Hanna v Delta Electrical and Security Pty Ltd [2019] NSWSC 1127

Supreme Court New South Wales

Medium Neutral Citation: Hanna v Delta Electrical and Security Pty Ltd [2019] NSWSC 1127 Hearing dates: 27 June 2019 Date of orders: 05 September 2019 Decision date: 05 September 2019 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that:

(1) The application for judicial review fails.

(2) The summons filed 27 June 2019 is dismissed.

(3) The plaintiff is to pay the first defendant's costs on an ordinary basis. Catchwords: ADMINISTRATIVE LAW – Judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Jurisdictional error – Review of a certificate of a Medical Appeal Panel – Failure to respond to substantial and clearly articulated arguments – Failure to set out lawful reasons – Where the plaintiff suffered injury to the cervical spine Legislation Cited: Accident Compensation Act 1985 (Vic) NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016) Supreme Court Act 1970 (NSW), s 69 Workers Compensation Act 1987 (NSW), ss 9, 9A Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 325, 327, 328, 331 Cases Cited: Campbelltown City Council v Vegan (2006) 67 NSWLR 372 Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 Martin v Kelly [2008] NSWSC 577 Martin v Kelly [2009] NSWCA 105 McGinn v Ashfield Council [2012] NSWCA 238 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 1 Walsh v Parramatta City Council [2007] NSWLEC 255 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; (2013) 303 ALR 64 Category: Principal judgment Parties: Salim Hanna (Plaintiff) Delta Electrical and Security Pty Ltd (First Defendant) Medical Appeal Panel (Second Defendant) Workers Compensation Commission NSW (Third Defendant) Representation: Counsel: B McManamey (Plaintiff) S Blount (First Defendant)

Solicitors: Brydens Lawyers (Plaintiff) Sparke Helmore Lawyers (First Defendant) Submitting Appearance (Second & Third Defendants) File Number(s): 2019/63472 Publication restriction: Nil

Judgment 1. HER HONOUR: This is a judicial review from a decision of a Medical Appeal Panel ("the Appeal Panel") of the Workers Compensation Commission of NSW. 2. By amended summons filed 27 June 2019, the plaintiff seeks firstly, a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the statement of reasons for decision of the Medical Appeal Panel in relation to a medical dispute issued by the second defendant on 26 November 2018 is contrary to law, void and of no effect; secondly, an order setting aside the statement of reasons for decision of the Medical Appeal Panel issued by the second defendant on 26 November 2018; and thirdly, an order remitting the matter to the third defendant for determination by a different Medical Appeal Panel according to law. 3. The plaintiff is Salim Hanna. The first defendant is Delta Electrical and Security Pty Ltd ("Delta Electrical"). The second defendant is the Medical Appeal Panel. The third defendant is Workers Compensation Commission NSW (comprising of Arbitrator Ross Bell and approved medical specialists Drs Margaret Gibson and Robert Bell). The second and third defendants have filed a submitting appearance.

Background 1. On 21 January 2016, the plaintiff suffered an injury to his right ankle when he fell from a ladder during the course of his employment with Delta Electrical. As a result of his fall, the plaintiff suffered a consequential injury to his cervical spine. 2. On 13 April 2018, the plaintiff brought a claim for permanent impairment compensation with respect to his injuries sustained in the fall. Liability for the consequential condition in the cervical spine was initially disputed. On 4 June 2018, consent orders were made referring him for assessment. 3. On 9 July 2018, the plaintiff was referred to the Approved Medical Specialist ("AMS"), Dr Ian Meakin, to assess whole person impairment ("WPI") resulting from injuries to the right lower extremity, scarring and the consequential condition in the cervical spine. The AMS assessed the plaintiff's relevant injuries at 11% WPI. In arriving at that assessment, the AMS assessed the cervical spine at 0%. 4. On 13 August 2018, the plaintiff lodged an application to appeal against the decision of the AMS in relation only to his assessment of the cervical spine, on the basis that the AMS had made a demonstrable error and applied incorrect criteria. On 22 August 2018, Delta Electrical lodged a notice of opposition to appeal against the decision of the AMS. 5. On 25 September 2018, a delegate of the Registrar, upon examination of the medical assessment certificate ("the certificate") and on the face of the application and submissions made, was satisfied that a ground of appeal as specified in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) had been made out in relation to the AMS's assessment of the plaintiff's cervical spine. The delegate referred the appeal to the Appeal Panel (Ex A). 6. On 26 November 2018, the Appeal Panel confirmed the certificate of the AMS.

The statutory scheme 1. Before I assess the grounds of review in relation to the Appeal Panel's decision, I will briefly outline the provisions of the statutory scheme relevant to these proceedings. 2. For a worker to receive compensation under s 9(1) of the Workers Compensation Act, he or she must show an injury which is defined in s 4 as follows: "4 Definition of "injury" In this Act: injury: (a) means personal injury arising out of or in the course of employment, …" 1. No compensation is payable under the Workers Compensation Act pursuant to s 9A(1) in respect of an injury "unless the employment concerned was a substantial contributing factor to the injury." 2. Chapter 7, Part 7 of the WIM Act provides for medical assessment, including the assessment of the degree of WPI, by an AMS and, by way of review, appeal panels. The scheme was designed to take the function of assessment of injury out of the adversary court system: see Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [1] per Basten JA. 3. Approved Medical Specialists are appointed under the WIM Act to deal with medical disputes. A medical dispute is defined in s 319 of the Act to mean: "319 Definitions In this Act: … "medical dispute" means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, … (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable." 1. Section 325 of the WIM Act relates to the medical assessment certificate. It reads: "325 Medical assessment certificate (1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment. (2) A medical assessment certificate is to be in a form approved by the Registrar and is to: (a) set out details of the matters referred for assessment, and (b) certify as to the approved medical specialist's assessment with respect to those matters, and … (d) set out the facts on which that assessment is based. …" 1. Appeals against medical assessments are governed by ss 327 and 328 of the WIM Act. 2. Section 327 relevantly reads: "327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. … (3) The grounds for appeal under this section are any of the following grounds: … (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. …" 1. Section 328 relevantly reads: "328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment. … (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. …" 1. Section 327(3) confines the grounds of appeal which an Appeal Panel may consider. Relevantly, the Appeal Panel is confined to consider whether the assessment was made on the basis of incorrect criteria and whether the certificate contains a demonstrable error. 2. Section 331 of the WIM Act required the Appeal Panel to apply the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016) ("the Guidelines") in conducting its review. Section 331 of the WIM Act relevantly reads: "331 Guidelines Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments."

The Guidelines 1. The parties referred to a number of relevant provisions in the Guidelines. 2. Clause 1.6 of the Guidelines provides "a basic summary of some key principles of the permanent impairment assessment." They include: "a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant's relevant medical history and all available relevant medical information to determine: • whether the condition has reached Maximum Medical Improvement (MMI) • whether the claimant's compensable injury/condition has resulted in an impairment • whether the resultant impairment is permanent • the degree of permanent impairment that results from the injury • the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines. b. Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions. c. In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are to be clearly identified in the report and calculated. If, in an unusual situation, a related injury/condition has not previously been identified, an assessor should record the nature of any previously unidentified injury condition in their report and specify the causal connection to the relevant compensable injury or medical condition. d. The referral for an assessment of permanent impairment is to make clear to the assessor the injury or medical condition for which an assessment is sought – see also paragraphs 1.43 and 1.44 in the Guidelines." 1. Before I set out the decision of the AMS in detail, I note that the plaintiff's primary complaint concerns the DRE category in which the AMS classified his cervical spine. Table 15-5 sets out the criteria for rating impairment due to cervical disorders. Under the classification for DRE Category II, it relevantly reads: "Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, asymmetric loss of range of motion or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alternation of the structural integrity or individual had clinically significant radiculopathy and an imagining study that demonstrated a herniated disk at the level and on the side that would be expected based on the radiculopathy, but has improved following nonoperative treatment …"

The decision of AMS Dr Ian Meakin, orthopaedic specialist, dated 18 July 2018 1. On 9 July 2018, the plaintiff was referred to the AMS for a determination of WPI in relation to his injuries to his right lower extremity, scarring and cervical spine. The AMS published his certificate and reasons on 18 July 2018. 2. Under the heading "Findings on Physical Examination", the AMS stated: "Examination of the cervical spine revealed normal alignment of the cervical spine and thoracic spine. The cervical spine revealed a symmetrical restriction of active range of motion due to pain to one–quarter of normal range of motion refereeing flexion and extension and lateral flection and rotation to the right and left with no palpable evidence of paravertebral muscle spasm or guarding. The pain is mainly experienced on flection and extension. … The pain in the cervical spine is the most significant." 1. Under "Details and Dates of Special Investigations", the AMS noted a CT scan of the cervical spine as follows: "CT scan Cervical Spine – Fairfield imaging – 8 April 2016 – Mild degenerative change with moderate disc osteophyte disease at C6/7 – mild eccentric canal stenosis at C6/7 – mild eccentric canal stenosis at C6/7 - potential compromise of both C7 nerve roots at the foraminal level." 1. Under "Summary", the AMS stated: "There has also been a soft tissue injury to the cervical spine where there had been a previous history of a neck disorder some years before. X-rays six weeks after the accident demonstrate pre-existing significant degenerative change at the C6/C7 disc level. …" 1. As to the plaintiff's cervical spine, under "Reasons for Assessment" the AMS recorded at paragraph 10a: "Cervical Spine: At the time of today's assessment Mr Hanna demonstrates a significant symmetrical restriction of active range of motion in all planes of active cervical neck movement due to pain. He does not have any palpable paravertebral evidence of paravertebral muscle spasm or guarding. There is radiological evidence of pre-existing significant pathology at the C6/C7 level with a history of cervical symptoms some years before. Mr Hanna demonstrates no loss or asymmetry of reflexes and no evidence of muscle weakness or wasting that cannot be explained by his right-handedness. He has a bilateral sensory loss of the palmar aspect and dorsal aspect of both hands, involving all fingers, which is not anatomical and cannot be anatomically localised to paraspinal nerve distribution. The findings on his current imaging are not consistent with the sensory impairment demonstrated. In my opinion the definition of radiculopathy as set out in Item 4.27 of the Guides is not met. The definition requires two or more of a list of six clinical criteria to be present, one of each from the two sub-groups, both major and minor. I again make reference to 4.20 of the Guides which states that to be of diagnostic value an imaging study must be concordant with the clinical signs and symptoms. As stated in my opinion the imaging studies are not consistent with the clinical findings today. With reference to Table 15.6 AMA 5, page 395, at the time of the examination the Applicant demonstrates a DRE Cervical Category I impairment – 0% Whole Person Impairment." 1. Finally, the AMS made "brief comments" concerning a report prepared by Dr Denise Tong, as follows: "I read with interest the report prepared by Dr Denise Tong, musculoskeletal consultant, of 18 September 2017. Dr Tong at the time of her assessment awards a DRE cervical Category III for neck pain and clinically verifying all the radicular symptoms in the left arm. I note that at the time of Dr Tong's examination and under the heading "Present Symptoms" she described numbness involving the bilateral arms and left hand at the time of her assessment. I note also that Dr Tong assesses a DRE Category II impairment relating to the lumbar spine which is not within my brief today." 1. The AMS determined that the plaintiff's WPI in relation to his cervical spine at 0%. The plaintiff's combined WPI in respect of all his injuries was assessed at 11%, constituting a 10% WPI in relation to his right and lower extremity and a 1% WPI in relation to his scarring.

Application to appeal the decision of the AMS 1. On 13 August 2018, the plaintiff lodged an application to appeal the decision of the AMS together with submissions. 2. In his application, the plaintiff made no complaint in relation to the assessment of his right and lower extremity or his scarring. However, he submitted that by assessing his WPI in relation to his cervical spine at 0% on the basis that it was categorised as DRE Category I, the AMS used incorrect criteria and made a demonstrable error. 3. The plaintiff argued that having found that there were insufficient symptoms for a finding a radiculopathy, the AMS simply stated that the plaintiff demonstrated cervical impairment at DRE Category I. The plaintiff argued that there is nothing in the certificate to suggest that the AMS considered whether the plaintiff would satisfy the criteria for DRE Category II. 4. The plaintiff had been seen by Dr Tong on 18 September 2017. At that time, neurological examination disclosed reduced left triceps jerk and reduced sensation to pin prick on the left in the forearm and little finger. Dr Tong stated that there were clinically verifiable radicular symptoms in the left arm and diagnosed C7 radiculopathy with C6/7 canal stenosis on background of degenerative disc/osteophyte disease. The CT scan of 8 April 2016 had disclosed potential compromise of both C7 nerve roots at the foraminal level. 5. Table 15-5 provides that DRE Category II will apply to cervical injury in one of three situations, including where the person: "had clinically significant radiculopathy and an imaging study that demonstrated a herniated disc at the level and on the side that would be expected based on the radiculopathy, but it improved following non-operative treatment". 1. The report of Dr Tong had established that as at September 2017, the plaintiff had a clinically significant radiculopathy and an imaging study that demonstrated a herniated disc at the relevant level. It appears that the condition had improved by the time of the assessment by the AMS in July 2018. On that basis, the plaintiff argued that he was entitled to an assessment of DRE Category II. 2. As such, the plaintiff submitted that the AMS made a demonstrable error by failing to consider the alternate criteria for an assessment of DRE Category II.

Notice of opposition to the plaintiff's application 1. The defendant filed a notice of opposition to appeal against the decision of the AMS, together with written submissions. The defendant understood the plaintiff's argument to be that the AMS should have assessed DRE Cervical Category II, and that he presumably would have done so had he considered whether there were non-verifiable radicular complaints and considered that Dr Tong had previously found clinically significant radiculopathy in the presence of a herniated disc at the relevant level. 2. The plaintiff argued that the AMS failed to consider whether there were non-verifiable radicular complaints. The plaintiff had complained to the AMS of a feeling of discomfort radiating into the upper aspect of both the right and left arm and a feeling of intermittent numbness on the volar and dorsal aspect of both hands, involving the fingers and the thumb and the palm of the hand. 3. The defendant submitted that at p 4 of the certificate, the AMS demonstrated a careful and thorough examination of the plaintiff's cervical spine and upper extremities. At p 7 of the certificate, the AMS noted, "the plaintiff had bilateral sensory loss on the palmar aspect and dorsal aspect of both hands, involving all fingers, which was not anatomical and could not be anatomically localised to paraspinal nerve distribution." 4. The defendant noted that Clause 4.28 of the Guidelines provides that non-verifiable complaints of pain or sensory features follow anatomical pathways, but cannot be verified by neurological findings and do not alone constitute radiculopathy. The defendant argued that it is clear from the AMS's statement that the plaintiff's reported symptoms do not follow anatomical pathways. Accordingly, he does not have non-verifiable radicular complaints, and in any event such findings alone would not constitute radiculopathy. 5. The plaintiff argued that the AMS should have assessed his cervical spine at DRE Category II based on the alternative criteria set out at Table 15-5 of the Guidelines. In support of this submission, the plaintiff suggested that in September 2017, Dr Tong found clinically significant radiculopathy as well as a herniated disc at the relevant level. The defendant conceded that at p 6 of her report, Dr Tong diagnosed C7 radiculopathy. Importantly however, she did not diagnose the plaintiff with a herniated disc at that level, nor is there any suggestion of one. 6. Further, the defendant noted that there is nothing in the CT scan of the neck dated 8 April 2016, which was the only available radiology of relevance, that would indicate a herniated disc at any level. As such, the defendant submitted that the plaintiff's appeal was misguided.

The Appeal Panel's statement of reasons dated 26 November 2018 1. On 26 November 2018, the Appeal Panel confirmed the certificate of the AMS and issued a statement of reasons. The Appeal Panel comprised of Arbitrator Ross Bell and AMS Drs Margaret Gibson and Robert Bell. 2. The Appeal Panel noted the plaintiff's submissions and summarised them in its reasons at [12]-[14]: "[12] The appellant submits that the AMS erred in assessing Mr Hanna's cervical spine….The AMS does not consider whether Mr Hanna satisfied DRE Lumbar Category II. The AMS does not explain sufficiently why he found inconsistency on presentation. The AMS does not consider whether there were non-verifiable radicular complaints. He also errs in failing to consider whether there are clinical findings compatible with a specific injury. [13] Dr Tong found clinically significant radiculopathy in the presence of a herniated disc, which improved with non-operative treatment, so DRE Category II had to be found but the AMS did not consider the alternative, which is a demonstrable error. [14] The MAC should be revoked, and a new Certificate issued certifying 7% whole person impairment (WPI) for the cervical spine." 1. The Appeal Panel addressed the AMS's categorisation of the plaintiff's cervical injury as DRE Category I at [25]-[26]: "[25] The AMS has referred to the other criteria consistent with DRE Category II, but has found none of them present. There is nothing to suggest that reference to localised tenderness would change the assessment. The AMS says at Part 10.a., 'At the time of today's assessment Mr Hanna demonstrates a significant symmetrical restriction of active range of motion in all planes of active cervical neck movement due to pain. He does not have any palpable paravertebral evidence of paravertebral muscle spasm or guarding. There is radiological evidence of a pre-existing significant pathology at the C6/C7 level with a history of cervical symptoms some years before. Mr Hanna demonstrates no loss or asymmetry of reflexes and no evidence of muscle weakness or wasting that cannot be explained by his right-handedness.' [26] The findings are consistent with DRE Category I. There is no demonstrable error on the face of the Certificate in this regard." 1. As to the ground of appeal concerning the alternative criteria for DRE Category II, the Appeal Panel stated at [32]-[35]: "[32] The appellant relies on Dr Tong's report of September 2017, some 10 months before the assessment by the AMS in July 2018. Dr Tong considered that there was radiculopathy present which she attributed to the C7 level. However, contrary to the appellant's submissions, Dr Tong's report does not establish that there was a herniated disc, the existence of which must be accepted by the AMS. Dr Tong's reasoning for attributing the changes in sensation found at the C7 level is not clear, with the precise location of the sensory changes in the arm not being specified. [33] In any case, the AMS has conducted his own examination and applied his own clinical experience in finding no radiculopathy (or non-verifiable radicular symptoms) and in finding DRE Category I. As noted at paragraph 4.21 of the Guidelines (in reference to excluding electro-diagnostic verification as a test for radiculopathy) 'It is considered that competent assessors can make decisions about which DRE category a person should be placed in from the clinical features alone.' This the AMS has done. [34] The AMS fully explains his assessment at Part 10.a., 'In my opinion the definition of radiculopathy as set out in Item 4.27 of the Guides is not met. The definition requires two or more of a list of six clinical criteria to be present, one of each from the two sub-groups, both major and minor. I again make reference to 4.20 of the Guides which states that to be of diagnostic value an imaging study must be concordant with the clinical signs and symptoms. As stated in my opinion the imaging studies are not consistent with the clinical findings today. With reference to Table 15.6 AMA 5, page 395, at the time of the examination the Applicant demonstrates a DRE Cervical Category I impairment - 0% Whole Person Impairment.' [35] The criteria of paragraph 4.27 of the Guidelines are not met. The Panel finds no error or the use of incorrect criteria under this ground." 1. Having addressed the grounds of appeal and found no error on the part of the AMS, the Appeal Panel confirmed the certificate issued on 18 July 2018.

Judicial review generally 1. This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970 (NSW).

Grounds of judicial review 1. The plaintiff seeks a judicial review of the decision of the Appeal Panel dated 26 November 2018 and submitted that it contains both jurisdictional error and/or error on the face of the record. The grounds of judicial review are firstly, that the Appeal Panel erred in point of law when it failed to properly consider whether the plaintiff did in fact satisfy the criteria for DRE II applying Table 15-5; secondly, that the Appeal Panel erred in point of law when it did not consider for itself whether there was evidence of a herniated disc; thirdly, the Appeal Panel erred in point of law when it failed to give reasons why the alternative criteria for DRE II were not met; and finally, the Appeal Panel erred in point of law when it failed to properly consider the argument made in support of the appeal. 2. As the plaintiff's submissions made in relation to these grounds overlap significantly, it is convenient that I first consider ground 2, followed by grounds 1 and 4 together, and finally ground 3.

Ground 2 – failure to consider whether there was evidence of a herniated disc

The plaintiff's submissions 1. The plaintiff argued that the effect of his submissions before the Appeal Panel was that he had presented to the AMS in July 2018 with an imaging study that demonstrated a herniated disc. This was relevant under Table 15-5 to a classification of his cervical injury as DRE Category II. The plaintiff argued that in light of his submissions, the Appeal Panel was required to consider whether, on the basis of all of the evidence, it could be concluded that there was evidence of a herniated disc. 2. The Appeal Panel stated, "However contrary to the Appellant's submissions, Dr Tong's report does not establish that there was a herniated disc, the existence of which must be accepted by the AMS". 3. The plaintiff submitted that this statement discloses two errors. The first is that the question is not whether the AMS was required to accept that there was a herniated disc. The complaint was that the AMS had not considered the alternate criteria and therefore had not considered expressly whether there was a herniated disc. The AMS did consider that there was significant pathology at C6/C7, which is consistent with a disc herniation at that level. 4. The second error is that the Appeal Panel asked the wrong question. The question was not whether the AMS had to accept that there was a disc herniation on the basis of Dr Tong's report. The question was whether there was in fact a disc herniation based upon all of the evidence which also included the CT scan of 8 April 2016. The Appeal Panel did not consider the CT scan and did not reach any conclusion for itself whether there was a herniated disc. 5. The plaintiff submitted that the first defendant's submissions, which note that Dr Tong had not found a herniated disc, miss the point. The Appeal Panel failed to consider the question of whether the AMS had considered whether there was a herniated disc. If the Appeal Panel had done so, it would have had to consider for itself whether there was in fact a herniated disc. It failed to make any determination on this point. 6. The plaintiff argued that the first defendant seeks to defend the case by arguing whether or not there was in fact a herniated disc. It failed to respond to the plaintiff's argument that neither the AMS nor the Appeal Panel considered the evidence to determine whether or not there was an imaging study that demonstrated a herniated disc. The plaintiff argued that the first defendant should be taken by its silence to have conceded the point and the plaintiff's summons should be granted. 7. At the hearing of this judicial review, counsel for the plaintiff submitted that there is evidence of a herniated disc on the imaging study referred to by Dr Tong. The CT scan of 8 April 2016 disclosed potential compromise of the C7 nerve roots at the foraminal level where there was demonstrated C6/7 canal stenosis. Counsel for the plaintiff submitted that canal stenosis occurs when there is encroachment of disc material into the spinal column, which occurs when the disc is herniated. Accordingly, the CT scan demonstrates the presence of a disc herniation when considered in conjunction with the examination findings at that time which showed a C7 radiculopathy. Counsel for the defendant objected to the plaintiff's attempt to give evidence of the definition of a herniated disc in its submissions. It is not for this Court in the exercise of a judicial review, absent expert evidence, to consider whether the CT scan of 8 April 2016 disclosed a herniated disc and I do not do so. 8. In any event, the plaintiff argued that whether there was or was not an imaging study which demonstrates a herniated disc was a matter of fact on which neither the AMS nor the Appeal Panel made any finding. The failure to make such a finding about a critical matter that was at least squarely before the Appeal Panel is an error of law.

The first defendant's submissions 1. The first defendant submitted that the Appeal Panel made no error in not assessing the plaintiff on the basis of a herniated disc in the cervical spine, on the basis that the evidence relied upon by the plaintiff did not demonstrate such pathology. 2. The plaintiff's argument was that such a finding was evident in the report of Dr Tong dated 18 September 2017, and that the plaintiff's cervical injury should have been assessed in DRE Category II with a minimum of 5% WPI. Contrary to the plaintiff's submissions, however, Dr Tong made no such finding of a herniated disc. At p 3 of her report, Dr Tong commented on the CT Scan of the neck dated 8 April 2016 and noted the following findings: "Moderate disc-osteophyte disease at the C6/7 level. Mild eccentric canal stenosis at C6/7. Potential compromise of both C7 nerve roots at the foraminal level". 1. At p 6 of her report, Dr Tong confirmed her diagnosis of the worker's cervical spine injury as follows: "C7 radiculopathy with C6/7 canal stenosis on background of degenerative disc/osteophyte disease". 1. The defendant submitted that the plaintiff's own evidence does not disclose a finding of any herniated disc such to allow an assessment in DRE Category II, and that this was confirmed by the Appeal Panel at [32] of its findings, where it noted: "However, contrary to the appellant's submissions, Dr Tong's report does not establish that there was a herniated disc, the existence of which must be accepted by the AMS". 1. Additionally, the AMS noted at p 7 of his reasons that the significant pathology at the C6/C7 level was pre-existing, stating that "[t]here is radiological evidence of a pre-existing significant pathology at the C6/C7 level with a history of cervical symptoms some years before." 2. For these reasons, the first defendant submitted that given the absence of evidence supporting the presence of a herniated disc prior to the assessment, the plaintiff was correctly categorised as DRE Category I. The injury is to be assessed at the date of the assessment, not the date when Dr Tong made his assessment.

Consideration 1. The Appeal Panel summarised the plaintiff's submissions in relation to the herniated disc in its reasons at [12]-[14], extracted at [45] of this judgment. At [13], the Appeal Panel addressed the plaintiff's submissions in relation to the herniated disc as follows: "[13] Dr Tong found clinically significant radiculopathy in the presence of a herniated disc, which improved with non-operative treatment, so DRE Category II had to be found but the AMS did not consider the alternative, which is a demonstrable error." 1. The Appeal Panel continued at [32]: "[32] The appellant relies on Dr Tong's report of September 2017, some 10 months before the assessment by the AMS in July 2018. Dr Tong considered that there was radiculopathy present which she attributed to the C7 level. However, contrary to the appellant's submissions, Dr Tong's report does not establish that there was a herniated disc, the existence of which must be accepted by the AMS. Dr Tong's reasoning for attributing the changes in sensation found at the C7 level is not clear, with the precise location of the sensory changes in the arm not being specified." 1. The Appeal Panel continued at [33]-[35] of its decision that the AMS had conducted his own examination and found no radiculopathy, in the absence of which he determined that the injury fit the criteria for DRE Category I. 2. In its submissions before this Court, the plaintiff made much of the construction of the Appeal Panel's sentence at [32] that "Dr Tong's report does not establish that there was a herniated disc, the existence of which must be accepted by the AMS." I consider the effect of this wording in greater detail under ground 3 when I assess to the sufficiency of the Appeal Panel's reasons. 3. Ground 2 alleges that the Appeal Panel's reasons fail to consider the evidence of a herniated disc. In my view, this ground is not made out. The Appeal Panel has accurately summarised the plaintiff's submissions at [13] of its reasons. It adopted the AMS's reasons at [32] and stated that Dr Tong's report did not establish that there was a herniated disc, stating that Dr Tong's reasons for attributing those changes at C7 were not clear, as she failed to specify the precise location of the sensory changes in the arm. 4. The Appeal Panel's reasons squarely address whether there was evidence of a herniated disc. The Appeal Panel noted that the report of Dr Tong did not provide such evidence. As such, it is my view that the Appeal Panel did not fail to consider relevant material and made no error of law. This ground of review fails.

Grounds 1 and 4 – failure to properly consider the plaintiff's argument that he satisfied the criteria for DRE Category II

The plaintiff's submissions 1. The plaintiff referred to his submissions before the Appeal Panel, reproduced earlier in this judgment. The effect of these submissions was that the plaintiff presented to the AMS in July 2018 with a clinically significant radiculopathy and an imaging study that demonstrated a herniated disc, which had improved by the time of the assessment. As such, the plaintiff was entitled to a DRE II categorisation under Table 15-5. The plaintiff submitted that when dealing with this submission, the Appeal Panel failed to engage with its substance. 2. The plaintiff submitted that in addition to its failure to consider the evidence of a herniated disc outlined in ground 1, the Appeal Panel misdirected itself when it considered the question of radiculopathy. The Appeal Panel considered that the question of radiculopathy had been resolved by the clinical examination of the AMS, which found that there were no current signs sufficient to establish radiculopathy. This represents a misunderstanding of the criteria to be applied. The plaintiff submitted that the question was not whether there were current signs of radiculopathy but whether there had been such signs in the past. 3. On 18 September 2017, Dr Tong had clinically verified radicular symptoms in the left arm and had made an assessment of DRE Category Ill at that time. The report of Dr Tong was clear evidence that there was radiculopathy at that time. It is clear from the comments at paragraph 10c of the certificate that the AMS accepted that conclusion. 4. The matter to be decided under the Guidelines was whether there had been clinically significant radiculopathy which had improved following non-operative treatment. The nature of the criteria is that no current signs of radiculopathy are to be expected. The issue is whether there had been radiculopathy in the past. Neither the AMS nor the Appeal Panel considered this question, nor did they consider the clinical findings of Dr Tong and determine whether at that time there was significant radiculopathy. Dr Tong, who had the advantage of having conducted the examination, clearly thought there was. The AMS seems to have accepted that there was radiculopathy at the time of his examination without making a specific finding. 5. The first defendant did not make any submission to the effect that the findings of Dr Tong did not establish radiculopathy at that time. This is because they did. The Appeal Panel had to consider those findings. 6. The plaintiff submitted that if the Appeal Panel had carried out its task according to law, it would have considered the evidence and found that there had been clinically significant radiculopathy.

The defendant's submissions 1. The plaintiff submitted that the Appeal Panel erred in not considering whether there were signs of radiculopathy in the past and it "asked the wrong question". 2. The first defendant submitted that the Appeal Panel asked itself the correct question on the basis that Part 2 of the Guidelines makes it clear that assessment of permanent impairment involves clinical assessment of the claimant as he or she presents on the day of assessment. 3. If the worker has clinically significant radiculopathy arising from the cervical spine, then an assessment under DRE Category III is appropriate. If clinically significant radiculopathy is not found at assessment, it is only after the AMS is satisfied that the worker suffered from clinically significant radiculopathy in the past, verified by an imaging study demonstrating a herniated disc, that the alternative assessment under DRE Category II is applicable. In this matter, the Appeal Panel accepted the findings of the AMS at [34] of its reasons that the imaging studies were not consistent with the clinical findings, and that there was no evidence to suggest the plaintiff had suffered a herniated disc due to the injury. 4. As submitted above, the alternative assessment under DRE Category II only applies in circumstances where a herniated disc was demonstrated, which was not the case in relation to the plaintiff's assessment. 5. As such, the defendant submitted that the Appeal Panel did not ask itself the wrong question. In the absence of a herniated disc, or clinically significant radiculopathy, the assessment of DRE Category I was correct.

Consideration 1. Table 15-5 sets out the criteria for rating impairment due to cervical disorders. As outlined at [23] of this judgment above, the two sets of criteria under DRE Category II which are relevant to these proceedings are: "Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, asymmetric loss of range of motion or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alternation of the structural integrity or individual had clinically significant radiculopathy and an imagining study that demonstrated a herniated disk at the level and on the side that would be expected based on the radiculopathy, but has improved following nonoperative treatment …" 1. At paragraph 10a of his reasons, the AMS referred to the first set of criteria from Table 15-5, concluding that none of the relevant findings were present at the time of his assessment. The Appeal Panel reproduced those reasons at [25] of its decision and noted at [26] that those findings were consistent with DRE Category I, as the AMS had determined. 2. The second set of criteria from Table 15-5, referred to as the "alternate criteria" by the parties, are differently worded. Unlike the first, which are phrased in the present tense and refer to symptoms present "at the time of the examination by a physician", the second set of criteria are phrased in the past tense. They refer to "clinically significant radiculopathy and an imagining study that demonstrated a herniated disk at the level and on the side that would be expected based on the radiculopathy" that the plaintiff "had", but which has improved. Thus, what is relevant to a consideration under these alternate criteria for DRE Category II is not whether there were current signs of radiculopathy as assessed by the AMS at paragraph 10a, but whether there had been such signs in the past. 3. However, the plaintiff's submission that "neither the AMS nor the Appeal Panel considered this question, [nor did they consider] the clinical findings of Dr Tong and determine whether at that time there was significant radiculopathy" are not correct. 4. At [32] of its reasons, the Appeal Panel addressed the alternate criteria from Table 15-5: "Ground of appeal – Alternative criteria for DRE Category II [32] The appellant relies on Dr Tong's report of September 2017, some 10 months before the assessment by the AMS in July 2018. Dr Tong considered that there was radiculopathy present which she attributed to the C7 level. However…" 1. Contrary to the plaintiff's submissions, the Appeal Panel noted at [32] that Dr Tong had considered that there was radiculopathy present at the time of her examination of the plaintiff in September 2017. However, as addressed in relation to ground 2, the Appeal Panel went on to note that the report did not establish that there was a herniated disc. As Dr Tong's report (technically, the CT scan to which the report referred) was not evidence of a herniated disc, the alternative criteria from Table 15-5 were not satisfied. 2. The Appeal Panel continued at [33]-[35] to set out the AMS's examination of the plaintiff on the date of the assessment, where the AMS concluded that no radiculopathy was present; and the plaintiff did not meet the first criteria from Table 15-5 for DRE Category II, and his cervical injury was assigned a DRE Category I. 3. Reading the Appeal Panel's decisions as a whole and fairly, it is my view that it has not failed to properly consider the plaintiff's argument that he satisfied the alternate criteria for DRE Category II. At [32], the Appeal Panel acknowledged that Dr Tong considered the plaintiff to have had radiculopathy in 2017. However, the alternate criteria also require an imaging study that demonstrated a herniated disc. As discussed in relation to ground 2, the Appeal Panel did not consider that there was such evidence. For these reasons, it is my view that the Appeal Panel made no error of law. This ground of review fails.

Ground 3 – failure to give reasons why alternative criteria for DRE Category II were not met

The plaintiff's submissions 1. Counsel for the plaintiff conceded that the reasons of the AMS and the Appeal Panel should not be read with an eye finely tuned for error (T 21.17-18). However, he argued that neither the AMS nor the Appeal Panel engaged with the question of what the CT scan revealed, and why that did or did not equate to a herniated disc (T 21.20). Specifically, he argued that the Appeal Panel's statement at [32] that "Dr Tong's report does not establish that there was a herniated disc, the existence of which must be accepted by the AMS" reveals that it failed to actually determine what the CT scan revealed. A person reading the decision, and specifically that sentence, would have "no idea why there is a view about whether it's a herniated disc" (T 21.28-29). This constitutes a failure to give reasons.

The defendant's submissions 1. The defendant conceded that a decision maker under the relevant workers compensation legislation is required to give reasons. However, it noted that that standard of reasons is set out in Campbelltown City Council v Vegan (2006) 67 NSWLR 372 ("Vegan"), where Basten JA at 397 stated that such reasons need not be extensive, nor do they have to include detailed explanation of the criteria applied by medical specialists in reaching a professional judgment. 2. The defendant submitted that by the standard set out in Vegan, the Appeal Panel gave reasons sufficient to fulfill its legal obligations.

Consideration 1. In considering the plaintiff's grounds for review, I adopt the approach that this Court should not read the Appeal Panel's reasons "with an eye finely tuned for error": McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [67] per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291. 2. I also bear in mind that what constitutes sufficient reasons for an Appeal Panel differs from the standard required of a court. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; (2013) 303 ALR 64 ("Wingfoot"), the High Court stated at [54]-[56]: "[54] The objective, within the scheme of the Act, of requiring the medical panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the medical panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain. [55] The standard required of a written statement of reasons given by a medical panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion. [56] The Court of Appeal considered that a higher standard was required of a written statement of reasons given by a medical panel under s 68(2) of the Act. On the premise that Brown held that the opinion of a medical panel must be adopted and applied for the purposes of determining all questions or matters arising under or for the purposes of the Act, the Court of Appeal analogised the function of a medical panel forming its opinion on a medical question to the function of a judge deciding the same medical question. Accordingly, it then equated the standard of reasons required of a medical panel with the standard of reasons that would be required of a judge giving reasons for a final judgment after a trial of an action in a court. The application of that judicial standard in circumstances where an affected party had provided to the medical panel opinions of other medical practitioners and had sought in submissions to rely on those opinions, and where the opinion formed by the medical panel itself did not accord with those opinions, meant that "it was incumbent on the [P]anel to provide a comprehensible explanation for rejecting those expert medical opinions or, if it be the case, for preferring one or more other expert medical opinions over them". Rejection of the premise and the analogy, for reasons already stated, entails rejection of the conclusion that the higher standard is required. A medical panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else." 1. While Wingfoot refers to a medical panel under the Accident Compensation Act 1985 (Vic), the standard for written reasons set out in Wingfoot at [54]-[56] above apply equally to the Appeal Panel under the WIM Act in this case. 2. With respect to this standard, the first defendant referred to the case of Vegan, which like these proceedings concerned a judicial review of the certificate of an Appeal Panel under the WIM Act. In Vegan, Basten JA (with Handley & McColl JJA agreeing) assessed the sufficiency of the Appeal Panel's reasons at [121]-[122]: "[121] Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel. [122] On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required." 1. In addition to those already discussed under grounds 1, 2 and 4, the plaintiff's primary submission with respect to the Appeal Panel's reasons concerned its statement at [32]: "However, contrary to the appellant's submissions, Dr Tong's report does not establish that there was a herniated disc, the presence of which must be accepted by the AMS." (emphasis added) 1. When pressed as to how the defendant accounts for the troublesome subordinate clause highlighted at [32] above, counsel for the defendant noted the plaintiff's submissions before the Appeal Panel at [17]: "The AMS made a demonstrable error by failing to consider the alternate criteria for an assessment of DRE Category II. This is surprising as the AMS did acknowledge that at the time of the assessment of Dr Tong, there was clinical verification of the radicular symptoms in the left arm." 1. The defendant argued that the Appeal Panel's statement at [32] is best understood in the context of the plaintiff's submission at [17] above. The Appeal Panel was merely stating that if the AMS had accepted that there was a herniated disc, then the Appeal Panel would have allowed the appeal, but that neither Dr Tong nor the AMS made such a finding. 2. More generally, counsel for the defendant cautioned that the Appeal Panel's words should not be read with undue scrutiny. The plaintiff's insistence that the subordinate clause revealed error, he argued, turned on the significance of a comma. The defendant argued that the sentence, when read in context, should be read as a simple statement of facts. Dr Tong never determined that there was a herniated disc. The AMS did not determine that there was a herniated disc. Instead, he made a positive finding that the plaintiff had a "degenerative" condition. Counsel for the defendant submitted that the AMS's diagnosis of a "degenerative" condition and not a herniated disc was a finding of fact, and whether it was wrong is not subject to judicial review. 3. I do not see how the presence or absence of a comma materially affects the interpretation of the Appeal Panel's statement at [32]. However, I accept that the Appeal Panel's reasons are not to be "minutely and finely construed", but rather fairly and as a whole: see Martin at [16]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 1. In reading the Appeal Panel's reasons generally, and in particular its statement at [32], I bear in mind that they are written to inform, and "not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": see Martin [16]. 4. As outlined earlier, the standard required of a written statement of reasons is that they reveal the actual path of reasoning by which the decision maker arrived at its opinion: see Wingfoot at [55]. On the whole and read in context, it is my view that the Appeal Panel's reasons meet this standard. As I outlined in relation to ground 2, the Appeal Panel at [32] adopted the AMS's reasons and stated that Dr Tong's report did not establish that there was a herniated disc, stating that Dr Tong's reasons for attributing those changes at C7 was not clear, as she failed to specify the precise location of the sensory changes in the arm. In the context of the [32] as a whole, it is my view that by stating "the existence of which was accepted by the AMS", the Appeal Panel was merely stating that the AMS, in not interpreting Dr Tong's report as evidence of a herniated disc, did not make a demonstrable error. 5. The Appeal Panel's reasons consider the question of whether there was evidence of a herniated disc, and state that the report of Dr Tong did not provide such evidence. The AMS, and the Appeal Panel, were under no obligation to explain why they did not reach an opinion they did not form, even if that different opinion was shown by material before it to have been formed by someone else: see Wingfoot at [56]. Without evidence establishing that there was a herniated disc, the criteria for DRE Category II were not met. 6. Thus, I am not satisfied that the Appeal Panel failed to provide reasons why alternative criteria for DRE Category II were not met, such that it constitutes an error of law. This ground of review fails.

Result 1. The application for judicial review fails. The summons filed 27 June 2019 is dismissed.

Costs 1. Costs are discretionary. Costs follow the event. The plaintiff is to pay the first defendant's costs on an ordinary basis.

The Court orders that: (1) The application for judicial review fails. (2) The summons filed 27 June 2019 is dismissed. (3) The plaintiff is to pay the first defendant's costs on an ordinary basis.

********** 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: 11 September 2019