Grounds of appeal
42The first ground of appeal is:
The Medical Appeal Panel erred in law in taking into account Ms Bui's statement dated 8 July 2013 when it had not admitted it into evidence.
43This ground implicitly assumes that the Medical Appeal Panel is prohibited from taking material into account unless it has been formally admitted into evidence.
44It may be accepted that the Act expressly restricts the giving of "fresh evidence" or "evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against". Such evidence may not be given on an appeal unless it was not available to the party before the medical assessment and could not reasonably have been obtained before that assessment: see s 328(3) of the Act. To a degree, the strictness of that provision is at odds with the informal approach to the conduct of an assessment hearing allowed under clause 46 of the guidelines. But the purpose of the section is clear. Its object is to promote finality.
45The surveillance evidence sought to be relied upon by the insurer was plainly fresh evidence (if it was anything), the period of surveillance having been after the date on which Dr Gertler assessed Ms Bui. The Medical Appeal Panel considered the terms of s 328(3) and resolved to admit that material as fresh evidence on the appeal (at [33] of the statement of reasons, page 76 of the court book).
46It is beyond dispute that, having admitted the fresh evidence relied upon by the insurer, the Medical Appeal Panel was obliged afford Ms Bui an opportunity to respond to that material as an aspect of procedural fairness. As already noted, both the insurer and Ms Bui had submitted that there ought to be a further medical examination. The insurer submitted that a re-examination was necessary to enable a proper assessment of Ms Bui's degree of whole person impairment having regard to the inconsistency between the investigator's observations and the history obtained by Dr Gertler that Ms Bui was unable to leave her house unaccompanied (page 54 of the court book). Ms Bui submitted that there ought to be an examination so as to afford her the opportunity of giving an explanation and answering any questions of the Medical Appeal Panel in respect of the surveillance report (page 64 of the court book). Her handwritten statement dated 8 July 2013 was relied upon in the alternative, in the event that the Medical Appeal Panel decided to deal with the appeal on the papers without further examination as requested.
47Neither party sought the opportunity to address the Medical Appeal Panel orally (see pages 31 and 60 of the court book). In that circumstance, it was highly likely that the appeal would be determined "on the papers", either with or without a further medical examination.
48The insurer does not suggest that the Medical Appeal Panel should in those circumstances have disregarded the handwritten statement. Rather, the contention is that it erred in law in taking the statement into account without having first made a determination to allow the evidence to be given in accordance with the provisions of s 328(3). That submission implicitly assumes that, when fresh evidence is admitted under that section, any evidence in response to that evidence can only be admitted if it is also "fresh evidence" or otherwise falls within the terms of the section. The submission also implicitly assumes the existence of a requirement that evidence on an appeal be formally "admitted" or else disregarded.
49It is clear that the Medical Appeal Panel did have regard to the statement. It formed the basis for the Panel's conclusion that the surveillance material was not inconsistent with Dr Gertler's assessment in the areas of social functioning, concentration and employability (see [38] of the statement of reasons at page 76 of the court book). The critical question is whether there is any legal requirement for the Medical Appeal Panel to "admit" material into evidence before taking it into account. I am not persuaded that the Medical Appeal Panel's powers are subject to the degree of formality assumed in the insurer's submissions on this issue.
50It is interesting in this context to note the terms of s 354 of the Act relating to "proceedings in any matter before the Commission". That section contains a series of provisions as to the way in which such proceedings are to be conducted, including that they are to be conducted "with as little formality and technicality as the proper consideration of the matter permits" and that "the Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits" (subss (1) and (2)).
51The parties in the present case did not address the issue whether that provision governs an appeal heard by a Medical Appeal Panel. Such proceedings may well be regarded as being proceedings in a "matter before the Commission".
52A similar issue was touched on in Vegan, where Basten JA made passing reference to the question whether the Medical Appeal Panel "constituted" the Commission for the purpose of the Act. That is perhaps a different question from the question whether an appeal heard by a Medical Appeal Panel constitutes "proceedings in any matter before the Commission" for the purpose of s 354. In any event, his Honour noted that neither party had argued the issue in that case. His Honour raised the issue in passing, commenting on the potential operation of s 350 of the Act as a privative clause that might have the effect of expanding the Panel's power to make "a valid and unreviewable decision despite apparent error". The insurer has not been tempted by that judicial offering in the present case. It was not argued that the power to grant relief under s 69 of the Supreme Court Act is removed or confined in the case of a decision of the Medical Appeal Panel.
53In any event, whether or not an appeal determined by the Medical Appeal Panel is a proceeding in a "matter before the Commission" so as to attract the application of s 354, the outcome is the same, in my view.
54The insurer's application to rely upon the surveillance material was expressly governed by s 328(3). Having determined to allow that evidence to be given, the Panel was plainly obliged to afford Ms Bui an opportunity to respond to it. She had indicated her preference to respond in the forum of a further medical examination but had, alternatively, indicated that she was content for the Panel to have regard to her handwritten statement dated 8 July 2013 so as to enable the Panel to determine the matter on the papers. In circumstances where the Panel was plainly obliged to afford her an opportunity to respond to the fresh evidence in one form or another, I do not think it matters whether her statement was formally determined to be "fresh evidence" able to be given in accordance with s 328(3). It clearly qualified for admission under that section but I do not think the provisions that govern the procedure on appeal to a Medical Appeal Panel require it to make a formal determination in those terms.
55For those reasons, ground 1 must be rejected.
56Ground 3 is:
The Medical Appeal Panel erred in law in failing to carry out a hearing de novo (including a further examination of the first defendant).
57The precise error alleged in that ground is obscure. The insurer's contentions outlined in part B of the summons reveal that the ground was drawn in terms intended to reflect certain remarks of McColl JA (with whom Mason P agreed) in Siddik. In particular, the insurer relied upon the following passages of her Honour's judgment at [96] to [97]:
96 However s 327 is not only an error-based jurisdiction. It also contemplates an appeal arising because of changed circumstances: either a deterioration of the worker's condition or the availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment): s 327(3)(a) and (b). While the power to receive further evidence is suggestive of a rehearing function (CDJ v VAJ (No 1)), the availability of that power to what might be classed as an administrative body is not determinative: Strange-Muir.
97 In such circumstances the Appeal Panel might be expected to review the MAC to determine whether the changed circumstances affect the conclusions the AMS reached. If it reaches that conclusion, then it must have the power to conduct the assessment anew, including, if necessary, undertaking an examination of the injured worker as contemplated by s 324. That appears to presume something in the nature of a hearing de novo, a proposition Basten JA found attractive in Vegan (at [85]).
58As I understand the insurer's argument, it appears to entail at least the following propositions:
(a) that a "hearing de novo" is an identifiable procedure that may be adopted in the exercise of the power of the Medical Appeal Panel;
(b) that, in the circumstances of this case, it was the only procedure allowed, as a matter of law.
59In my view, the first proposition is misconceived and the second is wrong, for the following reasons.
60The nature of the "review" allowed under s 328 has been considered in a number of decisions of the Court of Appeal but care must be taken in determining what principles emerge from those decisions.
61The passage from Siddik relied upon by the insurer (set out above) referred to a proposition stated by Basten JA in Vegan. Relevantly for present purposes, the principle for which Vegan stands as authority is that the Medical Appeal Panel has an implied statutory obligation to give reasons for its decisions. It was in that context that Basten JA considered the nature of an appeal to the Panel.
62It was argued in Vegan that elements of the statute give rise to express or implied limitations on the Panel's powers (as I read his Honour's judgment, those arguments appear to have been put in support of the contention that a decision of the Panel without proper reasons was beyond power). In that context, the employer argued that the use of the term "review" in section 328(2) of the Act precluded a hearing de novo, particularly considered together with the limitation on additional evidence in s 328(3) of the Act. Basten JA thought that analysis "tended to demonstrate the difficulty with too close a dissection of the statutory language" at [85]. By way of illustration of that view, his Honour gave the example of an appeal based on the ground of a deterioration of the worker's condition, which would be likely to entail fresh evidence "so that the assessment might well be by way of a hearing de novo".
63In Siddik, McColl JA began by observing that the consideration of the nature of the s 328 review undertaken by Basten JA in Vegan did not identify the nature of such a review "in a determinative manner": at [82]. After undertaking a detailed analysis of the issue, her Honour concluded (at [100]; Mason P agreeing at [1]):
While a conclusion that an appeal by way of review may, depending on the circumstances, involve either a hearing de novo or a rehearing invokes a novel form of appeal, it ensures the legislature has created a flexible model which as I explain below assists the objectives of the legislature. In New South Wales Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; (2003) 56 NSWLR 691 (at [103] - [104]) Hodgson JA (Santow JA agreeing) held that an appeal under s 15 of the Racing Appeals Tribunal Act 1983 involved both appeals of a de novo and rehearing nature.
64Giles JA did not consider it necessary in Siddik to determine the appeal by reference to an analysis of the nature of the appeal to the Medical Appeal Panel as an appeal strictly so-called, an appeal by way of rehearing or a hearing de novo. His Honour noted that the Appeal Panel had not in that case purported to conduct a rehearing regardless of error, but had found error in what the approved medical specialist had done: at [6].
65The insurer's submissions on this issue seek to elevate the discussion in those earlier authorities as to the apparent power of the Medical Appeal Panel (in an appropriate case) to conduct a "hearing de novo" to a rule that qualifies the terms of the statute. Basten JA's reference in Vegan at [85] to an assessment by way of a hearing de novo (cited by McColl JA in Siddik at [97]) recognises the flexible range of procedures that might be adopted by the Panel in circumstances where a deterioration in the worker's condition or the availability of additional information persuades the Panel that it is appropriate to form its own assessment of the medical dispute rather than simply considering whether the assessment under appeal entailed error. In my view, it would be wrong to elevate his Honour's recognition of the prospect of a "hearing de novo" to a kind of fixed procedure within the power of the Panel, failure to adopt which might amount to error in law. Ultimately, as explained in Galluzzo, the statute permits the Medical Appeal Panel to decide which of the several procedures contemplated in the guidelines is to be adopted in the circumstances of any individual case.
66The focus of the oral submissions in support of this ground, which were put persuasively by Mr Dodd, was the Panel's determination that it was not necessary for Ms Bui to undergo a further medical examination. In the face of the apparent inconsistency between the lucid conduct observed by the investigator and the regressed state previously presented to a series of psychiatrists, the determination not to undertake a further medical examination might be regarded by a lawyer as a surprising outcome of the appeal. However, the Panel is specifically not composed of lawyers. The degree of autonomy conferred upon the Panel in its procedures must be taken to reflect Parliament's trust in the professional medical judgment of such a body. In my view, this Court should be slow to conclude that a determination of a Medical Appeal Panel not to undertake a further medical examination was beyond power or entailed legal error.
67However, it will be necessary to return to this issue in the context of ground 5, which alleges that the Panel did not give adequate reasons for its decision.
68Grounds 2, 4 and 6 each raise issues as to the Panel's consideration of the fresh evidence. Those grounds are as follows:
2 The Panel erred in law in considering the fresh evidence contained in the surveillance material was not inconsistent with the AMS assessment regarding all other categories of the PIRS assessment except for "Travel".
4 The Panel erred in law in failing to consider the effect of the fresh evidence on the whole of the first defendant's presentation to the AMS.
6 The Panel erred in law in limiting its use of the fresh evidence only to one category of assessment.
69Each of those grounds has the resonance of an invitation to undertake a review on the merits which, of course, is not open to this Court.
70Mr Dodd submitted that ground 2 was in the nature of a "Wednesbury" point, a reference to the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. That is the seminal authority for proposition that, upon judicial review, an administrative decision may be quashed on the grounds that, although otherwise within jurisdiction, the decision is so unreasonable that no reasonable authority could ever have come to it. But the judgment of the Master of the Rolls (Lord Greene), with whom Somervell LJ and Singleton J agreed, stands equally as authority for the proposition that the Court must not exercise its power of review so as to supplant that entrusted by Parliament to a specialised authority.
71Whether the Panel's decision was unreasonable in the Wednesbury sense requires a consideration of the reasons given for its determination. Since the remaining ground of appeal challenges the adequacy of those reasons, it is appropriate to consider that ground first.
72Ground 5 alleges that the Medical Appeal Panel erred in law in failing to give any or any sufficient reasons for its decision. That ground was expanded in the contentions in part B of the summons in the following terms:
The Panel failed to give any or any sufficient reasons why:
(a) it decided that it was not necessary for the first defendant to undergo further examination when it had admitted as fresh evidence the surveillance report which was obviously inconsistent with the first defendant's presentation to the AMS and the bases for his assessments;
(b) it decided that it was not necessary for the first defendant to undergo further examination when such further examination had been requested by both the plaintiff and the first defendant to deal with the material in the fresh evidence;
(c) it considered that the fresh evidence in the surveillance material "taking into account the first defendant's statement", was not inconsistent with the AMS assessment in respect of other categories of the PIRS.
73It is established that the Medical Appeal Panel is subject to an implied statutory obligation to give reasons: Vegan at [117] per Basten JA, Handley and McColl JJA agreeing. Basten JA described the content of the obligation in the following terms (at [121] to [122]):
121 Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.
122 On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.
74The Medical Appeal Panel accepted that the fresh evidence warranted their coming to a different conclusion from that reached by Dr Gertler in respect of the determination that the degree of impairment for the PIRS category "travel" fell into class 3. The basis for that conclusion was that, whereas Dr Gertler had concluded that Ms Bui was "unable to leave home unless accompanied because of problems with anxiety and concentration", the fresh evidence revealed that she had some capacity to leave home unaccompanied.
75As to the other PIRS categories, the Panel said (at [38]):
The Panel has considered the surveillance material. The Panel does not consider that the material, taking into account the respondent's statement is inconsistent with the AMS's assessment in respect of social functioning, concentration, persistence and pace and employability.
76No further reasons were stated for reaching that conclusion.
77The difficulty is that the fresh evidence was plainly capable of informing at least two of the other PIRS categories. The reason for determining that Ms Bui fell into class 3 for "travel" included reference to her inability to leave home unaccompanied due to problems with anxiety and concentration. "Concentration" is the subject of a separate PIRS category. Further, the reason given by the AMS for determining that Ms Bui fell into class 5 for "employability" also referred to her inability to leave home unless unaccompanied.
78There may well be sound reasons of medical judgment for the Panel's conclusion that the fresh evidence warranted a revision in one category but not in any other category. The difficulty is that the Panel's statement of reasons does not explain that conclusion in a way that enables the losing party to understand why it was reached.
79It was submitted on behalf of Ms Bui that the Court must consider the reasons as a whole and must be astute not to parse and analyse them with an eye to error, citing the decision of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30]. I am mindful of that caution. But in the present case, it is simply not possible to know what process of thinking or consideration of professional judgment led the Panel to the conclusion it reached. As acknowledged in Vegan, the reasons did not need not be extensive or to provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment. But they did have to meet the minimum requirement of explaining why, after considering the fresh evidence and Ms Bui's response, the Panel had determined to make its own assessment of the impact of her psychiatric disorder on her ability to travel (reaching a different conclusion from that reached by Dr Gertler) but to leave his assessment of other areas, expressed in some instances by reference to the same areas of dysfunction, undisturbed.
80The same difficulty arises in respect of the Panel's determination that it was not necessary for the worker to undergo a further medical examination. On that issue, the Panel said (at [8]):
As a result of that preliminary review, the Panel determined that it was not necessary for the worker to undergo a further medical examination. The appellant requested a further examination. The Panel considered the medical and other material before it and determined that a further medical examination would not assist in determining the issues in the appeal.
81Again, there may be sound reasons for reaching that professional judgment but none have been articulated in the statement of reasons. The fresh evidence was at least capable of calling into question Ms Bui's truthfulness in her presentation to Dr Gertler and other psychiatrists to whose assessments he had referred. The Panel was not compelled to reach that conclusion but the circumstances called for at least a brief articulation of the reasons for its not reaching that conclusion.
82Accordingly, with some reluctance and with due deference to the professional judgment of the Panel, I have reached the conclusion that the Panel's statement of reasons fails to comply with its implied statutory obligation recognised in the decision of the Court of Appeal in Vegan.
83In reaching that conclusion, I do not mean to intrude or pass comment on the outcome of the appeal before the Medical Appeal Panel. As I have already acknowledged, this Court must be astute not to supplant its own judgment for that of a specialised body to which Parliament has entrusted a specialised role. The difficulty lies, rather, in the failure of the statement of reasons to articulate the basis for the several professional judgments reached.
84In light of the conclusion I have reached on that issue, I do not consider it appropriate to determine grounds 2, 4 and 6.
85It follows that there is error on the face of the record and, accordingly, the discretion under s 69(3) of the Supreme Court Act to quash the decision is enlivened: see Vegan at [130]. There is no reason not to exercise that discretion in favour of the insurer.
86The insurer seeks an order that the proceedings be remitted to the Registrar of the Workers Compensation Commission "to refer to a new Medical Appeal Panel to determine the matter according to law". I do not think it is appropriate for me to constrain the Registrar's discretion in that way. Specifically, I am not persuaded that there is any reason the matter should not be remitted to the same Medical Appeal Panel. Conversely, if that is not administratively convenient, the Registrar may see fit to refer the appeal to a new Panel. Those should be matters entirely for the determination of the Registrar, whose discretion should not be constrained by this Court.
87For those reasons, I make the following orders:
(1)That the decision of the Medical Appeal Panel given 17 October 2013 be set aside.
(2)That the proceedings in the Workers Compensation Commission of New South Wales be remitted to the Registrar of the Workers Compensation Commission.