Markovic v Rydges Parramatta & Anor

Supreme Court of NSW|2007-02-28|Before: Mr P, Basten JA, Harrison J

CITATION : Markovic v Rydges Parramatta & Anor [2007] NSWSC 157

JURISDICTION : Common Law Division - Administrative Law List

DECISION : (1) The decision of Appeal Panel dated 23 June 2006 is affirmed; (2) The amended summons filed 23 October is dismissed; (3) The plaintiff is to pay the defendants' costs as agreed or assessed

CATCHWORDS : Review - decision of Appeal Panel - WIMWCA

LEGISLATION CITED : Supreme Court Act 1970 - s 69 Workplace Injury Management and Workers Compensation Act 1998 - ss 327, 328, 329

Camperdown City Council v Vegan & Ors [2006] NSWCA 284 CASES CITED : Craig v South Australia (1995) 184 CLR 63 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Summerfield v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 515

Nadezda Markovic - Plaintiff PARTIES : Rydges Hotels Limited t/as Rydges Parramatta - First Defendant Appeal Panel, WIMWCA - Second Defendant

COUNSEL : Mr P Stockley - Plaintiff Mr G Parker - First Defendant

Paul A Curtis & Co - Plaintiff SOLICITORS : Turkslegal - First Defendant Crown Solicitor, Submitting Appearance - Third Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30135/2006 - NADEZDA MARKOVIC v RYDGES HOTELS LIMITED t/as RYDGES PARRAMATTA & ANOR

JUDGMENT (Review - decision of Appeal Panel - WIMWCA) 1 HER HONOUR: By amended summons filed 23 October 2006 the plaintiff seeks firstly, an order that the decision of an Appeal Panel dated 23 June 2006 be set aside; secondly, in the alternative, an order that the medical assessment of the plaintiff be referred for further assessment pursuant to s 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998 (WIMWCA); and thirdly, that the matter be remitted to the Appeal Panel for determination according to law. 2 The plaintiff is Nadezda Markovic (Ms Markovic). The first defendant is Rydges Hotels Limited t/as Rydges Parramatta (Rydges). The third defendant is an Appeal Panel constituted pursuant to s 328(1) of the WIMWCA (the Appeal Panel) who has filed a submitting appearance. Ms Markovic relied on the affidavit of Paul Curtis dated 5 October 2006. 3 There are three issues raised by the plaintiff's Counsel's oral submissions. They are firstly, that the review ought to have been limited to the grounds specified by the appellant; secondly, the Appeal Panel made an error on the fact of the record when they applied s 328(3); and lastly, the Appeal Panel did not give adequate reasons in relation to its determination.

Grounds of Appeal 4 The plaintiff appeals the decision of the Appeal Panel made on 23 June 2006 on the grounds that it was firstly, ultra vires in that it constituted an abuse of discretionary power in that it failed to take into account relevant considerations; secondly, was ultra vires in that it constituted an abuse of discretionary power in that it was unreasonable; thirdly, constituted an error of law on the fact of the record; and fourthly, constituted a denial of procedural fairness to the plaintiff. 5 Section 69(3) of the Supreme Court Act 1970 provides: "It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings." 6 The "face of the record" is expanded to include the reasons expressed by the Court or Tribunal for its ultimate decision - s 69(4). The jurisdiction of the Court is expanded beyond that identified in Craig v South Australia (1995) 184 CLR 63 and Camperdown City Council v Vegan & Ors [2006] NSWCA 284 per Basten JA at [50].

Workers Compensation Commission proceedings 7 Ms Markovic was employed by Rydges as a laundry attendant from 4 April 1997 until 5 July 2002. Her main duties were loading and unloading the washing machine and pressing linen. Ms Markovic was born on 3 November 1960 and is presently 47 years of age. 8 On 19 March 2002, while pulling heavy sheet from a washing machine she injured her right arm. On 22 April 2002, Mr Markovic returned to work. From 22 April 2002 to 5 July 2002, she sustained injury to her left arm as a result of overuse and heavy work. Due to the way she held her neck and shoulder following the injury she sustained injury to the thoracic spine. This chronic pain has resulted in depression. 9 On 15 February 2005, Ms Markovic lodged an Application to Resolve a Dispute with the Workers Compensation Commission. The proceedings had previously been commenced and then discontinued. On 28 February Rydges replied to the application disputing Ms Markovic's claim. 10 On 29 August 2005 Dr Drew Dixon issued a Medical Assessment Certificate assessing Ms Markovic as having a 17 percent Whole Person Impairment (WPI). 11 On 28 September 2005, Rydges filed an application to Appeal against Decision of Approved Medical Specialist Dr Dixon, on the grounds that contrary to s 322 of the Act the approved medical specialist combined the impairment assessment from two dates of injury namely, 19 March 2002 and 5 July 2002. Ms Markovic's solicitors agreed that the approach of Dr Dixon was incorrect (Reply, 26 October 2005). 12 On 11 November 2005, the Delegate of the Registrar, Mr Jeremy Lum referred the matter to an Appeal Panel on the grounds that: · Contrary to section 322 of the 1998 Act the Approved Medical Specialist has combined the impairment assessments from two dates of injury, namely, 19 March 2002 and 5 July 2002. · This amounts to a demonstrable error contained on the face of the Medical Assessment Certificate. 13 On 23 June 2006, the Appeal Panel issued a certificate assessing Ms Markovic of having a WPI for injuries of 5 July 2002 of 9 percent and for injury dated 19 March 2002 of 5 percent WPI.

(i) The scope of s 328 14 The plaintiff's Counsel submitted that the review conducted by the Appeal Panel ought to have been limited to the grounds specified by the appellant. The appeal ground was of narrow compass, namely that contrary to s 322, the approved medical expert combined the impairment assessments from two dates of injury, namely, 19 March 2002 and 5 July 2002. The plaintiff, who was the respondent to the appeal before the Appeal Panel agreed that the medical expert wrongly combined the impairment assessments. 15 The plaintiff's Counsel urged this Court to follow the, admittedly obiter dicta, comments of Basten JA in Vegan which are reproduced later in this judgment. 16 Section 327 of the WIMWCA provides: "Appeal against medical assessment

(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section .

(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(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),

(d) the medical assessment certificate contains a demonstrable error.

(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.

(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.

…" 17 The plaintiff also submitted that 3(a) and (b) fall into a different category to 3(c) and (d) and this is why the appeal under (c) or (d) must be made within 28 days - s 327(5). 18 The Appeal Panel stated at [20]: "In this matter the Registrar has determined that at least one of the grounds of appeal exists. The Panel has accordingly conducted a review of the material before it and reached its own conclusion concerning the impairments and losses suffered by the Appellant." 19 Section 328 reads: "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. 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.

(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." 20 In Campbelltown City Council v Vegan [2004] NSWSC 1129, Wood CJ at CL held at [81] "It would follow, in the present case, that once the Registrar as gatekeeper was satisfied, of the existence of the 2% error appearing on the face of the table, or of any other error, then it was appropriate for the matter to be referred to the Appeal Panel. It was then free to conduct a review upon the basis of the material properly available before it, without any need to make a formal finding itself as to the existence of an error falling within an available ground of appeal, and without being confined to the correction of that error." 21 And at [83]: "While I have not found this point, or indeed any other point which has been argued in these proceedings, as clear, or easy of determination, it does seem to me to be more consistent with a review by a Panel of Experts, once a ground for appeal has been identified, that it should be free to conduct a full review de novo on the available material. The position of the Racing Appeals Tribunal, which sat at a second level in an appellate framework, and which was considered in New South Wales Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691 is distinguishable. The position of the Appeal Panel in that case was more akin to that of the present Appeal Panel, in so far as it was held able to conduct a review de novo, while the Tribunal, to which appeal lay from the Appeal Panel, was confined to error review." 22 Basten JA preferred a narrower approach to a review. This passage quoted is obiter dicta. At [135]-[137] in Vegan his Honour stated: "135 The tendency of the legislature to identify the available grounds for an appeal, without separately determining the scope of the appellate tribunal, has given rise to difficulties in other situations. That is particularly so where the appellate tribunal has broad powers and many sources of jurisdiction. For example, in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [38] the joint judgment of Gleeson CJ, Gummow and Callinan JJ (in which Hayne J relevantly agreed) noted that where an appeal to this Court was available where a party was aggrieved "in point of law or on a question as to the admission or rejection of evidence", this Court's powers might be limited to correction of the error, or might encompass the powers exercisable by the Compensation Court, as on a rehearing. The majority did not express an opinion on this question (at [38]) but Kirby J, who found it necessary to do so, concluded that the powers of this Court were limited to correcting errors of law. Thus his Honour stated [69]: "In the context of this legislative history, and despite the ungainly language, there can be little doubt that the purpose of Parliament was to limit both the jurisdiction and powers of the Court of Appeal to the determination of appeals on a point of law (or in relation to the admission or rejection of evidence). The alternative construction would be capricious, involving the need for jurisdiction to establish, relevantly, an error in point of law but thereafter allowing, and probably requiring, the Court of Appeal to exercise its powers to decide purely factual disputes."

136 A similar conclusion had been reached by this Court in North Broken Hill Ltd v Tumes (1999) 18 NSWCCR 412 at [22]-[24] (Beazley JA, Giles JA and Davies AJA agreeing), because the legislature had conferred exclusive jurisdiction on the Compensation Court to determine such matters.

137 Two factors suggest that such an approach would also be appropriate in relation to the powers of the Appeal Panel. First, if the Appeal Panel's powers were at large, the need to specify grounds of appeal limited to particular categories, would be rendered largely otiose. Secondly, the Appeal Panel is not a tribunal which has any powers other than those necessary to deal with the appeals in question. Thus, unlike this Court, it is not necessary to consider whether broad existing powers are exercisable in a particular case or not. On a tentative view, the approach adopted by the primary judge in the present case may have been in error and the powers of the Appeal Panel may be limited to addressing, and if thought necessary, correcting, errors identified in the certificate granted by the approved medical specialist, as specified by the appellant. However, it is not necessary to reach a final conclusion in relation to this aspect of the matter because the certificate must be set aside on other grounds and the matter remitted to the Appeal Panel for it to exercise its powers according to law." 23 I consider myself bound by the decision of Wood CJ at CL in Vegan, and in any event, for the purposes of comity, I would follow it. Section 328(2) says that the appeal is to be by way of review and this occurs if Wood CJ at CL's decision is applied. This is precisely the exercise that was carried out by the Appeal Panel.

(ii) The application of s 328(3)(b) of the Act 24 The plaintiff submitted that the Appeal Panel did not address the second limb of s 328(3)(b) and this constitutes an error on the face of the record. 25 The Appeal Panel stated at [10]-[11]: "Section 328(3) of the 1998 Act provides that the Appeal Panel is not to receive 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, unless the evidence was not available to the appellant before the medical assessment, or could not reasonably have been obtained by the appellant before the medical assessment.

The Panel has determined that material submitted as fresh evidence should not be received as such. This consisted of the reports of Dr Ho dated 16 November 2005 and 28 November 2005. These consisted firstly of an x-ray of the left elbow and forearm, and an ultrasound of the left elbow; and secondly of an ultrasound of the left wrist. We are of the view that this evidence could reasonably have been obtained by the Appellant before the medical assessment in terms of s. 328(3), and therefore we refuse leave for such evidence to be admitted." 26 It seems the x-rays and ultrasound of Dr Ho were not available before the medical assessment but the Appeal Panel does not address this limb of s 328(3). 27 In Summerfield v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 515 Johnson J held at [57] that the word "or" in s 327(3)(b) of the WIMWCA ought to be treated as disjunctive as this is the ordinary meaning of the word. 28 The defendant submitted that s 328(3)(b) refers to evidence that was not available to the appellant. Ms Markovic was not the appellant. She was the respondent to the appeal. The plaintiff submitted that the new evidence only has to be available to the appellant and due to the wide ranging nature of a review, if the evidence was available to the appellant, Rydges can be given to the Appeal Panel. Elsewhere, in the section it should be noted reference is made to injured worker as distinct from an "appellant" (s 328(4)). It is my view that it is only the appellant who can seek to furnish new evidence, as this is the ordinary meaning of the word.

(iii) Adequacy of reasons of Appeal Panel 29 The NSW Court of Appeal in their decision in Vegan, confirmed that an Appeal Panel providing a certificate under s 325 of the Act has a duty to give reasons. Handley JA (with McColl JA agreeing) said that while a duty to give proper reasons is not normally a legal incident of administrative decision making, a statement of reasons may be necessary to enable a party to exercise a right of appeal or such rights as he or she may have to contest the decision. This reasoning applies where there is an appeal from an administrative decision maker to a panel or from an expert to a panel of experts [at 24]. 30 Since the approved medical specialist has a duty to give proper reasons, the Appeal Panel in correcting the error should do what the medical specialist should have done by making the right decision and providing the proper reasons for it. The Appeal Panel's reasons would facilitate a court or the Commission to properly exercise the power granted to them under s 329(1)(b) of the WIMWCA. Handley JA stated, at 105, that the justification for an obligation to give reasons is derived from the right of appeal granted in relation to an exercise of judicial power and that "justice must not only be done but must be seen to be done", citing Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. 31 His Honour continued at [121]-[122]: "Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.

On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required." 32 The Appeal Tribunal reviewed all the material that had been before the medical specialist, Dr Dixon. The relevant findings and reasons of the Appeal Panel appears at paragraph 22. It reads: "Having reviewed all the material before the AMS, the Panel, with some hesitation, confirms the assessment as to the lumbar spine. However, in relation to the thoracic spine we note the injury is caused partly by the presence of degenerative changes and partly by referred pain from the cervical spine (see paragraph 13 above). We find that the appropriate DRE category is category I and that therefore a fresh certificate will issue to reflect that view." 33 The only change made on appeal was in relation to the injury to the thoracic spine. In lieu of DRE category II, the Panel found that the appropriate DRE category is category I. The reasons in these circumstances are adequate. Ultimately, the whole person impairment was reduced by one percent. There is no error on the fact of the record. No relief ought to be granted. The decision of the Appeal Panel dated 23 June 2006 is affirmed. The amended summons filed 23 October 2006 is dismissed. 34 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed.

(1) The decision of the Appeal Panel dated 23 June 2006 is affirmed.

(2) The amended summons filed 23 October 2006 is dismissed.

(3) The plaintiff is to pay the defendants' costs as agreed or assessed. **********

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.

(1999) 18 NSWCCR 412

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