Skillen v MKT Removals Pty Ltd & Ors

Legal Profession Act 2004 (NSW) LEGISLATION CITED : Supreme Court Act 1970 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Uniform Civil Procedure Rules 2005 (NSW)

Allesch v Maunz (2000) 203 CLR 172 Campbelltown City Council v Vegan [2004] NSWSC 1129 CASES CITED : Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 Craig v South Australia (1995) 184 CLR 163 Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing & Ors [2006] NSWSC 235 Lukacic v Vickarni Pty Ltd & Anor [2007] NSWSC 530

Simon Craig Skillen (Pl) PARTIES : MKT Removals Pty Ltd (1st Def) An Appeal Panel constituted under s328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (2nd Def) The Registrar of the Workers Compensation Commission (3rd Def)

COUNSEL : Mr B. G. McManamey (Pl) Mr B. A. Odling (2nd Def)

SOLICITORS : Palmieri Law Firm (Pl) Crown Solicitor (2nd & 3rd Def's)

LOWER COURT JURISDICTION : Workers Compensation Commission

LOWER COURT JUDICIAL OFFICER : Medical Appeal Panel

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

14831/06 Simon Craig Skillen v MKT Removals Pty Ltd & Ors

JUDGMENT 1 HIS HONOUR: The plaintiff claims that on 20 January 2003 he suffered a back injury during the course of his employment with the first defendant. He came to make an application to resolve a dispute with the Worker's Compensation Commission (the Commission). The dispute was referred for assessment by Professor Higgs, an Approved Medical Specialist (the AMS). He had before him the evidence relied on by the parties (including competing views as to both thoracic and lumbar injury). The AMS made a physical examination and issued his Medical Assessment Certificate. The AMS assessed the whole person impairment at twenty percent. 2 The Certificate set out assessment made in respect of two body parts or systems. One was the "Thoracic Spine" (eight percent). The other was the "Lumbar Spine" (thirteen percent). 3 The first defendant made an application to appeal to the Registrar. The prescribed form of application requires the attachment of a statement setting out, inter alia, all grounds for appeal. What was attached to the application was a two-page document headed "Appellant's Submissions". It commenced with a general submission that the assessment by the AMS "contains a demonstrable error and is based on incorrect criteria". The general submission was followed by material that appears under two headings. The first heading is "Assessment of ADL". The second heading is "Assessment of DRE Thoracic Category". The submissions conclude with the following:- "In summary it is the Appellant's submissions that for the reasons expressed above Professor Higgs' certificate contains both demonstrable errors, and has been made on the basis of incorrect criteria. The Appellant submits this matter is suitable for determination on the papers but would support a re-examination of the Applicant should the Appeal Panel consider it necessary."

The submissions make no mention of the lumbar category (or the lumbar spine). The plaintiff made submissions in reply. The three-page document (which may be described as being general in form) also contains no express mention of the lumbar category. It gave consent to a determination on the papers. 4 The appeal was allowed to proceed (the registrar being satisfied that one of the grounds for appeal had been made out) and was referred to an Appeal Panel for hearing (by way of review). 5 The Appeal Panel had the material that was before the AMS and the submissions. Doctors Scougall and Burke (being two members of the Appeal Panel) conducted a medical examination of the plaintiff (a determination to do so was made because of the conflicting whole person impairment assessments). The results of the medical examination were not conveyed to the parties prior to the making of its Assessment. The Appeal Panel issued a Medical Assessment Certificate. It assessed the whole person impairment at six percent. 6 The Certificate set out a 0% assessment for "Thoracic Spine" ("Category 1") and a six percent assessment for "Thoracic Spine" ("Category 2"). There is no dispute that the second reference to "Thoracic Spine" is erroneous. It appears to be a typographical error. There is a consensus that it should be regarded as referring to "Lumbar Spine". 7 The plaintiff has commenced proceedings in this Court. The process now relied on by him is a Further Amended Summons. It was filed on 26 October 2006. Relief, by way of judicial review pursuant to section 69 of the Supreme Court Act 1970 (NSW), is sought in respect of the decision of the Appeal Panel. It is a discretionary remedy. 8 The plaintiff alleges two errors of law. Both are said to fall within the category of denial of natural justice. 9 Firstly, it is said that the Appeal Panel should have disclosed the examination findings made by the two specialists and sought submissions when it came to the contemplation of making a decision that did not accord with the common position of the parties. 10 Secondly, the argument is put that the scope of the appeal was of addressing alleged errors and the matters put in issue by the parties. 11 The hearing of the proceedings in this Court took place on 13 June 2007. Mr McManamey appeared for the plaintiff. Mr Odling appeared for the first defendant. Counsel relied on written submissions, which were supplemented by oral argument. 12 No question of jurisdiction was in issue. There was dispute as to whether or not there was jurisdictional error in the sense expressed in Craig v South Australia (1995) 184 CLR 163. There was dispute as to whether the Appeal Panel was required to disclose the examination findings for comment. There was dispute as to what had been put in issue before the Appeal Panel by the competing submissions. There was dispute as to the nature and scope of a hearing before the Appeal Panel. 13 I shall first address the matter of the role of the Appeal Panel. Broadly speaking, the first defendant urges the Court to adopt what was said by Wood CJ at CL in Campbelltown City Council v Vegan [2004] NSWSC 1129 (the role of the Appeal Panel was to conduct a review de novo). The plaintiff took a contrary stance. He urged the Court to follow what had been said by the Judges of Appeal in Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 (the role of the Appeal Panel was limited to addressing the correction of errors identified in the Certificate of the AMS as specified by the appellant). What was said by Basten JA at para 137 (with whom McColl JA agreed) was expressed to be a tentative view. 14 Towards the conclusion of argument, Mr Odling also referred the Court to the decision of Harrison As J in Lukacic v Vickarni Pty Ltd & Anor [2007] NSWSC 530. In that case, she adopted the approach of Wood CJ at CL. 15 Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act) contains the provisions relevant to "Medical assessment" (ss319-331). It may be helpful to briefly set out the structure of the relevant provisions. Section 327 deals with "Appeal against medical assessment". Section 328 deals with "Procedure on appeal". The appeal process accords roles to both the Registrar and the Appeal Panel. The appeal is made by application to the Registrar. The grounds of appeal are restricted to the grounds set forth in s327(3). The appeal is not to proceed unless the Registrar is satisfied that at least one of the grounds for appeal has been made out. If the Registrar is so satisfied, the appeal proceeds unless the Registrar makes an alternative reference (as contemplated by either s327(6) of s329). The appeal against a medical assessment is to be heard by an Appeal Panel. The appeal is to be "by way of review of the original medical assessment". The Act and the Workcover Guidelines contain provisions for the procedure on an appeal. The Appeal Panel has the power to either confirm or revoke the Certificate of the AMS ("and issue a new Certificate as to the matters concerned") only. It is given the role of correcting error. 16 Before proceeding further, I should observe that I do not find the task of construing these provisions an easy one. 17 One difficulty presented by the provisions of the Act is the use both of "appeal" and "review" (the use of both terms in the statutory context may be regarded as causing some confusion). The authorities have regarded them as not being synonymous (a review being regarded as not having the constraints of an appeal). Presumably, significance was intended to be given to "appeal". 18 What is conferred by the statutory provisions may be compared with that conferred by rules of court and other statutory provisions. I shall briefly refer to certain other reviews. Generally speaking, each has its own individual characteristics. 19 Each review has to be seen in its own context. What is contemplated by ss 327 and 328 is dissimilar to the review of the decision of a Registrar that existed in this Court prior to the Uniform Civil Procedure Rules 2005 (NSW). It has similarities to that which now exists under rr 49.19, 49.20 and 49.21 (the use of the word "appeal" and the need for grounds). The untrammelled nature of the superseded review is no longer present and much of the law concerning it has become otiose. It is dissimilar to that conferred on a Panel pursuant to s375 of the Legal Profession Act 2004 (NSW) (the term "appeal" does not appear, there is no prescription of grounds and largely, the functions of the Panel are spelt out). It may be said that such a Panel stands in the shoes of the Cost Assessor. 20 It would seem to be intended that what is described as a "review" conferred by the sections (like that which is conferred by the Rules) is, at least in part, in the nature of an appeal. 21 The statutory regime not only limits the grounds of appeal to four categories, but also requires an identification of those that are relied on. 22 The statutory regime does not require the Registrar to address all of the grounds for appeal. It suffices for the Registrar to be satisfied that at least one of them has been made out. If that happens, only then does the appeal proceed to a Panel (which can address and correct error).

23 In this statutory context, it does not seem to me that it was intended that the review be a hearing de novo (a completely fresh hearing at large in which the power of the Appeal Panel may be exercised regardless of error). See, inter alia, Allesch v Maunz (2000) 203 CLR 172 at 180-181. I observe also that there may not be a hearing as such (as in this case, it may be determined on the papers) and the Appeal Panel has restricted powers. 24 I prefer the view that the grounds for appeal impose a restraint on the scope of the review that is to be conducted by the Appeal Panel pursuant to s328. I further take the view that the matters in issue may be further narrowed by that which may arise from submissions made in respect of the grounds for appeal. 25 Even if a different view were to be taken in respect of any of those matters, it seems to me that it would be a denial of natural justice for the Appeal Panel to deal with matters falling either outside the scope of the grounds of appeal or the submissions without first giving the parties the opportunity to be heard concerning them. 26 In the present case there is no precise definition of the grounds for appeal. What they are has to be deduced from the submissions made on behalf of the first defendant. I do not consider that the submissions can be construed as ventilating a ground for appeal in respect of the lumbar spine. Further, I do not consider that the conflicting medical material that had been placed before the AMS assists the first defendant. When the submissions were made, the parties had moved on from what was in issue before the AMS. 27 In the circumstances, I have come to the conclusion that the Appeal Panel fell into error in reducing the assessment made by the AMS in respect of the lumbar spine. 28 There remains the question of whether or not there was a denial of natural justice in not giving the parties an opportunity to make submissions on the examination findings made available to the Panel by the medical examination of the plaintiff. On this question, the plaintiff looks to what was said in Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing & Ors [2006] NSWSC 235. 29 In my view, I do not consider that what was said by Studdert J in that case assists the plaintiff. A medical examination of the plaintiff is an option that may be pursued by the Appeal Panel. It is a part of the review process. The power to conduct a medical examination is a tool that is provided to the Appeal Panel to better enable it to perform its role of review (a similar situation pertains to the assessment by an AMS). The Workcover Guidelines impose no requirement that such findings be made available to the parties. In conducting the examination, the Appeal Panel was dealing with a medical question. The plaintiff had already been examined by his own experts and their reports were before the Appeal Panel. It seems to me that the Plaintiff had a reasonable opportunity to address this question. In my view, the failure to give the parties an opportunity to make submissions on the examination findings does not bring about any denial of natural justice in this case. 30 The Certificate issued by the Appeal Panel is set aside. The matter is remitted to the Registrar for referral to an Appeal Panel constituted under s328 of the Act for determination according to law. The first defendant is to pay the costs of the proceedings. **********

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