Midson v Workers Compensation Commission & Ors

Supreme Court of NSW|2016-08-10|Before: Adams J, Mr P

Background

On 7 May 2015, the plaintiff made application to the Workers Compensation Commission ("the first defendant") for workers' compensation based on a psychological injury said to have been caused during his employment with Enerka Apex Belting Pty Limited ("the third defendant"). There was a medical dispute regarding the extent of the injury, which was referred by the Registrar of the Workers Compensation Commission to an approved medical specialist ("AMS") for assessment.
On 15 December 2015, the AMS issued a medical assessment certificate ("MAC") assessing the extent of the plaintiff's whole person impairment ("WPI") at 15%. This numerical value is of significance because, inter alia, in order for the plaintiff to recover damages for a work injury, he must be assessed as having at least 15% WPI under s 151H of the Workers Compensation Act 1987 (NSW) ("the 1987 Act").
On 13 January 2016, the third defendant lodged a notice of appeal against the MAC.
On 31 March 2016, the second defendant, a Medical Appeal Panel of the Workers Compensation Commission ("the Panel") constituted pursuant to s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act") delivered its reasons for reducing the WPI assessment from 15% to 13%.
By summons filed on 30 June 2016, the plaintiff seeks an order quashing the decision of the Panel on 31 March 2016 to reduce his WPI assessment. He also seeks an order remitting the matter to the Panel for determination according to law. The plaintiff invokes this Court's supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW), and claims that jurisdictional error, or in the alternative, error on the face of the record, can be demonstrated such as to warrant the relief sought.
Part 59 of the Uniform Civil Procedure Rules (NSW) ("UCPR") commenced on 15 March 2013. It prescribes the procedure to be followed in proceedings under s 69 of the Supreme Court Act. Rule 59.10 introduced a time limit of three months from the date of a decision for the commencement of proceedings for judicial review of the decision. These proceedings were commenced just within the relevant limitation period.

Relevant legislation

Part 7 of Chapter 7 of the 1998 Act provides for medical assessment of an injured worker seeking workers' compensation where there is a "medical dispute". It also provides for an internal review process by way of an appeal panel. The purpose of the internal review scheme was to remove the function of assessing injury from the adversarial court system. Section 319 relevantly provides the following definitions: "approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist. medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: ……. (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, ….."
Section 320 of the 1998 Act concerns the appointment of an AMS. Section 321 provides for the referral of a medical dispute for assessment. Section 322 concerns the assessment of impairment and s 322A provides that only one assessment may be made of the degree of permanent impairment of an injured worker.
Section 323 of the 1998 Act relevantly provides as follows: "323 Deduction for previous injury or pre-existing condition or abnormality (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. …"
Section 324 of the 1998 Act sets out the powers of an AMS on assessment as follows: "324 Powers of approved medical specialist on assessment (1) The approved medical specialist assessing a medical dispute may: (a) consult with any medical practitioner or other health care professional who is treating or has treated the worker, and (b) call for the production of such medical records (including X-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and (c) require the worker to submit himself or herself for examination by the approved medical specialist. (2) If a worker refuses to submit himself or herself for examination by the approved medical specialist if required to do so, or in any way obstructs the examination: (a) the worker's right to recover compensation with respect to the injury, or (b) the worker's right to weekly payments, is suspended until the examination has taken place. (3) This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part. An approved medical specialist who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under this section on an assessment of a medical dispute."
Section 325 of the Act relevantly provides: "325 Medical assessment certificate (1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a "medical assessment certificate") as to the matters referred for assessment. (2) A medical assessment certificate is to be in a form approved by the Registrar and is to: (a) set out details of the matters referred for assessment, and (b) certify as to the approved medical specialist's assessment with respect to those matters, and (c) set out the approved medical specialist's reasons for that assessment, and (d) set out the facts on which that assessment is based. (3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error. (4) An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence."
Section 326 of the 1998 Act relevantly provides: "326 Status of medical assessments (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned: (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, …"
Section 327 of the Act sets out the appeal rights from or against a medical assessment under this Part. It is in the following terms: "327 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 (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (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. (6) The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section)."
Section 328 of the 1998 Act provides for the appeal procedure and 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 Workers Compensation 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."

Proceedings for judicial review

This application came before me for hearing in my capacity as Duty Judge. Mr Stockley of counsel appeared on behalf of the plaintiff. All three defendants filed submitting appearances save as for costs. This left the Court with no contradictor.
In support of the application for relief, the plaintiff read the affidavit of Kimberley Marie Sharp affirmed 30 June 2016 which annexed copies of the MAC; the notice of appeal to the Panel; the submissions of both the plaintiff and the third defendant; the preliminary findings of the Panel; and the reasons for the final decision of the Panel.
The factual background to the plaintiff's injuries emerges from the documents annexed to the affidavit of Ms Sharp. In 2002, the plaintiff was working for the third defendant as a conveyer technician or "belt splicer". The third defendant introduced random drug testing and some of the plaintiff's co-workers approached him to demand that he provide them with "clean" urine specimens. He refused. The plaintiff claims that as a result of his refusal he was bullied at work by his co-workers. He claims that he developed a psychological injury as a result of "humiliation, victimisation, aggressive and abusive physical and verbal behaviour, harassments and threats by workmates." I will adopt the terminology of the Panel and refer to these incidents as the "harassment events".
On 11 February 2007, some time after the harassment events, the plaintiff suffered an injury to his wrist while at work. He brought proceedings in the District Court and the matter was settled in his favour for $360,000.
On 7 May 2015, the plaintiff made application to the first defendant claiming that he sustained a psychological injury in the course of his employment with the third defendant as a result of the harassment events. The third defendant disputed the extent of the injury and the matter was referred to an AMS for medical assessment.
On 15 December 2015, Associate Professor Michael Robertson, provided a MAC concluding that the plaintiff's WPI as a result of the psychological injury was 15%.
The WPI of 15% was arrived at using the Psychiatric Impairment Rating Scale ("PIRS"). The process of this assessment was to be found at the relevant time in the Workers Compensation Guide to the Assessment of Permanent Incapacity, 3rd Edition ("the Guide"). That edition was published and took effect in February 2009. It was current at the time of the initial assessment by the AMS and the second assessment by the Panel. The 4th Edition was published on 1 April 2016. Guidelines are issued under s 376 of the 1998 Act. Assessment of the level of permanent impairment resulting from work-related injury or disease is to be based upon the Guide: s 322 of the 1998 Act.
The AMS assessed the plaintiff's level of psychiatric impairment against six criteria. Those six criteria are self-care and personal hygiene, social and recreational activities, travel, social functioning (relationships), concentration, and employability. Functional impairment in each criterion is rated on a scale of 1-5 in accordance with severity of impairment using class descriptors provided in the relevant guidelines.
The AMS uses the six PIRS scores so obtained to determine the median class score by first arranging the six scores in ascending order and then averaging the two middle scores. Each median class score represents a range of impairment as described in the Guide. In order to determine the exact impairment percentage within the relevant range, the six PIRS scores are added to calculate the aggregate score. The aggregate and median scores are then used to calculate the percentage of WPI using the conversion table provided in the Guide.
The MAC initially produced an assessment of 17% impairment, but Associate Professor Robertson allowed for a reduction of 10% taking into account the "previous" injury to the plaintiff's wrist. Section 323 of the 1998 Act provides, inter alia, that if it is too costly or difficult to ascertain the figure that should be reduced for "previous" injury, the assessor is to deduct 10%.
On 13 January 2016, the third defendant lodged an Application to Appeal against Decision of an AMS. Part 3 of the application form was headed "Grounds of Appeal". Boxes next to the grounds "The assessment was made on the basis of incorrect criteria" and "The medical assessment certificate contains a demonstrable error" were marked with a cross. As can be seen from s 327(3) of the 1998 Act, there are four prescribed grounds of appeal upon which an applicant may rely. The third defendant relied upon two of those four grounds in this matter.
The submissions in support of the application described two errors. The first was that the AMS had incorrectly rated the respondent to be in "Class 2" for "Social Functioning" and in Class 3 for "Social and Recreational Activities" instead of "Class 1". The second error alleged was that the MAC allowed a 10% reduction under s 323 of the 1998 Act for the plaintiff's "previous" wrist injury when there was sufficient evidence available to determine the appropriate deduction and when the extent of the deduction would not be difficult or costly to determine.
It was submitted on behalf of the third defendant that an oral hearing was not requested nor was any re-examination of the respondent worker sought.
The plaintiff filed a Notice of Opposition to Appeal against the Decision of the AMS on 2 February 2016 with attached submissions.
Section 327(4) of the 1998 Act provides that an 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". Although I was not provided with any documentation that confirmed that the Registrar was satisfied that a least one of the grounds was "made out", the reasons of the Panel confirm that to be the case. The reasons do not, however, disclose whether one or both of the two grounds were "made out".
On 23 February 2016 a document entitled "Appeal Panel Preliminary Review" issued. It stated that the "date of decision" was 23 February 2016 and that the Panel comprised Arbitrator Gerard Egan and approved medical specialists Dr Patrick Morris and Dr Julian Parmegiani. It noted that it had before it the "Appeal Application Form", the file sent to the original AMS Associate Professor Robertson, the Original MAC, and the Notice of Opposition. It then noted that: "The preliminary view of Panel is as follows: "1. Section 323 of the 1998 Act is probably not applicable to the assessment because the relevant secondary psychological condition referred to in the evidence and MAC does not appear to be due to previous injury or pre-existing condition or abnormality. Neither party has addressed this in submissions. Accordingly the parties are granted the opportunity to lodge brief further submissions on that point as follows: a. The Appellant, by 29 February 2016; b. The Appeal Respondent by 7 March 2016. 2. The Panel considers the MAC to lack considerable detail relevant to the assessment of the various PIRS categories and considers a further examination necessary, details of which are set up below. DIRECTIONS 1. The parties are granted the opportunity to lodge brief further submissions on the application of s 323 to the facts of this assessment as follows: 1. The Appellant by 29 February 2016; 2. The Appeal Respondent by 7 March 2016. 2. The respondent worker is directed to attend and submit himself for medical examination as follows: Examination by: Dr Julian Parmegiani (AMS Panel Member) [Place and time of appointment set out] 3. A report of the clinical examination is to be provided to the Appeal Panel and to the Parties and is to address matters relevant to the assessment including, if applicable, the following a. The workers medical history, where it differs from previous records b. Additional history since the original Medical Assessment Certificate was performed c. Findings on clinical examination d. Results of any additional investigations since the original Medical Assessment Certificate 4. The Panel will then decide the matter on the material available or make further directions if additional or alternative arrangements are to be made".
The plaintiff was examined by Dr Parmegiani on 10 March 2016.

Statement of reasons

On 31 March 2016, the Panel published its reasons for decision.
After identifying the two discrete points of appeal upon which the third defendant relied, the reasons disclose that the Panel conducted a preliminary review of the original MAC in the absence of the parties on 1 March 2016. (Although the preliminary review document describes that event as occurring on 23 February 2016, nothing turns on the precise date for the purposes of the determination of this matter).
The Panel's reasons go on to note that further submissions were sought from both parties as to the applicability of s 323 of the 1998 Act. Significantly, the reasons describe what occurred at the preliminary review in the following terms: "11. As a result of that preliminary review, the Panel determined that s 323 of the 1998 Act is probably not applicable to the assessment because a secondary psychological condition referred to in the evidence and MAC does not appear to be due to previous injury, pre-existing condition or abnormality. Neither party had addressed this in submissions. Accordingly the parties were granted the opportunity to lodge brief further submissions on that point, and did so. 12. Additionally, the Panel considered the MAC to lack considerable detail relevant to the grounds of appeal and considered further examination necessary. This examination was by Dr Julian Parmegiani on 10 March 2016."
The reasons note that neither party made application to introduce any fresh evidence on the appeal and then sets out the evidence that was before the Panel, including the report under the hand of Dr Parmegiani dated 10 March 2016
The reasons detail the factual background to the plaintiff's claim, noting that the matter involved some complexity due to the existence of psychological symptoms attributed by many treating and forensic practitioners to an unrelated left wrist injury.
The reasons describe the plaintiff's employment as a conveyor technician in and about coalmines. Various harassment events are described. It is then noted that, on 11 February 2007, the plaintiff suffered a significant injury to his left wrist resulting in complex regional pain syndrome. This led to severe reactive depression. He was awarded damages in the District Court for that injury.
The reasons then outline the ongoing medical treatment and opinions regarding the plaintiff's current condition. The plaintiff commenced treatment for psychological symptoms with his family doctor Dr Ahuja only after he sustained his wrist injury in 2007. There is no record of attendance for psychological issues prior to that time. The Panel noted that there was no reference to any psychological problems as a result of either the harassment events or the wrist injury as at the date of that doctor's last notes on 11 January 2010.
The Panel then referred to the plaintiff seeing Dr Kim Nguyen (psychiatrist), Dr Graham Vickery (psychiatrist), Paul Constable (psychologist), Dr Leonard Lambeth (psychiatrist), Dr Selwyn Smith (psychiatrist) and Dr McDougall (psychiatrist). The report of Dr Parmegiani dated 10 March 2016 is extracted in some detail. Given the narrow focus of these proceedings for judicial review, it is not necessary to set out this evidence.
The reasons next turn to consider the grounds of appeal, noting the two specific errors upon which the third defendant relied. The Panel cites the decision of Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 ("NSW Police v Registrar"). At [52] of that decision, Davies J held that the phrase "the grounds of appeal on which the appeal is made" in s 328(2) of the 1998 Act was "directed to greater particularity than simply categorising the appeal as being within one or more grounds in section 327(3)."
The Panel noted that it was confined to the errors identified by the third defendant. It then indicated its view that the AMS erred in applying s 323 of the 1998 Act in this matter. Both parties declined the offer to submit on the applicability of s 323. Despite this, the reasons state that the Panel considered that the matter had been properly raised and thus was within its jurisdiction under s 328(2) of the 1998 Act. After considering the evidence as to the timing of the plaintiff's wrist injury, the Panel observed the following at [69] - [72]: "69. The panel is satisfied that the AMS has fallen into demonstrable error in, firstly, considering or assuming the psychological condition resulting from the wrist injury is a condition that is subject to s 323. Secondly, in failing to grapple with the task of assessing the actual impairment arising from the harassment injury, which necessarily involves consideration (and probably assessment) of the contribution from the secondary condition. 70. As indicated above and as conceded in submissions by the respondent worker, the Panel concludes that s 323 has no role to play. This is so, insofar as it involves any deduction applicable to psychosocial injury arising for the wrist injury. Section 323 may have had a role to play in relation to difficulties with the workers' son in so far as any related condition did not arise due to harassment injury and existed prior to the wrist injury. However, the AMS has not specifically addressed the contribution from that relationship (other than mentioning it in the PIRS category), separately to that, if any, contributed by the secondary psychological condition. If the contribution from the relationship (as it pre-existed the wrist injury) was the sole basis for the one tenth deduction, the AMS has not explained his assessment sufficiently clearly. 71. The Panel acknowledges the AMS considered it was not "possible to establish a degree of psychopathology beyond the hand injury that would justify the significance of the secondary psychological injury which I suspected has attenuated since Dr McClure's assessment." The task is acknowledged as difficult. However, in accordance with cl 1.6 (c) of the Guides, the AMS is required to identify and record the nature of any previously unidentified condition in their report and specify the causal connection to the relevant workplace injury or injuries. Clause 1.17 specifically directs attention [to] the secondary psychological injuries, and cl 1.43 deals with making assessments with limited information available. 72. As s 323 is not available, difficulty or costs in making an assessment of the co-morbidity contribution is no reason to abandon the task. The AMS was required, doing the best he could on the evidence, to make a specific assessment of the extent of impairment resulting from the harassment injury, taking into account the co-morbid contribution. The decision maker must come to a conclusion for the purpose of the task allotted to him."
The reasons state that the evidence established a significant contribution from events after the harassment events (principally, from the effects of the left wrist injury) and that the plaintiff's impairment as it existed around the time of the wrist injury is the best estimate of the impairment caused by the relevant harassment injury. The Panel concluded at [78]: "78. Doing the best the Panel can, and noting the assessment of Panel Member Dr Parmegiani, resulting in a Median class of three, and an Aggregate of 14, the respondent worker had 13 per cent whole person impairment prior to the wrist injury. The Panel concludes that assessment is the most correct assessment of impairment resulting from the injury claimed."
The reasons then deal with the first ground of appeal concerning the PIRS categories for social functioning. The Panel observed at [80]: "Given the approach the Panel adopted above, challenges to assessments within PIRS categories for current impairment become academic. Nevertheless, as the assessment under the social functioning category is challenged, the Panel restricts its consideration of the PIRS categories to that category only: Police Force v Registrar."
The Panel accepted Dr Parmegiani's finding that the plaintiff was in Class 3 in the category of social functioning. The reasons conclude at [85]: "This assessment is obviously more favourable to the worker, but the outcome based on the proper assessment of compensable impairment is not. The impairment arising from the compensable harassment injury is assessed at 13 per cent."
The decision of the Panel was that the MAC dated 15 December 2015 was revoked and a new MAC should be issued. The new MAC was attached to the statement of reasons.

The plaintiff's submissions

Mr Stockley submitted that, as the nature of the relief sought is discretionary, it is incumbent upon the plaintiff to persuade the Court that he is entitled to the relief sought, notwithstanding that there is no contradictor. Although the summons did not plead any grounds of appeal, two errors were identified in the written submissions as follows: "a) That the record discloses that prior to making any determination that the Medical Assessment Certificate of Approved Medical Specialist Associate Professor Michael Robinson was made on the basis of incorrect criteria or that the Medical Assessment Certificate contained a demonstrable error, the first defendant directed the plaintiff be examined by Dr Parmegiani. (b) That the record discloses that the second defendant had appealed against the Medical Assessment Certificate of Approved Medical Specialist Associate Professor Michael Robertson dated 2 December 2015 on the grounds that Associate Professor Robertson had erred in his assessment: (i) under the Psychiatric Impairment Rating Scale under Table 11.4-Social Functioning and/or in the alternative, Table 11.2 Social and Recreational Activities (ii) in making a one-tenth deduction in accordance with Section 323 (2) of the Work Place Injury Management & Workers Compensation Act. (iii) However, the first defendant, in breach of Section 328(2) of the WM Act did not limit its review to the grounds of appeal on which the appeal was made."
Mr Stockley submitted that the procedure on hearing by a Panel is prescribed by s 328 of the 1998 Act. He submitted that it is either a jurisdictional error or an error of law on the face of the record to order a further examination of a worker before the Panel had first identified an appealable error. In support of this submission, Mr Stockley relied upon the decisions of Davies J in NSW Police v Registrar and The UGL Rail Services Pty Ltd (formerly United Group Rail Services Pty Ltd) v Attard [2016] NSWSC 911.
The second error upon which the plaintiff relied is that the Panel ultimately decided the matter on grounds other than those identified in the application to appeal. In support of this ground, Mr Stockley noted that the third defendant's grounds of appeal only challenge the PIRS score for tables 11.4 and/or 11.2. Despite this, the Panel considered and set aside PIRS scores for tables 11.1, 11.4, 11.5 11.6. It was contended that these determinations also constitute error of law on the face of the record.

Ground 1: order for examination before finding of error

The resolution of the first ground of review turns on whether the plaintiff can establish that the Panel ordered the plaintiff to undergo a medical assessment before it had upheld any of the grounds of appeal. At the time that the Panel made the direction that the plaintiff attend on Dr Parmegiani for an assessment, the Registrar had already determined that one of the grounds was "made out" in accordance with s 327(4) of the 1998 Act. The plaintiff does not seek to challenge the decision of the Registrar.
The plaintiff relies upon the decision of Davies J in NSW Police v Registrar in support of this first ground of review. In that matter, the Panel issued a preliminary review in which it noted the documents that it had considered and then stated that it had "determined that the Appellant worker should submit him or herself for a clinical examination...." It was submitted in that matter that the Panel was not entitled to direct such a fresh examination unless it found that there was "demonstrable error" in the MAC and that such error must be found without regard to further or extrinsic evidence. Davies J upheld that ground and stated at [31]-[33]: "31. The course of events related earlier and the reasons themselves show that it was at the preliminary stage where the Panel had some doubts (but had not otherwise reached a determination) about the classes assigned by Dr Rose that the examination with Dr Gertler was arranged. At that stage the Panel had no power to refer the Third Defendant for assessment because error had not been found. 32. The Appeal Panel's function was either to confirm the MAC or to revoke it and issue a new certificate - s 328(5). On one view, that subsection read together with s 329 might be thought to preclude the Panel making a referral at any stage for further assessment even from one of its own members. That would be an unfortunate result and would not sit easily with s 324(3) which appears to contemplate an assessment "in the course of an appeal". The Guidelines issued pursuant to s 376 of the 1998 Act would also appear to authorise such a further assessment (assuming paragraph 45 thereof is within power). 33. However, if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment." [emphasis added]
Thus Davies J held that the Panel has the power to order that a worker undergo a further assessment with an AMS, but only so that it can issue a fresh MAC after it has upheld a ground of appeal that requires a new MAC to be issued. It is the finding of error that triggers the need for a further examination. There is no statutory power for the Panel simply to direct the worker to be examined again in order to find error in the original MAC.
The decision in NSW Police v Registrar was recently followed by Harrison AsJ in Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101.
The Panel had made no findings of error as at 23 February 2016 when it published its preliminary review. It expressed a view that s 323 of the 1998 Act may have no application and invited submissions on that issue. The language that the Panel used to describe its views on that issue is tentative. It stated that s 323 is "probably" not applicable and noted the absence of any submissions from the parties on that issue. It would have been a denial of procedural fairness to make any finding on that issue in the absence of any submissions from the parties and in circumstances where it was not an express ground upon which the third defendant relied at that stage in any event. No other finding of error is asserted in the preliminary review document.
In the preliminary review document, the further examination of the plaintiff was sought on the basis that: "The Panel considers the MAC to lack considerable detail relevant to the assessment of the various PIRS categories and considers a further examination necessary…"
The Panel's position as at the time of the preliminary review is put slightly differently in its final reasons. It states that at the preliminary review: "The Panel considered the MAC to lack considerable detail relevant to the grounds of appeal and considered further examination necessary." [emphasis added]
In circumstances where one of the two errors upon which the third defendant relied concerned the PIRS ratings and no finding of demonstrable error was made at the time of the preliminary review, I am satisfied that the Panel sought a further examination in order to assess whether that ground was made out rather than doing so after it had made a finding of demonstrable error.
There are no doubt matters in which the Panel could not issue a new MAC without a further medical assessment of the worker. That scenario is contemplated by s 324(3) of the 1998 Act, which provides that an AMS who is a member of the Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an AMS under that section on an assessment of a medical dispute.
I am satisfied that error on the face of the record is established as the plaintiff contends. By virtue of s 69(4) of the Supreme Court Act, the "record" relevantly includes the reasons expressed by the tribunal for its ultimate determination. Although the error is first identified in the reasons at the preliminary review stage of the appeal, it is repeated in the reasons for the ultimate determination.
In NSW Police v Registrar, after Davies J noted his finding (at [35]) that the Panel had no power to order a medical examination, he observed that this may constitute jurisdictional error. Despite this, his Honour did not need to make any specific finding in that matter as the parties agreed that jurisdictional error did not need to be shown in order for relief in the nature of certiorari to lie; it is sufficient to establish error of law on the face of the record: ASIC v Farley (2001) 51 NSWLR 494; [2001] NSWSC 326 at [9].
Although it is not necessary to establish jurisdictional error in order to obtain relief in the nature of certiorari, it is necessary to establish jurisdictional error in order to obtain relief in the nature of mandamus. The plaintiff initially sought an order remitting the matter to the second defendant for determination according to law. That is relief in the nature of mandamus. The plaintiff would need to establish jurisdictional error in order for that relief to be available.
The difficulty of distinguishing between jurisdictional error and non- jurisdictional error is well recognised. The plurality of the High Court in In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) noted at [71] that "It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error". Notwithstanding this, the plurality pointed out some clear cases of each species of error at 571 [66], where it approved the following statement of Hayne J in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at 141 [163]: "The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not."
In circumstances where I have found that the Panel did something it lacked the power to do, I am satisfied that such an error amounts to jurisdictional error. Despite this, for reasons that appear at [90] below, no order in the nature of mandamus was ultimately sought in this matter.
Ground 1 is established. Ground 2: the Panel did not confine its consideration to the grounds asserted
The second ground upon which the plaintiff relies is that the Panel erred in not confining its consideration of the MAC to the grounds of appeal asserted by the third defendant.
The procedure to be adopted by the Panel on an appeal from a MAC is set out in s 328 of the 1998 Act. Section 328(2) provides that: "(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 Workers Compensation Guidelines can provide for the procedure on an appeal."
Section 328(2) in its current form was inserted into the 1998 Act with effect from 1 February 2011 by the Workers Compensation Legislation Amendment Act 2010 (NSW) (Schedule 2; Item 14). It was amended following the decision of the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 ("Siddik"), in which it was held that, although the Appeal Panel is confined to the grounds that it appears to the Registrar have been made out, it can consider other grounds capable of coming within one of the other heads in s 327(3) if it gives the parties the opportunity to be heard in relation to them.
Section 328(2) in its present form was considered by Hidden J in Ingham Enterprises Pty Ltd v Valentina Lakovska [2013] NSWSC 1489 ("Ingham") at [25], Hidden J noted the relevant passage from Siddik and then described the effect of the amendment to s 328(2) in the following terms: "Plainly enough the amendment to s 328(2) was directed to her Honour's conclusion at [101] [of Siddik] that the Panel could consider grounds other than those which had been referred to it by the Registrar. Subject to that, however, her Honour's explanation of the nature of a review under the section remains apposite. Relevant for present purposes is her conclusion at [95] that the grounds under s 327(3)(c) and (d), the use of incorrect criteria or demonstrable error, point to an appeal by way of rehearing in which error must be identified."
An application for leave to appeal from Hidden J's judgment was dismissed by the Court of Appeal: Ingham Enterprises Pty Ltd v Lakovska [2014] NSWCA 194. Barrett JA, with whom Gleeson JA agreed, described the amended s 328(2) in similar terms to Hidden J and noted that its effect is to create a procedure whereby "a party appealing must frame its own grounds of appeal applicable to a particular case, being grounds within the scope permitted by s 327(1)" (at [39]).
In NSW Police v Registrar, Davies J considered the wording of s 328(2) and observed at [49]: "…. if a party identifies in respect of a ground (d) appeal particular demonstrable errors, the appeal should be regarded as being confined to those matters. The grounds of appeal taken with the submissions will constitute "the grounds of appeal on which the appeal is made". In my opinion, that result is most consistent with what the amendments in 2010 must be taken to have intended....[52] In any event the present case must be determined on a proper construction of s 328(2). In my opinion the phrase "the grounds of appeal on which the appeal is made" is directed to greater particularity than simply categorizing the appeal as being within one or more of the grounds in s 327(3). That is the purpose of requiring "submissions...detailing the grounds of the appeal.""
The reference by Davies J to the requirement for submissions detailing the grounds of appeal is a reference to s 327(4) of the 1998 Act, which provides that, "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". [emphasis added]. Although there is no reference to "submissions" in s 328(2) of the 1998 Act, which limits the review to the grounds of appeal, I am satisfied that s 328(2) also extends to the submissions detailing those grounds of appeal for three reasons. First, s 327(3) of the 1998 Act provides for statutory grounds of appeal in such broad terms it would usually not be possible to glean the basis for any ground of appeal without accompanying submissions; second, the approved form for appealing against a MAC requires submissions to be attached "detailing the grounds of the appeal" (at 4.2) in any event; and third, s 327(4) provides that grounds can be "made out" based on submissions in support of the grounds.
In Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416, Beech-Jones J referred to the decisions in Siddick, Ingham and NSW Police v Registrar and observed at [36]: "Thus the threshold for mounting an appeal is the Registrar being satisfied "on the face of the application" that at least "one of the grounds for appeal specified in [s 327(3)] has been made out" (s 327(4)). Subsection 328(2) provides that the MAP's function is to be by way of review of [the AMS's] assessment but that that review is limited to the grounds of appeal on which the appeal is made being the matters alleged by the appellant (which in turn must amount to one of the grounds specified in s 327(3))."
More recently in The UGL Rail Services Pty Ltd (formerly United Group Rail Services Pty Ltd) v Attard, Davies J again stated that: "The role of the Appeal Panel was to deal with the demonstrable error identified as having provided the basis for the appeal: New South Wales Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [52]; Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101 at [38]- [39]."
As the authorities set out above make clear, the Panel is only to consider grounds of appeal relied upon by an appellant.
The second of the two grounds of appeal relied upon by the third defendant was that the AMS allowed a 10% reduction under s 323 of the 1998 Act for the plaintiff's "previous" wrist injury when he could and should have allowed for a greater reduction. When the Panel specifically invited the third defendant to file further submissions as to the applicability of s 323 in this matter, given that the wrist injury was not a "previous" injury, it declined to do so. In the further submissions filed by the third defendant it was not conceded that s 323 did not apply but the third defendant responded to the Panel's position as follows: "In the event that it is found that section 323 of the 1998 Act does not apply to the circumstances of these proceedings, the Appellant Employer submits that it was open to the original AMS, Associate Professor Michael Robertson ("the original AMS"), to nonetheless apportion the WPI assessment between a number of causal events. These events are namely: the circumstances of the injury pleaded; the secondary psychological injury arising from the Respondent Worker's complaints of CPRS: and the effects of the Respondent Worker's relationship with his son."
The third defendant then went on to detail in its submissions the evidence upon which a higher reduction for contribution from the secondary condition was warranted.
The Panel ultimately held that the MAC contained a "demonstrable error". In Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39] Hoeben J (as his Honour then was) said of demonstrable error: "…"demonstrable error" is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment."
The Panel made a finding of demonstrable error on two bases, at [69]: "…firstly, considering or assuming the psychological condition resulting from the wrist injury is a condition that is subject to s 323. Secondly, in failing to grapple with the task of assessing the actual impairment arising from the harassment injury, which necessarily involves consideration (and probably assessment) of the contribution from the secondary condition."
The second of these two bases was that relied upon by the third defendant as its alternative position as set out in its additional submissions, extracted at [75] above, filed in response to a request by the Panel.
At the time that the Panel found error on these bases, it was clearly aware of the relevant authorities and the limited nature of its statutory role. Its basis for proceeding in the way it did was described in the reasons as follows at [56]: "When the Panel raised the issue in the Preliminary Review, and invited submissions on the applicability of s 323, both parties specifically declined the invitation, but addressed the evidence going to the amount of any deduction. On that basis, the Panel considers the matter has been properly raised and may be dealt with: s 328(2) of the 1998 Act. The submission alleges demonstrable error and incorrect criteria under s 327 of the 1998 Act, one such error involving the application of s 323(2). Once the Panel concludes that there was such an error, then s 327(3)(d) is satisfied and there arises an obligation or at least a power to "conduct the assessment anew:" Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416, Beech-Jones J at [38], citing Siddik v Work Cover Authority of New South Wales [2008] NSWCA 116 at [97]." [emphasis in original]
The error asserted by the third defendant to the Panel was that the AMS made an insufficient reduction to the WPI assessment to take into account, inter alia, the secondary psychological injury caused by the wrist injury. The error found by the Panel was that there had been insufficient consideration in the WPI assessment of the contribution from the secondary psychological injury caused by the wrist injury. The conclusion was the same; the only difference was that, whereas the third defendant saw the error as arising through the misapplication of s 323, the Panel concluded that that section was not applicable.
It is difficult to see how the Panel could have considered the third defendant's second ground concerning the operation of s 323 of the 1998 Act in any other way. Although it was of the view that s 323 was not strictly applicable (as the wrist injury was not pre-existing at the time of the harassment events), it was of the view that the WPI assessment of psychological injury arising from the harassment events necessarily involved consideration of the contribution from the secondary psychological injury caused by wrist injury. It cannot be the case that s 328(2) of the 1998 Act would require the Panel to determine the third defendant's first ground on an assumption that s 323 was applicable, when it was of the view that it was not. The Panel's invitation to the parties to provide further submissions on this issue led to the third defendant filing submissions putting forward its alternative position. It was consistent with that alternative submission that error was ultimately found. I am satisfied that, by relying upon these additional submissions, the Panel was considering the appeal based on the "the grounds of appeal on which the appeal is made" within the meaning of s 328(2) which, for the reasons above, include the submissions in support of those grounds.
In support of this ground the plaintiff relies upon the fact that the MAC issued by the Panel includes re-assessments for some of the PIRS categories which the third defendant did not dispute in either of its two grounds of appeal. That is, it is contended on behalf of the plaintiff that the Panel was only permitted to re-assess the two PIRS categories addressed in the first of the two grounds before it. The difficulty with this contention is that the basis upon which the Panel found error, consistent with the third defendant's alternative argument, required the Panel to re-assess the plaintiff's WPI in all PIRS categories in order to properly consider the contribution made to the plaintiff's current psychological injury for the harassment events by the secondary psychological injury caused by the wrist injury. It was the need to undertake that task which led to the Panel issuing a new MAC in which some of the assessments of the various PIRS categories changed beyond the two the express subject of the appeal by the third defendant.
The only two of the six PIRS categories that were expressly the subject of the appeal by the third defendant were Social and Recreational Activities, for which the original MAC provided a Class 3, and Social Functioning (Relationships), for which the original MAC provided a Class 2. When the Panel issued the new MAC on 31 March 2016, it confirmed the Class 3 assessment for Social and Recreational Activities, but increased the impairment for Social Functioning to a Class 3. Despite this, in assessing the compensable impairment overall the Panel reduced the score for Employability from Class 4 to Class 2, for Self-Care and Personal Hygiene from Class 3 to Class 2, and Concentration, Persistence and Pace from Class 3 to Class 2. The PIRS category of Travel remained the same at a Class 2.
As the Panel pointed at in its reasons at [85], their assessment for Social Functioning was more favourable than in the original MAC, but the outcome overall based on a proper assessment of compensable impairment (taking into account the secondary psychological injury) was not.
I have concluded that the Panel was entitled to find error on the ground it did and this involved a re-assessment of all PIRS categories. Unfortunately, in reaching a different conclusion regarding the relevant PIRS categories, the Panel expressly had regard to the report of Dr Parmegiani in circumstances where I have found that it had no power to obtain that report at the stage of the proceedings it did.
Although I am satisfied that it was open to the Panel to find error on the ground it did, it was not open for it to rely upon the report of Dr Parmegiani in order to find error. That error forms part of Ground 1. On that basis I do not find the additional error relied upon as Ground 2 made out.

Residual discretion and costs

There was no contradictor in these proceedings and thus no assistance as to matters relevant to the exercise of this Court's discretion to grant the relief sought. In NSW Police v Registrar it was submitted that, if error were shown in that matter, the Court should exercise its residual discretion to refuse relief, because the plaintiff did not object when the Appeal Panel ordered a further medical assessment without power to do so. As in that decision, I do not consider that the plaintiff's failure to object at the relevant time is a reason to refuse the relief sought.
I am unable to identify any other discretionary factors that would militate against the relief sought.
During the hearing Mr Stockley amended the summons to the extent that, instead of seeking an order that the matter being remitted to the second defendant to be dealt with according to law, he simply sought that it be remitted to the first defendant so that the appeal process could recommence. In circumstances where I have quashed the decision of the Panel, it seems to me unnecessary to make such an order as the effect of quashing that decision means that the appeal remains on foot.
The plaintiff seeks costs in his summons. He has been successful and in the normal course of events he would be entitled to a costs order in his favour. Despite this, all three defendants have filed submitting appearances save as for costs.
I propose to defer the questions of costs to a future date in order to give the first, second and third defendants the opportunity to be heard in relation to this issue.

Orders

I make the following orders: 1. Quash the decision of the second defendant on 31 March 2016. 2. The plaintiff has leave to approach the Court within 14 days to list the matter for further argument concerning the issue of costs.

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: 23 September 2016

Workplace Injury and Management and Workers Compensation Act 1998(NSW)

Workers Compensation Legislation Amendment Act 2010(NSW)

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