Hatch v Peel Valley Exporters Pty Ltd [2010] NSWSC 23 (22 February 2010)

Last Updated: 25 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Hatch v Peel Valley Exporters Pty Ltd [2010] NSWSC 23


JURISDICTION:
Common Law
Administrative Law List

FILE NUMBER(S):
30062/09

HEARING DATE(S):
30 November 2009

JUDGMENT DATE:
22 February 2010

PARTIES:
Joshua William Hatch (Plaintiff)
Peel Valley Exporters Pty Limited (1st Defendant)
Medical Appeal Panel constituted pursuant to s328(1) of the WIMA 1998 (2nd Defendant)

JUDGMENT OF:
Hislop J

LOWER COURT JURISDICTION:
Medical Appeal Panel constituted pursuant to s328(1) of the WIMA 1998

LOWER COURT FILE NUMBER(S):
4957/2008

LOWER COURT JUDICIAL OFFICER:


LOWER COURT DATE OF DECISION:
20 April 2009


COUNSEL:
J.W. Dodd (Plaintiff)
I. Todd (1st Defendant)
Submitting appearance (2nd Defendant)

SOLICITORS:
Slater and Gordon with Peter Long (Plaintiff)
TurksLegal (1st Defendant)
Crown Solicitor (2nd Defendant)



CATCHWORDS:
Administrative law
Workplace Injury Management and Workers Compensation Act 1998
review by Appeal Panel of medical assessment
no error on face of record
lack of procedural fairness.

LEGISLATION CITED:
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998


CASES CITED:
Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
Markovic v Rydges Hotels Limited [2009] NSWCA 181
Siddik v WorkCover Authority of NSW [2008] NSWCA 116

TEXTS CITED:


DECISION:
(1) Declaration that there was a denial of procedural fairness by the second defendant; (2) The certificate issued by the Appeal Panel in matter no. 4957/2008 be set aside. (3) The matter be remitted to the Registrar for referral to an Appeal Panel constituted under s328 of the Workplace Injury Management and Workers' Compensation Act, 1998 (NSW) for determination according to law. (4) The first defendant is to pay the plaintiff's costs of these proceedings.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADMINISTRATIVE LAW LIST

HISLOP J

Monday 22 February 2010

30062/09 JOSHUA WILLIAM HATCH v PEEL VALLEY EXPORTERS PTY LIMITED & ANOR

JUDGMENT

Introduction

1 The plaintiff, by amended summons filed on 2 October 2009, seeks the following orders:

“1 A declaration pursuant to Section 69 of the Supreme Court Act that the decision of the Second Defendant in matter number 4957 of 2008 involved jurisdictional error that was beyond power and/or was an error on the face of the record and/or that the plaintiff was denied natural justice and/or procedural fairness by the Second Defendant.

2 An order that the Certificate issued by the Appeal Panel in matter number 4957 of 2008 be set aside.

3 An order that the matter be remitted to the Registrar for referral to an Appeal Panel constituted under Section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) for determination according to law.

4 An order that the First Defendant pay the Plaintiff’s costs of the proceedings.”

2 The first defendant opposes the application. The second defendant has filed a submitting appearance save as to costs.

Background

3 The plaintiff was employed under the Australian Traineeship System to work for a host employer, Peel Valley Exporters Pty Limited.

4 During the course of his employment, the plaintiff developed a bilateral carpal tunnel syndrome due to the nature and conditions of his work. He underwent surgery for the condition in February 2004.

5 The surgery was not wholly successful and he underwent further surgery when Dr Scougall operated on the right wrist in September 2005 and the left wrist in December 2005. The plaintiff thereafter continued to complain of symptoms, but returned to other employment. He has continued in employment and is in receipt of weekly payments of compensation for partial incapacity pursuant to the Workers Compensation Act 1987 (“WCA”), s 40.

6 The plaintiff claimed lump sum compensation from the first defendant pursuant to the WCA, s 66 and s 67. The plaintiff and first defendant each qualified a medical specialist in respect of these claims.

7 The plaintiff qualified Dr Endrey-Walder. In his report dated 15 November 2007, Dr Endrey-Walder concluded:

“... on the basis of the Combined Values Chart [the plaintiff] has 12% whole-person impairment.

I believe that [the plaintiff] has reached Maximum Medical Improvement.”

8 Dr Endrey-Walder referred to reflex sympathetic dystrophy in his report, but he did not expressly state whether the impairment assessed by him was based upon reflex sympathetic dystrophy, the carpal tunnel syndrome, or, as plaintiff’s counsel suggested, “in between”.

9 The first defendant qualified Professor Myers. In his report dated 3 March 2008, Professor Myers observed that although the plaintiff complained of significant symptoms, he could find no objective independent evidence to account for those symptoms. He said:

“[The plaintiff] now has continuing complaints of pain, numbness and paraesthesia.

However, currently these complaints cannot be confirmed by physical examination.

Equally, there are significant discrepancies with regards to his Tinel’s signs.

There is also a very significant discrepancy in the claimed numbness of each ring finger, which is not consistent with a median nerve lesion.”

Professor Myers could find no current objective evidence of carpal tunnel syndrome or of ongoing median nerve dysfunction. He concluded:

“It is my opinion that currently, for the reasons given in the body of the report, that I cannot accurately assess any permanent loss. It is my opinion that there is no stabilisation of the injury at present...Given his complaints of pain, numbness and pins and needles, it is my opinion that it is unlikely that any attempt to induce him to return to these duties is likely to [be] successful.

It is therefore my opinion that he is not fit to resume normal pre-injury duties.”

10 The parties were unable to resolve the dispute as to the claims for lump sum compensation. The dispute was referred by the Registrar at the request of the plaintiff to an Approved Medical Specialist (“AMS”) pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (“WIM”), s 321(1) for assessment of permanent impairment. The referral, according to the Panel’s reasons, required the AMS to:

“... conduct an assessment of [the plaintiff’s] left and right upper extremities attributable to the nature and conditions of his employment from approximately 2002 to 19 September 2003.”

11 The reports of Dr Endrey-Walder and Professor Myers were made available to the AMS, as were the reports of the plaintiff’s treating doctors. The latter reports, save for an early report of Dr Scougall, categorised the plaintiff’s condition as one of carpal tunnel syndrome.

12 Consequent upon that referral, an AMS, Dr Blue, examined the plaintiff and on 29 October 2008, furnished a medical assessment certificate pursuant to WIM, s 325.

13 In that certificate, Dr Blue concluded:

“I have no doubt that he did originally insidiously develop bilateral carpal tunnel syndromes as a result of his work activities as a slaughterman/labourer which commenced in January of 2001. This problem subsequently underwent well-accepted and indicated surgical treatment by way of bilateral open carpal tunnel decompression.

Unfortunately the original surgery of February 3, 2004 did not result in any permanent improvement nor did repeat surgery of September 9, 2005 and December 5, 2005 which was equally unsuccessful.

He subsequently did develop complex regional pain syndrome as a result of these problems. Based on his presentation today with the clinical sparring of his little fingers I would therefore believe that he suffers from CRPS type 2 (causalgia) rather than CRPS 1 as outlined in the Guides to the Evaluation of Permanent Impairment AMA, 5^th edition on page 496.

On this basis I have rated him accordingly as outlined in the Guides to the Evaluation of Permanent Impairment AMA, 5^th edition page 496 by way of loss of motion which is confined to his wrist joint and sensory defects of the injured median nerve at wrist level.”

14 Dr Blue assessed the whole person impairment at 30 per cent. He concluded that all body parts had stabilised/reached maximum medical improvement, as he believed that:

“... although there may be spontaneous improvement in [the plaintiff’s] symptoms in the long term this will not occur at greater than 3% per annum.”

15 Dr Blue considered Professor Myers’ report and stated:

“... I would agree with most of his clinical findings with the exception that I did note a restricted range of right wrist flexion much greater than that outlined in his report. I did confirm his findings of positive Tinel’s and Phalen’s testing at both wrist levels. I also would not share his concern regarding the description of the second operations not indicating whether or not the previous surgery had adequately displayed decompression of the flexor retinaculum. In my experience, re do surgery is associated with difficulty in recognising the flexor retinaculum amongst the post operative healing tissues.

I do note that Dr. Scougall reports peri-neural fibrosis at each wrist level in the redo surgery indicating to me that there would thereby be interference with median nerve function.

I further note that he (Professor Myers), is of the opinion that there is no current subjective evidence of ongoing carpal tunnel syndrome or of ongoing median nerve disfunction. I feel this is of no real importance as in fact he is now suffering from complex regional pain syndrome type 2 that has complicated the carpal tunnel problem and is now the dominant cause of his ongoing upper limb problems.

Whilst I would accept his opinion that it is possible that continuing improvement will occur in the long term with the passage of time I would however disagree with the fact that his presentation now cannot be regarded as static and stable on the basis that any improvement will be less than 3 percent per annum.

I note the final report of Dr. Scougall dated February 13, 2007 where he informs of continuing symptoms in both hands more severe on the right which does demonstrate irritability of the median nerve at wrist level. He further informs that provocative tests of the carpal tunnel syndrome are mildly positive on the right side.

He makes no mention of the possibility of his suffering from a complex regional pain syndrome however I do believe that [the plaintiff] presents as an honest co-operative patient and his symptoms are genuine with these indicating to me that he does suffer from a complex regional pain syndrome confirmed by my subsequent clinical examination.”

16 The Medical Assessment Certificate issued by Dr Blue recorded a finding of 30 per cent total whole person impairment.

17 The defendant lodged an application to appeal from Dr Blue’s medical assessment pursuant to WIM, s 327. The application was dated 25 November 2008. The grounds of appeal nominated in the application were, “The assessment was made on the basis of incorrect criteria” and “The medical assessment certificate contains a demonstrable error”.

18 The application identified three bases in respect of which error was alleged, namely:

(a) there were insufficient signs to justify a diagnosis of complex regional pain syndrome;

(b) Dr Blue had regard to symptoms not evident before the plaintiff recommenced employment with a different employer;

(c) Dr Blue applied an incorrect test to determine if the condition had reached maximum medical improvement.

19 Accompanying the application were particulars which included, relevantly:

“2.7 A review of the medical evidence that predates the commencement of the worker’s current employment...indicate that the worker was diagnosed with bilateral Carpal Tunnel Syndrome as a result of the nature and conditions of his employment with the Host Employer until 19 September 2003 and that he continued to suffer residual symptoms of that condition despite undergoing decompression surgeries.

...

2.13 For the reasons set out above, [the first defendant] submits that the decision of the AMS, including the diagnosis of CRPS II and the assessment of permanent impairment based on that diagnosis, must be set aside and that the degree of whole person impairment as a result of the nature and conditions of the worker’s employment with the Host Employer must be assessed in relation to the injury (etc) that is supported by the treating and qualified doctors in this matter as having resulted from that employment – namely Bilateral Carpal Tunnel Syndrome.

...

3.1 [The first defendant] submits that this is an appropriate matter for referral to a Medical Appeal Panel to be appointed by the Registrar and that it is appropriate for the worker to be re-examined by the Panel on the basis of correct assessment criteria and in accordance with the terms of the Referral issued by the Registrar in this matter.”

20 The Registrar was satisfied that, on the face of the application and submissions, a ground of appeal specified in s 327(3)(d) had been made out and referred the appeal to a Medical Appeal Panel comprising AMS Burke, AMS Hume and Arbitrator Molony for review of the medical assessment of Dr Blue.

21 In response to the application, the plaintiff filed a Notice of Opposition dated 16 December 2008. In the particulars accompanying that document, the plaintiff asserted inter alia:

“The AMS was asked to evaluate the worker’s permanent impairment of both his upper extremities arising out of bilateral median nerve injuries...the characterisation of the condition as CRPS II or any other condition under s 16.5 is irrelevant given that the Workcover guides for the specific interpretation of the evaluation of permanent impairment of the upper extremities due to peripheral nerve disorders directs the assessor to Table 16-10, 16-11 and 16-15 and, given the clinical findings made by the AMS and the worker’s complaints, the AMS’s evaluation of permanent impairment was sound and not erroneous.”

22 On 22 January 2009, the Medical Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines. As a result of that preliminary review, the Panel determined that it was necessary for the plaintiff to undergo a further medical examination.

23 Pursuant to that determination, a further medical examination of the plaintiff was carried out. The Statement of Reasons for Decision of the Appeal Panel (“the Reasons”) recorded that the “re-examination was conducted by both Dr Burke and Dr Hume [‘the examiners’]”. This accords with the direction in the Appeal Panel’s preliminary review document which directed Drs Burke and Hume to conduct the re-examination of the plaintiff. Details of the examination, including history, symptoms and clinical findings, were incorporated in the Reasons. All documents that had been sent to the AMS for the original assessment were before the Panel.

24 The Medical Appeal Panel concluded, in short:

(a) The diagnosis of CRPS II made by the AMS was not justified, as the AMS had recorded only two of eight signs required by the guidelines for such a diagnosis. On re-examination, the examiners found the plaintiff had none of the signs of CRPS II.

(b) There was no doubt, given the clinical history, that the plaintiff had had bilateral carpal tunnel syndrome.

(c) The Guidelines provided that:

“If, after an optimal recovery time following surgical decompression, an individual continues to complain of pain, paraesthesias, and/or difficulties in performing certain activities, three possible scenarios can be present:

1. Positive clinical findings of median nerve dysfunction and electrical conduction delay(s): the impairment due to residual CTS is rated according to the sensory and/or motor deficits as described earlier.

2. Normal sensibility and opposition strength with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar muscles: a residual CTS is still present, and an impairment rating not to exceed 5% of the upper extremity may be justified.

3. Normal sensibility (two-point discrimination and Semmes Weinstein monofilament testing), opposition strength, and nerve conduction studies: there is no objective basis for an impairment rating.”

(d) Because the plaintiff had had repeat bilateral carpal tunnel decompressions, and more than sufficient time has elapsed to allow optimal recovery following his second surgery, the plaintiff fell to be assessed under the second paragraph.

(e) In the light of the examiners’ findings on re-examination the Panel concluded:

All the plaintiff’s wrist and hand joint movements were inconsistent and therefore unreliable.

That there was no diagnosable sensation impairment in either hand.

There was no reliable and consistent evidence of impaired opposition strength.

(f) In those circumstances there were no objective signs of impairment, and the third scenario applied. There was no objective basis for an impairment rating to be made.

25 As a result the medical assessment certificate made by the AMS was revoked and the Panel issued its own medical assessment certificate recording that the plaintiff had no impairment of his upper extremities.

The dispute

26 The plaintiff submitted the certificate of the Appeal Panel should be set aside. A number of reasons in support of this submission were advanced. They are discussed hereunder.

Error on face of record - identity of relevant medical assessor not disclosed

27 The plaintiff submitted there was error on the face of the record in that it was not clear from the Reasons who was the author of the Reasons at paras 28 to 51, or which of the medical members of the Panel interpreted the plaintiff’s history, or compiled the complaints or examination findings. It was submitted the plaintiff was entitled to know who made or recorded those matters, because they included a number of subjective opinions.

28 The decision on review of an AMS assessment is that of the Panel, which consists of two approved medical specialists and an arbitrator (WIM s 328(1)). The decision of the Panel may be unanimous or by majority (WIM s 328(6)). There is no express statutory obligation on the Panel to give reasons for its decision, though the Court of Appeal in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [121] has held there is an implied statutory obligation on the Panel to give reasons. The reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a conclusion. In my opinion, the obligation to give reasons does not extend to requiring individual members of the Panel to give separate reasons, nor is there any obligation to assign segments of the reasons to individual members of the Panel, at least in circumstances where there is unanimity of opinion and result. In those cases, of which the present is one, no purpose would be served by such a requirement.

29 In this case the Reasons expressly state that the “re-examination was conducted by both Dr Burke and Dr Hume”. There is no evidence to the contrary despite the presence of the plaintiff at the examination. It is apparent there was a joint consultation by the doctors. There is no error on the face of the record in this regard.

Error on face of record - nerve conduction studies

30 The plaintiff submitted there was clear error on the face of the record in that the Reasons recorded, “We noted that there were no relevant nerve conduction studies” and failed to refer to the nerve conduction studies of December 2003 and 2004.

31 The Panel was aware of all nerve conduction studies in 2003 and 2004, as reference to them was contained in the medical material to which the Panel had regard and also in the history obtained from the plaintiff, at least in respect of the earlier nerve conduction studies. These studies predated the operative procedures performed in 2005.

32 The ultimate issue for the Panel was the plaintiff’s permanent impairment as at 2009. The Panel expressly accepted the plaintiff had had bilateral carpal tunnel syndrome for which operative procedures were performed. Nerve conduction studies subsequent to those operative procedures in 2005 would have been relevant. It was common ground there were no such studies. It was open to conclude the preoperative nerve conduction studies were not relevant to the task before the Panel. I am unable to accept the plaintiff’s submission.

Procedural fairness - ambit of application

33 The plaintiff submitted:

(a) that the issue raised for determination by the Panel was whether there were sufficient signs to justify the AMS’s diagnosis of CRPS II;

(b) the Panel, on its preliminary review, concluded there were insufficient signs but required the plaintiff to attend a medical examination as it had determined to consider the question of the plaintiff’s impairment due to the bilateral carpal tunnel syndrome, the latter being outside the ambit of the application to appeal;

(c) procedural fairness required the Panel to inform the plaintiff of its conclusion as to the CRPS II diagnosis and that it proposed to consider the question of the plaintiff’s impairment due to the bilateral carpal tunnel syndrome and that his examination was required for the latter purpose.

34 It is unclear that the Panel in its preliminary review formed the opinion that the AMS had recorded insufficient signs to justify the diagnosis. The Appeal Panel does not record this. However, even if this was assumed, it would not give rise to a lack of procedural fairness.

35 The relevant principle was stated by McColl JA in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [101] and [104]:

“... while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard ...while it was open to the Appeal Panel to depart from the grounds of appeal the respondent had identified, it could only do so if it notified the parties and gave them an opportunity to be heard.”

36 The Panel determined that the assessment of the AMS that the plaintiff had an impairment due to complex regional pain syndrome could not stand as only two of the eight signs necessary to establish that condition were present. It determined that such a diagnosis was not open on the re-examination conducted by it, as none of the signs were present.

37 The Panel then considered impairment due to bilateral carpal tunnel syndrome. This did not raise an assessment outside the ambit of the application to appeal or depart from the grounds of appeal notified. It accorded with the particulars of the application to appeal, the particulars to the Notice of Opposition and with the whole thrust of the evidence which the plaintiff’s legal advisers had placed before the AMS and later, the Appeal Panel.

38 In my opinion, the issue of impairment due to bilateral carpal tunnel syndrome was within the ambit of the application to appeal, and accordingly there was no lack of procedural fairness as alleged. In the circumstances there was no lack of procedural fairness in the Panel proceeding to re-examine the plaintiff, even if it had already determined on preliminary review that the assessment by the AMS could not stand.

Procedural fairness - adverse findings

39 The Panel concluded there was no impairment of the plaintiff’s upper extremities. It did so because of the examination findings of the Panel doctors that the plaintiff’s presentation was inconsistent and unreliable.

40 In Markovic v Rydges Hotels Limited [2009] NSWCA 181 the Court of Appeal held:

“[35] This Panel did not give the respondent worker, an opportunity to be heard on the new issues they themselves raised, and having thus misconceived their role, the nature of their jurisdiction and their duty, the Panel’s MAC must be quashed, and the appeal from the MAC of the AMS must be reheard by a fresh Panel.”

41 It was submitted for the plaintiff that Markovic was on all fours with the present case, in that in the present case, the Appeal Panel had raised a totally new issue, namely, the credibility of the plaintiff’s symptoms in circumstances where that issue had not been raised prior to the issue of the Panel’s reasons and certificate. The plaintiff submitted the Panel failed to accord him procedural fairness by not notifying him of the inconsistent findings on re-examination and before proceeding to a final determination.

42 In my opinion, there is substance in this submission. The defendant, in its particulars accompanying the application to appeal, stated that the plaintiff “continued to suffer residual symptoms of that condition [bilateral carpal tunnel syndrome] despite undergoing decompression surgery.” It submitted the diagnosis of CRPS II should be set aside and

“that the degree of whole person impairment as a result of the nature and conditions of the worker’s employment with the host employer must be assessed in relation to the injury (etc) that is supported by the treating and qualified doctors in this matter as having resulted from that employment - namely bilateral carpal tunnel syndrome.”

43 In my opinion, it was implicit in those particulars that the defendant accepted the plaintiff had a whole person impairment consequent upon the bilateral carpal tunnel syndrome and that the Panel was being asked to assess the degree of that impairment. The defendant was not seeking to challenge the plaintiff’s claim on credit grounds or that his presentation was inconsistent and unreliable.

44 This is consistent with the fact that:

(a) it was accepted the plaintiff developed bilateral carpal tunnel syndrome;

(b) the plaintiff continued to complain of symptoms despite surgery;

(c) the defendant consented to pay weekly compensation to the plaintiff, which payments continue;

(d) there was no assertion in any of the medical reports before the Appeal Panel (save for Prof Myers) that the plaintiff’s complaints were other than genuine. Prof Myers did refer in his report to some discrepancies but his conclusion was that the plaintiff was not fit for his pre-injury work and there was no stabilisation of the injury;

(e) the defendant in correspondence with the plaintiff’s solicitors did not rely on any credit issue as arising from Prof Myers’ report;

(f) Dr Blue noted the plaintiff presented as an honest cooperative patient whose symptoms were genuine.

45 In my opinion, the veracity of the plaintiff’s presentation was a new issue raised by the Panel. The Panel should have given notice of this issue to the plaintiff and his advisers before finally determining the appeal before it. Had such notice been given, it may well be that the issue could have been met by obtaining nerve conduction studies or other evidence.

46 In my opinion, the plaintiff has established a lack of procedural fairness on the part of the Appeal Panel in the special circumstances of this case.

Orders

47 Accordingly, I make the following orders:

1. Declaration that there was a denial of procedural fairness by the second defendant;

2. The certificate issued by the Appeal Panel in matter no. 4957/2008 be set aside.

3. The matter be remitted to the Registrar for referral to an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act, 1998 (NSW) for determination according to law.

4. That the first defendant pay the plaintiff’s costs of these proceedings.

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LAST UPDATED:
22 February 2010