BORG v THE REGISTRAR WORKERS COMPENSATION COMMISSION

COUNSEL : Ms BK Nolan Plaintiff Mr S Blount Defendants

NSW Compensation Lawyers Plaintiff SOLICITORS : IV Knight First and Second Defendants Spark Helmore Third Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No: 30124/2008 RS HULME J Wednesday 16 December 2009 CHRISTINE BORG v THE REGISTRAR OF THE WORKERS COMPENSATION COMMISSION AND ORS JUDGMENT 1 HIS HONOUR: On or about 28 February 2008, the Plaintiff in this Court applied to the Workers Compensation Commission to resolve a dispute as to the award of permanent impairment compensation pursuant to s65 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Act"). The dispute was referred to assessment by an approved medical specialist, Dr Breit, the Second Defendant. 2 The Medical Assessment Certificate ("MAC") that issued in consequence was dated 7 May 2008. It recorded a figure of zero for each of the matters recorded as in dispute, viz the Plaintiff's cervical spine and right upper extremity (right elbow and shoulder) and in consequence the Plaintiff's whole person impairment. Attached to or forming part of the Certificate were some 6 pages that referred to the documentary evidence referred by the Commission for the assessment, some details of the Plaintiff, a brief history of the incident in which injury was said to have occurred, symptoms and treatment, findings on physical examination of the Plaintiff, details of radiological examinations, an evaluation of permanent impairment and reasons for the assessment. 1 3 On 23 May 2008 Mr Petrovich, the Plaintiff's solicitor, wrote to the Registrar of the Commission, applying for Dr Breit to reconsider his assessment and either rescind, alter or amend the decision previously made by him. The letter contained a detailed criticism by Mr Petrovich of a number of aspects of Dr Breit's assessment. 4 On 8 July 2008, Dr Breit wrote to the Commission in the following terms.- "I am in receipt of a request for reconsideration of a MAC issued on 7 May 2008. I do not consider it appropriate to make any amendments." 5 Thereafter the Commission issued on 18 July 2008 a Certificate of Determination in the following terms:- "The Commission orders - 1 That the Applicant suffers 0% percent permanent impairment resulting from the injury on 3 April 2007 2 That there be no order as to costs. Brief statement of reasons 3 This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issues under part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 6 By Summons filed on 20 October 2008 the Plaintiff seeks:- 1. An order in the nature of certiorari setting aside the decision of Approved Medical Specialist, Dr Robert Breit ("the AMS") in WCC 1447/08 dated 8 July 2008 on the basis that the decision was vitiated by error and of no effect 2 An order in the nature of mandamus, or alternatively, an order pursuant to s65 of the Supreme Court Act 1970 (NSW) that the AMS exercise his power pursuant to s378 according to law 7 In the Summons the Plaintiff particularised her complaint supporting the first of the prayers as -

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1. A failure to comply with the requirement in the Registrar's Guideline - Requests for Reconsiderations under ss329(1A), 350(3) and 378 of the Workplace Injury Management and Workers Compensation Act 1998 to give brief reasons why the application was declined; and
2. The notification given by the AMS on 8 July 2008 did not comply with the duty incumbent upon him to give adequate reasons for his decision and thereby the Plaintiff was denied procedural fairness. 8 In support of these complaints, it was submitted on the Plaintiffs behalf: - The statement that Dr Breit did not regard it as "appropriate" - a term the Plaintiff's counsel characterised as "nebulous or impenetrable" - to make any amendments does not amount to adequate reasons; A number of decisions although not directed specifically to s378, lead to the conclusion that reasons, sufficient to provide an understanding of why the application for reconsideration was refused, were required. 9 Consideration of the Plaintiff's complaint requires attention to some of the terms of the Act. Sections 321-323 provide for a medical dispute to be referred for assessment; for the Registrar to give the parties notice of referral, for the assessment of the degree of permanent impairment of injured worker to be made in accordance with WorkCover Guidelines as in force at the time, for certain impairments to be assessed together and, for deductions on account of previous injury or pre-existing conditions to be made in some circumstances. Section 324 sets out some powers of the specialist assessing a dispute and consequences of a worker refusing to co-operate. Those powers include requiring a worker to submit herself to examination by the specialist Section 325 provides that a specialist to whom a dispute is referred is to give a Medical Assessment Certificate. Subsections (2) and (3) of that section provide:- (2) A medical assessment certificate is to be in a form approved by the Registrar and is to: -3- (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 (c) set out the approved medical specialist's reasons for that assessment, and (d) set out the facts on which that assessment is based. (3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error. 10 Section 326 provides that an assessment certified in a Medical Assessment Certificate is conclusively presumed to be correct as to certain matters including the degree of permanent impairment of a worker. Other relevant provisions of the Act include the following:- s327(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. (2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court of the Commission. (3) The grounds for appeal under this section are any of the following grounds:-

(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment. (b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment), (c) the assessment was made on the basis of incorrect criteria,

-4- (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the Registrar, the appeal is not to proceed unless the Registrar is satisfied that, on the fact of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subs(3) has been made out. (5) If the appeal is on a ground referred to in subs(3){c) or (d) the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal. (6) The Registrar may refer a medical assessment for further assessment or reconsideration under s329 as an alternative to an appeal against the assessment. (8) s345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section. s328(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. s329(1)A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by: (a) the Registrar as an alternative to an appeal against the assessment as provide by s327, or (b) (2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency. s331 Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the WorkCover Guidelines relating to the procedures for the -5- referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments. s350{1 )Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review. (3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission. s376(1)The Authority may issue guidelines with respect to the following: (a) the assessment of the degree of permanent impairment of injured worker as a result of an injury, (a1) (c) such other matters as a provision of the Workers Compensation Acts provides may be the subject of WorkCover Guidelines. (2) The Minister may issue guidelines with respect to the procedure for assessment under part 7 (Medical assessment). s378(1)The Registrar, an approved medical specialist or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar, the approved medical specialist or the Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given. (2) Without limiting subs(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. (3) The Registrar, an approved medical specialist or an Appeal Panel must reconsider any matter referred to it for reconsideration not later than 2 months after the referral is made. -6- (4) An altered or amended decision is taken to be the decision of the Registrar, approved medical specialist or Appeal Panel. (5) Nothing in this section affects any other power under this Act or the 1987 Act to review or amend a decision. (6) In this section, decision includes an assessment or further assessment by an approved medical specialist or an Appeal Panel. 11 Mention should also be made of the fact that a number of sections of the Act in addition to s325, set out above, expressly require the provision of reasons. s57(2) provides that a worker's entitlement to weekly payments does not cease until an insurer has given the worker written notice to that effect, together with a statement of the reasons for the entitlement ceasing and the action that the insurer considers the worker must take to be entitled to the resumption of weekly payments. Under s74, an insurer disputing liability must provided "a statement of the reason the insurer disputes liability and of the issues relevant to the decision". s294 provides that if a dispute is determined by the Commission, the Commission must issue a certificate as to its determination and attach thereto a certificate setting out the Commission's reasons for the determination. s351 provides that a question of law arising in proceedings before the Commission constituted by an Arbitrator may, with the leave of the President, be referred by the Arbitrator for the opinion of the Commission constituted by the President and that if the President refuses to grant leave for the referral, the President must state his or her reasons in writing to the parties. s352 provides that a party to a dispute may with leave of the Commission constituted by a Presidential member appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator and if the Commission refuses to grant leave to appeal it must state its reasons for the refusal in writing to the parties. 12 So far as a word search of the Act reveals, these are the only sections that expressly require the giving of reasons.

-7- 13 A number of the sections to which I have referred refer to Guidelines and, given the terms in which those sections, e.g. s331 are expressed, the Guidelines, although subsidiary to the Act, may provide an indication in some areas of how the Act in fact operates. However, although I have considered them, I find them of no assistance in resolution of the matter before me. 14 It is clear that there are significant differences between the terms of s327 and s378. Under s327 a party may appeal. The appeal must be only on one or more of four grounds and is not to proceed unless the registrar is first satisfied (to a degree I need not presently explore - see Riverina Wines Pty Limited v The Registrar of the Workers Compensation Commission of NSW & Ors [2007] NSWCA 149) that at least one of the grounds has been made out. Except in the case of what I may refer to as fresh evidence, the appeal must be made within 28 days unless the registrar is satisfied that special circumstances justify an increase in that time. By reason of s 327(8) and its reference to s345 of the Legal Profession Act, no lawyer can provide legal services in connection with the claim unless there is belief, on the basis of provable facts and a reasonably arguable view of the law, that there are reasonable prospects of success. 15 At least in its terms, s378 is radically different. It does not give a right to a party. Subsection (1) is expressed merely in terms of empowering an approved medical specialist or one of the official persons or bodies named to reconsider and vary an earlier decision. Furthermore, s378 imposes no limits on the bases on which reconsideration may occur, or on the time when a request for reconsideration may be made. There is no provision similar to s327(8) although the terms of s345 itself do at least much of the work covered by the combination of sections. 16 However, if a matter is referred for reconsideration, subs(3) makes it clear that reconsideration must occur. Who may refer? Unless compelled to do 13 so, one would not readily reach the conclusion that parties had an unlimited right to force reconsideration and in any event the expression "referred to it for reconsideration" is not an expression particularly apt to cover a request or demand by a party. 17 Sections 327(6) and 329 do however provide for reference for (re)assessment, such reference to be either by the Registrar as an alternative to an appeal or by a court or the Commission and only by those bodies. Section 329(1) does refer to "assessment in accordance with this Part" and s378 is contained in another Part of the Act. However if, as I prefer, the reference "in accordance with this Part" is directed to the nature of the assessment, the words just quoted permit s329 to fit happily with s378. No party has a right to reconsideration but, providing a reference is made by the Registrar or one of the bodies specified, reconsideration must occur. 18 Section 378(2) of course makes it clear that an approved medical specialist or the other persons mentioned may, on their own initiative, correct an obvious error but I see nothing in this fact to lead to the conclusion that, except as a consequence of a reference, reconsideration must occur. 19 In circumstances where reconsideration must occur, of necessity party's rights are liable to be affected. And if, as I believe, any reassessment is to be "in accordance with this Part", i.e. Part 7 of Chapter 7 that deals with Medical Assessments, there is no obvious reason why the incidents of an original assessment should not be appropriate. 20 In the case of original assessments, s325(2) requires a statement of reasons. In the case of appeal under s327, there is no similar provision in the Act and the Guidelines for the procedure on an appeal do not refer to the topic. However, in Campbelltown City Council v Vegan [2006] NSWCA 484 it was held that the statutory context and nature of the functions imposed on the Appeal Panel meant reasons were required.

-9- The members of the Court relied on, inter alia, the fact that the original assessor was required to give reasons and that the fair operation of the provisions for further assessment would be hampered if no reasons were required. Both of these factors apply to the case of reconsideration. It would be illogical in the extreme to require reasons in the case of an original assessment, and by the Appeal Panel but not in the case of reconsideration. 21 Counsel for the Defendant sought to distinguish that case upon the ground that an assessor's reconsideration of his own decision was of an administrative rather than judicial nature. It sufficeth to say that I am unpersuaded by that submission. Any reconsideration is liable to affect rights just as much as an original assessment and the basic criteria by which assessment is made are the same. 22 Remarks of the Court in Riverina Wines Pty Limited v The Registrar of the Workers Compensation Commission of NSW & Ors [2007] NSWCA 149 tend, albeit weakly, to confirm that view. In that case Court of Appeal had to consider a case where the Registrar made a decision under s329 of the Act to refer an Application seeking to appeal against a Medical Assessment Certificate. The Registrar had given no reasons for this decision. The Court held that he was under no obligation to do so, adverting to, and I think, relying on the fact that, although there was a power to reconsider under s378, there was not provision of any right of appeal from such a decision and that the Registrar's decision under consideration did not involve a final determination of rights. The Court expressly left open the question whether reasons might be required in a case where the Registrar's decision prevented a case going forward and thus had the potential to finally determine rights albeit the terms in which they did so, argue for the view at which I have arrived. 23 Counsel also referred me to Altos v Registrar of the Workers Compensation Commission [2008] NSWSC 148 at [29] et seq, where Malpass AsJ, while saying that what s378 was intended to cover was best

• io- left to another day, observed that as the Act contained an earlier provision for appeal from a decision of an approved medical specialist, it could be expected that s378 was not intended to cover the same territory. His Honour also remarked that the concept of "reconsideration" involved a further look at a matter that had been dealt with rather than looking at fresh matters and drew attention to the dichotomy between the expression "obvious error" in s378 and "demonstrable error" in s328. I do not find his Honour's remarks as of assistance in the circumstances here. I find nothing in any of the sections of the Act to which I have referred to indicate that the same circumstances may not give rise to grounds of appeal and form a basis for reconsideration. I also see no basis for concluding that reconsideration under s378 is intended for only obvious errors or errors that fall close to being within that description. 24 Reference was also made to the decision of Comensoli v Department of Juvenile Justice [2006] NSWWCCPD 138 wherein there appear a list of factors relevant to the discretionary power of the Commission to reconsider a decision. Again I do not find the case of assistance. 25 There were a number of other matters raised during argument. Counsel for the Defendant in this Court asserted that, according to his instructions, his client had had no notice of the application for reconsideration. Counsel for the Plaintiff said that she did not know. Clearly, any reconsideration such as that the Plaintiff had sought and which resulted in a finding adverse to the Defendant would be liable to be set aside on the ground of a denial of natural justice but, particularly as there is no common ground at the factual level, I need not pursue this issue further beyond noting that a Registrar's Guideline concerning requests for reconsideration under s378 published on 22 October 2007 lay down that an application for reconsideration should be served, together with a notification that the recipients has 21 days in which to reply. It was also suggested that, as a matter of discretion, prerogative relief should not be granted. Subject to one matter, I confess I did not understand the argument why not. Given the conclusion at which I have arrived on the substantive issues, the

• n - granting of relief should enable the Plaintiff to have her application for reconsideration dealt with properly and with sufficient transparency to enable her to see if the assessor errs. 26 The one reservation to which I referred arises out of the Defendant's assertion that it was not served with the request for reconsideration. If that were so, then there is much to be said for the view that the Registrar's decision to refer the matter for reconsideration was made in circumstances where the Defendant was denied natural justice. As, if that occurred it was the fault of the Plaintiff, it would provide and justification for not giving the Plaintiff the orders that he seeks. However, if the Defendant wanted to rely on such a matter it should have been the subject of evidence and it was not. 27 I should say that I have also referred to the Second Reading Speech when s378 was introduced in 2006 into the Act and amendments made to s327. There is nothing in the speech that argues against the decision at which I have arrived and, indeed parts of it tend to support my conclusion, e.g. "... A number of measures contained in the bill are aimed at streamlining appeal and review procedures in the commission. ... The new measures will provide alternatives to appeals in minor matters... These measures clarify the Registrar's existing power to decline to accept a medical appeal where the Registrar is not satisfied that a ground of appeal is made out. They also broaden the Registrar's power to refer such appeals back to the approved medical specialist for further assessment, as an alternative to appeal... ... To lessen the need for formal appeal or review and to expedite resolution of matters, the Registrar, approved medical specialists and medical appeal panel are each given an additional power to reconsider their decisions provided that such reconsideration takes place within 2 months of a referral. Such a reconsideration power will allow, for example, an approved medical specialist to reconsider his or her decision, taking into account documentation that it was available at the time but was inadvertently overlooked or was not referred on by the Registrar." 28 However, I have not found it necessary to rely on the speech which, I may add, may not be entirely accurate as an account of the amendments. 29 The conclusion at which I have arrived makes it unnecessary to consider the other main thrust of the argument on the Plaintiff, viz that a failure to follow the Registrar's Guideline - Requests for Reconsiderations under ss329(1A), 350(3) and 378 of the Workplace Injury Management and Workers Compensation Act 1998 entitled the Plaintiff to relief.

30 No attention was given by the parties during the hearing to the precise form of orders required or to the topic of costs. Accordingly, while indicating the orders that seem to me appropriate, given that subsequent to Dr Breit's assessments certificates have been issued by the Commission, I will afford the parties an opportunity of considering the orders I propose before actually making them. 31 Accordingly, the orders I propose are:

1, Set aside the decision of Approved Medical Specialist, Dr Robert Breit ("the AMS") in WCC 1447/08 dated 8 July 2008.

2. Set aside the Certificate of Determination of the Workers Compensation Commission in the matter of Christine Borg v Nutrimetrics Australia Pty Ltd, dated 18 July 2008.

3. Order that Dr Robert Breit, in the capacity of an Approved Medical Specialist, reconsider the assessment of the Plaintiff made by him on or about 7 May 2008 in accordance with law and with these reasons.

4. Order that the Defendant pay the Plaintiff's costs of these proceedings.

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