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[2014] NSWCA 194
Court of Appeal (NSW)
2014-06-06
Basten JA, Barrett JA, Gleeson JA, Hidden J
Original judgment source is linked above.
Background 26The respondent, Ms Lakovska, an employee of Inghams, suffered acute back pain when, in the course of working at Inghams' processing plant on 31 March 2009, she bent down to pick up a chicken carcass that had fallen to the floor. After a period of dispute, followed by conciliation, Inghams admitted liability to pay workers compensation but there was no agreement about the degree of the respondent's impairment. 27Pursuant to s 321 of the WIM Act, the dispute as to the degree of impairment was referred to an approved medical specialist for assessment. The specialist was provided with statements made by the respondent and with medical reports obtained by both her and Inghams. The specialist examined the respondent. The specialist's opinion, as stated in a medical assessment dated 15 September 2011, was that, as at 31 March 2009, the respondent was probably suffering from a pre-existing degenerative spinal condition. The medical assessment certificate certified 14 per cent whole person impairment. 28The Registrar of the Workers Compensation Commission later referred the matter back to the approved medical specialist pursuant to s 329 of the WIM Act. Upon re-assessment, the specialist referred to "important new clinical information" contained in additional documents provided to him and certified whole person impairment of a reduced degree of 8 per cent. The medical assessment certificate was dated 22 November 2011. 29Each party then took steps to appeal and the Registrar, being satisfied in the way required by s 327(4), referred each appeal to a medical Appeal Panel constituted by two approved medical specialists and an arbitrator. On 11 April 2012, the medical Appeal Panel conducted a preliminary review of the materials supplied to it in both appeals, including written submissions of the parties, and invited further submissions on two questions. It did so by two virtually identical notices, both dated 11 April 2012. The two questions went to whether the approved medical specialist had limited his assessment to the consequences of the 31 March 2009 incident and, secondly, to the significance of events in the workplace before that time. 30Following receipt of the further submissions it had sought, the medical Appeal Panel proceeded to a decision. It did so only in the appeal initiated by the respondent because Ingham's appeal had effectively been overtaken. The medical Appeal Panel determined the respondent's appeal on the papers without examining the respondent and without conducting an oral hearing (which Inghams had submitted should be convened). The decision was that the degenerative spinal condition had not contributed to the respondent's impairment and that there should have been no deduction on that account in the assessment of whole person impairment. The Medical Appeal Panel assessed whole person impairment at 15 per cent.
The application to the primary judge 31The application for prerogative relief determined by the primary judge was advanced on three grounds:
The decision of the primary judge 33The primary judge found that the medical Appeal Panel had not fallen into error in any of the ways alleged by Inghams. 34As to Ground 1, his Honour concluded that the review was conducted within the limits set by s 328(2) of the WIM Act. That section is as follows: "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 WorkCover Guidelines can provide for the procedure on an appeal." 35The submission before the primary judge was that the grounds of appeal articulated by the respondent proceeded on the clear footing that the case was one of separate and specific injury sustained on 31 March 2009, with no suggestion that impairment arose from tasks undertaken over a period of time. The decision that events before 31 March 2009 should be taken into account was therefore said to be at odds with s 328(2). In addition, Inghams argued that the medical Appeal Panel had dealt with the matter as a hearing do novo rather than a rehearing. Neither of these submissions was accepted by the primary judge. 36As to Ground 2, the primary judge simply said that the decision to hold an assessment hearing is a matter governed by clause 46 of the WorkCover Medical Assessment Guidelines 2006 (the "Guidelines") and within the discretion of the medical Appeal Panel, guided by the consideration identified in the Guidelines, that is, whether the matter is capable of determination on the papers. His Honour held that the medical Appeal Panel had addressed that question. 37In relation to Ground 3, the primary judge took the view that the parties were given an opportunity to make submissions on all relevant matters.
The application for leave to appeal 38In seeking leave to appeal to this Court, Inghams contends that the primary judge erred in relation to all three grounds before him. Submissions in this Court were advanced on essentially the same basis as in the court below.
Ground 1 39As to Ground 1, Inghams notes that the medical Appeal Panel said that it was conducting "a review of the material before it and reach[ing] its own conclusion concerning the correct assessment of the impairment and losses suffered by the respondent", which it then proceeded to do. This, Inghams says, was a course unauthorised by s 328(2) of the WIM Act. Inghams refers to s 327(1) which, in creating a right of appeal against a medical assessment, says that such an appeal may only be advanced "on the grounds for appeal under this section", that is, any of the grounds specified in s 327(3). The procedure is thus such that a party appealing must frame its own grounds of appeal applicable to the particular case, being grounds within the scope permitted by s 327(1). 40Under s 328(2), a medical Appeal Panel's function is to make a "review of the original medical assessment", being, however, a review that is "limited to the grounds of appeal on which the appeal is made" being grounds formulated and advanced by the party concerned within the limits allowed by s 327(1). Inghams notes that the part of s 328(2) confining a review to the grounds advanced by the appealing party was added by the Workers Compensation Legislation Amendment Act 2010 (NSW) in apparent response to the decision of this Court in Siddik v WorkCover Authority of New South Wales [2008] NSWCA 116. 41The grounds of appeal stated at the respondent's appeal application were: "The assessment was made on the basis of incorrect criteria. The medical assessment certificate contains a demonstrable error." 42An accompanying document headed "Grounds of Appeal" was as follows: "1. Repeated failure to consider the material ordered to be provided to the Approved Medical Specialist. 2. Making a finding of pre-existing condition in the absence of evidence. 3. In the alternative to 2 above, if the Commission believes there is evidence that there can be interpreted as a pre-existing condition, that such evidence is minimal and uncertain and does not traverse the assumption pursuant to Section 323 of the Workplace Injury Management and Compensation Act 1998 as amended. 4. Failure to have due regard to the best evidence available and forming an opinion against the weight of the evidence." 43Inghams complains that the medical Appeal Panel moved beyond the boundaries fixed by s 328(2) when it concluded that, having regard to particularly described materials, the likelihood was that the work the respondent was doing before 31 March 2009 resulted in a progression of radial tear or tears in the respondent's L4/5 disc that proceeded to a disc herniation on 31 March 2009 following a relatively simple task the respondent performed on that day. 44Inghams also complains that the medical Appeal Panel expanded its inquiry into matters preceding 31 March 2009 in a way that was impermissible having regard to the original claim in respect of the discrete injury of 31 March 2009 and the grounds of appeal in relation thereto. 45The respondent correctly says that these criticisms are without foundation, having regard to the fact that the injury to which she had referred from the very start of her workers compensation claim had been described in a way that was not confined to the particular incident of 31 March 2009. In her application for referral of dispute dated 28 October 2010, the respondent included the following under "Injury description": "to 31.03.09 - Due to the nature and conditions of employment with machine controlled pace of process lines particularly on the Holburn line and ergonometrically unsound system of work suffered injury to back, lumbar spine, left leg, radiculopathy post surgery, anxiety and depression." 46The "injury", in terms of s 4 of the Workers Compensation Act 1987 (NSW), to which the claim related was thus not merely whatever it was that gave rise, in an immediate sense, to the pain experienced on 31 March 2009. The opening words "to 31.03.09" and the description following made it clear that a progressing or developing condition - albeit one that had come to a head on 31 March 2009 - was put forward as the "injury". Furthermore, the revised determination of the approved medical specialist was clearly made on that basis and the stated grounds on which appeal to the medical Appeal Panel was initiated obviously fell to be construed against that background. 47There was no substance in Ground 1 advanced before the primary judge and repeated in this Court.
Ground 2 48Ground 2 also lacks substance. It is true, as Inghams submitted, that a medical Appeal Panel, in deciding whether to convene an oral hearing, must take into account a party's expressed desire that there should be such a hearing: Ah-Dar v State Transit Authority of New South Wales [2007] NSWSC 260; 69 NSWLR 468 at [68]. In the present case, there was such a request and the medical Appeal Panel, in its reasons, not only acknowledged that the request had been made but also stated that, for reasons it briefly stated, it saw "no benefit in holding an assessment hearing to hear further submissions from the parties". 49That decision was clearly open to the medical Appeal Panel, given the provisions of the WIM Act and the Guidelines discussed in Galluzzo v Little [2013] NSWCA 116. It was pointed out in that case that the question whether an oral hearing should be undertaken by a medical Appeal Panel is to be answered by reference to s 328(2) of the WIM Act (which says that the Guidelines may provide for the procedure on an appeal), s 331 (which says that appeals under Part 7 are "subject to relevant provisions of the WorkCover Guidelines" relating to certain matters, including "the procedure on appeals") and relevant provisions of the Guidelines, being paragraphs 45 and 46. Paragraph 45 reads, in part, as follows: "The appeal panel may adopt any of the following procedures in accordance with the needs of the individual case: preliminary review (in all matters), 'on the papers' review, further medical examination by an approved medical specialist on the appeal panel, assessment hearing." 50The balance of paragraph 45 deals with the case where a further medical examination is required. Paragraph 46 then provides: "Where the appeal panel determines a matter is not capable of determination on the papers either with or without a further medical examination, an assessment hearing will be arranged." 51Pertinent features of the applicable provisions are thus that it is the medical Appeal Panel that decides which of the several procedures described in the Guidelines is to be adopted; that the medical Appeal Panel's decision is to be informed by its assessment of the needs of the particular case; that a hearing will be arranged if the medical Appeal Panel determines that the matter is not capable of determination on the papers; and that the reference to an appeal being "heard" does not imply that there must invariably be oral submissions and argument. 52Having regard, in particular, to the third of these matters, the general expectation is that there will be a determination on the papers. This is reinforced by the prescribed form by means of which an appeal is initiated. The form says, in relation to a request to present oral submissions: "If yes, attach reasons why the appeal should not be determined by the Appeal Panel on the papers, and why the presentation of oral submissions is necessary. Failure to attach submissions may result in the application being rejected." 53Given the strong emphasis in the applicable provisions on determination without oral hearing and the fact that Inghams pointed to no special reason why there should have been such a hearing in this case, there is no basis on which it can be said that the medical Appeal Panel erred in law by declining to convene such a hearing.
Ground 3 54The conclusions stated in relation to Ground 1 are sufficient to dispose of Ground 3 also. Again, no error of law has been shown.
Conclusion 55None of the bases on which Inghams seeks to impugn the decision of the primary judge has merit. Furthermore, the lack of merit should have been apparent, given that the statutory processes are built on a clear policy foundation that commits evaluative decision-making to expert medical assessment, untrammelled by undue legal technicality but, of course, subject to judicial review when a need to correct legal error is established. 56In my opinion, there should be orders as follows:
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: 18 June 2014
Inghams Enterprises Pty Ltd
Lakovska
Leigh Virtue and Associates (Appellant) Martin Bell & Co (First Respondent) I V Knight, Crown Solicitor - Submitting Appearance (Second and Third Respondents) File Number(s): 2013/326327 Decision under appeal Jurisdiction: 9111 Citation: [2013] NSWSC 1489 Date of Decision: 2013-10-11 00:00:00 Before: Hidden J File Number(s): 2012/153477
Judgment 1BASTEN JA: Chapter 7, Pt 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act") provides for medical assessment (including the assessment of the degree of permanent impairment of an injured worker) by approved medical specialists and, by way of review, appeal panels involving two approved medical specialists and an arbitrator. This scheme was designed to take the function of assessment of injury out of the adversary court system. The provisions of the Workplace Injury Act giving effect to this purpose are not complex, but have given rise to much judicial exegesis, for example as to the scope and nature of the function of an appeal panel: see Siddik v WorkCover Authority of NSW [2008] NSWCA 116; 6 DDCR 228; Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88; 73 NSWLR 366. It is undesirable to add to the burden this exegesis must impose on parties (including injured workers), their legal advisors and the Commission. 2This case involved a relatively straightforward issue for the Appeal Panel. Nevertheless, the reasons given by the Panel for its determination ran to some 66 paragraphs over 17 pages. Those reasons (at par 41) duly referred to the scope of the obligation to give reasons articulated in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372, paraphrasing [122] of that decision. Failure to give legally sufficient reasons will be reviewable for legal error: Vegan at [130], referred to in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 at [28]. These decisions should not be understood as requiring lengthy or discursive reasons. 3Ms Lakovska's degree of permanent impairment was assessed by an approved medical specialist at 15%, subject to deduction for pre-existing injury, condition or abnormality. The medical specialist did not find any evidence of "previous injury" but did find a pre-existing condition, namely degenerative disease of the lumbar spine, pre-dating the frank injury. He reduced the 15% to 14% permanent impairment on account of the pre-existing condition. 4That assessment was made on 30 August 2011. Thereafter, the sole issue in dispute has been (on the worker's side) whether any reduction was appropriate and (on the employer's side) whether the reduction was sufficient. 5Liability was conceded. A senior arbitrator gave a certificate of determination remitting for medical assessment the degree of whole person impairment in respect of the lumbar spine "with a date of injury of 31 March 2009, as pleaded in the Application to Resolve a Dispute": Determination, 29 July 2011, par 2. The application identified the injury in the following terms: "to 31.03.09 - Due to the nature and conditions of employment with machine controlled pace of process lines particularly on the Holburn line and ergonometrically unsound system of work suffered injury to back, lumbar spine, left leg, radiculopathy post surgery, anxiety and depression." 6A reasonable interpretation of this injury was that it constituted a disease contracted by a gradual process which was deemed to have happened on 31 March 2009, when the worker suffered a frank injury and thus incapacity: see Workers Compensation Act 1987 (NSW), s 15(1). 7Both the worker and the employer challenged the reduction for pre-existing condition. The matter was returned to the same medical specialist who gave a further certificate on 22 November 2011, stating: "Documentation sent to me provides important new clinical information, the presence of pre-existing relevant back pain and left sided sciatica. There is also radiological evidence of significant pre-existing degenerative disease." 8He increased the reduction to 50% and recalculated the permanent impairment as 8%. Both parties appealed from the further certificate. The worker relevantly identified the following grounds of appeal: "1. Repeated failure to consider the material ordered to be provided to the Approved Medical Specialist. 2. Making a finding of pre-existing condition in the absence of evidence. 3. In the alternative to 2 above, if the Commission believes there is evidence that can be interpreted as a pre-existing condition, that such evidence is minimal and uncertain and does not traverse the assumption pursuant to s 323 of the [Workplace Injury Act]. 4. Failure to have due regard to the best evidence available and forming an opinion against the weight of the evidence." 9The Registrar determined that "a ground of appeal as specified in s 327(3)(d) is made out in relation to the deduction made by the [medical specialist] for previous injury, pre-existing condition or abnormality pursuant to s 323 of the [Workplace Injury Act]": Decision, 6 February 2012, par 5. 10On 11 April 2012, the Appeal Panel invited the parties to make submissions as to whether the injury referred to the medical specialist had been that described in the application (set out above at [5**]) and, if so, whether the specialist had limited his assessment to the consequences of the incident that occurred on 31 March 2009 and did not consider the effects of the nature and conditions of employment prior to that date and, if so, whether that was an error. 11The Appeal Panel took it upon itself to reassess the degree of whole person permanent impairment absent any reduction. That not being the subject of the worker's appeal, it may have been exceeding its function in undertaking that step. However, because it confirmed the assessment of 15%, nothing turned on that: see reasons of Appeal Panel, 30 April 2012, par 59. 12The Appeal Panel then considered a medical report submitted by the employer and the radiological investigations which, taken together, had warranted the reduction for the pre-existing condition. The Panel rejected the view that the radiological evidence of degenerative disc disease warranted a reduction, on the basis that the disease was at L5/S1, whereas the injury was at L4/L5. That is a factual conclusion that is not challenged. Further, and apparently relevantly to the assessment of the pre-existing condition, the Panel stated that "having regard to the histories in evidence and the radiological investigations and Dr Abraszko's observations, that in all likelihood the work the appellant was doing in the time preceding 31 March 2009 resulted in a progression of radial tear or tears in the appellant's L4/5 disc that proceeded to a disc herniation on 31 March 2009": par 54. The Panel did not consider that any reduction for a pre-existing condition was warranted, because the condition identified formed part of the injury specified in the claim. 13On the face of it, the description set out above demonstrates that the Appeal Panel acted entirely fairly and undertook an assessment of the issue referred to it for determination. There was no appeal from the decision of the Appeal Panel. Nevertheless, the employer invoked the supervisory jurisdiction of this Court in the Common Law Division seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). Three matters were agitated before Hidden J but the summons was dismissed: Inghams Enterprises Pty Ltd v Valentina Lakovska [2013] NSWSC 1489.
Issues on appeal 14On appeal the employer contended that the Appeal Panel had exceeded its jurisdiction in two respects. First, it had assessed an injury which included a gradual process leading to the frank injury on 31 March 2009, rather than limiting its consideration to the disc herniation that occurred on that date. As noted above, the injury which was referred for assessment was that identified in the application and was not limited as the employer submitted. The employer's submission, in effect, sought to recharacterise that which the Appeal Panel found to be part of the injury as a pre-existing condition which did not arise out of the worker's employment. The factual characterisation was for the Appeal Panel, not the Court. The Panel did not err in identifying the injury in accordance with the terms of the application. 15Secondly, the employer argued that the medical evidence did not refer to a "progression of radial tear or tears". That, the employer submitted, was a finding not available on the evidence. In somewhat tendentious terms, it submitted that this was "the method [the Panel] employed to overcome" the conclusion that a reduction for a pre-existing condition was required. The submission must be rejected. It was the Panel's diagnosis of "a developing work related condition which manifested itself in the incident of 31 March": at [33]. 16Thirdly, the employer contended (ground 2) that the Panel had erred in failing to take into account the request of the employer for an oral hearing, in deciding not to grant an oral hearing. In its reasons, the Appeal Panel expressly noted the application and the reasons articulated by the employer in favour of its application: Appeal Panel reasons, par 33. The ground was untenable. 17A somewhat different argument was identified in written submissions, namely that, in applying cl 46 of the WorkCover Guidelines, the Appeal Panel merely determined that the matter was one which was "capable of determination on the papers". While, arguably, the contrary view might have required an oral hearing, the employer submitted that there were other factors which might warrant an oral hearing even in circumstances where the matter was capable of being determined on the papers. However, this did not provide a better basis for review. If there were other matters, they should have been raised by the employer in its application for an oral hearing: those matters which were raised were considered and there was nothing raised which, as a matter of law, transmogrified the discretion of the Appeal Panel into a duty to hold a hearing. 18Finally, the employer contended that there was procedural unfairness in the failure of the Appeal Panel to warn the parties that it was considering a finding that the mechanism of injury arose by reason of a progression of radial tear or tears, leading to the frank injury. 19Again, the complaint was without substance. The Appeal Panel expressly raised with the parties the question whether the medical specialist had erred in failing to consider the effects of the nature and conditions of employment prior to 31 March 2009, as specified in the statement of the injury. Because the Appeal Panel had raised the question, the employer was on notice that such an error might be identified and therefore had an opportunity to put submissions as to what consequences might flow if the Panel determined it was appropriate to consider the conditions of employment prior to 31 March 2009. An assessment of the relationship of the injury to the circumstances of employment was a matter for the medical expertise of the Panel. Even in judicial proceedings, "fairness does not require a judicial officer to make a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure": Re Minister for Immigration and Multicultural Affairs; Ex part Miah [2001] HCA 22; 206 CLR 57 at [31] (Gleeson CJ and Hayne J, albeit in dissent as to the question of statutory construction); Commissioner for the ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591D (Northrop, Miles and French JJ).
(1994) 49 FCR 576