Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson - [2016] NSWSC 101 - NSWSC 2016 case summary — Zoe

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

[2016] NSWSC 101

Supreme Court of NSW|2016-02-01

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Source facts

Court

Supreme Court of NSW

Decision date

2016-02-01

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

Judgment

HER HONOUR: The plaintiff seeks judicial review of a decision of an appeal panel constituted pursuant to s 328 of the Workplace Injury Management Act 1998 (NSW).
By summons filed 17 September 2015, the plaintiff seeks firstly, an order in the nature of certiorari setting aside or declaring invalid the decision of the second defendant made on 19 August 2015, confirming the medical assessment certificate of an Approved Medical Specialist ("the decision") purportedly pursuant to s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM Act"); and secondly, an order in the nature of mandamus remitting the application to the registrar for reallocation of the matter to an Appeal Panel for determination of the matter according to law.
The plaintiff is the Trustees of the Roman Catholic Church for the Diocese of Bathurst ("the Trustees"). The first defendant is Rodney Dickinson ("Mr Dickinson"). The second defendant is the Medical Appeal Panel of the Workers Compensation Commission of New South Wales ("the Appeal Panel"). The third defendant is the Registrar of the Workers Compensation Commission of New South Wales ("the Registrar"). The second and third defendants have filed submitting appearances.
The Trustees relied upon the affidavit of Thomas Fitzgerald Murray sworn 19 October 2015 and the affidavit of the first defendant Rodney Dickinson affirmed 13 January 2016. The first defendant relied upon two affidavits of his solicitor Sherilyn Dunkley sworn 5 November 2015 and 22 January 2016.

[2]

The relevant legislation

It is convenient that I give a brief overview of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
A Registrar of the Workers Compensation Commission may refer a medical dispute to an Approved Medical Specialist at the request of a party to a medical dispute: s 321(1). Section 319 defines a medical dispute as follows: "In this Act: medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: … (c) the degree of permanent impairment of the worker as a result of an injury, …"
An assessment of permanent impairment must be reduced for any previous injury, pre-existing condition or abnormality: "323 Deduction for previous injury or pre-existing condition or abnormality (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter. (4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section. (5) ..."
Sections 327 and 328 set out the grounds and the procedure for bringing an appeal against a medical assessment: "327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds: (a) … (b) … (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. … 328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can provide for the procedure on an appeal. (3) … (4) … (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. (6) …"

[5]

The second decision of the AMS

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%.
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%.
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.

[6]

The appeal

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%.
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.

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".
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.
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.

[7]

Appeal Panel Decision

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.
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.]
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."
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%.

[10]

Submissions

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.
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.
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").
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.

[11]

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

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.
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.
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.
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.'"
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.

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

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