Collins v Dux Manufacturing Ltd

Background

1. On 22 August 2017, the plaintiff received a work-related psychological injury. She made a claim for lump sum compensation for permanent impairment resulting from the injury. She relied on a medical expert opinion of Dr R Rastogi who assessed her as having 19% whole person impairment (WPI) resulting from the psychological injury.
2. The insurer relied on a medical expert opinion of Dr Synnott as expressed in his report dated 11 November 2019. Dr Synnott assessed the plaintiff as having 5% WPI.
3. The medical dispute in respect of the degree of permanent impairment was referred by the Registrar of the Commission to Professor Glozier, an AMS in relation to psychiatric/psychological disorder.

The statutory scheme

1. I shall briefly outline the relevant provisions of the statutory scheme. For a worker to receive compensation under s 9(1) of the Workers Compensation Act 1987 (NSW), the worker must show an injury which is relevantly defined in s 4 as "personal injury arising out of or in the course of employment".
2. No compensation is payable under the Workers Compensation Act pursuant to s 9A(1) in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
3. 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, an Appeal Panel. 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.
4. "Approved Medical Specialists" are appointed under the WIM Act to deal with medical disputes, which are defined in s 319 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."
5. Section 325 relates to the medical assessment certificate ("MAC"). It reads: "(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. …"
6. Appeals against medical assessments are governed by ss 327 and 328 of the WIM Act.
7. Section 327 of the WIM Act grants parties to a medical dispute (as defined in s 319 of the WIM Act) limited rights of appeal against a medical assessment: "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 - (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (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. …"
8. An appeal may be made only in respect of a matter that is identified as appealable, and on the grounds specified in that section. Here, the plaintiff relied upon s 327(3)(c) and (d), namely that the assessment was made on the basis of incorrect criteria and/or the medical assessment certificate contains a demonstrable error. Matters that are appealable are those as to which an MAC is conclusively presumed to be correct.
9. In the present case, the medical assessment was in relation to a psychological/psychiatric injury. I shall briefly set out the relevant guidelines relating to this type of injury.

The Psychiatric Impairment Rating Scale (PIRS)

1. Section 331 of the WIM Act required the Appeal Panel to apply the Guidelines in conducting its review. Section 331 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 Guidelines are set out in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016).
2. Clause 1.6 of the Guidelines provides "a basic summary of some key principles of the permanent impairment assessment." They include: "a. The assessment of the impairment involves a clinical assessment as they present on the day of assessment. … b. Assessors are required to exercise their clinical judgment in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions. …"
3. Clause 11.11 of the Guidelines sets out the Psychiatric Impairment Rating Scale (PIRS): "11.11 Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment: 1. Self care and personal hygiene (Table 11.1) 2. Social and recreational activities (Table 11.2) 3. Travel (Table 11.3) 4. Social functioning (relationships) (Table 11.4) 5. Concentration, persistence and pace (Table 11.5) 6. Employability (Table 11.6)."
4. Clause 11.12 of the Guidelines provides: "11.12 Impairment in each area is rated using class descriptors. Classes range from 1 to 5 in accordance with severity. 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."
5. By way of background, in Ferguson v State of New South Wales [2017] NSWSC 887 ("Ferguson"), Campbell J explained how the PIRS operates within the Guidelines at [14]: "It is necessary to set out the requirements of the Guides as to the evaluation of permanent impairment resulting from psychiatric injury. They are found in the Psychiatric Impairment Rating Scale (PIRS) which is applicable by virtue of Chapter 11 of the Guides. The requirements were summarised by the Appeal Panel in [22] to [24] of its reasons in the following terms: The Psychiatric Impairment Rating Scale ('PIRS') is established as the relevant rating indicia by virtue of Chapter 11 of the Guides in both the 09 and 16 Guides, which are the same. The PIRS sets out six categories of behaviour to be assessed, each being divided into five classes. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired by his injury, and the classes between are in an ascending order of impairment. The assessor is required to classify each category, and apply the resulting scores as set out in Chapter ll. Each class in the six categories has indicia attached, called 'descriptors.' Chapter 11.13 provides that: "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. 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." The indicia contained within the PIRS examples in Chapter 11 therefore are not intended to be exclusive, and are subject to the variabilities that accompany a person seeking psychiatric help, such as those matters mentioned - age, sex and cultural norms."

The decision of the AMS dated 10 March 2020

1. As to the PIRS ratings, the AMS assessed the following categories: PIRS Category Class Reason for Decision Self Care and Personal Hygiene 2 Although in general she is able to manage many of the daily activities of shopping, cooking and cleaning, she reported intermittent motivational problems and that over and above her physical limitations her husband and son have taken over some of these activities. The increased regular and harmful alcohol intake is also indicative of a mild impairment in Self-Care Social Functioning 2 She remains well-supported by her family and close friends although has lost contact with many of them and is socially withdrawn.

1. The AMS assessed 8% WPI in an MAC issued by the Commission on 10 March 2020.

The application to appeal the Medical Assessment Certificate to the Registrar

1. On 7 April 2020, the plaintiff lodged an application to appeal the MAC. As previously stated, the plaintiff relied on the grounds that, firstly, the assessment was made on the basis of incorrect criteria under s 327(3)(c) of the WIM Act; and secondly, that the MAC contained a demonstrable error under s 327(3)(d) of the WIM Act.
2. The grounds of appeal before the Registrar were: 1. The AMS's explanation and reasoning as to the appropriate class in respect of social functioning ought to have resulted in the assigning of class 3 representing moderate impairment rather than class 2 representing mild impairment. It was submitted that the AMS's reasoning disclosed error, because he expressed disagreement with the assessment by Dr Synnott who gave the plaintiff class 2 for social functioning but then proceeded to assign class 2 for that category ("the social functioning ground"). 2. The AMS erred because he failed to adjust the impairment rating for the effects of the treatment in accordance with clause 1.32 of the Guidelines ("the failure to include an adjustment for the effects of treatment ground"). 3. The AMS erred by assigning class 2 for self-care and personal hygiene in circumstances where the plaintiff is abusing alcohol ("the self-care and personal hygiene ground").
3. As to ground 2 of the appeal before the Registrar, clause 1.32 of the Guidelines states: "1.32 Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant's permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart."

The effect of consent of the insurer in this judicial review

1. The insurer, being the only active defendant and only contradictor, has conceded grounds 1 and 2 of the Summons with reference to the Court of Appeal decision in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 ("Ballas"), and consented to the relief sought in the summons. As previously stated, the two other defendants filed submitting appearances.
2. The parties have sought to file consent orders setting out the agreement, but drew the Court's attention to the principles set out in the judgment of Campbell J in Fraser v AAI Ltd (t/as GIO) [2020] NSWSC 1333 in respect of dealing with uncontested administrative law matters. Consequently, the registrar directed that the plaintiff file submissions in support of the orders sought.
3. It is my view that even where the active contradictor consents, it is still necessary for the Court to be satisfied that there was error, and to identify the error which vitiated the administrative decision under review: see also Mackey v CIC Allianz Australia Insurance Ltd [2015] NSWSC 505 (at [3]) per Beech-Jones J.

The decision of the Delegate dated 7 May 2020

1. At paragraph 4 of his decision, the Delegate correctly set out his role as "gatekeeper" pursuant to s 324(4) of the WIM Act. Under each ground of appeal, the Delegate set out the parties' submissions and referred to the decision of the AMS.
2. Under the first ground of appeal concerning social functioning, the Delegate stated at paragraph 15: "15. I do not accept that there is a 'clear inconsistency' in the MAC. The findings made by the AMS, and his conclusions in respect of the appropriate PIRS category, were open on the evidence."
3. As to appeal ground 2, concerning the alleged failure to include an adjustment for the effects of treatment, the Delegate stated at paragraphs 22 and 23: "22. The appellant suggests that there is an inconsistency between the AMS's diagnosis and his failure to make an allowance under clause 1.32 of the Guidelines. Firstly, the provision of a diagnosis is a step within the assessment process, and plays an important role within the assessment of psychiatric injuries (see clause 11.4 of the Guidelines). That does not mean that a diagnosis of a condition "in partial remission" constitutes a finding consistent with the criteria outlined in clause 1.32 of the Guidelines. The provision of a diagnosis and consideration of the treatment effect are separate criteria and should be considered separately. Secondly, I do not accept that the words "in partial remission" relative to a diagnosis constitute a finding of "substantial or total elimination of the claimant's permanent impairment". The two are not inconsistent or at odds. 23. The appellant further submits that the AMS has not provided adequate reasons. I do not accept this submission. As discussed above, the MAC must be read as a whole. The MAC is thorough and the AMS has considered the appellant's diagnosis at length. Reasons must follow a logical path (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43). The AMS's reasons are logical and clear."
4. Finally, as to the third ground of appeal concerning self-care and personal hygiene, the Delegate stated at paragraphs 32 and 34: "32. The AMS has considered the relevant criteria in reaching his conclusion in this category. He highlights Ms Collins' ability to manage many daily activities, including shopping, cooking and cleaning. He discusses Ms Collins' use of alcohol throughout the MAC, and clearly considers it in his assessment under this category. He was clearly of the view that Ms Collins' issues with alcohol were a relevant consideration (as is, apparently, the appellant), and determined that due to her ability to function in combination with her alcohol abuse, she fell into class 2. This finding was open on the evidence and the AMS's reasons are clear and consistent. … 34. This ground of appeal is in essence a disagreement with the outcome rather than an identification of appealable error. A difference of opinion is not a demonstrable error: Merza v Registrar of the Workers Compensation Commission and Anor [2006] NSWSC 939 at [51]."

The plaintiff's submissions

1. In this judicial review, it was submitted that the Registrar (at paragraph 15) exceeded his jurisdiction by determining the correctness of the submission by the plaintiff. In relation to ground 1 concerning social functioning, the Delegate exceeded his jurisdiction because that task was for the Appeal Panel to determine, having applied their medical expertise to the issue of whether the AMS had correctly assigned class 2 and what he may have meant when he was analysing the opinion of Dr Synnott. These are matters that require medical expertise and training in the guidelines, which an Appeal Panel has. An Appeal Panel comprises two AMS and a legally-qualified Arbitrator. The Delegate may be any member of staff of the Commission, and is not required to have any qualifications at all. Whether or not a particular delegate has legal or other qualifications is not to the point in construing the jurisdiction conferred by the statute. AMS's are required to be medical practitioners, and are expected to apply clinical skill and judgement in carrying out their assessments.
2. In relation to appeal ground 2 concerning failure to include an adjustment for the effects of treatment, the Delegate made the same error at paragraphs 22 - 23 of his reasons. Again, he used language that was conclusory and determinative of the appeal, rather than looking to whether there was an arguable case of error.
3. Further, by his statement at paragraph 22 referred to above, the Delegate exceeded his jurisdiction because he made a final determination of the asserted error despite having no medical expertise and not having had any training in the application of the guidelines in the context of an assessment of the degree of permanent impairment as an AMS would have. Similarly, at paragraph 23 the delegate purported to make a determination of the very subject matter of the appeal.
4. The first defendant broadly agrees with these submissions.

Appeal ground 3

1. The plaintiff submitted that the same error infects the Delegate's decision at paragraph 32 and 34, for the same reasons as submitted in relation to grounds 1 and 2. The language used is that of determination, rather than consideration of whether the asserted error is one falling within the grounds available under s 327(3), as the plurality explained in Ballas at [70]-[72], and Emmett AJA emphasised in pellucid terms at [150].
2. The plaintiff submitted that the language used by the Delegate has the tone of a final determination and is precisely the same error identified by Bell P and Payne JA in Ballas at [70]-[72], which also concerned an application to the Registrar pursuant to s 327(3) of the WIM Act: "70. In both written and oral submissions, Senior Counsel for Ms Ballas contended that the Delegate misconstrued the "gatekeeper" nature of the task ascribed by s 327(4) to the Registrar. He submitted that the Delegate, rather than looking to whether the appeal grounds were capable of being made out, proceeded to determine the appeal. An analysis of the Delegate's language lends strong support to this submission. Thus phrases such as "I do not accept that …" (see [25] of the Delegate's decision extracted at [37] above) and "I am not satisfied that the AMS has made the assessment based on incorrect criteria or that there is a demonstrable error on the face of the MAC" (see [29] of the Delegate's decision) both have the tone of final determination. 71. Certainly, the Registrar did not express herself in terms of whether Ms Ballas' proposed grounds of appeal were capable of, in the sense of having the potential to be, made out. Dr Allars sought to counter this argument by stating that it followed from the conclusory language in which the Registrar expressed herself that she must have necessarily formed the opinion that the proposed grounds were not capable of being made out. In other words, a conclusion that something is not made out must carry with it an implicit conclusion that it is not capable of being made out. 72. The fallacy with this submission is that it reasons backwards from the non-expert conclusion that the Delegate was not authorised (or qualified) to reach. An assessment of arguability, to adopt and adapt the language of Gleeson JA in Vannini, is a very different exercise, as the Registrar or his or her Delegate is required to make that assessment "on the face of the application, and in any submissions made to the Registrar": at [19]. It involves an assessment and satisfaction that an argument to support the nominated grounds is manifest in those two documents. If it is, that argument passes the gatekeeper and goes to the expert Appeal Panel. This process does not involve the Delegate in assessing the correctness of the argument but simply that what has been put forward is arguable."

Conclusion

1. In relation to appeal ground 1 concerning social functioning, the Delegate stated at paragraph 15, "I do not accept that there is a 'clear inconsistency' in the MAC." In addressing appeal ground 2 concerning failure to include adjustment for the effects of treatment, at paragraph 22 the Delegate stated, "I do not accept that the words 'in partial remission' relative to a diagnosis constitute a finding of 'substantial or total elimination of the claimant's permanent impairment'. The two are not inconsistent or at odds." At paragraph 23 the Delegate continued, "The AMS's reasons are logical and clear." The insurer has conceded that the Delegate erred in his determination in relation to these grounds.
2. As to appeal ground 3 concerning self-care and personal hygiene, at paragraph 32 the Registrar concluded, "[The AMS] was clearly of the view that Ms Collins' issues with alcohol were a relevant consideration (as is, apparently, the appellant), and determined that due to her ability to function in combination with her alcohol abuse, she fell into class 2. This finding was open on the evidence and the AMS's reasons are clear and consistent." The Delegate concluded his comments on this ground at paragraph 34, where he stated, "This ground of appeal is in essence a disagreement with the outcome rather than an identification of appealable error. A difference of opinion is not a demonstrable error." The insurer has not conceded that the Delegate erred in relation to his reasoning on this ground.
3. It is my view that, as in Ballas, the Delegate in these proceedings did not express himself in terms of whether the plaintiff's grounds of appeal were capable of, in the sense of having the potential to be, made out. In each of paragraphs 15, 22, 23, 32 and 34 of his decision, the Delegate has overstepped this statutory role as gatekeeper by purporting to finally determining the grounds of appeal. These are jurisdictional errors that cannot be remedied by his conclusion at paragraph 37 which repeated the proper legal test as set out at paragraphs 7 to 9 of his decision.
4. As the Delegate has exceeded his statutory task in excess of his jurisdiction under the WIM Act, his decision dated 7 May 2020 is quashed. The Certificate of Determination issued by the Workers Compensation Commission on 11 June 2020 giving effect to that decision is set aside. The matter is remitted to the Workers Compensation Commission to be dealt with according to law.

Costs

1. The appropriate order is that the parties are to pay their own costs. If the parties seek a different costs order, they have liberty to make submissions within 14 days from the date of this judgment.

Orders

1. The Court orders that: 1. The decision of the Registrar of the Workers Compensation Commission dated 7 May 2020 is quashed. 2. The Certificate of Determination issued by the Workers Compensation Commission on 11 June 2020 giving effect to the decision of the Registrar is set aside. 3. The matter is remitted to the Workers Compensation Commission to be dealt with according to law. 4. The parties are to pay their own costs. If the parties seek a different costs order, they have liberty to make submissions within 14 days from the date of this judgment.

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: 08 March 2021