New South Wales Supreme Court CITATION : Maricic v Registrar, Workers Compensation Commission [2009] NSWSC 925 HEARING DATE(S) : 31 August 2009 JUDGMENT DATE : 8 September 2009 JURISDICTION : Common Law JUDGMENT OF : Harrison AsJ DECISION : (1) The summons filed 15 August 2008 is dismissed. (2) The plaintiff is to pay the third defendant's costs as agreed or assessed. CATCHWORDS : WIMWCA - decision and reconsideration of Appeal Panel LEGISLATION CITED : Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) CATEGORY : Principal judgment Ansett Transport v Minister for Aviation (1987) 72 ALR 469 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235 Kioa v West (1985) 159 CLR 550 CASES CITED : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; (2001) 25 NSWCCR 218 Minster for Health (1985) 8 FCR 213; (1985) 60 ALR 701; (1985) 8 ALN N253 Pilbara Aboriginal Land Council Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 Sinnathamby v Minister for Immigration and Ethnic Affairs [2000] FCA 1113; (1986) 66 ALR 502 Skillen v MKT Removals Pty Ltd [2007] NSWSC 608 Biserka Maricic (Plaintiff) PARTIES : Registrar of the Workers Compensation Commission (First Defendant) Medical Appeal Panel of the Workers Compensation Commission (Second Defendant) Lynch Manufacturing NSW Pty Ltd (Third Defendant) FILE NUMBER(S) : SC 30107/2008 COUNSEL : B Nolan (Plaintiff) TM Wardell (Solicitor for Third Defendant) NSW Compensation Lawyers (Plaintiff) SOLICITORS : IV Knight, Crown Solicitor (Submitting Appearance - First and Second Defendants) Edward Michael Lawyers (Third Defendant) LOWER COURT JURISDICTION : Workers Compensation Commission LOWER COURT FILE NUMBER(S) : WCC 18404/2006 LOWER COURT JUDICIAL OFFICER : Registrar, Workers Compensation Commission LOWER COURT DATE OF DECISION : 16 October 2007, 29 April 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST ASSOCIATE JUSTICE HARRISON TUESDAY, 8 SEPTEMBER 2009 30107/2008 - BISERKA MARICIC v THE REGISTRAR OF THE WORKERS COMPENSATION COMMISSION & 2 ORS JUDGMENT (WIMWCA – decision and reconsideration of Appeal Panel) 1 HER HONOUR: By summons filed 15 August 2008, the plaintiff seeks firstly, an order in the nature of certiorari setting aside the decisions of the Appeal Panel of the Workers Compensation Commission ("the Appeal Panel") matter number WCC 18404/2006 dated 16 October 2007 and 29 April 2008 ("the decisions"); and secondly, an order in the nature of mandamus or, alternatively, an order pursuant to s 65 of the Supreme Court Act 1970 requiring the Appeal Panel to determine the plaintiff's application, matter number 18404/2006, registered 27 December 2006, according to law. 2 The plaintiff is Biserka Maricic. The first defendant is the Registrar of the Workers Compensation Commission. The second defendant is the Medical Appeal Panel of the Workers Compensation Commission. The third defendant is Lynch Manufacturing NSW Pty Ltd ("Lynch Manufacturing"). The plaintiff relied on three affidavits of Vic Petrovich sworn 13 August 2008, 3 June 2009 and 20 April 2009. Lynch Manufacturing did not rely on any affidavit evidence. The first and second defendants have filed a submitting appearance. Grounds of appeal 3 The plaintiff appeals the decision of the Appeal Panel on the grounds that it firstly, misdirected itself and/or asked itself the wrong question as to the requirements of procedural fairness under the Workplace Injury Management and Workers Compensation Act 1998 ("the Act") and consequently did not provide the applicant with a copy of the report of Dr Mark Burns dated 3 September 2008 upon which the decision were based; and in so doing, the Appeal Panel denied the plaintiff procedural fairness. 4 On 18 October 2004, Ms Maricic, while carrying flowers to a cleaning machine, slipped on a wet floor and fell on her right knee and buttocks. She alleged impairment to her lumbar spine, cervical spine and right lower extremity. 5 The Workers Compensation Commission referred the matter to Dr Middleton an Approved Medical Specialist. On examination Ms Maricic required an interpreter but none was present. On 31 May 2007, Dr Middleton issued a Medical Assessment Certificate. On 14 June 2007, the plaintiff lodged an appeal. On 16 October 2007, the Appeal Panel made orders revoking the Medical Assessment Certificate and issued a new Medical Assessment Certificate. The appeal Section 324 of the Act relevantly reads: "(1) The approved medical specialist assessing a medical dispute may: … (c) require the worker to submit himself or herself for examination by the approved medical specialist. … (3) This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part. An approved medical specialist who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under this section on an assessment of a medical dispute." 6 Hence, an Approved Medical Specialist who is a member of the Appeal Panel is empowered to conduct a medical examination of the appellant (s 324(1)(c) and (3)). 7 Section 328 of the Act sets out the procedure on appeal. Relevantly it reads: "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) …" 8 On 16 October 2007, the appeal came before the Appeal Panel comprising of Arbitrator Janice Connelly and Approved Medical Specialists Drs Mark Burns and Albert Bencsik. Dr Burns was appointed by the panel to conduct a clinical examination of Ms Maricic and report on his findings. Dr Burns is a specialist in occupational medicine and the Appeal Panel was of the view that this was the most relevant specialty for the assessment of Ms Maricic's condition. On 30 August 2007, the medical examination took place at Dr Burns' rooms, with an interpreter present. Later an oral report of the examination was provided to the Appeal Panel. 9 Dr Burns' findings on examination (as recorded in the Appeal Panel's reasons) were at [27] to [31]. These paragraphs read: "27. Cervical spine - There was tenderness over the left side of the base of the neck but no evidence of muscle spasm or muscle guarding. The range of motion in the appellant's cervical spine revealed a 75% decrease in both flection and extension. Rotation to the right was possible to 70% but rotation to the left was absent. Lateral bending to the right was 20°, but lateral bending to the left was absent. The appellant reported that she felt she could turn to the left, but that it caused pain so she refused to do so. This appeared to be inconsistent with the observation of her in the waiting room at the end of the consultation when she was noted to turn her head to the left at least 30° to speak to her husband. It was felt that her inability to turn to the left was voluntary and not due to genuine muscle spasm or muscle guarding. 28. Shoulders - There was no localised tenderness and the range of motion in both shoulders was essentially normal. Neurological examination of both upper limbs revealed normal power tone and reflexes. There was no evidence of muscle wasting in either upper limb. Sensation was reported as being decreased in the entire left arm. This did not follow a nerve root pattern. 29. Lumbar spine - Examination of the lumber spine revealed global tenderness. The lumbar lordosis was normal and there was no evidence of muscle spasm or muscle guarding. The appellant was able to flex forward with her fingertips at the upper shin level. Back extension was decreased by 50%. Lateral bending to the left was 50% of the amount of lateral bending to the right. Straight leg rising was 45° on the right and 60° on the left. On the right she reported back pain going down the lateral aspect of the right leg, which appeared to follow anatomical pathway. In the seated position straight leg rising was 80° bilaterally. There was a negative sciatic stretch test. The physical examination though did not support radiculopathy. There was no evidence of significant muscle wasting or weakness in either lower limb and her reflexes were symmetrical. Additionally there was no evidence of a positive nerve root tension sign. The appellant did report decreased sensation but this did not follow a nerve root pattern. 30. Power, tone and reflexes were noted to be normal in both lower limbs. The appellant reported a decrease in sensation in the entire right leg. This appeared to be slight worse over the lateral aspect of the thigh and foot. It did not follow a nerve root pattern. 31. Right knee - The examination of the right knee revealed no localised tenderness. No joint effusion was present. Movements in the right knee were from full extension to 115° of flexion. There was no ligamentous instability." 10 As previously stated, the decision of the Approved Medical Specialist was revoked and a new certificate was issued. The redetermination 11 On 20 November 2007, the Workers Compensation Commission received a request by Ms Maricic that the Appeal Panel reconsider its decision dated 16 October 2007 on the basis that, firstly, Ms Maricic disputed some of the findings on examination made by Dr Burns; and secondly, the Appeal Panel should amend its findings so as to increase the percentage of impairment. 12 On 29 April 2008, the Appeal Panel declined to alter, amend or rescind its decision of 9 October 2007. On 23 June 2008, the Appeal Panel provided a document entitled "Background to the Decision". 13 Relevantly the Appeal Panel stated that it had considered the submissions of Ms Maricic and in its opinion she had a different recollection of the examination to that which of Dr Burns, particularly in relation to the cervical and lumber spine. Where there was a dispute between the account provided by Dr Burns and Ms Maricic the Appeal Panel preferred the account provided by Dr Burns because he was an independent Approved Medical Specialist without a vested interest in the outcome. The Appeal Panel accepted that Dr Burns conducted a proper examination in accordance with AMA5 and the WorkCover Guides. The Appeal Panel reiterated that in arriving at its decision it took into account not just the clinical findings of Dr Burns but also to all the material on the file which included a number of medical reports. 14 Next Ms Maricic requested the Appeal Panel to provide the report of the examination by Dr Burns. As it transpired, the report by Dr Burns was given orally with reference to his notes. In response to Ms Maricic's request the Appeal Panel stated that Dr Burns' findings were recorded in detail in the decision of the Appeal Panel dated 16 October 2007 at paragraphs [27]-[31] (as quoted earlier in my decision). The Appeal Panel advised that in accordance with usual practice Dr Burns' report of examination was not provided to the parties. The Appeal Panel did not accept that natural justice required that Ms Maricic be provided with a copy of this report as she had already been advised of Dr Burns' findings. It stated that it was under no obligation to provide a copy of the examination to the parties and referred to the decision of Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235 as authority for that proposition. 15 In this Court, Counsel for Ms Maricic submitted that the report of Dr Burns formed a substantial basis for the new Medical Assessment Certificate issued by the Appeal Panel on 9 October 2007. Counsel also submitted that the report was in effect an expert determination or an expert report and that it is well settled that reports which perform this expert function should conform with the requirements of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; (2001) 25 NSWCCR 218. According to Ms Maricic, for an expert's report to be useful, it is necessary for it to comply with a primary duty of experts in giving opinion evidence, that is, to furnish the trier of fact with criteria enabling an evaluation of the validity of the expert's conclusion and equally, in the context of the legislative scheme set out by the Act, its purpose would also be to inform the parties affected of the bases for the conclusions and opinion reached to provide them with an understanding of how these conclusions were reached. This according to the plaintiff is especially so in the context where the procedure on assessment is the subject of prescription. 16 Counsel for Ms Maricic further submitted that the Appeal Panel, in the context of both the decisions, was required to provide the party adversely affected by the decision with sufficient material to enable her to test the accuracy of the conclusions drawn by the Approved Medical Specialist, as relied on by the Appeal Panel, and to convince or assure the affected party of the conclusions fundamental soundness. According to Ms Maricic, the absence of the report or a record to it, itself cast doubt on the propriety and fairness of the decision making procedures employed by the Appeal Panel in this instance. She says that she was not given the opportunity to address the adverse finding made namely that on examination she could not move her neck to the left because it caused pain but the doctor observed her in the waiting room turning her neck 30° to the left to talk to her husband. Shortly stated, Ms Maricic is saying that there was something unfair in the process which meant that the Appeal Panel made no decision at all. 17 On the other hand, counsel for Lynch Manufacturing submitted firstly, that the plaintiff's submissions are flawed in that they seek to invest the function performed by Dr Burns in conducting an examination as a member of the Appeal Panel with a greater importance and significance than is warranted; and secondly, while the clinical examination findings of Dr Burns were undoubtedly taken into account by the Appeal Panel, those findings did not, in themselves, determine the rights and entitlements of Ms Maricic. 18 Lynch Manufacturing further submitted that the role undertaken by Dr Burns in conducting an examination as part of the overall exercise of the powers and functions of an Appeal Panel should not be confused with the role of an expert witness and subjected to the scrutiny required by, or considered in the context of, the principles enunciated by Heydon JA (as he then was) in Makita v Sprowles. 19 The plaintiff submitted that the facts of this case are distinguishable from Brockmann, in that the Appeal Panel relied on Dr Burns' findings and not the medical history provided by the plaintiff for the forming the basis of its decision. 20 Turning to Brockmann, the short facts are that the plaintiff, Mr Brockmann, claimed worker's compensation for injuries suffered while engaging in heavy manual work as a plumber for the defendant under the Act and under the Workers' Compensation Act 1987. Brockmann Metal Roofing appealed a medical certificate in which the issuing doctor determined part of Mr Brockmann's loss of sexual function at 100 per cent with "nil pre-existing." 21 As previously noted, s 328 of the Act provides for an Appeal Panel to be made up of three members, two of whom are approved medical specialists. One of the medical specialists on this panel was Dr Watters, who examined Mr Brockmann and found his sexual dysfunction was consistent with age, smoking, alcohol habits and general health. Mr Brockmann's work related injuries were not a limiting factor. The panel agreed with Dr Watter's assessment. 22 Mr Brockmann's claim made in this Court for relief from the Appeal Panel's decision was made on three grounds. Relevantly, the second ground was denial of natural justice. The plaintiff argued the appeal panel failed to provide notice of Dr Watter's report to the plaintiff as required by s 328 of the Act. Therefore the plaintiff had no opportunity to address the content of the report. 23 Relying on the medical assessment guidelines, Studdert J, in Brockmann, held that s 328(1) of the Act provides that the Appeal Panel may determine how the appeal is to proceed. Studdert J stated that s 328(4) did not make an assessment hearing obligatory and that the Appeal Panel was entitled to draw on the expertise and the conclusions of its members without disclosing those conclusions to Mr Brockmann. Studdert J agreed with the reasoning of Beaumont J in Minister for Health v Thomson 1985 8 FCR 213; (1985) 60 ALR 701; (1985) 8 ALN N253 and decided that it was reasonable to assume that Mr Brockmann was on notice that the Appeal Panel would make use of the expertise and experience of its specialist members. 24 In Brockmann, Studdert J stated that while Kioa v West (1985) 159 CLR 550 (per Mason J at 587) provides the proposition that procedural fairness requires the decision maker to disclose for comment material about the individual when it comes from another source, it does not require that disclosure when the material comes from the person themselves. In this case, the material came from Mr Brockmann himself. There was no requirement the Appeal Panel convey the significance they placed on that. Therefore there was no denial of procedural fairness. 25 His Honour stated (at [55], [65] to [67]): [55] Additionally, s 328(2) contains the provision, previously noted, that "the WorkCover Guidelines may provide for the procedure on an appeal." … [65] Section 328 of the WIMWC Act provided for an Appeal Panel being structured by three members, two of whom were to be approved medical specialists. Hence applying the reasoning of Beaumont J in Thompson, reasoning with which I respectfully agree, it is only reasonable to assume that the deceased was on notice that the Appeal Panel would use the medical expertise and experience of its medical specialist members in its deliberations. [66] While as a general proposition procedural fairness does require the decision maker to disclose for comment material personal to the individual concerned where the source of that material is other than that individual (see Kioa (above) per Mason J at 587) and Sinnathamby v Minister for Ethnic Affairs (1986) 66 ALR 502 at 506 per Fox J, this requirement does not exist where the material comes from the individual concerned. Here the additional material influencing the Appeal Panel was the history given by and the examination of the deceased himself. It is apparent from para 20 of the Reasons that Dr Watters took a detailed medical history from the deceased, which included no complaint that back pain inhibited intercourse. To the extent that there was reliance upon the history given by the deceased, there was no requirement that the significance attributed to that history by the Panel be conveyed to the deceased (see Sinnathamby (above) per Fox J at 506 and per Neaves J at 513; Ansett Transport v Minister for Aviation (1987) 72 ALR 469 at 499; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 and Pilbara Aboriginal Land Council Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 per Merkel J at 557 (71). [67] Having regard to the framework of the legislation and the guidelines, and all the circumstance of this case as reviewed, I am not persuaded that the deceased was denied procedural fairness by the Appeal Panel. The Panel was entitled to act as it did. Hence, Ground 2 fails." 26 Skillen v MKT Removals Pty Limited [2007] NSWSC 608 was an appeal from a decision made by the appeal panel of the Worker's Compensation Commission regarding a claim made by Mr Skillen for an injury suffered by during course of his employment. 27 Two members of the Appeal Panel conducted a medical examination of Mr Skillen the results of which were not provided to the parties prior to the panel making its assessment. Mr Skillen appealed on the grounds of denial of natural justice, arguing that the Appeal Panel should have disclosed the examination findings and the panel should have sought submissions from the parties. There was also dispute as to what had been put in issue by the Appeal Panel and dispute as to the nature and scope of a hearing before the Appeal Panel. 28 Malpass AsJ referred to Brockmann and stated that it is open to the Appeal Panel to conduct a medical examination as part of the review process and that the Workcover Guidelines impose no requirement that such findings are made available to the parties. The plaintiff had a reasonable opportunity to address the question in that his own experts and reports were before the Appeal Panel. A failure to provide the parties with an opportunity to make submissions on the examination findings is not a denial of natural justice. After citing Brockmann , Malpass AsJ stated (at [29]): "29. In my view, I do not consider that what was said by Studdert J in that case assists the plaintiff. A medical examination of the plaintiff is an option that may be pursued by the Appeal Panel. It is a part of the review process. The power to conduct a medical examination is a tool that is provided to the Appeal Panel to better enable it to perform its role of review (a similar situation pertains to the assessment by an AMS). The Workcover Guidelines impose no requirement that such findings be made available to the parties. In conducting the examination, the Appeal Panel was dealing with a medical question. The plaintiff had already been examined by his own experts and their reports were before the Appeal Panel. It seems to me that the Plaintiff had a reasonable opportunity to address this question. In my view, the failure to give the parties an opportunity to make submissions on the examination findings does not bring about any denial of natural justice in this case." 29 Brockmann and Skillen held that members of the Appeal Panel are not obliged to make their findings on medical examination available to the parties. As Malpass As J stated in Skillen it is open to the Appeal Panel to conduct a medical examination as part of its review process. Dr Burns' examination was conducted as part of a review of the original medical assessment, in compliance with s 328(3). 30 Ms Maricic argues that Brockmann is distinguishable because in that case the examining doctor recorded the plaintiff's detailed medical history and in this case the report was based on Dr Burns' clinical findings. The information that came from the plaintiff appears to be her reported symptoms. Dr Burns' report was made on the basis of the plaintiff's reported symptoms. The Appeal Panel took into account all the material on the file, which included a number of medical reports furnished by Ms Maricic and she was on notice the panel would use its specialist expertise to reach its conclusion. 31 Dr Burns conducted the medical examination pursuant to s 324(3) of the Act. Dr Burns is a duly trained, qualified and certified Approved Medical Specialist, but he was not a witness; he was and remained a decision maker as a member of the Appeal Panel. His examination formed only part of the decision making process undertaken by the Appeal Panel. The Appeal Panel is not obliged to make its findings on medical examination available to the parties. It is my view, that in these circumstances there was no denial of procedural fairness. 32 The summons filed 15 August 2008 is dismissed. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the third defendant's costs as agreed or assessed. The Court orders: (1) The summons filed 15 August 2008 is dismissed. (2) The plaintiff is to pay the third defendant's costs as agreed or assessed. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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