Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor

Supreme Court of NSW|2006-09-14|Before: Adams J

Introduction 1 The plaintiff was an officer of the Department of Corrective Service who was assaulted in October 1999 whilst working at the Lithgow Correctional Facility. He was subjected to a terrifying attack by four inmates that might well have had lethal consequences. In the result, he only needed, so far as physical injury is concerned treatment for lacerations, bruises and dislocated fingers. There were psychological consequences also, the extent of which is the controversy lying at the centre of this litigation. 2 On 17 January 2003 the plaintiff had made filed an Application to Resolve a Dispute (the first application) claiming compensation for the psychological injury suffered by him in the course of his employment. This application attached reports from Dr Desmond Barrow, Dr Julian Parmegiani and Mr Adrian Robinson (a psychologist), who interviewed the plaintiff on three occasions in mid 2001 and the records of the Lithgow District Hospital. On 4 July 2005 a fresh application (the second application) was made whilst the application of January 2003 was outstanding. (A baffling explanation for this course of action was given but fortunately, I do not need to deal with it.) The stage was thus set for confusion, a matter to which I shall return and which I think lies at the heart of this case. Referral to an Approved Medical Specialist 3 It appears that no referral was made to any Approved Medical Specialist as provided by the Workplace Injuries Management and Workers Compensation Act 1988 (the Act), pursuant to the first application. Following the second application, however, the question of the degree of "whole person impairment" was referred for assessment to Dr Robert Gertler, an Approved Medical Specialist. Dr Gertler found that the plaintiff was suffering from chronic post-traumatic stress disorder fluctuating in intensity and sensitive to stressors both within and outside the workplace. However, the effect of his assessment of the plaintiff's whole person impairment at 5% was, if accepted, that he was denied any compensation by virtue of s65A(3) of the Workers Compensation Act 1987 which, in substance, provides that no compensation is payable for psychological injury unless the degree of permanent impairment is at least 15%; nor is he able to get compensation for pain and suffering under s67 of that Act, which requires a degree of permanent impairment of at least 10%. 4 As it happened, following the assault of October 1999 the plaintiff consulted Mr Mark Baddeley, a registered psychologist, for treatment. Mr Baddeley provided a relatively brief report to the plaintiff's solicitors on 12 July 2004 stating his opinion that the plaintiff was suffering from post-traumatic stress disorder having a severe impact on his functioning. Mr Baddeley concluded that Mr Tattersall was suffering from a 20% permanent impairment based on the WorkCover guides for the evaluation of permanent impairment. That report was attached to the second application and, in the normal course, should have been sent to Dr Gertler, together with any other medical or documentary evidence, for him to consider for the purposes of his assessment. 5 Evaluation of Mr Baddeley's report was of course a matter for medical judgment. One of the matters that would, I think, be likely to have given it particular significance is that Mr Baddeley had not merely been consulted by the plaintiff on one occasion but had been regularly and continuously providing psychological treatment.

The plaintiff's appeal 6 On 16 December 2005 the plaintiff appealed against the Medical Assessment Certificate of Dr Gertler pursuant to s327 of the Act, which (in part) states - "(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 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." 7 The grounds relied on were those specified in paragraphs 327(b) and 327(d). A statement of the grounds of appeal referred to a number of asserted omissions in the process adopted by Dr Gertler, such as failing to take an adequate history, basing his report on selective documents and failing to fully examine and give reasons for the conclusions. However, this appeal rests upon two other specified grounds of appeal as follows - 1. The Commission failed to supply the report of Mark Baddeley, psychologist dated 12 July 2004 to the AMS, being the report upon which the applicant brings this claim.

The AMS failed to consider the report of Mark Baddeley dated 12 July 2004.

The Registrar's rejection of the grounds of appeal 8 The Registrar concluded that it did not appear that at least one of the grounds of appeal specified in s327(3) existed. The reasons for the decision of the Registrar state - "5. The appellant asserts that the Commission failed to provide the AMS with the report of Mr Mark Baddeley, psychologist dated 12 July 2004. However, a perusal of the medical assessment certificate does not reveal this to be the case as the AMS clearly reefers to Mr Baddeley as the worker's treating psychologist in the history obtained. The AMS was only required to list the medical reports that were before him as stated in paragraph 2, page 1 of the medical assessment certificate. I have the benefit of examining the contents of the medical brief sent to the AMS and confirm that the Application to Resolve a Dispute and all supporting documents were sent to the AMS."

The other grounds of appeal were dismissed for reasons that do not call for comment. 9 It will immediately be noted that this paragraph deals only with whether the report of Mr Baddeley was sent to Dr Gertler but not with the contention he did not consider it. Of course, there was also the implicit question whether, the report having been sent, he actually received it. The paragraph also refers to only one application whilst, as I have pointed out, there were two, only one of which attached the report of Dr Baddeley. 10 The assessment certificate of Dr Gertler has been tendered before me. The certificate takes the form of setting out as headings the matters that must be or were noted and considered, including for example, "Details of Matters Referred for Assessment", "Worker's Details", "History Relating to the Injury", "Findings on Physical Examination", "Details and Dates of Special Investigations" ("not undertaken", "Evaluation of Permanent Impairment", "The Facts on which the Assessment is Based, "Reasons for Assessment" and so on. Under the penultimate heading the certificate states - "The facts on which I have based my assessment of the impairment are -- the history obtained from Mr Tattersall, the documents provided, and my findings on examination."

It is obvious that disclosure of "the documents provided" is of crucial importance for understanding the matters that Dr Gertler took into account. 11 The Certificate, accordingly, specifies the following - "2. Evidence Documentary Evidence The following material reports were referred by the Commission for this assessment: For the Applicant: · Medical Reports of Dr DM Barrow, the Applicant's previous treating general practitioner dated 4 February 2000, 16 January 2001, 20 July 2001, and Dr S Jewel, current treating general practitioner, complete record from 31 August 2004 to 29 July 2005. · Medical Report of Dr J Parmegiani, the Applicant's assessing psychiatric specialist dated 10 March 2000, 14 June 2002 and 28 June 2002. · Other - not applicable. For the Respondent: · Medical Reports of Dr RD Lewin dated 27 November 2001 and 22 August 2002, Dr K Akkerman dated 3 September 2002 (x2) and 19 September 2002 and Dr PN Snowdon dated 10 February 2005 (x2), the Respondent's assessing psychiatric specialists. · Other - not applicable. 12 Not only, does it appear, assuming the accuracy of this list, that Dr Gertler did not have the report of Mr Baddeley; neither did he have the reports of Mr Robinson or, for that matter, the hospital records. It is true that the doctor refers, in the context of taking the plaintiff's history, to the fact that the plaintiff saw "his treating psychologist Mr Baddeley as required, generally every several weeks". But this cannot found an inference that Dr Gertler had Mr Baddeley's report in the absence of it being specified in that place particularly identified in his certificate as the appropriate place for identifying the documentary material relied upon. A further reason for concluding that Mr Baddeley's report was not seen by Dr Gertler is the fact that the doctor commented briefly on "the other medical opinions and finding submitted by the parties and, where applicable, the reasons why my opinion differs" dealing with all the reports mentioned as documentary evidence received by him but not mentioning Mr Baddeley's report. Mr Baddeley's report was undoubtedly important and significant. Moreover, Mr Baddeley's conclusion was markedly at odds with that of Dr Gertler. It may well be, of course, that Dr Gertler thought that perhaps the tests applied by Mr Badderley were inappropriate for the relevant purpose or that he had misunderstood some aspect either of the history or of the relevant medical considerations. But I find it impossible to think that had he had Mr Baddeley's report before him with a conclusion with which he so substantially disagreed, that he would not have stated even briefly the reasons why he had come such a different conclusion. In the alternative, if Dr Gertler indeed did have Dr Baddeley's report his apparent failure to consider it would, I think, amount to "a demonstrable error". 13 As I have already pointed out, the Registrar said that he had examined the contents of the medical brief sent to Dr Gertler. It is surprising that the Registrar did not assert in terms that the report of Dr Baddeley was sent to Dr Gertler. Furthermore, confirming that the application together with all supporting documents were sent is, in the present circumstances, problematical since there were two applications with two sets of supporting documents. Were it not for the clear and to my mind inevitable inference to be drawn from Dr Gertler's certificate that he did not see Mr Baddeley's report, I would have readily interpreted the Registrar's reasons as meaning that Mr Baddeley's report had indeed been sent. However, having regard to the ambiguity in the Registrar's reasons to which I have referred and what I have described as the inevitable inference from Dr Gertler's certificate, I am minded to think that the Registrar was not willing to state categorically that Mr Baddeley's report in fact was sent to Dr Gertler. In the end, this may not matter very much, since if it is true that Dr Gertler did not see for some reason or failed to consider (unlikely I think) Mr Baddeley's report then it is demonstrated that Dr Gertler erred in supposing that he had all the documentary material provided by the parties, in particular, the applicant. 14 Given the significance of the Medical Assessment Certificate by the Appointed Medical Specialist in the scheme of the Act, which is designed amongst other things to avoid hearings and to dispose of applications by non-participatory decision making, a failure to consider relevant and significant material provided by one of the parties must be regarded as a significant error. Indeed, it seems to me that it amounts to a denial of natural justice.

The relief sought 15 It is important to note that the proceedings in this Court are not and cannot be by way of appeal from the decision of the Registrar. The plaintiff seeks relief from that decision under s69 of the Supreme Court Act 1970. The position has been usefully stated (if I may respectfully say so) by Hoeben J in Zuanic v Gypro-Tech (Aus) Pty Ltd (in liq) (2006) 66 NSWLR 206 at 217ff as follows - "[31] The principles are clear. Their application is less so. Craig v South Australia (1995) 184 CLR 163 at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals: If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore the relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. [32] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] clarified the kinds of error identified in Craig : Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as a decision maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. [33] Relief may be granted in the case of error of law on the face of the record where the face of the record includes the reasons expressed by the tribunal for its ultimate determination ( Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275 at [28], Vegan at [39], s 69(4) Supreme Court Act 1970.) [34] Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-119; Bruce v Cole (1998) 45 NSWLR 163 at 183-184, Vegan at [41]. 16 The role of the Registrar is usefully summarised, if I may say so respectfully, by Johnson J in Summerfield v Registrar of Workers Compensation Commission (NSW) [2006] NSWSC 515 as follows - "[46] The test to be met to satisfy the second sentence in s.327(4) appears to be a relatively slender one. Exercising the gatekeeper or filtering function, the Registrar will examine the documents to see if it appears, or seems to be the case, that at least one of the specified grounds for appeal in s.327(3) exists. The Registrar, of course, is not undertaking or determining the appeal. Nevertheless, it is the task of the Registrar under s.327 to examine the documents provided in support of the appeal to see whether it appears, or seems to be the case, that a specified ground of appeal exists." 17 As Hislop J observed in Riverina Wines v Registrar of the Workers Compensation Commission of New South Wales and Ors [2005] NSWSC 1260 at [22] "the application to the Registrar is in the nature of an application for leave to appeal" and was described by Latham J in Ingham Enterprises v Iogha and Ors [2006[ NSWSC 456 at [22] "as of a very limited and restricted kind". In my view, if it appears to the Registrar that one of the grounds of appeal, otherwise within the statutory remit, is arguable, then it is the Registrar's duty to open the gate and permit the appeal to proceed. 18 In this case the Registrar erred in dealing the appellant's ground of appeal to the effect that the Commission failed to provide the AMS with Mr Baddeley's report and disposed of this contention by I have held to be a misunderstanding of Dr Gertler's certificate and by his own examination of the contents of the "medical brief sent to the AMS". On the assumption that the Registrar intended to convey that the medical brief contained the report of Dr Baddeley, this would indeed by a complete answer to the contention which paragraph 5 of the reasons is directed. However, it does not at all deal with the ground of appeal that the Appointed Medical Specialist failed to consider the report of Mr Baddeley. For the reasons that I have already given I think that it is inescapable that this contention is made out and, if made out, is a demonstrable error within the meaning of s327(3)(d). Even if this conclusion not be inevitable, it is certainly more than merely arguable and hence should have lifted the catch on the gate to the plaintiff's appeal. The Registrar erred, accordingly, in concluding that the fact (If it was the fact) that Mr Baddeley's report had gone to Dr Gertler meant that Dr Gertler had considered the report. Accordingly, although he answered one of the questions posed by the grounds of appeal, he did not answer another and even more crucial question. Once it be accepted, moreover, that Dr Gertler's certificate was ambigiuous in the sense that it was uncertain whether he received (though it might have been sent to him) or considered Mr Baddeley's report, it was not appropriate for the Registrar to determine that question if it was fairly arguable that neither of these events had occurred.

Conclusion 19 In my opinion, it was an error of law on the face of the record for the Registrar not to have considered the ground of appeal as to whether Dr Gertler considered Mr Baddeley's report. In so far as he might have considered it, the implicit conclusion that Dr Gertler received and considered Mr Baddeley's report is "illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds": see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003 198 ALR 59; (2003) 77 ALJR 1165; Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [59]. Even if the Registrar implicitly concluded that Dr Gertler received and considered Mr Baddeley's report and even if this was a reasonable conclusion in all the circumstances, to have implicitly found that the contention on this point as asserted in the plaintiff's ground of appeal was not arguable is so unreasonable as to constitute an error of law going to the Registrar's exercise of the statutory power reposed in him by s327(4) of the Act. 20 Accordingly I make the following orders - 1. The decision of the first defendant of 17 February 2006 in proceedings between the plaintiff and the second defendant in matter number WCC 10648 of 2005 is set aside.

The first defendant shall refer the application to appeal the decision of the Approved Medical Specialist to a Medical Appeal Panel pursuant to s327 of the Workplace Injuries Management and Workers Compensation Act 1988.

The second defendant is to pay the plaintiff's costs. **********

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.

CITATION : Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor [2007] NSWSC 453

Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Ingham Enterprises v Iogha and Ors [2006[ NSWSC 456 CASES CITED : Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003 198 ALR 59; (2003) 77 ALJR 1165 Riverina Wines v Registrar of the Workers Compensation Commission of New South Wales and Ors [2005] NSWSC 1260 Summerfield v Registrar of Workers Compensation Commission (NSW) [2006] NSWSC 515 Zuanic v Gypro-Tech (Aus) Pty Ltd (in liq) (2006) 66 NSWLR 206

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