CSR Limited v Jamie Leonard Smith

Grounds of review 7The grounds for review claimed in the summons filed on 29 July 2010 are firstly, an error by the Appeal Panel in failing to provide CSR with a hearing which was sought; secondly, an error by the Appeal Panel in not properly exercising the discretion in deciding whether to hold an assessment hearing; thirdly, an error by the Appeal Panel in not properly considering the grounds relied on by CSR on appeal to the Appeal Panel in circumstances where the Registrar was satisfied that at least one of the grounds of appeal is made out; fourthly, an error by the Appeal Panel in failing to revoke the Medical Assessment Certificate consistent with the finding of the Registrar and the grounds relied on by CSR; fifthly, an error by the Appeal Panel in failing to identify the clear reference in the Medical Assessment Certificate to the Approved Medical Specialist having been sent the documents excluded from the referral despite this being clear from paragraph 2 of the Medical Assessment Certificate; sixthly, an error by the Appeal Panel in failing to make a deduction as required by s 323 the Act; and seventhly, an error by the Appeal Panel in considering that there had been no injury to Mr Smith 's lower back after the injury which was the subject of the referral despite the reference to such a subsequent injury in the second paragraph on page 3 of the Medical Assessment Certificate (and elsewhere).

Background 8On 14 December 2009, Mr Smith's claim for lump sum compensation was referred to an Approved Medical Specialist ("AMS"). 9On 15 December 2009, the delegate of the Registrar wrote to the AMS specifying that the application and attached documents, excluding the reports of Dr Searle were forwarded to him. 10On 21 January 2010, the Arbitrator determined the degree of permanent impairment in respect of the lumbar spine was to be referred by the Registrar to an AMS for assessment as a result of the injury on 17 August 2006, in accordance with the WorkCover Guides for Evaluation of Permanent Impairment. The documents to be sent to the AMS were inter alia specified to be the application and all attachments, excluding the reports of Dr Searle. 11On 17 February 2010, Mr Smith was examined by the AMS who certified Whole Person Impairment ("WPI") of 6 per cent. The AMS stated at [2] of his written reasons that the documents which were referred to the Commission for assessment were the application and documents listed in, and attached to, the application and the reply and documents listed in, and attached to, the reply. 12On 17 March 2010, CSR applied to appeal against the decision of the AMS. 13On 22 April 2010, the delegate of the Registrar determined that on the face of the application and the submissions made, he was satisfied that a ground of appeal as specified in s 327(3)(d) of the Act was made out in that an error was capable of being shown in respect of the assessment of permanent impairment of the lumbar spine. 14On 18 June 2010, the Appeal Panel confirmed the decision of the AMS.

Submissions 15Counsel for CSR submitted that there were errors by the Appeal Panel: firstly, in failing to provide it with the hearing which was sought; and secondly, in failing to properly exercise its discretion in deciding whether to hold an assessment hearing. 16Counsel for CSR does not dispute that the Appeal Panel has a discretion as to whether or not it should agree to an oral hearing. Rather counsel submitted that the Appeal Panel failed to exercise its discretion in a proper manner. Likewise, WorkCover submitted that in this case an issue arises as to the discretionary nature of the decision whether or not to conduct an oral hearing as part of the appeal process. According to WorkCover, in this instance, the Appeal Panel considered Mr Smith's request that an oral hearing take place and decided that an oral hearing was not necessary in the circumstances. That is the matter which it submitted was wholly within the discretion of the Appeal Panel.

The legislation and guidelines 17An appeal against a decision of an AMS is set out in s 328 of the Act. The statutory framework for medical assessment and appeal is contained in Part 7 of the Act and WorkCover Medical Assessment Guidelines published on 27 October 2006. Section 328 reads: "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. The WorkCover Guidelines may 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 unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment. (4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel. (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) ..." 18The Act makes provision for WorkCover Guidelines for medical assessments and appeals. 19Section 331 provides: "Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the WorkCover Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments." 20And in s 328(2) itself contains a provision that "WorkCover Guidelines may provide for the procedure on an appeal".

WorkCover Medical Assessment Guidelines 21The Guidelines dated 25 October 2006 read: " Procedure of the Appeal Panel 45. An appeal panel consists of two approved medical specialists and one arbitrator. The appeal panel may adopt any of the following procedures in accordance with the needs of the individual cases:

• A preliminary review ( in all matters),
• 'on the papers' review,
• further medical examination by an approved medical specialist on the appeal panel,
• assessment hearing. Where a further medical examination is required, the registrar will advise the worker of the time and place of the examination. A support person (other than an agent or legal adviser) may accompany a worker to the examination. The worker should not bring any additional medical or other reports to the examination, unless specifically asked to do so. If it is necessary to bring x-rays or similar documents the worker will be advised of this in the letter from the registrar. The registrar must be advised in advance if an interpreter is required for the examination. Assessment Hearing

46. Where the appeal panel determines a matter is not capable of determination on the papers, with or without a further medical examination, an assessment hearing will be arranged. The appeal panel assessment hearing will be informal and non-legalistic, and will afford the parties a full opportunity to present oral submissions in support of their claims. The assessment hearing is non-adversarial and in most cases no evidence will be taken or cross-examination permitted. A party is entitled to be represented at the assessment and may choose to be accompanied by a person (including but not limited to a legal adviser or agent) to assist in the presentation of their case. The assessment will be sound recorded and a copy of the recording will be available to the parties on request. The parties may seek clarification of matters raised with the assistance of the panel members."

The authorities 22Counsel for CSR referred to Ah Dar v State Transit Authority of New South Wales (2007) 69 NSWLR 468; and again to Energy Australia v Butler and Fairfield City Council v Brear . Counsel for WorkCover also referred to Estate of Brockman v Brockman Metal Roofing Pty Limited [2006] NSWSC 235; Symbion Health Limited v Hrouda [2010] NSWSC 295 at [86] - [92] and Fletcher International Exports Pty Limited v Lott & Anor [2010] NSWCA 63 at [40] to [51]. WorkCover submitted that this Court should prefer the approach Brockman v Brockman as it considered the construction of the Act. All of these cases except Fletcher International Exports v Lott involve the exercise of the discretion of the Appeal Panel in determining whether or not to hold an assessment hearing pursuant to s 328 of the Act. 23In Ah Dar v State Transit Authority , Mr Ah Dar, a bus driver, suffered an injury to his left knee at work. His application to resolve his dispute was made under the Act. Mr Ah Dar filed an application to appeal against the assessment of the AMS. He had objected to the determination of the appeal without a hearing. The Appeal Panel had dealt with the appeal on the papers in the mistaken belief that both sides had consented to that manner of determination. Bell J stated at [67] that while it is accepted that it was open to the Appeal Panel to determine that the appeal would proceed without an assessment hearing, there is force to the complaint that the Appeal Panel's discretion to decide whether to hold as assessment hearing was not properly exercised. Her Honour stated that this discretion was not exercised at all because the Appeal Panel, wrongly, understood that each of the parties to this medical dispute wanted the appeal to be determined on the papers. In Ah Dar v State Transit , Bell J concluded that the resulting determination was attended by jurisdictional error. As a consequence the determination of the Registrar and the Appeal Panel were quashed with the matter was referred back for assessment. 24Fairfield City Council v Brear , is a case where the Appeal Panel without notice to the parties dealt with the matter on a basis that went outside the contents of the written submissions. Both parties had submitted that the 2 nd edition of the Guidelines applied. The Appeal Panel without notice to the parties dealt with the matter on a different basis. Barr AJ referred to a long line of authority concerning the right of the parties to be heard that were summarised in the decision Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [7] where Mason P stated: "[7] Secondly, there is virtually no means of discovering the impact of the secret material upon the mind of the adjudicator without transgressing the very assumptions underlying the doctrines of procedural fairness and of judicial (or limited appellate) review. I agree with Professor D J Galligan who wrote ("Procedural Fairness" in Peter Birks ed, The Frontiers of Liability Vol 1, 1994): 'How can the court know with any certainty that evidence and argument from a party would have made no difference? It simply cannot know in the sense of knowledge as justified belief. Facts, truth, insight, all emerge from argument and discourse, and the clearest case can easily give way to doubt. Megarry V-C put the point well: " ... the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."[ John v Rees [1970] Ch 354 at 402] The difficulty is compounded when we take into account the special position of the courts in exercising judicial review; their task is to decide matters of legality and procedure, not to assess the merits. The court faces a dilemma: to judge that a procedure would have made no difference to the original decision, the court has to put itself in the place of the decision-maker; but the more it does that, the closer it comes to an assessment of the merits. This difficulty points to an approach which, in most cases, is the most sensible: since they cannot know with any certainty the effects of the procedural defect, the courts would be wise to order that the procedural requirements be upheld. This need not be inflexible, and there may be exceptions; but exceptions should need to pass a clear and compelling test, and rarely be allowed.'" 25In Fairfield City Council v Brear , Barr AJ concluded that because Fairfield Council had no way of knowing that the Appeal Panel was to depart from the basis of applicability of the second edition of the Guidelines, it was denied procedural fairness. Barr AJ stated that as soon as the Appeal Panel contemplated the possibility of the third and not the second edition of the Guidelines was that which applied, it ought to have informed the parties and afforded them an opportunity to make submissions. The failure to do so amounted to a denial of procedural fairness. 26In Energy Australia v Butler , Mr Butler suffered a number of injuries to his knee and over the years its condition continued to worsen. On 30 June 1995, in the Worker Compensation Commission he was awarded compensation under s 66 in respect of 15 per cent loss of the use of his leg at or above the knee. Dr Bye, the AMS, stated at [13] "I presume the date of injuries for the left leg at or above the knee is a Deemed Date, 30/6/1995 as his original injuries were in 1981." Dr Bye assessed the permanent percentage loss of function of the left leg as equal to 30 percent. It was implicit in Energy Australia's submissions to the Appeal Panel that the 30 June 1995 that had been adopted as the deemed date for injury to the knee was erroneous. While both parties accepted the 30 percent assessed for the loss of function of the left leg. Energy Australia submitted that the needed to be a deduction applied for the pre-existing abnormality and the certificated need to reflect the payment made for the previous 15 percent loss. The Appeal Panel without notice to the parties dealt with the matter on a basis not addressed in the written submissions of either side by determining that the dispute raised was one for the arbitrator to determine and it had no power to deal with it. 27Barr AJ, in Energy Australia v Butler , observed that there were substantial arguments that could have been put before the Appeal Panel which, if correct, were capable of showing that it would be wrong for the Appeal Panel to come to the decision it ultimately did. 28In Energy Australia v Butler at [26] Bar AJ continued: "26 A party has the right to decline to consent to a hearing on the papers and to make oral submissions to a Tribunal: Ah Dar v State Transit Authority of NSW (2007) 69 NSWLR 468 per Bell J at [63]-[69]. That does not mean, of course, that in a proper case a tribunal may not, subject to the requirements of its statute, determine to deal with a matter without a requested oral hearing. But when a tribunal has been requested to give an opportunity to a party to make oral submissions, it needs to be confident that questions are unlikely to arise that call for oral submissions. And even if it so appears at first, if such questions arise during the course of its consideration the tribunal should be astute to recognise the fact and reconsider its original decision." 29Barr AJ decided at [31]: "31 In my opinion the Panel ought to have realised when it decided to deal with the appeal on a basis contemplated by neither of the parties that they ought to have been given an opportunity to attend a hearing to make submissions. The Panel knew that the plaintiff had asked it not to deal with the matter on the papers. It ought to have known that the way in which it proposed to deal with the appeal was likely to raise substantial questions of a contentious nature. In my opinion the circumstances required the Panel to give the plaintiff the opportunity it had requested to attend and make oral submissions. In denying the plaintiff that opportunity the Panel failed to afford it procedural fairness." 30The determination of the Appeal Panel was quashed and the matter remitted to the Appeal Panel for determination. 31In Brockman v Brockman , the AMS in his supplementary certificate, made a determination that the permanent loss of function of the sexual organs was 100 per cent with nil pre-existing. This revised assessment was unacceptable to Brockman Metal Roofing. One of the medical specialists on the Appeal Panel, Dr Watters, re-examined Mr Brockman. MrBrockman (now deceased) was not served with a copy of Dr Watter's report and no hearing was afforded to him following Dr Watter's assessment. The Appeal Panel recorded the findings and opinion of Dr Watters on examination at paragraph 20 of its reasons. 32Studdert J in Brockman v Brockman considered s 328 and its Guidelines in force at that time. Submissions had been filed on behalf of the deceased, together with medical reports to the Appeal Panel and the deceased submitted that, "the appeal should be determined on the papers". But those submissions had been made before notice was given of the Appeal Panel's determination that there should be a medical examination. When the notice was given of the further examination it did not prompt the deceased to revise his submission that the matter should be determined on the papers. 33Studdert J in Brockman v Brockman stated (at [61]) that it was reasonable to conclude from the statement of the Appeal Panel's reasons that Dr Watters' examination influenced his decision and that his report influenced the other member of the Panel. Studdert J stated that the Appeal Panel was entitled to draw upon the expertise of one of its members, as plainly it did. It was entitled to take into account that expertise and the conclusions reached by that expert without disclosing those conclusions to the deceased, before coming to a final conclusion. Studdert J (at [65]) concluded that s 328 provided for an Appeal Panel being structured by three members, two of whom were to be approved medical specialists. Hence, it was only reasonable to assume that the deceased was on notice that the Appeal Panel would use the medical expertise and experience of its medical specialist members in its deliberations. It was Studdert J's view (at [67]) that he was not persuaded that the deceased was denied procedural fairness by the Appeal Panel and the Appeal Panel was entitled to act as it did. The application for judicial review was dismissed. 34In Symbion Health Limited v Hrouda , the Appeal Panel wrote to the parties and informed them that it would be considering an issue that had not been raised by either party. It was: "Given that the respondent (the worker ...) has not smoked since the motor vehicle accident on 3 September 2003, which accident resulted in her having a coma [sic] and having amnesia for 7 weeks did the AMS err in attributing the respondent's partial loss of smell as a result of her smoking rather than the injuries she suffered in the accident." 35Symbion Health in its original submissions to the Appeal Panel and in its supplementary submissions made requests for a hearing to address the issue. The submissions did not elaborate in any further detail what issues it wished to address. 36In response, the Appeal Panel in Symbion Health Limited v Hrouda determined: "... in the absence of any cogent reason being indicated by the appellant as to why it is necessary to hold an assessment hearing, the panel is of the view that it would derive no benefit in terms of its consideration and determination of the appeal by holding an assessment hearing." 37The argument presented by Symbion at the judicial review was that it was not for the Appeal Panel to speculate as to the benefit that it might derive from submissions until they were made. It was contended that the Appeal Panel effectively judged in advance the appellant's capacity to persuade it. 38Symbion also submitted that Guideline 45 was invalid so far as it is inconsistent with the obligation imposed by s 328(1) and there is an error on the face of the record in the Appeal Panel's refusing an application for hearing in the light of s 328(1). Hall J (at [74]) followed the decision of Studdert J in Brockman v Brockman and held that Guideline 45 is valid and not inconsistent with the provisions of s 328(1). 39So far as whether or not Symbion should have been afforded a hearing, Hall J stated at [79]: "79 Accordingly, Symbion elected not to respond directly to the issue raised by the Panel in terms of the merits of the issue or otherwise. Further, it did not identify any reason or basis upon which it asserted a hearing was necessary for the purpose of addressing the issue. Thus, the comment made in para [14] of the Statement of Reasons of the Appeal Panel: '... The Appellant neither indicated why it had not addressed fully this issue in its further written submissions nor what it was about this issue that necessitated the holding of an Assessment Hearing.'" 40In Symbion Health Limited v Hrouda , Hall J noted that in the absence of any cogent reasons (as quoted above) the Appeal Panel determined that it would not hold an assessment hearing. The issue was then whether Symbion had a legitimate grievance or complaint in contending, as it did, that it had been denied procedural fairness in the Appeal Panel failing to advise it before its final decision on 12 June 2009, that it refused its request for a hearing. Hall J decided that it did not. 41The final case referred to by WorkCover was Fletcher International Exports Pty Limited v Lott . It concerns whether the failure to grant an oral hearing under s 354 of the Act was an error in point of law. This authority concerns a different issue and is not of assistance here.

The Appeal Panel's reasons for determination in this application for judicial review 42In the application to appeal form at question 4.4 the following question and answer appear: "4.4 Do you request the opportunity to present oral submission to the Appeal Panel? FORMCHECKBOX Yes FORMCHECKBOX No If yes, attach reasons why the appeal should not be determined by the Appeal Panel on the papers, and why the presentation of oral submission is necessary. Failure to attach submissions may result in the application being rejected." 43CSR in its submissions attached to the application to appeal stated at [4]: "The Appellant is of the view that the Appeal cannot be determined "on the papers" and rather is a matter in which it is preferable for a Hearing to be appointed before the Appeal Panel." 44Paragraphs [5] and [6] of those submissions were intended to demonstrate error and are as follows: "5. The Appellant firstly says, generally, that the Medical Assessment Certificate contains demonstrable errors and show the application of incorrect criteria, by reason of the Certificate going beyond the issues the Approved Medical Specialist may determine, failing to take into account relevant considerations, taking into account irrelevant considerations, making an Assessment where there is no evidence to support it, or where it is insufficient to support it, or where it is inconsistent with the evidence and denying procedural fairness. 6. Further and in addition, the Appellant says that the following aspects of the Medical Assessment Certificate demonstrate the Assessments to have been made on the basis of incorrect criteria and show the Certificate to contain demonstrable errors, as follows:- (a) The Approved Medical Specialist (AMS), is in error in having regard to (or even being provided with) the Application and documents listed in and attached to the Application (see paragraph 2) in circumstances where the referral specifically excluded material attached to that Application. The Appellant says that this is both a demonstrable error and the application of incorrect criteria. (b) The Appellant submits that there is a further error by the AMS in failing to make a deduction for pre-existing abnormality on the mistaken basis that prior problems the Applicant experienced were with his thoracic spine whereas the evidence clearly indicated (and the Claimant asserted) that his prior problems were with both his lower back and his mid-back. This is evident not only from the history given to the AMS but also from the Statement of the Applicant (see for example paragraph 8) and the Permanent Impairment Claim Form which specifically alleged injuries to the lumbar spine firstly on 2 April 2003 and 12 November 2003. (c) The Appellant submits that there is further error on the part of the AMS in apparently rejecting the assessment of Dr Millons apparently on the basis of recurrences of injury occurring subsequent to his examination (see paragraph 10c) and in failing to properly consider and assess impairment that can properly be said to be "... resulting from an injury ..." being specifically injury alleged on 17 August 2006. The Appellant submits that it is apparent from the Certificate issued and from the comments by the AMS in respect of the report of Dr Millons, that the AMS has mistakenly included in his assessment of impairment the consequences of the further back injury allegedly sustained in November 2007 (see page 3)." 45So far as its decision to not "hold an assessment hearing", the Appeal Panel stated at [12] and [13]: "12. The Appellant submits the Appeal cannot be determined on the papers and "rather it is a matter in which it is preferable for a hearing to be appointed before the Appeal Panel." The Appellant does not in the Panels view indicate adequate reasons for this request, nor does he draw the Panels attention to any specific area of appeal that would warrant an assessment hearing. 13. Having considered the request by the Appellant the Panel determined to consider the matter on the papers without an Assessment Hearing or further examination." 46The variation of the content of the principles of natural justice or procedural fairness has been noted in many authorities: see Kioa v West (1985) 159 CLR 550 at 612 per Brennan J. Equally, it has been emphasised that the requirements of natural justice depend on the circumstances of the case, the nature of the inquiry and the rules under which the Tribunal is acting as well as the subject matter: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118. 47The Appeal Panel considered the submissions in relation to the request for a hearing by CSR. It exercised its discretion not to afford an assessment hearing. CSR accepts that the Appeal Panel was entitled to make that determination. The issue here is whether the Appeal Panel's discretion was properly exercised. 48Whether there has been a denial of procedural fairness is influenced by the particular circumstances, including the relevant statutory context. The appeal is to be by way of review (s 328(2)). The Appeal Panel consists of two approved medical specialists and one arbitrator (s 328(1)). At the preliminary review the Appeal Panel has before it the documents that were before the AMS and the submissions of the parties in relation to the appeal. The Appeal Panel can determine whether it will deal with a review "on the papers" or whether an assessment hearing is required (WorkCover Guideline 45). 49While CSR requested the opportunity to present oral submissions to the Appeal Panel, it had been notified that it should attach reasons why the presentation of oral submissions is necessary. In response, CSR stated that it was of the view that the appeal could not be determined "on the papers" and rather was a matter in which it was preferable for a hearing to be appointed before the Appeal Panel. CSR did not elucidate what matters it needed to address at the hearing and why those matters could not be properly articulated in written submissions. It would have been of assistance to the Appeal Panel if CSR had given cogent reasons as how and why an oral hearing in the circumstances of the present case would have advanced its interests. 50Nevertheless, at the preliminary hearing even though there was no additional information as to why it was preferable for an assessment hearing to be held, the Appeal Panel needed to be confident that issues outlined in the submissions were unlikely to require oral submissions to be made to it. The issues raised in CSR's submissions were whether Dr Searle's reports were excluded in the file sent to the AMS, whether there should have been a deduction made pursuant to s 323 of the Act for a pre-existing injury and whether the findings of the AMS in relation to Dr Millions report were in error. There was nothing to suggest the Appeal Panel would benefit from oral submissions being made at an assessment hearing. Nor was there anything that was likely to arise during the determination that would suggest to the Appeal Panel that oral submissions would be required. The Appeal Panel was not contemplating going outside the contents of the written submissions of the parties. In these circumstances I do not consider that the Appeal Panel wrongly exercised its discretion in not affording CSR an assessment hearing. It is my view that CSR was not denied procedural fairness. 51The application for judicial review fails. The summons filed 29 July 2010 is dismissed. Costs are reserved.

The Court orders: (1) The summons filed 29 July 2010 is dismissed. (2) Costs are reserved.

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: 23 February 2011