Maricic v The Registrar, Workers Compensation Commission

Decision of Associate Judge 20The associate judge considered the decisions of Estate of Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 and Skillen v MKT Removals Pty Ltd [2007] NSWSC 608, and continued: [29] Brockmann and Skillen held that members of the Appeal Panel are not obliged to make their findings on medical examination available to the parties. As Malpass As J stated in Skillen it is open to the Appeal Panel to conduct a medical examination as part of its review process. Dr Burns' examination was conducted as part of a review of the original medical assessment, in compliance with s 328(3). [30] Ms Maricic argues that Brockmann is distinguishable because in that case the examining doctor recorded the plaintiff's detailed medical history and in this case the report was based on Dr Burns' clinical findings. The information that came from the plaintiff appears to be her reported symptoms. Dr Burns' report was made on the basis of the plaintiff's reported symptoms. The Appeal Panel took into account all the material on the file, which included a number of medical reports furnished by Ms Maricic and she was on notice the panel would use its specialist expertise to reach its conclusion. [31] Dr Burns conducted the medical examination pursuant to s 324(3) of the Act. Dr Burns is a duly trained, qualified and certified Approved Medical Specialist, but he was not a witness; he was and remained a decision maker as a member of the Appeal Panel. His examination formed only part of the decision making process undertaken by the Appeal Panel. The Appeal Panel is not obliged to make its findings on medical examination available to the parties. It is my view, that in these circumstances there was no denial of procedural fairness. 21On that basis she dismissed the applicant's summons.

Issues on application 22The Notice of Appeal now proposed contains the following grounds: 1 The Court below erred by finding that the Second Respondent, the Appeal Panel of the Workers Compensation Commission in matter number WCC 18404 of 2006 (" the Appeal Panel ") was not obliged to make its findings on medical examination available to the Appellant. 2 The Court below erred by relying on the decisions of the Supreme Court of New South Wales in Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing & Ors [2006] NSWSC 235 and Skillen v MKT Removals Pty Ltd & Ors [2007] NSWSC 608 to find that the Appeal Panel was not obliged to make its findings on medical examination available to the Appellant. 3 The Court below erred by failing to find that the Appeal Panel, in the circumstances of this matter, failed to afford the Appellant procedural fairness. 4 The Court below erred by failing to find that the Appeal Panel misdirected itself and/or asked itself the wrong question as to the requirements of procedural fairness under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Act") and consequently did not provide the Appellant with a copy of the report of Dr Mark Burns dated 3 September 2008 upon which its decisions dated 16 October 2007 and 29 April 2008 were based and in so doing, the Appeal Panel denied the Appellant procedural fairness. 23Lynch has provided an amended draft Notice of Contention, relying on the following ground: In the event that the second respondent failed to afford the appellant procedural fairness in not making the examination findings of Dr Burns available to her before making its decision of 16 October 2007, the court below should in the exercise of its discretion have refused the relief sought on the ground that the second respondent made its findings available and gave the appellant the opportunity to be heard before conducting a Reconsideration of its decision on 29 April 2008 .

Statutory provisions 24The application requires consideration of the effect of s 328 of the WIM Act, which is in the following terms: 328 Procedure on appeal (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 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. (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 by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. (4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel. (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel. 25WorkCover Guidelines made pursuant to s 328(2) include the following relevant paragraphs: Procedure of the Appeal Panel 45. An appeal panel consists of two approved medical specialists and one arbitrator. 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. Where a further medical examination is required, the registrar will advise the worker of the time and place of the examination. A support person (other than an agent or legal adviser) may accompany a worker to the examination. The worker should not bring any additional medical or other reports to the examination, unless specifically asked to do so. If it is necessary to bring x-rays or similar documents the worker will be advised of this in the letter from the registrar. The registrar must be advised in advance if an interpreter is required for the examination. Assessment Hearing 46. 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. The appeal panel assessment hearing will be informal and non-legalistic, and will afford the parties a full opportunity to present oral submissions in support of their claims. The assessment hearing is non-adversarial and in most cases no evidence will be taken or cross-examination permitted. A party is entitled to be represented at the assessment and may choose to be accompanied by a person (including but not limited to a legal adviser or agent) to assist in the presentation of their case. The assessment will be sound recorded and a copy of the recording will be available to the parties on request. The parties may seek clarification of matters raised with the assistance of the panel members.

Applicant's submissions 26In written submissions, and in oral submissions by Mr Lancaster SC for the applicant, it was contended that the Appeal Panel was under an obligation to afford procedural fairness to the applicant; and that in this case this required that she be given an opportunity to deal with adverse information that was credible, relevant and significant to the decision to be made, and to that end be informed of such matters that the Appeal Panel knew of and considered may bear upon whether to accept her claims: Plaintiff M61-2010E v Commonwealth of Australia [2010] HCA 41 at [74] - [75], [91], Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [2], Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629, and at 569, 582, 602, 633. 27It was submitted that the (apparently oral) report of Dr Burns to the Appeal Panel included observations that were contentious, controversial and matters of personal judgment, which were unknown to the applicant and operated to produce a decision adverse to her; and they were reported to and adopted by the Appeal Panel without giving the applicant any opportunity to consider this material or deal with it. It was also submitted that any cogency of the opinion of Dr Burns depended on the details of the history taken by him and the methodology he used, these being the very matters on which the applicant should have been given an opportunity to comment and was not. This applied particularly to the reported observation by Dr Burns of the applicant's interaction with her husband in the waiting room at the end of the consultation. 28It was submitted that the associate judge erred in holding that members of the Appeal Panel were not obliged to make their findings on medical examination available to the parties. It was submitted that the case of Brockmann did not suggest an inflexible rule to that effect, or if it did, it was wrong and should be overruled. 29It was also submitted that the point in the Notice of Contention should not be allowed, because it was not taken below; and had it been taken, the applicant may have conducted the case below differently. In any event, it was submitted, re-consideration by the same Panel including Dr Burns could not cure the denial of procedural fairness in the first decision: Twist v Randwick Municipal Council (1976) 136 CLR 106.

Decision 30There is no doubt that the Appeal Panel was under an obligation to afford procedural fairness to the applicant. The question is, what was the content of that obligation? 31This content has to be assessed having regard to relevant provisions of the WIM Act, and of the WorkCover Guidelines (without of course giving any effect to those Guidelines that would be inconsistent with the Act itself). Relevant provisions of the WIM Act and the Guidelines include the following: (1)The WIM Act provides that its purpose is ( inter alia ) to provide injured workers with payment for permanent impairment; to be fair, affordable and financially viable; and to deliver these objectives efficiently and effectively (s 3). (2)The WIM Act contemplates that an approved medical specialist who is a member of an appeal panel hearing an appeal may carry out an assessment (s 324). (3)The Guidelines specifically provide for a further medical examination by an approved medical specialist on the Appeal Panel (par 45). (4)The Guidelines also provide that, if an assessment hearing is arranged, it is to be informal and non-legalistic, and non-adversarial (par 46). 32The effect of s 328 of the WIM Act and of similar provisions in an earlier version of the WorkCover Guidelines was considered by Studdert J in Brockmann , where his Honour said this: [60] In the present case, detailed submissions were filed on behalf of the deceased, together with medical reports, and in those submissions the deceased submitted "that the appeal should be determined on the papers". Of course that was before notice was given of the Panel's determination that there should be a medical examination, but that determination did not prompt the deceased to revise his submission that the matter should be determined on the papers. [61] It is not without significance that the examination was conducted by one of the Panel members, who was to report to the Panel. It is reasonable to conclude from the statement of the Panel's reasons that Dr Watters' examination influenced his decision and that his report influenced the other members of the Panel. [62] The Appeal Panel was entitled to draw upon the expertise of one of its members, as plainly it did in this case. It was entitled to take into account that expertise and the conclusions reached by that expert without disclosing those conclusions to the deceased, before coming to a final conclusion. In making a submission to this effect, a submission which I accept as correct, Ms Allars referred to the decision of the Federal Court in Minister for Health v Thomson 1985 8 FCR 213, a case concerning alleged over-servicing by a medical practitioner. The Committee considering the matter was a committee of five medical practitioners. It was determined that the Committee was entitled to act on its own views without disclosing those views to the medical practitioner before the Committee. In his judgment in this case, Fox J said at 217: "There are many authorities which hold such a Committee can act on its own views, and can do so, without disclosing those views to a person appearing before it in the role of a defendant or otherwise." [63] In his judgment, Beaumont J said at 224: "The respondent further argues that the Committee denied him natural justice by using its own experience and expertise to determine an appropriate frequency of visitation. Although the Committee acknowledged that it did use its own experience and expertise in coming to its conclusions, it does not follow that any breach of the rules of natural justice thereby occurred. By virtue of the provisions of s 80(2) (a reference to the Health Insurance Act 1973), only medical practitioners may be appointed to the Committee and it is only reasonable to assume that the respondent was at all material times on notice that the members of the Committee would be likely to make use of their own expertise and experience in such matters." [64] Wilcox J agreed with both Fox J and Beaumont J. [65] Section 328 of the WIMWC Act provided for an Appeal Panel being structured by three members, two of whom were to be approved medical specialists. Hence applying the reasoning of Beaumont J in Thompson , reasoning with which I respectfully agree, it is only reasonable to assume that the deceased was on notice that the Appeal Panel would use the medical expertise and experience of its medical specialist members in its deliberations. [66] While as a general proposition procedural fairness does require the decision maker to disclose for comment material personal to the individual concerned where the source of that material is other than that individual (see Kioa (above) per Mason J at 587) and Sinnathamby v Minister for Ethnic Affairs (1986) 66 ALR 502 at 506 per Fox J, this requirement does not exist where the material comes from the individual concerned. Here the additional material influencing the Appeal Panel was the history given by and the examination of the deceased himself. It is apparent from para 20 of the Reasons that Dr Watters took a detailed medical history from the deceased, which included no complaint that back pain inhibited intercourse. To the extent that there was reliance upon the history given by the deceased, there was no requirement that the significance attributed to that history by the Panel be conveyed to the deceased (see Sinnathamby (above) per Fox J at 506 and per Neaves J at 513; Ansett Transport v Minister for Aviation (1987) 72 ALR 469 at 499; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 and Pilbara Aboriginal Land Council Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 per Merkel J at 557 (71). 33On that basis, Studdert J held that there was no denial of procedural fairness in that the applicant in that case was not provided with a copy of Dr Watters' report. 34It was contended by the applicant in this case that the reasoning in par [66] does not apply if the history reported by the approved medical specialist to the Appeal Panel is significantly adverse to the applicant and such as may be contested by the applicant (as in this case). Accordingly, it was contended, par [66] was wrong, or else should be read down to apply only where the history said to have been given by the applicant is uncontroversial, and the controversy is limited to the significance attached to the uncontroversial history. 35In my opinion Brockmann was correct, insofar as it decided that the relevant requirement to afford procedural fairness did not generally require disclosure to an applicant of an adverse report to an appeal panel by a member of that appeal panel who has, as an approved medical specialist, carried out a further medical examination for the purposes of an appeal to that appeal panel. 36However, in my opinion it should not be read as deciding that in no circumstances would failure to provide such a report be a denial of procedural fairness; and in my opinion, if it were to be so read, it would be an error. For example, if such a report were to reject an applicant's case on a basis not previously raised and not addressed in material provided by the applicant, procedural fairness may well require that the applicant be given an opportunity to deal with it: cf Siddik v WorkCover Authority of NSW [2008] NSWCA 116. 37In the present case, the issue of whether the applicant's complaints, including her complaints about her ability to move her neck, were genuine, had been squarely raised, for example in Dr Mathieson's report. When the applicant through her solicitor requested a further medical examination, it must have been apparent, at least to the applicant's solicitor, that one issue to be addressed would be whether the applicant's complaints concerning her ability to move her neck were genuine, and that the approved medical specialist would be observing the behaviour of the applicant during the examination in order to come to a view about this. The circumstance that the approved medical specialist's observation extended to his observation of the applicant talking to her husband just after the examination does not in my opinion make a significant difference. 38In those circumstances, I do not think this case is one of those cases where procedural fairness required that there be a report shown to the applicant and an opportunity given for the applicant to contest it. 39It is true that this has the effect that other members of an appeal panel may receive material adverse to an applicant, which has the considerable weight of a report and opinion of a co-member of the appeal panel, which the applicant has no opportunity to contest. However, where as in this case the material relates to an issue previously raised, on which the applicant has had an opportunity to put evidence and submissions, this does not in my opinion amount to a denial of the measure of procedural fairness which the WIM Act mandates. 40I would also observe that in this case, the applicant could have done little more than deny that the observations of Dr Burns were correct, giving rise to a conflict of fact which probably could be resolved only by the constitution of a fresh appeal panel without Dr Burns, and a formal adversarial hearing of a type that the Act and the Guidelines do not contemplate. The alternative, if the conflict of fact was to be dealt with, would be to reconstitute the Appeal Panel and have a fresh examination by one of the reconstituted Appeal Panel members, again a process not conducive to efficient delivery of a remedy under the WIM Act, with the potential for giving rise to the same problem again. 41For those reasons, I do not think the appeal grounds are made out; and it is not necessary to consider the Notice of Contention.

Conclusion 42In my opinion the matters raised are of some substance and the grant of leave to appeal is justified. I would propose the following orders: (1)Leave to appeal granted, Notice of Appeal to be filed within fourteen days. (2)Appeal dismissed with costs. 43CAMPBELL JA: I agree with Hodgson JA.

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