Petrovic v BC Serv No 14 Pty Limited & Ors

Mila Petrovic - Plaintiff PARTIES : BC SERV No 14 Pty Limited trading as Broadlex Cleaning Services - First Defendant The Registrar of the Workers Compensation Commission of NSW - Second Defendant The Medical Appeal Panel of the Workers Compensation Commission of NSW - Third Defendant

COUNSEL : Mr DE Baran - Plaintiff Mr DG Saul - 1st, 2nd and 3rd Defendants

NSW Compensation Lawyers - Plaintiff SOLICITORS : Hunt & Hunt - 1st Defendant IV Knight, Crown Solicitor - 2nd and 3rd Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30051/2007 - Mila PETROVIC v BC SERV No 14 PTY LIMITED trading as BROADLEX CLEANING SERVICES & Ors

JUDGMENT 1 HIS HONOUR: Nature of proceeding The plaintiff moves by way of Amended Summons filed 12 June 2007 for the following orders:

(1) A declaration and order that the decision of the third defendant in the matter of Mila Petrovic v BC Serv No 14 Pty Limited dated 23 April 2007 and 4 May 2007 in Matter No 10390 of 2006 involved:

(a) Jurisdictional error and was beyond power. (b) An error on the face of the record; and

(2) A declaration and order that the Medical Assessment Certificate of the third defendant in the matter of Mila Petrovic v BC Serv No 14 Pty Limited dated 23 April 2007 and 4 May 2007 in Matter No 10390 of 2006 involved:

(a) Jurisdictional error and was beyond power. (b) An error on the face of the record; and

(3) An Order that the decision referred to in No (1) above be set aside.

(4) An Order that the second defendant revoke the certificate referred to in No (2).

(5) An Order that the second and third defendants carry out their functions in accordance with sections 327, 328 and 329 of the Workplace Injury Management and Workers Compensation Act 1998 and otherwise according to law.

(6) An Order that the defendants pay the plaintiff's costs of the application. 2 The grounds for seeking the order were set out as follows:

(1) The decision and certificate of the third defendant dated 23 April 2007 and 4 May 2007:

(a) Contains a jurisdictional error. (b) Was beyond power. (c) Involved an error on the face of the record.

Factual background 3 On 19 February 2003 the plaintiff was employed by the first defendant as a cleaner at the Georges Hall Public School. On that day she had just mopped the floor and went outside to clean the mop. She was using a mop/bucket which required a foot on the bucket in order to squeeze the end of the mop and then pull the mop out. The handle of the mop became disconnected causing the plaintiff to fall backwards onto a concrete surface. 4 The plaintiff attempted to resume her cleaning duties in the next few days but was unsuccessful. At the time of the fall she was complaining of pain in the back, right shoulder and arm, right side of neck and right knee. The plaintiff was off work for six months. She had physiotherapy for a few months and then hydrotherapy for approximately a year. The plaintiff returned to light duties, initially working three hours a day three days a week. This increased to four hours a day. Her position was terminated in July 2005. 5 The plaintiff claimed compensation under the Workplace Injury Management and Workers Compensation Act 1998 (the Act) from the first defendant. A disagreement arose as to the nature and extent of the plaintiff's injuries. An arbitrator was appointed by the Workers Compensation Commission of NSW (the Commission) to deal with the matter. On 16 October 2006 he referred the matter to an Approved Medical Specialist (AMS) for the assessment of a medical dispute. Due to an oversight, the referral only requested an assessment of the thoracic spine, lumbar spine, right upper extremity and right lower extremity. No reference was made to the cervical spine. 6 When the plaintiff's legal advisers realised that the referral did not include the cervical spine, they made representations to the Commission that the cervical spine be included in the body parts referred for assessment. The first defendant consented to that application. 7 The representations appear to have been successful in that the Medical Assessment Certificate (MAC) which was issued on 5 December 2006 included an assessment of the cervical spine. The reference does not, however, appear to have been amended. 8 The plaintiff was examined by the AMS on 29 November 2006. On that occasion she was accompanied by an interpreter in the Serbian language and by her daughter, Gail Delic. The AMS was Dr Beer, an orthopaedic surgeon. 9 The MAC set out the history given by the plaintiff, the contents of medical reports which were before the AMS and the results of the examination of the plaintiff. The AMS noted a considerable amount of "apprehension" on the part of the plaintiff. He concluded that the plaintiff had sustained the aggravation of some pre-existing degenerative changes in her neck and low back, a soft tissue injury to the thoracic spine and the aggravation of some pre-existing degenerative changes in her right shoulder and some aggravation of early arthritic changes in the right knee. 10 The MAC assessed the whole person impairment (WPI) of the plaintiff in respect of each of her injuries as follows: Cervical spine WPI 5.4% Thoracic spine WPI 0% Lumbar spine WPI 0% Right upper extremity WPI 4.5% Right lower extremity WPI 3% Total percent WPI 13%

11 The plaintiff was dissatisfied with the assessment and on 18 December 2006 filed an application to appeal against the decision of the AMS. Written submissions on behalf of the plaintiff were filed with the application. The application relied on two grounds under s327(3) of the Act: "(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." 12 The plaintiff's submissions alleged inconsistencies in the analysis of the AMS and that the AMS had failed to follow the guidelines issued under the Act in making his assessment. 13 In support of both grounds in the application to appeal, the plaintiff relied upon two statutory declarations - one by her, and one by her daughter. The statutory declaration by the plaintiff asserted that the plaintiff had not been properly examined by the AMS. The statutory declaration by Ms Delic not only made that assertion but also asserted that the interpreter had not adequately interpreted the history of the plaintiff and had made mistakes. 14 The first defendant opposed the application for appeal by document dated 22 January 2007 and provided written submissions supporting the assessment of the AMS. 15 On 13 February 2007 the Registrar's delegate gave his decision in accordance with s327(4) of the Act. He found that the ground of appeal in s327(3)(b) had been made out. He found that the two statutory declarations came within the description of "additional relevant information" and that they comprised "evidence that was not available to the appellant before the medical assessment appealed against". On the basis of that finding the Registrar by document dated 13 February 2007 allowed the plaintiff's appeal to go forward to a Medical Appeal Panel (MAP) made up of an arbitrator and two AMS. 16 The MAP handed down its decision on 23 April 2007. Included in those reasons were Paras 42-45 which were in the following terms: "42. However, we note that the terms of the referral did not extend to an examination of the cervical spine. An AMS is confined by the terms of the referral by the decision of Wikaira v Registrar of Workers Compensation Commission of NSW & Anor [2005] NSWSC 954 to the terms of the referral. Although the respondent in its submissions does not raise this point, (it contents itself to argue the merits of the appellant's submissions as to the finding made by the AMS), nonetheless without the referral from the arbitrator in appropriate terms, we cannot see that the AMS's opinion is binding. 43. It may be that the reference to the cervical spine was inadvertently omitted in the referral, or there may have been some other reason for its omission. We have no jurisdiction to inquire. However the parties may be able to utilise the non-binding decision of the AMS as to the cervical spine if the former case is correct, and we would recommend that a further teleconference be convened to establish the true situation. 44. For these reasons, the Panel has therefore determined that the medical assessment certificate dated 5 December 2006 given in this matter should be revoked and a new medical assessment certificate should be issued omitting the cervical spine assessment. Decision 45. For the reasons set out in this statement of reasons, the decision in this matter is that: The Medical Assessment Certificate given in this matter should be revoked, and a new Medical Assessment Certificate should be issued. The new Medical Assessment Certificate is attached to this statement of reasons." 17 The new MAC was in identical terms to that originally issued by the AMS except that it made no reference to the cervical spine. 18 For reasons which were not explained in the evidence but probably because the MAP was advised that the cervical spine had been referred to the AMS for assessment even though the referral had not been formally amended, the MAP handed down a further decision on 4 May 2007. That decision was in identical terms to the decision previously given except that Paras 41 and 42 were deleted entirely and the concluding paragraphs were changed. These concluding paragraphs (40-41) were in the following terms: "40. It may be that the reference to the cervical spine was inadvertently omitted in the referral, or there may have been some other reason for its omission. We have no jurisdiction to inquire. However the parties may be able to utilise the non-binding decision of the AMS as to the cervical spine if the former case is correct, and we would recommend that a further teleconference be convened to establish the true situation. 41. For these reasons, the Panel has therefore determined that the Medical Assessment Certificate dated 5 December 2006 given in this matter should be confirmed." 19 Because two quite different conclusions were reached by the MAP in their decisions of 23 April 2007 and 4 May 2007, it does not seem to me that the two decisions and their supporting reasons can be read together. It must be that the second set of reasons and the decision given on 4 May 2007 supersede the earlier decision and that it is that decision which is challenged by the plaintiff in these proceedings. I have proceeded on that basis. 20 The form of the written decision by the MAP was as follows. It reviewed the factual background to the appeal and also the evidence which was before the AMS. It then analysed its task by reference to the decision in Campbelltown City Council v Vegan (2005-6) 67 NSWLR 372. The MAP also had regard to what Johnson J said in Summerfield v Registrar of Workers Compensation Commission of NSW & Anor [2006] NSWSC 515 in relation to s327(3)(b) of the Act. The MAP was concerned as to how it should treat the two statutory declarations from the plaintiff and Ms Delic. 21 The MAP concluded that although the statutory declarations came within the literal definition of "fresh evidence" as referred to in s328(3), it proposed to disregard that evidence since in its opinion it was quite contrary to the purpose of the Act. The MAP said: "37. We do not understand the intention of the legislature to be that such criticisms of an AMS ought to be admitted as fresh evidence. Obviously, by definition, an account of the actual AMS consultation constitutes fresh evidence "in addition to evidence received in relation to" the medical assessment as described in 328(3). We believe the purpose of the legislation is to give some prima facie credence to the opinion of an AMS in situations where he has examined the client and all the competing medical views. We do not believe the system would be maintainable if the AMS's view could be overturned on account of some untested documentary evidence as to the events that occurred during the consultation itself." 22 In relation to the criticism by Ms Delic of the interpreter, the MAP rejected that evidence as being vague and imprecise: "39. As the criticism of the interpreter reported by Ms Delic, the interpreters are provided by the Commission and are presumed to be competent in their skills. Without specific evidence of the alleged shortcomings, we do not accept the hearsay opinion of an interested party as providing any basis for review." 23 The MAP then set out its decision as previously indicated.

Consideration 24 The submissions on behalf of the plaintiff challenged the approach which the MAP had taken to the "fresh evidence" in the two statutory declarations. The plaintiff submitted that by reference to s328(4) and clause 46 of the Workcover Guidelines dated 27 October 2006 it was necessary for the MAP to conduct a hearing in the course of which the evidence of the plaintiff and Ms Delic as set out in their statutory declarations could be tested. 25 Section 328 provides: "328(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by two approved medical specialists and one 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 to 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." 26 Guideline Clause 46: "Where the Appeal Panel determines a matter is not capable of determination on the papers either with or without a further medical examination an assessment hearing will be arranged. The Appeal Panel assessment hearing will be informal and non-legalistic, and will afford the parties full opportunity to present oral submissions in support of their claims. The assessment hearing is non-adversarial and in most cases no evidence will be taken or cross-examination permitted. A party is entitled to be represented at the assessment and may choose to be accompanied by a person (including but not limited to a legal adviser or agent) to assist in the presentation of their case. The assessment will be sound recorded and a copy of the recording will be available to the parties on request. The parties may seek clarification of matters with the assistance of the panel members." 27 The plaintiff submitted that in the special circumstances of this case and because of the serious nature of the issues raised by the statutory declarations, a hearing with cross-examination should have been arranged by the MAP. The plaintiff's reliance on the statutory declarations meant that the matter was not appropriate to be dealt with on the papers. Although it was not articulated in the submissions, I assume that the plaintiff submits that this failure to arrange a hearing constituted jurisdictional error entitling the Court to intervene. 28 For reasons which will emerge, it is not necessary to deal with this submission since the matter can be resolved on other grounds. However, a considerable amount of attention was devoted to this question both by the plaintiff and the first defendant and it may be of assistance in other matters if I indicate my approach to the submission. 29 Implicit in the submission was the assumption that the statutory declarations were correctly regarded by the Registrar's delegate as evidence which came within s327(3)(b). I do not agree. 30 Section 327 relevantly provides: "327(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), (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 it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) is made out. …" 31 In my opinion the words "availability of additional relevant information" qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, "additional relevant information" for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs 327(3)(b). 32 It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not "additional relevant information" for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar. 33 It is not without significance that criticisms of an AMS of this kind were raised in Vegan and were specifically referred to by Basten JA in his review of the matters which were referred to the Appeal Panel [88] - [97]. The alleged factual errors made by the AMS in recording the worker's complaints in that case were not placed before the MAP as additional relevant information but rather as matters arising under either s327(3)(c) or (d). A similar question was considered by Associate Justice Malpass in Wilkie v Motor Accidents Authority of NSW and Anor [2007] NSWSC 1086 at [41] - [48]. Although his Honour appears to favour the approach which I propose, it was not necessary for his Honour to reach a final conclusion. 34 There is another consideration which I have taken into account. If the function of the Registrar under s327 is to be in reality that of a gatekeeper, then statutory declarations such as were sworn in this case should not be regarded as "additional relevant information" for the purposes of s327(3)(b). If they are, it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal. 35 Once a matter has come before a MAP, the situation is different. As I indicated in Zuanic v Gypro-tech (Australia) Pty Limited (2005-6) 66 NSWLR 206 the powers of the MAP under s324 and 328(3) are quite extensive. It is also not without significance that subs328(3) does not have the qualification of "additional relevant information". Such matters as were contained in the statutory declarations could be considered by the MAP at that stage. 36 Such an approach is consistent with the careful and reasoned analysis by McClellan CJ at CL in Crean v Burrangong Pet Food Pty Limited [2007] NSWSC 389. His Honour there analysed the conclusions of the Court of Appeal in Vegan and accepted that the reasons of Handley JA represented the ratio of that case. His Honour described the function of the MAP once a matter was referred to it as follows: "27 As I understand his Honour the approach to the task of the Appeal Panel taken by Malpass Ass J is generally consistent with the approach described by Handley JA. It requires the Appeal Panel to address the elements of any certificate challenged in an appeal and, if it is satisfied that an error has occurred, review the matter and exercise the power in s 328(5) to confirm the certificate or revoke it and issue a new one. In exercising its powers the Panel is required to examine for itself the medical evidence and may receive fresh evidence pursuant to s 328(3). As 328(4) contemplates the Appeal Panel is to undertake its own medical assessment." 37 In other words once a matter is properly before the MAP, it is not restricted in its considerations purely to those grounds of appeal which the Registrar considered had been "made out" but is to carry out a review in accordance with s328. That may include having regard to evidence of the kind contained in the statutory declarations. Accordingly, although the Registrar erred in allowing the appeal to go forward on the basis that the ground in subs327(3)(b) had been made out, it was open to MAP to have regard to this evidence once the matter was properly before it. Since no challenge has been made to the Registrar's decision, the matter was properly before the MAP in this case. 38 In my opinion there was no obligation on the part of the MAP to conduct a hearing of the type suggested by the plaintiff in her submissions. The MAP could have chosen to do so, but it was not jurisdictional error or error on the face of the record for it to fail to do so (Craig v South Australia (1995) 184 CLR 163 at 179). It was entitled to proceed on the papers as it did. 39 Given the vague and general nature of the assertions in the statutory declarations, it was open to the MAP to disregard them when arriving at its decision. It gave full and adequate reasons for taking that course. As a result no error has been demonstrated in the approach which the MAP took to the statutory declarations. 40 The plaintiff also submitted that apart from the matters raised by the statutory declarations, there was a failure by the MAP to provide reasons for confirming the assessment of the AMS. I agree. 41 Vegan made it clear that although there was no express requirement under the Act for the MAP to provide reasons for its decision, such a requirement arose by way of an implied statutory obligation. That obligation exists not only where a MAC was being set aside, but also where a MAC was being confirmed. 42 This is particularly so where, as here, submissions had been made by the plaintiff purporting to identify inconsistencies in the reasoning process and conclusions of the AMS. The reasons need not be lengthy or deal with every matter raised but a basis for the conclusions reached needs to be set out. As was said by Basten JA in Vegan: "121 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. 122 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." 43 What seems to have occurred here is that the MAP was so focused on dealing with what it perceived to be the problems created by the statutory declarations, that it failed to provide any reasons, let alone adequate reasons, for why it decided to confirm the MAC issued by the AMS. The MAP was, at the very least, required to engage the submissions put forward by the plaintiff as to the purported inconsistencies in the assessment of the AMS. This did not occur and that failure constitutes an error of law. It is sufficient for the purposes of relief under s69 of the Supreme Court Act that an error of law has been identified which appears on the face of the record. As a result the decision of the MAP should be set aside.

Costs 44 The question of costs has caused me considerable concern. The usual rule is that costs should follow the event. In this case, however, the plaintiff although ultimately successful directed her submissions to matters on which she failed. It is not without significance that in the plaintiff's submissions only one paragraph was devoted to the issue of a failure to give any or any adequate reasons. This was despite the fact that the absence of reasons was overwhelmingly obvious on any reading of the MAP decision of 4 May 2007. 45 In those circumstances I am of the opinion that the plaintiff should not have all of her costs. I propose to award to the plaintiff 75% of her costs. 46 The orders which I make are as follows:

(1) The decision of the third defendant of 4 May 2007 is set aside.

(2) The matter is remitted to the Registrar for referral to an Appeal Panel constituted under s328 of the Act for determination according to law.

(3) The first defendant is to pay 75% of the plaintiff's costs of these proceedings.

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