Wentworth Community Housing Limited v Brennan

Supreme Court of NSW|2018-09-21

Judgment

HER HONOUR: This is a judicial review of a decision made by a delegate of the Registrar of the Workers Compensation Commission of New South Wales dated 21 March 2018, pursuant to s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM Act").
By summons filed 19 April 2018, the plaintiff seeks firstly, an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision of the second defendant dated 21 March 2018 made pursuant to s 327(4) of the WIM Act be quashed or otherwise set aside; secondly, an order pursuant to s 69 of the Supreme Court Act that the second defendant refer the application to appeal the decision of the Approved Medical Specialist ("AMS") dated 9 January 2018 to an Appeal Panel pursuant to s 327 of the WIM Act for determination in accordance with law; and finally, further and/or in the alternative, the matter be remitted by the second defendant to the Workers Compensation Commission for referral to an Appeal Panel constituted under s 328 of the WIM Act for determination in accordance with law. It should be noted that all the relief sought is from the decision of the delegate of the Registrar, and not the AMS.
The plaintiff is Wentworth Community Housing Limited ("Wentworth"). The first defendant is Stephanie Brennan. The second defendant is the Registrar of the Workers Compensation Commission of New South Wales ("Registrar"). The Registrar has filed a submitting appearance.
There are eight grounds of judicial review that can be addressed in four groups. They are, firstly, additional relevant information (Grounds 1 and 3); secondly, incorrect criteria (Ground 4); thirdly, demonstrable error (Grounds 5 and 6); and lastly, demonstrable error of the Registrar (Grounds 7 and 8).

Background

The first defendant was born in July 1961. She is currently 57 years of age.
On 20 July 2010, the first defendant commenced employment with Wentworth as a manager on a full-time basis, working 35 hours per week.
By 26 January 2013, as the result of years of alleged harassment and ill-treatment in the workplace by other managers at Wentworth, the first defendant suffered a psychological injury by way of aggravated Bipolar Affective Disorder Type 2. She claimed compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW). Pursuant to s 65A(1) of the Workers Compensation Act, no compensation is payable in respect of permanent impairment that results from a secondary psychological injury. There is no issue that the first defendant suffered a primary psychological injury. Pursuant to s 65A(3) of the Workers Compensation Act, no compensation is payable in respect of a permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from that injury is at least 15%.
On 1 December 2017, consent orders were entered in the Workers Compensation Commission for referral to an AMS for assessment of permanent impairment for injury pursuant to s 4(b)(ii) of the Workers Compensation Act. The assessment was for aggravation of a constitutional Bipolar Affective Disorder Type 2 with a deemed date of injury on 26 January 2013.
On 7 November 2017, a delegate of the Registrar of the Workers Compensation Commission referred the assessment to a psychiatrist, Dr John J Baker, as the designated AMS.
On 9 January 2018, the Workers Compensation Commission issued a Medical Assessment Certificate ("MAC") that assessed the first defendant's Whole Person Impairment ("WPI") as 24%.
On 7 February 2018, Wentworth made an application to appeal against the decision of an AMS ("the application to appeal").
On 21 March 2018, the Registrar issued the decision refusing an appeal against the AMS pursuant to s 327(4) of the WIM Act.

The statutory scheme

It is convenient that I briefly outline the relevant provisions of the statutory scheme.
Section 4 of the Workers Compensation Act defines "injury". It reads: "4 Definition of "injury" (cf former s 6 (1)) In this Act: injury: (a) means personal injury arising out of or in the course of employment, …"
Section 65A of the Workers Compensation Act contains special provisions for psychological and psychiatric injury. It relevantly reads: "65A Special Provisions for Psychological and Psychiatric 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."
Section 66 of the Workers Compensation Act provides as follows: "66 Entitlement to Compensation for Permanent Impairment (1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act. Note: No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less. (1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury. …"

Relevant provisions of the WIM Act

Chapter 7, Part 7 of the WIM Act provides for medical assessment, including the assessment of the degree of WPI by an AMS and, by way of review, appeal panels. The scheme was designed to take the function of assessment of injury out of the adversary court system: see Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 per Basten JA at [1].
An AMS is appointed under the WIM Act to deal with medical disputes. These are defined in s 319 of the Act to mean: "319 Definitions 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: (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, … (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable."
Section 321 of the WIM Act provides for the referral of a medical dispute for assessment. It reads: "321 Referral of medical dispute for assessment (1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral. (2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute. (3) The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker. …"
Section 322 of the WIM Act relates to the assessment of impairment. It reads: "322 Assessment of impairment (1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose. (2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker. (3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker. Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury. (4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made."
Section 325 of the WIM Act relates to the MAC. It reads: "(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment. (2) A medical assessment certificate is to be in a form approved by the Registrar and is to: (a) set out details of the matters referred for assessment, and (b) certify as to the approved medical specialist's assessment with respect to those matters, and (c) set out the approved medical specialist's reasons for that assessment, and (d) set out the facts on which that assessment is based. …"
Section 326 of the WIM Act concerns medical assessments. It reads: "326 Status of medical assessments (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned: (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c) the nature and extent of loss of hearing suffered by a worker, (d) whether impairment is permanent, (e) whether the degree of permanent impairment is fully ascertainable. (2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings."
Appeals against medical assessments are governed by ss 327 and 328 of the WIM Act. Section 327 reads: "327 Appeal against medical assessment … (3) The grounds for appeal under this section are any of the following grounds: … (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. …"
Section 328 reads: "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) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. …"

The decision of the AMS dated 9 January 2018

On 20 December 2017, the AMS examined the first defendant. The material provided to the AMS was the amended application to resolve a dispute ("the application"), together with attached documents. These documents included the statement of the first defendant dated 11 August 2017. Wentworth provided a reply dated 7 November 2017 ("the reply"), which had attached the surveillance reports dated 27 August 2015 and 11 October 2016, and social media investigation reports dated 13 July 2015 and 12 September 2016.
On 9 January 2018, a MAC was issued.
The matters that were referred to the AMS for assessment were identified at [1] of the MAC as follows: "1. DETAILS OF MATTERS REFERRED FOR ASSESSMENT The following matters have been referred for assessment (s 319 of the 1998 Act): • Date of injury: 26 January 2013 - deemed • Body parts/systems referred: Psychological - aggravation pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 of a constitutional Bipolar Affective Disorder Type 2. • The method of assessment: Whole person impairment."
In relation to the evidence, the AMS stated at [2] of the MAC: "2 EVIDENCE Documentary Evidence The following documents were referred by the Commission for this assessment: • The Amended Application and attached documents • The Reply and attached documents" and the AMS further stated at [9]: "9 THE FACTS ON WHICH THE ASSESSMENT IS BASED The facts on which I have based my assessment of whole person impairment are:- The history I obtained from the applicant, the documentation provided with the referral and the mental state examination I conducted during this assessment." (Original emphasis)
The AMS at [10(c)] referred to the statement of the first defendant and noted the following: "• Stephanie Brennan, statement dated 22 April 2013 … 11. I have a permanent appointment as a senior manager with Wentworth Community Housing Ltd. When I first started working my duties required I work long hours to get the work done. I usually worked from 6am to 6pm Monday to Friday. Because I had to leave the office under the company policy I worked at home. I worked at least 2 to 3 hours when I got home. I also worked weekends. … 14. I found the situation created an excessive workload. In May 2011 I made the first written complaints to the CEO about my workload. 15. I have sent dozens of emails over a long period of time as well as emails to the finance manager."
In the first defendant's latter statement dated 11 August 2018, she responded to the surveillance and media reports. The first defendant stated at [54] to [74]: The email address of Stephanie XXXX is one set up when I registered my ABN. I use a Gmail account for most non-work mail. My current email XXXX. I was a director of Community Child Care (previous job), had my own consulting company Beacon Hill Consulting in which I was based at Australian Services Union National Office and had contracts to provide training and consultancy to different ASU State branches after the federal funding for my position as National Training Coordinator ceased. Further, I have never been director of Mortgage Directive. This is a different Stephanie Brennan; Google searches indicate that she runs a real estate business. Kusang Yeshe related to the Buddhist Centre I was director of, specifically, Kunsang Yeshe Retreat Centre, Blue Mountains. Facebook Posts and Running Fitness: Following my breakdown and Injury in January 2013 I commenced ultra-marathon running - something that many people suffering Bi Polar Disorder do. The intense exercise regime helps with the agitation and depressive moods. My running buddies and coach at Blue Mountains Fitness have helped tremendously by providing emotional and at times even financial support (eg at present my coach allows me free classes as I can't afford them). He stated that: "this is essential for your mental health." My main training partner, Nicole Tziavaris, is a nurse with psychiatric experience and was particularly helpful when I had suicidal ideation during bad episodes of Bi Polar Disorder. I credit my running group as one of my main and most important support networks, particularly as I am rarely able to socialise now. I advise that my Linkedin profile is out of date and I have yet to deactivate me. The ABC news post dated July 2012 discusses in part, the 50/50 houses campaign in which part of my homelessness work was with Wentworth. I have a whole swag of media that I did as part of my job. The Mary Waierford quote of Facebook related to when I received an award for Outstanding Community Leader at ZEST awards. The 2013 Wild Endurance was a 100km event that I participated in. Tracey Grey was a previous staff member, and Michelle Stitcher is a fitness buddy. ADDITIONAL SURVEILLANCE REPORT COMMENTS Please note that I had previously only received the Social Media surveillance report. I did not receive the surveillance report until I returned from Tasmania in early December. In relation to the comment that 'the claimant...was not observed conducting any work activities during our enquiries.' This is because I work remotely on my computer from my office inside my home or wherever I am. Of course the investigator could not observe any work activities. In relation to the observation that I was smiling and farewelling a couple at Woolworths, those were my running buddies Michelle Stichter and family. We had previously competed in a 100km Wild Endurance event. I pursued ultra-marathon running following my breakdown as a way of handling the agitation and depression of Bi Polar 2 Disorder. It is common for people with such a disorder to undertake intense exercise. It helps the agitation and also the depression. My sports medicine physician Dr. Tom Cross has made such observations to me and a letter from him is attached. He explained that he had many patients who were Bi Polar and undertook ultra-marathon running. He said it seemed to help manage the physical agitation of the hypomania and the episodes. He also said that my injuries (outlined in the letter) were caused by over-training: something common to people suffering Bi Polar disorder who often pushed past pain and were obsessive. I am sure that he would be happy to comment further. My running buddies have helped me when I have been suicidal. For many months following the injury they were the only people that I saw. The surveillance report captures me heading to Zest for a breakfast coffee following the gym with my running buddies who have encouraged me and reached out to me when I have been isolated and down. They all take turns ringing or texting to check on me and encouraging my training and race events on social media and trying to get me to come for coffee after training. The comment that I was observed 'shopping in a relaxed manner' is entirely subjective. In the surveillance report I was observed carrying two envelopes to unidentified houses in Leura and Katoomba. These are thank you cards to two of these friends who have supported me during recent depressed and hypomanic periods. The observation that 'the claimant appeared relaxed in her demeanour at all times...and did not display any visible stress or anxiety is entirely subjective, it is noted in the medical literature that people with suicidal ideation, depression or anxiety often mask their emotional state. I have been open from the start about the daily routine I need to adhere to which helps me manage my Bipolar 2 Disorder. This Includes 1-2 hours of fitness or running activities most days, mindfulness meditation at points during the day and no socialising at night. I am longer able to attend events with crowds such as concerts, theatre, parties, I used to share season tickets to concerts with my mother and am unable to do so any more. I need to go to bed early. I cannot be stimulated in the evening lest I have trouble sleeping. My circle of friends has reduced as I am no longer able to maintain these friendships. I go by a pseudonym on Facebook so that the many friends that I had prior to my workplace injury can't contact me as I feel guilty that I am unable to sustain these relationships. I spend alternate weekends at my partner David's abode in Manly thus I am away from my residence every fortnight."

Other documents

There are some medical and contemporaneous clinical notes that refer to the first defendant's ultra-marathon training and running that were before the AMS. These are: 1. A psychological functioning assessment dated 26 November 2013. It states at [1.12.3]: "… Ms Brennan stated that she continues to experience some flatness in her mood and some automatic negative self-talk patterns. Ms Brennan stated that to manage her mental health she commenced running for exercise, and stated she has commenced trail running and ultra-marathon training with her local running club. Ms Brennan observed, however, that she has made some significant improvements in her mood, and noted that she has reduced her counselling from two counselling sessions per week down to once-weekly visits. Ms Brennan reported that she anticipates she will require longer-term counselling and expressed a commitment to maintaining her treatment gains." 1. Two GPs' contemporaneous entries in clinical notes dated 18 April 2013 and 2 May 2013. They are as follows: "Apart from twice weekly psychotherapy is training for 100K sports event that is giving her more structure and focus during the day" "Plan Continue CBT Focus on positives like relationship, going on weekend away to her mum's place, endurance run Try to minimize valium intake Return next week for review"
The AMS did not refer to any of the evidence outlined above. Nor did he refer to the evidence contained in the surveillance and social media reports in his decision.
It was the AMS's opinion that the first defendant suffered from a severe aggravation of her Bipolar Affective Disorder Type 2, depressive phase. The AMS noted that the defendant had been receiving ongoing psychiatric and psychological treatment from her medical team at the time of his assessment. She had required the use of psychiatric medication as well as psychological treatment to stabilise her work-related injury. She reported no substantive improvement in her depressed psychiatric condition at the time of this assessment.
The AMS stated that the first defendant's psychiatric symptoms remained persistent and ongoing. In his opinion, her condition had reached maximum medical improvement, and it was unlikely that her condition would improve with or without medical treatment.
In making this assessment, the AMS took into account the clinical interview and mental state examination he performed, as well as the assessment using the Psychiatric Impairment Rating Scales ("PIRS").
In Ferguson v State of New South Wales & Ors [2017] NSWSC 887, Campbell J explained PIRS at [14]: "It is necessary to set out the requirements of the Guides as to the evaluation of permanent impairment resulting from psychiatric injury. They are found in the Psychiatric Impairment Rating Scale (PIRS) which is applicable by virtue of Chapter 11 of the Guides. The requirements were summarised by the Appeal Panel in [22] to [24] of its reasons in the following terms: The Psychiatric Impairment Rating Scale ('PIRS') is established as the relevant rating indicia by virtue of Chapter 11 of the Guides in both the 09 and 16 Guides, which are the same. The PIRS sets out six categories of behaviour to be assessed, each being divided into five classes. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired by his injury, and the classes between are in an ascending order of impairment. The assessor is required to classify each category, and apply the resulting scores as set out in Chapter ll. Each class in the six categories has indicia attached, called 'descriptors.' Chapter 11.13 provides that: "Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. Examples of activities are examples only. The assessing Psychiatrist should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms." The indicia contained within the PIRS examples in Chapter 11 therefore are not intended to be exclusive, and are subject to the variabilities that accompany a person seeking psychiatric help, such as those matters mentioned - age, sex and cultural norms."
Table 11.1 sets out the relevant class descriptors. It reads: "11.11 Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment: 1. Self care and personal hygiene (Table 11.1) 2. Social and recreational activities (Table 11.2) 3. Travel (Table 11.3) 4. Social functioning (relationships) (Table 11.4) 5. Concentration, persistence and pace (Table 11.5) 6. Employability (Table 11.6)."
In accordance with PIRS rating scale, the AMS assessed the first defendant's total WPI at 24% WPI.

The application to appeal

On 7 February 2018, Wentworth lodged an application to appeal the decision of the AMS on the following three grounds: firstly, the availability of additional relevant information, being evidence that was not available to Wentworth before the medical assessment and that could not reasonably have been obtained by Wentworth before that medical assessment (s 327(3)(b)); secondly, the assessment was made on the basis of incorrect criteria (s 327(3)(c)); and finally, the MAC contains a demonstrable error (s 327(3)(d)). It was submitted that the AMS failed to take into account evidence attached to the amended application (being the first defendant's statement dated 11 August 2017) and attached to the reply (being the surveillance and the social media investigation reports) (Aff, Elder 6 June 2018, Ex RNE 1, Tab 5, [2]).
Wentworth addressed these three grounds in its written submissions attached to the application to appeal (Aff, Elder 6 June 2018, Ex RNE 1, Tab 5, [2]).
Wentworth submitted that the AMS erred with regard to his assessment of impairment. In particular, that: 1. The AMS failed to take into account the evidence enclosed in the application to resolve a dispute and the reply to that application; 2. The AMS based his opinion solely on the subjective report of symptoms made by first defendant during the examination; and 3. The AMS failed to compare the history obtained from the first defendant to the evidence annexed to the application to resolve a dispute and the reply.
Wentworth also submitted that the AMS erred in providing an assessment in accordance with the AMS referral, which provided a brief of evidence to consider in making the WPI assessment.
In regards to the availability of additional evidence, Wentworth submitted that the further evidence relied upon was not available before the medical assessment, and could not have reasonably been obtained before the medical assessment took place. These reports and their contents post date the MAC and commencement of proceedings, and were obtained in the investigation of the accuracy of the AMS's history and circumstances. These were the primary subject of the appeal.
Wentworth further submitted that the evidence relied upon by the AMS, being solely the first defendant's version of events, was inconsistent with investigative evidence attached to the reply for consideration by the AMS. The investigative evidence was not referred to by the AMS in the MAC and appears to have not been considered at the time of the medical assessment. In light of the inconsistency between the AMS's history and the investigative evidence before the AMS at the time of his findings, further evidence was obtained by Wentworth after the issuing of the MAC. This further evidence is consistent with the investigative evidence annexed to the reply, and on that basis warranted an appeal.
The next eight paragraphs of Wentworth's submissions addressed the alleged discrepancies within the AMS's findings in relation to the PIRS rating scale and the conflicting evidence between the surveillance and social media reports and [54] to [74] of the first defendant's latter affidavit where she responds to the contents of those reports.

The notice of opposition

On 2 March 2018, the first defendant lodged a notice of opposition to appeal against the decision of the AMS. She submitted that the MAC does not disclose the application of incorrect criteria and/or demonstrable error and objected to fresh evidence being adduced by Wentworth. So far as the further evidence is concerned, the first defendant alleged that the new evidence was obtained in the investigation of the accuracy of the AMS's history and circumstances which are the primary subject of the appeal. The first defendant submitted that the AMS obtained a generally consistent account of her history.
The first defendant objected to the fresh evidence being adduced in relation to the accuracy of the AMS's history on the basis that it could have reasonably been obtained by Wentworth before the AMS's medical assessment. Wentworth had already obtained a similar investigation report which was attached to the reply. As an AMS is required to consider all the documents attached to an application (but need not refer to them), it is reasonable to assume that the AMS considered all the documents in both the amended application and reply. These would have included the previously-obtained reports that were attached. It is therefore not necessary for the two investigation reports to have been obtained, and they should not be allowed or admitted as evidence in the appeal proceedings. Proof that the AMS considered all these documents is on page 10 of the MAC under the heading "The Facts on Which the Assessment is Based", where the AMS says the assessment was based on the first defendant's history and the provided documentation.
The first defendant referred to the decisions of Petrovic v BC Serv No 14 Pty Limited [2007] NSWSC 1156 and Robertson v Registrar of the Workers Compensation Commission & Beny's Joinery Pty Ltd [2008] NSWSC 918. The first defendant submitted that, in line with these two authorities, Wentworth's appeal of the AMS's assessment, including the fresh evidence adduced by Wentworth, does not contain "additional relevant information" as required by s 327(3)(b) of the WIM Act. This is because it is not "information of a medical kind or which was directly related to a decision required to be made by the AMS".

The decision of the Registrar dated 21 March 2018

On 21 March 2018, the delegate of the Registrar issued his decision.
The Registrar noted that his role and powers in making his decision are those of a gatekeeper. That fact is not in contention in this judicial review. The Registrar stated that his power is to determine whether, on the facts of the application and any submissions made, at least one of the grounds of appeal specified in subsection (3) has been made out. The Registrar was not satisfied that at least one of the grounds of appeal as specified in s 327(3) had been made out. Accordingly, the appeal was not to proceed.
Under the heading "Availability of Additional Relevant Information", the Registrar at [18] to [19] and [21] to [22] of his reasons stated: "Availability of Additional Relevant Information … 18 Among the documents contained in the referral to the AMS were the Reply and the attachments to the Reply, including two surveillance reports from M&A Investigations dated 27 August 2015 and 11 October 2016, together with two social media reports of the same organisation dated 13 July 2015 and 12 September 2016. It is therefore apparent on the face of the MAC that the AMS had regard to the material placed before him, including the reports of M&A Investigations. Those reports contain evidence which is broadly consistent with that sought to be relied upon in the appeal. 19. The role of the AMS is to consider the material referred to them and to reach their own findings and conclusions based upon that material and their own assessment. The admissibility of new material in an appeal such as this is conditional on that material being not reasonably available at the time of the assessment. … 21 The appellant's submission at paragraph six (referred to at paragraph 14 above) is predicated on the assumption that the AMS relied solely on the respondent's version of events. On the face of the MAC this is not the case. Rather, the AMS had regard to the documentation before him and made his assessment based not only on his examination of the respondent, but also on the documentation referred to him. 22. Accordingly, I decline to allow the new material to be admitted on any appeal, and refuse the application to appeal on this ground."
Wentworth submitted that the erroneous finding that the surveillance and social media reports "contained evidence which is broadly consistent with that sought to be relied upon in the appeal" undermines the Registrar's decision to refuse to allow the appeal to proceed.

Grounds of judicial review

There are eight grounds of judicial review. These are as follows.
Grounds 1 to 3 are that the Registrar's decision was tainted by jurisdictional error or error on the face of the record as, in not allowing an appeal, the Registrar erred in the construction of "additional relevant information" for the purposes of s 327(3)(b) of the WIM Act. It was not correct to state in the decision that the AMS: 1. At [18] had regard to material placed before him and that the evidence was "broadly consistent with that sought to be relied upon in the appeal". The AMS had not referred to and had not considered in the MAC the surveillance and social media reports originally provided by Wentworth and attached to its reply; 2. At [20] had "evidence before him of a substantially similar nature", as the AMS had not referred to and considered in the MAC the surveillance and social media reports originally provided by Wentworth and attached to its reply; and 3. As the additional relevant information sought to be adduced by Wentworth was not available and could not be obtained prior to AMS's medical assessment, the additional relevant information was obtained to benefit the Appeal Panel and establish continuity of the first defendant's conduct that contradicted the complaints made by the first defendant to the AMS.
Ground 4 is that the Registrar's decision was tainted by jurisdictional error or error on the face of the record, as the Registrar at [27] misconstrued the submissions of Wentworth. Wentworth submitted that the AMS made his assessment on the basis of incorrect criteria for the purposes of s 327(3)(c) of the WIM Act, as the surveillance and social media reports contradicted the information relied on by the AMS in completing the PIRS. By not referring to or considering the contradictory information, the AMS applied incorrect criteria to the assessment of permanent impairment. The failure of the Registrar to allow an appeal based on incorrect criteria for the purposes of s 327(3)(c) of the WIM Act resulted in procedural unfairness and denial of justice.
Grounds 5 and 6 are that the Registrar erred in dealing with demonstrable error under s 327(3)(d) of the WIM Act, for failing to have regard to relevant material, specifically, the surveillance and social media reports attached to the reply, and the statement of the first defendant dated 11 August 2017 and attached to the amended application.
Grounds 7 and 8 are based upon the Registrar failing to accept the submission that the AMS did not have regard to the statement of the first defendant dated 11 August 2017. It is apparent on reading the decision that the AMS did not have regard to the statement of the first defendant dated 11 August 2017. This statement contained concessions as to social and fitness activities, including participating in ultra runs and staying in Manly every alternative weekend with her partner. These concessions were not reported in the MAC. This allows an inference to be drawn (and a finding on the balance of probabilities) that the statement dated 11 August 2017 was not considered. As the concessions would have been relevant to the assessment of impairment under the PIRS, there was a demonstrable error under s 327(3)(d) of the WIM Act.
It is convenient that I deal with judicial grounds 5 and 6 at the outset. If necessary, they will then be followed by grounds 7, 8 and 4, and then 1 to 3.
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. Wentworth seeks relief from that decision under s 69 of the Supreme Court Act: see Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 ("Craig").

Grounds 5 and 6 - jurisdictional error and demonstrable error concerning the surveillance and social media reports

Grounds 5 and 6 concern the Registrar's error in dealing with the surveillance and social media reports. Ground 5 is that the Registrar made a jurisdictional error or error on the face of the record by failing to accept Wentworth's submission that the MAC did not refer to, and therefore did not consider, the relevant information originally provided by Wentworth and attached to its reply. Specifically, these were the surveillance reports dated 27 August 2015 and 11 October 2016, and the social media reports dated 13 July 2015 and 12 September 2016. Ground 6 is that the Registrar, in failing to refer to the surveillance and social media reports, made a demonstrable error under s 327(3)(d) of the WIM Act. These reports were relevant when considering the first defendant's degree of impairment, as it contradicted her complaints to the AMS.

Wentworth's submissions

Counsel for Wentworth submitted that it is plain and apparent upon reading the AMS's reasons that the AMS did not have regard to the surveillance and social media reports attached to the reply. Nor did he have regard to the first defendant's statement dated 11 August 2017, which responded to those reports. The surveillance and social media reports contained evidence that contradicted the subjective complaints made by the first defendant to the AMS for the purposes of categorisation under PIRS. The reports contained relevant material with respect to the assessment of self-care and personal hygiene (Table 11.1); social and recreational activities (Table 11.2); travel (Table 3); social functioning (Table 11.4) and possibly employability (Table 11.6).
The first defendant was assessed as being Class 3 for self-care and personal hygiene, social and recreational activities and social functioning. This is moderate impairment. The AMS relied solely on the subjective complaints of the first defendant that she was unable to engage in social activities or go shopping. However, the surveillance and social media reports plainly contradicted these complaints. The MAC contained a discussion of material attached to the application and reply, including medical reports and the statement of the first defendant dated 22 April 2013, but failed to refer to her statement dated 11 August 2017. Nor did it refer to the factual investigation reports and social media reports that were also attached to the application and reply.
Wentworth submitted that it should therefore be inferred (and can be accepted on the balance of probabilities, as per s 140 of the Evidence Act 1995 (NSW) and Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244) that the AMS did not have regard to the surveillance and social media reports as attached to the reply, as their contents were not mentioned at all in the MAC, including in the assessment of Tables 11.1-11.4 of the PIRS. This was a demonstrable error by the AMS pursuant to s 327(3)(d) of the WIM Act. That error was repeated by the Registrar in refusing the appeal under s 327(3)(d) of the WIM Act, as the Registrar assumed the AMS "examined the documents referred to him by the Commission". This assumption was an error, as the evaluative process leads to the inevitable conclusion the AMS did not have regard to the surveillance and social media investigation reports. This erroneous assumption means that the decision was in error, as it ignored relevant material (being the absence of reference to the surveillance reports and social media investigation reports by the AMS), was misdirected as to law as to "demonstrable error" and was legally unreasonable: see Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 13; Minister for Immigration v SZFW [2018] HCA 30; Buck v Bone (1976) 1365 CLR 110.

First defendant's submissions

The first defendant submitted that the AMS considered the matters necessary to make an assessment of impairment, and arrived at a conclusion which was consistent with the statements of the first defendant. This consideration can be found in the application as well as the history taken by the AMS on the day of examination. It does not follow that the AMS has "not considered" such matters in the overall assessment merely because an AMS does not refer specifically to particular matters. This is not readily apparent from a reading of the text of the decision.
The first defendant disputes the assertion that the decision of Registrar contains a "demonstrable error" for failing to decide that the absence of a reference in the AMS decision to the surveillance and social media reports that were before the AMS was itself a demonstrable error. The material referred to was not "plainly contradictory" as submitted, but was indeed consistent with the history given by the first defendant to other medical examiners throughout the long history of the claim. Such rehabilitation efforts were never denied by the first defendant.

Consideration

The concept of jurisdictional error was explained in Minister for Immigration v Youssef (2001) 206 CLR 323; [2001] HCA 30 per McHugh, Gummow and Hayne JJ at 351: "'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the least of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may all overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying the wrong issue, asking the 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 relevant statute." (Footnotes omitted)
In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, the High Court held that the decision of Craig does not provide a rigid taxonomy of jurisdictional error, and that the instances of error identified in Craig are only examples.
The meaning of "demonstrable error" has been discussed in cases such as Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, where Hoeben J said at [39]: "I do not propose to, nor is it necessary, that I define what is 'demonstrable error' for the purposes of s 327 of the Act in an exhaustive way. It is sufficient for the purposes of this matter that I conclude that 'demonstrable error' is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment."
The Registrar addressed the issue of demonstrable error at [29] to [32], where he stated: "29 In making his assessment of impairment, the AMS took a detailed history from the respondent, examined the documents referred to him by the Commission and carried out an examination. Whilst the appellant may disagree with the findings of the AMS, for an appeal to proceed it is necessary to show an obvious error on the face of the MAC. 30. An AMS is not bound by the findings of other medical practitioners who have assessed an injured worker. The AMS must consider the material placed before them and assess the injured worker according to the relevant criteria based upon not only that material but also upon their own examination of the worker. 31. The appellant has submitted that with respect to a number of PIRS criteria, the respondent should be assessed at a lower rating than that found by the AMS. In effect, the appellant has submitted that its own application of the criteria leads to a different conclusion from the AMS. As her Honour noted in Parker at [66], there needs to be more than a difference of opinion in order to show a demonstrable error. 32. I am not satisfied the appellant made out a demonstrable error on the part of the AMS. Rather, the appellant has set out a range of outcomes which it says ought to be applied on the PIRS criteria in accordance with its own reading of the evidence and the MAC. I can find no demonstrable error on the part of the AMS. Accordingly, the appeal will not proceed on this point."
In its submissions, Wentworth referred to Tattersall v Registrar of the Workers Compensation Commission of NSW [2007] NSWSC 453 ("Tattersall"), where Adams J stated at [12] to [14], [18] and [19]: "12. Not only, does it appear, assuming the accuracy of this list, that Dr Gertler [the AMS] 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 Approved Medical Specialist in the scheme of the Act, which is designed amongst other things to avoid hearings and dispose of application 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. … 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 ambiguous 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."
In Tattersall, the AMS had failed to consider the report of a psychologist dated 12 July 2014, a report which was both important and significant. While there was a dispute as to whether the report of the psychologist was before the AMS, the AMS had not referred to it in the MAC. Even if the report was available, the apparent failure of the Registrar to consider this issue when raised as a ground of appeal constituted an error of law. Accordingly, the failure to allow the appeal was an error for the purposes of s 327(3)(d) of the WIM Act.
Circumstances in which the decision maker fails to take relevant material into account may constitute a demonstrable error. The issue was considered in the case of De Gelder v Rodger (No 2) [2014] NSWSC 1355 ("De Gelder (No 2)"). In that case, the plaintiff sought judicial review in this Court of the decision of a medical review panel on the grounds that it failed to take into account a relevant consideration, including a letter from a chiropractor. In his decision, Hamill J helpfully stated at [73] and [77]-[79]: "73. As the plaintiff submitted, the panel's statement that it had received and considered particular documents does not preclude a finding that it failed to take it into account. In Golijan v Motor Accidents Authority of NSW [2012] NSWSC 1106 Beech-Jones said at [48]: "In this case the review panel stated that it had 'considered all the evidence'. A statement to that effect does not preclude a contention such as that made by the plaintiff being accepted.' … 77. Again, given the reliance placed upon the absence of the complaint in the notes of the chiropractor, the letter dated March 23 2012 was a significant piece of evidence and the panel was required to take it into account. If it was to reject the evidence…it should have articulated why. 78. Had it done so it would be easy to accept that the document had been taken into account. I do not accept that it was. Again, oblique reference to the fact that the document was before the panel - amongst literally thousands of pages of material - is insufficient to sustain a conclusion that the document was taken into account. Of course the plaintiff bears a heavy onus given the limited nature of the review and the panel's statements that certain documents were considered. I am satisfied that the letter from the chiropractor was not taken into account. 79. I accept that there may have been cogent reasons to reject the contents of the letter but I do not accept that it was open to the panel to disregard it altogether."
While De Gelder (No 2) concerns the decision of an appeal panel, it is equally applicable to the decision of the AMS in these proceedings.
In this current judicial review, it is fair to say that aside from the general statements in [2] and [9] of his decision, the AMS did not specifically refer to either the surveillance reports dated 27 August 2015 and 11 October 2016, or the social media reports dated 13 July 2015 and 12 September 2016. Nor has the AMS addressed Wentworth's submissions on the inconsistent matters raised in the reports under the 'History Relating to the Injury' heading of the MAC. Wentworth had submitted that the material shown in these reports was inconsistent with what the first defendant stated in her initial statement. In her supplementary statement, the first defendant provided her response as to what was contained in media posts and surveillance. The AMS also did not refer to either the first defendant's supplementary or latter statement in his reasoning. It appears that the AMS overlooked these reports, or failed to consider the relevant and significant material provided by the plaintiff.
In addressing this issue, the Registrar stated that the documents contained in the referral to the AMS were the reply and the attachments to the reply, including the surveillance and social media reports. The Registrar then stated that it is apparent on the face of the MAC that the AMS had regard to the material placed before him, including these reports. According to the Registrar, those reports contain evidence which is broadly consistent with that sought to be relied upon in the appeal. The Registrar did not address Wentworth's complaint that the first defendant's evidence was inconsistent with the other evidence, and this constituted a demonstrable error.
It is my view that the Registrar erred when he stated that the AMS had regard to the material placed before him and that the evidence was broadly consistent with that sought to be relied upon in the appeal, in circumstances where the AMS had not referred to the discrepancy between the first defendant's evidence and the surveillance and social media reports. The Registrar offered an explanation for, rather than a consideration of, the underpinning error, which concerned whether the AMS had either failed to consider the material shown in the media posts and surveillance reports, or simply overlooked them. In my opinion, it was an error of law on the face of the record for the Registrar to not have considered the submission that the AMS had either not considered or had overlooked these reports. Accordingly, the Registrar misconstrued his statutory task under s 327(3)(d) of the WIM Act, and made a jurisdictional error.
As the Registrar's decision is to be set aside, it is not necessary to deal with the remaining grounds of judicial review.

Conclusion

The result is that the decision of the Registrar dated 21 March 2018 should be quashed. These proceedings are remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law.
There is no order as to costs.

The Court orders that: (1) The decision of the Registrar in matter number M1-004090/17 dated 21 March 2018 is quashed. (2) The decision of the Registrar in matter number M1-004090/17 dated 21 March 2018 is remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law. (3) There is no order as to 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. Decision last updated: 27 February 2019

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