Western NSW Local Health District v Roberts

Catchwords

[2006] NSWCA 284 Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578[2019] NSWCA 231 Petrovic v BC Serv No 14 Pty Ltd [2007] NSWSC 1156 Searle v McGregor [2022] NSWCA 213

Judgment (8 paragraphs)

[1]

JUDGMENT

By an amended summons dated 13 October 2022, the plaintiff seeks judicial review of a decision dated 21 June 2022 by a Medical Appeal Panel (Panel). The Panel determined the appeal brought by the first defendant (Mr Roberts) against a decision dated 21 March 2022 by a Medical Assessor (Dr Michael Hong). Dr Hong had issued a medical assessment certificate (Dr Hong's certificate) under s 325 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act). He assessed Mr Roberts' whole person impairment (WPI) at 10%. Dr Hong's certificate was issued in the context of Mr Roberts' claim for workers' compensation relating to a psychiatric/psychological disorder.
On 14 April 2022, Mr Roberts lodged an Application to Appeal Against Decision of Medical Assessor. On 26 May 2022 a delegate of the President of the Personal Injury Commission (PIC) referred the appeal to a Medical Appeal Panel for determination.
The Panel revoked Dr Hong's certificate and issued a new certificate dated 21 June 2022. That certificate certified that Mr Roberts had not reached maximum medical improvement (MMI) and accordingly did not assess or certify a WPI percentage.
The Panel published a statement of reasons for its decision. It noted that Mr Roberts' grounds for appeal related only to s 327(3)(a) and (b) of the 1998 Act. Those two grounds concern (respectively): 1. deterioration of the worker's condition that results in an increase in the degree of permanent impairment; and 2. 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).

Statutory scheme summarised

Chapter 7, Part 7 of the 1998 Act deals with medical assessments. The key relevant features are as follows.
A "medical dispute" is defined in s 319 as meaning a dispute between a claimant and the person on whom a claim is made about various specified matters (or a question about any of the specified matters in connection with a claim). The specified matters relevantly include the degree of permanent impairment of the worker as a result of an injury (s 319(c)) and whether the degree of permanent impairment of the injured worker is fully ascertainable (s 319(g)). As will emerge, it is critical to note that the notion of a "matter" (as specified in s 319) is at the core of the concept of "medical dispute". The notion of "matter" also appears in ss 325, 326 and 327 (see below).
Section 321 provides for the referral of a medical dispute for assessment.
The assessment of the degree of permanent impairment is dealt with in s 322, which relevantly provides (noting in particular s 322(4)): 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. … (4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor 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 322A provides that only one assessment may be made of the degree of permanent impairment of an injured worker. It is made plain in s 322A(4) that the section does not affect the operation of s 327, which deals with appeals against a medical assessment.
The powers of a medical assessor in conducting an assessment are dealt with in s 324. It is made plain in s 324(3) that the section extends to the assessment of a medical dispute in the course of an appeal under Pt 7.
Section 325 deals with medical assessment certificates. Given its significance to the present proceeding, it warrants setting out in full: 325 Medical assessment certificate (1) The medical assessor 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 President and is to - (a) set out details of the matters referred for assessment, and (b) certify as to the medical assessor's assessment with respect to those matters, and (c) set out the medical assessor's reasons for that assessment, and (d) set out the facts on which that assessment is based. (3) If the President is satisfied that a medical assessment certificate contains an obvious error, the President may issue, or approve of the medical assessor issuing, a replacement medical assessment certificate to correct the error. (4) A medical assessor is competent to give evidence as to matters in a certificate given by the assessor under this section, but may not be compelled to give evidence.
The following features should be noted about s 325: 1. a medical assessor to whom a medical dispute has been referred is required to give a medical assessment certificate as to the matters referred for assessment; 2. the form of such a certificate must be approved by the President of the PIC; and 3. the certificate must contain the things that are specified in s 325(2), which includes a certification as to the medical assessor's assessment with respect to the matters which have been referred for assessment.
Section 326, which deals with the status of medical assessments, is another important provision (noting that it also refers to the notion of "matters"): 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.
It is to be noted that s 326 operates not by reference to the entirety of a medical assessment certificate as defined in s 325. As the chapeau makes clear, it is more limited. It operates with reference to the assessment certified by the medical assessor in a medical assessment certificate in respect of any of the five specified matters. That certification is conclusively presumed to be correct as to the five matters which are specified in s 326(1) with which the certificate is concerned. Those matters include the degree of permanent impairment of the worker as a result of an injury and whether the degree of permanent impairment is fully ascertainable (see s 326(1)(a) and (e)). The certification in a medical assessment certificate of a matter other than those specified in s 326(1)(a) to (e) is evidence, but not conclusive evidence, in any proceedings before a court or the PIC (see s 326(2)).
Section 327 is also an important provision. It too uses the notion of "a matter". It relevantly provides: 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 a medical assessor 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) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (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. (4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out. (5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal. …
It is well to emphasise at this point two key features of s 327(1). The first is that the right of a party to a medical dispute to appeal against a medical assessment under Pt 7 is confined to an appeal in respect of a "matter" that is appealable under this section. Sub-section 327(2) provides that a matter is appealable if it is a matter to which the assessment of a medical assessor certified in a certificate under s 325 is conclusively presumed to be correct in proceedings before a court or the PIC. This necessarily refers to the matters specified in s 326(1) (and not the matters referred to in s 326(2)).
The second feature is that an appeal under s 327(1) is confined to the grounds for appeal specified in s 327(3). Sub-section 327(3) specifies the four grounds for appeal.
Accordingly, there are two key concepts at play in relation to these provisions, namely the concept of a "matter" and the "grounds for appeal" under s 327.
Section 328 provides for procedures in an appeal against a medical assessment, including the constitution of the Panel (s 328(1)). It also provides that the appeal is by way of review of the original medical assessment but, importantly, the review is limited to the grounds of appeal on which the appeal is made (s 328(2)). Sub-section 328(3) provides for the admission of fresh or further evidence. It provides: (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 powers of a Panel are specified in s 328(5). It provides that the 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. It also provides that s 326 applies to any such new certificate.
Finally, the effect of s 331 is to require medical assessments and appeals under Pt 7 to be subject to relevant provisions of the PIC rules relating to the procedures for the referral of matters for assessment or appeal.

Consideration and determination

It is unnecessary to summarise Mr Roberts' submissions because they are sufficiently reflected in my reasoning below.
It is well to summarise some additional relevant features of the assessments conducted by both Dr Hong and the Panel. The medical dispute which was formally referred to Dr Hong for assessment identified four matters to be assessed, namely the degree of permanent impairment (s 319(c)); whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality and the extent of any such proportion (s 319(d)); whether impairment is permanent (s 319(f)); and whether the degree of permanent impairment is fully ascertainable (s 319(g)).
Dr Hong's assessment is set out in a document headed: PERSONAL INJURY COMMISSION MEDICAL ASSESSMENT CERTIFICATE ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Although section 1 of the certificate is described as "Details of matter referred for assessment", perhaps a little curiously Dr Hong did not set out explicitly the four matters as specified in the referral. He simply identified the date of injury, the body parts/systems referred and the method of assessment as being WPI. No complaint was raised in the present proceeding regarding that apparent omission.
In section 8 of the certificate, which is headed "Evaluation of permanent impairment", Dr Hong provided answers to various questions regarding the assessment of impairment and/or WPI. Dr Hong saw the answers as being "in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment". In response to the question whether all body parts/systems had stabilised/reached MMI, Dr Hong gave an affirmative answer. He added that "Mr Roberts' psychological symptoms are well stabilized with appropriate treatment, and not likely to alter to a substantial degree in the next 12 months". At page 8 of his certificate, in section 20 headed "Reasons for Assessment", Dr Hong stated: I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.
It may be interpolated that this statement constitutes a certification of some of the matters which had been referred to Dr Hong for assessment. Dr Hong was plainly satisfied that Mr Roberts' impairment was permanent and that the degree of permanent impairment was fully ascertainable at the time he conducted his assessment. Accordingly, there was no basis for him to decline to assess those matters, as provided for in s 322(4) (see at [15] above).
Turning now to the proceeding before the Panel, as noted above, Mr Roberts raised two grounds for appeal, namely the grounds referred to in s 327(3)(a) and (b). Having regard to the terms of s 327(2), those grounds were relied upon in respect of a matter which was appealable under s 327, which necessarily had to involve a matter in an assessment of a medical assessor which was certified in a medical assessment certificate under Pt 7 and which is conclusively presumed to be correct in proceedings before a court or the PIC. Such matters are identified in s 326 (see [20] above) and include whether the degree of permanent impairment is fully ascertainable (s 326(1)(e)). As noted above at [52], Dr Hong had expressly certified that Mr Roberts' impairment was permanent and that the degree of permanent impairment was fully ascertainable. That certification related to two of the matters identified in s 326(1), namely whether the worker's impairment is permanent (s 326(1)(d)) and whether the degree of permanent impairment is fully ascertainable (s 326(1)(e)).
On 26 May 2022, a delegate of the President of the PIC made a determination under s 327(4) that, on the face of the application for appeal and the submissions of the parties, at least one the grounds for appeal as specified in s 327(3) had been made out. The delegate said that he was satisfied that there was an arguable case that there had been a deterioration of Mr Roberts' psychological condition resulting in an increase in the degree of permanent impairment under s 327(3)(a). The delegate then referred "the appeal" to the Panel for determination. As will shortly emerge, I do not accept the plaintiff's claim (see [44] above) that the referral was limited to only the ground for appeal that the delegate considered was "capable of being made out", rather than both grounds for appeal raised in the appeal application.
Having regard to the relevant background matters, and for the following reasons, the amended summons should be dismissed.
First, as to grounds 1 and 2, the plaintiff has placed undue emphasis on the ground for appeal in s 327(3)(a) and has given inadequate recognition to the fact that Mr Roberts also raised as a further or alternative ground for appeal that which is provided for in s 327(3)(b) (namely the availability of additional relevant information), upon which he succeeded.
Secondly, the plaintiff has failed to appreciate the significance and limiting effect of the concept of a "matter" in appeals against medical assessments. Appeals under Pt 7 are limited to the grounds for appeal specified in s 327(3). But it is also important to note the limitation in s 327(1), the effect of which is to limit any such appeal to a matter that is appealable under s 327. As noted above, the matters to which an appeal must relate are the matters which are set out in s 326. Those matters include the degree of permanent impairment of the worker as the result of an injury and whether the degree of permanent impairment is fully ascertainable. The assessment by a medical assessor as certified in a medical assessment certificate under s 325 is conclusively presumed to be correct in respect of those two matters (as well as the other matters specified in s 326(1)).
Thirdly, it is important to note the statutory requirements for a medical assessment certificate, as set out in s 325(2) (see at [18] above). The certificate is to be in an approved form and is to set out four things, namely: 1. details of the matters referred for assessment; 2. certification of the medical assessor's assessment with respect to those matters; 3. the medical assessor's reasons for that assessment; and 4. the facts on which that assessment is based.
As noted above, at section 10(c) of his reasons (page 8), Dr Hong expressly certified that Mr Roberts' "impairment is permanent and that the degree of permanent impairment is fully ascertainable".
This particular certification was a matter which was amenable to appeal under ss 327(1) and (2), having regard to the terms of s 326 (see above).
Fourthly, as noted above, in his application to appeal Dr Hong's assessment, Mr Roberts cited his grounds for appeal as both deterioration of his condition resulting in an increase in the degree of permanent impairment (s 327(3)(a)) and the availability of additional relevant information (s 327(3)(b)). In his written submissions to the Panel, after confirming his reliance upon the grounds for appeal in s 327(3)(a) and (b), Mr Roberts made express reference to Dr Hong's findings that his "psychological symptoms were well stabilized, with appropriate treatment not likely to alter to a substantial degree in the next 12 months … and further that the degree of permanent impairment is fully ascertainable". After then setting out submissions in support of the claim that Mr Roberts' condition had deteriorated such that his WPI had increased, Mr Roberts then submitted that, in accordance with the views of Dr Hodge it was strongly arguable that he was not at MMI. This particular submission was explicitly stated to be in addition to, or in the alternative to, the submissions regarding deterioration of his condition. It was well open to the Panel to determine the appeal on this alternative basis (with reference to the fresh evidence).
Fifthly, I accept Mr Roberts' submission that appeals based on the grounds in s 327(3)(a) or (b) may be different from the grounds in s 327(3)(c) or (d). The former grounds (which were described by Leeming JA as "remedial" in Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [61] with whom Gleeson and Payne JJA agreed) do not require the appellant to demonstrate error or the application of incorrect criteria in the medical assessment certificate.
Sixthly, as is evident from [19] of the Panel's reasons, it determined that the fresh evidence described above should be admitted. This finding immediately follows the Panel's summary at [18(c)] of Mr Roberts' submission that the additional information was relevant because it went to whether his condition "is stable, whether his permanent impairment is fully ascertainable and if it is, the proper assessment of impairment". At [19] the Panel expressly stated that it was satisfied that the fresh evidence fell within the terms of s 328(3) and ought to be admitted. The plaintiff did not challenge this finding.
Seventhly, at [24] of its reasons, the Panel referred to "the issues in dispute". Fairly read, this is a reference to the "matters" which were certified by Dr Hong (see generally Searle v McGregor [2022] NSWCA 213; (2022) 405 ALR 556 at [74] per Kirk JA, with whom Bell CJ and Ward P agreed). This is confirmed by the fact that in the immediately following paragraph of its reasons, the Panel expressly refers to Dr Hong's conclusion that, at the time of his assessment, Mr Roberts had reached MMI. Reading the Panel's reasons as a whole, it may also be inferred that the reference in [24] to "the issues in dispute" was in part an implicit reference to what the Panel had stated earlier in its reasons at [7], where it identified the "real issue" as "whether or not the worker's condition has reached maximum medical improvement (MMI)".
Whether or not a worker's condition had reached MMI is a necessary element of the issue as to whether the degree of permanent impairment was fully ascertainable (see State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021) at [1.6] and [1.15]-[1.16]), which was one of the matters which had been referred to Dr Hong for assessment and which he properly certified in the certificate as required by s 325(2) (see at [52] above). As such, it was a matter which was appealable under s 327(1) and (2) and was also a matter to which the ground for appeal in s 327(3)(b) could relate. Although Mr Roberts also relied upon the ground for appeal in s 327(3)(a), the Panel implicitly found it unnecessary to determine whether there had been any deterioration in his condition and whether it resulted in an increase in the degree of permanent impairment. Presumably this was because the Panel reasonably considered that further evidence would be required not only to address the issue of MMI but, once MMI had been reached, to conduct a proper assessment of Mr Roberts' WPI in the light of all the then available evidence.
Eighthly, I reject any submission by the plaintiff that the Panel ignored Petrovic. The additional relevant information admitted by the Panel was information of a medical kind which directly related to Dr Hong's certificate. It did not simply relate to matters going to the process whereby Dr Hong's assessment was made (as to Petrovic see the observations of Basten AJ in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [55]).
Ninthly, I reject the plaintiff's submission that the Panel was not entitled to determine the ground for appeal raised by Mr Roberts with reference to s 327(3)(b) and was confined to the ground specified in s 327(3)(a), which is the only ground found by the delegate to have been arguable (see at [68] above). The delegate acts as a "gatekeeper" and is required under s 327(4) to determine whether or not the appeal will be referred for assessment, but the language of that provision (in particular the reference to "at least one of the grounds being made out"), as well as the terms of s 328 (which refer to the grounds of appeal on which the appeal was made rather than the grounds for appeal which the President's delegate has referred to), are inconsistent with the plaintiff's position. As long as the delegate is satisfied that one of the grounds for appeal relied upon is arguable, all the grounds for appeal relied upon by the appellant should be referred to the Panel. In this particular case, there were two such grounds for appeal.
Tenthly, I reject the plaintiff's submission to the effect that the Panel was not entitled to rely upon Dr Hodge's opinion that MMI had not been attained because she was not qualified to make an assessment of WPI. Dr Hodge did not purport to assess Mr Roberts' WPI in her report dated 8 April 2022. Rather, her opinion was directed principally to the question of whether his condition had stabilised and/or reached MMI. There is no reason to doubt Dr Hodge's qualifications to express that opinion. Nor is there any reason in law why the Panel could not take that opinion into account and act upon it.
In all these circumstances, the Panel did not fall into any legal error as claimed by the plaintiff (whether jurisdictional or on the face of the record).
For these reasons, grounds 1 and 2 are rejected.
As to ground 3 (adequacy of the Panel's reasons), I am not persuaded that the reasons were inadequate so as to constitute procedural unfairness or some other reviewable error. The plaintiff's criticisms of the reasons are predicated on its complaints raised by grounds 1 and 2, which have been rejected. Once it is appreciated that the gravamen of the Panel's intervention related to the ground for appeal under s 327(3)(b), the plaintiff's criticisms of the adequacy of the reasons fall away.
Furthermore, it is well-settled that the reasons of the Panel should be read fairly and as a whole (see New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77] per Bell P, with whom Ward JA agreed; and Lancaster at [52] per Basten AJ).
Accordingly, although the Panel's conclusion that Mr Roberts had not reached MMI was expressed curtly at [26], the reasons need to be read as a whole, including the Panel's detailed summary of Dr Hodge's report and its finding at [14] that the clinical notes "generally confirmed" Dr Hodge's comments.
The reasons may be relatively brief but, as acknowledged in Vegan at [122] per Basten JA, depending on the circumstances, the reasons need not be "extensive" as long as they properly explain the Panel's conclusion (see also Lancaster at [42]-[45] per Basten AJ). As the Panel itself noted at [24], it was not necessary to set out in detail Dr Hong's findings "given the issues in dispute". The Panel correctly understood that those issues (or matters) were relatively confined.
In my view, an adequate explanation was provided by the Panel for its decision, with particular reference to its reasons at [25]-[27] and the Panel's earlier detailed summary and implicit acceptance of Dr Hodge's report and the hospital's clinical notes. Its path of reasoning was sufficiently revealed. It is therefore unnecessary to determine whether inadequate reasons constitute procedural unfairness, error of law appearing on the face of the record or jurisdictional error (see Lancaster at [7]).

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Judgment (8 paragraphs)

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