Ljubisavljevic v Workers Compensation Commission of New South Wales

Supreme Court of NSW|2018-12-13|Before: McCallum J

Judgment

HER HONOUR: Suncana Ljubisavljevic worked as a process worker employed by Pascoes Pty Ltd. Pascoes is the only active defendant to these proceedings. On 29 April 2015, Ms Ljubisavljevic suffered injuries to her neck and left shoulder while she was at work moving boxes on a shelf above the height of her head. She made a claim for workers compensation for those injuries and for consequential injury to the right shoulder from overuse and injury to the digestive system due to pain-relieving medication.
Workers compensation for permanent impairment due to workplace injuries is awarded by reference to the degree of "whole person impairment" expressed as a percentage. Ms Ljubisavljevic's claim was supported by medical opinions supporting an assessment of the degree of whole person impairment of 25%. However, the insurer denied liability on the basis that the claim did not meet the threshold requirement of 10%: see s 66(1) of the Workers Compensation Act 1987 (NSW) ("the 1987 Act"). Accordingly, Ms Ljubisavljevic made an application to resolve that medical dispute.
The dispute was referred to an approved medical specialist, Dr Kumar, who assessed Ms Ljubisavljevic's whole person impairment resulting from the nominated injuries to be 14%. That was significant because it was below the threshold for an award of damages: see s 151H of the 1987 Act. Accordingly, the result of the decision was that Ms Ljubisavljevic was left to the workers compensation benefits she would receive under the 1987 Act. Ms Ljubisavljevic further contended that, as a result of the assessment at 14%, she was entitled to a lesser amount in ongoing weekly benefits but the Court was not taken to the relevant provisions.

Dr Kumar's assessment

As explained by Basten JA at [24] of Vitaz, it does not follow that the original decision is irrelevant for all purposes. In the present case it is necessary to explain Dr Kumar's decision in order to understand the grounds of appeal to the Appeal Panel.
Dr Kumar examined Ms Ljubisavljevic on 19 June 2017. The matters referred for his assessment were "digestive system (upper gastrointestinal tract and lower digestive tract), cervical spine, left upper extremity (shoulder) and right upper extremity (shoulder)".
As to the digestive systems, Dr Kumar noted in his summary of Ms Ljubisavljevic's history that she had previously been referred to a gastroenterologist. That specialist performed a gastroscopy on 18 July 2016 which found the oesophagus, stomach and duodenum to be completely normal. Biopsies showed mild chronic gastritis which it was said "would be considered as a normal feature in most adults". A colonoscopy showed internal haemorrhoids but was otherwise normal.
Dr Kumar noted as a matter of significance the fact that Ms Ljubisavljevic had suffered digestive tract problems in the past (before suffering the workplace injuries). Making reference to the relevant WorkCover guidelines, Dr Kumar found that there was no "provocative medicine used as a result of the accident" that would cause any damage to the stomach. He noted the result of the gastroscopy showing no damage to the upper digestive tract and recorded that "WorkCover guidelines state that both signs and symptoms of upper digestive tract disease must be present before they can fall into class 1". His examination found the abdomen to be normal. He concluded that Ms Ljubisavljevic was "not assessable" for the injury to the upper digestive tract using the relevant table.
As to the lower digestive tract, Dr Kumar noted the history of bowel complaints and the report that the colonoscopy was normal. He stated that Ms Ljubisavljevic's condition remained exactly the same as it had been seven years earlier (before the workplace injuries). He again stated that "to fall into class 1 she needs to have both signs and symptoms present" and concluded that she was not assessable for lower digestive tract disease under the relevant guideline. On that basis, Dr Kumar assessed the permanent impairment for the digestive system to be zero.
As to the cervical spine, Dr Kumar noted that, upon examination, Ms Ljubisavljevic showed "dysmetria as well as spasm of the left paracervical muscles". He assessed her as falling into DRE Cervical Spine Category 2, which carries a 5% whole person impairment. In addition, he accepted that her daily activities were affected and assessed an additional 2% for limitation in activities of daily living. There was no prior history of neck impairment. Accordingly, the total neck impairment was 7%.
As to the shoulder injuries, Dr Kumar recorded the results of his examination in the following terms: "The shoulders were normal with symmetrical contours. Deltoid and bicep contours were good. She showed limitation in range of movement and was not consistent on repeated testing. She showed abnormal illness behaviour and resisted voluntary restriction of movement. However, after pointing out to her that other medicolegal specialists, including her own, had reported on a full range of movement of the right shoulder, she was able to reach a full range of movement on repeated testing. With persuasion and repeated testing the following figures were obtained for the left shoulder which I consider to be a true estimate of her shoulder movements. Her flexion and abduction were 90°. Her extension was 30°. Her adduction was 30°. In external rotation she could achieve 60° and in internal rotation she could also achieve 60°. Impingement was positive on the left side but was negative on the right side. Circumferential measurement of the arm and forearm were equal on both sides. Grip and strength was good and equal. Reflexes were normal and equal in both upper limbs. There was no sensory deficit detected in either upper limb. There was no clinical evidence of carpal tunnel syndrome in my examination in either the right or left sides."
He assessed an 8% whole person impairment for those injuries, recording his reasons as follows: "She has shown some inconsistencies in her shoulder movements. I have noted the examination of Dr Robert Breit, Orthopaedic Surgeon, in February 2016. He has recorded her to have a full range of movement of the right shoulder. Her own specialist, Dr Brian Stephenson, in his report of 11/5/16 has also found a full range of movement. When this was pointed out she displayed a better range of movement and I consider the right shoulder movement to be full and equal. While she showed inconsistency in the range of the movement of the left shoulder, and she could be assessed as impingement lasting more than 1 year, to carry a 2% whole person impairment and to give her the benefit of the doubt I have arrived at a set of figures which I believe accurately reflects her range of movement. As shown in the attached worksheet this equates to an 8% whole person impairment. The right shoulder has no assessable impairment."
Accordingly, the total whole person impairment was 14%. The process by which that figure is achieved was helpfully explained in a footnote to the written submissions prepared by Mr Herzfeld, who appeared for Pascoes, the content of which is repeated here. [1]

Appeal to the Appeal Panel

The appeal to the Medical Appeal Panel was brought under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act"), which allows an appeal against a medical assessment but only on the grounds stated s 327(3). The grounds relied upon by Ms Ljubisavljevic were: 1. the assessment was made on the basis of incorrect criteria; 2. the medical assessment certificate contains a demonstrable error.
In her application to the Appeal Panel, Ms Ljubisavljevic indicated that she was unhappy with the manner of Dr Kumar's examination and included a request that she be re-examined by an approved medical specialist. The Appeal Panel did not accede to that request, considering that the issues in the appeal could be determined by reference to the written material.
Ms Ljubisavljevic did not challenge Dr Kumar's assessment in respect of her left shoulder and cervical spine. The appeal was confined to the assessment of the upper and lower gastrointestinal tracts and the right shoulder. As to the upper and lower digestive systems, in short, the Appeal Panel found that the reasons stated by Dr Kumar were consistent with the evidence and the Guidelines and that no error could be discerned.
As to the right shoulder, Ms Ljubisavljevic had asserted in the written submissions that, during the course of his examination, Dr Kumar had coerced her "to lift her upper extremity beyond her capabilities". The Appeal Panel rejected that assertion as having no basis. The Panel noted Dr Kumar's remark that, upon observing voluntary restriction of motion, he had pointed out to Ms Ljubisavljevic "that other medicolegal specialists, including her own, had reported on a full range of movement of the right shoulder", whereupon "she was able to reach a full range of movement on repeated testing".
The Appeal Panel rejected the proposition that there was any evidence of coercion in those remarks, concluding, on the contrary, that "not to explore this voluntary restriction further could have resulted in inaccurate findings". The Appeal Panel also rejected the assertion made in the written submissions that Dr Kumar's action was "unethical, unprofessional or inconsiderate" within the meaning of the Guidelines and said "it was rather a reflection of the thoroughness and clinical skill of [Dr Kumar] in conducting the examination with a view to accurate findings. These submissions for the appellant should not have been made."
The Appeal Panel concluded that the findings for the right shoulder were open to Dr Kumar on the evidence and that no error was apparent on the face of the certificate.

Certificate of Determination

The Appeal Panel's decision was published on 6 October 2017. On 20 October 2017, Ms Ljubisavljevic's solicitor wrote to the Commission to say that he had received instructions to lodge an application for reconsideration of the decision or else an application for judicial review. The letter requested the Commission not to issue a determination based upon the Appeal Panel's decision. However, no further steps were taken before 10 November 2017 when the Commission determined the dispute. As required under s 294 of the 1998 Act, the Commission issued a Certificate of Determination, which provided: "The respondent pay the applicant, as lump sum compensation under Section 66 of the Workers Compensation Act 1987, $20,350 in respect of 14% permanent impairment resulting from injury on 29 April 2015. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998."
The Certificate of Determination is the third decision of which review is now sought. However, no separate grounds were specified in respect of that decision as it was common ground that the Certificate was consequential upon the Appeal Panel's decision so that, if the Appeal Panel's decision is vitiated by error, the Certificate must also be quashed.

The Arbitrator's decision

Ms Ljubisavljevic requested the Appeal Panel to reconsider its decision pursuant to s 378 of the 1998 Act. However, the Commission took the view (in my view, correctly) that the fact that a Certificate of Determination had been issued precluded that course. That is because s 350(1) of the Act provides that the Certificate is taken to be final and binding on the parties and not subject to appeal or review. In that circumstance, Ms Ljubisavljevic turned to s 350(3), which confers authority on the Commission to "reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission". On 13 March 2018, Ms Ljubisavljevic made an application under that section for the Commission to rescind the certificate so that it would then be open to her to pursue the request to the Appeal Panel to reconsider its decision.
On 8 June 2018, an Arbitrator of the Commission refused that application, publishing her decision with a written statement of reasons. The Arbitrator's decision is the fourth decision the subject of the present appeal.
Ms Ljubisavljevic's submissions to the Arbitrator provided grounds for reconsideration which included complaints as to the history taken by Dr Kumar and his manner of examination. It was contended that, without conducting its own physical examination, the Appeal Panel had been unable to obtain the correct information and that it should reconsider the matter on the basis that there was "evidence of incomplete history and undue persuasion, both physical and verbal…which has rendered the assessment unreliable" (ellipsis in original).
The Arbitrator considered the application by reference to the principles concerning the Commission's reconsideration power stated by Deputy President Roche in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141. The burden of Arbitrator's decision was that she did not accept that there was a satisfactory explanation for the failure to challenge the decision of the Appeal Panel within the period before the Certificate of Determination was issued and that the matters raised in support of the application were not new and not likely to have led to a different result.

Challenge to the Arbitrator's decision

Ms Ljubisavljevic's submissions in this Court addressed the decisions in reverse chronological order. It is convenient to take the same approach. The summons specified the following alleged errors in the decision of the Arbitrator: 1. The Arbitrator mischaracterised the plaintiff's case as to delay by ascribing it as a "mistake" or an "oversight" (reasons at [30]) and thereby failed to understand the nature of the proper exercise of her power; 2. The Arbitrator wrongly dismissed the fresh evidence of the plaintiff as "not new" when in fact it was new and the substance of it that was put before the Panel had been entirely disregarded by the Panel. Again, the Arbitrator thereby failed to understand the nature of the proper exercise of her power; 3. The Arbitrator determined that the plaintiff was "simply dissatisfied" with the outcome of the Panel where there was no evidence for such a finding and the finding was crucial to her determination; 4. The Arbitrator failed to engage with substantial aspects of the plaintiff's submissions and evidence and accordingly, the Arbitrator failed to afford the plaintiff procedural fairness; 5. The Arbitrator failed to set out her actual path of reasoning or reasons such that would permit a court to identify whether she has fallen into error; and/or 6. The AMS decision, the Panel decision and/or the COD decision were unlawful and the validity of the Arbitrator's decision depended on their lawfulness.
As is commonly the case in applications of this kind, those grounds were refined in the written submissions and those refined points became the focus of the argument. It is convenient to proceed on the same basis.
The first complaint addressed in the written submissions is that the Arbitrator appeared to rely on delay as a primary reason for dismissing the application without engaging with or giving proper or lawful consideration to any of the substantive grounds raised by Ms Ljubisavljevic.
I do not understand the reasons of the Arbitrator to hold, as Ms Ljubisavljevic contends, that the application should be dismissed simply because it was brought after "unacceptable delay". Delay was a relevant consideration but its significance lay in the fact a certificate of determination had been issued during the period of inaction (if it had not, there would have been no need for an application under s 350). The application had to be considered in that juridical context. As submitted by Pascoes, the power the Arbitrator was asked to exercise was the discretion whether or not to rescind an otherwise final and binding decision so as to permit the Appeal Panel to reconsider the matter. It would not have been correct to approach the exercise of that discretion on the basis that, provided the delay was adequately explained, the application must be granted.
Pascoes accepts that the Arbitrator was bound to consider the substantive grounds identified in the application and that this required "an active intellectual engagement". However, Pascoes also reminded the Court of the need for caution in determining that issue, "lest the inquiry shade into impermissible merits review". Ms Ljubisavljevic's written submissions in reply mistook this for an argument that it would be impermissible for the Arbitrator to consider the merits of the application. However, Pascoes' submission was plainly directed to the question of what is permissible in this Court. So much is plain from the authority relied upon by Mr Herzfeld, the decision of the Full Court of the Federal Court in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [35] to [38]; (2018) 161 ALD 441, which (as he submitted) provides a convenient summary of the relevant principles, albeit in a different context. In that decision at [38] the Court emphasised the need for caution on the Court's part in determining whether there has been a proper, genuine, or realistic consideration. At the same time, the Court acknowledged that "the formulation of a proper, genuine and realistic consideration 'nevertheless remains a useful touchstone to ensure that consideration given to a particular matter is such consideration as is required by law' (citation omitted)".
Against those principles, Mr Herzfeld submitted that it was not necessary for the Arbitrator, having listed the grounds relied upon by Ms Ljubisavljevic, to address each of those grounds in turn and in detail. It may be accepted that the degree of attention given to any particular ground will be informed by the relevance of the ground and its apparent strength. As noted by Mr Herzfeld, some grounds may be overwhelmingly compelling one way or the other.
Mr Herzfeld noted that, in the present case, the Arbitrator correctly gave consideration to the length of time between the Appeal Panel's decision and the issue of the Certificate of Determination and correctly considered the cogency of the explanation for the failure to seek review of the Appeal Panel's decision within that time; she correctly considered whether any of the matters raised in the statutory declaration were "new" (concluding that they were not) and she correctly considered whether the matters raised would be likely to have led to a different result. In addressing the matter in those terms, the Arbitrator closely followed the principles stated in the decision in Samuel. I do not accept, as submitted by Ms Ljubisavljevic, that the Arbitrator's summary put a gloss on that decision or on the statutory task.
In short, the burden of Mr Herzfeld's submission was that the Arbitrator plainly did engage with Ms Ljubisavljevic's submissions; she simply did not accept them. I agree.
At [31] of the reasons, the Arbitrator referred to the statutory declaration made by Ms Ljubisavljevic in support of the application. The statutory declaration was included in the evidence before this Court. However, as correctly noted by Mr Herzfeld, the use of that affidavit by this Court is properly limited to assessing the validity of the Arbitrator's decision. The Court cannot proceed on the basis that the affidavit sets out the facts upon which the validity of the earlier decisions is to be assessed, as it was not before those other decision-makers.
It may be accepted that the Arbitrator's reasons in respect of the statutory declaration were elliptic; she said the matters raised were "not new". Ms Ljubisavljevic submitted that, if the Arbitrator understood or accepted that the statutory declaration was not new (because the substance of it had been put to and considered and rejected by the Appeal Panel), she "so misunderstood the plaintiff's case that she failed to properly exercise her power in respect of the plaintiff's true case".
It is important to be precise about how this point arose. The Appeal Panel rejected Ms Ljubisavljevic's complaints about the manner in which Dr Kumar carried out his examination on the ground that there was "no basis" for those complaints. That was in circumstances where there was no evidence from Ms Ljubisavljevic about those matters apart from matters asserted in the written submissions to the Appeal Panel. For the reasons stated below, I am not persuaded that there was any error in that approach.
The statutory declaration put before the Arbitrator addressed that deficiency. However, the submissions in this Court did not identify any particular in which the substance of the case put forward in the statutory declaration differed from or added anything new to the substance of the case rejected by the Appeal Panel. The significance of the statutory declaration was that it provided a firm evidentiary basis for those complaints whereas that had been lacking before the Appeal Panel. In substance, therefore, Ms Ljubisavljevic's application under s 350 invited the Commission to allow her to have a further opportunity to put forward evidence that could have been put before the Appeal Panel. It may have been open to the Commission to exercise its discretion so as to allow that to occur but it was not bound to do so.
I am not persuaded that the Arbitrator dismissed the application without engaging with or giving proper or lawful consideration to any of the substantive grounds.
The second complaint is that the Arbitrator failed to make a positive finding of fact as to delay in circumstances where that was plainly a relevant factor. The authority cited for this complaint was the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30. No point reference was provided. The decision in Yusuf does not stand for any unqualified proposition as to the duty of administrative decision-makers to make findings of fact. It establishes that the extent of any such obligation must begin with a consideration of the relevant statutory scheme as a whole: at [73] per McHugh, Gummow and Hayne JJ. Their Honours said in the same paragraph: "the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider."
There is some awkwardness in describing "delay" as a question of fact as to which the Arbitrator was obliged to make "a positive finding". In the exercise of an administrative discretion of the kind under consideration here, delay falls more comfortably into the description of a mandatory relevant consideration. In any event, however it is characterised, delay is a matter to which the Arbitrator clearly had regard and as to which she made her position clear. She discussed the cogency of the explanation offered and concluded that Ms Ljubisavljevic "unreasonably refrained from pursuing the appropriate course": at [37]. While the language of the reasons is succinct, it is clear that the Arbitrator considered the period allowed by the Commission between the determination of the Appeal Panel and the issue of the Certificate of Determination to be adequate and that she considered the explanation for failure to seek reconsideration or judicial review within that period to be inadequate.
The third complaint is that the Arbitrator failed to give adequate reasons so as to enable Ms Ljubisavljevic (and the Court) to understand why the delay was such as to shut Ms Ljubisavljevic out from a consideration of the substantive issues raised in support of her application for reconsideration. Pascoes submits that the Arbitrator did not merely rely on delay. The decision was also based on her conclusion that the content of the statutory declaration was not "new" in the requisite sense and that reconsideration of the case was not likely to lead to a different outcome. In my view, as submitted by Pascoes, the reasoning was sufficient to allow Ms Ljubisavljevic to understand why her application failed.
The fourth complaint stems from the Arbitrator's remark that "a mistake or oversight by a legal advisor will not give grounds for a grant of reconsideration". With respect, the submissions of both parties reflected a measure of confusion about this issue. The Arbitrator's remark reflects one of the principles stated in the decision in Samuel. In its submissions in response to the s 350 application, Pascoes had invoked that principle in support of a submission that the application should be rejected because Ms Ljubisavljevic could have put evidence in the terms of the statutory declaration before the Appeal Panel.
The Arbitrator said: "I also note that a mistake or oversight by a legal advisor will not give rise to a ground for reconsideration. The matters raised by the applicant in her Statutory Declaration are not new: these were matters raised when she sought to appeal the decision of the AMS and I am not persuaded that they would have led to a different result."
In light of the submission that had been put, it seems possible if not likely that the Arbitrator's reference to the principle concerning mistake or oversight by a legal advisor was a reference to the absence of evidence before the Appeal Panel. However, in this Court, Pascoes submitted that the Arbitrator's remark was directed to the issue of delay, the point being that, if the delay fell at the feet of the plaintiff's legal advisers, that was not a ground for reconsideration.
Ms Ljubisavljevic's complaint in this Court did not engage with either point. She made three submissions concerning the Arbitrator's remark, as follows: "(a) There was no evidence before [the Arbitrator] of any mistake or any oversight by any legal advisor before the Arbitrator and there is no evidence to support this finding of fact: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139. (b) Secondly, the observation that a mistake or oversight had been made by legal advisor is an irrelevant consideration giving rise to jurisdictional error. (c) Third, if the Arbitrator had understood the plaintiff's claim for reconsideration to be based on mistake or oversight by a legal advisor the Arbitrator has so misunderstood the plaintiff's case that she has filed to exercise her power in respect of the plaintiff's true case."
I am not persuaded that error is established on any of those grounds. The s 350 application squarely addressed the conduct of the legal advisors. The steps they had taken were explained and it was asserted that Ms Ljubisavljevic "is an unsophisticated person of limited education" who "has relied highly upon her solicitors in making this application". It was submitted that there had been no "undue" delay but it was open to the Arbitrator to characterise the failure to seek a review before a certificate issued as "mistake or oversight by a legal advisor". The argument that this was an irrelevant consideration is untenable, in my respectful opinion.
The next complaint concerns the Arbitrator's reasons at [33]-[34] where she said: "33. In short, it seems clear to me that the applicant is simply dissatisfied with the findings of the Appeal Panel and seeks to re-state her evidence in pursuit of a finding of a 15% WPI in order to pursue a work injury damages claim. 34. Mere dissatisfaction with an outcome is not a proper basis for reconsideration."
It was submitted that there was no evidence to support "a finding of fact" that Ms Ljubisavljevic's case was based solely on mere dissatisfaction with the decision of the Appeal Panel and that, in the result, the decision was based on a finding that was not open to the Arbitrator and so was made without jurisdiction in accordance with the principles stated in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.
In my view, as submitted on behalf of Pascoes, this complaint is misconceived. The remark relied upon was not a finding of fact; it was the Arbitrator's assessment of the nature of the point. It is not the kind of remark that can be impugned on a "no evidence" ground.
The final point taken in respect of the Arbitrator's decision is that s 350 of the 1998 Act only applies to a "decision". Ms Ljubisavljevic submits that, if the decision of the Appeal Panel is vitiated by error, the Certificate of Determination issued by the workers compensation commission is a nullity and the Arbitrator's decision made purportedly in respect of that decision is made without jurisdiction and also a nullity. Mr Herzfeld supported that approach, accepting that, on any analysis, the court would have to address the grounds addressing the decision of the Appeal Panel. Accordingly, it is necessary to consider Ms Ljubisavljevic's challenge to that decision.

Challenge to the decision of the Appeal Panel

The challenge to the Appeal Panel's decision is out of time. However, Pascoes did not oppose an extension of time except on the basis of the merits of the appeal.
The principal complaint concerns the Appeal Panel's decision not to re-examine Ms Ljubisavljevic. The basis on which Ms Ljubisavljevic asked to be re-examined by the Appeal Panel was that she had been denied procedural fairness by Dr Kumar. The Appeal Panel declined the request.
The argument in this Court relied on the decision of the Court of Appeal in Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22. Mr Robinson SC, who appeared with Mr Blount and Mr Meyerowitz-Katz for Ms Ljubisavljevic, submitted that the decision supports the proposition that, "in circumstances where the plaintiff complained of a denial of procedural fairness by reason of the approved medical specialist having failed to examine her, the failure of the Appeal Panel to examine the plaintiff is either a constructive failure to exercise jurisdiction or a breach of procedural fairness itself, or both". Again, no point reference was provided.
Boyce was a case in which, following an application for review of a medical assessment under the Motor Accidents Compensation Act 1999 (NSW), the relevant authority wrote to the plaintiff notifying her of the proposed review and inviting her to indicate whether she objected to the Review Panel proceeding without re-examining her. The plaintiff did object but, due to administrative oversight, the Review Panel was not made aware of the objection. It determined the review adversely to the plaintiff without conducting an interview or clinical examination. The plaintiff sought judicial review of that decision. There was evidence in the judicial review proceedings that, had the plaintiff's solicitor been notified of the Review Panel's intention to proceed without re-examining the plaintiff, the solicitor would have provided further documentary material to the Review Panel to assist with their determination.
The decision acknowledges the discretion of a review panel to determine whether or not to conduct a fresh examination; the vice of the decision not to do so in that case was that it was reached on a false premise (that the plaintiff did not object to that course): at [58] per Basten JA; Macfarlan JA agreeing at [101].
Ms Ljubisavljevic submitted that, in Boyce, the Court held "by majority" (apparently a reference to the judgment of Basten JA and the concurring judgment of Macfarlan JA) that whole person impairment assessment should include an interview and clinical examination "wherever possible" and that a decision not to examine and interview an appellant was a step in the (comparable) assessment process.
The primary judgment in Boyce was given by Basten JA. His Honour noted that the permanent impairment guidelines provide that an interview and a clinical examination is to be conducted as a part of the process "wherever possible": at [21]. At [49], his Honour accepted that the question as to the need for "re-examination" was a factual issue for the Review Panel (and not a matter for the reviewing court to determine). His Honour gave two reasons for concluding that the Review Panel's decision not to conduct a re-examination was not a proper exercise of the function conferred on it in that case. First, he considered that the decision to conduct or not conduct an interview and clinical examination is a material or critical step in the review process, akin to the process of allowing a claimant to give his or her account in person in a migration case. Secondly, the Panel had inadequate information including information as to whether the appellant agreed that the description of the initial assessing doctor reflected the seriousness of her condition.
Mr Robinson acknowledged that the decision in Boyce concerned a different statutory scheme. However, he submitted that the "same principles" would apply to a claim for workers compensation under s 66 of the Workers Compensation Act.
That is contestable. In Boyce, Basten JA noted at [5] that the appellant's case in support of an obligation for the Review Panel to conduct an interview and clinical examination relied on a combination of three factors: 1. the statutory scheme for assessments; 2. various procedural guidelines; and 3. the appellant's written request for an examination.
There are at least two significant differences between the two statutory schemes. Under s 63(2) of the Motor Accidents Compensation Act, a medical assessment could be referred to a review panel only on the grounds that the assessment was incorrect in a material respect. That is to be contrasted with the grounds on which review by an appeal panel under the Workers Compensation Act, which are directed to error in the process or demonstrable error rather than incorrectness of the assessment itself.
Secondly, s 63(3A) expressly provided that the review of a medical assessment was to be by way of "a new assessment of all the matters with which the medical assessment is concerned". It was in that context that the decision whether to conduct the examination was regarded as a critical step in the review process. By contrast, s 324(3) of the 1998 Act provides that an approved medical specialist who is a member of the Appeal Panel has all the powers of an approved medical specialist making an initial assessment but does not, in terms, impose a requirement to undertake a new assessment.
Further, Boyce was decided in circumstances where, under the relevant statutory regime, there was a practice note which stated that, if the appellant objected to the review being conducted on the papers, the Review Panel would "generally" conduct a re-examination: at [130]. Sackville AJA (with the concurrence of Macfarlan JA) held that, in the circumstances, the authority's failure to inform the Review Panel that the appellant insisted on a re-examination resulted in practical injustice: at [132] and [101].
A further important difference between Boyce and the present case is that, in Boyce, the Review Panel was (due to oversight) not made aware of the plaintiff's request for an examination. That was said to have resulted in two kinds of error: 1. constructive failure to exercise jurisdiction; and 2. a breach of procedural fairness.
As to the alleged constructive failure to exercise jurisdiction, the Court was satisfied of that ground because the Review Panel could not have validly exercised the discretion whether or not to undertake an examination on a false premise (that the plaintiff did not seek it). Here, the Appeal Panel was aware that a further examination was sought but determined that no basis had been established for acceding to that request. It will be necessary to return to that issue.
As to the breach of procedural fairness, that was based on the authority's failure to inform the Review Panel of the plaintiff's position. That does not apply here.
Pascoes submitted that the Appeal Panel had a discretion whether or not to examine Ms Ljubisavljevic: s 324(3) of the 1998 Act. It submitted that the plaintiff's contention that the Appeal Panel was bound to re-examine her is flawed because the Appeal Panel considered and rejected her complaints about the adequacy of Dr Kumar's examination.
The reason the complaints were rejected was that there was "no basis" to go behind the content of Dr Kumar's decision. Ms Ljubisavljevic did not provide a statement of the kind later provided to the Arbitrator. In this Court, Mr Robinson submitted that the written submissions provided all the evidence that was needed because they set out the matters "asserted" by Ms Ljubisavljevic, which could only come from her instructions to the solicitor. In circumstances where the Review Panel is not bound by the rules of evidence, he submitted that was enough. But the only material before the Review Panel was just that; assertion. In my view, it was open to the Review Panel to reject it.
Pascoes submitted that the proposition that the submissions should be treated as evidence is untenable. It noted that the plaintiff confirmed, by the manner in which she completed the application form, that she did not seek to put "evidence" before the Appeal Panel. Further, there no evidence was put before this Court to substantiate the complaints. It was submitted that, in the circumstances, no error in the Appeal Panel's decision not to re-examine Ms Ljubisavljevic is established. I agree. The position is different from the circumstances in Boyce. It is not the case that the Appeal Panel is bound to re-examine a plaintiff upon request. Section 324 of the 1998 Act makes plain, as acknowledged in Boyce at [49], that the need for re-examination is a factual issue for the review panel and not a matter for the reviewing court to determine. Further, unlike the position in Boyce, the Appeal Panel here was aware of the request for re-examination. The Appeal Panel considered that request and gave reasons for rejecting it. I am not persuaded that error is established.
The second complaint concerning the decision of the Appeal Panel is that Ms Ljubisavljevic was denied procedural fairness by reason of the Appeal Panel's acceptance of Dr Kumar's "assertions" of "abnormal illness behaviour" when that finding was the subject of appeal and could have been determined by a re-examination.
The concept of "demonstrable error" within the meaning of s 327 was considered by the Court of Appeal in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324. In that case Gleeson JA, with whom Macfarlan JA and Barrett AJA agreed, said at [77]: "The effect of the statutory scheme outlined above is that the Panel had to determine the appeal brought from the medical specialist's assessment, in accordance with the limitations imposed upon it by that scheme. Commencing with the text, there are two significant limitations for present purposes. First, although the expression 'demonstrable error' is not defined in the Management Act, the use of the qualifying word 'demonstrable' in a gateway provision such as s 327 may be taken as intended to convey the degree of strictness of scrutiny to which the decision of the approved medical specialist may be subjected. In this regard it has been said that error alone is not sufficient and that such an error must be 'material'. Both of those statements accord with the context of the limited right of appeal under s 327."
His Honour noted at [78] that s 327(3)(d) requires that the error be "contained" in the certificate but noted that there is no express limitation on the material to which the Panel may have regard when assessing whether the certificate "contains" a demonstrable error. As to the process of identification of error by an Appeal Panel, his Honour likened the function of the Appeal Panel in undertaking administrative review by way of rehearing to that undertaken in an appeal by way of rehearing before an appellate court, holding that the reasoning and finding of the medical specialist attracts the correctness standard of review by an Appeal Panel: at [89]-[91].
Ms Ljubisavljevic's submission is that the Appeal Panel "perpetuated a denial of procedural fairness" by "uncritically accepting" Dr Kumar's assertions. However, as correctly submitted by Pascoes, it was for Ms Ljubisavljevic to establish, by reference to such material as she chose, to demonstrate that Dr Kumar's certificate contained error. In my view, it was open to the Appeal Panel to accept what was said in the certificate in favour of the unsupported assertions made in the submissions.
Ms Ljubisavljevic's submission is that the Appeal Panel "perpetuated a denial of procedural fairness" by "uncritically accepting" Dr Kumar's assertions. I am not persuaded that that complaint falls within the kind of error the Appeal Panel can correct.
As noted in Pascoe's submissions, the summons raised further complaints which were not addressed in the written submissions. I do not consider it necessary to address those grounds.
For those reasons, the summons is dismissed with costs.

Endnote

The figure resulted from combining an 8% whole person impairment attributable to the plaintiff's left shoulder and a 7% whole person impairment attributable to the plaintiff's cervical spine [CB tab 4 pp 33-34, 35; VP9 pp 66-67, 68]. In accordance with para 1.18 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed), multiple impairments are not combined by addition (8% + 7% = 15%) but by using the Combined Values Chart on pp 604-6 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA5). That Chart requires that multiple impairments, A and B, expressed as decimals, be combined using the formula A + B(1 - A). So, here: 0.08 + 0.07(1 - 0.08) = 0.08 + 0.07(0.92) = 0.08 + 0.0644 = 0.1444 = 14.44%. In accordance with para 1.26 of the NSW Guidelines, this is rounded down to 14%. 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: 09 October 2019

Workplace Injury Management Workers Compensation Act 1998(NSW)

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