Supreme Court New South Wales Medium Neutral Citation: Maguire v Lis-Con Services Pty Ltd [2020] NSWSC 3 Hearing dates: 6 December 2019 Date of orders: 10 January 2020 Decision date: 10 January 2020 Jurisdiction: Common Law Before: Campbell J Decision: See paragraph 50 Catchwords: ADMINISTRATIVE LAW — workers compensation — worker's thumb crushed and amputated in workplace accident — judicial review of decision of appeal panel convened under s 328 of the Work Place Injury Management and Workers Compensation Act 1998 — where appeal panel confirmed medical assessment certificate determining worker's whole person impairment at 14% — whether constructive failure to exercise appeal panel's jurisdiction Legislation Cited: Work Place Injury Management and Workers Compensation Act 1998 (NSW) s 327; 328 Workers Compensation Act 1987 (NSW) Cases Cited: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Wingfoot Australia Partners v Kocak (2013) 252 CLR 480; [2013] HCA 43 Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Texts Cited: Guides to the Evaluation of Permanent Impairment (5th Edition) New South Wales Workers' Compensation Guidelines for the Evaluation of Permanent Impairment (4th Edition) Category: Principal judgment Parties: Duane Willem Maguire (Plaintiff) Lis Con Services Pty Ltd (First Defendant) Appeal Panel convened under s 328 Work Place Injury Management and Workers' Compensation Act 1998 (Second Defendant), submitting appearance Registrar of the Workers Compensation Commission (Third Defendant), submitting appearance Representation: Counsel: L Morgan with J Beran (Plaintiff) C Tanner (First Defendant) Solicitors: CMC Lawyers (Plaintiff) Moray and Agnew (First Defendant) File Number(s): 2018/129238 Publication restriction: Nil Judgment 1. By amended summons filed on 16 July 2018 the plaintiff, Mr Maguire, seeks judicial review of the decision of an Appeal Panel convened under s 328 Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM") by the Registrar of the Workers Compensation Commission ("the Registrar") to hear Mr Maguire's appeal against a medical assessment certificate ("MAC") of an approved medical specialist ("AMS") assessing his whole person impairment ("WPI") resulting from a work injury received by him on 12 December 2015 at 14%. 2. The first defendant, and only active contradictor, is Mr Maguire's then employer, Lis-Con Services Pty Ltd ("the employer"); the second defendant is the Appeal Panel; the third defendant is the Registrar of the Workers Compensation Commission. In accordance with both practice and convention, the Appeal Panel and the Registrar have filed submitting appearances, save as to costs. 3. After hearing the appeal, the Appeal Panel confirmed the MAC. The real issue before it concerned the AMS's assessment of WPI referrable to "scarring" of 0%. Mr Maguire had argued on the appeal that the assessment of 1% for this head of WPI made by each of his and the employer's independent medical referee should have been maintained. This would have brought the assessment to 15% WPI, crossing the threshold for a claim for work injury damages under s 151H Workers Compensation Act 1987 (NSW) ("WCA"). Background facts 1. Mr Maguire was born in the United Kingdom in 1991. After schooling he qualified in his homeland as a carpenter and in other occupations. He was working in Australia under a 457 Visa. 2. On 12 December 2015 he had been directed to work as a dogman and labourer assisting in the movement of steel mesh fencing by a type of mobile crane similar in operation to a forklift truck (CB 23). Dogman, or crane chasing, work was work Mr Maguire was also qualified to perform. 3. Mr Maguire was holding on to the load of steel when the crane driver dropped it, inflicting a crushing injury to Mr Maguire's left hand involving the traumatic amputation of a portion of his left thumb through the distal phalanx (CB 81). 4. Mr Maguire underwent reconstructive surgery at Sydney Hospital. This procedure involved a revision of the traumatic amputation and the insertion of a Kirschner wire ("K-wire") to stabilise the distal phalanx of his left thumb. The K-wire procedure was not entirely successful. He has required three further operations, two revising the amputation and a third to remove the K-Wire. 5. He has returned to his usual occupation as a carpenter, but with ongoing disability due to his injury. With some tailoring of his work to his disability, he has been able to perform the usual tasks of a carpenter. Claim for permanent loss compensation 1. Through his solicitors on 26 April 2017, Mr Maguire claimed permanent loss lump sum compensation based upon an assessment made by Associate Professor Alan Meares on 13 April 2017. Dr Meares assessed Mr Maguire's WPI at 16% including an allowance of 1% "from his scarring" (CB 8). 2. The employer (through its insurer) rejected Dr Meares's assessment and offered compensation based upon a 12% WPI as assessed by Dr William Walker on 5 June 2017. Although not expressed, it is obvious from his report that Dr Walker agreed with Dr Meares's assessment of 1% for "scarring" (CB 62). It is common ground, as I explain below, that WPI resulting from a condition of the skin, including disfigurement and scarring, is required to be assessed separately from the degree of impairment referrable to Mr Maguire's left upper extremity itself. Medical assessment 1. The medical dispute about the degree of medical impairment was referred by the Registrar's delegate for assessment under s 321 WIM on 7 August 2017. The "body part/s referred" were "Left Upper Extremity (hand and thumb)" and "Scarring (TEMSKI)" (CB 78). TEMSKI is an acronym for Table for Evaluation of Minor Skin Impairments (Table 14.1, referred to below). 2. The AMS to whom the medical dispute was referred for assessment was Dr John Giles, a plastic and reconstructive surgeon specialising in hand surgery. The AMS carried out his assessment on 6 September 2017 and the MAC was issued on 12 September 2017. It is relevant for present purposes to recount that the AMS recorded Mr Maguire's complaints as follows (CB 80): ". The thumb tip is floppy and he finds it difficult to grip with, in particular he finds it difficult to hold nails while hammering them. . A loss of grip strength in his left hand. . The tip of the amputation stump is exquisitely tender if knocked. . Intermittent aching in the thumb. . The unsightly appearance of the thumb because of which he tries to keep it concealed. . He has difficulty removing things from his pocket with his left hand." 1. When recording his finding in relation to Mr Maguire's consistency of presentation, the AMS said (CB 81): "Mr Maguire was a very reasonable young man, he did not appear to be exaggerating the problems caused by his injuries and the clinical findings are consistent with the injury he sustained." 1. As I have said already, the AMS assessed Mr Maguire's WPI as 14%. This assessment was solely based upon the impairment of Mr Maguire's left upper extremity (the hand) (CB 84). The AMS assessed the separate impairment referable to "the skin" (CB 84) as 0%. In the body of his reasons, the AMS confirmed that he had attached a worksheet (or table) containing his actual calculations. He also stated (CB 82): "…. This explains the assessment due to the impairment of his thumb; however, I have assessed the scarring as having caused 0% whole person impairment because the scars here are not obvious, they do not restrict him in any way and they are assessed with the amputation impairment because there cannot be an amputation without any scarring." (My emphasis.) He referred to the somewhat differing assessments of Dr Meares and Dr Walker, commenting: "The assessments are remarkably similar and my assessment is exactly the same as that of Dr Meares." Reconsideration 1. Mr Maguire's solicitors took issue with the statement that Mr Maguire's "scars" were "assessed with the amputation impairment because there cannot be an amputation without any scarring" (my emphasis), and with the statement that the AMS's own assessment "is exactly the same as that of Dr Meares." Submissions were made to the Registrar's delegate that these were demonstrable errors under s 327(3)(d) WIM. It was pointed out that conditions of the skin, including disfigurement and scarring, are required to be assessed separately from the impairment of the upper extremity under the New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th Edition) ("Guidelines", references in these reasons to "Guidelines" are a reference to this publication). And clearly the AMS's assessment was not "exactly the same as that of Dr Meares." In view of these submissions, the Registrar's delegate referred the MAC for reconsideration by the AMS under s 329 WIM, presumably as an alternative to an appeal. (CB 90) 2. In his "Further Assessment or Reconsideration" (CB 91 – 93), the AMS emphasised that his opinion was as previously expressed, that the degree of WPI was 14%. He revised his Statement of Reasons for his assessment of 0% WPI referrable to the skin by dropping his statement that the scarring was assessed with the amputation and confirming the balance of that passage of his earlier reasons (see [14] above). He also amplified his reasons by interpolating after the word "obvious" the finding [the scars are] "functionally and cosmetically excellent". He also dropped the statement that his assessment was exactly the same as that of Dr Meares and contented himself with observing that the assessments "are remarkably similar". He re-issued his MAC in the same terms as previously on 6 October 2017. Appeal under ss 327 and 328 WIM 1. By written application dated 9 October 2017 (CB 94 – 98), Mr Maguire's solicitors applied to the Registrar to appeal against the AMS's decision under s 327 WIM that the assessment was made on the grounds that, first, the assessment was made on the basis of incorrect criteria, and, secondly, the MAC contained a demonstrable error, being the grounds referred to in s. 327(3)(c)-(d) WIM. From the written submissions forming part of the application, it is apparent that the proposed appeal was against the original MAC of 12 September 2017 and, in particular, on the ground that the AMS had assessed the scarring with the amputation contrary to the Guidelines which required instability of soft tissue covering or painful scars to be evaluated as a skin condition separately from the consequences of the amputation affecting the upper extremity. The written argument stated (CB 96): "There is a clear error on the face of the record that [the AMS] did not assess the claimant's skin or his peripheral nerve injury and combined this impairment with the associated amputation impairment (sic)." The employer opposed the appeal. While acknowledging that impairments due to skin conditions were required to be assessed separately from upper extremity impairment, it pointed out that "a scar may be present and rated at 0% WPI" (Guideline 14.6, set out below at [32]) (CB 103). 1. The Registrar's delegate was satisfied that the ground specified in s 327(3)(d), "the Medical Assessment Certificate contains a demonstrable error", had been made out in relation to the MAC issued on 9 October 2017. The delegate accordingly allowed the appeal to proceed under s 327(4). The medical appeal 1. The Appeal Panel was constituted by an Arbitrator, Mr Ross Bell, and two approved medical specialists, Dr Antonio Fernandes and Dr Tommasino Mastroianni. Its written decision was given on 1 February 2018 (rather than on 1 February 2017 as stated at CB 106). Under s 328(5), as I have stated, it confirmed the MAC given on 9 October 2017. 2. The appeal was "heard" on the papers and without any oral hearing. Neither party had sought an oral hearing, although Mr Maguire's solicitors submitted that he should be re-examined by a medical member of the Panel. The Appeal Panel, however, determined it was not necessary for the worker to be further examined "because the matter can be dealt with from the findings on examination of the AMS together with the other evidence" (CB 107). 3. The Appeal Panel did not expressly address the tension between the application to appeal against the MAC of 12 September 2017 and the Registrar's decision permitting an appeal to proceed from the second MAC of 9 October 2017. But it is fair to say, the Appeal Panel primarily focused upon the former MAC to which Mr Maguire's written submissions were directed. However, it also had regard to the second MAC recording what it regarded as corrections or further explanations of the AMS's reasons for his opinion stated in the 9 October 2017 MAC (CB 109 – 110; [29] – [30]). The correction related to the AMS dropping the statement that Dr Meares's assessment was identical to his, and the further explanation, to the dropping of the statement that scars are assessed with the amputation impairment, contrary to the requirements of the Guidelines. 4. The Medical Panel's reasons for rejecting the appeal and confirming the 9 October 2017 MAC are set out at CB 108 – 110 ([18] – [32]). I think it necessary to set out the whole of this section, which in any event is relatively succinct, even if this involves a degree of repetition on my part: "18. The appellant submits that the AMS has failed to assess a painful scar or peripheral nerve injury which are potential 'associated conditions' in terms of paragraph 16.2d at page 444 of AMA 5. The Panel notes that these associated conditions are assessed as part of the upper extremity impairment due to the amputation. 19. There is nothing to suggest that there is any element of the scarring or peripheral nerves that should be assessed as part of the upper extremity impairment in addition to what the AMS found on clinical examination. The appellant refers to no element of the examination findings or to evidence not taken into account by the AMS. There is nothing in the reports of Associate Professor Meares or Dr Walker that identifies a painful scar. 20. As the respondent submits, the features described by Associate Professor Meares including the stump being pink and unstained and somewhat bulbous does not relate to scarring. 21. At Part 5 of the MAC of 12 September 2017, the "Findings on physical examination", the AMS notes, 'His left thumb had been amputated just distal to the interphalangeal joint and the tip skin did not adhere to the underlying bone making the tip rather floppy; there was a complete absence of the nail. His left thumb was 6.0 cms long whereas his right thumb was 7.5 cms long and there were very fine, pale, soft and mobile linear scars along each side of the digit, where the flap had been raised, whereas the transversely orientated skin graft, over the palmar surface of the metacarpo-phalangeal joint had shrunk to be merely a rather inconspicuous narrow white scar' 22. The AMS explains at Part 10.b of the original MAC the rationale for the scarring assessment of 0%: 'Worksheet/actual calculations attached? Yes and this explains the assessment due to the impairment of this thumb; however, I have assessed the scarring as having caused 0% whole person impairment because the scars here are not obvious they do not restrict him in any way and they are assessed with the amputation impairment because there cannot be an amputation without any scarring.' 23. The AMS also refers at Part 10.c to the similarity of the assessments of Dr William Walker and Associate Professor Alan Meares. 24. The worksheet shows the detail of the assessment of the amputated thumb. In relation to the separate scarring element, the Guidelines at paragraph 14.6 (page 73) state that, '14.6 A scar may be present and rated as 0% WPI. Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.' 25. Paragraph 14.9 of the Guidelines states, '14.9 Where there is a range of values in the TEMSKI categories, the assessor should use clinical judgment to determine the exact impairment value.' 26 The Panel notes that the AMS explains his assessment in detail after carefully reporting the findings on examination in regard to the scarring itself. The appellant submits that the AMS has failed to assess the scarring arising from the amputation. However, Dr Giles' reference to the scarring being assessed "with the amputation impairment" is clearly a reference to the "Unstable soft tissue coverage or painful scars" which "are rated separately in terms of upper extremity impairment and then combined with the total upper extremity impairment due to amputation". 27. This is consistent with the fact that the impairment due to the amputation cannot also be attributed to the scarring assessed separately in terms of TEMSKI under Chapter 14 of the Guidelines. There cannot be "double dipping". The AMS has assiduously delineated the distinction between the amputation impairment and the scarring impairment, and his Table 2" reflects the fact that he has assessed each element separately and combined them at the end, as required by the Guidelines. The appellant identifies no specific feature of the amputation that has not been included in the assessment of the upper extremity by the AMS. 28. The Panel notes that the assessment was the subject of a request for reconsideration by the appellant and Dr Giles declined to vary his assessment in the MAC "Further Assessment or Reconsideration" issued on 9 October 2017. It is apparent from the report of Associate Professor Alan Meares that his assessment of 16% WPI differs overall from the assessment of the AMS at 14% WPI. The scarring assessments also differ, with Associate Professor Meares finding 1% WPI for the scarring. The statement of the AMS that his assessment is "exactly the same as that of Dr Meares" was incorrect in the original MAC, but this mistake was not of any consequence, and does not constitute a demonstrable error in the face of the Certificate on the relevant authorities. It has not affected the assessment by the AMS who has explicitly formed his own opinion using his own clinical judgement. The AMS has thoroughly addressed the relevant descriptors of his report of the findings on examination in relation to the scarring. 29. In the Reconsideration MAC Dr Giles correctly refers to the assessment of Associate Professor Meares as being 16% WPI, and states that this assessment, and also that of Dr Walker "… are remarkably similar to mine,". 30. Dr Giles explains further in the Reconsideration MAC, "I have assessed the scarring resulting from the amputation as having caused 0% whole person impairment because the scars here are not obvious, functionally and cosmetically excellent and they do not restrict him in any way". 31. These descriptors are entirely consistent with 0% WPI on TEMSKI, as are those in the original MAC. The scarring was properly assessed separately by the AMS under the Guidelines extracted above. 32. The Panel discerns no error in the assessment of scarring or peripheral nerves." AMA 5 is a reference to the American Medical Association's Guides to the Evaluation of Permanent Impairment (5th Edition) adopted by the Guidelines except in the case of inconsistency when the Guidelines prevail (Guideline 1.1, CB 144) (references in these reasons to "Chapters" and "Sections" are references to this publication). Grounds of Review 1. The Grounds of Review as stated in the amended summons are as follows: "Ground 1: [The Appeal Panel] erred in failing to correct the error of the [AMS] in failing or declining to assess [WPI] due to scarring [TEMSKI] as specifically directed by [the Registrar]. Ground 2: [The Appeal Panel] erred and fell into jurisdictional error in failing to properly consider the operation of the New South Wales Compensation Guidelines for the evaluation of permanent impairment – Fourth Edition and its interplay with the AMA guides to the evaluation of permanent impairment – Fifth Edition. Ground 3: [The Appeal Panel's] conclusion that there was no evidence of a specific injury or disability to justify a finding of no scarring or disfigurement to the skin of the left hand was so unreasonable that no reasonable decision maker could have reached the same conclusion (sic)." The formulation of Ground 3 leaves its meaning somewhat obscure. Perhaps the word "no" preceding "scarring" in the second line is a misprint. The ground clearly raises a legal unreasonableness ground which appears to impugn the conclusion at [31] of the Appeal Panel's reasons that the AMS's findings "are entirely consistent with 0% WPI on TEMSKI". Submissions of the parties 1. Mr L Morgan and Mr J Beran, both of Counsel, who appeared for the plaintiff argued that Guidelines [1.17] – [1.20] recognise that more than one impairment may arise from the same injury. The general rule is that impairments resulting from more than one injury arising out of the same incident are to be assessed together, but by Guideline [1.18], multiple impairments are to be combined to produce a single result. Reference was also made to AMA 5 Chapter 16, 16.2a and 16.2d relating to assessment of upper extremity impairment resulting from amputation. Counsel submitted, and it was not in contest that these provisions make it clear that "unstable soft tissue coverage or painful scars are to be evaluated according to [AMA 5] Chapter 8, The Skin", and not Chapter 16. 2. Reliance was placed upon AMA 5 Chapter 8, Sections 8.2 and 8.3, dealing with disfigurement, scars and skin grafts. Section 8.3 provides that scarring resulting from, inter alia, the healing of traumatised tissue "represents a special type of disfigurement". It was submitted that the Appeal Panel fell into jurisdictional error by failing to detect material error on the part of the AMS because he did not assess any impairment resulting from disfigurement or scarring separately from the left upper extremity, and, on the findings he made, by failing to apply the TEMSKI scale to produce an assessment of at least 1% WPI as Dr Meares and Dr Walker had. 3. In oral argument, particular emphasis was laid upon Section 16.2d and the broader language of "unstable soft tissue coverage or painful scars" and the need for those matters to be assessed separately. In this regard, the argument was made that this broader description showed that disfigurement in the sense set out in Section 8.2 of "an altered or abnormal appearance that may be an alteration of colour, shape or structure" indicated that the AMS had asked himself the wrong question by focusing solely on the issue of scarring, a special type or aspect of disfigurement. Emphasis was also laid upon Guideline 14.2 referring to "disfigurement, scars and skin grafts" which "may be assessed as causing significant permanent impairment" in certain circumstances. Counsel submitted that that broader approach was applicable here, and it was erroneous to focus on scarring alone to the exclusion of other aspect of the condition of the skin of Mr Maguire's left thumb. 4. Mr C Tanner of Counsel for the employer argued that the Appeal Panel's decision was devoid of error and that the AMS's assessment accorded with the requirements of the Guidelines. Counsel referred to the finding that "the scars here are not obvious, functionally and cosmetically excellent and they do not restrict him in any way". He emphasised Guideline 14.6, which recognised that even in the presence of scarring, impairment may properly be rated as 0% WPI. The AMS was specifically required to form his own opinion using his own clinical judgment, as the Appeal Panel stated (at CB 109 [28]). 5. Counsel also argued that Mr Maguire had broadened the front of his oral argument on hearing in this Court in an impermissible manner. He submitted that the Registrar's referral to the AMS (CB 78) focused upon scarring, as an aspect of disfigurement rather than disfigurement in the broader sense. The parties, the AMS and the Appeal Panel had proceeded on the understanding that what was in question was the degree of impairment, if any, due to scarring alone. As no argument was put to the Appeal Panel that what was required was an assessment of disfigurement in the broader sense, that argument could not now found a jurisdictional error in this Court: an argument not put to an administrative decision maker whose decision is under judicial review cannot found jurisdictional error because a failure to consider the point can hardly be material to the decision which the plaintiff seeks to impugn. Relevant guidelines 1. It is necessary to set out some of the Guidelines and incorporated portions of AMA 5. Section 16.2a of AMA 5 (CB 181) provides in part: "Important factors to consider in evaluating amputations include not only the level of occurrence, but also the presence of associated problems relating to the condition of the residual stump (Section 16.2d), to regional or central pain syndromes and to restriction or loss of motion of existing proximal joints (Section 16.4)." Of these, only Section 16.2d (CB 184) is relevant in the present case. So far as "the condition of the residual stump is concerned", it provides: "Evaluation of the residual stump must assess the status of soft tissue coverage, of the peripheral nerve and vascular systems and of the bone itself. Unstable soft tissue coverage or painful scars are evaluated according to Chapter 8, The Skin … Impairments related to any of the above associated conditions are rated separately in terms of upper extremity impairment and then combined with a total upper extremity impairment due to amputations." (Original italicisation) 1. Section 8.1 (CB 156), dealing with principles of assessment, emphasises the need for sound clinical judgment based upon appropriate relevant evidence including history, physical examination and "judicious use" of available diagnostic procedures. To determine the appropriate impairment class according to Table 8-2 (CB 160), the assessor is to: "Evaluate the severity of the skin condition and the impact of the skin condition on the ability to perform activities of daily living." 1. As I have said, Section 8.2 defines disfigurement as an altered or abnormal appearance that may be an alteration of colour, shape or structure of an area of the skin and scars. And Chapter 8.3 defines scars as "a special type of disfigurement". 2. The provisions of Chapter 8 of AMA 5 are modified by Chapter 14 of the Guidelines. The following introductory provisions are of significance: "14.2 Disfigurement, scars and skin grafts may be assessed as causing significant permanent impairment when the skin condition causes limitation in the performance of activities of daily living (ADL). … 14.4 AMA5 Table 8-2 (p 178) provides the method of classification of impairment due to skin disorders. Three components – signs and symptoms of skin disorders, limitations in ADL and requirements for treatment – define five classes of permanent impairment. The assessing specialist should derive a specific percentage impairment within the range for the class that best describes the clinical status of the claimant. 14.5 The skin is regarded as a single organ and all non-facial scarring is measured together as one overall impairment, rather than assessing individual scars separately and combining the results. 14.6 A scar may be present and rated as 0% WPI. Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment 14.7 The table for the evaluation of minor skin impairment (TEMSKI) (See Table 14.1) is an extension of table 8-2 In AMA 5. The TEMSKI divides class 1 of permanent impairment (0-9%) due to skin disorders into 5 categories of impairment. The TEMSKI may be used by trained assessors (who are not trained in the skin body system), for determining impairment from 0-4% in the class 1 category, that has been caused by minor scarring following surgery. Impairment greater than 4% must be assessed by a specialist who has undertaken the requisite training in the assessment of the skin body system." Guideline 14.8 requires TEMSKI to be used in accordance with the principle of "best fit", and Guideline 14.9 requires the assessor to use his or her clinical judgment to determine the exact impairment value where a range has been provided. 1. Having regard to the narrowness of the argument in the present case, it is not necessary to set out Table 14.1 in full and I have adopted the extract provided at [48] of the plaintiff's written submissions (CB 130 – 131) (the full table is at CB 152): "Criteria 0% WPI 1% WPI 2% WPI Claimant is not conscious or is barely conscious of the scar(s) or skin condition. Claimant is conscious of the scar(s) or skin condition. Claimant is conscious of the scar(s) or skin condition. Description of the Scar(s) and/or skin condition(s) Good colour match with surrounding skin, and the scar(s) or skin condition is barely distinguishable. Some parts of the scar(s) or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes. Noticeable colour contrast of scar(s) or skin condition with surrounding skin as a result of pigmentary or other changes. (Shape, texture, colour) Claimant is unable to locate the scar(s) or skin condition. Claimant is able to locate the scar(s) or skin condition. Claimant is able to easily locate the scar(s) or skin condition No trophic changes Minimal trophic changes Trophic changes evident to touch Any staple or suture marks are barely visible Any staple or suture marks are visible Any staple or suture marks are clearly visible. Location Anatomic location of the scar(s) or skin condition is not usually visible with usual clothing/hairstyle Anatomic location of the scar(s) or skin condition is usually visible with usual clothing/hairstyle Anatomic location of the scar(s) or skin condition is usually visible with usual clothing/hairstyle Contour No contour defects Minor contour defects Contour defects visible ADL/Treatment No effect on any ADL Negligible effect on ADL Minor limitation on the performance of few ADL No treatment or intermittent treatment only required No treatment or intermittent treatment only required No treatment or intermittent treatment only required Adherence to underlying structure No adherence No adherence No adherence" Consideration 1. Given the oral argument before me, it is appropriate to determine first whether the broader basis for the evaluation of impairment due to disfigurement was advanced before the Appeal Panel. I accept that an argument not advanced before the administrative decision maker cannot found jurisdictional error, as Mr Tanner submits. The failure to give serious consideration to an argument never advanced cannot, exceptional circumstances aside, constitute jurisdictional error because the matter does not constitute a denial of natural justice and cannot have been material to the decision under review. 2. As I have pointed out, the referral (CB 78) related to "scarring (TEMSKI)" rather than more generally to "disfigurement, scars and skin grafts". However, Mr Maguire's complaints (which I have set out above at [12]), which the AMS must have accepted given his finding about the consistency of Mr Maguire's presentation and his findings on physical examination (set out above in the Appeal Panel's reasons, and paragraph [22] above), all supported a broader approach to the evaluation of impairment due to a skin condition than mere scarring. These matters included the consideration that the skin at the tip of the amputation did not adhere to the underlying bone making the tip rather floppy and the presence of the "protective sensation" over the tip of the thumb. I am inclined to think that the loss of length, to the extent that is itself disfiguring was required to be assessed with the upper extremity impairment as part and parcel of the amputation. But the photographs attached to Dr Meares's report (CB 9-10) demonstrate that the loss of the thumb-nail affects Mr Maguire's amputation stump. That is to say part of the nail bed is visible in the stump; it was not wholly within the amputated part of the thumb. The loss of the nail may be capable of impairing the skin's function as a protective covering (Chapter 8, CB 155). 3. Moreover, the submissions advanced in support of the appeal to the Appeal Panel (CB 96) expressly invoke Section 16.2d and in particular "unstable soft tissue coverage and painful scars". Emphasis was laid upon the concluding statement of 16.2d, which I have set out above (at [17] and [29]), requiring separate assessment of impairment of the skin and its subsequent combination with total upper extremity impairment due to amputation to produce the final figure for WPI. The emphasis extended to the words "any of the above associated conditions". The substantive complaint made was in the following terms (I repeat from [12] above): "There was a clear error on the face of the record that [the AMS] did not assess the Claimant's skin or his peripheral nerve injury and combined this impairment with the associated amputation (sic)." (My emphasis) 1. I am satisfied that the broader front argued before me had been seriously advanced before the Appeal Panel and, I must say, that the Appeal Panel failed to give that matter, which with respect, upon review, seems to have been the substantive ground argued, serious consideration. This constitutes jurisdictional error in the sense discussed in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [23]-[25]. Clearly, this was material error because had the broader formulation based upon disfigurement been considered, rather than focusing upon scarring as "a special type of disfigurement" (AMA 5 Chapter 8.3), the result may have been different in the sense of being more favourable to Mr Maguire. 2. It is also evident on the same basis that the Appeal Panel misdirected itself, or failed to ask itself the correct question. This is a constructive failure to exercise its jurisdiction: Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [41] and [82]. As I have set out at [32] above, Guideline 14.2 provides "disfigurement, scars and skin grafts may be assessed as causing significant permanent impairment when the skin condition causes limitation to the performance of activities of daily living (ADL)". By focusing on the narrow issue of scarring, the Appeal Panel (and for that matter the AMS) failed to direct itself in accordance with the requirements of the Guidelines. The complaints of Mr Maguire, obviously accepted by the AMS, and the AMS's findings on examination were capable of supporting the conclusion that the totality of his skin condition resulting from the partial amputation of his thumb (the broader issue) did significantly interfere with the activities of daily living, in particular the consideration that the thumb tip is floppy interfered with Mr Maguire's ability to grip including holding nails while hammering them in his usual occupation as a carpenter. He was aware of the unsightly appearance of his thumb, and had difficulty in removing things from his pocket with his left hand. Naturally it was necessary for the AMS to separate matters complained of referable to the remaining condition of Mr Maguire's skin, to the extent to which they were accepted (and they all were), from those things relevant to the amputation itself. The floppy skin and the absent nail so far as the residual nail bed on the stump was exposed, it seems to me, were capable of being aspects of the skin condition rather than the amputation per se. Likewise the unsightly appearance and possibly the difficulty in removing things from his pocket with his left hand. It is only if the right question is posed in terms of the Guidelines that the proper categorisation of these matters, whether they covered by the upper extremity impairment, or alternatively the skin condition impairment, can be ascertained. 3. The potential significance of these things can be tested by reference to the extract from Table 14.1 set out above (at [33]). If one considers each of the matters relevant to the evaluation of minor skin impairments between 0% and 2% WPI, one can see how, properly directed, the AMS, and the Appeal Panel on appeal, might well have concluded that the degree of WPI due to Mr Maguire's skin condition resulting from his work injury was somewhere between 1% and 2%. 4. I am not of the view that the failure to evaluate Mr Maguire's skin condition as resulting in a measurable degree of WPI was legally unreasonable. However, I reiterate, had the question been approached in accordance with law, it may have been evaluated differently and the failure to do so constitutes a material error. 5. There are a number of other aspects of the Appeal Panel's decision which are of some concern. First, at CB 108 [18], having referred to Section 16.2d, the panel stated: The panel notes that these associated conditions are assessed as part of the upper extremity impairment due to the amputation. (My emphasis) This is clearly incorrect. The whole purpose of Section 16.2d is to make clear that skin condition impairments are to be "rated separately" according to Chapter 8, even if in terms of upper extremity impairment. Any skin impairment is "then combined with the total upper extremity impairment due to amputation." This is clear on the express language used and it must be that the Appeal Panel meant to note "that these associated conditions are not assessed as part of the upper extremity impairment due to the amputation". 1. Secondly, the statement at CB 108 [19] that there was nothing to suggest any element of a resulting skin condition should be assessed as part of the upper extremity impairment in addition to what the AMS found in clinical examination is also troubling. Any aspect of disfigurement, scarring or skin grafting present was required to be evaluated separately whether it yielded a zero percentage impairment or not. 2. Thirdly, at CB 108 [20], the acceptance of the employer's submission that the stump being pink, unstained and somewhat bulbous "does not relate to scarring" is a product of the misdirection. There may be room for argument about pinkness and the lack of staining (but see Table 14.1). However, bulbousness undoubtedly is capable of amounting to disfigurement and may be a reference to the "floppy tip". 3. Fourthly, the conclusion expressed at CB 109 that the AMS's statement that scarring is "assessed with the amputation impairment because there cannot be an amputation without any scarring" is not capable of supporting the interpretation given by the Appeal Panel that the AMS meant by that statement that skin conditions "are rated separately" in accordance with Section 16.2d. The only meaning open is that the AMS was expressing the view that scarring was to be assessed as part of the amputation assessment to evaluate upper extremity impairment. 4. Fifthly, the reference to "double dipping" at CB 109 [27] is curious in this context. There is no suggestion of anyone double dipping. Where the Guidelines provide for separate rating of these items which they require to be evaluated separately and then combined it can hardly be regarded as "double dipping" for an injured worker to insist upon the assessment of her or his rights according to law. The Appeal Panel probably picked this phrase up from Dr Walker's report (CB 62) where he used it in an entirely different context. Double counting is a different matter. If the Appeal Panel meant no more than the disfigurement due to the physical loss of the amputated part of Mr Maguire's thumb per se cannot be counted separately as part of an impairment due to the resulting skin condition, the panel, with respect, was undoubtedly correct. However, it is no answer to the misdirection point to refer to the AMS's Table 2 where he summarised his conclusions in tabular form. If those conclusions are tainted by the AMS asking himself the wrong question, then the fact that the AMS recorded a separate conclusion in respect of upper extremity impairment and skin impairment, the latter being 0%, provides no answer to Mr Maguire's complaint. It is the substance of the AMS's decision that the Appeal Panel was required to review. This required it to look behind the conclusions to the legal process by which they produced. 5. I agree with the Appeal Panel (at CB 109 [28]) that the error the AMS made by stating that his assessment is "exactly the same as that of Dr Meares" was not of any consequence and immaterial. The AMS was required to form his own opinion and there can be no doubt that that is what he did: Wingfoot Australia Partners v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47]. This same passage from Wingfoot v Kocak also demonstrates that the AMS was not bound to accept Dr Meares's and Dr Walker's agreement about the degree of impairment due to "scarring". The law required him to make his own assessment and form his own opinion. 6. Finally, so far as the conclusion of the Appeal Panel at CB 109 [30] – [31] is concerned, it may be that the findings that "the scars are not obvious, functionally and cosmetically excellent and they do not restrict [Mr Maguire] in any way" may support an evaluation of 0% WPI by reference to Table 14.1. But if those conclusions are produced by misdirection causing the AMS to unduly narrow the focus of his inquiry, then they are undermined by demonstrable error and the Appeal Panel was bound to carry out a real review of the original medical assessment after correcting the error. Its failure to do so is a constructive failure to exercise jurisdiction constituting jurisdictional error. 7. I am satisfied that Mr Maguire's case for judicial review has been made out. Before pronouncing orders, I should point out that the summons filed on 24 April 2018 and the amended summons, name the members of the Appeal Panel individually, albeit collectively as the second defendant. For the reasons explained by Basten JA in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [55], the Appeal Panel constituted under s 328 of the WIM is how the Appeal Panel should be sued. In the event it may not be possible or administratively convenient for the Registrar to reconvene an Appeal Panel constituted by the same members. Obviously the Appeal Panel rehearing Mr Maguire's appeal under s 328 WIM needs to be bound by the Court's decision. 8. Further I note the Certificate of Determination issued under s 294 WIM by the Workers Compensation Commission (CB 111). The effect of that certificate is to give effect to the MAC issued on 9 October 2017 and confirmed by the Appeal Panel on 1 February 2018. The Workers Compensation Commission is not a party to these proceedings and neither party has made any submissions as to what should be done in relation to its certificate in the event that the Appeal Panel's decision was set aside. That being so, I will reserve liberty to apply in relation to this issue should any party require it. 9. My orders are: 1. Set aside the order made on 1 February 2018 by the Appeal Panel in matter no WCCM1 – 003799/17 confirming the medical assessment certificate issued on 9 October 2017; 2. Remit the matter to the Registrar of the Workers' Compensation Commission for referral to an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers' Compensation Act 1998 (NSW) for determination according to law. 3. The first defendant to pay the plaintiff's costs of the proceedings. 4. Reserve liberty to apply in relation to the Certificate of Determination in respect of the determination of the Workers Compensation Commission dated 8 March 2018. ********** 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: 10 January 2020