New South Wales Supreme Court CITATION : Prasad v Workers Compensation Commission [2010] NSWSC 418 HEARING DATE(S) : 27 April 2010 JUDGMENT DATE : 7 May 2010 JUDGMENT OF : Harrison J DECISION : Plaintiff's summons dismissed with costs. CATCHWORDS : ADMINISTRATIVE LAW – Supreme Court Act 1970 s 69 – order in nature of certiorari – plaintiff of South Indian racial background – where plaintiff alleged workplace injury affecting lung function – where plaintiff relied on scientific evidence to suggest she was racially predisposed to reduced lung capacity – where evidence not referred to in Appeal Panel's reasons - whether Appeal Panel constituted under the Workplace Injury Management of Workers Compensation Act 1998 failed to take into account a mandatory consideration in assessment of degree of plaintiff's whole person impairment – summons dismissed. LEGISLATION CITED : Supreme Court Act 1970 Workplace Injury Management and Workers Compensation Act 1998 CATEGORY : Principal judgment Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (2003) 75 ALD 630 Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 Minister Administering Crown Lands Act v NSW Aboriginal Land Council [2009] NSWCA 352 (2009) 171 LGERA 56 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 CASES CITED : (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 Chandra Prasad (Plaintiff) PARTIES : The Registrar of the Workers Compensation Commission (First Defendant) An Appeal Panel of the Workers Compensation Commission consituted under s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Second Defendant) Rail Corporation New South Wales (Third Defendant) FILE NUMBER(S) : SC 2010/30497 COUNSEL : B K Nolan (Plaintiff) J W Dodd (Third Defendant) SOLICITORS : Turner Freeman (Plaintiff) Sparke Helmore (Third Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HARRISON J 7 May 2010 2010/30497 Chandra Prasad v The Registrar of the Workers Compensation Commission, an Appeal Panel of the Workers Compensation Commission consituted under s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Rail Corporation New South Wales JUDGMENT 1 HIS HONOUR: The plaintiff is a woman of South Indian descent. An article published in 1966 suggested that people with her racial background might have an alveolar volume that is materially less than that of Europeans. The author proposed that in such cases a proper allowance for alveolar volume should be made when measuring the lung capacity and function of people from this background. When an Appeal Panel constituted under the Workplace Injury Management and Workers Compensation Act 1998 ("the Act") made its decision upon the plaintiff's claim concerning a workplace injury that affected her lung function, it made no reference to her racial background or to the possible relationship between it and the result of her appeal. The plaintiff submitted that the Appeal Panel should have taken these things into account because they had the potential to establish that she had a higher degree of whole person impairment and its failure to do so might mean that the plaintiff will have been under compensated. The plaintiff contended that the Appeal Panel's decision was in these circumstances infected by jurisdictional error and/or error on the face of the record, because it failed to take into account what she contended was a mandatory relevant consideration under the Act. 2 By her summons filed 22 February 2010, the plaintiff seeks an order in the nature of certiorari setting aside the decision of the Appeal Panel dated 20 November 2009: see s 69 of the Supreme Court Act 1970. She relies upon an affidavit sworn by her solicitor Majed Issa on 2 February 2010. None of the material to which he deposes is controversial. The defendants filed no evidence. Background 3 The plaintiff was born in Suva, Fiji and came to Australia in 1978. She is of Indian descent. She had been employed by Rail Corporation New South Wales ("the employer") as a cleaner since 1981. In about 2003 she became a participant in the trial use of a chemical product called "Graffiti Off" that was to be used for the removal of graffiti from within enclosed railway carriages. The plaintiff was exposed to this product intermittently and predominantly in the course of cleaning cloths that had been used to apply it. Prior to her exposure to the product the plaintiff had not displayed any symptoms of lung incapacity. It was only after she had commenced to use it that she started to experience shortness of breath. She thought she had asthma. 4 The plaintiff was examined at work in about August 2005 and referred to her general practitioner because her test results showed that she had breathing problems. The matter was referred to Dr Anthony Johnson, an Approved Medical Specialist for the purposes of the Act with a specialty in respiratory medicine, for assessment pursuant to s 319 of the Act to determine the following matters: (a) The degree of permanent impairment of the plaintiff as a result of the injury. (b) Whether any proportion of the permanent impairment was due to any previous injury or pre-existing condition or abnormality and the extent of that proportion. (c) Whether the impairment was permanent. (d) Whether the degree of permanent impairment was fully ascertainable. 5 Dr Johnson found that the plaintiff was suffering from Reactive Airways Dysfunction Syndrome ("RADS"). He based his assessment on a lung function test conducted at St Vincent's Clinic on 3 June 2008. In that test the FEV1 was 80 per cent of the predicted, the FVC was 89 per cent of the predicted, and the FEV1/FVC ratio was 75 per cent. The diffusing capacity for carbon monoxide was 53.8 per cent of predicted. The report said this: "The lung capacities are normal. The diffusing capacity is reduced although for the available lung volume, the result is normal. The FEV1 is normal but the reduction in the MMEF and FEF50 indicates airflow limitation with a small response to inhaled bronchodilator." 6 The lung function test conducted at St Vincent's Clinic was said to be the most recent lung test available and using those results Dr Johnson estimated the plaintiff's degree of impairment at 38 per cent of the whole person. These calculations were based on Table 5-5b on page 98 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed ("AMA5") and Table 5-3b on page 96. The plaintiff's FEV1 and FVC were said to be greater than the lower limit of normal. The plaintiff's DLCO was within 11.49 with a predicted range of 22.74 using Table 5-7a – that is, 51 per cent. Using Table 5-12 on page 195, the plaintiff was put in Class 3 or 26 per cent to 50 per cent whole person impairment. Dr Johnson thought that it was reasonable to use the midpoint of these values and therefore assessed the plaintiff with 38 per cent whole person impairment for the lung injury, notably RADS. 7 Dr Johnson found that the plaintiff's permanent impairment was manifest in her shortness of breath since 2003. She had had repeated lung function tests which showed mild obstruction and reduced diffusing capacity for carbon monoxide. That carbon monoxide capacity appeared to improve when corrected for alveolar volume. The plaintiff also had an exercise test with Dr Gardiner, which showed a reduced VO2 max. Using the AMA5, Dr Johnson found that the plaintiff was in Class 3 based on diffusing capacity for carbon monoxide and also VO2 max and, therefore, the measurement for her whole person impairment was 38 per cent, considered by Dr Johnson to be reasonable as the range in Class 3 was 26 per cent to 50 per cent from Table 5-12. 8 As to whether or not any proportion of the permanent impairment was due to any previous injury or pre-existing condition or abnormality, Dr Johnson found that the plaintiff had denied any previous respiratory symptoms prior to 2003. He noted that Dr Michael Burns had referred to a pre-existing condition in his report dated 14 November 2008, but his report demonstrated that there had been no history of symptoms prior to 2003. Dr Johnson noted that Dr Burns would appear to have been referring to a pre-existing allergic tendency rather than a pre-existing asthma. Dr Johnson did not therefore consider that there was any evidence of a pre-existing injury or respiratory condition. He issued a medical assessment certificate pursuant to s 325 of the Act in accordance with his findings. Application to appeal against the decision of the approved medical specialist 9 The employer lodged an application with the first defendant on 15 June 2009 by which it sought to appeal against Dr Johnson's determination. It contended that his medical assessment had been based on incorrect criteria and that the medical assessment certificate contained a demonstrable error: see s 327(3)(c) and (d) of the Act. The bases for the application were as follows: (a) In assessing the whole person impairment Dr Johnson made a demonstrable error by merely selecting a midpoint within the range in Class 3 of Table 5-12 and not providing adequate reasons for his assessment. (b) Dr Johnson made a demonstrable error by not interpreting the plaintiff's lung function test results with caution and by not certifying its aetiology. (c) Dr Johnson made an assessment of the plaintiff's whole person impairment based on incorrect criteria as he failed to conduct an exercise test and relied on the exercise test of another medical practitioner. (d) Dr Johnson assessed the plaintiff's whole person impairment on incorrect criteria as he failed to rely on his lung function test results. (e) Dr Johnson made a demonstrable error in not making a deduction for a pre-existing condition pursuant to s 323 of the Act. 10 The first defendant referred the matter for an appeal pursuant to s 327(4) of the Act upon the basis that she was satisfied that one of the grounds of appeal specified in s 327(3) had been made out. The first defendant considered that in accordance with s 327(3)(d) it could be shown that there was an error contained in the certificate with respect to the assessment made in accordance with Table 5-12. 11 In a preliminary review dated 28 August 2009 the Appeal Panel constituted under s 320 of the Act expressed the following opinion: "The Panel at the preliminary review on 17 August 2009 noted that the AMS, Dr Johnson, had made a diagnosis of Reactive Airways Dysfunction Syndrome ('RADS'). AMA5 provides that RADS is a form of occupational asthma (AMA5 p.102 at 5.5). The Panel decided that the AMS erred in assessing the impairment under Table 5-12, AMA5, as he made a diagnosis of asthma only and the assessment of whole person impairment should therefore has [sic] been made under Table 5-10, AMA5 (see WorkCover Guides Clause 8.7). The Panel then considered the diagnosis. After evaluating all the evidence, the Panel considered the Respondent Worker not only suffered from RADS but also from an alveolar injury. The Panel noted that an assessment from table 5-9 and 5-10 for asthma would give no assessable impairment as the FEV1 was within the normal range. The Panel believes that an assessment using DCO (for gas diffusion) as required from table 5.12 of AMA5 would not be accurate due to the concurrent presence of airways disease. This assessment would over-assess impairment. The Panel noted that paragraph 8.16 of the Workcover Guides (3rd Edition) suggests caution in taking an isolated abnormal diffusing capacity reading in the presence of otherwise normal lung function result. The Panel believed a more accurate measurement of diffusion impairment (reflecting alveolar damage), in the presence of airways disease (which does not cause diffusion impairment) would be obtained using KCO which takes into account alveolar volume. In the circumstances, the Panel considered that it would be appropriate to apply the provisions of Clause 1.59 of the WorkCover Guides, as assessment under either Table 5-12 or Table 5-10 is not appropriate in this case. Thus, the Panel considers that KCO is a more accurate measure of the impairment than DCO. The Panel notes that these issues were not raised in the submissions made by the parties. The Panel directs: 1. That the parties file any further submissions concerning the matters referred to above within 21 days." 12 Both the plaintiff and the employer made written submissions in response to the Appeal Panel's preliminary review. The Appeal Panel issued a further preliminary review dated 18 September 2009. It noted the plaintiff's concerns as to the application of KCO and the absence of any mention of it in the AMA5 or the WorkCover Guides for the Evaluation of Permanent Impairment, 3rd ed (2009). The Appeal Panel expressed the following position: "The Panel has provided adequate reasons in the preliminary review as to why the Panel considered that the Applicant's WPI assessment should be based on KCO. The Panel referred to all relevant sections of AMA5 and the WorkCover Guides for the Evaluation of Permanent Impairment (3rd Edition) in the preliminary review. The Panel, if it assesses the Applicant's impairment by reference to her KCO, is relying on Clause 1.59 of the WorkCover Guides as AMA5 does not provide a suitable methodology for measuring impairment in the case where the worker has both reactive airways dysfunction syndrome and an alveolar injury. The Panel considers that there are two types of pathologies in this case, namely, an airways disease and an alveolar disease. Airways disease impairment is not being assessed by measurements of diffusion capacity. However, the alveolar damage component is measured by the measurement of diffusion capacity. Neither the WorkCover Guides nor AMA5 referred to KCO with aggravation to the assessment of airways disease. The Panel carefully considered all the material before it, in particular, the report of Dr Michael Burns, to form the view that KCO is a more accurate measurement of impairment in relation to the combination of airways disease and alveolar disease than is DCO. Since the parties in the appeal did not raise the issue, the Panel considered it proper to give the parties an opportunity to make further submissions if they so wished. The Panel has identified the issue which the parties may wish to consider. Furthermore, the Panel has provided the reasoning for the preliminary review, that in this case, KCO is a more accurate measurement of impairment than is DCO. The relevant sections of AMA5 and the WorkCover Guides have been quoted in order to assess [sic, assist] the parties. The Panel does not consider it appropriate to provide 'clarification on what submissions are required." 13 In response to that further preliminary review the parties made additional written submissions. A report from Dr Ian Gardiner dated 28 September 2009 was included with these submissions. In that report Dr Gardiner specifically addressed Dr Michael Burns' report upon which the Appeal Panel indicated it had based its alternative approach to the plaintiff's injury. Part of that report was as follows: "To deal first with the report of Dr Michael Burns, my disagreements are principally from page 4. He claims that the KCO is the main parameter used to assess diffusion in clinical practice and this is not so and I will comment on this later. Dr Burns refers to the lung function tests, which I arranged for Mrs Prasad to have at Westmead Hospital on 19 September 2005. In that report, the senior scientific officer, Mr Stephen West, reported that following correction for alveolar volume, the DLCO was 65 of predicted, which is a moderate abnormality. In fact, the KCO is 70% and I am not sure why he gave the percentage prediction that he did. He further goes on to say, however, that the above result showed mild airway obstruction, resulting in normal lung volumes. However, there is moderate impairment in the DLCO (note he says DLCO not DLCO/VA). He is using the diffusing capacity as the principal parameter and that has been the practice at Westmead Hospital for several years." 14 Dr Gardiner then went on to cite a 1966 article by Chin et al, published in the European Respiratory Journal Vol 9 at 1269-1277, entitled "Diffusing capacity standardised for alveolar volume: Validation Reference Values and Applications of a New Linear Model to Replace KCO". The doctor went on to cite a number of passages from that publication. His conclusions were as follows: "Then it goes on, on page 1275 pointing that the variation of VA to TL depends on the subcomponents of the diffusing capacity measurement, ie the diffusing capacity of alveolar capillary membrane, the volume of blood and alveolar capillaries and the reaction rate of carbon monoxide with partially oxygenated haemoglobin. Whilst the reaction rate is independent of VA and the diffusing capacity is nearly proportional to it, the capillary blood volume and the most lung volumes correlates negatively with VA. This means that varying lung volumes have a big influence on this component. Furthermore, the authors go on to point out the difference in ethnic groups. I quote: 'In the case of persons of West African of South Indian consent, the alveolar volumes are materially less than in Europeans but the difference in transfer factor are on average small. In this circumstance, a valid allowance for alveolar volume could lead to a better understanding of the ethnic factor compared to relying on TL/VA.' In Mrs Prasad's case, as being an Indian of Fijian birth, she would have small lung volumes and this gives a high KCO masking the true effects of the injury that she has sustained. Another significant criticism I have of Dr Burns is that he has chosen to ignore the data of oxygen absorption. In an exercise test, Mrs Prasad's capacity was significantly reduced and she had a low oxygen uptake. Her WorkCover assessment differs to the guidelines used in AMA and is quite clear that on a basis of 17mls/kg/min uptake, Mrs Prasad would be in class 3 or 26% to 50% of predicted, i.e. at a midpoint of 38%." 15 In response to Dr Gardiner's report the employer provided further written submissions, contending principally that it amounted to fresh evidence and that in accordance with s 328 new evidence could only be considered if it could be shown that it was not available to the plaintiff before the medical assessment or could not reasonably have been obtained beforehand. 16 By letter dated 7 October 2009 the Appeal Panel sought further results of lung function tests ordered by Associate Professor Christopher Clarke carried out at the Respiratory Laboratory at Concord Hospital on 10 September 2008. Thereafter, on 20 November 2009, the Appeal Panel gave its reasons for decision on the appeal. Relevantly its findings were these: "9. The Appellant requested the Respondent worker be re-examined by an AMS who is a member of the Panel. 10. As a result of that preliminary review, the Panel determined that it was not necessary for the Appellant to undergo further medical examination because there is sufficient evidence by way of medical reports and clinical investigations on which to make a determination. The Panel did not consider that an additional medical examination would assist the determination of the Appeal. EVIDENCE Documentary Evidence 11. The Panel has before it all the documents that were sent to the AMS for the original assessment and has taken them into account in making this determination. The documents before the Panel include: For the Appellant: · The Reply in the documents listed in part 6.1 of the Reply; and For the Respondent worker: · The Application and documents listed at part 6.1 of the Application. SUBMISSIONS 12. Both parties made written submissions: the Appellant's submissions were dated 15 June 2009 and the Respondent's submissions were dated 1 July 2009. Both parties filed supplementary submissions in this matter after the Panel's preliminary review; the Appellant's further submissions were dated 4 September 2009 and the Respondent's further submissions were dated 17 September 2009. FINDINGS AND REASONS 13. The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116. The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. ***** 40. The Panel determined to make an assessment in this matter based on the test results including the results from the Respiratory Laboratory at Concord Hospital on 10 September 2008, those results being the most recent lung function tests available… 41. The Panel determined, as noted above, that measurement of diffusion impairment caused by the alveolar injury, needed to take into account alveolar volume, particularly as there was a small degree of airflow impairment, although not sufficient to give rise to an assessable impairment under AMA5. 42. The reported KCO measurements in the various lung function tests are as follows… 43. The Panel noted that all these results fell in the 62% to 81% range. 44. Using WorkCover Guides 1.59, as this is a situation where there is an alveolar injury and concurrent airways disease, the Panel compared measurable impairment resulting from diffusion impairment (reflecting alveolar damage), in the presence of airways disease, with measurable impairment resulting from similar conditions with similar impairment of function by using Table 5-12. The Panel substituted KCO for DLCO. Using the results which fell in the 62% to 81% range, this placed the Respondent worker into Class 2 which gave a whole person impairment rating between 10-25%. After due consideration of the complete clinical circumstances, including KCO measurements from laboratories as set out above, together with the history of symptoms as set out in the medical reports and MAC the Panel feels that the midpoint of the range is a suitable rating, that is, 18% whole person impairment." 17 The Appeal Panel went on to consider whether a deduction pursuant to s 323 of the Act was appropriate and determined that it was not. The Appeal Panel issued a certificate revoking the medical assessment certificate issued by Dr Johnson and issued a new one with a whole person impairment of 18 per cent. The Workplace Injury Management and Workers Compensation Act 1998 18 The following provisions of the Act are relevant: "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 (as in force at the time the assessment is made) issued for that purpose. (2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker. (3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker. (4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made. 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) the nature and extent of loss of hearing suffered by a worker, (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. 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. 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." 19 Clause 1.59 of the WorkCover Guides provides as follows; "Conditions which are not covered by the WorkCover/AMA5 Guides – Equivalent or Analogous Conditions 1.59 AMA5 (p11) states: 'Given the range, evolution and discovery of new medical conditions, the Guides cannot provide an impairment rating for all impairments… In situations where impairment ratings are not provided, the Guides suggest that medical specialists use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living… The physician's judgment, based on experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guides criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment.'" The plaintiff's contentions 20 The plaintiff reasoned that a conclusion as to whether a particular matter is a mandatory relevant consideration may be drawn by implication from the subject matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. At 39 Mason J said this: "The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s.5(2)(b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions: (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision (Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363, at p 375; CREEDNZ Inc. v. Governor-General (1981) 1 NZLR 172, at pp 183, 196-197; Ashby v. Minister of Immigration (1981) 1 NZLR 222, at pp 225, 230, 232-233). The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223, at p 228, that a decision-maker must take into account those matters which he 'ought to have regard to' should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion 'must call his own attention to the matters which he is bound to consider'." 21 At 45 his Honour continued: "It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker." 22 The plaintiff submitted that in determining whether the Appeal Panel was bound, in the particular circumstances of this case, to take the racial or ethnic idiosyncrasies or characteristics of the plaintiff into account, it is necessary to have regard to its functions under the Act. The Appeal Panel exercises a function that is judicial in nature. Its determination has potentially significant consequences for the parties. The Appeal Panel has the power to confirm the certificate of assessment given in connection with the medical assessment from which the appeal is brought or to revoke it and issue a new certificate. Any new certificate is presumed to be conclusively correct: s 326. 23 In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 at [86], Campbell JA said this: "[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." 24 The plaintiff submitted therefore that the Appeal Panel was bound to take particular matters into consideration. She argued that the Appeal Panel gave no consideration to the scientific matters raised by Dr Gardiner, concerning the need to make an allowance on testing for the differences that might apply to lung function and capacity in people of South Indian ethnic or racial background. Because the Appeal Panel proceeded to devise an approach to the assessment of the plaintiff's whole person impairment, by utilising clause 1.59 of the WorkCover Guides, the Appeal Panel was bound to take it into account and by implication also to set it out or describe it in the decision. A refusal to do so was, according to the plaintiff's submission, evidence of a constructive failure to exercise jurisdiction. 25 In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46] and [47] the Full Court said this: "[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]- [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked." 26 The plaintiff therefore contended in the context of the Act and in the light of these principles that at least the following propositions emerged. First, there was no consideration by the Appeal Panel of the scientific matters raised by Dr Gardiner, which went directly to the method devised by the Appeal Panel under clause 1.59 of the WorkCover Guides. The matter was not reproduced or recorded in the Appeal Panel's reasons. 27 Secondly, the Appeal Panel's alternative approach to the assessment of the degree of the plaintiff's whole person impairment was not a general finding of fact in which it could be said that the plaintiff's contentions, including what the plaintiff relied upon in Dr Gardiner's letter, were appropriately subsumed. Rather, the plaintiff's contentions were material to the decision that the Appeal Panel actually made: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [89] and [91]. The plaintiff's submissions also went directly to the inquiry, which the Act mandated was relevant for consideration by the Appeal Panel, namely, the appropriate method by which to assess an injured worker's degree of whole person impairment, and thereby the degree of whole person impairment attributable to the injury. 28 Thirdly, if the plaintiff's material had been taken into account, it would have had the potential to establish that the plaintiff had a higher degree of whole person impairment. A failure to take Dr Gardiner's concerns into account might mean that the plaintiff will be under compensated in accordance with a certificate presumed to be conclusive. 29 Fourthly, the material contained in Dr Gardiner's letter was not further evidence as the employer had submitted. The Appeal Panel accepted the plaintiff's view on that issue. 30 In Yusuf at [82], McHugh, Gummow and Hayne JJ said this: "[82] It is necessary, however, to understand what is meant by 'jurisdictional error' under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia , if an administrative tribunal (like the Tribunal) 'falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.' 'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig , is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." 31 In these circumstances the plaintiff contended that the decision of the Appeal Panel was vitiated by jurisdictional error and should be quashed. The employer's contentions 32 The employer's response was economical. It emphasised that in the submissions made by the plaintiff to the Appeal Panel, Dr Gardiner's opinion was referred to and emphasised, as well as his reasons for disagreeing with its preliminary view. 33 In response to the submission that the Appeal Panel was bound by the Act to take into account the submissions made by Dr Gardiner, and the suggestion that a refusal to take such evidence into account was a constructive failure to exercise jurisdiction, the employer submitted that the Appeal Panel was not compelled by the Act to take Dr Gardiner's material into account. Having sought and received submissions from the parties on Dr Gardiner's topic of concern, there is no evidence or indication that the Appeal Panel thereafter failed to take what he emphasised into account in any event. 34 The employer embraced the plaintiff's submissions to the extent that they emphasised that it was not necessary for the Appeal Panel to refer to every piece of evidence or every submission made by the parties or one of them. The employer also accepted the proposition that just because the Appeal Panel does not refer to a submission in terms does not lead to an inference that it has failed to deal with that submission. The employer submitted that where otherwise comprehensive reasons are given and the issue in question has been identified at some point, such an inference should not too readily be drawn: see WAEE. (It should be noted that the plaintiff made no complaint that the Appeal Panel had failed to give proper or adequate reasons for its decision). 35 The Appeal Panel is a specialist tribunal empowered by the Act and the WorkCover Guides to use its own clinical judgment based on its (collective) experience, skill and training. The employer submitted that that is precisely what the Appeal Panel did when it published its preliminary reviews on 28 August 2008 and 18 September 2009. The fact that it did not change its opinion after receiving the plaintiff's submissions, including those of Dr Gardiner, does not mean that the Appeal Panel has exceeded its jurisdiction, nor does it indicate that there has been an error on the face of the record. Consideration 36 In addition to the statements of principle that I have already set forth, there are other statements that are equally instructive. In Peko-Wallsend, Mason J also had this to say at 39 - 41: "(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning [1947] HCA 21; (1947) 74 CLR 492, at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision (see, for example, the various expressions in Baldwin & Francis Ltd v. Patents Appeal Tribunal (1959) AC 663, at p 693; Hanks v. Minister of Housing and Local Government (1963) 1 QB 999, at p 1020; Reg. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society (1984) QB 227, at p 260). A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of administrative decision (Reg. v. Bishop of London (1889) 24 QBD 213, at pp 226-227; Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd (1982) 3 All ER 761, at pp 769-770). (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228). It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power …" 37 In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 the Full Court of the Federal Court had this to say at [212]: "[212] There was no independent requirement on the delegate so to check. Nevertheless, given the potential importance of the letter and the delegate's fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to 'have regard' to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a 'decision-maker may be aware of information without paying any attention to it or giving it any consideration'. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ's phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in 'an active intellectual process' in relation to the letter – yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so." 38 Later, in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9, Stone J had cause to deal with similar considerations as follows at [26]: "[26] The Minister urged a 'beneficial' construction of the Tribunal's reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase 'beneficial construction', as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a 'beneficial' approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked." 39 More recently in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 the Full Court of the Federal Court dealt with an application of what the High Court had said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 as follows at [48] - [49]: "[48] With respect, we consider that her Honour misapplied the statement made by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 in inferring from other parts of the AAT's reasons that [124]-[127] were to be read as an engagement by the AAT in an 'active intellectual process' ( Tickner v Chapman (1995) 57 FCR 451 at 462). The High Court said at the passage referred to (and quoted by her Honour at [22]): ... reasons of an administrative decision-maker are meant to inform and [are] not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. [49] When the allowances called for by this passage are made, we remain of the view that the AAT's reasons for decision fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel…" 40 Finally in Minister Administering Crown Lands Act v NSW Aboriginal Land Council [2009] NSWCA 352; (2009) 171 LGERA 56, Hodgson JA at [9] considered what was said by the High Court in Yusuf at [82] as follows: "[9] However, in my opinion, their Honours cannot be understood as saying that all of the errors they have identified will necessarily be jurisdictional errors in all cases, without regard to the actual terms of the particular legislation which grants the jurisdiction under consideration. In order to decide what will be invalidating jurisdictional errors in the case of particular administrative actions or decisions, it is necessary to consider what requirements or limitations for the carrying out of those actions or decisions have been provided by the legislature, and if there is a privative provision, to reconcile the requirements or limitations with the privative provision…" 41 His Honour had indicated uncontroversially at [8] that "[t]he range of errors that can be jurisdictional errors is quite wide". It is also fair to say that there is no bright line that leads to the identification of what is and what is not a jurisdictional error in any particular case. In the present case there seem to me to be two forces in competition. On the one hand there is the beneficial legislative imperative that the plaintiff emphasises as the proper context in which to consider the issue. In accordance with the plaintiff's contention, the whole scheme of the Act promotes a system designed to compensate injured workers in a proper case by reference to the measure of his or her degree of whole person impairment. Any factor arguably touching upon a proper assessment of that question, including the idiosyncratic physiology of an identified racial or ethnic group, needs to be taken into account as a mandatory relevant requirement affecting the proper exercise of discretion. A failure to refer to such a matter in the tribunal's reasons is said to be evidence, at least inferentially, of a failure to consider it. 42 On the other hand, there is support for the proposition that not every matter or thing that is germane or critical to an administrative decision must, or even can, be expected to find a place in the expressed reasons of the tribunal. Nor should too close an examination of those reasons be undertaken in the hope of locating putative error. This might be thought to be all the more forceful in the scheme of legislation such as the Act where the question for consideration has been referred to a specialist tribunal with knowledge and experience of medical matters, which one might expect will relevantly have been brought to account in its deliberations and ultimate consideration of the degree of whole person impairment. 43 The burden of the plaintiff's submissions in the final analysis is that the Appeal Panel failed to take into account a relevant consideration in making their decision and further that they must have overlooked it because their reasons do not contain any reference to it in terms. Construction of the Act, which confers the discretion that the Appeal Panel exercised, is said to be determinative of this proposition. However, other than in a general sense, I was not taken to any particular parts of the Act that were said to make clear the way in which the Appeal Panel failed to do something that on a proper construction of the Act appeared to be mandatory. It is certainly clear that the Appeal Panel considered that it was necessary to assess the plaintiff having regard to the fact that she was suffering from two separate and distinct causes of pulmonary dysfunction and that resort to the methods enshrined in WorkCover Guides 1.59 was therefore necessary. What is not clear is that the Appeal Panel took no account of the opinions of Dr Gardiner in looking beyond the available parameters of empirically assessable impairments. 44 What can be gleaned from the Appeal Panel's decision is that they relied upon – indeed were scrupulous in insisting upon – the most recently available test results for this plaintiff. It seems to me to be quite reasonable to expect that a specialist tribunal applying what amounts to clinical experience is entitled to rely upon the proper administration of such tests and upon their applicability and validity when assessing the person who has been assessed in that way. The plaintiff's proposition in this case is that the Appeal Panel was bound, in effect, to second guess the suitability, adequacy and reliability of the several tests to which the plaintiff had been exposed and to recalibrate those tests in the light of Dr Gardiner's reference to a 1966 study in a European journal. It seems to me to be an available inference that the failure by the Appeal Panel to refer specifically to this issue is no more and no less than an expression of confidence by the Appeal Panel in the raw data and test results with which they were provided and upon which they might be expected to have confidently relied. 45 Moreover, the entire process of assessment of the degree of the plaintiff's whole person impairment was patently one to which exhaustive attention had been paid. The publication of preliminary reviews on two occasions was apt to excite the production of detailed submissions from all interested parties and that is what occurred. The context in which the Appeal Panel formulated its decision must be taken to include this detailed interplay between it and the parties concerned. For that reason it does seem to me that the plaintiff's analysis is an example of an over-zealous scrutiny of the decision in an attempt to discern whether some inadequacy may be gleaned from the way in which the Appeal Panel expressed its reasons. 46 I remind myself that this Court plays a limited role reviewing the exercise of the Appeal Panel's administrative discretion and that it is not the function of this Court to substitute its own decision for that of the Appeal Panel exercising the discretion vested in it by the Act. Even if the racial or ethnic idiosyncrasies of the plaintiff amounted to something that the Appeal Panel were bound by the Act to take into account, a matter about which I have considerable doubt, I am not satisfied that the decision that was reached necessarily failed to take it into account in any event. The argument is one that relies upon the failure by the Appeal Panel to refer to it in terms. That fact is not necessarily co-extensive with, or decisive of, the proposition that the Appeal Panel did not consider it. As I have recorded above, in the words of Mason J in Peko-Wallsend, "in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power". Conclusion and orders 47 It follows that the plaintiff's summons should be dismissed with costs. ********** 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.