New South Wales Supreme Court CITATION : Tran v J Robins & Sons Pty Ltd [2006] NSWSC 1013 HEARING DATE(S) : 25/09/06 JUDGMENT DATE : 29 September 2006 JUDGMENT OF : Bell J at 1 DECISION : 1. Set side the decision of Jeremy Lum, delegate of the Registrar, made 15 February 2006 refusing to allow the plaintiff's appeal to proceed under s 327 of the Workplace Injury Management and Workers Compensation Act 1998; 2. The matter is remitted to the second defendant for determination under s 327(4) of the 1998 Act in accordance with the law; 3. The first defendant is to pay the plaintiff's costs of the proceedings. CATCHWORDS : Workers compensation - judicial review of Registrar's determination not to refer medical assessment for appeal Supreme Court Act 1970 LEGISLATION CITED : Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Campbelltown City Council v Vegan [2004] NSWSC 1129 CASES CITED : R v Maclay (1990) 19 NSWLR 112 Summerfield v Registrar of the Workers Compensation Commission of NSW [2006] NSWSC 515 Zuanic v Gypro-Tech (Australia) Pty Limited (in liquidation) [2006] NSWSC 739 Tieu Muoi Tran (Plaintiff) PARTIES : J. Robins & Sons Pty Ltd (First Defendant) Registrar of the Workers Compensation Commission of New South Wales (Second Defendant) FILE NUMBER(S) : SC 2006/30035 COUNSEL : P.J Menary (Plaintiff) T. Wardell (First Defendant) W.G. McNally & Co Solicitors (Plaintiff) SOLICITORS : Edwards Michael Moroney Lawyers (First Defendant) I V Knight (Second Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW LIST COMMON LAW DIVISION BELL J Friday 29 September 2006 2006/30035 Tieu Muoi Tran v J. Robins & Sons Pty Limited & Anor JUDGMENT 1 BELL J: The plaintiff was employed by the first defendant, a shoe manufacturer, as a process worker from 22 June 1999. Her duties included carrying out a number of repetitive tasks involving the trimming, spray painting and roughening of the soles of shoes. On 1 October 2004 the plaintiff instructed her solicitor, David Trainor, to act for her in relation to a workers' compensation claim arising out of her employment. She complained that in March 2002 she had developed pain in her right arm, shoulder and neck and that by mid-2002 she was experiencing pain in her left arm and shoulder. She had various periods of time off work and was on light duties and had received workers' compensation payments from the first defendant's insurer. 2 Two applications were filed on the plaintiff's behalf: the first, filed on 14 June 2005, was an application for lump sum compensation of $8,750.00 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) based on an assessment that she had suffered 7% whole person impairment. The second application, filed on 22 August 2005, was for reinstatement of weekly payments of compensation and medical expenses as from 27 September 2005. 3 On 23 August 2005 Mr Virtue, arbitrator, made directions at a teleconference on the claim for lump sum compensation. He referred the matter to an approved medical specialist for an assessment of the degree of permanent impairment. On 30 September 2005 the plaintiff's solicitor was advised that an appointment had been made for the plaintiff to be assessed by Dr R W Middleton, an approved medical specialist, on 8 November 2005. 4 Shortly after 20 October 2005 Mr Trainor was advised by the plaintiff's husband that the plaintiff had been referred by Dr Bui, a rehabilitation physician, to Liverpool Hospital for the purpose of undergoing MRI scans. Mr Trainor requested the plaintiff's husband forward copies of the MRI scan reports to him as soon as the reports became available. 5 On 31 October 2005 the plaintiff's weekly payments claim was before Ms Serventy, arbitrator, at a teleconference. She directed that both of the plaintiff's applications be heard together and that they were to be listed for a further teleconference after the examination of the plaintiff by Dr Middleton and the issue of the Medical Assessment Certificate. 6 The plaintiff was seen by Dr Middleton on 8 November 2005. Subsequently he issued a Medical Assessment Certificate (MAC) pursuant to s 325 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) certifying that the plaintiff had 0% whole person impairment. 7 In the MAC Dr Middleton set out the investigations to which he had regard in carrying out his assessment. These comprised (i) an ultrasound of the right and left shoulders conducted on 31 March 2004, which reported relatively minor changes in the right shoulder of sub-deltoid thickening, and on the left side no particular significant abnormality; (ii) an ultrasound of the right shoulder conducted on 20 May 2005, which reported the presence of a very mild bursitis, but no other significant abnormality and no evidence of a rotator cuff tear; (iii) an ultrasound of the left shoulder conducted on 23 May 2005, which described only minor ultrasound changes with no evidence of a rotator cuff tear; and (iv) a bone scan conducted on 21 October 2005, which revealed several areas of minor increased uptake, but no significant abnormality. 8 In the MAC Dr Middleton stated at 10(b): The limitation of movement of the cervical spine is not accompanied by muscle spasm or dysmetria and there is no evidence of radiculopathy. It is considered that the cervical spine falls into Category DRE II. This gives a 0% whole person impairment. Because of the absence of confirmatory physical abnormalities and the relative normality of special investigations, it is considered that the limitation of movement of both shoulders does not qualify for the allocation of an impairment due to musculoskeletal dysfunction. A 0% impairment is allocated to both the right and the left shoulder. (Emphasis added). 9 The MAC was issued on 28 November 2005. The plaintiff's solicitor received a copy of it on 30 November 2005. Following receipt of the MAC, he spoke with the plaintiff's husband by telephone. During this discussion he was informed that the plaintiff had seen Dr Bui on that day and been given a copy of her MRI reports. The reports are dated 18 November 2005 and 23 November 2005. 10 The MRI of the plaintiff's left shoulder conducted on 18 November is reported as showing a focal area of increased signal within the supra-spinatus tendon, with swelling of the tendon and that the appearances are suspicious for a high-grade partial thickness tear. The MRI of the plaintiff's right shoulder conducted on 23 November records a focal area of increased signal within the supra-spinatus tendon consistent with a small articular surface partial thickness tear. 11 The plaintiff sought to appeal against the medical assessment pursuant to s 327 of the 1998 Act. On 15 February 2006 Mr Lum, a delegate of the Registrar (the Registrar) determined pursuant to s 327(4) of the 1998 Act, that it did not appear that at least one of the grounds for appeal specified in s 327(3) exists and he directed that the appeal was not to proceed. 12 There is no appeal from a determination made under s 327(4) of the 1998 Act. By summons the plaintiff seeks judicial review of the Registrar's decision. 13 This Court may intervene and grant relief to the plaintiff in the nature of certiorari under s 69 of the Supreme Court Act 1970 for jurisdictional error, or under s 69(3), on the basis of an error of law that appears on the face of the record of the proceedings. The record includes the reasons expressed by the court or tribunal for its ultimate determination (s 69(4)). 14 The second defendant has filed an appearance submitting to any order of the Court, save as to costs. 15 Section 327 provides as follows: 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. 16 In Campbelltown City Council v Vegan [2004] NSWSC 1129 Wood CJ at CL considered the scheme with respect to appeals against medical assessment under Pt 7 of ch 7 of the 1998 Act. He concluded that s 327 provides a gatekeeper role for the Registrar, who is to consider whether it appears that at least one of the grounds for appeal specified in subsection (3) exists: at [74] – [76]. 17 The Registrar set out the grounds on which the plaintiff sought to appeal against the medical assessment as follows: 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 the medical assessment) (section 327(3)(b)); The assessment was made on the basis of incorrect criteria (section 327(3)(c)); The Medical Assessment Certificate contains a demonstrable error (section 327(3)(d)). 18 In his reasons, the Registrar said: The appellant submits that fresh evidence in the form of MRI scan reports dated 18 November 2005 and 23 November 2005 ought to be admitted as they "provide objective evidence in support of the injuries claimed by the Applicant to both shoulders". While I have carefully considered paragraph 3 of the Appellant's submissions, it appears that the investigations could have reasonably been obtained by the appellant before the medical assessment. In the particular circumstances of this case, a teleconference was held on 23 August 2005 where the matter was referred to an Approved Medical Specialist (AMS). A further teleconference took place on 31 October 2005, where the Arbitrator confirmed that the AMS appointment was set for 8 November 2005. From a perusal of the documents that are before me, there is no indication that prior to lodgement of the appeal, the appellant's legal representative notified the Commission or the Respondent that they had arranged for the worker to undergo further special investigations. In my view, there was ample opportunity from the date of the Arbitrator's referral to the AMS appointment date for the Appellant to obtain this evidence. 19 In the plaintiff's submission, the reasons set out above disclose an error of law in that the decision-maker has approached the ground under subs (3)(b) on the basis that the test for the availability of additional relevant information contained in parentheses is cumulative, requiring not only that the evidence not have been available before the assessment, but also that it could not reasonably have been obtained. 20 In Summerfield v Registrar of the Workers Compensation Commission of NSW [2006] NSWSC 515, Johnson J in a case which raised a similar issue, determined that the word "or" in subs (3)(b) is disjunctive with the result that "additional relevant information" may fall in to one of two categories: (i)evidence that was not available to the appellant before the medical assessment appealed against, or (ii) evidence that could not reasonably have been obtained by the appellant before the medical assessment. 21 The Registrar's determination was made before the judgment in Summerfield was delivered. Mr Wardell, who appeared on the first defendant's behalf, accepted that if the analysis of subs (3)(b) adopted by Johnson J is correct, the reasons given by the Registrar disclose an error of law and that the plaintiff is entitled to the relief that she seeks. 22 Mr Wardell noted that since the judgment in Summerfield, Hoeben J had followed the approach adopted by Johnson J to the construction of subs (3)(b): Zuanic v Gypro-Tech (Australia) Pty Limited (in liquidation) [2006] NSWSC 739 at [55]. 23 Mr Wardell submitted, contrary to the approach taken by Johnson J in Summerfield and Hoeben J in Zuanic, that upon a proper construction the word "or" is to be read as "and" and that subs (3)(b) provides a single cumulative test for determining whether material is "additional relevant information". He relied on the summary of the submissions advanced before Johnson J by counsel for the second defendant in Summerfield, which are set out in his Honour's reasons at paragraphs [30] – [37]. 24 Mr Wardell identified one matter as capable of bearing on the construction of subs (3)(b) to which neither Johnson J nor Hoeben J had been referred. He drew my attention to the WorkCover Medical Assessment Guidelines, which are expressed to be made pursuant to ss 328, 331 and 376(1) of the 1998 Act. 25 Section 328(2) provides that an appeal against a medical assessment under Pt 7 of ch 7 is to be by way of review of the original medical assessment and that the WorkCover guidelines may provide for the procedure on appeal. 26 Section 331 provides: 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. 27 Section 376 of the 1998 Act provides: 376 Issue of guidelines (1) The Authority may issue guidelines with respect to the following: (a) The assessment of the degree of permanent impairment of an injured worker as a result of an injury, (b) the giving of interim payment directions by the Registrar under Part 5, (c) such other matters as a provision of the Workers Compensation Acts provides may be the subject of WorkCover guidelines. (2) The Minister may issue guidelines with respect to the procedure for assessment under Part 7 (Medical assessment). (3) The Authority may amend, revoke or replace WorkCover guidelines made by the Authority, and the Minister may amend, revoke or replace WorkCover guidelines made by the Minister. … (5) WorkCover guidelines (including any amendment, revocation or replacement) are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the guidelines for that purpose, on the day so specified. 28 Chapter E of the guideline deals with "Reviewing or appealing the medical assessment certificate". It includes the following: What are the grounds for appeal? 39. An appeal against a MAC can proceed only if the party appealing can satisfy the Registrar that at least one of the following grounds can be demonstrated: · There has been a deterioration in the workers condition that results in an increase in the degree of permanent impairment, · additional relevant information, which has not previously available (sic) and which could not have reasonably been obtained, is now available; · the assessment was made on the basis of incorrect criteria; or · there is a demonstrable error in the medical assessment certificate. 29 It appears that the guideline contains a grammatical error in the summary of the ground in subs (3)(b). 30 Mr Wardell submitted that the provision for the promulgation of Guidelines in the 1998 Act admitted of their use as an aid in ascertaining the meaning of subs (3)(b) and, to the extent that the provision is ambiguous or obscure, it was open to have regard to the statement of the grounds in the guideline, which pointed to "additional relevant information" being information that was not available to the appellant before the medical assessment appealed against and that could not have reasonably been obtained by him or her before that time. 31 Section 376(1) makes provision for the WorkCover Authority of New South Wales (the Authority) to issue guidelines including on such matters as a provision of the Workers Compensation Acts provides may be the subject of WorkCover guidelines and in subs (2) for the Minister to issue guidelines with respect to the procedure for assessment under Part 7 (medical assessment). The guideline on which reliance is placed made under s 376(1) and the explanatory note accompanying it is by Mr Blackwell, the Chief Executive of the Authority. The WorkCover Guidelines issued by the Authority under subs(1) relating to the assessment of the degree of permanent impairment of an injured worker are subject to the provisions of ss 40 (Notice of statutory rules to be tabled) and s 41 (Disallowance of statutory rules) of the Interpretation Act 1987 by operation of s 377 of the 1998 Act. A guideline issued with respect to the procedure for appeals against medical assessments does not come within s 377. The Guideline was published in the New South Wales Government Gazette on 19 December 2003. I do not consider that it is material to which I should have recourse in determining the meaning of the word "or" as it appears in the Act. In a considered judgment Johnson J observed that the circumstances in which a court will construe the word "or" in a statute as if it were "and" are restricted: (at [49]). His Honour's analysis at paragraphs [38] – [62] is persuasive. Considerations of comity favour that I not depart from it, unless of the opinion that it is wrong. I am not of that opinion. 32 I approach the matter upon the basis that the ground of appeal in s 327(3)(b) dealing with additional relevant information addresses two categories: (i) Evidence that was not available to the appellant before the medical assessment appealed against; (ii) evidence that could not reasonably have been obtained by the appellant before that medical assessment. 33 It was acknowledged that the Registrar's delegate did not approach the consideration of the ground in subsection (3)(b) in this way and that error of law has, accordingly, been established. The MRI scans contain the results of investigations carried out on each of the plaintiff's shoulders, which are the areas of injury that are the subject of her claim. The scans are relevant and they were not available to the plaintiff before the medical assessment that she appealed against. It was not submitted that in the exercise of discretion I would withhold the relief that the plaintiff seeks. 34 Mr Wardell submitted that in the event the plaintiff were successful, there were circumstances that justified a departure from the usual order for costs. He noted that on 31 October 2005, when the Arbitrator gave directions concerning the hearing of both applications, Mr Trainor was aware that the plaintiff had been referred by Dr Bui for the purpose of MRI scans being carried out at Liverpool Hospital. No steps had been taken to have the scans carried out in advance of 8 November or, alternatively, to defer the medical examination to a date after 23 November. Mr Wardell submitted that the failure to take steps to have the scans available at the assessment was conduct that the Court may consider justified a departure from the usual order for costs. In his submission the appropriate order is that each party pay its/her own costs. 35 Counsel for the plaintiff submitted that there had been no default on his client's behalf. The plaintiff had undergone other investigative procedures that had not revealed evidence of physical changes consistent with her symptoms and there had been no reason to defer her applications, which included the claim for restoration of weekly benefits, in the hope that the MRI scans might provide objective support for her lump sum claim. The scans had been ordered by her treating rehabilitation physician and had not been undertaken at the request of her solicitor in connection with her application. I accept that is so. 36 The first defendant opposed the plaintiff's claim for relief. I am not persuaded that there is any sufficient reason why costs should not follow the event. ORDERS 1. Set side the decision of Jeremy Lum, delegate of the Registrar, made 15 February 2006 refusing to allow the plaintiff's appeal to proceed under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 ; 2. The matter is remitted to the second defendant for determination under s 327(4) of the 1998 Act in accordance with the law; 3. The first defendant is to pay the plaintiff's costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.