Adriaansen v Dungog & District Retirement Living Limited
[2016] NSWWCCPD 36
•15 July 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36 | |
| APPELLANT: | Margit Susanne Adriaansen | |
| RESPONDENT: | Dungog & District Retirement Living Limited | |
| INSURER: | QBE Workers Compensation (NSW) Limited | |
| FILE NUMBER: | A1-2462/15 | |
| ARBITRATOR: | Ms J Peacock | |
| DATE OF ARBITRATOR’S DECISION: | 30 March 2016 | |
| DATE OF APPEAL DECISION: | 15 July 2016 | |
| SUBJECT MATTER OF DECISION: | Section 329 of the Workplace Injury Management and Workers Compensation Act 1998; application of Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286; 6 DDCR 440 and Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56; duty to give adequate reasons | |
| PRESIDENTIAL MEMBER: | Acting President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Philip Watson Pty Ltd |
| Respondent: | Gillis Delaney Lawyers | |
| ORDERS MADE ON APPEAL: | The Arbitrator’s decision dated 30 March 2016 is confirmed. | |
INTRODUCTION
This appeal involves issues going to the exercise by an Arbitrator of the discretion, pursuant to s 329 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), to refer a matter for further assessment by an Approved Medical Specialist. It also raises issues going to whether the order the subject of the appeal is ‘interlocutory’, and if so, whether it is appropriate that leave to appeal be granted pursuant to s 352(3A) of the 1998 Act.
BACKGROUND
Margit Susanne Adriaansen (the appellant) was employed by Dungog & District Retirement Living Limited (the respondent) from February 2005 as an assistant in nursing.
On 10 September 2011 the appellant suffered injury to her shoulders when rolling a resident in bed, at the Lara Aged Care Unit, which was operated by the respondent. She underwent surgery to the right shoulder (arthroscopic acromioplasty and excision of the distal clavicle) by Dr Kemp on 3 April 2012. She had injections into the right shoulder and physiotherapy. There were periods off work, and periods on restricted duties. She eventually started a Diploma in Counselling, and commenced a business, Holistic and Healing Centre, performing home visits to people.
The appellant was assessed, at the request of her solicitor, by Dr Higgs, who reported initially on 28 April 2014. Dr Higgs concluded at that time that the appellant had not reached maximum medical improvement. Dr Higgs re-examined the appellant and reported on 1 December 2014. He assessed her as suffering 11 per cent whole person impairment (in respect of the right upper extremity) and 7 per cent whole person impairment (in respect of the left upper extremity), which combined to yield 17 per cent whole person impairment.
A claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), consistent with Dr Higgs’s assessment, was made by the appellant’s solicitor under cover of a letter dated 23 December 2014. The respondent’s insurer (the insurer), relying on a report of Dr Walsh dated 23 February 2015, advised the appellant’s solicitor by letter dated 17 March 2015 that the permanent impairment claim was not accepted, as the appellant had not reached maximum medical improvement.
THE ARBITRAL PROCEEDINGS
The proceedings were commenced by Application to Resolve a Dispute registered on 1 May 2015 (the Application).
The matter raised no ‘liability’ issues, and the appellant was referred to an Approved Medical Specialist (AMS) for assessment of whole person impairment, in respect of the left and right upper limbs. She was examined by Dr Anderson (an AMS) on 9 July 2015. He issued a Medical Assessment Certificate (MAC) dated 3 August 2015. He certified that the appellant had reached maximum medical improvement. Dr Anderson assessed her as suffering whole person impairment of 7 per cent (right upper extremity) and 3 per cent (left upper extremity), giving a combined figure of 10 per cent.
As the assessment of whole person impairment was not “greater than 10%”, the appellant was not entitled to compensation pursuant to s 66(1) of the 1987 Act.
The appellant, on 25 August 2015, lodged an Application to Appeal Against Decision of Approved Medical Specialist. On 13 October 2015 that appeal was referred by a Delegate of the Registrar to a Medical Appeal Panel (MAP). The decision of the MAP was dated 13 November 2015. The MAP accepted that there had been “an error in the transliteration” of two of the entries inserted by the AMS into two tables dealing with movement of the shoulders. The MAP corrected this. The effect of the correction was that the whole person impairment figure for the right upper extremity decreased from “7%” to “6%”, and the figure for the left upper extremity increased from “3%” to “4%”. When the revised figures were combined, they yielded the same result as previously, 10 per cent whole person impairment.
The MAP rejected a number of other submissions made by the appellant on the medical appeal. The MAP confirmed the amount of the assessment in the original MAC, of 10 per cent whole person impairment.
On 4 December 2015 the appellant’s solicitor wrote to the Registrar, requesting that the matter be listed for telephone conference before an Arbitrator, so that “the Applicant may consider a referral of the matter for further medical assessment or reconsideration”. The Arbitrator before whom the telephone conference was listed, on 14 January 2016, made orders for written submissions, regarding the appellant’s request that the matter be referred again to an AMS.
The appellant lodged written submissions under cover of a letter dated 27 January 2016, and submissions in reply dated 19 February 2016. The respondent lodged submissions dated 18 February 2016. The Arbitrator’s decision on this application was dated 30 March 2016.
THE ARBITRATOR’S DECISION
The Arbitrator noted that the appellant sought “an order pursuant to section 329(1)(b) referring the matter again for assessment by an AMS”. She recited the procedural history of the matter.
The Arbitrator referred to the appellant’s submissions. The appellant alleged departure by the AMS from the procedure in the WorkCover Guides for the Evaluation of Permanent Impairment, 3rd edition, (WorkCover Guides) regarding the measurement of active ranges of motion with several repetitions, and the use of a goniometer. The appellant had requested re-examination, in her appeal to the MAP, but this was declined. The Arbitrator noted the appellant’s application was for “further referral for assessment by an AMS” (the Arbitrator’s emphasis).
The Arbitrator referred to the fact that the appellant, in her submissions, asserted that, on examination, several repetitions of movements had not been attempted, and a goniometer had not been used.
The Arbitrator referred to the decisions in Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286; 6 DDCR 440 (Mansour) and Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56 (Milosavljevic).
The Arbitrator referred to the submissions made by the appellant to the MAP. She said the “same submissions about error” were now being put to her “to seek a further referral to an AMS, not necessarily the same AMS who originally assessed” the appellant. She said that if she acceded to the application, this would give rise to a fresh MAC, and “create fresh rights of appeal to a MAP”. She described this as “a circuitous process”. It was not consistent with the system objectives.
The Arbitrator said that the “dictates of justice” did not require the referral. The appellant had already had the opportunity to appeal the MAC. Her complaints about the application of the WorkCover Guides, and her request for re-examination, had been “specifically considered by the MAP and declined”. The Arbitrator declined the appellant’s request for referral for further assessment under s 329 of the 1998 Act.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
The only matter which the Arbitrator was asked to decide was whether a referral pursuant to s 329 of the 1998 Act should be made. This was not an order which would involve the awarding of any amount of compensation. A sum of $25,300 was claimed in the Application, for permanent impairment compensation.
Roche ADP (as he then was) in Sullivan v Illawarra Newspapers Holdings Pty Ltd [2006] NSWWCCPD 135 at [31] said:
“The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance.”
In the same decision, the Acting Deputy President applied Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7, and said:
“It is possible to appeal against an interlocutory decision where no monetary compensation has been awarded but only where the decision or order has a real capacity to put the award of ‘compensation’ in issue in the appeal.”
The subject of this appeal has a real capacity to put the sum claimed in the Application in issue. The concession made by the respondent, that there was “no issue with respect to the monetary threshold”, was appropriately made. This also is consistent with Mansour at [26] and Milosavljevic at [17].
ISSUES IN DISPUTE
The issues raised in the grounds of appeal are:
(a) Whether the appeal is ‘interlocutory’. If the appeal is appropriately characterised as ‘interlocutory’, it is submitted by the appellant that the interests of justice require that leave be granted.
(b) Whether, in determining the appellant’s application pursuant to s 329 of the 1998 Act, the Arbitrator gave inappropriate weight to the fact that the MAP had already declined to grant “the same relief”, so that “she would not make a different decision”. What was required was “a careful and thorough deliberation on the facts”.
(c) Whether the Arbitrator failed to properly consider the appellant’s application, and failed to provide proper reasons.
(d) The relief sought is that I set aside the decision of the Arbitrator, and re-determine the matter, to substitute an order “that the appellant be referred to an alternative AMS for assessment of her degree of whole person impairment in respect of both her upper extremities as a result of her injury on 10-9-2011”.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
WAS THE ARBITRATOR’S DECISION INTERLOCUTORY?
The Appellant’s Submissions
The appellant’s whole person impairment was assessed by the AMS at 10 per cent, a figure which did not entitle her to any compensation, as it did not meet the threshold in s 66(1) of the 1987 Act. This assessment was confirmed, for different reasons, by the MAP. Due to the combined operation of s 66(1A) of the 1987 Act and s 322A of the 1998 Act, if the referral is not made, there will be a final and binding Certificate of Determination in respect of the medical dispute. The decision finally determines the “rights between the parties”: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423. The appellant also referred to the decision in Trustees for the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan). The appellant’s primary submission was that the decision was not ‘interlocutory’.
Alternatively, leave should be granted pursuant to s 352(3A) of the 1998 Act, should the decision be regarded as ‘interlocutory’.
The Respondent’s Submissions
The respondent submitted that the decision under appeal went to the appellant’s entitlement to a further assessment. It was not a separate determination of issues of injury or causation. The issue was the degree of permanent impairment. The final medical assessment and subsequent certificate of determination would finally determine the rights of the parties. It could be distinguished from the authorities referred to in Brennan, which involved findings on ‘injury’ relevant to the basis of referral to an Approved Medical Specialist.
The respondent submitted that, in any event, “the appellant has available to her recourse through judicial review of the Medical Appeal Panel’s decision”. The appellant’s grievances were primarily concerned with the MAP decision, rather than that of the Arbitrator.
The Statutory Provisions
Section 329 of the 1998 Act provides:
“329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:
(a)the Registrar as an alternative to an appeal against the assessment as provided by section 327, or
(b)a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
Section 352(3A) of the 1998 Act provides:
“(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
Discussion
In Licul v Corney [1976] HCA 6; 50 ALJR 439 (Licul) Gibbs J at [11] said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view – which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh – is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?” (footnotes omitted)
The above passage has been frequently applied in the Commission (see for example P & O Ports Limited v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12 (Hawkins)).
Section 326(1) of the 1998 Act provides that a MAC is “conclusively presumed to be correct” in respect of the matters described in the sub-section. This includes “the degree of permanent impairment of the worker as a result of an injury”. However, the Commission is not constituted by an AMS or a MAP: s 368 of the 1998 Act. It follows that a MAC “does not equate to a determination of a dispute by the Commission”: Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 at [27], Milosavljevic at [49]. Disputes are determined by the Commission: s 293 of the 1998 Act. The dispute between the parties going to the appellant’s entitlement to permanent impairment compensation has not, at this point, been decided. The respondent’s submission is correct; it is the issue of a Certificate of Determination, consistent with the MAC, which will finally determine the rights of the parties.
The issue in Licul went to orders for substituted service, and the extension of time for service, of originating process. Gibbs J concluded that the orders in respect of which the appellants sought to appeal were not final orders. In the same case, Barwick CJ (Stephen and Jacobs JJ agreeing) at [20] said:
“I am clearly of opinion that the order of the Supreme Court was not a final order disposing of the action between the parties and settling their substantive rights. Their actions remain on foot and are capable of being pursued if a judge of the County Court is minded upon an application duly made to extend the time for service of the original summonses.”
In Southern Cross Exploration NL v Fire and All Risks Insurance Company Ltd (1990) 21 NSWLR 200, Kirby P, dealing with the characterisation of orders as final or interlocutory, at 207C said:
“The principal point to be noted in at least the recent decisions of the High Court of Australia on this question, is that the focus of attention is upon the legal effect of the order under examination, not its practical consequence.”
In Hawkins, Roche DP considered that the objectives of the Commission, set out in s 367 of the 1998 Act, should be taken into account in construing the meaning to be attached to the term ‘interlocutory’. The provision at that time, equivalent to s 352(3A), was contained in a combination of s 352(8) of the 1998 Act and cl 200B of the Workers Compensation Regulation 2003. After considering these, the Deputy President at [37] said:
“j. in the absence of a definition of ‘interlocutory’ it is for the Commission to determine which matters fall within the terms of clause 200B. In my view, in order to achieve the Commission’s clearly stated statutory objectives, it is necessary and appropriate to restrict the meaning of the phrase ‘preliminary or interim orders ... of an interlocutory nature’ to matters that are genuinely preliminary, provisional or interim in nature, and
k. given the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. Any order or determination by an Arbitrator on such issues should not be regarded as a matter that is a ‘preliminary or interim order of an interlocutory nature’, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted.”
In the current matter the proceedings remain on foot, they have not been finally determined. The issue dealt with by the Arbitrator was quite different to the sort of findings (such as ‘worker’ and ‘injury’) referred to in the above passage from Hawkins. If the Arbitrator had made the order sought by the appellant under s 329, this would not necessarily change the outcome, any further assessment of whole person impairment may or may not be greater than 10 per cent.
Even after the decision of the Arbitrator refusing to exercise her discretion pursuant to s 329, it remains theoretically possible that steps could be taken which could lead to a result different to that dictated by the most recent MAC. Prior to the issue of a Certificate of Determination, if there were some appropriate factual and legal basis, a further application pursuant to s 329 could be made, or a further appeal, for example pursuant to s 327(3)(a) or (b), may lie. I do not suggest that this is likely, but its potential availability demonstrates the interlocutory nature of the decision appealed against.
It follows that the appeal cannot be brought unless the Commission grants leave pursuant to s 352(3A) of the 1998 Act.
SHOULD LEAVE BE GRANTED?
Leave is not to be granted pursuant to s 352(3A) unless it is “necessary or desirable for the proper and effective determination of the dispute”.
In the absence of referral for assessment again, pursuant to s 329 of the 1998 Act, the MAC issued by the MAP is conclusively presumed to be correct. The Commission would, in the normal course, issue a Certificate of Determination consistent with it. That Certificate of Determination would incorporate the binding certification of the MAP going to whole person impairment. It would provide that the appellant had no entitlement to lump sum compensation due to the threshold in s 66(1) of the 1987 Act.
The appellant submits that this would probably conclude her entitlement to such compensation. Section 66(1A) of the 1987 Act precludes more than one claim for permanent impairment compensation being made in respect of the injury. Section 322A of the 1998 Act provides that only one assessment of the degree of permanent impairment may be made.
For the proper and effective determination of the dispute, it is desirable that the appellant’s appeal be dealt with at this point in time. If the appeal succeeds, then the matter can be referred for further assessment promptly. If the appeal fails, then the Commission is in a position to make whatever orders are appropriate to conclude the proceedings. The alternative would probably involve the Commission issuing a Certificate of Determination consistent with the MAC issued by the MAP, and the appellant then instituting a further appeal against those final orders.
To deal with the appeal now is likely to be more timely and cost effective, which is consistent with the objectives in s 367 of the 1998 Act. Leave is granted pursuant to s 352(3A) of the 1998 Act.
GROUND NUMBER 1 – APPLICATION OF A WRONG TEST
This ground asserts that the Arbitrator applied a wrong test in dealing with the application. Section 329 required “a careful and thorough deliberation on the facts to determine whether within the Commission’s jurisdictional limits the ‘dictates of justice’ require[d] a further referral to an AMS”. It is argued that the Arbitrator approached the issue on the basis that her role was so constrained, by the decision of the MAP, that “she would not make a different decision”.
The Appellant’s Submissions
The appellant submitted that the MAC issued by the AMS contained demonstrable errors and the application of incorrect criteria. It was submitted that the WorkCover Guides were not properly complied with. The submissions referred to various alleged specific examples.
The appellant’s submissions said that she submitted, to the MAP, that it should clinically assess her in dealing with the medical appeal. The MAP declined this application. The one correction made by the MAP, to the original MAC, was to correct what it regarded as transliteration of the examination results dealing with internal rotation of the shoulders. The appellant submitted that the basis for this “assumption” was not clearly apparent.
The appellant submitted that a re-examination was called for in the medical appeal, given the “doubt as to the accuracy of the findings” of the AMS. It was submitted that the appellant had “not been afforded natural justice” and was “denied a proper assessment of her upper limb impairments”. It was likely that the measurement of 10 per cent whole person impairment was incorrect. Accordingly the “dictates of justice” required “further assessment”, particularly given the disentitling effects of s 66(1A) of the 1987 Act and s 322A of the 1998 Act.
The appellant referred to Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523. The WorkCover Guides are part of the overall statutory scheme, the assessment should be in conformity with the Guides and not otherwise. The appellant referred to the statutory framework in which the WorkCover Guides function. It was submitted that both the AMS and the MAP should have ensured adherence to the WorkCover Guides.
It was submitted that the Arbitrator was bound to examine the facts and determine whether there was “a dictate of justice” requiring her to refer the appellant for further assessment, pursuant to s 329 of the 1998 Act. Rather than doing this, she “deferred to the decision of the MAP”.
The Respondent’s Submissions
The respondent submitted that the appellant did not, in requesting the reconsideration, comply with the relevant Registrar’s Guideline dated 1 February 2011.
The respondent submitted that the appellant’s request for a re-examination was dealt with by the MAP, which gave its reasons for regarding a re-examination as unnecessary. It submitted that the appellant, in the present application, simply reiterated its submissions to the MAP, contending that the MAP’s responses were not satisfactory. The respondent submitted that those submissions were adequately dealt with by the MAP, and then by the Arbitrator. The Arbitrator, at [16] of her reasons, specifically referred to the ‘dictates of justice’, saying that such dictates did not require her to “subvert or obviate the role of the MAP”.
The respondent submitted that, contrary to the appellant’s submissions, the Arbitrator did not simply defer to the MAP. Her detailed reasons and references to authority “comprehensively address all of the appellant’s arguments”. The appellant submitted that the Arbitrator’s error was “evident from Reasons [16]”. However, the appellant’s submissions “completely fail to address this assertion”.
Discussion
Roche DP in Milosavljevic at [58] observed that s 329 “provides no guidance as to how or when it is to be used”. Malpass AsJ in Read v Liverpool City Council & Anor [2007] NSWSC 320 (Read) at [26]–[27] observed:
“26 The intended function of s 329 is far from clear. It is a question that was not the subject of full argument. It may be that it affords a remedy which should have been pursued with the Commission by the plaintiff in lieu of the application for leave to appeal.
27 Also, it may be that s 329 was intended to provide a remedy in cases where no grounds of appeal can be made out but the dictates of justice require a further referral for assessment.”
Roche ADP (as he then was) dealt with s 329 in Mansour. In that matter, the worker was assessed by an AMS, who had access to, and referred to, a surveillance report. The worker had previously indicated he objected to the surveillance report being relied upon, in the absence of the unsighted video. There was an issue about whether the person observed was the worker. The video itself was not admitted into evidence.
The parties appealed to a Medical Appeal Panel. The employer lodged the video. The Medical Appeal Panel relied on the video evidence, reducing the assessment previously made by the AMS. The issue regarding identification had not been resolved. Subsequently an Arbitrator made orders pursuant to s 329(1)(b) of the 1998 Act, for referral to a fresh Appeal Panel, this to be without reference to the surveillance report or video. The employer appealed those orders.
The Acting Deputy President reviewed a number of authorities dealing with procedural fairness in the context of the Commission. He concluded, at [54], that “Appeal Panels have either a common law or an implied statutory obligation to comply with such rules [of procedural fairness]”. He said at [56]:
“In addition, the Commission has a statutory and common law duty to comply with such rules. Any decision by the Commission based on an Appeal Panel certificate which has been based on a clear breach of the rules of procedural fairness would be founded on a fundamental error. Such a decision should not be made if it can properly be avoided. The Commission’s decisions must be based on relevant, logical and probative evidence.”
And at [60]:
“Nevertheless, the Commission is not bound to enter an award or make a determination in the terms of an Appeal Panel certificate if to do so would, as it would in this case, result in a determination based on fundamental error.”
At [68] the Deputy President said that s 329 of the 1998 Act “is in broad unlimited terms without any need for preconditions to be satisfied before it can be used”. He said that a referral pursuant to s 329 must be to an AMS, not to an Appeal Panel, but it need not be the original AMS (at [66]). He rejected an argument of the employer, that if a worker was dissatisfied with a review conducted by an Appeal Panel, the only redress was through the Supreme Court (at [67]). The Arbitrator’s referral for further assessment was, subject to it being to an AMS rather than an Appeal Panel, confirmed.
The operation of s 329 was again reviewed by Roche DP in Milosavljevic. That was a matter in which the worker appealed to a Medical Appeal Panel, and then sought a reconsideration from the Medical Appeal Panel. The Commission then issued a Certificate of Determination, consistent with the most recent MAC, concluding the proceedings. Subsequent to that, the worker applied for further referral to an AMS, pursuant to s 329.
The Deputy President considered the various statutory provisions contained in Pt 7 of Ch 7 of the 1998 Act, which deals with Medical Assessment. He referred to his decision in Mansour at [58(c)], saying:
“My reference to section 329 being in ‘broad unlimited’ terms was a reference to the fact the section provides no guidance as to how or when it is to be used. That is not to say that the section stands outside the terms of the Workers Compensation Acts. It doesn’t, and it must be read in the context of that legislation. There is nothing to indicate that the legislature intended that section 329 could be used in an unrestrained or unlimited way regardless of the Commission’s previous orders or determinations. The exact scope of section 329 must be determined on a case-by-case basis;”
He said at [58(d)]:
“Whether the dictates of justice require a further referral requires a careful consideration of the facts in each case, but whether such a referral can be made is always subject to the Commission’s jurisdictional limits;”
At [58(i)] the Deputy President observed that, even if a Medical Appeal Panel had “misdirected itself as to the task it was required to perform”, there was no right of appeal to a Presidential member on such an error. He said that s 329 did not give the Commission power to order a further referral to an AMS, where there was a binding determination in the proceedings by the Commission (at [59(g)]. He said that, even if the worker’s application pursuant to s 329 had been made before a determination was issued:
“… I do not believe such relief would have been granted, as Ms Milosavljevic has established none of the procedural fairness grounds made out in Mansour and has not established any other valid basis that would justify the use of section 329(1)(b);”
The Appeal to the Medical Appeal Panel
The appellant’s written submissions, before the Arbitrator, had attached to them a copy of her submissions made to the MAP (the MAP submissions). The MAP submissions referred to:
(a) An alleged discrepancy between the appellant’s history to the AMS of doing housework “provided there is no reaching above shoulder level”, and the AMS recording 160 degrees of flexion when measuring bilateral shoulder movement.
(b) The WorkCover Guides at Chapter 2, dealing with the upper extremity, say that only active (as opposed to passive) motion should be measured, with several repetitions. The American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition (AMA5) made suggestions for the manner in which examination findings may be recorded. AMA5 at page 475 referred to recording goniometer readings. The MAC did not record whether the motions measured were active or passive, whether a goniometer was used, or whether several repetitions were attempted. The MAC did not include documents recording the measurements, of the kind referred to in AMA5.
(c) The AMS did not include reasons explaining why the flexion measurements were the same on both sides, when there was a complaint that the right side was worse than the left. This was described as a “failure to provide reasons”.
(d) There was reference to the transliteration of internal rotation measurements, an error corrected by the MAP.
(e) The MAC was not provided by the AMS within 10 days of the assessment, as required by the WorkCover Guides.
(f) After referring to various authorities, the appellant requested that the MAP carry out a re-examination, on the basis that “the assessment which was required … was not in fact carried out”.
(g) Some submissions were made of a general nature, referring to a medical assessor’s duty, pursuant to the WorkCover Guides to act in a way which is “accurate, comprehensive and fair”, and to a range of authorities.
(h) The appellant submitted that “the assessment which was required was not in fact carried out”, and submitted that the MAP should “undertake a clinical examination of the worker”.
(i) It was submitted that the AMS erred in failing to assess “scarring post surgery” in his assessment.
The appellant’s submissions before the MAP, at [13], said that the MAC did not record whether the AMS attempted several repetitions when measuring movement, whether active or passive shoulder rotation was measured, or whether a goniometer was used. It was not actively submitted, on the basis of any evidence, that these things had not been done.
The MAP issued its decision on 13 November 2015. It considered the appellant’s submissions and dealt with them at [28]–[31] (regarding (a)), [32]–[37] (regarding (b)), [38] (regarding (c)), [39]–[41] (regarding (d)), [42]–[43] (regarding (e)) and [46]–[47] (regarding (i)). The appellant’s submissions referred to above at (f) and (h) went to the request that an examination be performed by the MAP. At [9] the MAP said that it did not consider a re-examination to be necessary “for the reasons given below”. It could be inferred from the following reasons of the MAP that it regarded the examination by the AMS to have been thorough, and sufficient to permit assessment.
The MAP explained, in dealing with the matters raised at (a) to (c) above, why much of the appellant’s attack on how the AMS conducted his examination was without substance. It referred to this aspect of the submissions as being “founded upon a wrong interpretation of the assessment process”. It referred to Jones v The Registrar WCC [2010] NSWSC 481 at [50] regarding the “presumption of regularity”. The MAP had regard to the absence of evidence from the appellant dealing with whether relevant aspects of the WorkCover Guides had been adhered to, in conducting the examination. In its reasons at [35] it said:
“The presumption of regularity also applies to the measurement of the range of motion in a shoulder. A presumption is of course always rebuttable, but there is no evidence before us apart from speculation and assumption that would disturb that presumption.”
The Application Before the Arbitrator
The appellant, in its submissions before the Arbitrator, described the application as being pursuant to s 329(1)(b) of the 1998 Act. Reference was made to the decisions in Mansour and Milosavljevic.
The appellant correctly submitted that, notwithstanding the MAP appeal, the Commission had jurisdiction to make the order sought. It was noted that, unlike the situation in Milosavljevic, the application was not made after the Commission had made a “binding determination”.
The appellant’s submissions to the Arbitrator attached a copy of her submissions before the MAP. Reference was made to the earlier submissions going to the failure by the AMS to record whether “several repetitions” were attempted when assessing movement. The appellant’s submissions before the Arbitrator then said “She says in fact, by these submissions, that such did not occur” (submissions at [25]). The appellant then referred to whether a goniometer was used, and said “the Applicant also says, by these submissions, that such was not used” (again, at [25]).
The appellant’s submissions before the Arbitrator, at [27]–[28], referred to the reference by the MAP, to the presumption of regularity. The appellant referred to the MAP’s reliance on a “presumption as to the method of examination” (the appellant’s emphasis), and submitted “As already stated, this was in fact not done.” Reference was made to the MAP saying “ordinarily we would expect that an AMS would use a goniometer and we assume that one was used in this case, for the reasons given below” (the appellant’s emphasis). The appellant’s submissions continued “As already stated, this was in fact not the case.”
The appellant’s submissions before the Arbitrator at [30] said:
“It is submitted that the ‘dictates of justice’ require a further referral for assessment. This would not, as stated by the Arbitrator at the teleconference, result in a never ending cycle of medical assessment and reconsideration. It requires only that an AMS again examine the Applicant and provide a MAC which obliges the requirements of the Guides and accurately records, after several repetitions, the precise ranges of motion in each upper extremity (expected to be measured by the use of a goniometer).”
The respondent’s submissions before the Arbitrator referred to the reliance by the MAP on the presumption of regularity, and to the finding by the MAP that there was “no evidence” to disturb this presumption (submissions at [4]). It noted, at [5], that the MAP “addressed each of the applicant’s grounds of appeal in detail”, and concluded that “examination by another AMS or the Appeal Panel was not required”. It submitted at [10] that there was no evidence the appellant had been denied procedural fairness; her appeal was “properly considered and determined by the Medical Appeal Panel with clear reasons, addressing each ground of appeal”.
The respondent submitted, before the Arbitrator, at [16], that the appellant could, on the Medical Appeal, have provided evidence to disturb the presumption of regularity, in accordance with s 327(3) of the 1998 Act.
The appellant, in her submissions in reply before the Arbitrator, again submitted that the appellant had not been afforded an examination by the AMS in accordance with the WorkCover Guidelines.
Resolution of the Issue
The appellant’s submissions on this appeal largely restate the submissions made to the MAP. Those submissions were dealt with in the MAP decision. There is no further avenue in the Commission, pursuant to Pt 7 of Ch 7 of the 1998 Act, for appeal from the MAP decision.
I accept, consistent with Mansour, that an order can be made pursuant to s 329(1)(b) of the 1998 Act, notwithstanding that there has been a MAP decision. There has been no final determination of the dispute, and I accept that the Commission has jurisdiction to make such an order, should it be appropriate. I also accept, as was stated in Mansour at [74], that a party, having failed in a Medical Appeal, is not restricted to taking Supreme Court proceedings as his or her only recourse.
The evidence does not establish that the method of examination employed by the AMS was inconsistent with the WorkCover Guides. The evidence does not establish that the AMS did not use a goniometer (which is not compulsory in any event) when examining the appellant. The MAP, in reaching its conclusion, specifically referred to the absence of such evidence, in accepting the presumption of regularity. The appellant, in making her written submissions before the Arbitrator, specifically submitted that these deficiencies existed. There was no evidence to that effect. The argument was made in this way, for the first time, before the Arbitrator.
The Workers Compensation Commission Rules 2011 (the Rules) at Pt 15 r 15.2 provide:
“15.2 Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(1) evidence should be logical and probative,
(2) evidence should be relevant to the facts in issue and the issues in dispute,
(3) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(4) unqualified opinions are unacceptable.”
The Arbitrator referred, in passing, to those submissions before her which asserted the AMS had not done certain things (her reasons at [8]). She did not otherwise refer to or rely on this aspect of the appellant’s submissions.
The appellant’s submissions on the appeal, at [14], refer to her submissions before the Arbitrator at [24]–[29]. This includes the submissions which specifically asserted failure by the AMS to conduct several repetitions when measuring movement, and to use a goniometer ([27]–[28] of those submissions).
The appellant’s submissions on this issue were not based on evidence. The effect of this is that these submissions, on that issue, are unsubstantiated, and of no weight.
It was observed by Roche DP that s 329(1)(b) of the 1998 Act was in “broad, unlimited terms” (Mansour at [68]). The Deputy President also observed in Milosavljevic at [58(c)], and I accept, that the provision must be read in the context of the 1987 and 1998 Acts. It is not to be “used in an unrestrained or unlimited way”. Its scope is to be “determined on a case by case basis” (see the passage quoted at [65] above). Its use is predicated on “the dictates of justice” (see the passage quoted at [66] above).
The primary submission of the appellant on appeal was set out at [13]–[14] of her submissions, which I quote verbatim:
“13.
The appellant submits that on her submissions to the MAP and with the result that followed in the MAP MAC whereby she was not afforded a re-examination by the MAP even though she requested a re-examination in these circumstances where a re-examination was called for and in the circumstances of real doubt as to the accuracy of the findings expressed by AMS Dr Tim Anderson she has not been afforded natural justice and has been denied a proper assessment of her upper limb impairments.
14.
The appellant submits that with the doubt that arises in the AMS having applied the Guides to Assessment (Repetitions to be carried out and recorded and documented in standard form and measured with a Goniometer) (See Submissions Annexure ‘2’ ([24–29]) she has been denied ‘natural justice’ and it is likely that an incorrect result has obtained in the MAP measured at 10% WPI on an uncertain basis. It is submitted that the dictates of justice require a referral for further assessment and particularly so due to the disentitling effects of applicable pursuant to s 66(1A) and S 322A).”
In the context of Ch 7, Pt 7 of the 1998 Act, the primary vehicle for correcting error, in an assessment by an AMS, is the provisions of ss 327 and 328, providing for medical appeals. In most cases where such error is alleged, the appropriate means of challenging the assessment of an AMS will be the lodgment of a medical appeal pursuant to s 327, rather than seeking a further referral pursuant to s 329(1)(b).
It was observed by Malpass AsJ, in Read at [27], that s 329(1)(b) may be intended to afford a remedy where grounds of appeal cannot be made out, but the dictates of justice require a further referral for assessment (see the passage at [58] above). In the unusual facts in Mansour, the worker had not received procedural fairness, as the Medical Appeal Panel reached its conclusion, at least in part, by reference to video evidence which was the subject of an unresolved dispute, regarding whether the person depicted was the worker.
Section 329(1)(b) provides a remedy in circumstances where a Medical Appeal, for whatever reason, is not sufficient to satisfy the dictates of justice. The factual situation in Mansour is a good example.
The appellant’s fundamental argument is that one cannot be satisfied that the AMS conducted an appropriate medical examination, in accordance with the WorkCover Guides. In those circumstances, the appellant requested that the MAP have her re-examined by a member of the Panel. The MAP declined this request. This represented a denial of natural justice. The appellant submitted that the dictates of justice require that this be remedied by a referral for further assessment pursuant to s 329(1)(b).
The difficulty with this argument is that there is no evidentiary basis for the proposition that the examination by the AMS did not comply with the WorkCover Guides. The submissions to the MAP, which have been largely restated in the submissions to the Arbitrator and on this appeal, made various suggestions about deficiencies in the examination process, on the basis of what the AMS did or did not record. There was challenge to how the AMS dealt with a history about elevation of the arms when performing housework. The MAP considered those submissions. The MAP gave cogent reasons for not accepting them, at [23]–[38] of its decision.
It was a matter for the discretion of the MAP, whether or not it ordered a re-examination. It did not accept the appellant’s submissions going to the alleged deficiencies in the method of examination adopted by the AMS. It was understandable, in those circumstances, that it did not consider a re-examination to be necessary.
The MAP referred to the lack of evidence to support the contention that the AMS fell into error in how he conducted the examination. The MAP relied on the presumption of regularity. It noted that the presumption was rebuttable, but that there was no evidence to disturb the presumption “apart from speculation and assumption” (its reasons at [32]–[35]). The state of the evidence did not change thereafter. The appellant made a written submission to the contrary, before the Arbitrator, which is not entitled to weight as it is unsupported by evidence.
The appellant submitted, on this appeal, that there were “circumstances of real doubt as to the accuracy of the findings expressed by AMS Dr Tim Anderson”. This submission is not supported by evidence.
It follows that the evidence did not support the presence of error in how the AMS conducted the examination of the appellant. That being so, the decision by the MAP, that a re-examination was not necessary, did not amount to a denial of procedural fairness to the appellant. The MAP dealt at some length, with the submissions of the appellant going to the alleged deficiencies in the assessment process. It engaged with those submissions, and gave convincing reasons for not accepting them. There are no other reasons advanced by the appellant in this appeal, which would form an appropriate basis for an order pursuant to s 329(1)(b).
The Arbitrator’s reasons were generally consistent with the above reasoning process. She set out the relevant statutory provision, and referred to the decisions in Mansour and Milosavljecic. She observed that the factual position in Mansour was different to that in the current matter (her reasons at [11]–[12]). She noted that the application of s 329 must be determined on a “case-by-case basis”, and is subject to the “dictates of justice”. This required “careful consideration of the facts in each case” (her reasons at [13]–[15]). She referred to the statutory provisions and case law, going to the test she was required to apply.
The denial of procedural fairness, including by an Appeal Panel, was fundamental to the conclusion of Roche ADP in Mansour, that the discretion pursuant to s 329(1)(b) should be exercised. The appellant’s argument, before the Arbitrator, asserted that the appellant’s request to be re-examined by a member of the MAP, which was declined, was the only way the ‘demonstrable error’ by the AMS could be resolved (appellant’s submissions to the Arbitrator at [26]) (emphasis added). It was submitted that the “dictates of justice require a further referral for assessment” (appellant’s submissions to the Arbitrator at [30]).
The Arbitrator noted that the MAP refused the appellant’s application that she be re-examined by a member of the Panel, and gave reasons (her reasons at [16]). She then referred to whether the “dictates of justice” required that she order a further assessment. She noted that the appellant appealed to the MAP, and requested re-examination. She noted that the appellant asserted that:
“… the AMS erred and failed to properly follow the WorkCover guides. She appealed and requested a re-examination for these reasons.”
The Arbitrator observed that the appellant’s submissions, on appeal to the MAP, were “the same reasons that are being put to me to refer the matter to an AMS for further assessment”. She concluded that it was:
“… not, in my view, in the ‘dictates of justice’ for me to subvert or obviate the role of the MAP, who has considered the very submissions about the AMS’ assessment, that the applicant makes before me and rejected them, to make a different decision to that of the Panel …”
The appellant submitted that, rather than applying an appropriate test in dealing with the application pursuant to s 329(1)(b), the Arbitrator “deferred to the decision of the MAP”.
It is necessary that the Arbitrator’s reasons be read as a whole: Beale v GIO (NSW) (1997) 48 NSWLR 430 (Beale). The role of the MAP was central to the application made by the appellant pursuant to s 329(1)(b). Much of the Arbitrator’s analysis, in her reasons at [16], went to the desirability (or lack of it) of her reaching a conclusion contrary to that of the MAP, on the issue of whether the appellant had established deficiencies in the assessment method of the AMS.
The Arbitrator noted that the appellant had had the opportunity to appeal to a MAP and request re-examination by one of its members. “[T]his application and her complaints about the application by the AMS of the WorkCover Guides were specifically considered by the MAP and declined.” She said the “dictates of justice” did not require the further referral to an AMS.
The Arbitrator clearly approached the matter with an awareness of the relevant statutory provisions, and the Presidential decisions, to which she referred. She referred to the principles which emerged from those decisions. She clearly was aware that she was not bound to accept the conclusions of the MAP, if the interests of justice dictated otherwise (Mansour, to which she referred). She was aware that the operation of s 329(1)(b) was to be decided on a “case-by-case basis” (Milosavljevic, to which she referred). Read in this light, her reasoning is to be understood in the context of the specific factual background in the current matter. She did not accept that she should, contrary to the decision of the MAP, accept the arguments of the appellant going to the deficiencies in how the AMS conducted his examination. It followed from that that there was no injustice or denial of procedural fairness in the decision of the MAP, that a re-examination was not required.
For reasons set out above, I agree with the Arbitrator’s conclusion in this regard. The reasons given by the MAP for rejecting the appellant’s submissions, on compliance by the AMS with the WorkCover Guides, were cogent, and I accept them. The evidence does not support the conclusion argued for by the appellant, that the WorkCover Guides were not complied with. In those circumstances, the discretionary decision by the MAP, that re-examination was not required, did not result in procedural unfairness. There is no basis established for the further referral of the matter to an AMS, pursuant to s 329(1)(b) of the 1998 Act.
It follows from the above, that I do not accept that the Arbitrator applied a wrong test, nor that she erred in her reasoning process dealing with the application. Ground number 1 is rejected.
GROUND NUMBER 2 – FAILURE TO PROPERLY CONSIDER THE APPLICATION AND PROVIDE PROPER REASONS
The Appellant’s Submissions
This ground largely repeats matters raised in ground number 1. The submissions on ground number 2 said:
“The appellant repeats the submissions made under ground 1 and in addition submits that in so determining to reject the appellant’s application the arbitrator failed to give proper reasons in that she did not in any meaningful way address the appellant’s submissions made to her and explain in her determination the reason for not accepting those submissions”.
It was further submitted:
“As the arbitrator did not properly direct herself as to the proper test for her to invoke the application of s 329(1)(b) in favour of the appellant she failed to give proper reasons as required and merely stated that her role was to defer to the decision of the MAP as contained in the MAC.”
Reference was made to the Arbitrator’s reasons at [16], and to the decisions in Beale at 431 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) at 279.
For reasons above dealing with ground number 1, I do not accept that the Arbitrator failed to apply a proper test.
There remains an argument by the appellant that the Arbitrator’s reasons were inadequate. Soulemezis at 279 consists largely of discussion by McHugh JA (as he then was) of the purposes of judicial reasons, rather than the statement of principles dealing with the discharge of that duty. The use the appellant sought to make of that passage is not readily apparent. The passage from Beale which is referred to, at 431, includes the following:
“Nevertheless, there is a miscarriage where what is and is not disclosed involves a breach of the principle that justice must not only be done but must be seen to be done. The relevant legal principles are discussed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 especially at 280B–C and 281B–C and in Mifsud v Campbell (1991) 21 NSWLR 725.”
McHugh JA in Soulemezis at 281F referred to the principle that “justice must not only be done but must be seen to be done”.
There is a helpful review of the authorities, and the associated principles, in the decision of Keating P in NSW Police Force v Newby [2009] NSWWCCPD 75 (Newby). His Honour referred to the statutory basis of the duty, in the context of the Commission (s 294(2) of the 1998 Act and the Rules at Pt 15 r 15.6). His Honour, at [149]–[151], said:
“149. To succeed in having the Arbitrator’s decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247). Reasons must set out the judge’s (Arbitrator’s) reasoning process and merely incorporating counsel’s submissions is not appropriate (Sourlos v Luv a Coffee Lismore Pty limited & anor[2007] NSWCA 203 at [30]).
150. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority(1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council[2005] NSWCA 424).
151. When considering the adequacy of the reasons the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443–444 (‘Beale’)). A Presidential member on review is not required to comb through the Arbitrator’s findings and reasons in search of error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). In Soulemezis v Dudley (Holdings) Pty Ltd(1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:
‘If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter(1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36.’”
It is necessary to read the Arbitrator’s reasons as a whole. The reasons did not simply consist of the discussion at [16] of the reasons. As discussed above, the reasons included reference to s 329(1) of the 1998 Act, and the two relevant Presidential decisions dealing with it. They included reference to the essential principles emerging from those decisions. It is apparent that the Arbitrator was cognizant of the test which she was required to apply.
The Arbitrator, at [6] of her reasons, set out the procedural history of the matter. At [8] of her reasons she set out the appellant’s submissions. This included acknowledgment of the appellant’s argument going to alleged deficiencies in the examination by the AMS, and of the argument that “demonstrable error” in the MAC could only be solved by a re-examination, which the MAP declined.
The Arbitrator, at [16], noted that the MAP gave reasons for rejecting both the application for a re-examination, and the appellant’s arguments on that appeal. She regarded the proposed further referral as “a circuitous process” which had the capacity to generate a further appeal. She made a specific finding that “the dictates of justice” did not require the further referral. She gave a specific reason for this. She said that the appellant had had the opportunity to appeal to the MAP, and to request re-examination by it. The MAP had declined the application for a re-examination, and also the appellant’s arguments going to error by the AMS in applying the WorkCover Guides. The “very submissions” put to her had previously been considered and rejected by the MAP.
It is apparent that the Arbitrator was dealing with the application on the basis of whether the dictates of justice required that the order be made. She concluded that this was not so, in circumstances where the appellant had already had the same arguments and application for re-examination dealt with, and refused, by the MAP. The Arbitrator did not, in her reasons, identify any aspect of the MAP decision which involved procedural unfairness, or which otherwise made it desirable that a further examination be ordered.
Meagher JA in Beale at 444 said:
“It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.”
Having regard to the authorities and principles discussed above, the Arbitrator’s reasons were adequate, and complied with her statutory and common law duty.
Ground Number 2 is rejected.
DECISION
The Arbitrator’s decision dated 30 March 2016 is confirmed.
Michael Snell
Acting President
15 July 2016
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