Lancaster v Foxtel Management Pty Limited

The grounds of appeal

1. In the further amended summons, the claimant relies on the following two grounds of appeal: "1 The Second Defendant erred in point of law when it failed to consider whether the Approved Medical Specialist had considered the correct criteria when assessing the categories of 'social and recreational activities', 'self-care and hygiene' and 'social functioning', and failed to properly consider the arguments made in support of the appeal, and in particular the statement of the Plaintiff dated 17 July 2020. 2 The Second Defendant failed to consider the Plaintiff's request that it appoint a member of the Panel to re-examine the Plaintiff and failed to provide its reasons for not doing so, thereby denying the Plaintiff procedural fairness and falling into jurisdictional error."
2. Because of the concession made by the employer that ground 2 has been made out, it is only necessary that I address that ground, to satisfy myself that the concession has been properly made and that the proposed orders agreed by the parties ought be made.
3. Before turning to ground 2, I propose to outline the statutory scheme and the relevant factual background.

The relevant statutory provisions

1. A claimant cannot commence court proceedings for the recovery of work injury damages unless, relevantly, the degree of WPI has been assessed by an AMS to be at least 15%: ss 313 and 314. A dispute between a claimant and an employer as to the degree of permanent impairment is a "medical dispute" within the meaning of s 319 in Part 7 of Chapter 7 of the Act. The Registrar may refer a medical dispute to an AMS: s 321. The assessment of the degree of permanent impairment is to be made in accordance with the Workers Compensation Guidelines: s 322(1). An AMS may call for the production of medical records and other information and require a claimant to submit himself or herself for examination: s 324(1).
2. An AMS to whom a medical dispute has been referred is to give a medical assessment certificate as to the matters referred for assessment: s 325(1). The certificate is to certify the assessment, the reasons for assessment and the facts on which the assessment is based: s 325(2).
3. A party may only appeal against a medical assessment on specified grounds: s 327. The grounds include that the assessment was based on incorrect criteria (s 327(3)(c)) and that the certificate contains a "demonstrable error" (s 327(3)(d)). An appeal is made by application to the Registrar and is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions, at least one of the specified grounds of appeal is made out: s 327(4).
4. An appeal against a medical assessment is to be heard by an Appeal Panel constituted by two medical practitioners and one arbitrator: s 328(1). It is to be by review, but is limited to the grounds of appeal on which the appeal is made: s 328(2). Section 324(3) provides that s 324 extends to the assessment of a medical dispute in the course of an appeal and that an Appeal Panel has all the powers which an AMS has on an assessment of a medical dispute. Thus, an Appeal Panel also has power to examine the claimant, as does an AMS. The Appeal Panel may either confirm the AMS's certificate or revoke it and issue a new certificate: s 328(5).

The factual background

1. For present purposes, a short summary of the factual background is sufficient. The claimant claimed that he suffered a psychological or psychiatric injury at work by reason of bullying and harassment in the workplace. His claim was accepted and weekly compensation was paid to him as a result of his incapacity for work. The deemed date of injury was 17 June 2017.
2. On 21 March 2019, the claimant made a claim for lump sum compensation for 19% WPI pursuant to s 66 of the Workers Compensation Act 1987 (NSW). The employer's insurer, AAI Ltd trading as GIO Workers Compensation, disputed the claim. On 16 April 2020, the claimant's solicitors filed an Application to Resolve a Dispute with the Commission, to which the employer filed a reply on 7 May 2020. The matter was referred to an AMS for assessment. On 12 June 2020, the plaintiff attended an assessment with the AMS, who issued a certificate which certified that the claimant's WPI as a result of the work-related injury was 9%.
3. On 17 July 2020, the claimant appealed against the decision of the AMS on the grounds that the assessment was based on incorrect criteria (s 327(3)(c)) and that the certificate contained a demonstrable error (s 327(3)(d)). His solicitor provided submissions as well as a supplementary statement by the claimant dated 17 July 2020. The claimant's solicitor submitted that the examination of the claimant had not been undertaken correctly and that there were several factual errors in the reasons, which the claimant's supplementary statement was intended to correct. The claimant's solicitor also submitted that an AMS on the Appeal Panel ought re-examine the claimant for the purposes of the appeal.
4. The employer filed a "Notice of Opposition Appeal Against Decision of Approved Medical Specialist". It submitted that the Registrar ought not refer the matter to an Appeal Panel because none of the grounds in s 327(3) arose. Further, the employer opposed the admission of further evidence and submitted that no further re-examination of the claimant was warranted.
5. On 19 August 2020, the Registrar of the Commission referred the appeal to the Appeal Panel on the basis that at least one ground of appeal as specified in s 327(3)(c) and (d) is capable of being made out. The Registrar's reasons for decision included the following: "An Appeal Panel may determine an appeal solely based on the written application and any written Notice of Opposition. When a matter is determined on the papers, a copy of the decision will be issued to the parties."
6. The Appeal Panel made its decision and published its reasons on 13 October 2020. Its reasons included the following: "PRELIMINARY REVIEW 6. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Workers compensation medical dispute assessment guidelines. 7. As a result of the Appeal Panel's preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. Fresh evidence 8. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available lo the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment. 9. The appellant seeks to admit the following evidence: (a) Statement of the appellant dated 17 July 2020. 10. The Appeal Panel determines that the following evidence should be received on the appeal: (a) Statement of the appellant dated 17 July 2020." [Emphasis added.]

Consideration

1. Mr Hooke SC and Ms Goodman submitted on behalf of the claimant that the claimant had sought a re-examination by one of the two AMS on the Appeal Panel, that this was refused and reasons had not been provided. They contended that the Appeal Panel had either failed to consider the claimant's request or, if it had considered it, failed to give reasons, other than "pro forma" reasons for refusing it. Mr Hooke accepted that it was open to the Appeal Panel not to re-examine the claimant, but submitted that it was required to consider the claimant's request that it do so. Mr Hooke submitted that the consideration of the claimant's request was particularly necessary in the present case given that the claimant had provided evidence as to the errors which he alleged had been made by the AMS in the original assessment.
2. Ms Tronson and Ms Roberts, who were instructed on behalf of the employer, accepted that the Appeal Panel's reasons were pro forma: that is, the Appeal Panel did not indicate in its reasons that it had actually considered the claimant's request that he be re-examined or the basis on which it concluded that no examination was warranted.
3. I accept that the employer's concession was properly made. The Appeal Panel had the power to re-examine the claimant by reason of s 324(1)(c) and s 324(3). The claimant was entitled to request the Appeal Panel to exercise the power and, if he did so, to have the Appeal Panel consider his request and decide whether to grant it. The Appeal Panel has an implied statutory obligation to give reasons for its conclusions: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 (Vegan). Such reasons must "fulfil a minimum legal standard" (Vegan at [122] (Basten JA, McColl JA agreeing)) and "where more than one conclusion is open, it will be necessary for the Panel to give some explanation for its preference for one conclusion over another" (Vegan at [121]). The reasons need not be detailed. For example in Starr v Pendergast Painting Pty Ltd [2020] NSWSC 725, I held at [32] that the following reasons given by the Appeal Panel were sufficient in that case: "The appellant requested a re-examination by a Panel AMS. However, the photographs relied upon by Mr Starr were clear, in focus and in colour. A re-examination would not have assisted the Panel any further."
4. By contrast, all that the Appeal Panel did in the present case was to set out its conclusion that no re-examination was warranted. This is not enough to indicate to the claimant either that his application had received due consideration or why the Appeal Panel considered that no examination was warranted. In the circumstances, the cursory fashion with which the Appeal Panel dealt with the claimant's application that he be re-examined amounted to a denial of procedural fairness. This constitutes a jurisdictional error which has the effect that, as the parties agreed, the decision of the Appeal Panel ought be set aside.
5. I note, for completeness, that it was common ground that the Appeal Panel had power to decide to re-examine a plaintiff if it chose to do so. Accordingly, it is not necessary for present purposes to address the decisions of this Court that the Panel only has power to re-examine a claimant under s 324 if it is satisfied that there is an error in a certificate issued by the AMS: New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [32]-[33] (Davies J) and Midson v Workers Compensation Commission [2016] NSWSC 1352 at [52] (N Adams J).

Orders

1. For the reasons given above, I make the following orders, in accordance with the consent orders provided by the parties: 1. The name of the second defendant is amended to be: Medical Appeal Panel constituted by Jane Peacock, Dr John Baker and Dr Patrick Morris. 2. The name of the third defendant is amended to be: President of the Personal Injury Commission of NSW. 3. The plaintiff is granted leave to file and rely upon a further amended summons in the form of the document dated 8 June 2021, incorporating the amended names of the second and third defendants as set out in orders 1 and 2 above. 4. The plaintiff is to file his further amended summons pursuant to such leave within three business days of the date on which these orders are made by the Court. 5. The decision of the second defendant dated 13 October 2020 is quashed. 6. The Certificate of Determination dated 17 November 2020 is set aside. 7. The plaintiff's Application to Appeal against a decision of an Approved Medical Specialist, dated 17 July 2020, is remitted to the third defendant for referral to a medical appeal panel for determination according to law. 8. The hearing listed for 24 June 2021 is vacated. 9. No order as to costs. 10. The parties' consent statement dated 23 June 2021 is noted.

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: 24 June 2021