Department of Education v TF

Supreme Court of NSW|2016-12-08|Before: Garling J

Judgment

These are judicial review proceedings commenced by the NSW Department of Education ("the Department") in relation to a decision of the Appeal Panel of the Workers Compensation Commission ("the Panel").
The whole of the proceedings relate to an application by the first defendant, anonymised as TF, for a lump sum of compensation for psychiatric injury sustained during his employment with the Department as a school teacher between 1997 and 2013.
The Department appeals against the decision of the Panel upholding an appeal of the first defendant, TF, against a Medical Assessment Certificate authored by an Approved Medical Specialist, Dr Norman Rose.
That Medical Assessment Certificate found that TF was suffering a whole person impairment of 7%. On appeal to the Panel, the Panel found that TF suffered from 17% whole person impairment.
The Department now seeks relief in the nature of certiorari quashing the Panel's decision and an order remitting the matter to the Registrar of the Workers Compensation Commission for determination according to law.
It is convenient to set out in more detail the procedural history of the matter, including the circumstances which lead to TF's claim for workers compensation.

Claim for Workers Compensation

On 23 September 2013, TF completed a Workers Compensation Claim Form pursuant to the Workers Compensation Act 1987 (NSW) ("the Act") for psychiatric injury suffered during his employment with the Department. On 17 February 2014, Dr Bertucen, a psychiatrist retained by the Department's insurer, Allianz Australia Insurance Ltd ("Allianz"), assessed TF and concluded that he was suffering from chronic adjustment disorder and features of anxiety and depressed mood.
In May 2014, Brookside Investigations commenced surveillance of TF on the instructions of Allianz. This surveillance revealed that TF was giving musical performances with a music group.
On 4 December 2014, Dr Klaus Akkerman, a second psychiatrist retained by the Department, assessed TF as suffering from major depression, panic disorder with agoraphobia and generalised anxiety disorder. Dr Akkerman gave a supplementary report on 11 December 2014 opining that TF suffered from a whole person impairment of 26%, which could worsen to 27% if TF's psychological treatment ceased.
On 8 January 2015, the solicitors for TF, Maurice Blackburn Lawyers, sent a letter of demand to the Third School and Allianz claiming compensation for TF for a 27% whole person impairment occasioned by his employment with the Department. In support of the claim, and enclosed with that letter by way of service, were Dr Akkerman's reports of 4 and 11 December 2014.
On 9 January 2015, Dr Akkerman produced a further supplementary report, expressing the opinion that the fact that TF was giving musical performances might indicate that TF was not as impaired as he had previously assessed him to be. Nevertheless, the doctor could not say that this was in fact the case without examining TF again.
On 30 January 2015, Brookside Investigations reported its surveillance of TF during January 2015 to Allianz. The supporting material relevant to these investigations was given to the insurer on 9 March 2015. On that day, and again on 24 March 2015, Brookside Investigations provided Allianz with two reports of its surveillance of TF.
As a result of Dr Akkerman's latest opinion and in light of the Brookside Investigations report, Allianz, on 27 February 2015, gave notice of its decision to decline liability pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Injury Management Act").

Application to Resolve Dispute

On 9 June 2015, TF filed and served an Application to Resolve a Dispute ("the Application") pursuant to s 288 of the Injury Management Act.
The Application indicated that the deemed date of TF's psychological injury was 3 July 2013, the last day of his employment by the Department at the Third School. The Application also sought referral for medical assessment of TF by an Approved Medical Specialist, pursuant to s 293 of the Injury Management Act, in relation to the calculation of a lump sum of compensation for TF's injuries, due to there being a dispute about the degree of TF's impairment.
Moreover, the Application claimed that TF was entitled to $49,500 in compensation for 27% whole person impairment for psychological injury pursuant to s 66 of the Injury Management Act. It annexed relevant correspondence and medical reports relating to TF written by Dr Akkerman, Dr Elizabeth Pickup, Dr Marshall O'Brian, and Dr Emma Adams. It also included letters sent by TF's solicitors, Maurice Blackburn Lawyers, to Allianz, and a statement made by TF.
The Department filed a Reply to the Application ("the Reply") on 20 June 2015. In the Reply, the Department applied for leave pursuant to s 298A(4) of the Injury Management Act to raise additional grounds of dispute, including the deemed date of injury, the alleged causal relationship between the workplace incidents and the injury, and the proposed terms of the referral for medical assessment.
Some of these additional grounds of dispute were resolved, and TF filed an Amended Application clarifying that his psychological injury occurred due to the nature and conditions of his employment between 1997 and 2013.
On 14 August 2015, Allianz filed an application to admit late documents for the consideration of the Approved Medical Specialist ("AMS"), namely a report of Dr Bertucen dated 14 August 2015. Importantly, in this report, Dr Bertucen described his disagreement with some assessments made by Dr Akkerman in his report dated 4 December 2014. Nevertheless, Dr Bertucen did not express any specific disagreement with Dr Akkerman's opinion on the level of TF's whole person impairment.
On 24 August 2015, the Workers Compensation Commission ("the Commission") issued a Certificate of Determination - Consent Orders pursuant to section 294 of the Injury Management Act. The Arbitrator, Mr Gerard Egan, recorded that a telephone conference was held between TF and the Department on 21 August 2015, whereupon the parties were able to reach an agreement on some issues.
In accordance with this conciliation, the Arbitrator recorded the following determination of the Commission: 1. [TF's] claim for compensation be remitted to the Registrar for referral to an AMS to assess [TF's] whole person impairment resulting from his employment between 1997 and 2013; 2. The AMS is requested to provide an opinion (in percentage terms) of the contribution to the total whole person impairment from causative events prior to 1 January 2002.
The AMS was requested to have regard to: 1. the "blackmailing" incident; 2. the fact that [TF] witnessed, was subjected to and had to manage students behaving violently towards him and towards other children, and had to manage students with behavioural issues; 3. the incident with the student suffering from Foetal Alcohol Syndrome; 4. the incident involving the student with severe bruising; and 5. [TF's] increased workload (including work as an assistant principal) at [the Third School].
On 26 August 2015, the Commission issued a Referral for Assessment of Permanent Impairment to an AMS pursuant to s 319 of the Injury Management Act. The AMS was also requested to assess TF's level of whole person impairment from causative events occurring prior to 1 January 2002. The parties requested that the Registrar appoint an AMS. Accordingly, Dr Norman Rose, who was based in Canberra, was appointed.

Assessment by Dr Rose

On 23 September 2015, Dr Rose completed a Medical Assessment Certificate, supported by reasons. Dr Rose examined TF on 8 September 2015. TF provided a history of his employment with the Department to Dr Rose which detailed the "blackmail" episode at the Second School in the late 1990s, the incident involving the child with Foetal Alcohol Syndrome in 2008, in addition to other situations in which he "had to deal with difficult, aggressive and defiant students", including on one occasion where "one child tried to put another child's eyes out and … on trying to restrain the child who was attacking the other [TF] injured his shoulder".
TF reported to Dr Rose that he had "patchy" sleep, an erratic appetite, and "remains severely depressed, with a constant harrowing black sadness". TF also described claustrophobia and a fear of crowded places. In relation to his musical performances, TF told Dr Rose that it "was only with great difficulty that he has been able to give his very infrequent musical performance" and "[s]ince his last musical performance, which occurred in around March 2015, [TF] claims that he has become even more reluctant to perform music".
In Dr Rose's opinion, the episode in 2008 when TF was attacked by the student with Foetal Alcohol Syndrome was "the main traumatic event". He said: "In my opinion, this would have been the major factor in causing his condition, although other matters such as dealing with aggressive and difficult students over the years would have had their role in making him sick. At any rate, matters did come to a head when [TF] was teaching at the [Third Public School] and he had to deal with one child trying to put another child's eyes out and he had to deal with other difficult children. It was by then that he developed his most severe psychiatric symptoms, which included those of severe depression, sufficient I believe for a diagnosis of major depression to be made. He also developed panic attacks and some degree of agoraphobia. … From a diagnostic perspective I consider that [TF] is suffering from: 1. Major depression. 2. Anxiety with panic attacks."
In relation to TF's musical performances, Dr Rose recorded that TF "was at pains to tell me that any musical performances were infrequent and that there was a great deal of anxiety and emotional difficulty associated with them, especially if it meant performing or being in crowds of people". Accordingly, Dr Rose found no inconsistency between TF's musical performing and his impairment in social functioning.
Dr Rose's reasons also included an assessment of TF under six categories of the Psychiatric Impairment Rating Scale ("PIRS"). Those categories were self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability.
Dr Rose assessed TF in relation to each of those categories, and provided a numerical class between 1 and 5 which Dr Rose believed represented TF's impairment in relation to that category. Class 1 represents no deficit, or minor attributable deficit in that area, and class 5 represents total impairment. Each class or rating has descriptors which are provided in Chapter 11.3 of the WorkCover Guides for the Evaluation of Permanent Impairment (3rd ed., 6 February 2009) ("the Guides"). Each class contributes differentially to an assessment of the percentage of whole person impairment.
The percentage of whole person impairment is then calculated. First, the median class score must be found. Secondly, an aggregate score is calculated by adding the six class scores. Then the conversion table provided by the Guides is used to convert the aggregate score into a percentage of whole person impairment.
Dr Rose assessed TF to be at the following levels of impairment: Self-care and personal hygiene 3 Social and recreational activities 2 Travel 2 Social functioning 1 Concentration, persistence and pace 2 Employability 5

Dr Rose noted that TF's condition had not improved over the past 12 months, despite psychiatric and psychological treatment, and therefore opined that TF's condition had reached maximum medical improvement. Therefore it was possible for Dr Rose to assess permanent psychiatric impairment.
Apportioning the amount of impairment that was due to a condition before 1 January 2002 and the amount after that date, Dr Rose concluded that 10% of TF's whole person impairment was due to causative events occurring before 1 January 2002. Therefore, Dr Rose opined that the total allowable psychiatric impairment after 1 January 2002 was 7%.

TF's Appeal

On 21 October 2015, TF lodged an Application to Appeal against Dr Rose's Medical Assessment Certificate. The grounds of appeal nominated in Part 3 of the standard form, by placing an "X" in the requisite box, were that the assessment was made on the basis of incorrect criteria, and that the Medical Assessment Certificate contained a demonstrable error. TF requested in that Application to Appeal that he be re-examined by an AMS who was a member of the Appeal Panel. The submissions which formed part of the Application to Appeal, also addressed those two grounds.
In essence, TF submitted that Dr Rose fell into error in the assessments he made in relation to four of the six categories of the PIRS. TF contended that the following categorisations were more appropriate (Dr Rose's assessments are included in brackets for comparison): Social and recreational activities 3 (2) Travel 3 (2) Social functioning 2 "at least" (1) Concentration, persistence and pace 3 (2)

On 10 November 2015, Allianz, as the insurer of the Department, lodged a Notice of Opposition to TF's Application to Appeal.
On 9 December 2015, Ms McAdam, Delegate of the Registrar, issued a Decision pursuant to s 327(4) of the Injury Management Act. Section 327 provides: "327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds: (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out."
Section 328 of the Injury Management Act is also relevant: "328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. (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.
The Registrar's Delegate concluded: "Upon examination of the MAC [Medical Assessment Certificate] and on the face of the application and the submissions made, I am satisfied that a ground of appeal as specified in section 327(3)(d) is made out in relation to the AMS's assessment of the appellant's psychological/psychiatric disorder."
Accordingly, the appeal was referred to a Medical Appeal Panel ("the Panel") composed of Mr John Wynyard (Arbitrator), Dr Lana Kossoff (AMS, Psychiatrist) and Dr Nicholas Glozier (AMS, Psychologist).
No complaint is made in these proceedings about the decision of the Registrar's delegate to refer the matter to the Panel.

The Panel's Decision

The Panel's decision was delivered on 8 April 2016. After detailing the history of the proceedings and the evidence before it, the Panel proceeded to record its findings and reasons.
The Panel also gave consideration to decisions of this Court and the Court of Appeal which have commented on the Panel's jurisdiction to hear appeals, such as Siddik v WorkCover Authority of NSW [2008] NSWCA 116; (2008) 6 DDCR 228 and New South Wales Police Force v The Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 ("NSW Police")
It also noted the decision in NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, in which the Commission held at [32]-[33]: "The question of the classification under the PIRS scale is very much one for the AMS after a balancing of all the information before him. There can be some grey areas in which other minds might ascribe a higher or lower rating, but unless a glaringly improbable categorisation has been made, or it can be demonstrated that the AMS was unaware of significant factual matters, the assessment is very much a matter for him/her based upon clinical experience and the assessment of all the material before him. In this branch of medical science, the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her inquiries with the applicant face to face. It is very difficult in this field for other specialists to superimpose their opinion unless there has been a clear misunderstanding or an unsupportable reasoning process for the rating given. See Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 per Mason P at 49, who described a demonstrable error as being 'an error that is readily apparent for an examination of a medical assessment certificate and the document referring the matter to the AMS for assessment."
The Panel then moved to address each of the PIRS categories submitted to have been incorrectly assessed by TF.
On the "social and recreational activities" category, the Panel noted the comments of Dr Rose as well as excerpts from TF's treating psychologists and psychiatrists relating to TF's interest in music. The Panel also noted the surveillance footage of TF obtained by Brookside Investigations, which depicted TF performing at a licensed club on 9 May 2014 and at a venue in Southern NSW on 17 May 2014.
The Panel noted TF's submission that Dr Rose made an error of fact when he found that TF was capable of participating in a recreational activity. Instead, TF argued that his performances were work-related.
The Panel found no error in Dr Rose's assessment of TF in this category, noting at [36] of its Decision: "The rating scale is concerned with the behavioural consequences of a psychiatric disorder, and the ability of a person with such a disorder to function within the restrictions caused by it. Whether a person can do an activity with difficulty, or is unhappy whilst doing it, or would rather not be doing it, are matters that are secondary to the fact that the person is able to perform it." (sic)
In relation to the "travel" and "social functioning" categories, the Panel also found no error on the part of Dr Rose.
For the "concentration, persistence and pace" category, where Dr Rose found mild impairment consistent with level 2, the Panel noted the contrast between that assessment and the history which Dr Rose took from TF. According to that history: "[TF] can read for only 10 minutes at a time and sometimes he has to read the paragraphs over and over again. Because of confusion he cannot do his own banking. He has significant problems finishing things. It takes hours to pack things before he goes on an outing with his wife. When he goes on such outings he goes only to keep her company and he is uninvolved and often if his wife is giving a musical performance he will not be in the performance room because there are too many people there."
The Panel noted that this discrepancy was not explained, and therefore concluded that a demonstrable error had occurred. The Panel noted at paragraph 51 of its decision: "We note that the AMS also found an essentially normal examination in concentration. … The discrepancy between these observations (and the Panel note the lack of reasoning supporting the assertion that [TF's] memory and cognition were "normal") and the impairment recorded in the PIRS rating form and section 4 [of Dr Rose's report] is not explained. In this matter, with respect, we are satisfied that a demonstrable error has occurred. The AMS has been diverted by the evidence concerning the performance activities revealed in the surveillance material, which were obtained in 2014, over 15 months prior to the assessment with the AMS, and later explained in the evidence [TF gave to Dr Rose] … The playing of a guitar by an experienced guitarist in our view does not negate the proposition that the guitarist may nonetheless suffer from a moderate impairment in this category … Accordingly the Panel considers a class 3 assessment is appropriate for this category."
Hence, the Panel decided that the Medical Assessment Certificate issued by Dr Rose should be revoked and a fresh certificate issued. The fresh Certificate was attached to the Panel's reasons. Applying the methodology set out in the Guides, the Panel arrived at a figure of 17% whole person impairment.
On 24 May 2016, the Commission issued a Certificate of Determination - Consent Orders, which recorded that, by reason of agreement between the parties: 1. The Department would pay [TF] a lump sum payment of $25,300 pursuant to section 66 of the Act in respect of [TF's] whole person impairment of 17%; and 2. That sum would be reduced by 10% pursuant to Part 18C(3) of Schedule 6 of the Act, such that the compensation payable to [TF] was $22,770.

The Present Pleadings

On 28 June 2016, the Department filed a Summons in this Court seeking: 1. an order in the nature of certiorari quashing the decision of the Medical Appeal Panel of the Workers Compensation Commission of New South Wales of 8 April 2016; 2. an order in the nature of mandamus remitting the matter to the third defendant; and 3. Costs.
The Summons included the following grounds: 1. that the second defendant, the Panel, made a jurisdictional error in finding a demonstrable error when no such demonstrable error was identified by the first defendant; 2. that the Panel made a jurisdictional error in finding a demonstrable error when no such demonstrable error was referred by the third defendant, the Registrar of the Workers Compensation Commission of New South Wales ("the Registrar"); 3. that the Panel made a jurisdictional error in failing to take into account relevant evidence before it; 4. that the Panel made a jurisdictional error in finding a demonstrable error when the error was not readily apparent from an examination of the face of the certificate and the document which referred the matter to an Approved Medical Specialist; and 5. that, in the alternative, the Department referred to Grounds 1-4 above and alleged that they gave rise to errors on the face of the record pursuant to s 69 of the Supreme Court Act 1970 (NSW).

Submissions - Grounds 1 and 2

It is appropriate to deal with Grounds 1 and 2 together since they raise similar issues. This was the approach adopted by the parties.
The Department accepted that by reference to the application form, TF's appeal to the Panel was based upon two grounds - incorrect criteria (s 327(3)(c) of the Injury Management Act) and demonstrable error (s 327(3)(d) of the Injury Management Act).
Nevertheless, the Department asserts that, in substance, TF only particularised one basis for a demonstrable error in his application. That is, Dr Rose's failure "to consider or provide any rationale for the reference the AMS makes to medication as required by paragraph 11.9 [of the Guides] concerning the Effects of Treatment".
Hence, the Department submits that, since the Registrar only certified that one ground of TF's appeal was made out on the face of the application (that is, the ground under s 327(3)(d)), this was the only error that was properly before the Panel and open for the Panel to consider. As a result, the Department argues that the Panel exceeded its jurisdiction in finding the error which it did.
As authority for this proposition, the Department drew attention to the decision of Davies J in NSW Police.
In that case, the worker asserted that the AMS failed to obtain and record an adequate history and failed to place him in the appropriate classes for two particular PIRS categories.
Davies J, in upholding the appeal in NSW Police, held that the Appeal Panel made a jurisdictional error when it went beyond the appellant's grounds of appeal to consider grounds of appeal not particularised in the appellant's application for appeal or the attached submissions. Davies J made an order in the nature of certiorari quashing the Panel's decision and remitted the matter to the Panel to be decided according to law.
The Department drew particular attention to [49] of his Honour's judgment, where his Honour said: "The approved form of application to appeal against a decision of an approved medical specialist contains the notation that is set out in paragraph [10] above. Noting that the warning on the form appears to give a discretion where submissions are not filed with the application whereas the Guidelines do not, it is apparent that the submissions are, nevertheless, an integral part of the identification of the grounds of appeal. In that way if a party identifies in respect of a ground [327(3)] (d) appeal particular demonstrable errors, the appeal should be regarded as being confined to those matters. The grounds of appeal taken with the submissions will constitute "the grounds of appeal on which the appeal is made" [in section 328(2)]. In my opinion, that result is most consistent with what the amendments in 2010 must be taken to have intended."
I also note [51] of his Honour's remarks, where his Honour succinctly summarised his conclusion on the interpretation of s 328(2) of the Injury Management Act: "In any event the present case must be determined on a proper construction of s 328(2). In my opinion the phrase "the grounds of appeal on which the appeal is made" is directed to greater particularity than simply categorising the appeal as being within one or more of the grounds in s 327(3). That is the purpose of requiring "submissions...detailing the grounds of the appeal."
Counsel for TF submitted that TF's appeal against Dr Rose's assessment of TF under the PIRS category of "concentration, persistence and pace" was clearly articulated in TF's submissions on appeal to the Panel. As a result, TF argues that the Panel was entitled to consider this ground.
In support of this argument, TF draws attention to the fact that, on TF's application to appeal against Dr Rose's decision, TF placed a cross in the "incorrect criteria" box and the "demonstrable error" box.
Counsel for TF also noted that the Department's submissions on appeal from Dr Rose's decision indicated that, contrary to their submission on this appeal, their interpretation of ss 327 and 328 of the Injury Management Act was that all grounds of appeal nominated in the application to appeal were open for consideration by the Panel.
TF also argued that the Registrar's finding that TF's ground of appeal under s 327(3)(d) had merit should not be read as limiting the grounds of appeal which the Panel was entitled to consider.
Further, TF submitted that the discrepancy identified by the Panel between Dr Rose's recitation of the relevant facts relating to TF's impairment, and Dr Rose's assessment of TF's level of impairment, was a transparent demonstrable error that the Panel was entitled to find.
TF says that this conclusion is further supported by the Panel's careful consideration of the restrictions on its power by reference to the decisions in Siddik and Wark, which he submitted indicates that the Panel was seized of the limits of its jurisdiction.
Moreover, TF submits that in the absence of any authority which creates a clear demarcation between the meaning of "demonstrable error" and "incorrect criteria", the Court should be slow to imply such a sharp distinction between those two phrases as would limit the Panel's jurisdiction not only to consider the grounds of appeal articulated by the appellant, but also the Panel's jurisdiction to determine a ground of appeal substantively even if the Panel considered it to be inappropriately categorised as either a demonstrable error or an error by way of incorrect criteria.
In the alternative, TF submitted that a proper reading of the Panel's reasons indicates that the Panel upheld TF's ground of appeal under s 327(3)(c), and not s 327(3)(d).
In support of this proposition TF points to paragraph 49 of the Panel's Decision. After discussing what the Panel perceived to be an inconsistency between TF's situation and the rating which Dr Rose gave to the severity of TF's impairment in the category of "concentration, persistence and pace", the Panel said: "The question then arises, in terms of the authorities mentioned at the outset of these reasons, as to whether such an assessment is glaringly improbable, made on an unsupportable reasoning process, or demonstrates a clear misunderstanding of the factual issues." (emphasis added)
TF submitted that, despite the phrase "demonstrable error" being used by the Panel in the following paragraph of its reasons, those words should be construed as the Panel's terminology for an assessment which is "glaringly improbable, made on an unsupportable reasoning process, or demonstrates a clear misunderstanding of the factual issues". In other words, the Panel is actually upholding TF's ground of appeal under s 327(3)(c) of the Injury Management Act, which was a ground which was articulated in his application for appeal and in his submissions, and which is therefore open to consideration by the Panel.
On the issue of the proper interpretation of Davies J's decision in NSW Police, TF argued that the interpretation put forward by the Department was not correct. He submitted that the reason that relief was granted in that case was because the Appeal Panel had strayed from the grounds of appeal nominated in the appellant's application for appeal and in the appellant's submissions.
On this basis, counsel for TF argued that the instant case was distinguishable from NSW Police, because the Panel had regard to a submission which TF made in his application and which was included in his attached submissions. Therefore, TF argued that that ground of appeal was open to consideration by the Panel.
Counsel for TF also pointed to Davies J's comments in that case at [45]-[46], where his Honour said: "It seems to me that there are two errors in the approach to s 328(2) taken by both the Appeal Panel and the Third Defendant. The first error is to identify the words "grounds of appeal" in s 328(2) with the words "grounds for appeal" in s 327 see paragraph 43 of the reasons. The use of the different preposition may be thought to be significant. To the extent that the Appeal Panel considered that s 328(2) was only limiting an applicant to any one of the grounds of appeal contained in s 327(3) by its use of the words "grounds of appeal" I consider that such a construction of the section is wrong. It overlooks the words which follow -"on which the appeal is made"."
Relying upon these paragraphs, TF submitted that the grounds to which the Panel was able to have regard should not be limited to the sole ground or grounds approved by the Registrar under s 327(4) of the Injury Management Act.
Moreover, counsel for TF orally submitted that the proper interpretation of s 327(4) of the Injury Management Act is that once the Registrar has found that one ground of appeal is made out, all of the appellant's grounds of appeal (as expressed in the application to appeal and in the appellant's submissions) are open to be considered by the Panel.
The effect of this submission was that TF was asking the Court to disregard the format of his submissions, which were divided into two categories - "incorrect criteria" and "demonstrable error" - and to regard the whole submission as a matter of substance as going to either or both of those grounds.
While counsel conceded that the layout of TF's submissions was regrettable, he submitted that it ought not be fatal to TF's appeal. In other words, he submitted that form was not determinative but that substance was.

Discernment

Contrary to counsel for the Department's submissions, I am not persuaded that [49] of his Honour's judgment in NSW Police supports the Department's contention that only grounds stated as being made out by the Registrar are open for consideration by the Panel pursuant to s 328(2) of the Injury Management Act. On the contrary, I am satisfied that his Honour was asserting the opposite of the proposition for which counsel for the Department was contending.
Simply put, Davies J held that the grounds of appeal properly before the Panel are constituted by the grounds of appeal nominated in the application for appeal, combined with the appellant's submissions.
Counsel for the Department submitted orally that the judgment in NSW Police should be construed in the manner it contended because, if the Registrar had regard to the appellant's written submissions, then the Registrar was required to nominate all those grounds which the Registrar believed were made out, regardless of whether they were nominated on the application form.
I do not find this submission convincing, particularly since s 327(4) of the Injury Management Act obliges the Registrar to be "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". There is no obligation on the Registrar to identify more than one ground of appeal which the Registrar perceives to be made out under that section, before referring the application to the Panel.
The provisions of s 328(2) of the Injury Management Act support this conclusion. It provides that the review is limited to the "grounds of appeal on which the appeal is made", not on the ground, or grounds, of which the Registrar was satisfied under s 327(4) of the Act.
As well, the terms of s 328 do not limit the Panel's consideration in the way contended. Section 328(4) of the Injury Management Act permits an injured worker, when attending an assessment, to bring with him or her, a person who can be their legal adviser "… to act as the injured worker's advocate …". The advocate is entitled to assist the injured worker to present his or her case to the Panel. This legislated procedure does not provide for the attendance in person of anyone to represent the employer or the employer's insurer.
No restrictions are placed on what may be said in the presentation by the injured worker's advocate of the worker's case save that the Panel is restricted to the grounds identified in the Application for Appeal and attached submissions. The process of putting submissions to the Panel, or on assessment, is a unilateral one.
Against that background, the proposition advanced by the Department is that submissions made in writing by an injured worker can only be considered under the ground identified in a formatted heading, rather than more generally. This submission is an unattractive one. There seems to be no reason if an injured worker's advocate could make the submissions orally, that the Panel could not consider the written submissions as going to any of the grounds nominated in the Application to Appeal.
For the above reasons, I am not persuaded that the Department has made out its case on this ground. Accordingly, I would dismiss Grounds 1 and 2 of the Summons.

Submissions - Ground 3

The Department submitted that the Panel failed to take into account the surveillance of TF undertaken by Brookside Investigations in 2015, and thereby failed to have regard to a relevant consideration.
As a result, the Department argued that, had the Panel had regard to the 2015 surveillance, it may not have come to the conclusion that Dr Rose was in error in respect of the class that he assigned TF for impairment of social functioning.
In particular, it pointed to paragraph 49 of the Panel's Decision, where the Panel said: "At first sight, the list of functional behavioural consequences of the appellant's psychiatric disorder would suggest a class 3 rating. Although the descriptors are not criteria, nonetheless, the cumulative weight of the functional limitations listed by the AMS would, on their face indicate a moderate impairment. However, the AMS has listed those limitations himself and nonetheless applied a mild impairment. The question then arises … as to whether such an assessment is glaringly improbable, made on an unsupportable reasoning process, or demonstrates a clear misunderstanding of the factual issues."
Counsel for the Department submitted that the words "cumulative weight" should be interpreted as indicating that the Panel placed more weight on certain matters than did Dr Rose. In essence, counsel submitted that that phrase should be construed as the Panel articulating a professional disagreement with Dr Rose's analysis of the significance of the surveillance report about TF on Dr Rose's conclusion on the level of impairment that TF suffered in his social functioning.
On this issue, the Department placed particular emphasis on the Panel's criticism of Dr Rose as being "diverted by the evidence concerning the performance activities revealed in the surveillance material" when the Panel itself had neglected to consider the surveillance material from 2015. The Department submitted that as a result of this failing, the Panel's differing position to Dr Rose was wrong.
As a result, the Department argued that such a disagreement could not be characterised as a demonstrable error. Instead, it was more properly characterised as a professional disagreement, which could not amount to demonstrable error and therefore that the Panel had made a jurisdictional error.
Counsel did not take the Court to any authority which supported this submission.
Counsel for TF drew the Court's attention to sections of the Panel's reasons where the Panel indicated that it had considered the reports of other psychiatrists and psychologists. Counsel submitted that the Court should be satisfied that, based upon those reasons, the Panel and Dr Rose had sufficient and appropriate regard to the evidence that was before them regarding the first defendant's musical performances.
In the alternative, TF submitted that, even if the Court was satisfied that the Panel and Dr Rose had failed to have regard to the 2015 surveillance report by Brooksight Investigations, the Court would conclude that such a failure would not have made any material difference to the factual background of the Panel and Dr Rose's considerations. TF submitted that this was so because the 2015 surveillance report did not alter or rebut any of the assumed or accepted facts which were before Dr Rose and the Panel.

Discernment

On the question of whether the Panel had regard to the 2015 surveillance reports, I am not satisfied that the Panel failed to have regard to that evidence.
First, the Panel had access to all of the evidence that was before Dr Rose. That evidence comprised of the "application and attached documents" and the "reply and attached documents". I take those documents to be TF's Application to Resolve a Dispute and Allianz's Reply to that Application. Attached to Allianz's Reply were reports commissioned by Allianz and provided by Brookside Investigations on TF, dated 4 June 2014, 30 January 2015, 9 March 2015 and 24 March 2015.
TF's Application also included various reports of psychologists and psychiatrists. In these reports, TF's music performances were discussed. It is clear that the Panel had regard to these reports in relation to the issue of TF's impairment under the PIRS category "social and recreational activities". Paragraphs 30 and 31 of the Panel's reasons detail the findings of each of those reports in relation to that category. In particular, the Panel extracts a paragraph from Dr Rose's Assessment, in which Dr Rose said: "[TF] cannot go into crowds. It was only with great difficulty that he has been able to give his very infrequent musical performance. … Since his last musical performance, which occurred in around March 2015, [TF]claims that he has become even more reluctant to perform music."
The conclusion which I draw about the Panel giving consideration to this aspect of Dr Rose's report is that it demonstrates that the Panel was aware that TF was giving musical performances in March 2015, and took that into account. The performance referred to was the subject of the Brooksight Investigations report of 24 March 2015. It documented a performance which TF gave on 14 March 2015 at a restaurant .
Counsel for the Department submitted orally that this extract did not establish that the Panel had independently turned its mind to the 2015 report by Brooksight Investigations, and therefore that the Court would not be satisfied that the Panel had done so.
While I accept that the submission is one possible construction of what occurred, I am not affirmatively persuaded on the balance of probabilities that the Panel "did not have regard" to the 2015 report. In making this judgment, I have had regard to the references which the Panel made in its reasons to the material that was available to it, as well as the other material which it had access to and to which no direct reference was made.
Moreover, even if I was not satisfied that the Panel had specific regard to the 2015 report of Brooksight Investigations, I would be satisfied from the reasons provided by the Panel for its decision that it was at least aware of the fact that TF was conducting musical performances in March 2015.
It is abundantly clear from the Panel's reasons that it was seized of the contents of the 2014 report. In this regard, from a comparison of the 2014 and 2015 reports, I am unable to conclude that the contents of the 2015 reports were so substantially different to the contents of the 2014 report as to significantly alter the facts which were put before the Panel by the 2014 report.
TF is reported to be performing on four occasions: 1. In the report dated 4 June 2014: on 9 May 2014 and 17 May 2015; 2. In the report dated 9 March 2015, on 21 February 2015; and 3. In the report dated 24 March 2015, on 14 March 2015.
On the 9 May 2014 occasion, TF performed at a licensed club. The log book provided in the report dated 4 June 2014, indicated that TF had performed for approximately 30 minutes, accompanied by several different individuals, and at one point performing on his own. TF sang and played the guitar and the harmonica. There is no note of how many people watched TF's performance. TF was not in costume.
On the occasion on 17 May 2014, TF performed at a venue as part of a musical act". He was dressed in a wig and costume. The log records that the performance continued for approximately 2½ hours, including intermission. No note is made of the size of the crowd.
On 21 February 2015, TF performed for approximately 1 hour in front of 20 people at a licensed club in Southern NSW. He was costumed.
On 14 March 2015, TF performed in front of 45-50 people for approximately 1½ hours while wearing costume and theatrical makeup.
I cannot discern any meaningful difference between TF's performances in 2014 and 2015. Given that the Panel gave detailed attention to TF's 2014 performances, and given that there is nothing before me which indicates that those performances were substantially different from the 2015 performances, I am unable to conclude that a consultation of the 2015 reports by the Panel would have significantly altered its conclusion on the PIRS category of social and recreational activities.
Finally, I am unable to give more weight to the 2015 surveillance report in comparison to the 2014 report purely because it was closer in time to the decision of the Panel. That is because there is nothing in the 2015 surveillance report which indicates that the material is significantly different from the earlier report.
Accordingly, I am not satisfied that there has been jurisdictional error by the Panel failing to have regard to the Brooksight Investigations 2015 reports.
Furthermore, I am not satisfied that the Panel's finding on TF's level of impairment in the "concentration, persistence and pace" category of the PIRS can simply be characterised as a difference of professional opinion.
A consideration of the reasons given by the Panel at paragraph 49, and extracted in these reasons at [100], reveals that the Panel undertook a process of reasoning which is perfectly acceptable. It looked at all of the relevant factors, and concluded that the sum of those factors indicated that TF was suffering from a moderate impairment of that functionality, rather than a mild impairment. I do not find that this conclusion was based purely on a difference of professional opinion.
Accordingly, I would dismiss the Department's third ground of appeal.

Submissions - Ground 4

The Department submitted that the Court should find that Dr Rose's findings on the significance of TF's music performances, and his findings on TF's level of impairment under the "concentration, persistence and pace" category, were open to him, and that error was not demonstrated.
It also repeated the submission made with respect to Ground 3 of its Summons, that the Panel's differing conclusion on the subject of TF's impairment in the field of "concentration, persistence and pace" should be characterised as a difference of opinion, and not a demonstrable error.
As authority for the meaning of "demonstrable error", the Department cites the comments of Mason P in Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88; (2008) 73 NSWLR 366 at [49]-[50]: "I am therefore driven to conclude that s327(3)(d) uses 'contained' in the more intense meaning of having as a constituent part, comprising or including (Macquarie Dictionary). Thus understood, the paragraph requires the would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s327(3) (a) or (b) being adduced in the appeal. This conclusion accords with that reached by Hoeben J in Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39] ('an error which is readily apparent from an examination of the medical assessment certificate and the document referred the matter to the AMS for assessment'.) This may at first blush appear harsh, but one must avoid a mindset that regards every decision affecting rights as appealable, let alone appealable on unconstrained grounds."
In reliance upon Mason P's comments, the Department contended that the demonstrable error found by the Panel was not readily apparent on the face of the record and therefore that the Panel did not have jurisdiction to issue a fresh Medical Assessment Certificate.
In opposition to this argument, TF submitted that the demonstrable error found by the Panel was readily apparent. In particular, he pointed to the reasoning process of the Panel, particularly its assertion (which founded its conclusion of error) that Dr Rose's finding demonstrated an inconsistency with the facts as reported by TF. As a result, TF argues that it was open to the Panel to find error.
TF also resisted the Department's characterisation of the Panel's conclusion as mere professional disagreement. Rather, counsel for TF characterised the Panel's finding of error as the Panel pointing out that Dr Rose had made a peculiar finding of normal cognition and memory which was contrary to the recited facts and which was unsupported by any explanation. TF pointed to this reasoning process as the one whereby the error was found and the finding which enlivened the Panel's jurisdiction to re-issue the Medical Assessment Certificate.

Discernment

For the reasons I have articulated in relation to Ground 3 of the Department's appeal, I am unpersuaded that such a characterisation of the Panel's reasoning is correct, and therefore I would dismiss Ground 4 of the appeal.

Submissions - Ground 5

Given that I have dismissed Grounds 1 to 4 inclusive of the Department's Grounds of Appeal, it follows that I must also dismiss Ground 5. There has been no error in the Panel's decision and therefore there is no error on the face of the record.

Orders

The Court orders: 1. The Summons filed 28 June 2016 be dismissed; 2. Each party to pay its and his own costs of the proceedings.

Amendments 14 December 2017 - Parties anonymised throughout judgment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (5)