MARKOVIC v RYDGES HOTELS LIMITED and Anor

CATCHWORDS: WORKERS' COMPENSATION - binding medical assessment - appeal to Appeal Panel - appeal by way of review - panel not confined to grounds of appeal - panel proposing to consider other questions bound to give parties opportunity to be heard on new issues - ADMINISTRATIVE LAW - administrative body determining rights - procedural fairness - deciding case on basis not argued by parties - body bound to give parties opportunity to be heard on new issues.

Motor Accidents Compensation Act 1999 LEGISLATION CITED: Workers Compensation Legislation Amendment Act (Act No. 61 of 2001) Workplace Injury Management and Workers Compensation Act 1998

McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 CASES CITED: Siddik v WorkCover Authority of NSW [2008] NSWCA 116 Summerfield v Registrar of the Workers Compensation Commissioner [2006] NSWSC 515

Nadezda Markovic - Appellant PARTIES: Rydges Hotels Limited - First Respondent An Appeal Panel constituted under s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) - Second Respondent

COUNSEL: Ms Nadezda Markovic in person - Appellant Mr G Parker - Respondent

Appellant - N/A SOLICITORS: Turks Legal - First Respondent I V Knight, Crown Solicitor - Second Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT JUDICIAL OFFICER: Associate Justice Harrison

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 157

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40187/07

ALLSOP P HANDLEY AJA HOEBEN J

7 July 2009 MARKOVIC v RYDGES HOTELS LIMITED T/as RYDGES PARRAMATTA & ANOR CATCHWORDS

WORKERS COMPENSATION - binding medical assessment - appeal to Appeal Panel - appeal by way of review - panel not confined to grounds of appeal - panel proposing to consider other questions bound to give parties opportunity to be heard on new issues

ADMINISTRATIVE LAW - administrative body determining rights - procedural fairness - deciding case on basis not argued by parties - body bound to give parties opportunity to be heard on new issues. HEADNOTE

The employer appealed from a binding medical assessment to an Appeal Panel on the sole ground that the Approved Medical Specialist in his Medical Assessment Certificate had wrongly combined the impairments from different injuries. The error, and the way it should be corrected by the Panel were not in dispute. The worker did not cross-appeal from the Medical Assessment Certificate but sought to tender additional evidence in support of a variation of the certificate in her favour. The Panel refused to admit the additional evidence but in exercising their power to review the Medical Assessment Certificate they decided to reduce some of the impairments assessed by the Approved Medical Specialist without giving the worker any opportunity to be heard on the new issues. On proceedings for judicial review of the Panel's decision Held: (1) the respondent to an appeal from a Medical Assessment Certificate cannot introduce additional evidence except in reply to additional evidence introduced by the appellant; (2) the Panel were not restricted to the grounds of appeal, and were entitled to form and act on their own views on other questions, but in such a case they were bound to give the parties an opportunity to be heard; (3) the Panel had not given the worker, in particular, any opportunity to be heard in relation to the new issues and their Medical Assessment Certificate must be quashed. ORDERS (1) Appeal allowed with costs. (2) Set aside the decision of the Associate Justice Harrison of 6 March 2007. (3) In lieu thereof order that the Medical Assessment Certificate of the Appeal Panel dated 23 June 2006 be quashed. (4) Order that the appeal by the employer from the Medical Assessment Certificate of 29 August 2005 be heard and determined by a fresh Appeal Panel according to law. (5) Order the respondent to pay the appellant's costs of the Summons in the Common Law Division. (6) The respondent to have a certificate under the Suitors Funds Act if qualified. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40187/07

ALLSOP P HANDLEY AJA HOEBEN J

7 July 2009 MARKOVIC v RYDGES HOTELS LIMITED T/as RYDGES PARRAMATTA & ANOR Judgment 1 ALLSOP P: I agree with Handley AJA. 2 HANDLEY AJA: This appeal from the decision of Associate Justice Harrison in judicial review proceedings, by leave granted, is another case in which this Court has been called on to consider the regime for binding medical assessments established by amendments to the Workplace Injury Management and Workers Compensation Act 1998 made by the Workers Compensation Legislation Amendment Act (Act No. 61 of 2001). 3 The appellant sustained injuries while working for the respondent employer on 19 March and 5 July 2002. On 15 February 2005 she lodged an Application to Resolve a Dispute with the Workers Compensation Commission. She claimed to have suffered compensable injuries to her cervical, thoracic and lumbar spine, and her right and left upper extremities (aka arms). The employer disputed the claims, and the Registrar referred the medical dispute for assessment. 4 On 29 August 2005 Dr Dixon, an approved medical specialist (AMS) issued a Medical Assessment Certificate (MAC) in which he assessed the worker as having a 17% Whole Person Impairment (WPI). He assessed the impairment of her cervical spine at 8%, of her thoracic spine at 5%, of her lumbar spine at 5%, of her right arm at 5%, and of her left at 0%. Pursuant to s 323 the AMS assessed the deductions for pre-existing injury, condition or abnormality as two-fifths and three-fifths respectively for the thoracic and lumbar spines. He combined the permanent impairments from both injuries, contrary to s 322(2) and (3), to give a total WPI of 17%. The proper mathematical result was 18%. 5 On 28 September the employer appealed from the MAC under s 327. The permissible grounds are listed in s 327(3) which provides: "(3) The grounds for appeal under this section are any of the following grounds: (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,

(b) 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),

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error." 6 The appeal was on grounds (c) and (d). Subs (4) provides that an appeal is not to proceed unless it appears to the Registrar that at least one of the specified grounds of appeal "exists". 7 The appeal challenged the aggregation of the impairments from the separate injuries, and sought a redetermination by the AMS which would separate them. In the alternative it submitted that the appeal should be determined on the papers without a further medical examination of the worker (Blue 2/348-9). 8 The initial response from the worker's solicitors (Blue 2/596-7) on 27 October 2005 conceded that the AMS had wrongly combined the impairments from both injuries, and invited the Registrar to refer the matter back to the AMS for his certificate to be corrected. They agreed that any appeal could be determined on the papers without a further medical examination of the worker. 9 On 14 November the Registrar decided that as grounds for appeal appeared to exist he had no discretion (compare s 327(6)), and referred the appeal to an Appeal Panel. 10 On 6 December 2005 the worker's solicitors lodged their written submissions on the appeal. They also applied for leave to adduce additional evidence. Section 328(3) relevantly provides: "(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 obtain by the appellant before that medical assessment." 11 This reflects the ground of appeal in s 327(3)(b). The application related to an x-ray of the left elbow and forearm, and an ultrasound of the left elbow both taken on November 16 2005 and an ultrasound of her left wrist taken on 28 November. The solicitors alleged that the worker had sustained an injury to her left arm on 5 July 2002 and that the x-rays and scans had not been available before the assessment of the AMS on 29 August 2005. 12 The application was misconceived. The Act makes no provision for a respondent to adduce fresh evidence in opposition to an appeal unless the appellant has done so in support of the appeal. On the other hand further evidence is a ground for an appeal (s 327(3)(b)) which is not subject to any time limit (cf s 327(5)). 13 Section 328(2) gives an Appeal Panel the power to admit additional or fresh evidence on an appeal but only permits an appellant to introduce such evidence. The subsection refers to the assessment appealed "against", and twice refers to "the appellant" but there is no reference to a respondent. If an appellant is permitted to adduce additional or fresh evidence the Panel, as part of its duty to act in accordance with the requirements of procedural fairness, would be bound to permit the respondent to adduce additional evidence in reply. 14 The new evidence tendered on behalf of the worker related to her left arm which the AMS assessed as unimpaired. Understandably the employer had not challenged this part of the assessment. The fresh evidence was irrelevant to the issues in the appeal and had to be rejected for that reason alone. 15 The worker could have appealed from the AMS on 6 December 2005 or later because of the absence of any express time limit, but the Act requires every appeal, including any cross appeal, to be directed in the first instance to the Registrar (s 327(4)). An appeal cannot proceed to an Appeal Panel "unless it appears to the Registrar that at least one of the grounds for appeal … exists." 16 The Appeal Panel could not entertain a cross appeal unless it had been referred to them by the Registrar. 17 In their written submissions of 6 December 2005 the worker's solicitors also requested a further medical examination of the worker by the Panel. 18 In their preliminary review of 7 February 2006 the original Panel refused to admit the worker's new evidence because she was not the appellant and for procedural reasons. The Panel did not refer to the request for ther worker to be medically examined by the Panel. 19 The Appeal Panel was reconstituted after 7 February 2006 and the worker's solicitors lodged further submissions on 29 May. They reminded the Panel of their request on 6 December 2005 for a further medical examination of the worker, and withdrew her consent, conveyed in their submissions of 27 October 2005, to the appeal being determined "solely on the papers". They also made a further application for the Panel to receive the additional evidence previously rejected and a letter from the worker of 8 May 2006. 20 The new Appeal Panel conducted their own preliminary review of the original assessment, which is referred to in their reasons of 23 June 2006. 21 They determined "that it was not necessary for the worker to undergo a further medical examination because the circumstances did not warrant one". They again rejected the further evidence, this time on the ground that it could reasonably have been obtained by "the appellant (sic) before the medical assessment in terms of s 328(3)". 22 Apart from the reference to the worker as the appellant their reasons disclosed an error of law. Section 328(3) has two limbs separated by the disjunctive "or" which condition the power to receive further evidence. Johnson J held that they are true alternatives, so that the power arises if either is satisfied (Summerfield v Registrar of the Workers Compensation Commissioner [2006] NSWSC 515). This decision was not challenged but the error was immaterial because, for the reasons previously given, the evidence was not relevant to any issue in the appeal, and a respondent cannot be the first to introduce new evidence. 23 In their further submissions of 29 May the worker's solicitors withdrew her consent, given in their submissions of 27 October 2005, to the appeal being determined "solely" on the papers. However the new Appeal Panel stated in their reasons, (para 16), that the parties agreed to the determination of the matter without an Assessment Hearing. They did not refer in terms to the worker's written submissions of 29 May and their reasons for rejecting the further evidence did not make it clear whether they were rejecting the renewed application of 29 May or the previous application of 6 December. It was the duty of the Registrar to forward the written submissions of 29 May to the members of the Panel and the Court should infer that this duty was performed without delay well before the delivery of their reasons on 23 June. 24 It is clear from para 16 of their reasons that the Panel failed to consider the worker's request for an assessment hearing. Section 328(2) authorises WorkCover Guidelines dealing with the procedure on an appeal, and paras 45 and 46 relevantly provide: "45 … the appeal panel may adopt any of the following procedures in accordance with the needs of the individual case: … 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 ..." 25 The Panel's reasons demonstrate that they did not consider whether the appeal was "not capable of determination on the papers" but mistakenly relied on the consent of the parties having failed to notice that the worker's consent had been withdrawn. These errors would entitle the worker to have the Panel's Certificate quashed unless it was quite clear that a fresh panel would find that the appeal was capable of determination on the papers. It is not necessary for the Court to decide that question. 26 More than once in their reasons the Panel describe the worker as the appellant, and the employer as the respondent (Blue 2/617 & foll paras 11, 14, 15). These errors, while unfortunate, are obvious slips which could not have affected the result. 27 The Panel allowed the employer's appeal on the conceded ground that the AMS had wrongfully combined the impairments from two separate injuries. There is no complaint about this. Their reasons then (para 13) identified other parts of the MAC "that are relevant to the Appeal". In doing so they referred to her traction injury, and the injuries to her thoracic and cervical spine which the AMS found occurred on 19 March 2002 (Blue 1/439). 28 The employer's appeal did not raise any separate question about the assessments for those impairments. The statement of its solicitors in support of the appeal (Blue 2/445-6) identified the error of the AMS in combining the impairments, referred to "the obvious errors", and described it as "a very narrow issue" (2/445). 29 The Panel said that their role was "to conduct a review of the merits of the … assessment" (para 18). Having done this they confirmed "with some hesitation" the assessment for the lumbar spine. They found that the impairment for the thoracic spine was caused partly by degenerative changes and partly by referred pain from the cervical spine, that DRE Category I was appropriate, and they reduced the assessment for this impairment from 5% to 0%. 30 The panel confirmed the assessment by the AMS of the impairment for the cervical spine as DRE Category II but reduced the activities of daily living allowance from 3% to 2% and the total from 8% to 7%. 31 This part of the decision can be understood from the Guidelines. These require an assessment to start at the bottom of the range for the relevant Category (in this case 5%) to which is then added a component from 0% to 3% for the impact of the injury on the worker's activities of daily living. 32 The panel therefore substituted WPI assessments of 5% for the injury of 19 March and 9% for that of 5 July for the global assessment of 17% by the AMS(which should have been 18%). 33 The decision of this Court in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 establishes that, to quote from the judgment of McColl JA paras [101] and [104]: "… while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate … it was open to the Appeal Panel to depart from the grounds of appeal [but] it could only do so if it notified the parties and gave them an opportunity to be heard. It did not do so and, therefore misconceived its role, the nature of its jurisdiction and its duty." 34 See also in relation to the cognate provisions of the Motor Accidents Compensation Act 1999: McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 at paras [1], [5]-[9], and [26]-[32]. 35 This Panel did not give the respondent worker, an opportunity to be heard on the new issues they themselves raised, and having thus misconceived their role, the nature of their jurisdiction and their duty, the Panel's MAC must be quashed, and the appeal from the MAC of the AMS must be reheard by a fresh Panel. 36 The following orders should be made: (1) Appeal allowed with costs. (2) Set aside the decision of the Associate Justice Harrison of 6 March 2007.

(3) In lieu thereof order that the Medical Assessment Certificate of the Appeal Panel dated 23 June 2006 be quashed.

(4) Order that the appeal by the employer from the Medical Assessment Certificate of 29 August 2005 be heard and determined by a fresh Appeal Panel according to law.

(5) Order the respondent to pay the appellant's costs of the Summons in the Common Law Division.

(6) The respondent to have a certificate under the Suitors Funds Act if qualified. 37 HOEBEN J: I agree with Handley AJA.

09/07/2009 - No appearance for the Appellant - Paragraph(s) cover sheet

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