Altos v Registrar of the Workers Compensation Commission of NSW [2008] NSWSC 148 | Case summary

JUDGMENT 1 HIS HONOUR: The plaintiff suffered injury in the course of his employment with the second defendant. He sought an assessment of degree of permanent impairment to his lumbar spine. He claimed to have suffered a frank injury and injury from the nature and conditions of his employment. 2 The assessment was referred to Dr Adler, an approved medical specialist ("the AMS"). The assessment was made and a medical assessment certificate was issued. The whole person impairment in respect of the frank injury was assessed at 5% and in respect of the nature and conditions at 6%. A deduction was made for pre-existing injury pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 ("the Act"). 3 An appeal was made by application to the Registrar (purportedly on the grounds of incorrect criteria and demonstrable error by the AMS). A delegate for the Registrar made a decision. It was dated 26 March 2007. The delegate was not satisfied that at least one of the grounds of appeal had been made out. A Certificate of Determination was then issued. It was dated 11 April 2007. 4 This was followed by a misconceived application for reconsideration by a Presidential Member of the Commission (pursuant to s 350). This was rejected. A reconsideration was then sought pursuant to s 378 of the Act. The delegate came to the decision that her earlier decision should not be altered, amended or rescinded. It was conveyed by letter dated 29 August 2007 ("the letter"). 5 The application for reconsideration raised a fresh matter (an alleged failure on the part of the Commission to arrange a competent Assyrian interpreter for the plaintiff at the time of the medical examination with the AMS). 6 On 27 September 2007, the plaintiff filed a Summons in this Court. It seeks leave pursuant to s 69 of the Supreme Court Act 1970. Such relief is by way of judicial review and is discretionary in nature. 7 The Summons contains two "appeal grounds". They are not helpful in identifying the case sought to be agitated in the judicial review. They are as follows:- "1) The first defendant erred in law and failed to properly exercise its jurisdiction by identifying a wrong issue, asking a wrong question and/or reaching a mistaken conclusion concerning the ground of appeal relating to the AMS considering the report of Dr Emil Guirguis dated 23 August 2005. 2) The first defendant erred in law and failed to exercise its jurisdiction in not properly considering the conflict of fact and/or error in relation to injury to the plaintiff's lumbar spine injury and complaints." 8 The relief claimed relates to the decisions said to have been made on 26 March 2007, 11 April 2007 and 29 August 2007. 9 The proceedings were case managed by the Registrar and came to be given a hearing date (27 February 2008). The proceedings were brought before the Court on 26 February 2008 by application of the second defendant. One of the problems it was facing was that written submissions had not been served on the second defendant in accordance with previous directions. 10 The plaintiff was then acting in person and he provided a copy of the submissions to the second defendant. Such submissions having been prepared by those who had previously represented him. 11 Because it was convenient to the parties who were then before the Court (and with their consent), I proceeded to hear the application for judicial review. 12 The plaintiff relied on an affidavit sworn by his then solicitor (John Andriano) together with Exhibits A and B. Exhibit B comprised the written submissions. The plaintiff relied on all of this material and largely did not make oral submissions to the Court. 13 For completeness, I should add that Exhibit B contained material that was received subject to relevance. This was material that had come into existence subsequent to the assessment made by the AMS. 14 One of the difficulties had in the disposition of this application was the identification of the case that the plaintiff wished to put and which was open having regard to the process relied on by him. Counsel for the second defendant identified what he understood to be the only matters sought to be agitated. There appeared to be four so perceived areas. I will now deal with these matters and do so leaving aside any consideration as to whether or not they fall within the prescribed appeal grounds and ought to be agitated in this appeal. 15 The plaintiff had been treated by his general practitioner (Dr Emil Guirguis) and an orthopaedic specialist (Dr Medhat Guirgis). Reports had been provided by them and the plaintiff relied on those reports in the assessment. 16 The principal area concerning the plaintiff seems to be a contention that the report from Dr Emil Guirguis was not included in the documentary evidence that was made available to the AMS. This complaint was founded on the failure by the AMS to list this report in paragraph 2 of the Certificate. 17 The complaint is demonstrably erroneous. This appears from what is said on page 3 of the Certificate and what appears in the letter. Such page contains, inter alia, the following:- "The report of Dr Guirguis, general practitioner, does refer to previous episodes of back pain occurring in April and August 1994 which appeared to have settled quickly. Dr Guirguis refers to the car accident of 15.04.00, causing mild back pain that settled quickly." 18 The letter reveals that the delegate conducted a search of the brief sent to the AMS and satisfied herself that the report was contained therein. 19 I am satisfied that the AMS had before him the report from Dr Emil Guirguis and that he had regard to it. 20 The second area concerns a complaint that the Certificate erroneously records the date of examination. The report does identify 10 November 2006 as the date of examination. The medical examination was scheduled for 3 November 2006. The second defendant accepts that the medical examination probably took place on the date of scheduling. Assuming that there be error, such error is of no significance whatsoever. 21 The third area concerned a subsequent complaint made by the plaintiff to the Healthcare Complaints Commission. The complaint reveals unhappiness on the part of the plaintiff with the attitude of Dr Adler and the manner in which the assessment was conducted. Again, these matters do not assist the plaintiff in this application for judicial review. 22 Finally, there was also a perceived complaint about the deduction for pre-existing condition. This was a deduction of 10% for degenerative disease. There was evidentiary support for the deduction and the deduction that was made was open having regard to the provisions of s 323 of the Act. 23 In addition to considering the specific matters raised by counsel for the second defendant, I have carefully read and had regard to what was said in the written submissions relied on by the plaintiff. It may be observed that these submissions seem to largely disregard the restrictions imposed by the prescribed appeal grounds and seem to be concerned with matters other than incorrect criteria and demonstrable error. 24 My performance of this exercise leads me to the view that this material does not demonstrate that either of the prescribed grounds relied on by the plaintiff were made out and/or that there is any basis for the setting aside of the decisions made by the delegate for the Registrar. 25 What has been earlier said expressly deals with what had been referred to as the decisions made on 26 March and 11 April 2007. The Certificate issued on the latter date merely gave formality to the earlier decision. 26 What happened on 29 August 2007 related to the reconsideration and I shall now make some express observations concerning it. 27 Section 378 is the ultimate provision in the Act. It appears at the end of Part 11 of Chapter 7. It does not seem to have been the subject of judicial consideration and it was not the subject of argument before me. 28 For present purposes, the relevant provisions are as follows:- "378 Reconsideration of decisions

(2) Without limiting subsection (1), if the Registrar, an approved medical specialist or an Appeal Panel is satisfied there is an obvious error in the text of a decision, the Registrar, approved medical specialist or Appeal Panel may alter the text of the decision to correct the error." 29 The section confers jurisdiction to reconsider where a decision has been made by the Registrar, an approved medical specialist or an Appeal Panel. What may be reconsidered is any matter that has been dealt with by the decision maker in the process of making the decision. Presumably, it is contemplated that the reconsideration will be by the earlier decision maker. The power conferred upon the decision maker is to rescind, alter or amend a previous decision. 30 As the legislation has earlier enacted an appeal process where a decision has been made by an approved medical specialist, it could be expected that the reconsideration was not intended to cover the same territory. It seems to me that the concept of a "reconsideration" involves the decision maker in having a further look at a matter that has been dealt with in the making an earlier decision. I do not consider that it contemplates looking at fresh matters (such as the complaint about the interpreter which was first raised in the reconsideration). 31 One clear function intended to be performed by a reconsideration was to enable the correction of obvious error in the text of a decision. This is a power akin to what has been referred to as the "slip rule". The language of subs (1) suggests a wider scope (perhaps a restricted alternative remedy to correct error in respect of a matter). Whatever it was intended to cover is best left for another day when the court has the benefit of full argument. 32 The language of the section does throw up one tantalising issue for the future. There may be a need to distinguish what is referred to in the legislation as "demonstrable error" and what is described as "obvious error". 33 It can also be assumed that the legislature did not intend that the section would become an instrument for abuse (by way of repeated application for reconsideration). The section can be approached on the basis that finality of decisions was intended. 34 Finally, it needs to be borne in mind that an application for judicial review requires the demonstration of either jurisdictional error or error of law on the face of the record. In my view, there has been a failure to demonstrate the existence of either of these matters. 35 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The exhibits may be returned. **********

Altos v Registrar of the Workers Compensation Commission of NSW

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