Supreme Court New South Wales Medium Neutral Citation: Ojinnaka v ITW Australia Pty Ltd [2011] NSWSC 208 Hearing dates: 17 March 2011 Decision date: 17 March 2011 Before: Adams J Decision: 1 The certificate is quashed. 2 The plaintiff's application is remitted to the Registrar for appropriate action and fresh assessment in accordance with the Act and these reasons. 3 The plaintiff is to have the costs of his summons. Catchwords: ADMINISTRATIVE LAW - Order in the nature of certiorari - Workplace Injury Management and Workers Compensation Act 1998 - WorkCover Guides for the Evaluation of Permanent Impairment - Applicant suffered frank injury during course of employment - Injury assessed by approved medical specialist disregarding functional overlay - Assessment not to be undertaken until the degree of permanent impairment is fully ascertainable - Unassessed functional overlay precluded full ascertainment of degree of permanent impairment - Certificate of assessment by medical specialist beyond power - Appeal Panel decision affirming medical specialist's assessment infected with same error. Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998 s 121(4)(a) Texts Cited: American Medical Association's Guides for the Evaluation of Permanent Impairment 5th ed WorkCover Guides for the Evaluation of Permanent Impairment, 3rd ed, 5 February 2009, [1.21] Category: Principal judgment Parties: Jude Ojinnaka (P) ITW Australia Pty Ltd (D1) Registrar of the Workers Compensation Commission (D2) An Approved Medical Specialist (D3) An Appeal Panel (D4) Representation: Counsel: B K Nolan (P) I Todd (D1) Submitting appearances (D2 - 4) Solicitors: NSW Compensation Lawyers (P) TurksLegal (D1) I V Knight, Crown Solicitor (D2 - 4) File Number(s): 2010/87040 Judgment 1HIS HONOUR : By summons, the plaintiff seeks orders in the nature of certiorari setting aside the decisions made in the Workers Compensation Commission concerning his medical condition. Background 2The applicant sought to resolve a dispute in the Commission concerning lump sum compensation where liability was in dispute, together with compensation for pain and suffering, which he sought to be referred for determination by the Commission. As a preliminary matter it was necessary to establish that he had suffered a permanent impairment, including pain and suffering, which was the result of an injury incurred in the course of his employment to his right upper arm and shoulder. 3In accordance with the regulatory arrangements provided for under the Workplace Injury Management and Workers Compensation Act 1998 the approved medical specialist ("AMS") examined the plaintiff on 6 May 2009. The medical assessment certificate, which is a necessary preliminary for further movement through the compensation process, was issued on 14 May 2009 and is the subject of these proceedings. The certificate is given effect by s 121(4)(a) of the Act. 4In substance, the medical evidence produced by the plaintiff showed that he had suffered a physical injury to his shoulder, which required surgery leaving him with certain adverse consequences, associated with what was described as a significant "functional overlay". It was always the medical case put by him, and indeed accepted by the defendant, that both of these elements of his total impairment were present. The question was the relative contribution which each made to his impairment. Discussion 5It is self evident that an assessment can only be made of permanent impairment when a significant level of stability in a worker's condition has been demonstrated. Otherwise the extent of "permanent" impairment cannot be known. It is a crucial element of the compensation scheme that the extent of that impairment be identified in order to enable the compensation to be paid. This process is governed, at least in part and significantly for the present case, by the WorkCover Guides for the Evaluation of Permanent Impairment which were promulgated in accordance with the Act. In this case the crucial provision is [1.21] - Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the injured worker is fully ascertainable. The permanent impairment will be fully ascertainable where the medical assessor considers that the person has attained maximum medical improvement. This is considered to occur when the worker's condition has been medically stable for the previous three months and is unlikely to change by more than 3%WPI in the ensuing 12 months with or without further medical treatment (ie further recovery or deterioration is not anticipated). 6Although clumsily drafted, it is clear enough that the extent of impairment is to be assessed when and only when the relevant specialist is confident that the degree of permanent impairment "is fully ascertainable". This state is described as one which occurs when the worker "has obtained maximum medical improvement", which term is further described in the subparagraph, allowing limited flexibility. (Of course, the stipulation of a percentage loss of function, though expressed by a combination of medical and arithmetical terms, is an illusory exactitude.) 7"Impairment" here is the extent to which the plaintiff, for medical reasons caused by his injury at work, cannot effectively use his shoulder. There is no distinction made between a physical and a mental cause of the impairment - and this is not surprising. The potential presence of what is called a functional overlay which further inhibits or impairs the capacity to use a limb or undertake particular actions is well known and is not excluded from relevance simply because it is a mental rather than a mechanical phenomenon. Of course, such a functional overlay may be a feigned exaggeration of the effect of an injury. Techniques (not all medical) have been developed to uncover such a behaviour and disclose the true level of any legitimate psychological problem that may be exacerbating the incapacity resulting from some physical injury. 8In this case there can be no doubt that the medical picture demonstrated by the plaintiff cannot be explained, or at least entirely explained, in organic terms. Professor Frederick Ehrlich, whose report of 24 October 2008 was part of the material considered by the AMS, points out when answering the question about whether the plaintiff suffered permanent impairment, that the situation was "unclear in view of the extraordinary clinical presentation" and that no calculations of the extent of permanent impairment could, therefore, be made, since his presentation was so "abnormal". The Professor said that it was "not appropriate to attempt a whole person impairment assessment" in view of the plaintiff's presentation. 9It seems fair to infer from the terms of the medical assessment certificate made by the AMS that the presentation of the plaintiff at the time of the AMS' examination was very much the same; namely, clear evidence of physical injury (which undoubtedly would have had associated impairment) and also what he described as "substantial functional overlay". It is clear also to my mind, that the AMS decided that there was no need to inquire as to either the genuineness of the plaintiff's presentation or the extent to which, if it were to a greater or lesser extent legitimate, it affected his whole person impairment. The AMS, undoubtedly a highly qualified orthopaedic specialist, confined himself to what one might call the mechanical consequences of the injury and assessed the impairment of the plaintiff's upper extremity at 10% - which, in accordance with the AMA guides (American Medical Association's Guides for the Evaluation of Permanent Impairment 5 th ed), equated to 6% whole person impairment. The defendant rightly submits that this was, in light of the matters set out in the certificate, a generous assessment if one looked at the physical condition alone. 10It is conceded, but as I say it is at all events clear, that the AMS excluded from his consideration the effects of the substantial functional overlay. This had two effects. The first is that it was not possible for the AMS to determine whether the permanent impairment of the plaintiff was "fully ascertainable" since, as is not controversial, a condition demonstrating a functional overlay is dynamic and susceptible to treatment which may be more or less effective. Secondly, and as a direct consequence, full ascertainment of the plaintiff's impairment, being unstable, was not possible. 11From the point of view of the legal question here, perhaps more significantly, is the second issue; namely, the fact that the AMS declined to consider a relevant factor in the impairment of the plaintiff had the result that he never considered whether the degree of permanent impairment was fully ascertainable as required by [1.21] of the Workcover Guides, even if it might have been possible had that consideration occurred, to make that assessment on the material available to him. In a practical sense, however, the only way that the AMS could have been so satisfied would be if he concluded that the functional overlay was merely a deliberate feigning of incapacity. In that event, of course, it would not be any genuine impairment, leaving consideration of the degree of such impairment to be made on the basis of the plaintiff's physical condition. 12An appeal was taken to an Appeal Panel in accordance with the requirements of the Act. In substance the complaint made was that there was no basis for disregarding what the AMS described as the "substantial functional overlay" and that the failure to explain why it was disregarded was procedurally unfair. This, of course, is not quite the point now relied on in the present proceedings. The Appeal Panel simply confirmed the decision of the AMS under, I think, the same misapprehension that the functional overlay was irrelevant to the question of the extent of permanent impairment. 13In my view, since an assessment can only be made when "the degree of permanent impairment of the injured worker is fully ascertainable", the certificate issued by the AMS was made without the power to do so, either because a significant feature of the impairment was disregarded and hence the "degree" of permanent impairment was not actually considered, or else the psychological element was at all events necessarily dynamic and accordingly the degree of permanent impairment could not be at that point "fully ascertainable". 14The certificate was, therefore, issued without power. This position was not made right by the Appeal Panel. The certificate is a nullity and an order in the nature of certiorari should be made to quash it unless there are reasons justifying the refusal of this relief in the exercise of the Court's discretion. Conclusion 15Mr Todd, counsel for the defendant, submits that relief should be denied because adequate modes of correction were available under the Act by way of appeal or request for further assessment. In respect of the first, the appeal did not identify the ground presently relied on. In relation to the second, it was foreclosed by the taking of that limited appeal. It is submitted that this Court should be reluctant to provide a further mode of relief when the plaintiff did not raise the present point on the appeal. 16When looked at broadly, however, the worker had always maintained that, whether by way of physical damage alone or in combination with his psychological condition, his incapacity was far greater than that which had been assessed and that the psychological component should not be disregarded. This is the substance of the complaint made here. 17The error made by the AMS and, in turn, by the Appeal Panel has a real potential for serious injustice in light especially of the statutory conclusiveness of the certificate which is made without judicial sanction or supervision. It seems to me there are no countervailing considerations sufficient to justify the exercise of the Court's discretion in such a way as to permit this potential to remain. Orders 18It follows, therefore, that the certificate should be quashed. 19The plaintiff's application is remitted to the Registrar for appropriate action and fresh assessment in accordance with the Act and these reasons. 20The plaintiff is to have the costs of his summons. ********** 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. Decision last updated: 28 March 2011