Lukacevic v Coates Hire Operations

Supreme Court of NSW|2010-02-12|Before: Hislop J

Introduction 1 The plaintiff, by summons filed on 23 June 2009, seeks the following orders: "1. That the decision of the Third Defendant dated 13 May 2009 be quashed, on the grounds of error of law (section 69 of the Supreme Court Act ), and/or jurisdictional error.

That a writ of mandamus issue ordering the Second Defendant to reconsider the decision in accordance with these reasons and according to law." 2 The first defendant opposes the application. The second and third defendants have filed submitting appearances save as to costs. Background 3 On 20 February 2004 the plaintiff sustained injury to his back in the course of his employment by the first defendant. A dispute arose as to his entitlement to lump sum compensation for a psychiatric condition allegedly arising from the injury. 4 The dispute was referred by the Registrar to an Approved Medical Specialist (AMS) for the assessment of the degree of permanent impairment resulting from the psychiatric condition pursuant to the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (WIM). 5 Consequent upon the referral the AMS examined the plaintiff. The AMS had before him the reports of a number of doctors, including three psychiatrists, a statement made by the plaintiff, claim forms and other documents which he considered at the time of the examination. 6 On 10 February 2009 the AMS issued a medical assessment certificate pursuant to WIM s 325 recording a finding of four percent whole body impairment. 7 The plaintiff was dissatisfied with the examination and the conclusions of the AMS. He prepared a statement dated 10 March 2009 (the Statement) in which he set out the basis for his dissatisfaction. 8 The Statement asserted, in essence, that the AMS had concluded there was no evidence of significant depression without mentioning certain matters of which the plaintiff had informed him at the examination; the AMS had incorrectly reported that the plaintiff had denied suffering continuing nightmares or flashbacks; and the AMS had failed to question the plaintiff about various aspects of his condition. There was then a commentary of what the plaintiff would have said had the AMS asked the relevant questions. 9 On 10 March 2009 the plaintiff lodged an application to appeal from the assessment pursuant to WIM s 327 on the grounds: "…that there is availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment) (section 327(3)(b)), or that the assessment was made on the basis of incorrect criteria (section 327(3)(c)), or that the MAC contains a demonstrable error (section 327(3)(d))." 10 The Statement was among the material placed before the registrar. 11 The registrar referred the appeal to a Medical Appeal Panel (MAP), having concluded: "On the face of the application and the submissions made, I am satisfied that a ground of appeal as specified in section 327(3)(d) has been made out in that an error is capable of being shown regarding the assessment of the Appellant's hearing [sic] psychiatric impairment according to PIRS." 12 The plaintiff and the first defendant each filed submissions on the appeal. The plaintiff's submissions nominated four grounds of appeal. The first defendant's submissions, inter alia, contained an objection to the Statement being considered on the appeal. 13 The MAP conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the guidelines. It concluded the Statement should not be received in the appeal as fresh evidence. Its reasons for that conclusion were: "…that the 'fresh evidence' should not be received in the Appeal because the Appellant comments on the process of the medical examination and there is an interest in finality of litigation which admitting the statement would not serve. For reasons of procedural fairness, the Panel could not consider the allegations made by the Appellant in the absence of a response from the AMS. That continual opening and re-opening of the evidence is not in the interests of justice and not contemplated as part of the appeal mechanism in the Commission." 14 In Greater Wollongong City Council v Cowan (1955) 93 CLR 435 the High Court said: "The discovery of fresh evidence…could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial." 15 Johnson J in Summerfield v Registrar of the Workers Compensation Commission of NSW [2006] NSWSC 515 was concerned with the construction of s 327(3)(b) WIM. His Honour found it helpful to approach the question of construction with an understanding of the principles applicable to the receipt of fresh evidence, especially in civil appeals. He said (at [51]-[52]): "51 The concept of fresh evidence arises frequently in the context of appeals from decisions of courts. On an appeal to the Court of Appeal, s.75A Supreme Court Act 1970 applies. Section 75A(7), (8) and (9) provides as follows: '75A Appeal (7) The Court may receive further evidence.

(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds. (9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.' 52 The restriction upon the adducing of further evidence contained in s.75A(7) and (8) has been construed to involve a test where the appellant must show, inter alia, that the evidence could not have been obtained with reasonable diligence for use at the trial: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. There is a separate test provided for in s.75A(9), which allows a general discretion to admit evidence as to matters occurring after the date of the trial, but this discretion is not at large and regard must be had "to the context in which [the discretion] arises and also to the general public interest in the finality of litigation" : Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 296; Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80 at paragraph 36…" 16 The MAP reviewed the material before it, including the reports of other psychiatrists and the submissions, and concluded the Medical Assessment Certificate of the AMS should be confirmed.

The dispute 17 The plaintiff, submitted, in short, that

(a) the third defendant denied him procedural fairness in failing to take into account a relevant consideration in refusing to consider fresh evidence under WIM s 328(3) in the form of the Statement about what had occurred at the examination before the AMS;

(b) section 328(3) permits the giving of fresh evidence on an appeal, if it "was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment". The evidence about what occurred at the medical assessment clearly fell into that category. Section 328(3) does not confer a discretion upon a MAP to refuse to accept such evidence;

(c) alternatively, if the MAP had a discretion not to admit the evidence, then it erred in the exercise of that discretion in that it asked the wrong question, applied the wrong test or failed to exercise its discretion at all;

(d) the MAP erred in purporting to apply a blanket rule, in holding that statements challenging the recording of an applicant's history by an AMS should not be admitted on appeal because the AMS would have to be "accorded procedural fairness" and "the continual opening and re-opening of the evidence is not in the interests of justice". 18 The first defendant submitted, in short, that

(a) fresh evidence was only admissible in the appeal in the discretion of the MAP;

(b) the discretion was properly exercised to exclude the "fresh evidence" in this case;

WIM provisions 19 The medical assessment provisions of WIM are contained in Pt 7 thereof. Those provisions are complemented by the guidelines issued pursuant to s 376(1) WIM, see also ss 331 and 328(2). 20 Section 322(1) WIM provides: "The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose." 21 Section 328 WIM provides: "(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment." 22 Guideline 40 provides that the appeal form must attach: "a copy of the medical assessment certificate being appealed. a copy of all reports and documents that the party sent to the Commission to be referred to the AMS prior to the assessment. any submissions the party wants to make in support of the grounds of appeal."

Similarly with the defendant's reply to the appeal (Guideline 41). 23 Guideline 43 provides: "The Appeal Panel, comprising two AMSs and an Arbitrator, will undertake a preliminary review of the documents. The parties are not present for this preliminary review. The Appeal Panel decides on the appropriate action to take in the appeal including whether the worker should be examined and if new evidence should be allowed. The Appeal Panel may set a date for an assessment hearing or may decide the appeal on the papers without further involvement from the parties."

Is there a discretion in relation to the receipt of fresh evidence by the MAP? 24 The plaintiff submitted s 328(3) was clear in its terms. Provided the evidence sought to be adduced was: "(a) fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against; and (b) the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment"

it is admissible. There is no discretion to reject it. The MAP erred in excluding the Statement in the purported exercise of a discretion which it did not have. 25 I do not agree. In my opinion, s 328 tacitly acknowledges the existence of a discretion to determine whether fresh evidence should be allowed on an appeal but limits one aspect of that discretion by precluding the admission of evidence which does not meet the prerequisites in s 328(3). Subject to that limitation, there remains a general discretion. 26 This is confirmed by guideline [43], which states that "The Appeal Panel decides…if new evidence should be allowed." 27 It is also consistent with the comments of Johnson J in Summerfield where his Honour said: "[57] …The Appeal Panel will itself apply a fresh evidence test under s.328(3) WIM Act for the purposes of the appeal. The Registrar's decision under s.327(3)(b) and (4) does not have the result that the additional relevant information which appears to exist will necessarily be admitted by the Appeal Panel at the hearing of the appeal. [58] …I see no warrant in the words of the statute, viewed in the context of the broad objectives and purposes of the legislation, to impose a harsher and more demanding test for fresh evidence on appeal under ss.327 and 328 than the test which applies on appeal from a civil trial court to the Court of Appeal in civil curial proceedings."

I do not read the comments in Zuanic v Gypro-Tech (Australia) Pty Limited (2006) 66 NSWLR 206 (at [72] and [73]) or Massie v Southern NSW Timber and Hardware Pty Limited [2006] NSWSC 1045 (at [49]-[50]), to which reference was made by the plaintiff during the hearing, to be inconsistent with that construction. 28 It is appropriate that the MAP have such a discretion. As counsel for the first defendant submitted "…if the position for which the plaintiff contends, namely, that there is no discretion admitted via the subsection, then any statement commenting on the process of the medical examination by the medical assessor, be it the obtaining of history, disagreement about history, understanding of what was put etc, would be admissible before the appeal panel because it would, plainly enough, satisfy either or both limbs of the test which my learned friend says is the sole gateway to admissibility under sub-s (3) of s 328. We say that can't possibly be so. It can't possibly be the intention of the Parliament to pass that provision in that form to operate in that way." 29 In my opinion, the MAP had a discretion in relation to the receipt of fresh evidence on the appeal.

The exercise of the discretion 30 In exercising the discretion regard must be had to the context in which the discretion arises and to the general public interest in the finality of litigation - Summerfield at [52]. 31 The plaintiff submitted that, if there was a discretion, its exercise miscarried as:

(a) the AMS, as the administrative decision maker, had no vested interest in the outcome of any appeal from his decision. As his rights and interests were not affected by the outcome of the appeal, there was no need to accord him "procedural fairness";

(b) the MAP was not required to adjudicate between the AMS and the plaintiff, nor to engage in a "continual opening and reopening of the evidence". 32 The reference to "procedural fairness" was not, it seems to me, a reference to the AMS but a reference to the first defendant. There was a legitimate concern that, if the Statement was admitted, procedural fairness to the first defendant would require a response to be obtained from the AMS in respect of the allegations of the plaintiff concerning the conduct of the assessment, the AMS being a competent, but not compellable witness - WIM s. 325(4). The admission of the Statement would lead to delay as information was sought from the AMS, the possibility of the plaintiff seeking a right of reply to the AMS and the MAP ultimately being required to adjudicate between the plaintiff and the AMS. These matters could lead to the prolongation of the appeal, contrary to the statutory scheme which seeks to achieve finality and would involve issues not contemplated by the appeal mechanism. 33 It was open to the MAP, in the exercise of its discretion, to reject the Statement. In my opinion, the plaintiff has not demonstrated the exercise of the discretion miscarried.

No different result would have ensued if the Statement was admitted into evidence 34 The MAP determined that it was not necessary for the plaintiff to undergo a further medical examination and that there was sufficient medical evidence before it for it to consider, evaluate and determine the issues raised on the appeal on the papers. 35 The MAP reviewed the documents forwarded to the AMS for his assessment, the AMS certificate and the submissions of the parties. It had particular regard to the reports of the three psychiatrists who had examined the plaintiff and the plaintiff's submissions. It considered and determined each of the four grounds of appeal raised in the plaintiff's submissions. The MAP reached its own conclusion concerning the correct assessment of the impairment and losses suffered by the plaintiff. 36 The Statement dealt essentially with two aspects, namely the manner in which the medical assessment examination was conducted by the AMS and the signs and symptoms of psychiatric problems of relative longstanding. The latter were not admissible within the terms of s 328(3) and, in any event, they were the subject of earlier histories and observations. 37 The MAP formed its own assessment. It did so having regard, inter alia, to the submissions by the plaintiff which relevantly replicated the issues raised by the Statement. The MAP, in considering the matter, was in no materially different position than had the Statement been admitted and been before it when its final determination was being made. 38 In my opinion, no different result would have ensued if the Statement had been admitted into evidence.

Conclusion 39 In my opinion, the application fails.

The plaintiff to pay the first defendant's costs of the summons. **********

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.

Workplace Injury Management Act 1998(NSW)

CITATION : Lukacevic v Coates Hire Operations [2010] NSWSC 551

Greater Wollongong City Council v Cowan (1955) 93 CLR 435 CASES CITED : Summerfield v Registrar of the Workers Compensation Commission of NSW [2006] NSWSC 515 Zuanic v Gypro-Tech (Australia) Pty Limited (2006) 66 NSWLR 206 Massie v Southern NSW Timber and Hardware Pty Limited [2006] NSWSC 1045

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