Secretary, Department of Communities and Justice v Workers Compensation Commission & Ors

Judgment (4 paragraphs)

[1]

Solicitors: Bartier Perry (Plaintiff) Crown Solicitor for NSW (First and Second Defendants) Keen Lawyers (Third Defendant) File Number(s): 2020/308549

[2]

Judgment

This is an application for an order in the nature of certiorari to quash a decision of an Appeal Panel constituted by two approved medical specialists and an Arbitrator chosen by the Registrar of the Workers Compensation Commission. The Appeal Panel dismissed an appeal by the plaintiff from a medical assessment by an approved medical specialist who had determined that the third defendant, Ms Roberta Mead, had suffered a 15% permanent impairment as a result of an injury incurred in the course of or arising out of her employment.
The active parties to the proceedings are the plaintiff who stands in the position of Ms Mead's employer (Government Sector Employment Act 2013 (NSW), s 26) and Ms Mead. No issue was taken with the joinder of the Workers Compensation Commission as the first defendant although the appropriate party would have been the Registrar of the Workers Compensation Commission (Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [55]). The Appeal Panel was named as the second defendant. Both the first and second defendants entered submitting appearances.

A score was to be allocated for each scale numbered between one and five according to the AMS' assessment of the class of each scale into which the worker fell. The AMS was then required to calculate the median score. If the median score fell between two classes, it was to be rounded up to the next class (clauses 11.14 and 11.15). A median score of Class 2 would fall within a range of impairment of between 4% and 10%. A median score of Class 3 would fall within a range of 11% and 30%. The assessor would also calculate the aggregate score by adding the six class scores (clause 11.17). Relevantly to the present case, if the aggregate score were 15 but the median class score were 2, that would translate to a measurement of permanent impairment of 8%. On the other hand, if the aggregate score were 15 but the median class score (after rounding up) were 3, that would translate to a 15% degree of permanent impairment (clause 11.20).
The degree of whole person impairment is relevant not only to an injured worker's entitlement to lump sum compensation under s 66 of the Workers Compensation Act but to the worker's entitlement to claim common law damages.
Dr Bertucen considered that Ms Mead fell within Class 3 in respect of scales A (Self-Care and Personal Hygiene), B (Social and Recreational Activities), and E (Concentration, Persistence and Pace (Cognitive Functioning)) and within Class 2 in respect of scales C (Travel), D (Social Functioning (Forming and Maintaining relationships)) and F (Adaptation (Employment)). This gave a median score of 2.5 which rounded up to a median class score of 3, and an aggregate score of 15 which translated to an assessment of whole person impairment of 15%. In relation to scale F (Adaptation (Employment)), Dr Bertucen said: "Ms Mead works full-time but claims that she struggles with the pace of work and has had some recent (gentle) negative feedback from her managers regarding her difficulties in fulfilling the workload.".
The plaintiff's insurer did not accept the assessment. On 25 February 2019 Ms Mead filed an Application to Resolve Dispute with the Workers Compensation Commission and attached supporting documentation. The matter was referred by the Commission to an Approved Medical Specialist, a psychiatrist, Dr Peter Anderson. He examined Ms Mead on 1 May 2020. He issued a Medical Assessment Certificate on 15 May 2020. He assigned the same class score for categories A, B, C and E as had Dr Bertucen. However he assessed Ms Mead as having a class score of 2 for scale D (Concentration, Persistence and Pace) whereas Dr Bertucen had assessed Ms Mead as Class 3. He assessed Ms Mead as Class 3 for scale F (Employability) whereas Dr Bertucen had assessed Ms Mead as Class 2.
The effect of Dr Anderson's assessment was to give Ms Mead the same median and aggregate score as Dr Bertucen had reached albeit for different reasons.
It will be necessary to return to Dr Anderson's assessment in detail below.
Dr Anderson also added 1% for the effects of treatment in maintaining Ms Mead's symptoms and impairments at the best possible level giving rise to a final whole person impairment assessment of 16%.
The plaintiff applied to the Registrar of the Commission seeking to appeal from the decision of Dr Anderson to the Appeal Panel. Under s 327(4) an appeal was not to proceed unless the Registrar of the Commission was satisfied that on the face of the application and any submissions made to the Registrar, at least one of the grounds specified in subsection (3) was made out. The plaintiff relied on two permutations of ground (d) which is that the medical assessment certificate contains a demonstrable error. These were: "(a) the MAC contains demonstrable error in relation to the assignment of Class in the PIRS rating category of 'Employability' (Table 11.6 Guidelines). (b) the MAC contains demonstrable error, and evidence of use of incorrect criteria in relation to the addition of 1% WPI for the effects of treatment (Chapter 1.32 Guidelines)."
The Registrar allowed the appeal to proceed.
The second ground succeeded. The first ground failed. There is no issue in relation to the second ground.
As explained in more detail below, the plaintiff's submission to the Appeal Panel had two themes. One theme was that Dr Anderson (the AMS) should have determined that Ms Mead's functional impairment was properly rated in Class 2 as a mild impairment consistent with the opinion of Dr Bertucen because Ms Mead was able to work in fulltime employment (Submission paras 4.3, 4.10 and 4.16 quoted below at [34]). An interwoven theme was that the Application to Resolve Dispute lodged with the Commission contained no evidence given by Ms Mead that described in any detail the nature of her role with the NDIS and in particular whether it was a role requiring less skill and intellect than her pre-injury position (Submission paras 4.5, 4.6, 4.7, 4.9 and 4.16 quoted below at [34]).
The Appeal Panel rejected the appeal in relation to the AMS' determination that Ms Mead suffered 15% permanent impairment. No appeal lies from that determination. The plaintiff seeks judicial review of that determination on the basis that the Appeal Panel failed to consider the plaintiff's submission that there was no evidence for the AMS' conclusion that Ms Mead's post-injury employment lacked managerial responsibility, or required less skill or intellect than her pre-injury employment. The plaintiff submitted that the Appeal Panel failed to engage with a substantial and well-articulated argument to that effect and thereby its decision is affected by jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] 77 ALJR 389; [2003] HCA 26 at [24]; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 at [26]. The plaintiff acknowledges that the Appeal Panel recorded the submission but says that the Appeal Panel failed to engage actively with it: Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [36]-[37].
To address this argument, it is necessary to set out in some detail the reasons of the AMS, the submissions made to the Appeal Panel and the Appeal Panel's reasons.
Section 325(2) of the Act provides: "(2) A medical assessment certificate is to be in a form approved by the President and is to - (a) set out details of the matters referred for assessment, and (b) certify as to the medical assessor's assessment with respect to those matters, and (c) set out the medical assessor's reasons for that assessment, and (d) set out the facts on which that assessment is based."
The Certificate recorded that Dr Anderson had examined Ms Mead on 1 May 2020 by Skype and that the date of injury was indicated by her as being between about October 2012 and March 2013 and then 23 March 2013. Dr Anderson recorded her occupation with the Department of Communities and Justice as "manager case worker". He recorded a history taken that included that Ms Mead started with Community Services in 2001 as a student and then became a caseworker and then a manager caseworker. She obtained the position of manager caseworker, she said, on merit via a selection process. Dr Anderson referred to her complaints of being bullied, to the effects of that upon her and to the time she had off a work as a result of the bullying. In relation to her new position, Dr Anderson stated: "She was fortunate to find another job and told me she did so, on her own. This was a job with the National Disability Insurance Scheme and she said that organisation employed people with a disability and with mental health issues. She has now been three years with that organisation and she is a planner. She said she does not like the job and she has had trouble performing the job. The job lacks camaraderie. She does not trust people. She had difficulty travelling to the workplace initially and worked on travel strategies with the psychologist. She falls behind in her work. She provides medical evidence when she has absences from work. She says a normal workplace would not tolerate her absences, her difficulties keeping up with the work, and her lateness. She struggles to get to the Parramatta office on time and arrives between 9.30 and 10.00am. This is after her husband drops her at the station or her mother drops her at the station or on occasion she gets herself to the station."
After referring to Ms Mead's treatment, symptoms and details of any previous or subsequent accidents, injuries or conditions, her general health and social activities, Dr Anderson stated: "She is in fulltime employment and works Monday to Friday as a planner for the National Disability Insurance Scheme ... She arrives late. Because she arrives late she works until 5.30 till 6.00. She has lunch at her desk. She says she does not associate with other people. She does mostly computer work. She says her concentration and capability is impaired but she has learnt to get by, by using folders and so forth. She has absences beyond what she thinks reasonable and she does not think her lateness is reasonable. She is not enjoying the work. She will do home visits on that occasion and for that purpose will take a taxi in the local area. … At a subjective level she has difficulty with concentration when she is in the workplace. She says she often has to ask someone what to do and does not retain information. …"
Dr Anderson stated that the facts on which his assessment was based were "the clinical examination and perusal of documentation submitted by the parties." Under the heading 'Reasons for Assessment', Dr Anderson stated that Ms Mead continued to suffer from a major depressive disorder. He said: "Her condition had not improved sufficiently for her to cope with return to work in a difference role and she was medically retired. Although she has obtained alternative employment elsewhere, there is no reason to consider that she recovered fitness for pre-injury employment."
In relation to his assessment of Ms Mead falling within Class 3 of Scale F (Employability), Dr Anderson said: "She is unfit for pre-injury employment because of her symptomatology. She was medically retired for that reason. She has not recovered fitness for employment at the level of her pre-injury employment. However, she has proved herself able to work on a fulltime basis in an alternative role, which does not require managerial responsibility and does not require the same degree of skill and intellect as the pre-injury position. In carrying out this role she is struggling in that she arrives late for work and has subjective difficulties in performance. In my opinion her impairment in employability fits neither the published guidelines for class 2, nor the published guidelines for class 3. Her impairment does not fit class 2 guidelines because the duties of her full time position do not require the skill and intellect of her pre-injury employment. Her impairment does not fit class 3 guidelines because her current employment, although less stressful, qualitatively different and requiring less skill, is nevertheless more than a 20 hour per week job. In deciding upon a class 3 rather than a class 2 impairment I have exercised judgment and given more weight to the greatly reduced quality of the current employment as compared to the number of hours for which she is renumerated."
There is no dispute that the descriptors of the relevant classes of the scale "Employability" do not cover the field. If a worker is not assessed as falling within the descriptors for either Class 2 or 3, then it is a matter for the clinical judgement of the AMS as to whether the worker should be assessed as having mild impairment (Class 2) or moderate impairment (Class 3).
A medical assessment can be appealed on the grounds provided for by s 327(3) of the Act. The plaintiff appealed from the finding that Ms Mead fell within Class 3 of the Employability scale on the ground that the Certificate contained a "demonstrable error".
No issue was raised on this application as to whether the "no evidence" ground relied upon was a "demonstrable error" within the meaning of s 327(3)(d). That is, there was no argument as to whether in order for an error under s 327(3)(d) to be a "demonstrable error", the error must appear on the face of the Certificate, and if so, how the requirement in s 325(2)(d) that a Medical Assessment Certificate set out the facts on which the assessment is based is relevant to that question. However, these questions do underlie the submissions advanced.
The plaintiff's submissions to the Appeal Panel included the following in support of the plaintiff's contention of "demonstrable error in PIRS rating Category 'Employability'": "4.2 The Respondent's own independent medical examiner, Dr Jeff Bertucen rated the Respondent's functional impairment in the category for Employability in Class 2, being a mild impairment. 4.3 The Appellant submits that taking into account the evidence, weighing this against the examples in the various classes of Table 11.6 using appropriate clinical judgement, the AMS should have determined that the Respondent's functional impairment in this area was "properly rated in Class 2 as a mild impairment, consistent with the opinion of Dr Bertucen. 4.4 The evidence before the AMS is that the Respondent works on a full-time basis as a Senior Planner (not as a Planner as recorded by the AMS) for the NDIS at its Parramatta office (Respondent's statement, ARD P6). 4.5 The ARD (Application to Resolve Dispute) contains no evidence given by the Respondent that describes in any detail the nature of her role with the NDIS and in particular, whether it is a role, requiring less skill and intellect than her preinjury position. 4.6 ln relation to this position the Respondent's lME (Independent Medical Examiner), Dr Bertucen records that, 'she commenced this full-term from the beginning and this remains a full-time occupation. She denies having any lengthy or frequent absences from work on account of the psychological condition in the last two years.' De Bertucen does not record being informed that the role required less skill and intellect than the pre-injury position. 4.7 In relation to the Respondent's role with the NDIS, the only history recorded in the MAC by the AMS is: 'She has now been three years with that organisation and she is a planner. She said she does not like the job and has had trouble performing the job. The job lacks camaraderie. She does not trust people. She had difficulty travelling to the workplace initially and worked on travel strategies with the psychologist. She falls behind in her work. She provides medical evidence when she has absences from work. She says a normal workplace would not tolerate her absences, her difficulties keeping up with the work, and her lateness. She struggles to get to the Parramatta office on time and arrives between 9.30 and 10.00 am. This is after her husband drops her at the station or her mother drops her at the station or on occasion she gets herself to the station.' PAGE 3 MAC and 'She does mostly computer work. She says her concentration and capability is impaired but she has learnt to get by, by using folders and so forth. She has absences beyond what she thinks reasonable and she does not think her lateness is reasonable. She is not enjoying the work. She will do home visits on occasion and for that purpose will take a taxi in the local area.' PAGE 4 MAC. 4.8 Against this evidentiary background the AMS concluded that the Respondent's functional impairment for 'Employability' was Class 3. The reasoning process by which the AMS came to this conclusion appears from the following statements in the MAC: 'I have rated moderate rather than mild impairment as rated by Dr Bertucen. This is because she was medically retired from her preinjury employment and she remains in my view medically unfit for her preinjury employment.' (MAC Par 10 c Page 8). and '…..She has proved herself able to work on a full-time basis in an alternative role, which does not require managerial responsibility and does not require the same degree of skill and intellect as the preinjury position....' and ' Her current employment, although less stressful, qualitatively different and requiring less skill….' Table 11.8 MAC 4.9 In the Appellant's submission there was no evidence before the AMS that the Respondent's full time employment with the NDIS is such that it requires less skill and intellect than the preinjury position or was some other way qualitatively different and to the extent that the AMS relied upon those matters to conclude 'that the functional impairment for 'employability' was moderate, he has fallen into error. 4.10 Further, the fact that the Respondent was medically retired from her preinjury employment and that she remains unfit for her preinjury employment whilst relevant, is not a material consideration to differentiate between Class 2 and Class 3 in Table 11.6 of the Guidelines because both classes are premised on the Respondent being unable to work in her preinjury position. Reliance upon the fact that the Respondent is unfit for her preinjury employment to differentiate between the two classes is in the Appellant's submission demonstrable error. … 4.14 Within that scale, Classes 2, 3 and 4 are all premised on the ability to undertake some work and the appellant submits that it is the 'measurement' of this ability to undertake work that is of fundamental importance to the class rating to be applied in any given case. 4.15 The Appellant submits that the fundamental difference between Class 2 and Class 3 is that a Class 3 impairment does not envisage full-time employment. 4.16 The Appellant submits that the best fit for the Respondent is a rating of Class 2 because the Respondent has demonstrated that she is able to work in full time employment in a sustained fashion for the last 3 years as a Senior Planner for the NDIS. It is accepted this is in a different environment from that of the preinjury position but there is no evidence that the position requires comparatively less skill and intellect."
The Appeal Panel extracted at length the reasons of the AMS. It recited that it had determined that it was not necessary for the worker to undergo further medical examination. It noted that the parties' written submissions had not been repeated in full but stated that they had been considered (para 11). It recited the plaintiff's submission that: "The AMS should have found Class 2 because Ms Mead can work full-time in another position. There is no evidence that the new employment is at a lower level of skill and intellect." (Para 14).
It noted Ms Mead's submission that: "There is only a difference of opinion between the AMS and Dr Bertucen as to Employability and this is addressed by the AMS. The AMS has taken a history of the nature of the new employment and carefully considered the Classes in exercising clinical judgement as he was required to do." (Paras 18 and 19).
The dispositive reasoning of the Appeal Panel was as follows: "32. The respondent (sic appellant) submits that the AMS should have found Class 2 as did Dr Bertucen, and that Class 2 is "best fit" because the worker can work full-time. The Panel does not accept this submission. The AMS was obliged to consider employability using his own clinical judgement. As the Supreme Court noted in Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140, "In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 ("Wark"), where it is stated at [33]: "...the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. ..." In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])." 33. The AMS explains why he sees the Category differently to Dr Bertucen, as extracted above. Contrary to the submissions for the appellant, that Ms Mead can work full-time does not rule out Class 3. The AMS explains how he applied his clinical judgement to the criteria and concluded that Class 3 is the applicable rating. A difference of opinion with Dr Bertucen is insufficient. 34. The AMS has not applied incorrect criteria but has considered carefully the examples in the relevant Classes together with his findings on examination, and thoughtfully described the reasoning why he has assessed the worker as being moderately impaired. There is no demonstrable error on the face of the Certificate regarding Employability discerned by the Panel."
The passages in the Medical Assessment Certificate "extracted above" referred to in paragraph 33 of the Appeal Panel's reasons were the passages quoted at [30] above.
The Appeal Panel was correct in saying that the plaintiff had submitted to it that the AMS should have found that the worker fell within Class 2 because she could work fulltime. The plaintiff does not now say that the Appeal Panel erred in accepting the AMS' analysis that merely because Ms Mead could work in a fulltime position, she fell within Class 2 rather than Class 3 of the "Employability" category.
One of the plaintiff's clearly articulated submissions before the Appeal Panel was that there was no evidence that Ms Mead's work in her position as a Senior Planner with the NDIS Authority required less skill and intellect than her work as a Manager case worker with FACS.
The AMS clearly found that Ms Mead's work with the NDIS did not require the same degree of skill and intellect as her pre-injury position, as well as not requiring managerial responsibility. He reached that conclusion after a consultation with her. It is true that the AMS did not set out what were the matters of primary fact that led him to that conclusion. But the appeal to the Appeal Panel was not based upon an asserted failure by the AMS to set out the facts on which the assessment was based (s 325(2)(d)). The ground of appeal was that there was no evidence for the AMS' conclusion.
The Appeal Panel was aware of the submission and said (at [32]) that the AMS was obliged to consider employability using his own clinical judgement. In dealing with the submission, it cited the observations of Harrison AsJ in Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140 as quoted above at [37], as to the importance of clinical observation and assessment of matters raised in consultation.
The Appeal Panel appears here to be stating that the AMS' conclusion that Ms Mead's duties in her new fulltime position did not require the skill and intellect of her pre-injury employment was based upon his consultation with her.
The plaintiff submitted that no such conclusion was open because the AMS was required to specify the facts upon which his assessment was based (s 325(2)(d)). The plaintiff submitted that the AMS' conclusion was part of his assessment and that he had not stated any primary fact on which that assessment was based.
But the AMS simply stated that the facts upon which his assessment was based were those contained in the documents provided to him and his clinical examination. No issue was raised before the Appeal Panel, nor before me, as to whether that was a sufficient statement (T26). It is unnecessary for me to express a view on that question.
It is not possible to say that there was no evidence to support Dr Anderson's finding that Ms Mead's new position with the NDIS did not require the same degree of skill and intellect as her pre-injury position without knowing what Ms Mead told Dr Anderson.
The Appeal Panel actively engaged with the submission by citing the observations of Harrison AsJ in Glenn William Parker v Select Civil Pty Limited as to the importance of the AMS' consultation with the claimant and deferring to his clinical judgement.
In any event, if it were to be assumed that there was no evidence to support Dr Anderson's view that Ms Mead's new employment did not require the same degree of skill and intellect as her pre-injury employment, it would be equally true to say that there was no evidence that her duties in her position with the NDIS required comparable skill and intellect to that of her pre-injury job. The descriptors of mild impairment in Class 2 of scale 6 (Employability) describe two cases that would fall within the class of mild impairment. The first is if the worker is able to work fulltime but in a different environment from his or her pre-injury job where the duties required comparable skill and intellect as those of the pre-injury job. The second is if the worker could work in the same position but not for more than 20 hours per week. It was clear that Ms Mead did not fall within the second descriptor. The question would be whether she fell within the first. If Dr Anderson had no evidence as to the skill and intellect required of Ms Mead's job with the NDIS, then he would have had no evidence that she was able to work fulltime in a different environment in a job that required comparable skill and intellect, except for his clinical assessment of her employability.
On that basis, Dr Anderson would have had no assistance from external evidence of what work Ms Mead could or could not do to decide whether in assessing Ms Mead's psychiatric impairment in relation to the employability scale, her impairment should be characterised as mild or moderate. That would not relieve him from the task of making the assessment. If the parties did not provide sufficient documentary information to allow an assessment of the descriptors, it was still incumbent upon the AMS to determine whether Ms Mead's psychiatric impairment in relation to her employability should be characterised as mild or moderate.
Accordingly, even if the Appeal Panel did not consider that Dr Anderson's assessment (that the duties of Ms Mead's position with NDIS did not require comparable skill and intellect to those of her duties as a Manager Caseworker with FACS) was based upon his consultation with Ms Mead, there would be no error (jurisdictional or otherwise) in the Appeal Panel's conclusion that nonetheless, Dr Anderson's determination was based upon his clinical judgement following that consultation. [2]
For these reasons, the Appeal Panel did not fail to engage actively with the submissions advanced by the plaintiff. The summons should be dismissed with costs.

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