State of New South Wales (NSW Department of Education) v Kaur

The medical assessment certificate

1. Under s 319 of the 1998 Act, "medical dispute" is defined to mean a dispute between a claimant for compensation and an employer or its insurer about any of the matters set out in the succeeding paragraphs of the section. Relevant, for present purposes, are the following: "(c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion or permanent impairment is due to any previous injury, or pre-existing condition or abnormality, and the extent of that proportion."
2. In accordance with the usual practice, the parties to the dispute provided the Approved Medical Specialist appointed to carry out the assessment with a brief of relevant medical material for, in this case his, consideration. Amongst the material provided by the Department were two reports of a consultant psychiatrist, Dr Adam Martin, dated 29 June 2012 and 27 November 2013 respectively. It will be necessary for me later in these reasons to make some brief reference to Dr Martin's opinion.
3. The Approved Medical Specialist, Dr John J Baker, assessed the total whole person impairment due to Dr Kaur's psychological injury at 17 per cent. He made a discount under s 323 of the 1998 Act for the proportion of impairment due to a previous injury, condition or abnormality on the statutory assumption of 10 per cent, issuing a certificate that the degree of whole person impairment resulting from Dr Kaur's injury was 15 per cent.

The medical appeal

1. The Department made due application to the Registrar of the Commission under s 327 of the 1998 Act to appeal from the medical assessment, which was granted. The Registrar chose an Appeal Panel under s 328 of the 1998 Act consisting of Mr John Windeyer, arbitrator, Dr Gregory Steel and Dr Robert Gurtler, approved medical specialists. Among the grounds which the registrar found to have been made out was the question whether the Approved Medical Specialist erred in not considering whether the applicant's psychological condition was a secondary psychological injury caused by orthopaedic problems, probable sleep apnoea, and anger and distress resulting from those physical ailments as referred to by the Department's qualified expert Dr Adam Martin in his report dated 27 November 2013. The grounds of appeal, with respect, amplified this complaint in various ways.
2. That ground of appeal and its various amplifications invoked the provisions of s 65A of the 1987 Act which is in the following terms: (1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury. (2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury. (3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%. Note: If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment. (4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply: (a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)), (b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury), (c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission. Note: If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury. (5) In this section: "Primary psychological injury" means a psychological injury that is not a secondary psychological injury. "Psychological injury" includes psychiatric injury. "Secondary psychological injury" means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.
3. As is readily apparent from its terms, s 65A has the effect that no lump sum compensation is payable "in respect of permanent impairment that results from a secondary psychological injury". Sub-section (5), defines secondary psychological injury as meaning "a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury."

Dr Martin's opinion

1. Essentially, Dr Martin's opinion was that the psychological condition from which Dr Kaur suffers was due to a number of different factors. They included previous significant life stressors. As is common ground, Dr Kaur previously suffered from a psychiatric or psychological illness requiring treatment from a clinical psychologist and by way of prescription medication because of her marriage breakdown and divorce. Although she was able to work when she commenced with the department, she was apparently still taking the medication Zoloft. Moreover, as she had other, physical ailments including obesity, osteoarthritis, especially effecting one of her knees; and sleep apnoea, Dr Martin formed the view that those physical conditions and the chronic pain and stress they caused was partly responsible, and in a large measure, for the psychiatric illness he diagnosed. For instance, in his report of 27 November 2013 (page 252 of exhibit CL1), he expressed the following view: "In general, while I have considered Ms Kaur was already on antidepressants at the time of the claimed injury, by her account, she was functioning reasonably well from this perspective, and I consider it is difficult to attribute any proportion of this pre-existing condition to her current complaints. I see the main problems as now being the non-work related physical pain, sleep apnoea, and anger and distress caused by the work related issues and, in particular, having her performance questioned." He went on to say the following: "Regarding estimating the degree of permanent impairment, this is made very difficult by the fact that much of Mrs Kaur's disability, in my view, is as a result of physical and non-work related issues. I do not consider it valid to estimate whole person impairment as a result of this."
2. It was argued that this evidence raised the question of whether her condition was a secondary psychological injury, at least to the extent to which it was secondary to her physical ailments. For the purpose of the argument it was submitted ( at least before me) that the phrase "physical injury" in s 65A, was not limited to physical work related injury within the definition of s 4 of the 1987 Act but extended to any physical (as opposed to psychological) injury or condition whether pre-existing or arising subsequently and whether or not the injury was work related or compensation was payable for its effects.

The appeal panel decision

1. The Appeal Panel rejected the Department's argument saying (at paragraphs 34 to 37): "34. The s 74 notice issued on 10 October 2012 denied liability, but on the basis that s 11A of the 1987 Act provided a complete defence; that is to say that although the claimant suffered a psychological/psychiatric injury, it was through reasonable action taken by the employer in respect of performance appraisal. Although the s 74 notice referred to the report of Dr Adam Martin (and to Dr Graham Vickery) the insurer did not deny the claimant's entitlement upon the basis that the claimant had suffered a secondary psychiatric injury. 35. The submission by the appellant employer that the above evidence raises a question of whether the psychiatric injury is primary or secondary is, with respect, misconceived. It is clear that Dr Martin was of the view that employment had not been a substantial contributing factor to the psychiatric injury. That would constitute a complete defence against this action. However, such a defence is a matter of legal entitlement that lies within the jurisdiction of the Commission. 36. It was not raised in the s 74 notice, and it was not raised in the Reply. It can be seen that the reasoning of Dr Martin that the claimant's employment was not a substantial contributing factor to occurrence of the injury included an opinion that part of the psychiatric injury was a secondary injury caused by her 'profound physical disability including obesity, orthopaedic problems and sleep apnoea.' 37. The question of whether an injury has caused a secondary or primary psychological condition in our view is one for the Commission to determine, as legal entitlement is at the root of the distinction. Thus this case involved a legal issue within section 65A of the 1987 Act (pertaining to primary and secondary psychological injuries) and the legal issue which the appellant employer elected not to contest pursuant to s 9A of the 1987 Act, that employment had not been a substantial contributing factor."
2. The gravamen of the reasoning of the Appeal Panel in relation to that argument was that questions concerning the application of s 65A to a case were matters within the purview of the Workers Compensation Commission of NSW rather than part of a medical dispute within the exclusive jurisdiction of an approved medical specialist or, in due course, an appeal panel. Accordingly, the Panel rejected the Department's argument based upon the operation of s 65A.

The arguments of the parties

1. It is argued by the Department before me that this reasoning betrays error of law on the face of the record and jurisdictional error by way of constructive failure to exercise jurisdiction.
2. Dr Kaur responds that, properly understood, Dr Martin's reports did not engage s 65A so that, whether or not a decision under that section was one for the Commission and not for an approved medical specialist was correct, any error in that regard was not dispositive of the medical appeal. Alternatively it was argued that the Appeal Panel's decision on that question of law was correct.
3. The Department also said that the Approved Medical Specialist had entirely failed to consider the issue of whether the injury was a secondary psychological injury. They argued that the Approved Medical Specialist's failure to consider that matter resulted in a denial of natural justice in as much as he had failed to consider an argument seriously advanced by the Department and appearing on the papers provided for his consideration in undertaking the assessment.
4. Dr Kaur joined issue on this matter.

Decision

1. Dr Martin's reports, properly understood, did not give rise to any question under section 65A of the 1987 Act. The matters which I have summarised from his report and those passages I have quoted are only examples of other statements in the reports to the same or similar effect. They raised a question about whether any proportion of the whole person impairment assessed as resulting from Dr Kaur's psychological injury was due to any previous injury, or pre-existing condition or abnormality. As I have said, the Approved Medical Specialist decided that issue in favour of the Department. Because of the difficulty of making an assessment of the contribution from those other matters, he adopted the statutory assumption of 10 per cent for the purpose of the deduction: s 323 (2) of the 1998 Act.
2. Dr Martin's reports do not raise the question whether Dr Kaur's psychological injury is a secondary psychological injury. I have come to this conclusion because I am of the view that the definition of secondary psychological injury in s 65A (5) of the 1987 Act should be read as meaning a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical work related injury. That is to say, a physical injury within the meaning of s 4 of the 1987 Act. This conclusion follows from a consideration of s 65A as a whole. It is quite clear that where "injury" appears in the phrases, "secondary psychological injury", "primary psychological injury" and "physical injury" it is referring to an injury within the meaning of s 4 in respect of which compensation is, but for the provision of s 65A, otherwise payable. One needs to read the 1987 and 1998 Act together as forming part of a single scheme in relation to workers' compensation. Approaching the matter in this way it is clear to me that s 65A of the 1987 Act and s 323 of the 1998 Act, albeit working in harmony as part of a single scheme, have different work to do.
3. Accordingly, I am not persuaded that the Appeal Panel made the first error contended for by the Department. I should say, however, that it follows from this reasoning that if the Appeal Panel made an error of law in its expression of legal opinion at [37], that error of law was not dispositive of the appeal.
4. Given that I am of the view that the particular question of law does not arise, it perhaps is unnecessary for me to express any opinion about the correctness of the Appeal Panel's legal view. However, given the detailed argument that was addressed to me by counsel, and lest the matter go on appeal, I should point out that in my judgment, the question of whether an injury is a secondary or primary psychological injury is one for the Commission to determine and not one that arises as part of a medical dispute as defined by s 319 of the 1998 Act. In my opinion this follows from the judgment of the Court of Appeal in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [109] - [111] by Emmett JA, with Meagher and Ward JJA agreeing. At [111] his Honour said: "It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act [1987 Act]. The Commission must always determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury. It is also the function of the Commission to determine by whom any compensation is payable. Jurisdiction is conferred on the Commission by s 105 of the Management Act [1998 Act]. However, that jurisdiction is subject to the restriction contained in s 65(3) in the Compensation Act [1987 Act], which precludes the Commission from awarding permanent impairment compensation if there is a dispute about the degree of impairment, unless the degree of impairment has been assessed by an approved medical specialist. The fact that the medical dispute includes a dispute as to the degree of permanent impairment of a worker as a result of an injury is consistent with the entitling provision of s 66 of the Compensation Act [1987 Act] in conferring an entitlement to receive compensation if the worker receives an injury that results in permanent impairment. The degree of permanent impairment that results from an injury is to be assessed as provided in Pt 7 of Ch 7 [of the 1998 Act]." [Original emphasis]
5. Looking at the language of s 65A(1), as matter of construction, it is, to adopt Emmett JA's phrase, "a disentitling provision". This is made clear in my view by the language "no compensation is payable" at the outset of s 65A (1). Similar language appears in s 9A and s 11A which are clearly recognised as "disentitling provisions". It is true that s 65A is not found in a division dealing with general liability to receive compensation, as s 9A and s 11A are. Nonetheless, the language of s 65A is concerned with substantive rights rather than questions of the process of the quantification of the entitlement to monetary compensation dealt with in the other provisions of Division 4 of part 3 of the 1987 Act.

Decision on the second question

1. Turning to the second substantial ground of attack on the legality of the appeal panel's certificate, I am of the view that there was no error in the Approved Medical Specialist's treatment of the opinions of Dr Martin. In my view, reading his certificate as a whole, he dealt fairly with the issues that Dr Martin had raised. Even if I am wrong about this there are in my mind other reasons the second ground has not been made out. Given that there has been an appeal to the Medical Panel, the question for this Court is not about the certificate issued by the Approved Medical Specialist. Rather, it is about the legality of the decision of the Appeal Panel: See Wishart v Fraser [1941] HCA 8; 64 CLR 470 at 478 and Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [20],[24] and [54]-[56].
2. My reasons for concluding that the Approved Medical Specialist did not fall into the error of law in this regard are slightly different to those expressed by the Panel. In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]: "The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or 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 perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."
3. Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that: "The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law."
4. Bearing that requirement in mind, the Medical Appeal Panel were correct to decide that the Approved Medical Specialist's statement of his reasons for the certificate he provided disclosed no error of fact or of law.
5. I am not persuaded that the Department has made out jurisdictional error or error on the face of the record in this case.
6. Accordingly I order that the summons filed on 16 October 2015 is dismissed.

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