Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson

Background

1. On 1 September 2008, the Trustees employed Mr Dickinson to conduct groundskeeper and handyman duties at a school ground and its surrounding premises in Orange, New South Wales. The school was managed by the Trustees. On 2 September 2010, Mr Dickinson experienced an acute onset of pain in his neck and left shoulder whilst he pulled a cherry picker machine to put displays on some high walls in the school's hall. He had no pre-existing shoulder or neck symptoms. Two days later he experienced pain and a "pins and needles" sensation radiating down his left arm and into his index and middle fingers.
2. After his injury, Mr Dickinson attended upon a number of medical practitioners. His treating general practitioner, Dr Thim Chen, first referred him for an ultrasound examination of the left shoulder. Dr Chen also requested a CT scan of the neck, which was conducted and reported on 13 October, 2010.
3. Dr Chen referred Mr Dickinson to a rheumatologist, Dr Toh, who consulted with Mr Dickinson on 27 October 2010. Dr Toh ordered an MRI scan of his cervical spine which was conducted on 20 December 2010. On 12 January 2011, a CT guided injection into Mr Dickinson's cervical spine was carried out on the recommendation of Dr Toh. On 3 February 2011, this procedure was repeated. Neither procedure provided Mr Dickinson with relief.
4. Dr Toh referred Mr Dickinson to a neurosurgeon. On 11 May 2011, Mr Dickinson attended a neurosurgeon, Dr Rodney S Allen, who advised him to undergo an anterior cervical discectomy at three levels and spinal fusion.
5. On 17 October 2011, Mr Dickinson was reviewed by Dr Paul Darveniza, consultant neurologist, who observed weakness of the left triceps, weakness of the left wrist dorsiflexion and weakness of the left finger extension.
6. On 5 June 2013, Mr Dickinson underwent a CT scan of his cervical spine in Orange on referral by Dr Chen. A summary of findings made by Dr Bryan Khoury was provided to Dr Chen.

The first decision of the AMS

1. There was a dispute between the parties concerning Mr Dickinson's need for future surgery. The question of whether the treatment proposed by the neurosurgeon, Dr Allen, was necessary as a result of the injury was referred to an Approved Medical Specialist. Dr Michael Ryan was appointed as the Approved Medical Specialist to carry out that task. On 7 July 2014, he conducted an examination of Mr Dickinson. On 15 July 2014, he issued a medical assessment certificate and provided written reasons. Dr Ryan noted that an operation was "justified and likely to benefit Mr Dickinson" based on the report of the neurosurgeon, Dr Allen. However, Dr Ryan concluded that he was unable to give a specific opinion on the details of the operation required because Dr Allen's report did not contain specifics of the operation he proposed for Mr Dickinson nor did it contain a record of a clinical examination or reasoning.
2. Dr Ryan, the Approved Medical Specialist, referred to a copy of the CT scan report dated 5 June 2013 in his reasons. Dr Ryan's name and address appeared at the top of the scan, suggesting he was sent a copy of the report. Mr Dickinson had never consulted with or received medical treatment from Dr Ryan, nor does he know how the CT report came to have Dr Ryan's details on it. (Affidavit 13/1/16 paras [6], [9].) It is common ground between the parties that Dr Ryan had never treated Mr Dickinson.
3. On 27 October 2014, following a conciliation/arbitration conference, the parties agreed that the question of the degree of permanent impairment should be referred to an Approved Medical Specialist. The arbitrator, in its referral to the Registrar, set out the matters for assessment and requested that the Registrar appoint a suitable Approved Medical Specialist.

The second decision of the AMS

1. Once again Dr Ryan was appointed as the Approved Medical Specialist. On 3 February 2015, Dr Ryan examined Mr Dickinson. On 12 February 2015, he provided a medical assessment certificate in accordance with s 325 of the WIM Act. Dr Ryan assessed Mr Dickinson's injury as "left-sided neuropathy due to compression of the left C7 nerve root by degenerative change and a disc protrusion in the cervical spine". He assessed Mr Dickinson's whole person impairment ("WPI") at 15%, corresponding with DRE cervical Category III in accordance with chapter 15 of the AMA Guides 6. Dr Ryan considered that a 1% "aliquot" was also appropriate for limitation of activities of daily living resulting from the injury. Therefore Mr Dickinson's overall WPI was assessed at 16%.
2. Dr Ryan noted that a 1/10th deduction was warranted for Mr Dickinson's pre-existing symptoms as documented in his family doctor's notes on 17 March 2008, 16 April 2008 and 19 May 2008. (The contents of this doctor's notes are not set out in Dr Ryan's medical assessment certificate of 12 February 2015; however the parties did not dispute the existence of the pre-existing condition, but rather disputed the quantum of the reduction.) In the Table 2 assessment, Dr Ryan applied the 1/10th deduction separately to the WPI resulting from the cervical spine injury (13.5%, which was rounded up to 14%) and the WPI resulting from the limitation of activities of daily living (0.9%, which was rounded up to 1%) before combining the numbers, resulting in a total WPI of 15%.
3. It should be noted that the assessment of 15% is important for two reasons. Firstly, section 151H of the Workers Compensation Act 1987 (NSW) prohibits the payment of any damages to a worker unless he or she is determined to have a permanent impairment of at least 15%. Secondly, it is conclusively presumed to be correct in any proceedings before a court or the Workers Compensation Commission as to the worker's degree of permanent impairment: s 326(1) WIM Act.

The appeal

1. On 17 February 2015, the Trustees lodged an application to appeal the medical assessment certificate of Dr Ryan, the Approved Medical Specialist, dated 12 February 2015. On 19 August 2015, the Appeal Panel revoked Dr Ryan's certificate and ordered that a fresh medical assessment certificate be issued. The new certificate assessed Mr Dickinson's WPI at 15%.
2. The Trustees' application to appeal relied on four grounds contained in its submissions, relying upon two of the grounds contained in s 327 of the WIM Act, namely that the assessment was made on the basis of incorrect criteria (s 327(3)(c)) and that the medical assessment certificate contained a demonstrable error (s 327(3)(d)). The grounds of appeal are:

• The decision contained demonstrable error and was based on incorrect criteria because Mr Dickinson was placed into DRE cervical category III and inadequate reasons were provided for this;
• The decision contained demonstrable error by deducting only 10% from the assessment of WPI for Mr Dickinson's pre-existing injury, abnormality or condition in accordance with s 323 of the WIM Act;
• The decision contained demonstrable error by allowing a 1% loading for the impact of the injury on Mr Dickinson's activities of daily living; and
• The decision contained demonstrable error and was based on incorrect criteria because Dr Ryan failed to apply the s 323 deduction to the whole of the assessment, as opposed to applying it to each individual component of the assessment.

1. In their Application to Appeal, the Trustees, in answer to the questions, "4.3 Do you request that the Worker be re-examined by an AMS who is a member of the Appeal Panel?" and "4.4 Do you request the opportunity to present oral submissions to the Appeal Panel?", responded "No".
2. On 18 March 2015, Mr Dickinson's solicitors filed a Notice of Opposition to Appeal Against Decision of Approved Medical Specialist together with submissions. Mr Dickinson indicated on this form that the appeal could be decided "by an Appeal Panel solely on the basis of the written application and any written notice of opposition lodged". Notably, Mr Dickinson agreed with the Trustees with respect to their fourth ground of appeal, namely that "the method of calculation of the 1/10th deduction is not appropriate and that such deduction should be made [from] the total assessments for impairment combined with [activities of daily living]." The Appeal Panel's approach on this issue is correct.
3. The Registrar was satisfied that at least one of the grounds for appeal was made out in accordance with s 327(4) of the WIM Act and referred the appeal to an Appeal Panel for review of the original medical assessment.

Appeal Panel Decision

1. The Appeal Panel was comprised of arbitrator J Wynyard and Approved Medical Specialists Drs R Pillemer, an orthopaedic surgery specialist, and J Dixon-Hughes, a general surgery specialist. On 19 August 2015, the Appeal Panel determined that a re-examination of Mr Dickinson was required. A re-examination had been arranged with one of the Appeal Panel members, Dr R Pillemer, on 12 June 2015.
2. The Appeal Panel provided the following reasons for concluding that a re-examination was required: "21. We note with some concern that the claimant in this matter had been a patient of the AMS, having been referred by Dr Thin Chen. The CT scan taken on 5 June 2013 was done so at the AMS's behest when he was treating the claimant. 22. This fact was not adverted to by either the appellant employer or the claimant and we infer that both parties were content nonetheless for the AMS to continue to sit as the AMS. 23. Notwithstanding the lack of objection from either side, the Panel would note that by doing so the AMS has created the perception of bias. It would seem that this fact escaped both the AMS and the parties involved. The failure by the AMS to disqualify himself constitutes a demonstrable error. Although an AMS is not in a curial position, his/her opinion is conclusively presumed to be correct by virtue of s.326(1) of the 1998 [WIM] Act and will inevitably become the basis for an order within the Commission, which does follow a curial procedure. 24. It is not enough that a person in the position of an AMS is impartial, he must be seen to be impartial. (Livesey v Bar Association NSW [1983] HCA 17) The test is whether one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or prejudgment. In these circumstances we feel such a reasonable apprehension might well be entertained. 25. The only alternative is to re-examine the claimant to dispel this perception. …' [My emphasis added.]
3. The Appeal Panel adopted the findings of the clinical examination conducted by Dr Pillemer, in which he confirmed Dr Ryan's examination results and finding that Mr Dickinson's injury placed him in DRE cervical category III, corresponding with a WPI of 15%. The Appeal Panel noted that Mr Dickinson's employer's medical specialists allowed a 1/10th deduction for prior injury and that "No basis has been demonstrated for enlarging that reduction."
4. Finally, the Appeal Panel found that Dr Pillemer's report contained a more comprehensive history than Dr Ryan's with respect to Mr Dickinson's activities of daily living. Noting the restrictions experienced by Mr Dickinson with respect to vacuuming and washing around the house and going shopping, the Appeal Panel determined that a WPI allowance of 2% was appropriate, an increase of 1% on Dr Ryan's finding. In the result, the Appeal Panel concluded that Mr Dickinson's injury resulted in a 17% WPI which, when reduced by 1/10th, yielded a total WPI of 15%.

Judicial review

1. The Trustee seeks a judicial review on two grounds, first, that the Appeal Panel exceeded its jurisdiction, misunderstood the nature of the task it was to perform and/or misapplied the law to the facts when it went beyond the grounds of appeal on which the appeal was made, in breach of s 328(2) of the WIM Act; and secondly, in the alternative, that if the appeal Panel had the power to determine and address its own error, and to direct a medical examination by one of its members without first finding a relevant error as particularised in the pleadings, the Appeal Panel failed to warn the parties that it intended to do so, or to seek their views about doing so, thus denying the parties natural justice. I will now deal with the first ground. I will address the second ground if necessary.

(1) Whether the Appeal Panel exceeded its jurisdiction, misunderstood the nature of the task and/or misapplied the law to the facts

Submissions

1. The Trustees contended that the Appeal Panel erred in finding that Dr Ryan's MAC contained a "demonstrable error" within the meaning of s 327(3)(d) because the apprehension of bias on the part of Dr Ryan was not pleaded in the Application to Appeal nor the submissions filed by the Trustees in the Workers Compensation Commission, as required under s 328(2). I accept that the Trustees did not submit to the Appeal Panel that a further medical examination was required to address and correct the errors which had been alleged. According to the Trustees, the Appeal Panel had no power to find, "address" and "correct" the purported error by allowing a member of the Appeal Panel to conduct a further clinical examination and take a further history.
2. The Trustees also submitted that the only reason proffered by the Appeal Panel to support their decision to re-examine Mr Dickinson was due to the apprehension of bias of the Approved Medical Specialist. The Appeal Panel did not identify the need for a re-assessment on any other basis. The error that was identified, namely the miscalculation relating to the deduction for a pre-existing condition, simply required a re-calculation by the Appeal Panel. Because the finding of error on the basis of apprehended bias was ultimately "illusory", the Appeal Panel's decision to re-examine Mr Dickinson was made in error.
3. The Trustees relied on the decision of Davies J in NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 ("NSW Police Force").
4. Mr Dickinson submitted that the Appeal Panel was justified in re-examining him because it had identified a number of errors in its preliminary review of the materials and perceived inconsistencies in histories provided by the various reporters considered in Dr Ryan's medical assessment certificate. The Appeal Panel needed to satisfy itself as to the proper history of Mr Dickinson by undertaking a re-examination. Accordingly, the apprehension of bias was not the primary basis for ordering a re-examination, although it was submitted that "it may have provided an accompanying re-assurance". Re-examination might have been conducted to "cure" any possible perception of bias accompanying the inconsistent histories received by the Appeal Panel and the erroneous calculation performed. Addressing this perception of bias was part of the Appeal Panel's fulfilment of the objectives of the Workers Compensation Commission under s 22 of the WIM Act.

Consideration of NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792

1. In NSW Police Force, Davies J considered the application of s 328(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) in the context of a decision made by an Appeal Panel constituted under s 328 to direct a further assessment in the course of an appeal. The Appeal Panel ordered the third defendant, an employee of the NSW Police Force, to undergo a re-assessment before finally determining that a demonstrable error could be found in the medical assessment certificate.
2. The plaintiff in NSW Police Force submitted four grounds of appeal, two of which are presently relevant. Ground (b) asserted that the Appeal Panel erred by directing that the plaintiff undergo an assessment prior to determining a demonstrable error. Ground (d) asserted that the Appeal Panel erred by not limiting its review to the grounds of appeal on which the appeal was made.
3. So far as ground (b) is concerned, Davies J held (at [33]) that 'if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment.' Therefore an order for re-assessment by an Appeal Panel can only be made once the Appeal Panel determines that the medical assessment certificate contains a demonstrable error.
4. Regarding ground (d), Davies J considered the wording of s 328(2), namely that 'the review is limited to the grounds of appeal on which the appeal is made'. Noting the history of the provision, his Honour rejected the third defendant's argument that the "grounds of appeal" refers to the "grounds for appeal" listed in s 327(3). Instead, his Honour stated: "[49] … Noting that the warning on the [application to appeal] form appears to give a discretion where submissions are not filed with the application whereas the [WorkCover] Guidelines do not, it is apparent that the submissions are, nevertheless, an integral part of the identification of the grounds of appeal. In that way if a party identifies in respect of a ground (d) appeal particular demonstrable errors, the appeal should be regarded as being confined to those matters. The grounds of appeal taken with the submissions will constitute 'the grounds of appeal on which the appeal is made'. In my opinion, that result is most consistent with what the amendments in 2010 must be taken to have intended. ... [52] In any event the present case must be determined on a proper construction of s 328(2). In my opinion the phrase 'the grounds of appeal on which the appeal is made' is directed to greater particularity than simply categorizing the appeal as being within one or more of the grounds in s 327(3). That is the purpose of requiring 'submissions… detailing the grounds of the appeal.'"
5. Davies J quashed the medical assessment certificate and remitted the matter back to the Registrar of the Workers Compensation Commission for determination according to law on the basis that the Appeal Panel erred by finding demonstrable error on a basis that was not raised in submissions.

Consideration

1. The appeal panel ordered an assessment of Mr Dickinson on the basis that the only "alternative" to dispel any perception of bias on the part of Dr Ryan was to re-examine the claimant. This approach was not open to the Appeal Panel because Dr Ryan had never been Mr Dickinson's treating physician. Thus the Appeal Panel proceeded on a wrong basis. The demonstrable error that the Appeal Panel did find, namely that Dr Ryan had incorrectly applied the deduction for pre-existing injury, was agreed between the parties and did not warrant a re-examination. Instead, the Appeal Panel was simply required to re-calculate the WPI by applying the deduction to the total WPI. By saying "The only alternative is to re-examine the claimant to dispel this perception [of bias]", the Appeal Panel makes it clear that the only reason it ordered the re-examination was to dispel the apprehension of bias.
2. In my view the Appeal Panel misdirected itself by ordering a re-examination of Mr Dickinson. It is therefore unnecessary to determine the second ground that the Appeal Panel failed to afford the parties natural justice.
3. Even if the Appeal Panel's finding that Dr Ryan had treated Mr Dickinson was correct, it is debatable whether it could determine that Dr Ryan had made a demonstrable error because that issue had not been raised in the submissions by either party. Nor were they given an opportunity to address this issue.

Discretion to quash decision

1. Counsel for Mr Dickinson submitted that it would be highly unlikely that a fresh Appeal Panel would find any differently to the current Appeal Panel. In order to exercise my discretion to not quash the decision of the Appeal Panel I need to be satisfied, if the matter is remitted, that a different result could not be produced: see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. I am not satisfied that a different result could not be produced, as an Appeal Panel re-considering the dispute according to law may decide not to undertake a further examination of Mr Dickinson. The error in calculating the overall WPI, as agreed between the parties, merely requires a re-calculation in accordance with s 323(1).
2. For these reasons, it is my view that I should exercise my discretion to quash the decision of the Medical Appeal Panel dated 19 August 2015. I do so and remit the matter to the Workers Compensation Commission for determination in accordance with law.
3. Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff's costs as agreed or assessed.

The Court declares that: 1. The decision of the Medical Appeal Panel in matter number M1-004235/13 made on 19 August 2015 is vitiated by jurisdictional error.

The Court makes an order: 1. In the nature of certiorari removing into the Court the decision of the Medical Appeal Panel in matter number M1-004235/13 made on 19 August 2015 and quashing that decision.

The Court further orders that: 1. Matter number M1-004235/13 is remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law. 2. The first defendant is to pay the plaintiff's costs as agreed or assessed.

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. Decision last updated: 24 February 2016