Greater Western Area Health Service v Austin

The worker's injury 8The first defendant, Ms Austin, was a nurse employed by the plaintiff, and in 1998 she was working as directed by the plaintiff in a remote area near the township of Bourke in northwestern New South Wales. 9There is no dispute that in the course of her employment she contracted Ross River Fever. The acute symptoms of the illness affected her for what is said to have been a "closed period", in the jargon used in the workers compensation jurisdiction. 10The current dispute revolves around her claim that, as a result of her contraction of that disease, she has suffered the loss of the efficient use of each of her limbs as a long term consequence of it. Her case before the Commission is that the Ross River Fever has long term effects that result in joint pain, stiffness and weakness in gripping and grasping activities. 11It is the plaintiff's case in the Commission that if Ms Austin suffers those symptoms they are attributable to a condition of osteoarthritis entirely unconnected to her previous disease of Ross River Fever.

Evidence before me 12In support of the application Mr Dodd read the affidavit of his instructing solicitor Mr Christopher Lehman affirmed on 11 December 2013. The affidavit sets out the history of the dispute between the parties. 13By notice under s 74 Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act), the plaintiff's insurer denied liability for the permanent loss compensation claimed, resulting in the referral of the dispute to the Commission. 14When the matter first came before the Commission a dispute services officer, under delegation of the Registrar, held a telephone conference and made consent orders referring the medical dispute to an approved medical specialist under the provisions of s 321 of the 1998 Act. The principal orders of referral are in the following terms: (1)The parties are in dispute as to whether the applicant has loss of efficient use of the right arm and or above the elbow, loss of efficient use of left arm at or above the elbow, loss of efficient use of the left leg at or above the knee, and the loss of the efficient use of the right leg at or above the Knee resulting from Ross River Fever contracted on 1 December 1998. (2)The dispute referred to in Order 1 is remitted to the Registrar for referral to an Approved Medical Specialist (AMS). 15The AMS carried out an assessment in accordance with the provisions of s 322 of the 1998 Act and resolved the dispute by assessing that there was no loss of efficient use of any of the affected limbs resulting from Ross River Fever. 16The assessment certificate giving effect to the decision of the AMS was the subject of an appeal to the Medical Appeal Panel on the basis that it contained demonstrable error and was made on the basis of incorrect criteria. The panel found in favour of Ms Austin on the basis that questions of causation were not raised in the referral to the approved medical specialist. Their reasoning is set out at [36]-[40] of their decision, which is annexure G to Mr Lehman's affidavit: The insurer therefore had an opportunity to deny liability and have the question decided by an Arbitrator. Had there been a denial, there would have been a hearing in which the submissions and any oral evidence were recorded, and upon which the Arbitrator would have had to rule. If his decision were challenged, then either party would have had recourse to the appellate structure constituted by the Presidential Level. A further appeal was also available to the parties to the Court of Appeal. The issues decided by the AMS as to liability were the same as were raised by the pleadings. The issue was clearly expressed and one about which, had either party wished to do so, expert evidence could have been called. The argument against accepting the proposition that the AMS decided a purely medical issue is firstly that the referral contained the specificity that was lacking in Merza. Hoeben J observed in Merza that had the referral been expressed with more precision, then the causative findings made by the AMS may have been appellable. Secondly, the consent by the respondent to both the order made by Arbitrator Tanner and the failure to challenge the terms of the referral when it was issued, are evidence that the respondent has chosen to waive its objections, and by implication, reject the opinion of Dr Whittaker. It is clear that the AMS in coming to the conclusions upon which he based his decision has relied upon causation as being the reason that no losses can be assessed. It can be seen that the AMS accepted that there were conditions from which the appellant suffered, namely osteoarthritis and trochantic bursitis but, having made that determination, clearly considered that those conditions were not work related. An Approved Medical Specialist's task is to assess the whole person impairment with which the injured worker presents. Whether it be caused by the injury or whether its cause is from an unrelated source, nonetheless the impairment should be recorded. If it is the opinion of the AMS that the losses, or part of them, had been caused for other reasons then an AMS has the power to make an appropriate deduction under s.323 of the 1998 Act, or to vary his assessment as provided at [8(g)] of the MAC. 17It is clear from the references to case law made by the panel in reaching its decision, the members of the panel construed the referral order as not referring the question of the causation of any permanent loss for assessment by the AMS. Indeed at [34] of their decision, the members of the panel said this: The difficulty with the submission from the respondent is that this referral was couched in clear terms which indicated that it had been agreed between the parties that the losses had been caused by the contraction by the appellant of the virus. The question that arises is whether that agreement constituted an acceptance of liability - that is to say, did the respondent accept that injuries claimed to all the appellant's limbs had been caused by the contraction of Ross River Virus? If so, did therefore the AMS have to accept that any losses found by him had been caused by the contraction of Ross River Virus? With some reluctance, we consider that he did. From these extracts it can be seen that the appeal panel construed the referral order as limited to the bare assessment of the loss of efficient use of each of the appellant's limbs, implicitly whatever its cause.

The Issues 18The questions which underpin this application for judicial review may be put as follows: A. Did the panel in making its decision err in finding that causation was admitted by the plaintiff by misreading the referral to the AMS as admitting causation? B. Did the panel make an error of law regarding their power and the power of the AMS to rule on questions of causation? 19The second question arises because it seems implicit in the decision, especially having regard to [36] I have quoted, that the panel are suggesting that if there is a real dispute about causation of permanent impairment in a case, that dispute, in the bifurcated dispute resolution procedure available in the Commission, can only be resolved by an arbitrator, and not by an AMS by medical assessment. 20Generally, of course the question of whether this Court has power to grant the relief sought, depends upon the demonstration of either jurisdictional error by the panel, or error of law on the face of the record; that is to say, the procedure invoked by the plaintiff is not an appeal by way of rehearing or a merits review. So much is clear law. Rather entitlement to relief depends upon the proper invocation of this Court's supervisory jurisdiction. The same error may constitute both jurisdictional error and error of law on the face of the record.

Applicable law 21It is important to bear in mind the following provisions of the 1998 Act: 319 Definitions In this Act: approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist. medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, (e) the nature and extent of loss of hearing suffered by a worker, (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable. 321 Referral of medical dispute for assessment (1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral. (2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute. (3) The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker. (4) The Registrar may not refer for assessment under this Part: (a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or (b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment). 322 Assessment of impairment (1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose. (2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker. (3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker. Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury. (4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made. 22In Haroun v Rail Corporation New South Wales and Ors [2008] NSWCA 192 at [16], [19], and [20], Handley AJA, with the agreement of McColl JA and McDougall J, said: [16] In my judgment the Panel were not only entitled to treat the finding as irrelevant, they were bound to do so if they independently came to a different conclusion. The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers' Compensation Act 1987 (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel. [19] The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Pt 7 of the 1998 Act and not otherwise. [20] If there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but "may refer it for assessment" by an AMS: s 321(1). That section confers a power which an Arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford (1885) App Cas 214 at 235 243 and 244. 23By s 326 of the 1998 Act, the contents of a medical assessment certificate are conclusively presumed to be correct as to certain matters, including the degree of permanent impairment of the worker as the result of an injury. 24It is also important to record that in a recent decision of Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449, Leeming JA, with whom Beazley P and Tobias AJ agreed, said at [35]: First, it is not clear to me that questions of causation are foreign to "medical disputes" in any event, or that there is utility in appealing to a dichotomy between liability disputes and medical disputes. A "medical dispute" is a dispute or a question about any of the matters listed in s 319, including "the degree of permanent impairment of the worker as a result of an injury" and "whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion" (paras (c) and (d), emphasis added). It is not necessary to decide the point for present purposes, but that language of causal connection which is squarely within both the definition of "medical dispute" and the conclusive effect of s 326 suggests that it may be best to avoid speaking in generalities to the effect that "issues of liability" are matters for the Commission and "medical issues" are for an AMS. Still less is it helpful to refer to "primary causation" and "secondary causation". Commonsense suggests that there is not a bright line delineating causation from medical evidence. Issues of causation often involve disputed medical opinions. Thus, in the present case the decision of the Arbitrator was based upon his evaluation of the medical evidence which had been tendered by the parties (and where, as the recommendation of Mr Tolevski's orthopaedic surgeon reveals, he did not shrink from expressing an opinion as to causation). That tends to emphasise that there is nothing antithetical in the Commission making determinations of this nature informed, in addition, by the opinion of an AMS. 25That statement was made obiter dictum. But as clearly considered dictum of the Court of Appeal I am bound to apply it in accordance with the modern doctrine of judicial precedent.

Decision 26I am persuaded that both errors contended for by the plaintiff have been established in this case. It seems clear to me that the panel misconstrued the referral order in a significant way. That which was referred included a question about whether any impairment found resulted from, or related to the disease of Ross River Fever. 27It is impossible, in my respectful opinion, to construe the phrase "as a result of Ross River Fever" in context in the referral order as meaning the parties have agreed that any permanent impairment does result from Ross River Fever. That construction by the Medical Appeal Panel, with respect, is clearly untenable. To my mind, this error is an error of law on the face of the record, as under the provisions of s 69 Supreme Court Act 1970 (NSW) the panel's reasons form part of the record. More importantly, it is jurisdictional error because that misconstruction led the panel to confine their jurisdiction, and as well as that of the AMS, in a wholly unjustified way. 28Denial of lawful jurisdiction is just as much jurisdictional error as an attempt to act beyond jurisdiction; moreover, the implicit finding that liability and causation matters are within the powers of arbitrators in the bifurcated system, and not of approved medical specialists is clearly contrary to the decision of the Court of Appeal in Haroun and the considered dictum of Leeming JA in Tolevski. 29I have also been referred to the decision of Schmidt J in Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365, especially at [125]. However, nothing her Honour said in that paragraph is in any way inconsistent with what I have said. Rather, what I understand her Honour to have said, with great respect, is restricted to the circumstances of the particular dispute in that case. I do not understand her statement that the starting point of a medical assessment conducted under s 322 is that the impairment being assessed resulted from an injury suffered at work as restricting the power of the AMS to make that assessment for himself or herself in accordance with the language of s 319 and s 326. 30As Handley AJA said in Haroun, at [16] the panel were not only entitled to treat a finding of an arbitrator about causation as irrelevant, they were bound to do so if they independently came to a different conclusion. 31For these reasons I am of the view that the matters complained of by the plaintiff are both jurisdictional error and error of law on the face of the record. 32The finding of jurisdictional error is implicit because the medical panel, by reference to that supposed "dichotomy", failed to act upon the opinion of its medical specialist members expressed at [41] in the following terms: The Medical Specialists on the Panel would observe that as a matter of medical causation they concur with the opinions of Dr Whittaker and the AMS. However, the Panel is constrained by the conduct of the insurer in failing to raise this rather obvious issue. We accept, as indeed did the AMS, that the appellant does suffer from some functional loss of use of her limbs as referred for assessment. The solution to this demarcation dilemma is to allow the assessments found by Dr Mastrioanni, which reflect his somewhat cautious approach. That "demarcation dilemma" I take to be a reference to the implicit denial of jurisdiction to decide issues of causation of permanent impairment that I have referred to already. 33For these reasons, I make the following orders. (1)Extend the time during which these proceedings may be brought to 10th December 2013 nunc pro tunc. (2)I set aside the certificate issued by the medical appeal panel in matter number M1-006673/12 and remit the matter to the Registrar of the Workers Compensation Commission for referral to an appeal panel constituted under s 328 Workplace Injury Management and Workers Compensation Act 1998 for determination according to law. (3)The plaintiff to bear its own costs of the proceedings. 34I will simply add an addendum. The summons in terms challenges the decision of the panel refusing reconsideration of its decision on 25 September 2013. I do not, in the light of the orders I have made, regard it as necessary to formally set aside this decision, for the simple reason that there will need to be another decision of a Medical Appeal Panel in any event. However, it will follow from the reasons I have expressed that my view about any fixed dichotomy relating to questions of causation in the bifurcated dispute resolution system established under the 1998 Act is different from the panel's.

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