Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW & ors

Workers Compensation Act 1987 - s 66 LEGISLATION CITED : Workplace Injury Management and Workers Compensation Act 1998 - ss 321, 325 - 329

Campbelltown City Council v Vegan [2004] NSWSC 1129 CASES CITED : Wikaira v Registrar of the Workers' Compensation Commission of NSW [2005] NSWSC 954

Claimant - Riverina Wines Pty Limited First Opponent- Registrar of the Workers Compensation Commission of NSW PARTIES : Second Opponent - Abeer Alkhozouz Third Opponent - WorkCover Authority of New South Wales

Claimant - Mr I Roberts SC with Mr T Wardell First Opponent - Submitting appearance filed. COUNSEL : Second Opponent - Mr J Jobson Third Opponent - Mr R Lancaster

Claimant - Edwards Michael Lawyers First Opponent - Crown Solicitor's Office SOLICITORS : Second Opponent - Bale Boshev Lawyers Third Opponent - Crown Solicitor's Office

LOWER COURT JURISDICTION : Workers Compensation Commission of New South Wales

LOWER COURT JUDICIAL OFFICER : Registrar of the Workers Compensation Commission

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

30011/05 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW, Abeer Alkhozouz & WorkCover Authority of NSW

JUDGMENT Introduction 1 On 12 July 2001 the second opponent sustained injury to her right arm in the course of her employment with the claimant. She made a claim for 70% permanent loss of use of the arm pursuant to the Workers Compensation Act 1987 s 66. The claim was disputed by the claimant. The dispute was referred for assessment by an approved medical specialist (Dr Cummine) pursuant to the Workplace Injury Management and Workers Compensation Act 1998 ("WIM") s 321. 2 On 26 September 2002 Dr Cummine issued a medical assessment certificate pursuant to WIM s 325. In it he certified that the second opponent had a 0% loss of efficient use of the right arm. The assessment, by operation of WIM s 326, was "conclusively presumed to be correct". 3 On 25 June 2004, the second opponent made a written application to the Registrar pursuant to WIM s 327. The application relied upon grounds (a) and (b) contained in WIM s 327(3) and sought "further medical assessment." An earlier appeal pursuant to WIM 327(3)(c) and (d) had been dismissed by an appeal panel. 4 On 1 October 2004 the delegate of the Registrar dealt with the application. A printed file note of the delegate was tendered in evidence. On it the letters (a) and (b), which appeared after the word "grounds", were circled. Under a heading "Brief Details of My Reasons" was written: Deterioration from AMS MAC dated 26/9/02 Send for further assessment

There was no other relevant hand writing or marks on the document. 5 A letter dated 1 October 2004 was sent by the delegate to the solicitors for the claimant and second opponent. It stated: I refer to the Application - Appeal Against Decision of Approved Medical Specialist in this matter and advise that I intend to exercise my power under s 329(1)(a) of the 1998 Act and refer the matter for further assessment… 6 It is clear from the file note and the letter dated 1 October 2004 that the delegate had determined to refer the matter on the ground stated in WIM s 327(3)(a).

7 The claimant contends the delegate erred in referring the matter for reassessment pursuant to WIM 329(1)(a) and by summons filed in this Court has sought judicial review of that decision. The relevant statutory provisions 8 WIM s 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) exists.

(6) If the appeal is on a ground referred to in subsection (3) (a) or (b), the Registrar may refer the medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment. (7) ... WIM s 328 relevantly provides: 328 (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal. … WIM s 329 relevantly provides:

329 (1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by: (a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or (b) a court or the Commission.

(2) A certificate as to a matter referred again for further assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.

The submissions 9 The claimant submitted, in essence: (a) the power of the Registrar conferred by sections 327(6) and 329(1)(a) to refer a medical assessment for further assessment may only be exercised if the precondition established by the second sentence of section 327(4) has been satisfied; (b) the second sentence of section 327(4) will be satisfied only in circumstances in which the Registrar has considered the grounds of the appeal and the evidence on which it is based and is satisfied that a prima facie or arguable case exists or when the Registrar is actually persuaded that the relevant ground of appeal has been made out and that it is almost inevitable that the appeal will succeed; (c) in the circumstances of this case, the Registrar could not validly have been satisfied under section 327(4) that " at least one of the grounds for appeal specified in subsection (3) exists" because: (i) there was no evidence before the Registrar that permitted the Registrar to reach the required state of satisfaction that there had been "a deterioration of the worker's condition that results in an increase in the degree of permanent impairment within the meaning of section 327(3)(a); and (ii) there was no evidence before the Registrar that permitted the Registrar to reach the required state of satisfaction of the "availability of additionally relevant information" within the meaning of section 327(3)(b). 10 The third opponent submitted, in essence, (a) neither s 327(6) nor s 329(1)(a) expressly provide that the discretionary power to refer a medical assessment for further assessment is conditional upon satisfaction of the second sentence of s 327(4). There is no compelling or even persuasive reason why, on the proper construction of s 327 such a result should be implied. Section 327(6) and 329(1)(a) speak uniformly of the relevant power being exercisable as "an alternative to an appeal against the assessment." The power has only one precondition - that the appeal to which it is the alternative is an appeal on a ground referred to in subsection (3)(a) or (b) … the plain meaning of the statute is that the Registrar has and may exercise the power to refer an assessment for further assessment when (upon an examination of the grounds of the appeal papers lodged with the Registrar) the appeal is on either ground referred to in subsections 3(a) and (b); (b) s 327(4) does not require the Registrar to enter into any level of substantive determination of the grounds of appeal, the evidence relied upon, and likely result of the appeal itself. The appeal passes the Registrar when it raises for determination by the Appeal Panel at least one of the grounds referred to in s 327(3); (c) the claimant's challenge to the formation of an opinion by the delegate about the existence of facts that at least one of the grounds for appeal specified in subsection 3 exists must fail as the very wide discretion conferred on the Registrar cannot be effectively reviewed by the Courts and in any event the material before the Registrar contained evidence upon which the delegate could properly form the requisite opinion. 11 The second opponent's submissions were generally consistent with those advanced by the third opponent. The first opponent filed a submitting appearance.

The authorities 12 The role of the Registrar under 327(4) has been considered by this Court in Campbelltown City Council v Vegan [2004] NSWSC 1129 and Wikaira v Registrar of the Workers' Compensation Commission of NSW [2005] NSWSC 954. These decisions impact upon any consideration of the proper construction of WIM s 327.

13 In Vegan (at [74] and [76]) Wood CJ at CL accepted a submission: …that s 327 provides a gatekeeper role for the Registrar, whose task it is to consider, pursuant to s 327(4), whether "at least one of the grounds for appeal specified in subsection (3) exists". If it appears to the Registrar this is the case, then in accordance with s 327(4), the appeal can "proceed" and be referred to an Appeal Panel. 14 His Honour considered that, "Once a ground for appeal has been identified, (the Appeal Panel) should be free to conduct a full review de novo on the available material". He concluded at [81]: It would follow, in the present case, that once the Registrar as gatekeeper was satisfied, of the existence of the 2% error appearing on the face of the table, or of any other error, then it was appropriate for the matter to be referred to the Appeal Panel. It was then free to conduct a review upon the basis of the material properly available before it, without any need to make a formal finding itself as to the existence of an error falling within an available ground of appeal, and without being confined to the correction of that error. 15 I infer from His Honour's conclusion that the determination of whether a ground of appeal under s 327(3) exists is a matter for the Registrar to determine on the balance of probabilities. It is not an issue for determination by the appeal tribunal. 16 This was confirmed by Associate Justice Malpass in Wikaira (at [25]-[27]) where His Honour said: It seems to me that the section requires the Registrar to make a determination (that is, that it appears that at least one of the specified grounds for appeal exists). When that determination is made, the barrier to the appeal proceeding is removed …. The parties (submitted) 'that the Registrar was required to determine whether or not it appeared that there was an arguable specified ground of appeal. Upon further reflection, I have come to the view that this was not what was intended by the Legislature … The role given to the Registrar is that of determining whether or not the appeal is to proceed. It seems to me that in the performance of that role the Registrar is required to determine whether or not there is a ground of appeal. If it appears to the Registrar that such a ground is made out (exists)', the appeal then proceeds (save for any referral pursuant to s 327(6) of the Act.) It is heard by the appeal panel (s 328) by way of review. 17 Leave to appeal to the Court of Appeal from the decision in Vegan has recently been granted. It may be the Court of Appeal will take a different view of this question, which as Wood CJ at CL observed at [83], was not "clear or easy of determination". Any such decision may impact upon the force of Wikaira. However, for reasons of judicial comity, I consider it appropriate to follow the decisions in Vegan and Wikaira.

The construction of sections 327 and 329. 18 The power to refer a medical assessment for further assessment under s 329 is, by the express terms of that section and s 327(6), subject to two preconditions. Those preconditions are (a) there must be an appeal; (b) that appeal must be on a ground referred to in s 327(3) (a) or (b). 19 The answer to the initial question, when is there an appeal under s 327, is unclear. 20 The first sentence of s 327(4) provides "An appeal is made by application to the Registrar." The application is to be filed in the Workers Compensation Commission. Subsequent to the filing of the application the Registrar determines whether it appears to him or her that at least one of the grounds of appeal specified in s 327(3) exists. It is thus arguable that there is an appeal once the application is filed in the Commission. The Registrar determines whether the appeal is to proceed, not whether it comes into existence. If this is the correct construction of s 327(4) it is not a precondition of a referral under s 329(1)(a) that the requirement of the second sentence in s 327(4) be first met. 21 The alternative construction is that there is an appeal only when the Registrar determines that it appears to him or her that at least one of the grounds for appeal specified in subsection (3) exists. This construction would require that the second sentence in s 327(4) be met before any referral under ss 327(6) and 329(1) could be made. 22 I prefer the latter construction for the following reasons:

(a) The effect of the decisions of this Court in Vegan and Waikara is that the application to the Registrar is in the nature of an application for leave to appeal. The actual appeal is the review by the appeal panel (WIM s 328(2)). It is the review by the appeal panel which is the appeal to which the referral under s 329 is an alternative.

(b) Such a construction is not inconsistent with the concept of an application to the Registrar to appeal under s 327(4) and is consistent with Workers Compensation Commission Practice Direction number 8 and the Workers Compensation Medical Assessment Guidelines that: An appeal against a medical assessment is to be lodged on the approved form - Application for Leave to Appeal Against Decision of Approved Medical Specialist (Form 10).

Form 10 relevantly commences: Application Appeal against Decision of Approved Medical Specialist This is an application by a party to a dispute for leave to appeal against a decision of an approved medical specialist.

(c) This construction is consistent with the nature of the right of appeal. That right is a statutory right created by s 327(1). It is expressly limited to a matter identified in s 327(2) and to a ground or grounds specified in s 327(3). There is no right of appeal in the absence of a ground specified in s 327(3). 23 If my preferred construction is erroneous it remains to consider the second precondition expressed in s 327(6) namely that the appeal must be on a ground referred to in subsections (3)(a) or (3)(b). 24 Consistently with the limitation on the right of appeal in s 327(1), the level of proof required by this Court in respect of s 327(4) and the structure of the Act which makes the decision of the approved medical specialist conclusive as to permanent impairment the proper construction of s 327(6), in my opinion, requires the Registrar to determine the second precondition on the balance of probability. In my opinion it would not be sufficient for the Registrar to merely determine that the application purports to rely on ground (3)(a) or (3)(b) or that there is an arguable case the grounds or one or other of them may be established. 25 This conclusion is also consistent with Workers Compensation Commission Practice Direction number 8 which, under the heading "Referral for further assessment", states: Where it appears to the Registrar that a ground of appeal under s 327(a) or (b) is made out …. the Registrar may refer the matter for assessment by an AMS as an alternative to an appeal

and with the WorkCover Medical Assessment Guidelines [42] which provides: If the application to appeal demonstrates to the Registrar that the worker's condition has deteriorated since the original medical assessment … the Registrar may decide to refer the matter back to an AMS instead of referring it to an Appeal Panel.-

26 The remaining question for determination is whether the claimant has established that there was no evidence from which it could have appeared to the delegate that the ground for appeal specified in subsection (3)(a) existed (if s 327(4) is the applicable test) or that there was no evidence that the ground for appeal specified in subsection (3)(a) existed (if s 327(4) is not applicable). 27 Although the delegate referred the matter under s 329(1) on the basis there had been a "deterioration of the worker's condition that results in an increase in the degree of permanent impairment" (s 327(3)(a)) she provided no reasons for her conclusion. The onus is on the claimant to establish error of law by the delegate. It has not been sought to advance a case that the delegate was bound to give reasons for her conclusion and had erred in law in not so doing.

28 The second opponent relied upon reports of her treating general practitioner Dr Tjeuw and her treating pain consultant Dr Salmon to support her claim of permanent loss of use of the right arm. Dr Tjeuw assessed the loss at 50%, Dr Salmon at 45%. These reports were dated respectively 9 June 2003 and 15 May 2003. These opinions contrast with Dr Cummine's assessment of 0%. 29 The primary medical issue was whether the second opponent suffered from the considerable symptoms of which she complained. Dr Tjeuw and Dr Salmon accepted the second opponent's complaints, Dr Cummine did not. 30 Crucial to any determination of that issue was whether there were any physical signs to support the alleged symptoms. Dr Cummine, at his examination, found no signs to support the second opponent's complaints. His examination findings relevantly were: … right and left upper limbs were equal and symmetrical in appearance. They were similar in temperature. Normal pulses were present. There was no evidence of sweating or atrophy … reflexes in both upper limbs were equal and symmetrical. There was no wasting or fasciculation. 31 In my opinion the crucial comparison is between the objective findings made by Dr Cummine on 26 September 2002 and those subsequently made by Drs Tjeuw and Salmon.

32 Dr Tjeuw reported enlargement of the right arm and forearm. Dr Salmon on examination on 30 April 2003 found the hand was blue, warm, and moist. In my opinion these signs, which were apparently absent on Dr Cummine's examination, provided some evidence, particularly when coupled with the differing assessments, to support the delegate's conclusion. Accordingly I am not persuaded that error has been shown. 33 I do not accept the claimant's submissions that there was no evidence of deterioration because the assessments by Dr Tjeuw and Dr Salmon were less then the percentage originally claimed or because the reports of Dr Tjeuw and Dr Salmon did not evidence deterioration over the period of treatment. 34 Accordingly I conclude the claimant has not established error on the part of the delegate and that the amended summons should be dismissed.

(2) Claimant to pay the costs of the first, second and third opponents. **********

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