George v Wombo Lane Pty Limited [2010] NSWSC 660 | Case summary

JUDGMENT 1 HIS HONOUR: This summons seeks relief in the exercise of administrative law jurisdiction in connection with proceedings in the Workers Compensation Commission (WCC) established by and conducting its operations pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (WIM). The second and third defendants have filed submitting appearances in the usual form and a reference to the defendant is to be taken to be the first defendant which has appeared to contest the plaintiff's claim. 2 On 11 April 2007 the plaintiff was employed by the defendant as the manager of a hotel at Mortlake. Armed and disguised robbers intruded into the hotel and forced a large number of people to lie on the ground. A gun was pointed at the plaintiff's head and he was made to open a safe. He developed a consequent psychiatric illness. 3 In January 2009 he applied to WCC for lump sum compensation claiming that he had a permanent 17 percent impairment of his whole person as a result of psychological injury. The defendant disputed this. 4 The plaintiff was referred to an approved medical specialist (AMS) Dr Ben Teoh who examined him on 31 March 2009 and who issued a Medical Assessment Certificate (MAC) in the prescribed form on 22 April 2009. He assessed the impairment at 17 percent. 5 The defendant sought to appeal against this assessment. Applicable provisions of WIM are: "327 Appeal against medical assessment (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." 6 The defendant filed a submission dated 20 May 2009 and the plaintiff filed a submission in opposition dated 10 June 2009. 7 On 20 June 2009 a delegate of the Registrar made a decision to refer the appeal to a Medical Appeal Panel (MAP). The decision by the Registrar contained the following relevant expression: "2. On 20 May 2009, the Appellant lodged an Application to Appeal the Decision of the AMS on the grounds that the assessment was made on the basis of incorrect criteria (section 327(3) (c), or that the MAC contains a demonstrable error (section 327(3) (d)). 3. Section 327(4) of the Act provides that an appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and submissions made to the Registrar, at least one of the grounds of appeal as specified in section 327(3) of the Act has been made out. 4. 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) has been made out in that an error is capable of being shown in relation to the PIRS-based assessment of the Respondent worker's psychiatric/psychological impairment." 8 A medically qualified member of the MAP examined the plaintiff on 27 July 2009. The MAP revoked the MAC given by Dr Teoh and issued a fresh certificate assessing the impairment at 5 percent. 9 It is recognized that I have no jurisdiction in relation to the merits of the claim and the challenge initiated by the summons is based upon assertion that no demonstrable error such as is required by s 327(3)(d) can be identified in the MAC provided by Dr Teoh. 10 I approach the issues on the basis that "demonstrable error" is "an error which is readily apparent from an examination of the Medical Assessment Certificate and the document referring the matter to the AMS for assessment": Merza v Registrar of the WCC [2006] NSWSC 939. Such an error may be an error of fact or an error of law; Pitsonis v Registrar of the WCC [2008] NSWCA 88. 11 It was not contended, and I accept, that the Registrar was obliged to identify the demonstrable error upon which he relied nor to express his reasons, however he did, as the extract from his decision above quoted shows, express that "an error" (not qualified as "demonstrable" but sufficiently indicated by the introduction "on its face" and incorporating reference to s 327(3)(d)) was capable of being shown "in relation to" the PIRS-based assessment of the plaintiff's impairment. 12 I gather that PIRS is an acronym for Psychological Impairment Rating Scale. Part of the MAC consists of the completion of a PIRS rating form which is designed to score various categories of abilities and activities. On the face of the form it has been appropriately completed. It is not clear whether the reference in the Registrar's decision to "PIRS-based assessment" is intended to indicate that the demonstrable error relied upon to authorize reference to the MAP is to be found in the PIRS scaling or elsewhere. If it is intended to relate to the PIRS scaling I would hold that there was therein "no readily apparent" error from examination of the part of the MAC so specified. 13 As the plaintiff is, in effect, setting out to prove a negative, namely that there was nothing which could fulfil the requirement of demonstrable error pursuant to s 327(3)(d), it is a convenient way to approach the issue to examine the defendant's contentions. 14 In support of the Registrar's decision the defendant contended that there were, on the face of the MAC, errors of both law and fact. 15 The error of fact is claimed to be manifest in an alleged contradiction between a finding on Mental State Examination (MAC par 5) that the plaintiff "appeared casually dressed with no evidence of physical neglect" and the PIRS rating for self care and physical hygiene which recorded that the plaintiff has "been pre-occupied with anxiety symptoms and has mildly neglected to care for himself." 16 Whilst I accept that s 327(4) does not make arguability, existence or success of a ground of appeal, objectively determined, the criterion for reference to an MAP: cf Cameron v WCC [2008] NSWSC 704, it is necessary for what appears on the face of the MAC to be capable of demonstrating error. There is no contradiction capable of so doing in the circumstance that the plaintiff did not show signs of neglect when attending a medical examination and a history, accepted by the AMS, that he had been mildly neglecting to care for himself. There was no indication in the latter that such mild failures would or should result in observable deficiency or deficiencies. 17 I turn then to alleged demonstrable errors of law. 18 Relevant obligations to be complied with by the AMS are set out in WIM: "325 Medical assessment certificate (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." 19 The defendant's contention was that the MAC shows a failure by the AMS to do what is required by subsections (c) and (d). In order to be germane to the exercise of power by the Registrar pursuant to s 327(4) such failure must appear on the face of the application or in "any submissions". "Submission" is not defined for the particular purposes of WIM. The applicable meaning in the Oxford English Dictionary is "the theory of the case put forward by an advocate." That meaning does not extend to providing a vehicle for the conveyance of evidence or extraneous material. 20 The AMS had access to reports from a psychologist Mr Bornstein and a Dr Samuell, a psychiatrist. There is no express mention of either of these in the MAC. It was, however, not contended that they were not included in the documentary evidence identified in par 2 of the MAC. Those documents also included another report by a psychiatrist Dr Ali. 21 The MAC includes express reference to Dr Ali's report. Counsel for the defendant observed that there is coincidence between the certification in the MAC by Dr Teoh and the scaling and final opinion of Dr Ali. That circumstance does not appear from the face of the MAC but in any event I find nothing sinister in two doctors having the same opinion even about something as both imprecise and incorporeal as whole person impairment for psychological deficit. 22 The AMS certified that the facts on which he based his assessment were direct interview and review of documents. The latter can only be sensibly understood to refer to relevant documents, that is, those identified in par 2 as documentary evidence. The statement made does not disclose an error of having regard to only some of the documents to the exclusion of others and the expression in the MAC cannot be so interpreted. 23 Counsel made references to the judgments in MIMA v Yusuf (2001) 206 CLR 323. As is obvious, the AMS was required to complete a proforma although there was no restriction on what could be endorsed. I note the observations in that case concerning the absence of requirement for a decision maker to traverse every single fact but also that failure to refer to facts may lead to inference that such facts were not taken into consideration. 24 I do not draw such an inference in this case in regard to the opinions of Mr Bornstein and Dr Samuell. They were part of the material considered, as appears in and is conveyed by par 2 of the MAC, and the express reference to Dr Ali is a disclosure of reliance, bearing in mind that it appears in par 10 which is headed Reasons for Assessment and in the sub-paragraph which invites brief comments regarding other medical opinions. The proforma does not oblige statement of reasons for any difference of opinion and in this case it is obvious that the opinion of the AMS is emphasized as being his own and the comment concerning Dr Ali is a revelation of a concordant view on the face of the document mentioned. 25 An extract of guidelines for the evaluation of permanent impairment was tendered without objection. Attention was drawn to par 11.7 which states that evaluation will need to take into account variations in the level of functioning over time. 26 The defendant pointed out that there is no mention in the MAC of any such thing. The guidelines are issued pursuant to WIM s 376. The provision seems silent on the extent of obligation to apply the guidelines or the extent of any discretion to depart from them. Assuming however that the AMS was required to apply them, I do not conclude that a failure to mention something which is to be considered in making an assessment creates a demonstrable error unless, contrary to the implications in the judgments in Yusuf, the decision maker, in this instance the AMS, was obliged to disclose every aspect of his thought processes. 27 I conclude that the Registrar (through his delegate) had no jurisdiction to refer the matter to an MAP because there was nothing identifiable in the MAC which was capable of fulfilling the necessary proviso which overcomes the restraint against proceeding in the terms of s 327(4): cf Kirk v IRC [2010] 84 ALJR 154 at par 71 and following. 28 It follows that, if the Registrar's reference to the MAP is to be set aside, so also must the decision of the MAP to revoke the MAC by Dr Teoh and substitute another for it. 29 I make the following orders:

George v Wombo Lane Pty Limited

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