Dar v State Transit Authority of NSW

Workers Compensation Commission Rules 2003 LEGISLATION CITED : Workplace Injury Management and Workers Compensation Act 1998 Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005

Campbelltown City Council v Vegan [2006] NSWCA 284 Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 Massie v Southern NSW Timber and Hardware Pty Ltd [2006] NSWSC 1045 Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 CASES CITED : Minister for Immigration and Multicultural Affa Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 Pitsonis v Registrar of the Workers Compensation Commission [2007] NSWSC 50 SAAP v MIMIA (2005) 215 ALR 162 Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 945

David Ah-Dar (Plaintiff) State Transit Authority of NSW (1st Defendant) PARTIES : Registrar of the Workers Compensation Commission (2nd Defendant) An Appeal Panel Constituted Under Section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (3rd Defendant) WorkCover Authority of NSW (4th Defendant)

C. Jackson (Plaintiff) COUNSEL : B. Odling (1st Defendant) M. Allars (Amicus curiae for WorkCover Authority of NSW)

First Law Pacifica (Plaintiff) SOLICITORS : Sparke Helmore Lawyers (1st Defendant) I V Knight (2nd, 3rd and 4th Defendants)

LOWER COURT JURISDICTION : Workers Compensation Commission of NSW

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30039/06 David Ah Dar v State Transit Authority of New South Wales; Registrar of the Workers Compensation Comission; An Appeal Panel constituted under section 328 of the Workplace Injury Management and Workers Compensation Act 1998

JUDGMENT 1 BELL J: The plaintiff is an injured worker who was in the employ of the State Transit Authority of NSW (the first defendant) at the date of his injury. He applied to the Workers Compensation Commission (the Commission) to resolve a dispute and was referred for assessment to an approved medical specialist who issued a medical assessment certificate certifying the extent of his whole person impairment as the result of the work injury. The defendant appealed against the assessment and the Registrar of the Commission (the Registrar) referred the appeal to an Appeal Panel. The Appeal Panel upheld the appeal and substituted a new medical assessment certificate for the one given by the approved medical specialist.

2 By amended summons filed on 4 April 2006 the plaintiff seeks judicial review of (i) the decision of the Registrar to refer the assessment to the Appeal Panel and (ii) the Appeal Panel's determination.

3 The second defendant, the Registrar, and the third defendant, the Appeal Panel of the Commission, entered appearances submitting to any order of the Court save as to costs.

4 The WorkCover Authority of New South Wales (WorkCover) was joined to the proceedings as the fourth defendant. Following the decision of the Court of Appeal in Campbelltown City Council v Vegan [2006] NSWCA 284, and in light of the observations of Basten JA at [56] - [64], WorkCover moved on notice for an order pursuant to rule 6.29 of the Uniform Civil Procedure Rules 2005 that it cease to be a party to the proceeding and that it be granted leave to appear as amicus curiae. Orders in these terms were made at the commencement of the hearing. The active contradictor was the first defendant, which I will refer to in these reasons as the defendant. 5 The plaintiff's challenge requires consideration of a number of provisions of the Workplace Injury Management and Workers Compensation Act 1998 (the Act). References to various legislative provisions in the reasons that follow are to the Act unless otherwise stated.

The facts 6 The plaintiff suffered injury on 27 June 2002 while working as a bus driver. He was aged 46 years. 7 On 9 December 2002 the defendant declined the plaintiff's claim for compensation in respect of a neck injury effective from 10 December 2002, on the ground that any work related aggravation of a pre-existing injury had ceased and that the plaintiff was fit to resume normal duties. 8 On 2 April 2004 the plaintiff lodged an application to resolve a dispute with the Commission. 9 On 22 April 2004 the defendant filed a reply to the plaintiff's application. It identified as issues in dispute both that the plaintiff received an injury arising out of, or in the course of, his employment and that he was incapacitated for work. In its reply the defendant listed the documents and information that were filed with it and identified the documents and information which it intended to rely upon, but which were not then in its possession. Among the documents filed with the reply were medical reports, rehabilitation progress reports, correspondence and a surveillance report and video, prepared by Austpac Investigations dated 20 October 2003. 10 On 17 June 2004 the defendant filed an application to admit late documents pursuant to the Workers Compensation Commission Rules 2003 (the Rules). Thereafter, in a teleconference on 9 July 2004, the defendant obtained the leave of Arbitrator Brazil to file a report by Dr Macauley.

11 The plaintiff was assessed by Dr Meakin, an approved medical specialist, at his rooms on 15 February 2005. Following the assessment Dr Meakin issued a medical assessment certificate.

12 Dr Meakin stated in the certificate that his assessment was based on the history taken, his physical examination of the plaintiff and the reports that he described as being attached to the certificate. This appears to be a reference to the reports that are described in paragraph 6 of the certificate, which did not include any of the reports or other material that had been filed by the defendant. 13 Dr Meakin gave his reasons for his assessment in the certificate. These included (para 9): With reference to WorkCover Guides Item 4.24 it is my opinion that Mr Ah Dar does satisfy the definitions of radiculopathy. He has a dermatonal distribution of pain along with a concordant finding on the imaging study. With reference to the Guides to the Evaluation of Permanent Impairment AMA No. 5, Table 15.5, page 392, it is my opinion that he demonstrates a DRE cervical category III - 15% whole person impairment. 14 Dr Meakin certified, for the purposes of s 323, a nil deduction on account of any proportion of the impairment being the result of previous injury, pre-existing condition or abnormality. 15 Dr Meakin's medical assessment certificate is by operation of s 326 conclusively presumed to be correct as to the degree of permanent impairment as the result of injury and whether any proportion of permanent impairment is due to any previous injury, pre-existing condition or abnormality, before a court or the Commission. The appeal against the assessment

16 On 10 May 2005 the defendant filed an application to appeal against Dr Meakin's assessment. The application was made pursuant to s 327(2). The grounds of the appeal were identified as those stated in s 327(3)(c) and (d): it was submitted that Dr Meakin had applied incorrect criteria and that his certificate contained a demonstrable error. Both grounds depended on the same facts: In the submissions that were filed with the application, the defendant noted that at paragraph 9(c) of the certificate Dr Meakin referred to the medical evidence that had been available to him, and that he made no reference to any reports relied upon by the defendant. It was submitted to be obvious from the certificate that Dr Meakin had not considered any of the defendant's medical evidence. 17 Submissions were filed on the plaintiff's behalf in response to the application to appeal on 3 June 2005. In the submissions it was contended that the failure to furnish Dr Meakin with the defendant's medical reports did not amount to demonstrable error in the certificate nor did it reveal that the assessment had been made on the basis of incorrect criteria. Importantly, the submissions filed on the plaintiff's behalf concluded with the request: The Respondent worker submits that should this matter be referred to an appeal panel then it should not be determined on the papers and should be on a hearing basis so as to allow further oral submission.

18 On 6 July 2005 the Registrar determined that she was satisfied that a ground for appeal against the assessment in Dr Meakin's MAC under s 327(3)(d) existed. 19 The Registrar gave reasons for her determination: 1. The Medical Assessment Certificate of Dr Meakin, the subject of this appeal, was issued on 13 April 2005. 2. On 10 May 2005 the appellant lodged an application to appeal the decision of an approved medical specialist. 3. On 7 June submissions were received from the Respondent. 4. Having considered the submissions of the Appellant and Respondent, it appears to the Registrar that the ground of demonstrable error exists for the following reason: · The Arbitrator made a number of directions in the referral to the approved medical specialist in relation to documents, which were to be provided to the approved medical specialist by parties. Given the nature and complexity of the directions made by the Arbitrator, it is not clear that all documents, and only those documents, which were intended to be provided were provided to the approved medical specialist. 20 The Registrar referred the matter to an Appeal Panel pursuant to s 327(4). 21 In her determination, which it appears was available to the parties, the Registrar noted the following: The Appeal Panel may determine the appeal solely on the basis of the written application and any written notice of opposition. When the matter is determined on the papers, a copy of the decision will be issued to the parties. Should the Appeal Panel require the worker to be re-examined by the Appeal Panel, or set the matter down for hearing, separate advice in relation to this will be issued. 22 On 2 March 2006 the Appeal Panel revoked the medical assessment certificate issued by Dr Meakin and issued a new certificate varying the assessment with respect to the cervical spine to 5 per cent whole person impairment (with nil deductions pursuant to s 323). In its statement of reasons the Appeal Panel recorded that it had conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines. This was a reference to the WorkCover Medical Assessment Guidelines (the Guidelines) made pursuant to s 328. It recorded that it had before it the documents that were sent to Dr Meakin for the original assessment and all of the documents attached to the reply, which included numerous medical reports, which had not been before Dr Meakin. The Appeal Panel went on to say: [10] The parts of the medical certificate given by the AMS and issued on 13 April 2005 that are relevant to the Appeal are noted together with the objections of the Appellant: · At paragraph 9(c) the AMS commented on the medical evidence before him but made no reference to the reports relied upon by the Appellant employer. The Panel accepts that the AMS did not consider the Appellant employer's medical evidence. · The Appellant employer further submits that the AMS did not see the late report of Dr David Macauley, for which leave was granted to file but was not included in the documents sent to the AMS. The AMS referral completed by Arbitrator Brazil noted a "selection of documents produced under direction from Dr Voutos" were to be admitted in proceedings including the reports from Dr Macauley and Dr Bentivoglio, but none of these medical reports was seen by the AMS. 23 The Appeal Panel summarised what it described as "the most relevant medical evidence" relied upon by the defendant and by the plaintiff respectively. The defendant's most relevant evidence was found in the report of Dr Macauley, a consultant physician, who had examined the plaintiff on 7 July 2004 and who had expressed the opinion that the plaintiff has a 5 per cent whole person impairment related to neck pain (DRE Cervical Category II). The plaintiff's most relevant medical evidence was found in the report of Dr Conrad, a surgeon, who had examined the plaintiff on 5 December 2002. 24 The Appeal Panel's reasons included: DECISION MADE AFTER PRELIMARY REVIEW WITHOUT HOLDING AN ASSESSMENT HEARING [13] The parties did not object to the determination of the matter without an Assessment Hearing and both parties supported an assessment on the papers.

It was noted that both parties had made written submissions, the defendant's submissions were dated 10 May 2005 and the plaintiff's submissions were dated 3 June 2005. 25 The Appeal Panel recorded its findings and reasons at paragraphs [15] - [19] as follows: [15] Before setting out reasons it is necessary to refer to consider the implications of the decision of Wood CJ at CL in Campbelltown City Council v Vegan [2004] NSWSC 1129 25 November 2004 Supreme Court Administration Law List. At paragraph [74], in summarising the submissions made to him by the WorkCover Authority his Honour noted that section 327 was said to provide a gatekeeper role for the Registrar in that if it appeared to the Registrar that at least one of the grounds for appeal set out in the legislation existed then the appeal was able to proceed and be referred to an appeal panel. The submission was that once the matter came to the appeal panel it was not itself required to determine whether any of the grounds referred to in s 327(3) have been made good, but rather the appeal panel was free to conduct a review de novo. Having analysed other submissions at paragraph [99] he accepted that position. The situation thus is that once the matter comes before a medical appeal, the panel is free to conduct a review upon the basis of the material properly available before it, without any need to make a formal finding itself as to the existence of an error falling within the available grounds of appeal, and without being confined to correction of that error. [16] Having considered the decision in Vegan, we feel it is nevertheless incumbent upon us, for the assistance of the parties, to give brief reasons as to why we are of the view that the MAC should be revoked. [17] The Panel reviewed all of the evidence including the surveillance video and reached the conclusion that the AMS should have dealt with the Applicant's impairment as DRE Category II, not DRE Category III, in accordance with Table 15-5 Criteria for Rating Impairment Due to Cervical Disorders. [18] In coming to this conclusion the Panel looked for conclusive evidence of radiculopathy and found little or no support for its existence in the Applicant's pathology. The Panel found no consistent evidence of localised neurological deficit and only vague signs or symptoms of radiculopathy. [19] If DRE III was the appropriate cervical category to be applied the Panel would have expected to see significant signs of radiculopathy, such as pain and/or sensory loss in a dermatomal distribution, loss of relevant reflexes and loss of muscle strength. The Panel could find no evidence of these features in any of the reports.

The relief claimed by the plaintiff 26 The plaintiff claims orders quashing the decision of the Registrar on the grounds of jurisdictional error and/or error of law. In the alternative he claims an order quashing the decision of the Appeal Panel on the grounds of jurisdictional error and/or error of law and an order remitting the matter to a differently constituted Appeal Panel to be dealt with according to law. 27 The plaintiff also claimed a declaration that clauses 43 and 44 of the Guidelines are invalid because of claimed inconsistency with the obligation imposed by section 328(1), which is said to mandate that the Appeal Panel hold an assessment hearing, rather than merely allowing for it. This relief is the subject of the third of the plaintiff's grounds in his amended summons. The ground was formally maintained but no submissions were advanced in support of it. Counsel for the plaintiff acknowledged that the point had been decided against him in Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235. In light of the conclusion to which I have come it is unnecessary to refer to the matter further.

28 The jurisdiction to grant relief in the nature of certiorari is found in s 69 of the Supreme Court Act 1970 (the SCA). Subsection (3) declares that the jurisdiction of the Court to grant relief of this character includes the jurisdiction to quash the ultimate determination of a tribunal if it is made on the basis of error of law on the face of the record. 29 In Craig v South Australia (1985) 184 CLR 163 at 179 the High Court explained the scope of jurisdictional error in the context of the review of the decisions of an administrative tribunal in this way: If such 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. 30 Section 69(4) of the SCA provides that the tribunal's reasons for its ultimate determination are to be taken to be part of the face of the record for the purposes of subsection (3). 31 By his amended summons the plaintiff set out his grounds of appeal as follows: Grounds one. 1) The Second Defendant erred in law, and erred in the exercise of their jurisdiction, in holding that "grounds of appeal" existed, namely the application of "incorrect criteria" or "demonstrable error", justifying the referral of the matter to an appeal panel pursuant to section 327. Particulars. 1.1) No "demonstrable error" or "application of incorrect criteria", being grounds 327(3)(c) and (d), was pleaded by the First Defendant. Rather, it was pleaded that the decision was made without the medical specialist having seen the First Defendant's medical reports (paragraph 10 of the First Defendant's submissions on the application to appeal). … Grounds four. 4) The appeal panel to accord the Plaintiff procedural fairness in proceedings to a determination of the matter "on the papers" without hearing further from the parties, either in writing, or by holding an assessment hearing, on the erroneous basis that both parties supported such a course. Particular. 4.1 The Plaintiff had expressly requested (in paragraph 8 of their submission opposing the appeal from the decision of the AMS) that the matter be determined "on a hearing basis so as to allow further oral submissions". 4.2 Procedural fairness required that the Plaintiff be informed of any decision by the appeal panel to determine the matter "on the papers", in order that there may be an opportunity to be heard by way of written submission on the merits of the case (rather than the merits of allowing an appeal to proceed to which the Plaintiff submission were directed). Grounds five. 5) The appeal panel failed to exercise its jurisdiction, failed to understand that (sic) nature of its task, and erred in law, in failing to ask whether or not there was a "demonstrable error" or "application of incorrect criteria" in the decision of the AMS, so as to permit the appeal panel to substitute its own assessment (incorrectly following Vegan at first instance, which is currently reserved in the Court of Appeal. 32 Before turning to the way the plaintiff put his case on each of the grounds it is convenient to set out the relevant parts of a number of the provisions of Chapter 7 Part 7 of the Act, which deals with medical assessment. 33 Section 325(2) provides: (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. (3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error.

34 Section 327 (at the material time) provide: (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 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. (6) The Registrar may refer a medical assessment for further assessment or reconsideration under section 329 as an alternative to an appeal against the assessment. (7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act. 35 Relevant provisions of s 328 are as follows: (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) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel. 36 Section 329 (at the material time) provided:

(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by: (a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or (b) a court or the Commission.

(2) A certificate as to a matter referred again for further assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.

37 Medical assessments, appeals and further assessments under Chapter 7 Part 7 are subject to the Guidelines issued by WorkCover pursuant to sections 328, 331 and 376(1). Relevant provisions are as follows: Chapter B: The referral process

… 9. The Registrar is to make arrangements for the assessment to take place. 10. The Registrar is to contact the agreed or appointed AMS to obtain an appointment for assessment. Upon request, the AMS must provide an appointment for assessment on a date within 21 days of the request. The Registrar will then immediately forward the referral documents to the AMS. 11. The Registrar advises the parties of the date and location of the assessment, within 2 days of the appointment being made. … 13. When the Registrar refers the matter to the AMS, the Registrar is to provide the AMS with: · A copy of any minute of order or referral indicating the nature of the medical dispute; and · All information and documentation on which the parties propose to rely lodged with the Commission in accordance with the Workers Compensation Commission Rules 2003. 14. The Registrar may communicate with the parties, or any of the worker's treatment or service providers to clarify the matter or matters in dispute. 15. The parties are not to communicate directly with the AMS at any time other than during the examination. The parties are not to provide additional information to the AMS at any time. …

Chapter D: The Medical Assessment Certificate and Report ... 30. The Registrar is to review the MAC and report for any obvious error and if it is correct, sends copies of the MAC and report to: · The relevant member of the Commission who referred the matter for assessment; and · The parties to the dispute; and If the MAC and report addresses the degree of the worker's permanent impairment, each of the parties must also be provided with a notice advising them that they may appeal. 31. If the Registrar is satisfied that a MAC or report contains: · An obvious error, such as a typographical error - provided this does not compromise the meaning of the MAC or report the Registrar may correct the error; or · Any other error - the Registrar is to refer the matter to the AMS for correction. 32. The Registrar is to provide the parties and the AMS with a copy of the altered MAC or report within 7 days of the making of the alteration. 33. If the MAC or report is changed, the altered MAC or report is to be taken to be the decision of the AMS. Chapter E: Reviewing or appealing the Medical Assessment Certificate … 41. Any party to a dispute who receives an appeal has 14 days to file a reply to the appeal. There is no prescribed form for this. However, a reply must include: a copy of the Medical Assessment Certificate being appealed, a copy of all reports and documents that the party sent to the Commission to be referred to the AMS prior to the assessment, and any submissions the party wants to make in regard to the grounds of appeal. 43. The Appeal Panel, comprising two AMSs and an Arbitrator, will undertake a preliminary review of the documents. The parties are not present for this preliminary review. The Appeal Panel decides on the appropriate action to take in the appeal including whether the worker should be examined and if new evidence should be allowed. The Appeal Panel may set a date for an assessment hearing or may decide the appeal on the papers without further involvement from the parties. If the Appeal Panel decides that the worker should have a further medical examination, an appointment time will be arranged with one or both of the AMS members of the panel. If an assessment hearing is scheduled, the parties will be invited to attend. These procedures are detailed below. … 45. The appeal is to be by way of review of the original medical assessment. Any party may bring a legal practitioner or other person with them to the assessment hearing to act as an advocate and to assist in the presentation of the case. The assessment hearing is informal and non-legalistic and will afford the parties a full opportunity to present oral submissions in support of their claims. Submissions must be limited to topics that were in issue in the medical assessment being appealed against. Fresh evidence cannot be given either instead of or as well as evidence that was considered by the original AMS, unless the evidence was not available or could not reasonably have been obtained by the worker. The assessment hearing is non-adversarial and in most cases no evidence will be taken or cross-examination permitted. The parties may seek clarification of matters raised through the assistance of panel members. The assessment hearing will be sound recorded and a copy of the recording will be available to the parties on request.

The submissions 38 The plaintiff's first ground challenges the decision of the Registrar that the defendant's appeal proceed. Subsection 327(4) provides that the appeal is not to proceed unless it appears to the Registrar that one or more of the grounds for appeal specified in subsection (3) exist. The plaintiff contends that the Registrar erred in law and in the exercise of her jurisdiction in finding that ground (d), the medical assessment certificate contained a demonstrable error, appeared to exist. 39 The plaintiff's written submissions were filed before the judgment of the Court of Appeal in Vegan was delivered. In those submissions it was said [WS para 4]: On the authority of Vegan at first instance, it is necessary for the Registrar to establish that one of those grounds [the grounds in s 327(3)(a) - (d)] are made out. It is the Plaintiff's submission that the Registrar is confined to what is pleaded, and the Registrar then must satisfy him or herself that what is pleaded falls within (a) to (d), and is made out.

40 In Vegan (at first instance) Wood CJ at CL concluded that the Registrar's role under s 327(4) is that of a gatekeeper whose task it is to consider whether at least one of the grounds for appeal specified in subsection (3) exists. If she was so satisfied and the matter was referred to an Appeal Panel the latter should conduct a review afresh and was itself not required to determine whether any of the grounds referred to in s 327(3) had been made good. His Honour considered that the Appeal Panel was not confined to correcting errors in the assessment in relation to such ground(s) as had been established and was not subject to a duty to provide reasons for its decision. 41 The Court of Appeal overturned the decision in Vegan, holding that the Appeal Panel was subject to a duty to give reasons. It was not necessary to determine the nature of the appeal. There was no complaint in that case concerning the Registrar's exercise of powers under s 327(4) and Vegan did not involve consideration of the correctness of the Registrar's determination. There are passages in the judgments that touch on the Registrar's role under s 327(4). Handley JA considered that the requirement that the appeal not proceed unless it appears to the Registrar that at least one of the grounds in subsection (3) exists requires that the ground be on its face valid and apparently credible (at [8]). Basten JA (McColl JA concurring) considered that the requirement imposed no more than that the Registrar satisfy herself that a ground in conformity with one of those set out in subs (3) is alleged and, perhaps, that it cannot be dismissed as patently untenable or colourable (at [133]).

42 In this case the defendant appealed against the medical assessment invoking grounds (c) and (d). In submissions in support of its application to appeal the defendant contended that the failure of Dr Meakin to consider all the evidence in accordance with the referral from the Arbitrator meant that the assessment was conducted on the basis of incorrect criteria and that the medical assessment certificate contained a demonstrable error. In the event the Registrar determined that the appeal should proceed because she was satisfied that ground (d) appeared to exist.

43 In the plaintiff's submission the omission to furnish Dr Meakin with any of the material relied upon by the defendant resulted in an assessment that was procedurally flawed but it was not a "demonstrable error" in his medical assessment certificate. 44 There is a lack of clarity in the scope of ground (d) as Basten JA noted in Vegan. His Honour considered it was arguable that factual errors made by an approved medical specialist, recorded in the medical assessment certificate, may be "demonstrable errors" (at [95]). It would appear that a "demonstrable error" for the purposes of subsection (3) embraces something more than an "obvious error", which the Registrar may correct under s 325(3). Malpass AsJ observed that an error is demonstrable if it is capable of being shown or made evident, citing the definition of "demonstrable" in the Oxford English Dictionary, 2nd ed: Pitsonis v Registrar of the Workers Compensation Commission [2007] NSWSC 50. 45 Prior to Dr Meakin's assessment all of the information and documentation on which the parties sought to rely had been filed with the Commission in accordance with the Rules. The Arbitrator had made rulings including to admit late documents filed on behalf of the defendant. Clause 13 of the Guidelines required the Registrar to provide this material to the approved medical specialist at the time of the referral.

46 Dr Meakin was required by s 325(2) to set out his reasons for assessment, together with the facts upon which the assessment was based in the medical assessment certificate. He was not required by the Act or the Guidelines to record in the certificate the material that had been provided to him by the Registrar pursuant to cl 13 of the Guidelines. However, the certificate did contain a statement of all of the medical reports and additional material that had been made available to Dr Meakin at the date of the assessment. 47 A review of Dr Meakin's certificate by the Registrar (who I infer had access to the rulings made by the Arbitrator prior to the referral) made it evident that the assessment had been carried out without Dr Meakin having access to any of the material filed on the defendant's behalf. In the defendant's submission, which was supported by the submissions made by counsel on behalf of WorkCover, it was open to the Registrar to have regard to the file containing the application, reply and the Arbitrator's rulings and from this to be satisfied that it appeared that the ground of demonstrable error in the certificate existed.

48 In Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 Hoeben J held that the ground of "demonstrable error" may be made out in a case in which the error is one readily apparent from an examination of the medical assessment certificate and the document referring the matter to the approved medical specialist for assessment (at [39]). His Honour's reference to the latter appears to have been a reference to the terms of the Arbitrator's referral. His Honour distinguished the facts of Merza from those in Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 945 in which Malpass AsJ held that a medical assessment certificate which contained an opinion that was outside the terms of the referral contained a demonstrable error. In Merza there was nothing in the certificate that was inconsistent with the terms of the referral.

49 In the defendant's submission the plaintiff's challenge to the Registrar's decision that the appeal proceed, was inconsistent with the approach to the review of determinations made under s 327(4) in decisions of this Court. I was referred to the judgment of Studdert J in Brockmann at [31]. His Honour pointed to the language of subsection (4) - the appeal is not to proceed "unless it appears to the Registrar" that one of the grounds for appeal exists - and observed that the provision was intended to discourage appellate review and was effective in so doing. 50 Wood CJ at CL adopted a like approach in Vegan. His Honour referred to the principles set out in Buck v Bavone (1976) 135 CLR 110 at 118-119, noting the confined area of challenge to a decision based on the formation of an opinion by the decision-maker (at [41]). The decision of the Court of Appeal did not call this aspect of the judgment into question. 51 It remains that if the Registrar's reasons reveal that she, wrongly, approached her task by considering that the omission to furnish the approved medical specialist with material filed by a party was capable of being a ground for appeal under s 327(3), the plaintiff may be entitled to the relief that he claims.

52 In Massie v Southern NSW Timber and Hardware Pty Ltd [2006] NSWSC 1045 Sully J dealt with a challenge to a determination under s 327(4), which raised issue similar to that raised in this proceeding. In that case the approved medical specialist, Dr O'Neill, issued a medical assessment certificate, which was the subject of appeal. Among the asserted errors identified in the notice of appeal was the failure to take into account a medical report filed pursuant to an application to admit late documents. The Registrar determined that grounds for appeal existed under subs (3)(d) on the basis that, inter alia, it did not appear that all documents admitted into the proceedings had been provided to the approved medical specialist. 53 Sully J noted that the Registrar appeared to have proceeded upon the view that the medical assessment certificate was based (or at least might be thought reasonably to be based) upon incomplete material. His Honour observed (at [40]): Assuming that the contents of Dr Harris's report simply did not ever reach Dr O'Neill in any form, it seems to me that if that is the only matter to which the Registrar could point as indicating a demonstrable error contained in the certificate as issued by Dr O'Neill, then the matter is not capable of identifying a demonstrable error in the certificate. The contrary is not really contended in the application for leave to appeal. What that application is really contending is that it is demonstrable that Dr O'Neill, through no fault of his own, did not take into account Dr Harris's report, and that Dr O'Neill's certificate, even if it is clearly sustainable on the whole of the material that Dr O'Neill did in fact consider, should nevertheless not be permitted to stand because of a demonstrable need to reconsider the reasoning underpinning the certificate, and to do that taking into proper account Dr Harris's report.

54 Sully J considered that the proper course would have been to refer the matter back to Dr O'Neill or another approved medical specialist for a re-assessment based upon complete material (at [41]). His Honour observed of this course that it would "have accorded with the letter, as well as what seems to me to be the spirit of s 329 of the WIM Act" (at [41]). 55 The Act has been amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005, which commenced on 7 December 2005. This Act introduced a number of amendments to the provisions of Chapter 7 Part 7 dealing with medical assessments. These include the substitution of a new subsection (6) in these terms: The Registrar may refer a medical assessment for further assessment or reconsideration under s 329 as an alternative to an appeal against the assessment.

Subsection (1A) was inserted into s 329: A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.

The words "or reconsideration" are inserted after the words "further assessment" in 329(2). 56 At the date of the Registrar's decision in Massie, which was 24 November 2005, these amendments had not commenced and the Registrar did not have power to refer a matter for further assessment, save on grounds (a) and (b). I understand his Honour's reference to s 329 to be to the power that may be exercised by a court or the Commission under s 329(1)(b). 57 The appeal provided by s 328 is expressed by subsection (2) to be by way of review of the original medical assessment. Subsection (3) provides that fresh evidence or evidence in addition to or in substitution for that received by the approved medical specialist 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. The Court of Appeal noted in Vegan that in a case in which fresh evidence is admitted the appeal might be more properly characterised as a hearing de novo than a review. 58 It is to be noted that evidence that was available to the defendant (and which was filed by the defendant in conformity with the Workers Compensation Commission Rules) would not appear to answer the description of being, "fresh evidence or evidence that was not available to the appellant before the assessment or could not reasonably have been obtained by the appellant before the assessment" for the purposes of s 328(3). This consideration may be thought to provide support for an acceptance that the ground of "demonstrable error" does not extend to allow a s 328 appeal against an assessment that was carried out without recourse to material filed in support of it. 59 Massie involved the determination of an issue concerning the scope of the ground of "demonstrable error" in circumstances that are relevantly similar to those raised in this proceeding. I consider that I should adopt the same approach unless I am satisfied that it is plainly wrong. I am not of that opinion. 60 I consider that the Registrar erred in law in deciding that the application made by the defendant satisfied the minimum requirements of s 327(3) in that at least one of the grounds for appeal, namely ground (d), existed. 61 In Massie Sully J declined to grant relief in the exercise of discretion because the respondent had failed to challenge the Registrar's determination prior to the Appeal Panel proceedings being heard and determined. No submissions were addressed to the exercise of the discretion in the present case.

62 In determining whether to grant the discretionary relief that the plaintiff claims arising out of the Registrar's decision it is appropriate to consider the grounds that challenge the decision of the Appeal Panel.

63 Ground 4 contends that the Appeal Panel failed to afford the plaintiff procedural fairness because it proceeded to a determination of the matter "on the papers" without hearing further from the parties either by way of written submissions or by the holding of an assessment hearing. 64 The defendant acknowledged that the Appeal Panel proceeded upon a factually wrong basis, namely, that the plaintiff did not object to the determination of the matter without an assessment hearing and that the plaintiff supported an assessment on the papers. In the defendant's submission this factual error did not amount to a denial of procedural fairness: Appeals heard by Appeal Panels are subject to the procedures provided in the Guidelines (s 328(2)), including cl 43 that is set out above. At the preliminary hearing the Appeal Panel may decide that an appeal will be determined without a further medical examination and without an assessment hearing.

65 In the defendant's submission, the plaintiff had the opportunity to put submissions before the Appeal Panel. He did so. It was open to the Appeal Panel to conclude that the matter would be dealt with on the papers notwithstanding the plaintiff's wishes in this respect. In the defendant's submission, the plaintiff was not entitled to assume that the Appeal Panel would accede to any request that there be an assessment hearing, and any matters that he wished the Appeal Panel to take into account should have been canvassed in the submissions. The Appeal Panel's decision to decide the appeal on the papers was said not to have involved any denial of procedural fairness. 66 Counsel for the plaintiff relied on his written submissions, which were filed well in advance of the hearing. Ground 4 was in these explained as embracing the Appeal Panel's failure to take into account a relevant consideration, namely, that the plaintiff desired to have an assessment hearing and to make oral submissions to it (WS [16] - [17]).

67 It may be accepted that it was open to the Appeal Panel to determine that the appeal would proceed without an assessment hearing. However, there is force to the complaint that the Appeal Panel's discretion to decide whether to hold an assessment hearing was not properly exercised. It seems to me that it 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. 68 The Appeal Panel's failure to take into account the plaintiff's wish to have an assessment hearing and make oral submissions would only justify setting its determination aside if it was bound to take this consideration into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 Mason J at 39. In determining whether the Appeal Panel was bound to take this consideration into account it is necessary to have regard to the functions of the appeal panel under the Act. The appeal panel exercises a function that is judicial in nature. Its determination has potentially significant consequences for the parties. An assessment hearing offers the injured worker an opportunity to be legally represented and to have oral submissions advanced on his or her behalf. A party may be permitted to cross-examine a witness at an assessment hearing. The proceedings are recorded. An assessment hearing may offer important procedural protections to a party to a medical dispute. 69 In this case the Appeal Panel was being invited by the defendant to find the degree of the plaintiff's impairment to be less than that assessed by Dr Meakin who had examined him by reference to material, which included surveillance film at a review conducted "on the papers". In my opinion the Appeal Panel was bound to take into account the plaintiff's wish that there be an assessment hearing and his desire to make oral submissions at it. The failure to take this consideration into account is an error of the kind described in Craig in the passage that I have set out (at [29] above). 70 In view of the conclusion to which I have come it is not necessary to deal with grounds 5 or 6 (the latter being a further ground which the plaintiff was given leave to rely on at the hearing).

71 In my opinion the decision of the Registrar was attended by jurisdictional error. The discretionary consideration that led the Court in Massie to refuse to grant the relief claimed does not arise in this case. It is not to the point to consider whether the plaintiff might have challenged the Registrar's determination rather than allowing the appeal process to take its course. The plaintiff has made good his challenge in ground four to the Appeal Panel's exercise of its function. 72 In his amended summons the plaintiff claims an order quashing the decision of the Registrar and, in the alternative, an order quashing the decision of the Appeal Panel. The order quashing the determination of the Registrar, which is that sought in prayer one, would leave Dr Meakin's medical assessment certificate as conclusively presumed to be correct as to the matters set out in s 326(1)(a) - (e), notwithstanding the plaintiff's acknowledgment that the assessment was carried out without Dr Meakin having access to any of the material filed by the defendant. 73 The plaintiff acknowledged that the assessment conducted by Dr Meakin was procedurally flawed. In the plaintiff's submission, although this did not constitute a ground for appeal under s 327(3), it was a matter that could be remedied in a number of ways including by judicial review. In the plaintiff's counsel's submission the assessment carried out by Dr Meakin was without legal effect because of the failure to take into account the defendant's material. Counsel submitted that it was open to the defendant to approach Dr Meakin and invite him to carry out a fresh assessment taking into account the whole of the material filed in accordance with the Rules. He relied on the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 in support of his submissions in this respect. 74 It is necessary to have regard to the scheme of the Act in deciding whether it is open to the defendant to approach Dr Meakin and invite him to carry out a fresh assessment. Medical assessments under Chapter 7 of Part 7 are subject to the provisions of the Guidelines (which under s 331 include the procedures for the referral of matters for assessment). Clause 15 of the Guidelines prohibits the parties from communicating directly with the approved medical specialist at any time other than during an examination. Under the Guidelines contact with the approved medical specialist is confined to the Registrar. Chapter 7 Part 7 prescribes the circumstances in which the Registrar may refer a matter to an approved medical specialist for assessment. At the date of these events the Registrar's powers to refer for assessment were limited by s 329(1) to a referral for further assessment as an alternative to an appeal in a case in which it appeared to the Registrar that grounds (a) or (b) or either of them existed (s 327(6)). 75 It is not clear that the scheme of Chapter 7 Part 7 allows of a referral of a matter by the Registrar to the approved medical specialist or another approved medical specialist in circumstances in which the initial assessment was flawed for want of procedural fairness upon the basis of the approach taken in Bhardwaj.

76 In written submissions counsel for the plaintiff submitted that it was open to the defendant at a directions hearing to ask the Arbitrator, as a member of the Commission, to refer the matter back for further assessment pursuant to s 329(1)(b). The submission was not developed in oral argument. It is not necessary to determine whether this course was one that was available to the defendant. In light of the plaintiff's acceptance that a referral for further assessment is appropriate, and given that the Court has a power to make such a referral under s 329(1)(b), I propose to so order.

ORDERS 1. Quash the determination of the second defendant, the Registrar of the Workers Compensation Commission, made on 6 July 2005 referring matter number 5540/04 to the Appeal Panel; 2. Quash the decision of the Appeal Panel revoking the Medical Assessment Certificate of Dr Ian Meakin and issuing a new Medical Assessment Certificate; 3. Refer the matter for assessment pursuant to s 329(1)(b); 4. The defendant is to pay the plaintiff's costs. **********

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