Kuzet v The Registrar of the Workers Compensation Commission

Application to bring the proceedings out of time

Part 59 of the Uniform Civil Procedure Rules came into force on 15 March 2013. It prescribes the procedure to apply in proceedings under s 69 of the Supreme Court Act. Rule 59.10 introduced a time limit for the commencement of proceedings for judicial review of a decision. The rule provides that such proceedings must be commenced within three months of the date of the decision. Whether the rule could operate so as to oust the jurisdiction of the Court to review a decision in proceedings commenced outside that period was not addressed in the proceedings before me.
The summons in the present case was filed within two months after the introduction of the new rule. Prior to its introduction, no time limit applied in respect of proceedings under s 69 of the Supreme Court Act, although delay in the bringing of such proceedings was (and remains) relevant to the decision whether to exercise the discretion to grant the relief sought.
The rule expressly does not apply to proceedings commenced before the commencement of the rule: see r 59.1(2). The rule is otherwise silent as to any retrospective operation. In particular, the rule is silent as to its application to proceedings commenced after the commencement of the rule seeking review of a decision made more than 3 months before the commencement of the rule.
Arguably, a plaintiff in that circumstance has something analogous to an accrued right to bring the proceedings without leave or at least to do so within 3 months after the commencement of the rule (which occurred in the present case). In any event, it having been assumed on behalf of the plaintiff that an extension of time is required in the present case, it is appropriate to adopt that assumption.
Rule 59.10(2) confers power on the court at any time to extend the time for commencing proceedings for judicial review. It was conceded on behalf of the employer at the hearing of the present application that the merits of the application would be a relevant consideration in determining whether to grant an extension of time. On that basis, I determined to hear the application for leave together with the substantive application for judicial review.
Rule 59.10(3) provides a list of factors of which the court should take account in determining whether to extend the time fixed by r 59.10(1). In addition to "such factors as are relevant in the circumstances of the particular case", they are: (a) any particular interest of the plaintiff in challenging the decision; (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings; (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision; (d) any relevant public interest.
As to the first of those, plainly the plaintiff's interest in challenging the decision is an important consideration in favour of granting an extension of time since, so long as the certificate stands, her entitlement to permanent impairment compensation is foreclosed. Further, as already noted, the certificate stands as conclusive evidence in any further proceedings. It is not suggested that there is any specific prejudice to any of the defendants caused by the passage of time. The third factor operates against the plaintiff, since the period of delay is lengthy. An affidavit relied upon in support of the application explained that the principal cause of the delay fell at the feet of counsel originally briefed in the matter (not Ms Nolan, who appeared at the hearing). I do not think any relevant public interest is determinative. On the one hand, there is a public interest in the prompt determination of such application. Conversely, however, if the decision entailed jurisdictional error as alleged, the public interest would be served by rectifying that transgression of power.
A principal factor in my determination that an extension of time should be granted (if required) is the fact that the legal argument in support of the application for judicial review rested primarily on the contention that the proceedings are governed by a decision of another judge of this Court. For the reasons explained below, I have come to the conclusion that the argument must be rejected but it was arguable and properly argued. For those reasons, I have concluded that the extension of time sought should be granted.

Application for judicial review

The grounds of the jurisdictional error alleged by the plaintiff are stated in the summons in the following terms: "14. The grounds of the alleged jurisdictional error are as follows: a. The AMS made a finding that the plaintiff on "clinical examination show[ed] significant non-organic behaviour with gross restriction of movement of the cervical and lumbar spines …". He agreed with the assessment of Dr Con Kafataris, Consultant Neurosurgeon, as stated in his report dated 24 March 2009 that the plaintiff was suffering from abnormal illness behaviour. b. The plaintiff contends that this diagnosis meant that she had not reached maximal medical improvement as defined in the American Medical Association's Guides for the Evaluation of Permanent Impairment 5th Edition ("AMA 5") and the WorkCover Guides for the Evaluation of Permanent Impairment (3rd Edition - 6 February2009). It is contended that the AMS's finding that the plaintiff's injuries were permanent and stabilised was therefore: i. not a finding open to him; ii. based on illogical or irrational findings or inferences of fact; and iii. an unreasoned decision. 15. Despite making a finding that the plaintiff was suffering from abnormal illness behaviour, the AMS went on to assess the injuries referred to him. 16. The adoption of this process is lacking in practical fairness or justice and was not a process conducted according to law. It is contended, therefore, that the AMS's decision: i. was not supported by reason; ii. had no better foundation than any arbitrary selection of a result; iii. was not made according to law; iv. had no jurisdictional foundation; and v. was not a decision made pursuant to section 325 of the Act. 17. An order in the nature of certiorari is sought to set aside the decision of the third defendant on the basis that it too is vitiated by jurisdictional error and/or error on the face of the record and was therefore of no effect. The third defendant was capable of considering all that about which the AMS's certificate was binding and was entitled to consider any of the grounds coming within s 327(3) of the Act subject to the requirements of procedural fairness. By failing to find the error alleged as effecting the AMS's decision and choosing to confirm that decision, the third defendant made no decision at all: see Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [101]-[104] and Markovic v Rydges Hotels Limited [2009] NSWCA 181. 18. The decision should therefore be set aside as it is infected by an error going to the jurisdiction of the third defendant, and indeed, the AMS, to decide."
The critical premise of those grounds is the contention that the finding of abnormal illness behaviour necessarily precluded the conclusion that the injuries were permanent and stabilised. It was submitted that, unless the injuries were permanent and stabilised, there was no power or legal occasion for proceeding to make an assessment of the degree of permanent impairment.
A similar ground for judicial review was accepted by Adams J in Ojinnaka v ITW Australia Pty Ltd [2011] NSWSC 208.
The argument begins with the provisions of the WorkCover Guides for the Evaluation of Permanent Impairment, which govern the assessment of permanent impairment. Clause 1.21 (described by Adams J as "the crucial provision") provides: "Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the injured worker is fully ascertainable. The permanent impairment will be fully ascertainable where the medical assessor considers that the person has attained maximum medical improvement. This is considered to occur when the worker's condition has been medically stable for the previous three months and is unlikely to change by more than 3% WPI in the ensuring 12 months with or without further medical treatment (ie further recovery or deterioration is not anticipated)."
It was common ground in Ojinnaka that the plaintiff had suffered a physical injury to his shoulder and that the resulting impairment was complicated by "a significant functional overlay". It was also common ground that the approved medical specialist had excluded the effects of the functional overlay from his consideration. Adams J was satisfied that the effect of doing so was that it was not possible for the approved medical specialist to determine whether the permanent impairment was "fully ascertainable" within the meaning of clause 1.21. His Honour said, "as is not controversial, a condition demonstrating a functional overlay is dynamic and susceptible to treatment which may be more or less effective". His Honour's judgment, delivered ex tempore, does not make clear whether that was an accepted medical proposition noted in the record of the decision of the approved medical specialist or whether it was something put by way of submission in support of the application for judicial review.
Adams J concluded, at [13] to [14]: [13] In my view, since an assessment can only be made when "the degree of permanent impairment of the injured worker is fully ascertainable", the certificate issued by the AMS was made without the power to do so, either because a significant feature of the impairment was disregarded and hence the "degree" of permanent impairment was not actually considered, or else the psychological element was at all events necessarily dynamic and accordingly the degree of permanent impairment could not be at that point "fully ascertainable". [14] The certificate was, therefore, issued without power. This position was not made right by the Appeal Panel. The certificate is a nullity and an order in the nature of certiorari should be made to quash it unless there are reasons justifying the refusal of this relief in the exercise of the Court's discretion.
Those remarks characterised the error as being one or other of two alternatives. The first was that "a significant feature of the impairment was disregarded and hence the 'degree' of permanent impairment was not actually considered". That analysis assumes that, to the extent that the degree of impairment was perceived by the injured worker to be other (worse) than was explained on organic grounds, that increment of perceived impairment was itself an aspect of the permanent impairment to be assessed. I do not think that is consistent with the approach which was required to be adopted in the present case. It is not clear to me whether Ms Kuzet's "abnormal illness behaviour" described in the certificate is to be regarded as a psychological injury. No such injury was cited in the matters referred for assessment. If it was a psychological injury, it was a secondary psychological injury and no compensation was payable in respect of it: see s 65A(1) of the Workers Compensation Act. If it was not a psychological injury but only a condition which affected Ms Kuzet's subjective perception of her primary injuries, I do not see how it could be characterised as a feature of the functional impairment required to be assessed. The Guides specifically commend the use of "objective and scientifically based data", stating (at 1.5 of AMA 5, exhibit K to the affidavit of Katrina Hodgkinson sworn 11 April 2014, referred to in the employer's written submissions at [13]): Subjective concerns, including fatigue, difficulty in concentrating, and pain, when not accompanied by demonstrable clinical signs or other independent, measurable abnormalities, are generally not given separate impairment ratings.
In my respectful opinion, the question whether Ms Kuzet's abnormal illness behaviour was a feature of the impairment required to be considered in assessing the degree of permanent impairment was properly within the realm of the assessor's clinical judgment, not a matter for legal analysis. I am not persuaded that error of law or jurisdictional error is established on that ground.
The alternative analysis identified by Adams J was that "the psychological element was at all events necessarily dynamic and accordingly the degree of permanent impairment could not be at that point fully ascertainable". That issue was addressed in the decision of the Appeal Panel, which stated that the abnormal illness behaviour was unrelated to the stability of Ms Kuzet's condition. The Appeal Panel said (at [23]): "Her condition can be stable with ongoing pain behaviour". Indeed, the record of the decision quoted the following finding of the approved medical specialist: The lack of clinical improvement over a period of two and a half years is not commensurate with the mechanism of injury nor the enclosed pathology. Her overall presentation is of abnormal illness behaviour.
As explained in the reasons for decision of the Appeal Panel, the submission that abnormal illness behaviour precludes a finding that the degree of permanent impairment is fully ascertainable confuses the stability of the impairment with the consistency of its presentation. A finding that the degree of impairment perceived or reported is inconsistent with the mechanism of injury and cannot otherwise be explained on organic grounds does not necessarily preclude an assessment that the relevant condition has stabilised. As the Appeal Panel recorded in the present case, Ms Kuzet's case had seen no clinical improvement over a period of two and a half years. Whether the degree of permanent impairment was fully ascertainable was quintessentially a matter of clinical judgment, not legal analysis. I am not persuaded that error of law or jurisdictional error is established on that basis.
While the present application finds some support in the decision of Adams J in Ojinnaka, I do not think that decision compels the conclusion that error is established in the present case.
For those reasons, I have concluded that the summons must be dismissed. The orders are: 1. That the time for commencing these proceedings be extended to 17 May 2013. 2. That the proceedings be dismissed.

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