Chalkias v State of New South Wales

Supreme Court of NSW|2018-10-16|Before: Adamson J, Leeming JA, White JA, Beazley P, Meagher JA

Introduction

By summons filed on 26 April 2018, Tom Chalkias (the plaintiff) seeks to have the decision of the Medical Appeal Panel (the Panel) assessing his whole person impairment (WPI) at 7% (the Panel's decision) set aside on the basis of error of law on the face of the record or jurisdictional error. The summons was filed within time as it was filed within three months of the Panel's decision: Uniform Civil Procedure Rules 2005, r 59.10.
This Court's jurisdiction to grant such relief arises pursuant to s 69 of the Supreme Court Act 1970 (NSW). It is not necessary to decide whether either Dr Takyar or the Panel is a "tribunal" within the meaning of s 69(3) and (4) of the Supreme Court Act as their reasons form part of the record since the statute requires the reasons to be set out in the certificate: s 325(2)(c) of the WIM Act; Pham v NRMA Ltd [2014] NSWCA 22; (2014) 66 MVR 152 at [27] (Leeming JA, Tobias AJA agreeing); Mulcahy v NRMA Insurance Ltd [2018] NSWCA 189 at [14] (White JA, Beazley P and Meagher JA agreeing).
The State of New South Wales (the first defendant) is the plaintiff's employer and opposes the relief sought. The Panel (the second defendant) has filed a submitting appearance.

The facts

The plaintiff made a claim for compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (the WC Act) on the basis of an injury said to have occurred on 27 November 2012. He obtained a report from Dr Smith, psychiatrist, dated 23 June 2015 who assessed his WPI as 24%. A WPI based on a psychiatric impairment has a number of categories, by reference to each of which a worker is required to be assessed. Dr Smith assessed the plaintiff as grade 3 in the self-care and personal hygiene scale.
It was common ground that on 9 October 2015 Employers Mutual Limited (EML), the first defendant's agent and workers compensation insurer, issued a notice under s 74 of the WIM Act disputing primary psychological injury. On 20 December 2016 the plaintiff made a claim, relevantly, for lump sum compensation, which had the effect of making the deemed date of injury 20 December 2016. The first defendant arranged for the plaintiff to be assessed by Dr Prior, who, in a report dated 15 May 2017, assessed his WPI at 8%. Dr Prior assessed the plaintiff's score for the self care and personal hygiene category as grade 2.
On 31 May 2017 the plaintiff lodged an Application to Resolve a Dispute with the Workers Compensation Commission (the Commission) in the approved form. He requested that the degree of his permanent impairment be referred for medical assessment by an Approved Medical Specialist pursuant to s 293 of the Workplace Injury Management Act 1998 (NSW) (the WIM Act).
On 20 June 2017 EML gave notice to the plaintiff pursuant to s 74 of the WIM Act that the assessment of his WPI did not reach the threshold of 15% required by s 65A(3) of the WC Act and he was therefore not entitled to lump sum compensation.
The Commission appointed Dr Takyar to be the plaintiff's Approved Medical Specialist. Dr Takyar issued a certificate on 10 August 2017 in which he assessed the plaintiff's WPI at 15% (the Medical Assessment). In his reasons, Dr Takyar included Table 11.8 of the PIRS [Psychiatric Impairment Rating Scale] Rating Form. Of present relevance he said: PIRS Category Class Reasons for Decision Self Care and personal hygiene 3 Mr Chalkias informed me that he typically showers of his own accord four days per week when he goes to work. He would require more regular support to shower more regularly than this. He does not generally cook his own meals and relies on takeaway or eats at his mother's. He may appear unkempt at times.

On 4 September 2017 the first defendant applied to the Registrar of the Commission to appeal against the Medical Assessment on the basis that the assessment was made on the basis of incorrect criteria (s 327(3)(c) of the WIM Act) and that the certificate contained a demonstrable error (s 327(3)(d) of the WIM Act).
On 2 February 2018 the Panel assessed the plaintiff's WPI at 7%. According to the Panel's reasons, the Registrar of the Commission was satisfied that at least one of the grounds of appeal was made out in accordance with s 327(4) of the WIM Act and the Registrar referred the appeal to the Panel for review of the Medical Assessment. The Panel's reasons contain the passage from the Medical Assessor's reasons extracted above and noted that the first defendant alleged error, relevantly, in respect of Table 11.1. "self care and personal hygiene". The Panel's reasons said, in part, as follows: "DECISION MADE AFTER PRELIMINARY REVIEW WITHOUT HOLDING AN ASSESSMENT HEARING 19. The parties agreed to the determination of the matter without an Assessment Hearing. SUBMISSIONS 20. Both parties made written submissions, the Appellant dated, 1 September 2017 and the Respondent dated 29 September 2017. 21. The appellant submitted that, in assigning class 3 to 'self-care and personal hygiene', class 2 to 'travel' and class 3 to 'concentration, persistence and pace,' the AMS fell into demonstrable error and had applied incorrect criteria. . . . 22. The respondent submitted that the AMS has exercised clinical judgement correctly in the light of the evidence and his mental state examination. . . . FINDINGS AND REASONS 23. The procedures on appeal are contained in section 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. . . . 25. Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the AMS certificate is binding. 26. In this matter the Registrar has determined that he is satisfied that at least one of the grounds of appeal under section 327(3) is made out. 27. It is convenient to consider the respective submissions with respect to each of these areas. Self-care and Personal Hygiene 28. The appellant noted that the Evaluation Guidelines (Table 11.1) relevantly provide: Class 2 Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food. Class 3 Moderate impairment: can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2 to 3 times per week to ensure minimum level of hygiene and nutrition. 29. The appellant submitted that the evidence accepted by the AMS did not support the assessment of class 3. 30. The respondent noted that the activities referred to in the Evaluation Guidelines are 'examples only' and that the assessing psychiatrist 'should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms.' The respondent's submissions noted that the respondent stated that he did not feel like going out socially, he tried to visit his mother regularly for dinner and that he did not cook much at all and 'found it difficult to be motivated to cook anything'. The respondent reported episodes of binge eating and reliance on junk food with a consequential increase in weight. 31. The respondent's submissions noted that, in contrast to earlier behaviour, the respondent now did not care about his appearance, did not have the motivation or energy to dress up or to shave on a daily basis and that there were days when he did not shower with some days when he remained in his pyjamas all day. 32. The respondent submitted that although residing alone, he would have been prompted by others to shower and wear clean clothes if he had had a companion. It was submitted that the respondent had become a recluse, except for work commitments, that he saw his mother regularly for dinner but 'typically he only eats one meal per day on most days, but occasionally he has a second meal (takeaway) at night.' 33. Other evidence was referred to in support of the submission that the AMS had correctly assigned class 3 to this area of function. 34. The Panel accepts the submissions of the appellant with regard to this area of function. 35. In the opinion of the Panel the reasons for decision provided by the AMS do not support a conclusion that the respondent suffers moderate impairment warranting a Class 3 evaluation. The evidence accepted by the AMS establishes that the respondent lives independently, works 40 hours per week and showers when attending work, prepares his meals or makes use of takeaway meals. 36. The conclusion from the evidence is that respondent is able to live independently and look after himself sufficiently to function in his employment as a police officer. He misses meals from time to time and relies on takeaway food. He does not require a family member or community nurse to visit 2 to 3 times a week to ensure a minimum level of hygiene and nutrition. 37. The Panel accepts that the descriptors provided in the Evaluation Guidelines are examples only but the criteria described by the AMS do not fit within Class 3 but rather reflect a mild impairment. 38. In assigning Class 3 regard to this area of function the AMS has fallen into error demonstrated on the face of the MAC by comparison of the findings of the AMS with the descriptors in the Evaluation Guidelines. 39. Accordingly it is necessary to set aside the MAC and for the Panel to assess this area of function. 40. The Panel accepts that the respondent does not shower every day and appears unkempt from time to time. In his 'statement of current psychological condition' dated 29 May 2017 the respondent said: 'After suffering from depression and anxiety, I felt less control over my weight and I felt that it increased significantly. As a result I placed myself on a strict diet. For the most part I only eat meat and vegetables. My snack foods are almonds and protein bars. The diet I follow is the 'paleo' diet.' 41. The respondent noted that, despite his diet, his weight has increased due to binge eating on junk food but he said 'I been able to reverse the trend at this stage'. 42. In that statement respondent says: 'Now I don't really care about my appearance. I don't have the energy or motivation to dress up. I don't have the motivation to shave on a daily basis. There are days in which I may not shower, particularly if I am not leaving the house. There are regular days where I will just stay in my pyjamas all day. I haven't purchased many new items of clothing and am not motivated all to update my wardrobe. I prefer to laze around in the clothes that I already have.' 43. The Panel accepts that the respondent lives alone, misses some meals, maintains a sufficient level of hygiene and standard of presentation to function as a police officer on restricted duties and has no need of supervision to ensure a reasonable level of hygiene and nutrition. 44. The conclusion is that the respondent has a mild impairment with respect to this area of function and is evaluated as Class 2."

WC Act

Section 65A(3) of the WC Act provides that no compensation is payable under Division 4 of Part 3 (compensation for non-economic loss) in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.

The WIM Act

Part 7 of the WIM Act is entitled "Medical Assessment" and provides for a "medical dispute" to be referred to an approved medical specialist or specialists. The term "medical dispute" is defined by s 319 to include a dispute about a worker's degree of permanent impairment as a result of an injury. Section 320 provides for the appointment of approved medical specialists. A party to the dispute is entitled to request the Commission or the Registrar to refer a dispute to an approved medical assessor for assessment: s 321. Section 322 provides that an assessment of the degree of permanent impairment is to be made in accordance with the Guidelines in force at the time the assessment is made (as to which, see below). Only one assessment may be made of the degree of permanent impairment of an injured worker: s 322A(1). Section 324 confers certain powers on approved medical assessors on assessment.
Section 325 relevantly provides: "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 (c) set out the approved medical specialist's reasons for that assessment, and (d) set out the facts on which that assessment is based. . . ."
Section 326(1) provides that an assessment certified in a certificate under Part 7 is presumed to be correct as to certain matters, including the degree of permanent impairment of the worker as a result of an injury.
Section 327 relevantly provides: "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. (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 or the Commission. (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. (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 face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out. (5) If the appeal is on a ground referred to in subsection (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. . . ."
The Minister for Police referred to the clause which became s 327(3)(c) in the Second Reading Speech to the Bill in the following terms: "It should also be noted that the appeal on the grounds of incorrect criteria does not allow appeals to challenge or overturn the guidelines. It is designed to cover circumstances where the guides themselves have been incorrectly applied." (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2001 at 14772)
In Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Wood CJ at CL referred to this passage and said, at [59]: "Although the highlighted passage is somewhat oblique, it tends to suggest that the 'criteria' upon which assessment is to be based are to be found in any relevant guides, including guides issued by WorkCover which have been issued for the assessment of impairment and that appeal lies where they have been incorrectly applied."
Basten JA also considered that the "incorrect criteria" ground included the tests set out in the Guidelines, where applicable: Campbelltown City Council v Vegan at [95].
In Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 Hoeben J at [39] described "demonstrable error" as "an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment."
Section 328 provides for the procedure on appeal, relevantly as follows: "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 but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can 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 by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party 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. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel."

The Guidelines

The State Insurance Regulatory Authority (SIRA) issued the 4th edition of the NSW workers compensation guidelines for the evaluation of permanent impairment (the Guidelines) for assessing permanent impairment arising from an injury within the context of workers' compensation. It was common ground that this was the appropriate edition for present purposes. Chapter 11 of the Guidelines relevantly provided that the behavioural consequences of psychiatric disorder were to be assessed on six "scales" (also referred to as categories) each of which evaluates an area of functional impairment (cl 11.11).
Clause 11.12 of the Guidelines provides: "Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms."
"Self care and personal hygiene" is one such area, for which the relevant table is Table 11.1 (see below). Table 11.1 relevantly provides, in respect of this category: Class 2 Mild impairment able to live independently: looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food. Class 3 Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.

Consideration

Mr Dodd, who appeared for the plaintiff, submitted that the Panel had not determined that there was a relevant error before proceeding to review the assessment. He submitted, in the alternative, that it was not open to the Panel, in the circumstances of the present case, to find a demonstrable error or incorrect criteria in Dr Takyar's assessment. He contended, in reliance on what Campbell J said in Ferguson v State of New South Wales [2017] NSWSC 887 that the relevant test to be applied by the Panel was whether the Medical Assessment was "glaringly improbable" and that this threshold had not been reached. He submitted that the present case was indistinguishable from the circumstances addressed by Harrison AsJ in Parker v Select Civil Pty Ltd [2018] NSWSC 140 where her Honour found that a difference in opinion as to whether the plaintiff ought be categorised in Class 2 or Class 3 was insufficient to amount to a demonstrable error or incorrect criteria for the purposes of s 327(3) of the WIM Act.
Further, Mr Dodd submitted, in effect, that Dr Takyar's assessment ought not lightly be disturbed by the Medical Panel because Dr Takyar assessed the plaintiff, obtained a history and investigated the matter fully whereas the Panel made its assessment on the basis of the evidence before Dr Takyar.
Mr Dodd further contended that the Panel was wrong to conclude that the plaintiff could live independently as there was material before Dr Takyar and the Panel to indicate that the plaintiff stayed with this mother sometimes between Fridays and Sundays. This is not a matter which is within this Court's jurisdiction to review as it is a purely factual matter relating to evidence which was taken into account by Dr Takyar and the Panel. Accordingly, it is not necessary to address the submission further.
I reject the submission that the Panel's review is confined to cases where the Medical Assessment, or some aspect of it, is "glaringly improbable". The submission finds no support in the wording of the WIM Act, which requires only that an error be "demonstrable" or that there be "incorrect criteria". These expressions, which have been the subject of judicial consideration (see above), are to be understood in accordance with their plain meaning. It appears from Ferguson v State of New South Wales at [24] (Campbell J) that the Medical Panel in its reasons used the expression "glaringly improbable". It would be a misreading of Campbell J's reasons to conclude that his Honour intended to suggest that the expression formed any part of the test for error in the context of ss 327 or 328.
As referred to above, the first defendant appealed to the Panel against the Medical Assessment on two of the grounds listed in s 327(3): incorrect criteria and demonstrable error.
Section 327(4) of the WIM Act provides that, before the first defendant's appeal could proceed, the Registrar was required to be satisfied that (at least) one of the grounds for appeal existed. The Panel stated in its reasons that the Registrar was satisfied that at least one of the grounds of appeal existed ([26] of the Panel's reasons). Although the plaintiff sought to set aside the Panel's decision, he did not challenge the Registrar's exercise of power under s 374(4): cf. Campbelltown City Council v Vegan at [82] (Basten JA). As is apparent from the Panel's reasons, the "gateway provision" of s 327(4) was satisfied.
In [38] of its reasons, the Panel found that Dr Takyar had "fallen into error" when one compared his "findings" with "the descriptors in the Evaluation Guidelines". In substance the Panel was satisfied, as is apparent from its reasons, that Dr Takyar had made his assessment on the basis of incorrect criteria within the meaning of s 327(4)(c) of the WIM Act, since he had not applied the Guidelines correctly and that this amounted to a demonstrable error within the meaning of s 327(4)(d) of the WIM Act. The Panel expressly adopted the first defendant's submissions to this effect in its reasons which was sufficient to incorporate the submissions (which had been outlined earlier in the reasons) into the Panel's own reasons.
This finding of error indicated that the Panel did not misapprehend its jurisdiction. A decision-maker in the position of the Panel is required to set out "the actual path of reasoning" by which it arrived at its assessment of WPI: Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [48]; Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39. The reasons are to be understood as recording the steps that were actually taken to arrive at the result: Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 at [130] per Hayne J. The Panel's reasons demonstrate that it correctly apprehended and exercised its jurisdiction.
Further support for the proposition that the Panel correctly apprehended its jurisdiction can be found in its reasons for not reviewing the other two grounds of appeal, which concerned the categories with respect to "Travel" and "Concentration, Persistence and Pace". These reasons are extracted below: "[49] Noting that the respondent experiences an increase in symptoms with travel and the restrictions accepted by the AMS, the Panel accepts that it was open to the AMS to conclude that the respondent suffered mild impairment. A Class 2 assessment was open to the AMS on the evidence and was appropriate. The AMS has not based his opinion on incorrect criteria and there is no demonstrable error with respect to this area of function. . . . [54] The AMS has not based his opinion on incorrect criteria and there is no demonstrable error with respect to this area of function [Concentration, Persistence and Pace]."
These passages show that the Panel appreciated that it needed to be satisfied that Dr Takyar either based his opinion on incorrect criteria or that there was a demonstrable error before it could proceed to review the assessment.
Having been satisfied of the error relating to the grading with respect to self care and personal hygiene, which fell within two subparagraphs of s 327(4) of the WIM Act, the Panel was both entitled, and obliged, to review the assessment with respect to that item. That the Panel came to a different assessment on the self care and personal hygiene category does not convert its initial finding of error into a mere difference of opinion.
The Panel was limited in its review to the grounds of appeal: namely, incorrect criteria and demonstrable error: s 328(2). The Panel confirmed in its reasons that it had considered all of the material that was before the Medical Assessor and taken it into account: [10] of the Panel's reasons.
In the present case, the Panel considered that the Medical Assessor had not applied the criteria in the Guidelines correctly. Its finding of error was expressed in its reasons at [38]-[39]. The Panel considered, on the basis of the evidence before the Medical Assessor, that the plaintiff was able to live independently ([35]-[36] of the Panel's reasons). I reject the plaintiff's submission that the Panel failed to appreciate that the description of the grades in Table 11.1 included activities which were, as cl 11.12 of the Guidelines provided, were to be regarded as examples. Whether the plaintiff was able to live independently was a conclusion and not an activity. I do not discern any error of law or jurisdictional error in the Panel's assessment.
In its review, the Panel applied the criteria in the Guidelines to the plaintiff. It is of significance that the Panel did not consider a further examination of the plaintiff was required because "sufficient information was before the Panel to enable the appeal to be finalised" ([9] of the Panel's reasons). The Panel was entitled to review the Medical Assessor's grading of the plaintiff in the "self care and hygiene" category. On its review, it came to a different assessment and graded the plaintiff as Grade 2 in this category. This was, in my view, open to the Panel and authorised by the WIM Act.
The plaintiff has not made out his claim for relief since I am not persuaded that there was any error of law on the face of the record or a jurisdictional error in the Panel's assessment on appeal from the Medical Assessor.

Orders

For the reasons set out above, I make the following orders: 1. Summons dismissed. 2. Order the plaintiff to pay the first defendant's costs.

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: 17 October 2018

Workplace Injury Management Act 1998(NSW)

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