Supreme Court New South Wales Medium Neutral Citation: Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 Hearing dates: 17/07/2014 Decision date: 07 November 2014 Before: Campbell J Decision: (1) Proceedings dismissed; (2) The plaintiff to pay the 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 - decisions of public officials of the Worker's Compensation Commission of New South Wales - decision of Approved Medical Specialist - decision of delegate of the Registrar of WCC - whether decisions infected by jurisdictional error - legal status of Workcover Guidelines - whether decision of approved medical specialist in accordance with guidelines - whether lawful for delegate to treat reconsideration and appeal as alternatives between which an injured worker must elect Legislation Cited: Civil Procedure Act 2005 (NSW), s 9 Interpretation Act 1987 (NSW), ss 39-41 Judiciary Act 1903 (Cth), s 78B Motor Accidents Compensation Act 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 59.10 Workers Compensation Act 1987 (NSW), s 66 Workplace Injury Management and Workers' Compensation Act 1998 (NSW), ss 319-322A, 327 and 329 Cases Cited: Allianz Australia Limited v Crazzi [2006] NSWSC 1090; 68 NSWLR 266 Apthorpe v Repatriation Commission (1987) 77 ALR 42 Broadbridge v Stanners (1987) 16 FCR 296 Bukorovic v Registrar of the Workers Compensation Commission [2010] NSWSC 507 Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 Craig v State of South Australia (1995) 184 CLR 163 Energy Resources of Australia Limited v Commissioner of Taxation [2003] FCA 26 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 McKee v Allianz Australia Insurance Limited [2008] NSWCA 163; 71 NSWLR 609 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NRMA Insurance Limited v Motor Accidents Authority of NSW [2004] NSWSC 567; 61 NSWLR 264 Pearson v Richardson [2012] TASSC 71 Trazivuk v Motor Accidents Authority of NSW [2010] NSWCA 287 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 Texts Cited: American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th edition, 2001 Category: Principal judgment Parties: Djuro Kolundzic (Plaintiff) Quickflex Constructions Pty Ltd (First Defendant) PPTF Consulting (Formerly known as Westform (NSW) Pty Ltd (Second Defendant) Registrar of the Workers' Compensation Commission of NSW (Third Defendant Workers Compensation Commission of NSW (Fourth Defendant) Representation: Counsel: E Romaniuk SC together with E Grotte (Plaintiff) S Blount (First Defendant) Solicitors: NSW Compensation Lawyers (Plaintiff) Sparke Helmore Lawyers (First Defendant) Crown Solicitor (Third and Fourth Defendants) File Number(s): 2013/366804 Judgment 1By application for judicial review, the plaintiff challenges the legality of three decisions of public officials of the Workers' Compensation Commission of New South Wales. Two are decisions of Dr John C Beer, an approved medical specialist (AMS), and the third is a decision of a delegate of the Commission's Registrar refusing the plaintiff's application to appeal from the decision of the AMS. 2The last of these decisions was made on 25th October 2012 and the summons was not filed until 5th December 2013, well out of the time fixed for the commencement of proceedings by r 59.10 Uniform Civil Procedure Rules 2005 (NSW), if it applies to these proceedings. That qualification is necessary because the plaintiff challenges the validity of Rule 59.10. If that challenge fails he acknowledges he requires an extension of time under Rule 59.10(2). I will consider this aspect of the case at the end of my reasons. Background to the claim 3The plaintiff claims to have injured his neck, back, right and left shoulders, left knee, left ribs and chest working for the first defendant on 23rd April 2007. 4Prior to the matters the subject of this dispute, another AMS had assessed the plaintiff's whole person impairment resulting from the injuries as 10 per cent. Permanent loss compensation was paid accordingly under s 66 Workers Compensation Act 1987 (NSW) (1987 Act). 5Later, the plaintiff's condition was assessed as deteriorating by a specialist qualified by his lawyers. That specialist certified him as suffering from a greater loss. He made application for further compensation generating a further medical dispute within the meaning of s 319 Workplace Injury Management and Workers' Compensation Act 1998 (NSW)(1998 Act) which was referred by the Registrar of the Commission under s 321, 1998 Act to the AMS for his assessment as an AMS appointed under s 320, 1998 Act. 6The referral and assessment by the AMS, who examined the applicant on 22nd May 2012, occurred before the enactment of s 322A, 1998 Act prohibiting more than one assessment of the degree of permanent impairment of an injured worker. The parties agree that this amendment has no application to the present claim. 7It is well to record that what is really at stake in these proceedings is whether the plaintiff's degree of permanent impairment is now "at least 15 per cent", making him eligible to claim work injury damages. The new assessment upon which his further claim is based crossed that threshold (see s 151H 1987 Act). 8Following his assessment, the AMS issued a new medical assessment certificate, as he was required to do under s 325, 1998 Act, certifying that the degree of whole person impairment of the plaintiff was 13 per cent. This entitled the plaintiff to additional compensation under s 66, 1987 Act but, as is clear, did not suffice to make him eligible to claim work injury damages. 9The view was formed by the plaintiff's advisers that the AMS's assessment of the component of whole person impairment contributed by the condition of the plaintiff's shoulders had been made in contravention of the WorkCover Guides for the Evaluation of Permanent Impairment (WorkCover Guides). The plaintiff requested reconsideration of the AMS's assessment under s 329(1A), 1998 Act. By letter to the Registrar dated 27th August 2012 the AMS adhered to his previous findings. He expressed short reasons why he "did not feel the need to reassess or reconsider the medical assessment certificate" (CB 264-5). 10The plaintiff then sought "an increase in the period" for bringing an appeal against the medical assessment of May 2012 under s 327, 1998 Act. On 25th October 2012, the Registrar's delegate was satisfied "that special circumstances" justified an increase in the 28 day period allowed for making the appeal (s 327(5) 1998 Act) but refused the application for appeal because the plaintiff had "elected" to apply for a reconsideration, and he was not satisfied that "at least one of the grounds for appeal specified in(s 327 (3)) has been made out": s 327(4). The grounds asserted were, first, that the assessment was made on the basis of incorrect criteria and, secondly, that the Medical Assessment Certificate contained a demonstrable error. Essentially, the delegate thought the AMS's approach correct. 11The summons seeking relief in this Court was filed on 5th December 2013, over 13 months after the delegate's decision and nearly 9 months after the commencement of r 59.10 requiring proceedings for judicial review to be commenced within 3 months of the date of the decision. Part 59 UCPR commenced on 15th March 2013. The issues for determination 12There are three broad issues, each of which may have more than one aspect. They are: (1)did the AMS assess the plaintiff's degree of permanent impairment "in accordance with WorkCover Guidelines"? There is an associated question about the legal status of the guidelines and the required strictness of their application; (2)was the delegate correct to treat reconsideration and appeal as alternatives between which an injured worker must elect; (3)does r 59.10 apply; if so is it valid; if so should the time fixed by it be extended in the circumstances of this case. Issue (1) - the statutory frame work 13Section 322(1) of the 1998 Act is in the following terms: (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. I will set out the provisions relating to guidelines in full: 376 Issue of guidelines (1) The Authority may issue guidelines with respect to the following: (a) the assessment of the degree of permanent impairment of an injured worker as a result of an injury, (a1) the professional or other requirements (including qualifications, training or membership of professional bodies) for a medical practitioner to be permitted to assess (or carry out any function related to assessing), for the purposes of the Workers Compensation Acts, the degree of permanent impairment of an injured worker as a result of an injury, (b) the giving of interim payment directions by the Registrar under Part 5, (c) such other matters as a provision of the Workers Compensation Acts provides may be the subject of WorkCover Guidelines. (2) The Minister may issue guidelines with respect to the procedure for assessment under Part 7 (Medical assessment). (3) The Authority may amend, revoke or replace WorkCover Guidelines made by the Authority, and the Minister may amend, revoke or replace WorkCover Guidelines made by the Minister. (4) WorkCover Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time. (5) WorkCover Guidelines (including any amendment, revocation or replacement) are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the Guidelines for that purpose, on the day so specified. (6) The regulations may make provision for or with respect to any matter for which the WorkCover Guidelines can provide. 377 Special requirements relating to WorkCover Guidelines relating to impairment (1) This section applies to WorkCover Guidelines that relate to the assessment of the degree of permanent impairment of an injured worker as a result of an injury. (2) Those 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. (3) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to those Guidelines in the same way as those sections apply to statutory rules. The relevant guidelines 14The third edition of the WorkCover Guides was issued on 6th February 2009. The foreword to this publication (CB 215) states they are "known as the "WorkCover Guides". It states that they are issued under s 376, 1998 Act. One purpose of them is "to ensure an objective, fair and consistent method for evaluating the level of permanent impairment". As the introduction makes clear (CB 216, [1.3]) they are an adaptation of the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA 5). The procedures contained in the WorkCover Guides are to prevail if there is any inconsistency with AMA 5: CB 216 [1.3]. 15The following matters were particularly relied upon by counsel in argument before me: Development of the WorkCover Guides ... [1.13] The WorkCover Guides are meant to assist suitably qualified and experienced medical specialists to assess levels of permanent impairment. They are not meant to provide a "recipe approach" for the assessment of permanent impairments. Medical specialists are required to exercise their clinical judgment in determining diagnosis, whether the original condition has resulted in an impairment and whether the impairment is permanent. The degree of permanent impairment that results from the injury must be determined using the tables, graphs and methodology given in the WorkCover Guides and AMA 5. Section 1.5 of Chapter 1 of AMA 5 (p. 10) applies to the conduct of assessments and expands on this concept. (CB 217-8) ... Inconsistent presentation [1.6] AMA 5 (p. 19) states: "consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual's range of motion are good, but imperfect indicators of people's efforts. The physician must use the entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the physician may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing". This paragraph applies to inconsistent presentation only. The requirements stated in paragraph 1.13 apply to all assessments. (CB 224). ... 2. UPPER EXTREMITY AMA 5 Chapter 16 applies to the assessment of permanent impairment of the upper extremities, subject to the modification set out below ... The approach to assessment of the upper extremity and hand ... [2.3] Assessment of the upper extremity mainly involves clinical evaluation. Cosmetic and functional evaluations are performed in some situations. The impairment must be permanent and stable. The injured person will have a defined diagnosis that can be confirmed by examination. ... [2.5] Active range of motion should be measured with several repetitions to establish reliable results. Only active motion is measured, not passive motion. ... Conditions affecting the shoulder region ... [2.16] Impingement diagnosis of impingement is made on the basis of positive findings on appropriate provocative testing and is only to apply where there is no loss of range of motion. Symptoms must have been present for at least 12 months. An impairment rating of 3%UEI or 2%WPI shall apply. I interpolate that I understand UEI to be upper extremity impairment 16I was also taken to applicable aspects of AMA 5 (CB 229). There is a pie chart (figure 16.37; CB 232) for use in calculating the contribution of abnormal shoulder motion to upper extremity impairment. An appendix of AMA 5 is concerned with recording range of motion measurements (CB 238). "Standardised measurement techniques" are suggested to enhance "reproducibility". Measurement devices and techniques for their use are also discussed (CB 238). Emphasis was placed by the plaintiff upon figures A - 1a and A - 1b (CB 239) which were said to illustrate a patient standing, not supine, as the starting position for range of movement measurements. These illustrations are in the frontal and sagittal plane respectively. 17This appendix applies to ranges of motion of all anatomical joints; it is not confined to measuring the range of movement of the shoulder or other aspects of the upper extremity. There is nothing in the text that accompanies the figures which indicates that what is depicted is necessarily a standing position. The captions say what is depicted is "neutral (0°) starting positions for ROM measurements". There is nothing that suggests to me as a layman that I should deduce from these figures that shoulder movement must always and only be measured with the patient in a standing position. No expert evidence was led to demonstrate that medical practitioners would understand the figures as requiring the measurement of range of movement only in the standing position. In a report of 20th February 2013 (Annexure 6(l) to the affidavit of Zacharia Gabriel sworn 14th January 2014) Professor Michael Ryan said: (See plaintiff's outline of submissions filed 10 February 2004(2)). Dr Beer's examination was thorough and exhaustive. He examined [the plaintiff] in a direct and supine position. He argues that [the plaintiff's] shoulder flexion and abduction ranges is much better when examined supine. Measurement of shoulder motion is used as a measure of impairment (reference: 16.4 page 475). There is no formal instruction that the ranges of motion should be carried out in the erect position, however, [figures A-1a and A-1b] all illustrate the examination in the erect position. In some conditions the range of motion demonstrated in different positions will be different. (Emphasis added.) 18The material in the Court Book was supplemented by the provision of a further extract from AMA 5. Definitions of active and passive motion are provided at page 451 in the following terms: Active or voluntary motion is that performed by the active contraction of the governing muscles and is evaluated first. When a person has full active joint excursion, passive motion values need not to be taken because a joint that has full active excursion will have a full passive range as well. However, if the active arc of motion is incomplete, assisted active and/or passive motion measurements are necessary to evaluate the joint motion. Passive motion is that produced by an external force to determine the freedom and range of motion existing at a joint when all muscles are relaxed. An example, is Bunnells' test for intrinsic tightness in the hand. Assisted active motion is the result of active muscle contraction by an external force applied to the joint; it allows for stabilization of a segment to improve the mechanical advantage of the muscles that move the joint being measured. ... Measurements of active motion take precedence in the guides. The legal status of the WorkCover Guides. 19Mr E G Romaniuk SC who appeared with Ms E E Grotte, for the plaintiff argued that the WorkCover Guides were delegated legislation which approved medical specialists were bound to apply strictly according to their terms. Counsel pointed to the expression "in accordance with WorkCover guidelines ... issued for that purpose" in s 322 1998 Act as meaning" in conformity with the guides and not otherwise". Counsel pointed to s 376(5) requiring the publication of the guides in the Gazette and s 377(3) which treats the guides as statutory rules for the purposes of s 40 and 41 Interpretation Act 1987 (NSW), even if s 39 of that Act did not apply. Moreover, my attention was drawn to cases dealing with similar guidelines issued under Motor Accidents Compensation Act 1999 (NSW) and the treatment of them by the superior courts of this State: Trazivuk v Motor Accidents Authority of NSW [2010] NSWCA 287 at [31]; McKee v Allianz Australia Insurance Limited [2008] NSWCA 163; 71 NSWLR 609 at [92] - [95]; Allianz Australia Limited v Crazzi [2006] NSWSC 1090; 68 NSWLR 266 at [17]; cf NRMA Insurance Limited v Motor Accidents Authority of NSW [2004] NSWSC 567; 61 NSWLR 264 at [26] - [28]. 20Dr S Blount who appeared for the first defendant, argued that it was unnecessary to answer this question because the AMS "acted entirely within" the WorkCover Guides. He argued, however, that the WorkCover Guides were not "inflexible". Rather they fell into the category of case where there was "no legislative intention to create precise or inflexible rules": Riddell v Secretary Department of Social Security (1993) 42 FCR 443; Broadbridge v Stanners (1987) 16 FCR 296 at 300; Apthorpe v Repatriation Commission (1987) 77 ALR 42. In Bukorovic v Registrar of the Workers Compensation Commission [2010] NSWSC 507, Harrison AsJ referred to these authorities without finding it necessary to decide the precise legal effect of the WorkCover Guides. However Counsel argued that her Honour, by reference to Clause 1.13 (see [15] above) proceeded on the basis that they were meant to guide and assist an AMS not confine his or her clinical judgment. See Bukorovic at [35]. Consideration 21In Riddell a statutory power of wide import conferred upon a public official was required to be exercised "in accordance with directions of the Minister". The Minister's highly prescriptive directions were held to be invalid because they departed from the statutory scheme in that they did not give guidance to the public official, but attempted to deny the existence of the power by dictating the outcome of nearly all applications. I do not find the decision applicable to the matter before me. 22Broadbridge was concerned with a statutory power that the exercise ("subject to ... associated policies, procedures and guidelines"). A unanimous Full Federal Court said at 300: The manual requires decisions upon many discretionary matters and matters of judgment. It is not cast with the precision of a statute. Clearly this is an area in which guidelines may be useful and necessary. Much has to be left to the person selected as a delegate to give effect to them. It is an administrative area where one would expect that the delegate would have to direct his mind to the matters laid down in the policy but where he would not be bound, in the strict legal sense, by every word in the policy manual (citations omitted). ... In other words, to our minds, failure to observe strict compliance with a manual would be a matter not so much of absence of power in the delegate as a failure by the delegate to carry out his duties under the delegation in the manner required by the Commission. It appears to us that, in stating that the exercise of his delegated powers is "subject to" the matter stated in the delegation, the Commission is indicating those matters to which he must have regard and with which, in general, he must comply. We do not think that the Commission is laying down a set of pre-conditions which, if not strictly observed will result in an absence of power in the delegate. It may be important to bear in mind that the qualification to the powers delegated was contained in the instrument of delegation itself rather than in the statute or subordinate legislation. 23Apthorpe, so far as relevant to the present debate, was concerned with internal departmental guides to the assessment of incapacity for the purpose of determining entitlements under the detailed statutory scheme of pensions created by the Repatriation Act 1920 (Cth). Once again, a unanimous Full Federal Court noticed the case was not one "where there was a discretion conferred upon the Repatriation Commission or other authority inferentially conferring a power to lay down rules or principles for the application of the discretion". Their Honours said at 51: Under the Act, a veteran had an entitlement to have his incapacity properly determined and to receive the appropriate rate of pension having regard to the extent of that incapacity. The Tribunal was correct in turning its attention primarily to the legislation and in seeking to give effect to the intention of Parliament as expressed in the Act. Acceptance of the contrary proposition will reduce the consequence that the meaning of the statute varied from time to time with changes administrative guidelines. (Emphasis added) 24Again it is difficult to see this decision having particular application to the present case where the statute expressly requires the assessment to be made in accordance with guidelines which themselves, by reference to the provisions of the 1998 Act dealing with them, have the status and force of delegated legislation. 25The argument for the plaintiff summarised at [19] above, should be accepted. The provisions of the 1998 Act there referred to engage the principles discussed in the cases arising under the comparable provisions of the Motor Accidents Compensation Act 1999. Consistently with those cases, the WorkCover Guides cannot affect the proper construction of the 1987 or 1998 Act or limit the rights conferred by that legislation. But they are subordinate legislation in the nature of regulations whose purpose is to give effect to the provisions of the substantive law: Crazzi at [17]. As Allsop P (as his Honour then was) said in McKee at 611 [6], adapting the language for the present context: Guidelines issued under (the 1998 Act) ... deal with procedures for referral of review of assessments or the procedure for assessment, but any such guidelines would not help in understanding the content (of the 1998 Act) by reference to which the limits of the power of (an AMS) are to be identified. 26The status of the WorkCover Guides as delegated legislation gives them some greater force as part of an overall statutory scheme than "guides" of the type dealt with in Riddell, Broadbridge and Apthorpe. 27Moreover, the phrase "in accordance with" appearing in s 322(1) of the 1998 Act is of some importance. In my judgment when one considers that the object of Part 7 of Chapter 7 of the 1998 Act is to provide for the resolution of medical disputes by expert evaluation by appropriately qualified and trained specialists applying objective medically determined criteria in a manner which is reproducible by other similarly qualified and trained specialists for the promotion of consistency of the outcome of claims, Mr Romaniuk was correct to argue that the expression means "in conformity with the WorkCover Guides and not otherwise": Energy Resources of Australia Limited v Commissioner of Taxation [2003] FCA 26 at [37]; Pearson v Richardson [2012] TASSC 71 at [36] - [38]. In expressing this conclusion it is also highly relevant to have regard to the provisions of s 377(2), 1998 Act requiring the WorkCover Guides to be developed in consultation with peak bodies for the accreditation of medical specialists. This conclusion does not derogate from the principle that the nature and extent of the rights conferred by the 1987 and 1998 Acts cannot be determined by reference to the WorkCover Guides. 28As subordinate legislation, the WorkCover Guides require application in accordance with their terms to the extent to which those terms are not inconsistent with the Act or its purposes: McKee at 631 [95] per Basten JA. Neither party asserted invalidity of this type. Compliance with the WorkCover Guides 29The question, however, is not about the strictness or otherwise of their application, but rather is about the meaning of the WorkCover Guides. Clearly, their terms provide some scope for the exercise by medical specialists of clinical judgment: eg (1.13); and (1.6). So far as this is so, an AMS cannot be bound "in the strict legal sense to every word contained in them": Bukorovic at [35] per Harrison AsJ. In my view, Harrison AsJ's observation says more about the content of the WorkCover Guides than their legal status. 30However, the plaintiff's argument is that AMS's are not only permitted but "required to exercise ... clinical judgment in determining diagnosis, whether the original condition has resulted in an impairment and whether the impairment is permanent". But when it comes to the determination of the "degree of permanent impairment that results from the injury" the tables, graphs and methodology given in the WorkCover Guides and AMA 5 must be complied with to the exclusion of the exercise of individual clinical judgment: WorkCover Guides [1.13]. 31Senior Counsel acknowledged that this argument was subject to WorkCover Guides [1.6] dealing with inconsistent presentation. In that case the AMS is required to "use the entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated". He argued, however, that this provision was not engaged because the AMS had made no finding of inconsistent presentation; on the contrary, the presentation was consistent. 32Dr Blount argued that even if I rejected his argument about the legal status of the WorkCover guides, as I have, the AMS had applied them in accordance with their terms and no occasion had been demonstrated for the exercise of the Court's supervisory jurisdiction. This argument accepted the need for the AMS to have found inconsistency in the course of determining the degree of permanent impairment to engage WorkCover Guide [1.6]. 33To resolve this issue it is necessary to say something about the AMS's assessment. The decisions of the AMS 34The plaintiff's case is that the AMS erred in checking the range of shoulder movement by asking the worker to lie prone and examining the passive range of movement. The plaintiff argued that this was impermissible because in express terms the AMS found the plaintiff to be "consistent" not inconsistent and to this extent the AMS's reference to WorkCover Guides [1.6] was impermissible. The following passage from the AMS's reasons was relied upon: On testing the shoulder joints numerous times and testing against the wall, there is no cogwheel movements today on examination, and he is consistent when checked on tenderness in the bicipital tendon region, particularly the rotator cuffs, and the anterior aspect and internal rotation, with impingement type syndrome in both shoulders, the right being worse than the left. However the worker was asked to lay prone and there was extension of the left shoulder to a greater range than 90 degrees to noted approximately150 degrees and the right shoulder he did not attempt to stretch his shoulder but then kept both beneath his chest. I note the rotation of the joints below are within normal limits though the worker complained of pain at extremes and was slow to such movements complaining of pain. With such a good to normal range of rotation as noted in the examination there is no evidence of capsulitis and impingement is mild only due to rotation of greater tuberosity beneath the acromion and coracoacromial arch ligament.(coracoacromial ligament)..As such the range of movement recorded below is mainly one of self-restriction -lack of full effort or compliance of estimation or the worker's actual range of motion. As in the Workcover guides for the evaluation of Permanent Impairment page 15 paragraph 2.16.The Impingement calculation of 2%WPI is "only to apply where there is no loss of range of motion"as such the previous calculation of 2%WPI cannot be used. However noting in the same Work cover guides pages 10,11 paragraphs 1.59 and 1.60 and also AMA Guides to Permanent Impairmetn5th Ed page 19 paragraph 2.5c in referring to 'Inconsistent Presentation5: "The physician must use the entire range of clinical skill and judgement when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite or an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the physician may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing." As such in noting the degree of free rotation of 80 D and 90 D of the head of the humerus and also the position of the. left arm in lying prone and conscious self limitation of movements of the shoulders I would modify the range of motions as bracketed below: Shoulder joint movements Right Left Forward flexion 90° (140□) 90°(150□) Extension 30° 25° Abduction 80° (140□) 80° (150□) Adduction 10° 10° Internal rotation 80° 80° External rotation 90° 90° He states he has pain on internal rotation of the head of the humerus over the anterior aspect of the shoulder joint capsules and subacromial ligaments and bicipital tendon regions. He had tenderness in the bicipital groove and neighbouring rotator cuff shoulder capsule and to a lesser degree the Acromioclavicular joints moreso in the right than the left. The power of the rotator cuff is intact according to Neer's and lobe's tests, although he has pain carrying out these movements with an impingement type syndrome in the rotator cuff regions. I assess that there is some exaggeration and self restriction of movement. 35The first defendant pointed to the following passage (CB 21) dealing with consistency of presentation to argue that in fact the AMS had been satisfied that the presentation of the plaintiff was inconsistent engaging WorkCover guidelines [1.6]. I set out the passage: The worker was cooperative and consistent today in claiming no loss of sensation in his limbs. Waddel's signs were positive but only to a certain degree in the lower limbs. He did not have any cogwheel phenomenon today which has been described previously when examined. However there was a degree of anxiety and apprehension in most of the examination. He was persistently and repeatedly tested with his upper limbs in rotation to find sites of pain in the shoulder joints. There was self restriction of movement of the shoulders. The exact localised points of pain always remained accurately the same in the anterior aspect of both shoulder joints, bicipital tendon region of the shoulder joints, but no so much the acromioclavicular joints, in the shoulder joint in the region of the impingement area of the rotator cuff and acromial ligaments. I feel there was apprehensive embellishment of the lack of flexion of both limbs and abduction, a certain percentage I attribute to his disability which I feel he has but not as much as he purports to have in the examination. After repeated testing I was able to assess a certain percentage of which is genuine and which is persistently causing a degree of mild impingement in both shoulders. 36The first defendant also referred to the AMS's review of other medical reports during which he recorded that various medical referees had referred to "pain behavior" and other inconsistencies of presentation. 37When asked to reconsider his decision, the AMS said: I am in receipt of your letter today dated 17th August 2010 (sic 2012) with respect to the queries of the physics of range of motion of the shoulders and various ligaments. However, my assessment of the deductions was according to an approximate assessment of my own observation that the worker was not motivated to a greater range of movement. I felt he had the ability to do so, and I then endeavoured to, rather than give him nothing for his degree of inconsistency, give him the benefit of the doubt that there was still some disability due to his minor degree of impingement present in the left and right shoulders. (Emphasis added) It was for this reason that he asked the worker to lie prone. The AMS commented that the range of motion, lying prone should have been available standing. The AMS also commented that he tested the range of motion with the worker standing against the wall. Accordingly he applied WorkCover Guides [2.16] for impingement "where there is no loss of range of motion". Consideration 38The establishment of this aspect of the plaintiff's case requires acceptance by me of the following propositions: (a)that the AMS's reasons should be understood as incorporating a positive finding that examination in accordance with what are said to be the requirements of figures A - 1a and A - 1b (CB 239) drawn from AMA 5 carried out with the patient in the standing position, unsupported, demonstrating his active range of shoulder movement was consistent, not inconsistent presentation; (b)accordingly WorkCover Guides [1.6] was not engaged and there was no lawful occasion for the administration of "consistency tests"; (c)because the administration of consistency tests was unwarranted, the AMS was not empowered to rely upon his clinical skill and judgment. He was restricted to calculating the degree of impairment by reference to the actual findings made as to loss of range of movement ascertained by the examination detailed in (a); (d)moreover, testing the plaintiff's range of shoulder movement when he was lying prone or standing against and supported by a wall was a form of testing passive motion which is impermissible under WorkCover Guide [2.5]; (e)accordingly these matters were said to constitute jurisdictional error by the AMS disregarding the nature or limits of his functions or powers: Craig v State of South Australia (1995) 184 CLR 163 at 177; (f)I did not understand these contentions to support an argument that the AMS had identified a wrong issue, asked the wrong question, ignored relevant material or relied upon irrelevant material "in a way that affect[ed] the exercise of power, resulting in him exceeding the statutory powers: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]. It was unnecessary to go that far. 39As a matter of interpretation, as I have said, I do not regard the Workcover Guides, or figures A-1a and A1b, as requiring that the measurement of active shoulder movement for the purpose of ascertaining the degree of impairment may only be carried out with the worker standing in the erect position, unless during that examination the worker exhibits inconsistency of presentation in demonstration of his or her active range of shoulder movement. As I have pointed out, the captions to the figures state that what is depicted is the neutral (0°) starting positions for ROM measurement. I am not of the view that what is required by law is "examination in the erect position". As Professor Ryan points out "there is no form of instruction that the ranges of motion should be carried out in the erect position". He gives a number of explanations why that is the preferred position. From his perspective he opines that "it is reasonable to conclude that the only true and reliable measurement of shoulder impairment is in" the erect position. However, he also points out that in "some conditions a range of motion demonstrated in different positions will be different". I do not regard this as expert evidence demonstrating that medical practitioners understand the figures as requiring the measurement of the range of movement in the erect position only. 40I accept that in assessing the degree of permanent impairment, the WorkCover Guides must be applied "using the tables, graphs and methodology" set out. And this seems to be in contra-distinction to the requirement for the exercise of clinical judgment in determining diagnosis, causation and permanency. But if the WorkCover Guides do not mandate measurement of active range of motion in the erect position only, there was no error in the AMS measuring that and comparing it with the range of movement in the supine position; likewise when erect standing against a wall. The plaintiff's argument fails on its first limb. 41Even if one assumes, contrary to my view, that the WorkCover Guides required the measurement of the loss of the active range of motion in the erect position, and not otherwise, I am of the view that the AMS plaintiff's presentation was inconsistent engaging WorkCover Guides [1.6]. True it is, that (at CB 18) the AMS recorded that the plaintiff was "consistent when checked on tenderness" in various aspects of both shoulders suggestive of "impingement type syndrome in both shoulders", but he did not find the presentation generally consistent. As the passage extracted at [34] above demonstrates, during examination, the AMS found evidence of self-restriction of movement, being "a lack of full effort or compliance". He also assessed (at CB 19) "that there is some exaggeration and self-restriction of movement". He repeated, and expanded on, these findings at CB 21, as extracted at [35] above. WorkCover Guides [1.6] required, then, the AMS to "use the entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated". The AMS was entitled to "modify the impairment rating accordingly" subject to the obligation to explain his reasons for the modification. This the AMS did in the passages extracted at [34] and [35], particularly by reference to the table of shoulder joint movements extracted at [34]. 42It follows from this that I reject the plaintiff's argument as summarised at [39] above. I do not accept that the WorkCover Guides require assessment of loss of range of movement in the erect position only. Even if they did, the AMS found inconsistency and thus WorkCover Guides [1.6] was engaged. I reject the argument that the administration of consistency tests was unwarranted. Rather the AMS was required by law to rely upon his clinical skill and judgment. Testing the range of movement prone, or erect against the wall, I accept, was a form of testing passive motion, which was permissible under WorkCover Guides [1.6]. In proceeding as he did, the AMS did not disregard, or mistake, the limits of his function or powers imposed by the WorkCover Guides. 43I am not persuaded that the Medical Assessment Certificate is vitiated by jurisdictional error, or error on the face of the record including the AMS's reasons. Reconsideration - the second decision of the AMS 44It follows from my analysis that the refusal of the AMS to reconsider his assessment is not vitiated by jurisdictional error or error on the face of the record. His decision is summarised at [37] above. It is really a reiteration of his previous views with some minor correction of clerical error. The plaintiff's case in relation to this really depends upon a flow-on effect from the asserted jurisdictional error or error on the face of the record in relation to the original assessment. As that error has not been established, the repetition by the AMS of his reasoning in summary form in his reconsideration decision has not been shown to invalidate that decision. The second issue - the decision of the Registrar 45After the AMS's refusal to reconsider his previous decision, the plaintiff made an application to the Registrar to appeal from the decision to a Medical Appeal Panel under s 327, 1998 Act. The application was refused by the Registrar's delegate on 25th October 2012. The reasons are at CB 266-269. 46The application was made out of the time of 28 days fixed by s 327(5), but the Registrar's delegate was satisfied that special circumstances justified an increase in the period for the appeal and accordingly extended time. However, the delegate refused the application to appeal. 47In his reasons, the delegate recorded that the grounds of appeal were "substantially identical to those submitted in the application for re-consideration". The Registrar's delegate regarded this as a "double dip approach to the 1998 Act's ... review rights". At CB 268, the Registrar's delegate said: It was open to the (plaintiff), following receipt of the (medical assessment certificate), to pursue appeal rights under s 327. He elected to pursue his rights in the form of reconsideration under s 329. He has now chosen to pursue his appeal rights, following the unsuccessful reconsideration application. The AMS declined to reconsider (his medical assessment certificate) and provided an explanation for the points raised by the (plaintiff) in (his) reconsideration application, which, as earlier stated, are essentially identical to the submissions raised on appeal. The issues raised by the appellant on this appeal have been dealt with by the AMS through the reconsideration process. 48It is clear that the Registrar's delegate regarded himself as having a discretion to refuse the application because no ground additional to that advanced on the reconsideration application was advanced on the appeal. The delegate said that the provision for appeal, on the one hand, and reconsideration, on the other are "separate and distinct rights. The rights are not a two-step process". As I have said, it is clear the delegate applied a doctrine of election between inconsistent statutory rights as one ground for refusing the appeal. To the extent to which he purported to reject the appeal on this ground, he clearly fell into jurisdictional error by mistaking the nature and limits of the Registrar's functions under s 327. The same error, being expressed in his reasons, would have been an error on the face of the record. 49As I have rejected the plaintiff's principal ground of relief, it is unnecessary for me to detail my reasons for this decision in greater detail. However, I wish to record that in my view there is no doctrine of election between inconsistent rights applicable to the statutory procedures provided by s 327 and s 329. 50Section 327(5) makes it clear that in some circumstances reference by the Registrar for a reconsideration may be "an alternative to an appeal against the assessment (only if the matter could otherwise have proceeded on appeal under this section)". The scope for reconsideration under s 329 is broader and may involve an exercise of a discretionary power by a court, the Workers' Compensation Commission or the Registrar, which is unfettered by satisfaction with any express statutory conditions. There is nothing in the language of the Act, which requires an election between these different avenues of redress; there is nothing in the language of the Act which suggests that a party having availed him, her or itself of an application for reconsideration may not, if unsuccessful, exercise the statutory right of appeal under s 327, subject to the time limit fixed by s 327(5). 51Nor is there anything in s 327 which suggests that the statutory right of appeal granted is subject to a power of the Registrar to refuse the application on general discretionary grounds. Section 327(3) sets out the grounds of appeal. The procedure is an appeal is to be made by application to the Registrar: s 327(4). As has been said, the Registrar performs a gatekeeper function: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [8] and [82]. His or her power is to determine whether on the face of the application and any submissions made "at least one of the grounds of appeal specified in subsection (3) has been made out". This is a precondition to an appeal involving an evaluative decision that at least one ground, on its face, is "valid and apparently credible": Vegan at [8]. This decision is not at large subject only to general discretionary considerations. Had this been the sole ground of refusal of the application to appeal, as I have said the Registrar's delegate would have fallen into jurisdictional error. 52But it was not the only ground on which the application to appeal was refused. At [21] to [23] of his reasons (CB 180-1) the Registrar's delegate made clear that he was not satisfied that the plaintiff had made out either of the specified grounds of appeal he relied upon under s 327(3)(c) and (d). Essentially the delegate found that on the findings made by the AMS WorkCover Guides [1.6] was properly engaged. And accordingly, the plaintiff had not demonstrated either the application of incorrect criteria or demonstrable error. On my analysis above, this part of this decision is not vitiated by any illegality. In the exercise of my discretion, I would have refused relief in the nature of certiorari. Third issue - extension of time to bring these proceedings 53The plaintiff says that r 59.10 does not apply to these proceedings. I gave leave for written submissions to be filed after the hearing, which leave was exercised by the plaintiff on 16th July 2014 and by the first defendant on 22nd July 2014. As I have decided that the plaintiff's case fails on the merits, it is unnecessary to deal with the detailed written arguments advanced by each party in relation to this issue. And, in my view a decision is better made in a case, the outcome of which may depend upon it. 54The plaintiff essentially advances 8 grounds for arguing these proceedings are not caught by the rule. The first is that as the last decision challenged was made before the commencement of the rule on 15th March 2013, the rule simply has no application. The remaining 7 grounds go to its validity. I should record that the third such ground invokes Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [54] - [55]. But the plaintiff does not expressly call into question the constitutionality of the rule, no notice having been given under s 78B Judiciary Act 1903 (Cth). 55No purpose is served by me dealing with each ground of challenge separately. It is sufficient that I state my conclusions about the matter. 56In my opinion, being a procedural requirement, r 59.10 Uniform Civil Procedure Rules 2005 applies to these proceedings and to all proceedings commenced after 15th March 2013. However, its operation in the present case required these proceedings to be commenced by 15th June 2013; ie within 3 months of the rule's commencement. It does not have a directly retrospective operation. 57The rule does not offend the Kirk doctrine: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 at [24]; a statutory provision merely regulating the exercise of the supervisory jurisdiction of a State Supreme Court does not deprive it of its essential constitutional characteristics. 58I am also of the view that s 9 Civil Procedure Act 2005 (NSW) as amplified by clauses 1 and 31 of Schedule 3 of that Act provide ample power to make Rule 59.10. 59Had I been persuaded that the merits of the claim for relief favoured the plaintiff, I would have extended the time for commencing the proceedings under r 59.10(2) having regard to the considerations set out in sub-rule (3). Principally, I would have decided that the importance of the plaintiff's interest in having his degree of permanent impairment determined according to law outweighs the prejudice to the first defendant in facing a delayed application for judicial review. The first defendant can have no accrued or vested interest in maintaining an invalid decision. 60For these reasons my orders are: (1) Proceedings dismissed; (2) The plaintiff to pay the 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: 07 November 2014