Supreme Court New South Wales Medium Neutral Citation: El Masri v Woolworths Ltd [2014] NSWSC 1344 Hearing dates: 26/09/2014 Decision date: 26 September 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1)The proceedings are dismissed; (2)The plaintiff is to pay the first defendant's costs of and incidental to the proceedings on the ordinary basis forthwith after they have been agreed or assessed. Catchwords: ADMINISTRATIVE LAW - judicial review - workers compensation - decision of the Medical Appeal Panel - whether infected by jurisdictional error - failure to take into account relevant consideration - whether Medical Appeal Panel failed to take into account a medical report - whether error of law - whether failure to provide adequate reasons Legislation Cited: Evidence Act 1995 (NSW), s 79 Workers Compensation Act 1987 (NSW), ss 4, 9A, 66, 151H Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 320, 322, 327, 328, 377 Cases Cited: Campbelltown City Council v Vegan (2006) 67 NSWLR 372 Craig v South Australia (1995) 184 CLR 163 Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Ltd [2006] NSWSC 235 Minister For Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 Texts Cited: L Cocchiarella and G Andersson, Guides to the Evaluation of Permanent Impairment (American Medical Association, 5th Edition, 2002) Category: Principal judgment Parties: Vito El Masri (Plaintiff) Woolworths Ltd (Defendant) Representation: Counsel: G Horan (Plaintiff) M Allars SC (Defendant) Solicitors: El Masri & Associates (Plaintiff) BBW Lawyers (Defendant) File Number(s): 2014/83621 Extempore Judgment (Revised) 1By summons dated 19th March 2014, Mr El Masri seeks to challenge by way of judicial review the legality of the decision of a medical appeal panel of the Workers Compensation Commission made on 24th February 2014. He seeks an order in the nature of certiorari bringing the decision into this Court and quashing it together with an order in the nature of mandamus remitting the matter to the Registrar of the Commission for reference to another medical appeal panel for decision according to law. 2It is necessary to set out the background to this medical dispute which arises under the Workers Compensation Acts. Background Facts 3Mr El Masri was employed by the first defendant, Woolworths Limited, as a storeman and packer. His duties for Woolworths were those of a picker, a job which requires a person to make up orders in a warehouse for delivery to various Woolworths stores. Mr El Masri's job required him to exert effort and strain in repetitively bending, lifting and carrying bags and boxes of goods and produce which were placed on some sort of pallet jack and transported by means of that device to the place where the orders were picked up by delivery drivers. 4In 2001 he experienced pain in his left groin performing that arduous work. I interpolate that the history given by Mr El Masri to some of the doctors who examined him was that weights could range up to 25 kilograms. In any event, he continued in the work after having some time off and had a further specific incident in 2003. He was finally made redundant in 2006. He has not worked, or been trained for the performance of any other work, since then. 5The condition from which he is suffering was found to be ankylosing spondylitis, an inflammatory condition of the spine. It affects his neck, mid back, low back and his hips. 6There is no issue that this condition is pre-existing and his injury under s 4 Workers Compensation Act 1987 (NSW) consists of the aggravation of a disease to which aggravation his employment has been a contributing factor. It is also accepted, for the purpose of s 9A of the 1987 Act that his employment has been a substantial contributing factor to the injury. 7Mr El Masri sought compensation under the provisions of s 66 of the 1987 Act for the degree of permanent impairment resulting from his injury. The degree of permanent impairment is relevant for a number of purposes under the Act, including whether it is sufficient to justify an entitlement to work injury damages, assuming negligence can be proved. The degree of permanent impairment necessary for that purpose is "at least 15 per cent" in accordance with the provisions of s 151H of the 1987 Act. It can be seen from this that the dispute between the parties is of some significance to them. The resolution of the medical dispute 8There was disagreement about the degree of permanent impairment, if any, suffered by Mr El Masri. That dispute is a medical dispute as defined by s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). 9The resolution of medical disputes is dealt with in chapter 7, part 7, of the 1998 Act. Essentially the dispute resolution mechanism prescribed by the Act is by expert evaluation by medical specialists who have been appointed "approved medical specialists" under the provisions of s 320 of the 1998 Act. 10Medical disputes are referred by the Registrar of the Commission to an approved medical specialist for resolution by assessment under the Act. 11Under s 322 the assessment of the degree of permanent impairment of an injured worker is to be made in accordance with the WorkCover guidelines issued for that purpose. Those guidelines are delegated legislation under s 376 of the 1998 Act. It is not without significance that under s 377(2) the "guidelines must be developed in consultation with relevant medical colleges, including the Royal Australasian College of Physicians, the Royal Australasian College of Surgeons, the Australian Orthopaedic Association and other relevant colleges and associations". In fact, the guidelines, which are currently in their third edition, in very large measure consist of an adaptation of the fifth edition of the Guides to the Evaluation of Permanent Impairment issued by the American Medical Association, otherwise known as AMA 5. As I have said, the method of dispute resolution in respect of medical disputes is by independent evaluation, or assessment in the language of the Act, by a medical expert. 12In this regard, at least at first instance, the scheme and purpose of the 1998 Act is similar to the Victorian scheme the subject of the decision of the High Court of Australia in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52. Assessment of degree of permanent impairment of Mr El Masri 13The present dispute was referred to Dr Anderson in his capacity as an approved medical specialist. As I said at [7], there was no real issue that the ankylosing spondylitis was a pre-existing condition. Nor was there an issue that Mr El Masri's degree of permanent impairment was very significant. The real dispute between Mr El Masri and Woolworths concerned what deduction should be made for any proportion of his impairment that was due to the pre-existing condition. That topic is dealt with by s 323 of the Act. Section 323(1) requires a deduction to be made from the degree of permanent impairment resulting from an injury which is due to a pre-existing condition. The question of apportionment is dealt with in s 323(2) in the following terms: If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. 14Essentially the position of the parties before the approved medical specialist was that Mr El Masri contended that the statutory assumption of 10 per cent should be applied because it would be difficult or costly to accurately calculate the impairment otherwise. Woolworths Limited's position was that the whole of the impairment was due to the pre-existing condition. 15Dr Anderson issued a medical assessment certificate in which he assessed the overall impairment as 23 per cent, but deducted 80 per cent of that as due to the pre-existing ankylosing spondylitis with, I infer, some rounding up. This meant that the degree of whole person impairment resulting from the injury was 5 per cent only. (HIS HONOUR: Does that mean, Mr Horan, that your client is not entitled to any permanent loss compensation? HORAN: No, he is entitled to-- HIS HONOUR: Because he is before June of 2012? HORAN: Yes. HIS HONOUR: Thank you.) 16From this assessment Mr El Masri was entitled to some measure of permanent impairment compensation by way of a lump sum payment, but he fell well short of the "at least 15 per cent" threshold for the purpose of a claim for work injury damages. 17In the reasons accompanying his certificate, Dr Anderson recorded the history, set out his findings on examination, recorded his impressions of the radiological evidence, expressed his opinion of diagnosis and answered other questions he was asked. He reviewed the medical reports the parties had provided for his consideration. For what it is worth (see Kocak at [47]) he rejected the views of Dr David Champion, on whom Mr El Masri relied. He also rejected the views of Dr Kalev Wilding, on whom Woolworths relied and expressed the conclusion that his views were closest to those expressed by Dr John Stephen, Orthopaedic Surgeon. 18Dr Anderson gave the following reasons for his apportionment: I am not persuaded that a deduction of one tenth for the pre-existing and very extensive condition of ankylosing spondylitis, and arthritic change of the hips, is a realistic assessment. By far the majority of this young man's condition is due to his pre-existing condition. Although it has been identified that there is a work-related component, if we look at the results of his clinical assessment and the radiological reports, the only realistic findings are due to extensive constitutional and degenerative changes. It is therefore inconsistent that the work-related component would be particularly significant. I am therefore persuaded that, by clinical judgment, the work-related component would be one fifth of the numerical total. This provides him with a work-related whole person impairment of 5 per cent. The Appeal 19Mr El Masri was dissatisfied with this assessment and applied to the Registrar of the Commission under s 327 of the 1998 Act to appeal on the grounds that the assessment was made on the basis of incorrect criteria, and the medical assessment certificate contained a demonstrable error: s 327(3)(c) and (d). In the exercise of his or her powers, the delegate of the Registrar was satisfied that at least one of the grounds had been made out and by that means the appeal came before the medical appeal panel under s 328 of the 1998. Under that provision (subsection(2)): The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The WorkCover Guidelines can provide for the procedure on an appeal. 20I interpolate there was no complaint made in this case about the procedure followed on appeal. In accordance with the guidelines, the medical appeal panel, which was constituted as required by law by two approved medical specialists and an arbitrator, made a preliminary review of the matter and decided it was unnecessary to re-examine Mr El Masri or to convene an appeal, or assessment, hearing for the purpose of the appeal. As I have said, no complaint is made about that, or at least no complaint that enlivens any jurisdiction in this Court is made about that. 21As I have said, the decision of the medical appeal panel was made on 24 February 2014 and proceeded as a review on the papers that had been before the approved medical specialist, the reasons of the approved medical specialist and the additional submissions on appeal made by Mr El Masri and Woolworths through their legal representatives. 22The decision of the appeal panel was that the medical assessment certificate given in the matter by Dr Anderson should be confirmed: the appeal was unsuccessful. 23The main particulars of the grounds of appeal pressed upon the appeal panel were contained in the submissions of Mr Horan of counsel at pages 15 and 16 of the affidavit of the plaintiff's solicitor affirmed on 23rd April 2014. I will not set out in full what learned counsel said, but essentially the opinions expressed by Dr Champion were pressed upon the appeal panel as demonstrating that the work-related aggravation of the pre-existing disease extended to a pathological, as well as symptomatic, aggravation or acceleration. It was emphasised that Mr El Masri had been symptom-free prior to commencing work and it was argued that Dr Anderson essentially based his apportionment upon his clinical judgment rather than considering in the first place whether the apportionment question was likely to be difficult or costly to assess which would have engaged the statutory "assumption" of 10 per cent before addressing the question of whether that assumption was at odds with the evidence before him. 24I should point out that I have received Dr Champion's report of 6 November 2011 as part of the evidence read before me for the purpose of determining whether the decision of the appeal panel is vitiated by jurisdictional error. Relevantly at page 8 of his report Dr Champion said this: It does seem that the lifting incident at work probably on 1 June 2001 precipitated the onset of symptoms in his left groin (probably an early symptom of the left hip arthritis) and in his lumbar spine. The nature and conditions of his employment with rapid lifting, carrying, bending and reaching were certainly adverse for any individual with ankylosing spondylitis. I consider that, on the balance of probabilities, this work not only led on or about June 2001 to the precipitation of early symptoms but probably altered the trajectory of the disease such that, compared with a lifestyle not involving such repetitive work thereafter, the symptoms probably developed at a greater intensity and to a greater degree than would have occurred in the natural history. At page 9 Dr Champion said: Early and more effective management could probably have restored the accelerated trajectory of his disease back to a more indolent course, although one cannot know that for certain. By 2003 the disease was so well established that there was major irreversibility, and while much earlier implementation of biological therapy...would have made significant difference to his outcome compared with the late introduction, the best opportunity had already passed. 25And further on Dr Champion expressed the view that the nature and conditions of the employment "aggravated, accelerated (altering the trajectory of the course of the disease) and exacerbated the disease, leading to functional deterioration." The decision of the appeal panel 26In its decision of 24th February 2014 the medical appeal panel stated at paragraph 9 that it had before it all of the documents that had been sent to the approved medical specialist for his assessment and had taken them into account in making its determination. The panel referred to that part of the reasons of Dr Anderson, which I have quoted at [19], referred to their understanding of the arguments that had been advanced by or on behalf of Mr El Masri, and at paragraph 17 said: The panel is somewhat puzzled by the appellant's submission that the AMS did not consider properly whether employment 'altered the trajectory' of the ankylosing spondylitis and, indeed, what it is that the appellant means by this term. If the appellant is intending to mean that his work with the respondent accelerated the progression of the pathology comprising the disease, then there is no objective or clinical evidence to support that. That is to say, there is nothing within the material that indicates that the disease of which the appellant is afflicted has reached a point in terms of his pathological progression, as distinct from the manifestations of symptoms from the disease, earlier than would have otherwise been the case without effect from the appellant's employment. The appellant's employment has had an effect on the appellant's disease in that it has contributed to the symptoms the appellant suffers from the disease, but there is simply no evidence to support any contention (he) makes that his employment has worsened the pathology comprising the disease. The panel then went on to say: The fact that the appellant was not suffering symptoms from the disease is in no way determinative of the deduction to be made under section 323(1). What must be done under section 323(1) is to assess, based on clinical grounds, the contribution a pre-existing condition makes to a worker's impairment. 27The members of the panel went on to discuss the medical assessor's view and expressed their own view that the evidence did not suggest progression of the pathology comprising the disease as distinct from the manifestation of the symptoms of the disease. 28It is obvious the panel considered the approved medical assessor's approach a proper one, and concluded as follows: [G]iven the extent of the disease it would simply be at odds with the evidence, in the panel's view, to assume the contribution the disease makes to the appellant's impairment is 10 per cent. 29They were not persuaded that there was any difficulty in the apportionment exercise required by s 323(2) saying: It is a matter easily determined by clinical judgment. 30They considered there was no error of judgment on the part of the approved medical specialist. Mr El Masri's case in this Court 31Mr El Masri advances this case on essentially three grounds. They are: (1)A failure to take into account a relevant consideration being the evidence of Dr Champion as to the relationship between the plaintiff's work and the deterioration of his condition; (2)Error of law in relation to s 332 of the 1998 Act. It is argued that the medical panel misstated the legal test and therefore asked itself the wrong question as those ideas are understood in the light of the decision of the High Court in Craig v South Australia (1995) 184 CLR 163 at 179; (3)A failure to provide adequate reasons. 32I did not understand a fourth possible ground that the medical panel failed to consider the matter afresh for itself to have been pressed by Mr Horan, but I will refer to it lest I am mistaken about that. 33As I have said, in essence, the Act requires medical disputes to be resolved by expert evaluation. Given the nature of the powers exercised by an appeal panel as opposed to the powers exercised by an approved medical specialist at first instance, it may be that the description of the process by the High Court at [47] of Wingfoot requires some modification. In part, the High Court said of the functions of a medical panel constituted under Victorian legislation the following: The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. 34This description of the process is probably not entirely apposite to s 328 because the appeal panel has to decide an appeal by way of review which will probably include reviewing the arguments seriously advanced by the parties and assessing whether error has been demonstrated on the part of an approved medical specialist by reference to those arguments. However, subject to that consideration, and bearing in mind that the arbitrator who forms part of the panel in practice will not be a medical practitioner but, rather, will be a lawyer, the process remains one of expert evaluation, and subject to being satisfied a ground of appeal has been made out, the panel is entitled to substitute its own views for those of the approved medical assessor. As has been remarked upon in many cases in the Court of Appeal, the resolution of medical disputes of this type has been removed from the hands of the ordinary courts and placed in the hands of medical experts, presumably on the basis that Parliament is persuaded that medical questions are better decided by medical practitioners than lawyers. Consideration 35For a time I was attracted very much to the view that the medical panel had failed to address the argument so carefully put to them by Mr Horan in his written submissions. It seems to me that, in accordance with the decision of the Full Federal Court in Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267, that a failure to give serious consideration to a submission seriously addressed to it on appeal would constitute jurisdictional error in the Craig v South Australia sense either because it was a failure to take into account a relevant consideration as that expression is properly understood according to the well-known judgment of Mason J (as the Chief Justice then was) in Minister For Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 to 41 or because a failure to address the submission would be a failure to discharge its implied common law obligation to give reasons; see Dennis Willcox and Wingfoot. 36The basis of that attraction was the puzzlement expressed by the panel at paragraph 17 about what the applicant's submissions meant. Had they considered them carefully from paragraph 2 of Mr Horan's submissions, and from the report of Dr Champion there referred to, it would have been very clear that the reference to "altered trajectory" was picked up by Mr Horan from Dr Champion's report at pages 8 and 9 and, in proper context, what was meant by that expression would also have been clear. It seems to me it is a reference to the altered progression of the disease and its symptoms following work-related aggravation. I think I would have been entitled to infer that, in accordance with Dennis Willcox, notwithstanding paragraph 9 of their reasons, that the members of the panel had failed to seriously consider the main thrust of Mr El Masri's argument. 37However, I have been persuaded by the argument of Ms Allars of Senior Counsel, who appears for Woolworths, that the following sentence of paragraph 17, that is, the second sentence, adequately demonstrates that the appeal panel in substance addressed the very point that, at its highest, might have arisen out of Mr El Masri's reliance upon the expression "altered trajectory" from Dr Champion's report. That is to say, that the appeal panel considered whether the evidence justified a conclusion that the work aggravation "accelerated the progression of the pathology comprising the disease". As I have said, at best, from the plaintiff's point of view, or at its highest, that is what Dr Champion might have been taken to have meant and, arguably if that were so, then a more favourable apportionment was called for, or perhaps the difficulty in making the apportionment in those circumstances would have engaged the statutory assumption. 38I am not satisfied, for the reasons I have just given, that the appeal panel made that error. 39I might also say that, as I remarked in discussion with Mr Horan, it is a bit hard to read Dr Champion's opinion in any event as saying any more than that there was a significant symptomatic aggravation of the disease. His emphasis on altered trajectory seems to me to be that the symptoms were much worse than they might have been at that time and had proved much more resistant to appropriate treatment. That seems to me to really amount to a symptomatic aggravation of the disease rather than an acceleration of the underlying disease process, and had I been of the view that the medical panel failed to address the substantial argument, I would have been of the view that the error was not material, in the sense discussed by Mason J, because Dr Champion was saying no more than Dr Anderson had said, and the medical panel concluded, that is that the work-related aggravation was symptomatic only. 40Turning to Mr Horan's second point, I am not satisfied that by seeking to decide the question posed for apportionment purposes by s 323(2), the panel misdirected itself by including the words "on clinical grounds" in its formulation of the relevant question. 41It seems to me, as I have probably laboured too much in these reasons, that the whole purpose of these provisions is to place the determination of these important medical questions in the hands of medical experts. As I have said, s 322 requires the assessment of impairments to be determined in accordance with the guidelines. In this context, I would understand the phrase "in accordance with" to mean in conformity with and not otherwise. 42As I have said, those guidelines themselves are formulated in consultation with the peak bodies concerned with the qualification of medical specialists in this country and substantially involve an adaptation of AMA 5, an authoritative medical publication by doctors for doctors. 43The whole intention of the provisions is that medical questions will be decided by medical practitioners, having regard, or by reference, to the requirements of medical science as expressed in the guidelines. It seems to me that if one relies upon the judgment of an expert, one is relying upon that expert to exercise his or her expertise, or branch of "specialised knowledge" as it is put in a different context in s 79 Evidence Act 1995 (NSW); which I hasten to add does not apply to proceedings in the Commission. 44The question of apportionment is to be decided, therefore, by reference to the degree of impairment due to the pre-existing condition and the s 323(2) question, appearing as it does in Pt 7 of Ch 7 of the 1998 Act is to be answered as a question of medical fact. No doubt questions of law as to the meaning of "due to", and other considerations, might be wrapped up in it, but essentially the decision is to be made by medical practitioners and, in my judgment, it is no error for those medical practitioners to decide the question on clinical grounds. 45What is meant by the panel in using the expression "clinical grounds" is made clear by the succeeding passage in the decision, by the reference to what is shown on radiological investigations of the plaintiff's spine, what is known of the nature of the disease, including the consideration accepted by all the doctors, I interpolate, that at the time the first symptoms were experienced at work, the disease would already have been in existence, and the absence of any radiological or other objective evidence showing that, as a result of trauma at work, the underlying pathology had progressed further than it otherwise would have by its expected natural development. In my judgment, there is no error in this. 46I accept that the appeal panel was required to draw upon its expertise as medical practitioners and to exercise its clinical judgment in making their decision, and so much of what is said at [47] of Wingfoot is apposite to the functions of the appeal panel; as is the dictum of Studdert J in Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Ltd [2006] NSWSC 235 at [62] - [65]. 47I turn then to the third ground which is the reasons ground. Part of that argument relates to the asserted failure of the panel to give proper consideration to the substantial argument of Mr Horan. For the reasons I have already given, that argument must be rejected. 48The second aspect relates to paragraph 19 of the reasons, which is in the following terms: In the panel's view, given what is revealed by the radiology, and the worker's description of symptoms, the determination of the extent to which the pre-existing disease contributed to the appellant's impairment is not difficult. It is a matter easily determined by clinical judgment. 49As I understand the argument advanced by Mr Horan, the expression "easily determined by clinical judgment" is opaque and implies a more or less arbitrary approach to the question. With respect, I am unable to accept this submission. 50As I have said, and at the risk of repeating myself unduly, the process is one of expert evaluation. Often when judgment of any type is called for, there will be a gap between expression of reasons and articulation of decision which cannot itself be fully articulated. That gap constitutes what might be called judgment. Although, as Ms Allars reminded me, Wingfoot does not necessarily apply to this case because it was a case where there was a statutory obligation to give reasons, and in this case the obligation to give reasons is implied by the general law as explained in Campbelltown City Council v Vegan (2006) 67 NSWLR 372, what their Honours said at [55] of Wingfoot must be applicable. Basically, the statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. Applying that standard, it is clear what was decided and why, as is the reasoning process that led to the decision, especially if one has regard to what was said by the panel at paragraph 18 which I will not further set out. 51Accordingly, I am of the view that the panel discharged its legal obligation in regard to the provisions of reasons. 52So far as the fourth ground is concerned, about whether the panel considered the matter for itself, I am of the view that they clearly did. Certainly they agreed with the conclusion of Dr Anderson. Being an appeal, they necessarily had to consider to his reasons and decide whether they agreed, or not. But it is clear that in expressing their agreement with his conclusions, the Medical Appeal Panel was expressing a view that its members had arrived at independently by a consideration of all the material that had been before Dr Anderson, his reasons and the written submissions provided by the parties. I am not persuaded that there is any error by way of anything in the nature of a constructive denial of jurisdiction. 53For these reasons, my orders are: (1)The proceedings are dismissed; (2)The plaintiff is to pay the first defendant's costs of and incidental to the proceedings on the ordinary basis forthwith after they have been 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. 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: 01 October 2014