Queanbeyan Racing Club Ltd v Burton

Grounds of appeal generally

1. Because the amount in issue is less than $100,000 the Club needs leave to appeal. As the matter has been set down for a concurrent hearing of the leave application and the proposed appeal, it is appropriate to consider the grounds set out in the draft notice of appeal. However, the grounds were discursive in form and did not closely encapsulate the arguments put by counsel for the Club, both in written submissions and orally at the hearing. The convenient course is to follow the approach taken in the written submissions as to the questions raised by the appeal.
2. Ground 1 was said to raise the following issues: "• Must the appeal panel first find error as particularised in the written submissions of the applicant on the appeal, before it has jurisdiction to revoke the certificate of assessment and issue a further certificate of assessment, and how narrowly should the requirement that an appeal panel confine itself to the 'grounds of appeal' (section 328(2) of the WIM Act) be construed? • Did the Court err in finding that the appeal panel confined itself to the error particularised by the worker (the applicant on the appeal), rather than identifying an error of its own?"
3. The first issue was thus whether the Appeal Panel is restricted to determining whether there was error on the part of the medical assessor in the terms identified in the grounds of appeal and not otherwise. This raised a question as to the function and powers of the Appeal Panel.
4. Ground 3 was identified by reference to four questions, the first being: "If the appeal panel's task was first to identify error, and then, if error is found, to review every aspect of the assessment anew and make its own assessment, did the appeal panel fail to perform that task, given it provided no reasons for certifying the rest of the assessment, and did not otherwise give any indication that it had so satisfied itself?" Each of the following three questions was based on the premise that appears in the first question. Accordingly, ground 3 also raised a question as to the scope of the Panel's function and powers.
5. Ground 2 was said to raise the following two questions: "• Did procedural fairness require the appeal panel to invite the parties to comment on the definition of dysesthesia that they introduced from a medical association for the study of pain medical, either in writing or at an oral hearing? • Did the appeal panel otherwise breach procedural fairness by determining the matter on a basis that differed from that put forward by the applicant on the appeal without first warning the parties and giving them an opportunity to be heard, and did the Court err in finding that it did not?" These questions raised a separate issue as to how the Appeal Panel in fact conducted its assessment, and whether it failed to accord the Club procedural fairness.
6. Adopting the issues thus identified by the Club on its appeal to this Court, it is convenient to address grounds 1 and 3 together and before dealing with the more confined issue raised by ground 2.

Grounds 1 and 3: function and powers of Appeal Panel

1. In the circumstances, it is convenient to start with the statutory scheme in order to identify the functions of the Panel. Provision for an appeal against a medical assessment is found in s 327 of the Workplace Injury Act, which relevantly provides: 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.
2. It is clear from these provisions that, first, the grounds for appeal are limited and must fall within one of the four categories identified in s 327(3). Secondly, satisfaction of the Registrar that at least one of the grounds for appeal specified in subs (3) has been made out is a gateway to referral to an Appeal Panel. Although subs (4) refers to the grounds of appeal specified in subs (3), as a practical matter the Registrar must consider the specific "demonstrable error" relied upon by an applicant in order to determine whether at least one of the grounds is made out.
3. The manner in which the Appeal Panel is required to deal with an appeal is set out in s 328 which provides: 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. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.
4. Three propositions should be accepted as flowing from this statutory scheme. First, although the Registrar is required to be satisfied that a "demonstrable error has been made out", the Appeal Panel may dismiss the appeal, and is no doubt obliged to do so, unless it is satisfied that there was an error and that the error is material.
5. Secondly, s 328(2) requires that the review "is limited to the grounds of appeal on which the appeal is made." Because the gateway function of the Registrar is satisfied if "at least one of the grounds" has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant's application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made.
6. The question of multiple grounds did not arise in the present case, except to the extent that a question was raised as to the lateral femoral cutaneous nerve in both lower extremities. Those were the two matters (really one matter) raised by the applicant and constituted the basis on which the Registrar referred the matter to a Panel.
7. The third proposition concerns the steps to be taken by the Panel if it upholds the specified ground. Pursuant to s 328(5), the Panel has a binary choice: it may either "confirm" the certificate under appeal, or it may "revoke that certificate and issue a new certificate". If it finds a material error, it will usually, if not always, revoke the certificate under appeal and issue a new certificate correcting the error. However, the Club identified an apparent anomaly in the process. What the Appeal Panel did in the present case was to revoke the earlier certificate and issue a further certificate which incorporated the unchallenged finding as to a 7% whole person impairment with respect to the lumbar spine and added to that figure its own assessments with respect to the lower extremities. The Club submitted that in taking that step, the Panel must have expanded its review beyond the part of the earlier certificate challenged as involving demonstrable error, because it had either reassessed the lumbar spine, or had adopted a finding of the AMS in relation to the lumbar spine, which it was not entitled to do.
8. It is difficult to find in the statutory provisions support for the Club's analysis. Reading s 328(2) and (5) together, it is inevitable that the limited review will, where there are aspects of the assessment which were not challenged, adopt those aspects of the assessment in issuing a further certificate. This reading of the statute was that applied by the primary judge, correctly. She was, however, invited to follow two authorities which would, in some circumstances, lead to a different view. It is therefore necessary to address the Club's reliance on these cases.
9. The earlier of the two was Drosd v Workers Compensation Nominal Insurer. [8] Justice Adams set out the following paragraphs from Drosd, in order to distinguish it from the present case: "[59] Having found error in the MAC issued by the AMS, the Appeal Panel revoked the MAC and determined for itself that the plaintiff's whole person impairment relating to the left lower extremity was 10%. It did so in a shorthand way. That shorthand way was to adopt the assessment of the AMS because no party had challenged it. This shorthand way, whilst arguably permissible, did not relieve the Appeal Panel from its statutory obligation to conduct its assessment according to law. [60] In particular, the Appeal Panel was required to have regard to the provisions of s 322(1) of the 1998 Act in reviewing the AMS' medical assessment. Those provisions require an assessment of the degree of permanent impairment of an injured worker '… to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose'. [61] That law required the Appeal Panel to apply the Guides, which as I have already explained adopt Table 17-33 of AMA-5. As is evident in [45] above, that Table does not permit an assessment of 10% whole person impairment of the left lower extremity. The fact that there was no appeal against that specific assessment by the AMS is beside the point. Once the Appeal Panel determined to set aside the MAC, it was required to undertake a fresh assessment of the plaintiff's whole person impairment in accordance with the Guides. [62] The Appeal Panel's finding of 10% whole person impairment for the plaintiff's left lower extremity as a consequence of his left knee replacement was not an outcome permitted by, or in accordance with, Table 17‑33 of AMA-5. Nor did the figure reflect an accumulation of points which accorded with a calculation carried out in accordance with Table 17-35 of the Guides. [63] The only conclusion open to this Court is that the assessment by the Appeal Panel of the whole person impairment of the plaintiff's left lower extremity of the plaintiff did not accord with law, and constituted a jurisdictional error. It follows that the MAC issued by the Appeal Panel on 6 October 2015 must be set aside."
10. In Drosd, the assessor had identified an impairment of the right lower extremity, half of which resulted from a pre-existing injury or condition. With respect to the left lower extremity, the whole of the impairment was attributed to a pre-existing condition. The Panel found no error in relation to the right lower extremity, but reassessed the finding with respect to the left lower extremity. Both assessments had been the subject of the appeal. The judicial review proceedings raised two challenges with respect to the assessment of the lower left extremity on the basis that the findings of the Panel "did not accord with the Guides" which had to be applied. However, the 10% impairment for the left lower extremity (prior to reduction for any pre-existing condition) had not been challenged and was not a part of the appeal to the Appeal Panel. Nevertheless, Garling J accepted that the figure adopted was not permitted by the Guides and that the adoption of that figure by the Appeal Panel was a "jurisdictional error."
11. Assuming error, the identification of "jurisdictional error" may be doubted, but that is not the point of the present concern. The statement at [59], set out above, is wholly inconsistent with the understanding of the function of the Appeal Panel described in these reasons. It would have been impermissible for the Appeal Panel to reconsider an element of the assessment which had not been the subject of the appeal to it.
12. To suggest that once the Panel has determined to set aside the certificate, it was "required to undertake a fresh assessment of the plaintiff's whole person impairment in accordance with the Guides" is also erroneous. The fact that the Panel decided to set aside the certificate did not expand the scope of its appeal function: rather, setting aside the certificate was the necessary consequence of the proper exercise of the appeal function. It is not necessary, for present purposes, to determine whether the approach adopted in Drosd was consistent with prior authority in the Common Law Division, though that may be doubted. [9]
13. In Roads and Maritime Services v Rodger Wilson [10] the Court stated that once the Panel had determined that the certificate should be revoked, "it was incumbent upon them, as a matter of law, to apply the WorkCover Guides fully in arriving at a fresh assessment and issuing a new certificate." In support of that proposition, reference was made to Drosd, following which the judge stated: "[27] It was not open to the Appeal Panel to disregard or to fail to assess the evidence of pre-existing injury which was before the Panel. Revocation of Dr Anderson's Medical Assessment Certificate meant that all aspects of the application of the WorkCover Guides had to be brought to bear in order to produce a substitute certificate. The judge then rejected a submission that the decision of Davies J in NSW Police Force was inconsistent with that approach.
14. To the extent that these decisions are inconsistent with the statements of principle based on the statute, set out above, they should not be followed. The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessors' reasoning with respect to that finding; neither course was part of its statutory function.
15. Grounds 1 and 3 must be rejected.

Ground 2: procedural unfairness

1. In the course of its discussion of the approach taken by the earlier medical experts, the Appeal Panel stated: "33. The definition of dysesthesia, according to the International Association for the Study of Pain (IASP) is, 'Dysesthesia An unpleasant abnormal sensation, whether spontaneous or evoked. Note: Compare with pain and with paresthesia. Special cases of dysesthesia include hyperalgesia and allodynia. A dysesthesia should always be unpleasant and a paresthesia should not be unpleasant, although it is recognized that the borderline may present some difficulties when it comes to deciding as to whether a sensation is pleasant or unpleasant. It should always be specified whether the sensations are spontaneous or evoked.' 34. The history taken by the AMS reflects the presence of dysesthesia in each lower limb. Hypersensitivity is not a requirement for dysesthesia. The history is of a burning sensation over the area of the lateral femoral cutaneous nerve in each leg. This history is of spontaneous dysesthesia; that is; what is experienced by Ms Burton, whereas the AMS has focussed only on what was evoked on physical examination, which is not the complete clinical picture on which to base the assessment. 35. The AMS assesses 1% WPI for reduced sensation over the distribution of the lateral femoral cutaneous nerve in each lower limb in terms of Table 1-37 of AMA 5, but the Panel finds that the evidence is of dysesthesia present in each leg and this should have been should have been assessed. This omission is a demonstrable error on the face of the Certificate."
2. The first aspect of the allegation of procedural unfairness was that the Appeal Panel failed to invite the parties "to comment on the definition of dysesthesia" before relying upon it. The second aspect, as put to the primary judge, [11] was that the Panel based its finding on the summary of the history given by Ms Burton to the medical assessor, without first warning the employer that they were considering that approach. The substantive point appears to be that the definition encompassed sensations which were "spontaneous or evoked" and the Panel departed from the medical assessor's opinion because it considered that he had "focused only on what was evoked" and had ignored the history of "spontaneous" dysesthesia.
3. Before the primary judge, the Club relied upon a statement by Button J in Pascoe v Mechita Pty Ltd, [12] a case dealing with a failure to inform the claimant that the Panel would rely upon particular tables to assess progressive hearing loss induced by noise ("the ISO"), which the plaintiff had not seen. The judge stated: "[70] In my opinion, the plaintiff is correct: it was a denial of procedural fairness for the Panel to take into account the ISO adversely to the plaintiff without giving him notice that it proposed to do so. [71] It is important to my reasoning that the ISO was not mentioned in the decision of the specialist, and barely mentioned in the report of Dr Williams. In other words, the plaintiff had no notice that this extrinsic material could play such an important role in the subsequent adverse determination. [72] Nor was the ISO incorporated directly or indirectly in the Guidelines that the Panel was called upon to apply in its task. [73] Speaking more generally, it is true, of course, that experts - whether in coming to an opinion, or giving evidence, or sitting on a Panel such as this - are permitted to take into account previously unmentioned material if it is unassailable, or can be understood to be within common knowledge, including that of the parties. For example, as I remarked in discussion with counsel, an expert is entitled to take into account the propositions that the sun rises in the East, or that gravity causes items to fall towards the ground, or that, other things being equal, locations are darker in the night time than they are in the day. And they can do so without elaboration, and without providing notice that they will do so. [74] But I do not believe that that characterisation can apply to the ISO. It can hardly be equated to propositions such as those; indeed, its provenance is unclear on the evidence before me, and its use by the Panel is complex to a layperson."
4. The primary judge did not apply Pascoe in the circumstances but accepted the proposition that unless something was "within common knowledge, including that of the parties" procedural fairness required that the Panel not rely upon the matter without informing the parties.
5. This reasoning is fraught and apt to give rise to error in two respects. First, the concept of "common knowledge" should not be proposed as a guideline to what must be conveyed in the interests of procedural fairness and what need not be conveyed. Secondly, the underlying foundation to this reasoning is, apparently, that the parties are entitled to make submissions to the Appeal Panel in relation to any matters adverse to their interests.
6. With respect to both issues, the starting point for any understanding of procedural fairness must be the statutory scheme within which it is said to operate. The following statement by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak, [13] made in relation to the standard required of reasons given by a medical panel, is equally applicable to the functions of an Appeal Panel under the New South Wales legislation: "[47] … The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."
7. A definition of a medical term is inherently something within the medical experience or expertise of the medical members of the Appeal Panel. They do not have to express those terms in language which is within the experience or expertise of the parties. Nor, if they wished to identify a distinction between evoked and spontaneous sensations, did they need to identify the authority which permitted either or both to be taken into account in assessing a particular condition. These were matters to be determined by the Panel in the exercise of their medical expertise. However, if in giving reasons both the distinction and the medical authority were identified, they did not become matters which fell within any obligation of advance disclosure to the parties.
8. Turning to the second issue, it follows from this reasoning that there was no occasion requiring that the Panel give the parties an opportunity to make submissions. Given the terms of s 324(1) [14] and s 328(2)-(4), there will be limited circumstances in which a panel is obliged to allow a party to make additional submissions beyond those made to the Registrar in support of or in opposition to the proposed appeal. The Registrar's notice of decision in this matter advised that the Appeal Panel "may determine an appeal on the basis of the written application and any written Notice of Opposition." Because the appeal involved the formation of a medical opinion by medical experts that will often be the case. There should be no contrary presumption.
9. Although the judge reached the correct conclusion, the passage from the judgment in Pascoe set out above provides no appropriate guidance in this field of decision-making. Ground 2 must be rejected.

Conclusions

1. The Appeal Panel was required to give the grounds of appeal their ordinary meaning, in accordance with the understanding of the medical experts. The primary judge did not err in concluding that the Appeal Panel would have erred had it sought to identify an error "of its own", not being the error particularised in the grounds of appeal.
2. The complaint was that the medical assessor did not assess, or correctly assess, dysesthesia: the Appeal Panel found that this was an error and proceeded to assess the condition itself, as sought by the appellant. It was a question for medical opinion as to whether the appellant suffered from the particular medical condition: the "basis" on which it identified the condition was not a matter which needed to be put to the parties.
3. The respondent submitted that the appeal was without merit and leave to appeal should be refused. That submission was not without substance. However, as appears from the foregoing discussion, there appears to be a diversity of approaches in the Common Law Division on a number of issues relating to the operation of the Appeal Panel functions under the Workplace Injury Act. In the circumstances, it is appropriate to grant leave to appeal. The appeal must be dismissed. The appellant must pay the respondent's costs in this Court.
4. LEEMING JA: I agree with Basten JA.
5. McCALLUM JA: I agree with Basten JA.

Endnotes

1. Queanbeyan Racing Club Ltd v Hannah Burton [2021] NSWSC 315.
2. Medical assessment certificate, par 7.
3. Medical assessment certificate, par 10(b).
4. Medical assessment certificate, par 10(c).
5. Workplace Injury Act, s 327(4).
6. Employer's written submissions in response to the appeal from the AMS, 7 January 2020, pars 2 and 3.
7. Registrar's decision, par 7.
8. [2016] NSWSC 1053 (Garling J).
9. Compare New South Wales Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 at [40], [49]-[52] (Davies J); Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 at [36] (Beech-Jones J); The UGL Rail Services Pty Ltd (formerly United Group Rail Services Pty Ltd) v Attard [2016] NSWSC 911 at [45] and [49] (Davies J).
10. [2016] NSWSC 1499 (Fagan J).
11. See primary judgment at [41], ground 2.
12. [2019] NSWSC 454.
13. (2013) 252 CLR 480; [2013] HCA 43.
14. Which applies to an appeal: s 324(3). 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: 10 December 2021