Cornett v Plateau View Aged Care Facility & Ors [2006] NSWSC 244 | Case summary

JUDGMENT 1 His Honour: The plaintiff suffered injury to her back and hand on 5 August 2004. At the time, she was an employee of the first defendant. 2 In March 2005, she filed an application in the Workers Compensation Commission (the Commission). It was in the approved form of an application to resolve a dispute. The injury description contained therein was of whole person impairment. It provided a percentage of nine per cent and the amount claimed was $11,250. 3 Under the heading "Reason for dispute", two matters were raised. One was that the insurer had not made a decision within one month of the degree of permanent impairment being fully ascertainable, or two months of being given all relevant particulars of the claim. The other was whether the injury has stabilised. The reason for dispute did not include a denial of liability by the insurer. 4 The application was supported by documentation (including correspondence and medical reports). There were two reports from Dr Peter Conrad. He was of the view that the plaintiff had a nine per cent whole person impairment. 5 The first defendant made a reply to the application in May 2005. It was supported by an assessment from Dr Assem. He was of the opinion that the whole person impairment related to the injury to the right middle finger and was at the most one per cent. The reply also informed that an offer of settlement had been conveyed in line with that assessment. 6 The arbitrator (J Conley) made a referral for assessment for the permanent impairment dispute. Agreement was reached as to an approved medical specialist (Dr Ross Mills). The referral form is spartan in content. The details of injury were "right middle finger, lumbar spine". It informed that the required assessments accorded precisely with the matters in dispute as expressed in Form 2 (which is the application). It also informed as to what material was to be sent to Dr Mills. This was expressed as follows:- All material contained in the application - the respondent did not seek to admit a reply. 7 The examination took place and on 1 August 2005, Dr Mills issued his medical assessment certificate. The certificate contains 11 paragraphs and concludes with Table 1. There were paragraph headings (including headings such as "General history …", "Clinical history …", "My answers to the following questions …" (paragraph 7) and "my brief comments …"). 8 The certificate described the details of the matters referred for assessment as being:- Dispute as to permanent impairment of right middle finger and lumbar spine. 9 The certificate provided little information as to what documentation was sent to Dr Mills. What it does reveal is that he had, inter alia, the two reports from Dr Conrad. Dr Mills made a zero percentage assessment of the whole person impairment. 10 The plaintiff then brought an appeal against the decision of Dr Mills. The prescribed form is an application which contains the curious description that it is an application for leave to appeal (the relevant statutory requirement reads "an appeal is to be made by application to the Registrar"). The application was founded on one ground only ("The medical assessment certificate contains a demonstrable error"). It was supported by written submissions (which were supplemented by further written submissions). 11 The entitlement to appeal is afforded by s327 of the Workplace Injury Management and Workers Compensation Act 1998 (the Act). The relevant provisions are as follows:- 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 (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, (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 it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists. 12 On 25 October 2005, a delegate of the Registrar (Wayne Wormald) purported to make a decision pursuant to s327(4) of the Act. The parties were provided with a written decision. The document (which is headed "Decision") set out material under the heading of "Reasons". Paragraph 5 of the document was as follows:- Accordingly, as it does not appear to the Registrar that at least one of the grounds of appeal exist, the appeal should not proceed and the matter is referred back to an Arbitrator for any outstanding issues to be resolved. 13 On 25 November 2005, the plaintiff filed a summons in this court. It seeks relief in the nature of judicial review. It is contended that there has been jurisdictional error or error of law on the face of the record. There was no issue that the scope for intervention was as expressed in Craig v South Australia (1995) 184 CLR 163. In Craig (at 179) it was said:- If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. 14 The hearing took place on 4 April 2006. The plaintiff and the first defendant were represented by counsel. The second and third defendants filed a submitting appearance. 15 Counsel have prepared written submissions. Whilst the written submissions relied on by the plaintiff put the alleged error of law in somewhat wider terms, the issue that was joined during oral argument was whether or not Dr Mills asked himself the wrong question. 16 The provisions of s325(1) of the Act required Dr Mills to give a certificate as to the matters referred for assessment. Those words have been seen to be of importance. They are restrictive of the role of an approved medical specialist in the assessment process. It requires him to deal with those referred matters. 17 It seems to be common ground that what was referred to Dr Mills for assessment was the question of the degree of permanent impairment (it was not a question of whether or not there had been permanent impairment). The dispute between the parties is as to the question that Dr Mills did in fact address. 18 What is contained in the referral is not without ambiguity. The reference contained in it to earlier application is not overly helpful. The provisions of s325(2) prescribe matters which are to be contained in the certificate (including the details of the matters referred for assessment). In this case, the certificate contains only a general and somewhat ambiguous reference to a dispute as to permanent impairment. Whilst it has not been made an issue in this hearing, it may be said that there is, inter alia, a non-compliance with the Act in this respect. 19 In maintaining the argument that Dr Mills addressed only the question of the degree of permanent impairment, counsel for the first defendant argued that Dr Mills proceeded on the basis that the plaintiff had suffered injury and came to his zero assessment by reason of the operation of the WorkCover guidelines (s322 of the Act provides that the assessment of the degree of permanent impairment is to be made in accordance with those guidelines). 20 At the time of the referral, there was common ground between the parties. Although the degree of permanent impairment may not have been great, there was no dispute that there was some permanent impairment. The dispute concerned the degree of it. This was the matter intended for referral. 21 When regard is had to the content of the certificate, it seems to me that Dr Mills addressed the question of whether or not the injury suffered by the plaintiff resulted in impairment. By way of illustration, I shall refer to just certain of the contents of the certificate. 22 Paragraph 7 of the certificate is headed as follows:- My answers to the following questions regarding the assessment of whole person impairment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment with respect to the injury suffered in the accident are …

It also contains other material of a similar nature. 23 The onus in these proceedings rests with the plaintiff. I am satisfied that the onus has been discharged. 24 I have come to the view that Dr Mills did address the wrong question and that there was thereby demonstrably error.. 25 The role of the Registrar pursuant to s327(4) has been discussed in other cases (Craig, Campbelltown City Council v Vegan [2004] NSWSC 1129, Wikaira v Registrar of the Workers Compensation Commission of New South Wales [2005] NSWSC 954). The appeal is not to proceed unless it appears that at least one of the specified grounds for appeal exists. The task of dealing with the question is assigned to the Registrar. If the appeal proceeds, it is to be by way of review of the original medical assessment by an Appeal Panel (s328 of the Act). 26 Counsel for the plaintiff have made submissions as to what constitutes "the record". Counsel for the first defendant has not addressed on these matters. There may be uncertainty as to whether or not the reasons for the decision form part of the record. In this case, it is unnecessary to consider such a matter, as the decision itself suffices for present purposes. 27 I consider that the delegate fell into error that entitles the plaintiff to relief when he decided that the ground of appeal did not exist. The decision made by the delegate on 25 October 2005 is set aside. The matter is remitted back to the Registrar for determination according to law. The first defendant is to pay the costs of the summons. **********

Cornett v Plateau View Aged Care Facility & Ors

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cases Cited (3)

Cited By (1)