objective existence of any of the grounds of appeal, but the opinion of the Registrar concerning whether one of those grounds exists. In Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 Handley JA, at [8], expressed the view that whether the ground of appeal “exists” means “that the ground is, on its face, valid and apparently credible”. Basten JA, at [133], said:

“On first impression, it would seem that the Registrar is not required to determine the scope of the appeal because her role is merely to determine whether the appeal is to “proceed”, the appeal itself being by way of review by the Appeal Panel. If only one ground for appeal exists, in the opinion of the Registrar, it would appear that the whole of the appeal may proceed and that, being satisfied as to one ground, the Registrar is not required to address other grounds. Similarly, to say that a ground of appeal “exists”, as it “appears” to the Registrar, is to say no more than that the application before the Registrar satisfies the minimum requirements of s 327(3). There is no suggestion that the Registrar is required to consider whether the ground should succeed or to do more than satisfy herself that a ground, in conformity with s327(3) is alleged and (perhaps) cannot be dismissed as patently untenable or colourable.”

McColl JA agreed with the reasons of Handley JA, and “generally” with the reasons of Basten JA.

74 I would, with respect, prefer the formulation of Handley JA. It seems to me that section 327(4) requires the Registrar to form an opinion, bona fide, about whether one of the grounds for appeal specified in sub-section (3) exists. While the ground must be alleged, I doubt that it could be said that it “appears to the Registrar” that one of the grounds “exists” unless the Registrar had actually formed an opinion that it existed.

75 The “first impression” formulation of Basten JA puts one of the matters as to which the Registrar must form an opinion in the form of a negative (that the ground "cannot be dismissed as patently untenable or colourable"), while the section itself identifies the subject matter of that view in positive terms ("it appears ... that one of the grounds ... exists"). The formulation of Handley JA casts the subject matter of the opinion, consistently with the section, in positive terms. The difference between the formulation of Handley JA and Basten JA would matter in a situation where the Registrar, after considering all material, remained undecided about whether the ground existed or could be dismissed as patently untenable or colourable.

76 Even so, both the formulation of Handley JA and of Basten JA require the Registrar to form an opinion that does not go as far as deciding that the ground is actually made out. In my view, both formulations are correct in that respect. To decide that a ground of appeal "exists" is not the same as deciding that the ground of appeal has actually been made out. A ground of appeal is a statement of a contention one wishes to make in the course of an appeal, as a reason why the appeal should succeed. A ground of appeal can “exist” if it is a contention of that type, made in circumstances where there is a sufficiently realistic prospect of the ground being made out. And in deciding whether the prospect of the ground being made out is “sufficiently” realistic, one turns to the context in which, and purpose for which, the question is being asked. In the context of this particular piece of legislation, deciding that the ground exists involves the Registrar forming a view that the ground of appeal has enough substance to warrant the appeal proceeding.

77 As well as the textual difference between a ground of appeal "existing", and that ground actually being made out, other features of the legislation lead to that conclusion. One of them is in section 327 itself.

78 Section 327(4) takes the form of saying that the appeal is not to proceed unless it appears to the Registrar that one of the grounds exists. Thus, it does not say that the appeal is to proceed if it appears to the Registrar that one of the grounds exists. This leaves some scope for the Registrar to exercise a discretion to not allow the appeal to proceed even if there is a basis for saying that one of the types of facts listed in section 327(3) had been established. For example, if an appeal was sought under section 327(3)(b), a situation might arise where the Registrar took the view that there was “additional relevant information”, but that its significance was so slight that permitting the appeal to proceed would not be warranted. Of course, the exercise of any such discretion would need to be carried out by reference to the scope and purpose of the workers compensation legislation: Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746 at 757-758; Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505; FAI Insurances Limited v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 368. But the fact that the discretion exists at all is consistent with the construction I am advancing of section 327(4).

79 Other textual support for the construction I am advancing of section 327(4) can be derived by considering what happens if the Registrar permits an appeal to proceed. If there is an appeal to an Appeal Panel, section 328(5) makes provision for the Appeal Panel to issue a new MAC, and for (amongst other things) the conclusive presumption of correctness arising under section 326 to apply to that new MAC. Thus, in at least some situations, if the appeal proceeds, then the Registrar's decision is not the final word concerning the ground of appeal. For example, if an appeal was allowed to proceed on the ground of deterioration of the worker’s condition that results in an increase in the degree of permanent impairment, it would still be for the Appeal Panel to make the final decision about what the degree of impairment of the worker had become. That need not involve addressing in terms whether there had been a deterioration between the time of the earlier MAC and the time of the decision of the Appeal Panel, but in practical terms it would decide that question.

80 Another matter that assists to some extent in reaching the conclusion that the Registrar is not required to decide whether a ground of appeal is actually made out concerns the statutory requirements for the qualifications and experience of the Registrar and any delegate of the Registrar. The following provisions of the WIM Act relate to that topic:

“369 Qualifications for appointment

(3) A person is eligible to be appointed as the Registrar ... only if the person:

(a) is a legal practitioner, or

(b) has such qualifications, skills or experience as may be determined by the Minister.

371 Functions of Registrar

...

(2) The Registrar can delegate to any member or member of staff of the Commission any of the Registrar’s functions under the Workers Compensation Acts, except this power of delegation.

374 Staff and facilities

(1) Such staff as may be necessary for the Commission to exercise its functions are to be employed under Part 2 of the Public Sector Management Act 1988 as staff of the Commission.

(2) Those staff are, in the exercise of their functions, subject to the general control and direction of the Registrar.”

81 Thus, it is not necessary for the Registrar to be either a legal practitioner or to have any medical training. Further, it is open to the Registrar to delegate to another member of staff the question of whether an appeal should proceed. There was a general requirement under Part 2 of the Public Sector Management Act 1988 as follows:

26 Selection for appointment to be on merit

(1) A Department Head shall, for the purpose of determining the merit of the persons eligible for appointment to a vacant position under this section, have regard to:

(a) the nature of the duties of the position, and

(b) the abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties.”

82 However, consistently with that requirement, a delegate might not be either a legal practitioner or have any medical training. The topics that section 327(3) WIM Act lists as grounds for appeal are the sort of topic concerning which one would ordinarily expect a person making a final decision to have either legal or medical training.

83 Riverina Wines relies on the purpose of Part 7 of Chapter 7 as a basis for submitting that the circumstances in which section 327 can operate should be narrowly construed. It submits that the evident purpose of Part 7 of Chapter 7 WIM Act was to make AMSs, rather than judges or arbitrators, the final arbiters of "medical disputes" as defined by section 319, at least in relation to the matters specified in section 326(1). It submits that the procedure for the assessment of permanent losses or impairments which brings finality and certainty to the resolution of "medical disputes" would be defeated if a further assessment under section 327(6) or a review by a Medical Appeal Panel under section 328 could be obtained whenever a worker unhappy with a MAC came into possession of medical reports which merely contradicted the assessment of the AMS. It submits that:

"Such an approach would encourage ‘doctor shopping’ and create a ‘revolving door’ through which workers could endlessly vex employers and insurers with claims (and further costs) based on allegations of deterioration which are, in reality, nothing more than repeated attempts to obtain a different and more favourable result."

84 I accept that a purpose of Part 7 of Chapter 7 WIM Act is in some circumstances to make AMSs, rather than judges or arbitrators, the final arbiters of "medical disputes" as defined by section 319. But it does not do so in all circumstances. The conclusiveness of the certificate of the AMS who first examines a worker is subject to there being no appeal made and allowed to proceed. If the appeal is allowed to proceed, and goes to an Appeal Panel, section 328(1) provides that that appeal is not determined by a single AMS, but rather by two AMSs and one Arbitrator. That provides an exception to the principle that it is AMSs, rather than judges or arbitrators, who are the final arbiters of "medical disputes". And the possibility of an appeal to an Appeal Panel, or of there being a further medical assessment under section 329, provides circumstances in which the determination of the first AMS who examines a worker is not conclusive.

85 Section 3 WIM Act sets out expressly the objectives of that Act:

“The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:

(a) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,

(b) to provide:

• prompt treatment of injuries, and

• effective and proactive management of injuries, and

• necessary medical and vocational rehabilitation following injuries,

in order to assist injured workers and to promote their return to work as soon as possible,

(c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,

(d) to be fair, affordable, and financially viable,

(e) to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,

(f) to deliver the above objectives efficiently and effectively.”

86 To presume an MAC conclusively to be correct concerning the extent of impairment of a worker, advances the objectives that the system be affordable, financially viable and efficient. But if an AMS reaches a conclusion that, notwithstanding that presumption, is in fact incorrect, and if the MAC has the effect that the worker would be undercompensated if that MAC were to remain the conclusive determinant of the extent of impairment of a worker, the objectives of providing injured workers with payment for permanent impairment, and being fair, would be undermined. The procedural means by which the Act seeks to accommodate the different objectives of affordability, financial viability, efficiency, payment of benefits for permanent impairment, and fairness, in the context of the conclusiveness of an MAC, is by establishing the regime for appeals in limited circumstances and on limited grounds that section 327 sets up. The submission of Riverina Wines that I am here considering is one that concentrates on some of the objectives of the Act, but leaves others out of account. When section 327 provides a means of reconciling differing objectives of the Act, I do not find that a consideration of only some of those objectives is a useful aid to its construction.

Interrelationship of Section 327(4) and 327(6)

87 Counsel for both the Worker and the Authority submitted that it was open to the Registrar to refer a medical assessment for further assessment under section 329, even if it did not “appear to the Registrar” that one of the grounds of appeal existed, provided only that the person seeking the appeal relied upon a ground in sub-section (3)(a) or (b). Reasons for reaching this conclusion were, it is submitted to be:

1. The assessment under section 329 is expressly stated to be “an alternative to an appeal”, and hence the pre-condition for an appeal proceeding does not apply to it.

2. Because section 327(6) permits the reference for further assessment only on a ground referred to in sub-section (3)(a) or (b) it is inconsistent to impose a second requirement, of it appearing to the Registrar that one of the four grounds in section 327(3)(a), (b), (c) and (d) exists.

88 I do not accept the first of these submissions. In my view, the intention of section 327(6) is that the Registrar can refer a medical assessment for further assessment as an alternative to an appeal against the assessment proceeding. Any question of an appeal proceeding (as opposed to being "made") arises only if the appeal survives the exercise of the Registrar's gatekeeper function.

89 Nor do I accept the second of these submissions. Construing the section as a whole, and assuming, as one is entitled to take the legislature to have assumed, that the Registrar will act sensibly rather than irrationally, the Registrar would refer the medical assessment for further assessment only in circumstances where it appeared to the Registrar that at least one of the grounds specified in sub-section (3)(a) or (b) existed.

90 One of the grounds on which the trial judge had relied in concluding that the second sentence in section 327(4) must be met before any referral under sections 327(6) and 329(1) could be made, was that such a construction was consistent with Workers Compensation Commission Practice Direction number 8 and the WorkCover Medical Assessment Guidelines, which require an appeal against a medical assessment to be lodged in the approved form. That approved form commenced by saying “This is an application by a party to a dispute for leave to appeal against a decision of an Approved Medical Specialist.” The trial judge saw significance in it being described as application for leave to appeal.

91 I do not accept that it is legitimate to construe a statute by reference to a practice direction. Also, whatever status they may have in other cases, in the present case the Medical Assessment Guidelines did not apply, because, pursuant to the transitional provision quoted at para [61] above, section 322 (the section requiring assessments to be made in accordance with the Guidelines) did not apply to assessment of this particular claim. Thus, I am not persuaded by this particular ground on which the trial judge relied.

The “No Evidence” Submission

92 Any submission that there was no evidence to found the decision of the delegate of the Registrar to refer the matter for further assessment must give recognition to the fact that the matter proceeding, under section 327(4), depends not on the objective existence of one of the facts in section 327(3) (a) or (b), but on it appearing to the Registrar (or, as the case may be, the delegate) that one of those facts exists. As Latham J put it in Inghams Enterprise v Iogha & Ors [2006] NSWSC 456 at [23]:

"The plaintiff must establish that the Registrar’s decision to allow the appeal to proceed was based on factual determinations which were “illogical, irrational or lacking a basis in findings or inferences of facts supported on logical grounds”. This is the appropriate test where the relevant statutory function calls for a state of satisfaction on the part of the Registrar, that is, a state of satisfaction that one of the grounds under s 327(3) exists; Re Minister for Immigration and Multi-Cultural Affairs; Ex Parte Applicant S 20/2002 [2003] HCA 30; (2003) 198 ALR 59 ; (2003) 77 ALJR 1165. See also Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [59]."

93 In this court, Riverina Wines submitted that such a test was satisfied because there was no evidence before the delegate of the Registrar on the basis of which she could rationally have been satisfied that either of the grounds in section 327(3) (a) or (b) existed. Riverina Wines submitted that, even if it were correct (as in my view it is) that the Registrar does not need to decide that, on the balance of probabilities, one of those facts exists, the evidence before the delegate still did not meet the lesser standard that is required before it can "appear to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists."

94 Considering that submission involves, first, construing section 327(3)(a). “Deterioration” of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the “deterioration” that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.

95 The conclusive presumption of correctness does not attach to every statement that is made in a MAC – in the present case, that conclusive presumption of correctness applies, under Part 18C Schedule 6 Clause 4(2) only to “the matters in dispute in any proceedings in respect of the claim for compensation concerned”. In the present case, that is the extent to which the Worker has suffered a percentage loss of efficient use of the right arm at or above the right elbow. Thus, in the present case, the relevant type of "deterioration" for the ground in section 327(3)(a) is established if her present condition is such that she has a percentage loss of efficient use of the right arm at or above the right elbow of greater than 0%.

96 When section 327(3)(a) is construed in that way, it is not to the point for Riverina Wines to submit that the condition of the Worker appears, even if one accepted the 2003 reports of Dr Salmon and Dr Tjeuw, to be no worse, and indeed somewhat better, than they had reported her condition as being prior to the examination that led to the issue of the MAC.

97 The trial judge dealt with the “no evidence” submission as follows:

“[30] Crucial to any determination of that issue was whether there were any physical signs to support the alleged symptoms. Dr Cummine, at his examination, found no signs to support the second opponent’s complaints. His examination findings relevantly were:

... right and left upper limbs were equal and symmetrical in appearance. They were similar in temperature. Normal pulses were present. There was no evidence of sweating or atrophy ... reflexes in both upper limbs were equal and symmetrical. There was no wasting or fasciculation.

[31] In my opinion the crucial comparison is between the objective findings made by Dr Cummine on 26 September 2002 and those subsequently made by Drs Tjeuw and Salmon.

[32] Dr Tjeuw reported enlargement of the right arm and forearm. Dr Salmon on examination on 30 April 2003 found the hand was blue, warm, and moist. In my opinion these signs, which were apparently absent on Dr Cummine’s examination, provided some evidence, particularly when coupled with the differing assessments, to support the delegate’s conclusion. Accordingly I am not persuaded that error has been shown.”

98 The “differing assessments” to which his Honour there referred were Dr Cummine’s assessment of 0% permanent impairment, Dr Tjeuw’s assessment of 50%, and Dr Salmon’s assessment of 45%.

99 Riverina Wines rightly points out that no conclusive presumption of correctness attached to objective findings of the kind his Honour quoted in para [30] of his judgment. Even so, his Honour was right to compare the objective findings made by Dr Cummine and those subsequently made by Doctors Tjeuw and Salmon. Doing so was one way of testing whether it had been open to the delegate of the Registrar to conclude that it appeared to her that the ground in section 327(3)(a) existed. And, when on the facts of the present case the only evidentiary base presented to the Registrar for a case that there had been a deterioration in the condition of the Worker was the 2003 reports of Dr Tjeuw and Dr Salmon, comparing those objective findings was the only way of seeing if there was a basis of any substance for the differing assessments of percentage impairment that Dr Tjeuw and Dr Salmon had made, by comparison with that of Dr Cummine. Hence his Honour was right to regard that comparison as “crucial”.

100 Riverina Wines submits that the trial judge was in error in placing reliance upon Dr Tjeuw’s reported enlargement of the right arm and forearm. It correctly points out that it could not be concluded that the enlargement that Dr Tjeuw reported upon on 9 June 2003 was based upon any observations he had made since December 2001.

101 However, Dr Salmon’s report of 15 May 2003 reported on an examination he had made on 22 February 2003, in which he found:

“The arm and forearm were increased in circumference in comparison to the left. There was no change on examination from October, 2001.”

It would have been open to the delegate to regard that report as providing an evidentiary basis for there being enlargement of the right arm and forearm by comparison with the observations on which Dr Cummine’s certificate was based. As well, Dr Salmon's examination of 30 April 2003 having found her hand was blue, warm and moist is an objective change from the condition that had been found by Dr Cummine.

102 Even though it had not been relied upon by the trial judge, I also note that Dr Salmon reported that on some of the occasions when he had examined the Worker after the examination of Dr Cummine, but before 30 April 2003, sweating was demonstrated.

103 In these circumstances, I am not persuaded that error has been shown in the conclusion that the delegate of the Registrar reached.

104 The Worker, by Notice of Contention, submitted that the decision of the delegate could also be supported under section 327(3)(b). In light of the conclusion I have reached, it is not necessary to consider that argument.

Failure of the Registrar to Give Reasons

105 In Campbelltown City Council v Vegan [2006] NSWCA 284 this Court held that an Appeal Panel had an obligation to give reasons for its assessment. The Appellant submitted that, similarly, the Registrar had an obligation to give reasons for a decision under section 327(4), and that, manifestly, in the present case the delegate had stated a conclusion without reasons.

106 There is normally, but not always an obligation to give reasons for decisions involving an exercise of judicial power: Pettitt v Dunkley [1971] 1 NSWLR 376 at 388; Public Service Board v Osmond [1986] HCA 7; (1985) 159 CLR 656 at 666-667. However, there is no general rule of the common law or principle of natural justice that requires reasons to be given for administrative decisions: Public Service Board NSW v Osmond [1986] HCA 7; (1985) 159 CLR 656 at 662.

107 I turn first to enquire whether the decision of the delegate of the Registrar in question here is a decision of a judicial character. The Workers Compensation Commission is not a “Court of a State” for the purposes of the conferral of judicial power pursuant to section 39(2) Judiciary Act 1903 (Cth); Orellana-Fuentes v Standard Knitting Mills Pty Ltd & Anor; Carey v Blasdom Pty Ltd T/As Ascot Freightlines & Anor (2003) 57 NSWLR 282; [2003] NSWCA 146. However, that the Commission is not a court in that sense is not in itself determinative of whether, at least sometimes, it exercises judicial power – there are many institutions that exercise judicial powers that are not courts: Orellana-Fuentes v Standard Knitting Mills Pty Ltd & Anor; Carey v Blasdom Pty Ltd T/As Ascot Freightlines [2003] NSWCA 146; (2003) 57 NSWLR 282 at 290; [2003] NSWCA 146 at [39].

108 In Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 355; [1999] HCA 9 at [45] Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:

“The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 374, Kitto J said:

“[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons ... [T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which ... entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.””

109 A shorthand version of that test is whether the decision maker is engaged in determining the legal rights and duties of parties: Attorney General of NSW & Anor v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 per Handley JA at 739. Such a test was applied by this Court in Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 when Basten JA, at [109], held that one reason why an Appeal Panel under the WIM Act was obliged to give reasons for its decisions was because:

"... the assessment of permanent impairment undertaken by the Appeal Panel involves the application of a statutory test, by which legal rights as between an employee and employer are determined. Accordingly, it is an exercise in the nature of a judicial function, whatever the precise name or status of the Appeal Panel itself: see e.g., in a constitutional context, the indicia of judicial power discussed in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 at 256-259 (Mason CJ, Brennan and Toohey JJ) and 267-269 (Deane, Dawson, Gaudron and McHugh JJ); and see Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 at [21]- [24] (Gleeson CJ, McHugh J agreeing), [63]-[76] (Gaudron and Hayne JJ), [123]-[131] (Kirby J) and [189] (Callinan J); and in this Court, Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185 at [18]- [29] (Spigelman CJ, Hodgson and Bryson JJA agreeing).

That reason was agreed in by Handley JA (at [7]) and McColl JA (at [33]).

110 In deciding whether the delegate of the Registrar was making a decision of a judicial character, one relevant factor is that she was not making any inquiry concerning the facts about the degree of impairment of the Worker as those facts are, but merely an inquiry concerning what appeared to her. I recognise that that consideration is not always decisive of whether a decision is a decision of a judicial character, and that sometimes, when the opinion of a decision maker about the existence of some matter is the foundation of that decision maker’s jurisdiction, there can be an obligation to give reasons as to why the decision maker is of the opinion that that matter exists. In other words, the relevant "facts as they are", for the purpose of the test laid down by Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, concern the state of the decision-maker’s own mind. Nonetheless, that the inquiry concerned the state of her own mind is a relevant matter to take into consideration in deciding whether there is a duty to give reasons in this particular case.

111 Another relevant factor is that the decision of the delegate of the Registrar did not finally decide any legal rights and duties, beyond that the Worker was entitled to have a reassessment. That is not a decision concerning any ultimate rights to receive or duties to pay compensation. In its effect, the decision of the Registrar is closely analogous to the sort of decision that this Court makes when a litigant has no appeal to it as of right, but the Court grants leave to appeal. In such a situation, even though it is a court that it is making the decision, the practice of the Court is to give reasons only in exceptional cases. The only way in which that frequently repeated practice is consistent with the usual obligation of a court to give reasons is that it does not involve any final determination of rights, in the sense relevant for the obligation to provide reasons.

112 Thus, in my view, the delegate of the Registrar was not making a decision of a judicial character when she decided under section 327(4) that it appeared to her that at least one of the grounds for appeal specified in section 327(3) existed.

113 Even though someone who makes a decision of an administrative character is usually not under an obligation to give reasons, in special circumstances the rules of natural justice may require the provision of reasons in the exercise of administrative power, where a person’s rights and legitimate expectations may be adversely affected if the reasons are not provided: Public Service Board NSW v Osmond [1986] HCA 7; (1985) 159 CLR 656 at 670, 676; Attorney General of NSW & Anor v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 at 734-735. One such circumstance might be where the statutory scheme in question provided for an appeal from the decision of an administrative decision maker, and where failure to provide reasons would make the exercise of that right of appeal "although not completely useless, so close to it as to negate the clear intent that... a party dissatisfied with the... decision should have a real and not largely illusory right of appeal": Attorney General of NSW & Anor v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 per Priestley JA at 735. However that situation does not apply here. Though the Registrar has a limited power, under section 378 WIM Act, to reconsider her own decisions, there is no provision of any right of appeal from them. It is precisely because of the absence of any right of appeal from decisions of the Registrar that challenges to them are brought by proceedings seeking judicial review. No other type of circumstance that might give rise to a duty to provide reasons, if the delegate of the Registrar was making an administrative decision, has been suggested to us, or occurred to me.

114 In my view, when the Registrar, or a delegate of the Registrar, decides that there are circumstances such that an appeal can proceed, she is not under any duty to provide reasons for that decision.

115 Since writing the above I have read the additional comments of Hodgson JA. I agree with them.

Orders

116 Consistently with the Authority being heard as amicus curiae, it should receive no order for costs in this Court: Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 at [64]. It received an order for costs in the court below, but no ground of appeal related to that order for costs. It is therefore not appropriate to disturb it.

117 I propose the following orders:

1. Appeal dismissed.

2. Appellant to pay costs of the first and second respondent of the appeal.

118 HANDLEY AJA: In this appeal I have had the benefit of reading the reasons for judgment of Campbell JA in draft. I agree with almost everything he has written but have the misfortune to differ on the “no evidence” submission (paras [87]-[98]) which is the critical question in the appeal.

119 Section 327(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides as one of the grounds of appeal from a Medical Assessment Certificate (certificate) the following:

“deterioration of the worker’s condition that results in an increase in the degree of permanent impairment”.

120 As Campbell JA says (para [89]) deterioration of a person’s condition “is an inherently relational concept”. It requires a comparison between the worker’s condition at an earlier date and his or her condition at a later date. In this context, as Campbell JA holds, the earlier date is the date of the certificate of Dr Cummine. The later date is when the Registrar or his of her delegate came to consider (s327(4)) whether this ground of appeal “exists”.

121 Section 326(1) provides that a certificate “is conclusively presumed to be correct” as to “(a) the degree of permanent impairment of the worker as a result of the injury”. The conclusiveness of the certificate applies “in any proceedings before a court or the Commission” (s326(1)). The Registrar is a member of the Commission (s368(1)), but his or her function under s327(4) in considering whether to allow an appeal from a certificate to proceed is not, in my view, a proceeding before the Commission for the purposes of s326(1). Part 9 of Chapter 7 headed “Proceedings before Commission” does not cover applications to the Registrar under s327(4). Accordingly the conclusive presumption provided for in that section does not apply to the application of its own force.

122 The relevant ground of appeal (s327(3)(a)) makes the certificate the starting point of the inquiry. The ground does not authorise a challenge to the correctness of the certificate as at the date it was given. It is entirely focused on what has happened to the worker since.

123 This is a difficult case because the reports of Drs Salmon and Tjeuw, who were qualified for the worker, before and after the date of the certificate record histories, findings on examination, and opinions which are diametrically different to those made by Dr Cummine in his certificate on 26 September 2002, and these were confirmed by the Appeal Panel on 1 April 2003.

124 There is no medical evidence that the worker’s condition could naturally fluctuate to this extent, and one cannot help wondering whether there has been a miscarriage. There has also been no suggestion that the worker could have done something to herself to produce the swelling, discolouration, sweating and raised temperatures observed by her own doctors. One wonders whether both sets of findings and opinions by the doctors could possibly be bona fide.

125 The Act does not authorise a further medical assessment where there is a profound conflict in the medical evidence which makes it desirable to have an assessment by another approved medical specialist. Perhaps the Act should include such a ground, but that is policy question for the Parliament and not a matter for the courts.

126 In support of their application of 25 June 2004 for a further appeal against the certificate the worker’s solicitors lodged a medical report by Dr Tjeuw of 9 June 2003 and two reports by Dr Salmon of 15 May and 22 October 2003. As Campbell JA said (paras [31], [95]) it is not clear that Dr Tjeuw had seen the worker since December 2001, and the only later material in his report was that quoted from Dr Salmon’s report of 15 May 2003. Dr Tjeuw’s report could not support a decision by the Registrar under s327(4) to allow the worker’s appeal to proceed.

127 The first report of Dr Salmon repeated material from his earlier report of 12 October 2001, but included the results of examinations of the worker on six other occasions prior to the certificate, and five afterwards. As Campbell JA records (para [96]) Dr Salmon reported (15/5/07) that when he saw the worker on 22 February 2003 “there was no change on examination from October 2001”.

128 In my judgment the 2003 reports of Dr Salmon that were relied on to support the worker’s application to the Registrar demonstrate that it was in reality and in substance an attempt to challenge the correctness of the certificate at the date it was given. The reports supported the worker’s claim that her condition was substantially worse than Dr Cummine had certified, but they were incapable of supporting a claim that her condition had become worse since that certificate. In substance Dr Salmon was saying that her condition had not changed and the certificate was incorrect.

129 The jurisdictional error of the Registrar may be described, as I think it can be, as acting without evidence, but I prefer to describe the error as allowing an appeal from the certificate to proceed on a ground other than those allowed by the 1998 Act.

130 Section 327(3) defines exhaustively the permissible grounds of appeal against a medical assessment which is the subject of a conclusive certificate. Subs (5) provides that an appeal on grounds (c) and (d) which challenge the correctness of the certificate when given must be made within 28 days after the assessment unless the Registrar is satisfied that special circumstances justify an extension of time.

131 The worker appealed on these grounds but the appeal was dismissed.

132 As I have already held the ground in subs(3)(a) does not cover or permit a challenge to the correctness of the certificate when given. Moreover the ground in sub para (b) does not cover or permit such a challenge on the basis of material which repeats as at a later date material that was before the approved medical specialist when the certificate was given. Repetitive material is not capable of being “additional relevant information” for the purposes of this ground.

133 I would therefore have allowed the appeal and quashed the Registrar’s decision.

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LAST UPDATED: 2 July 2007