Cheers v MidCoast Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Cheers v MidCoast Council [2023] NSWPIC 326
APPLICANT:	Paul Cheers
RESPONDENT:	Mid Coast Council
Member:	Rachel Homan
DATE OF DECISION:	7 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; consideration of whether matter should be referred back to Medical Assessor (MA) where relevant documents were not included in the referral; consideration of the powers in section 329(1)(a) and 329(1A); Massie v Southern NSW Timber and Hardware Pty Limited considered; admission of late documents; Held – matter referred back to same MA for reconsideration pursuant to section 329(1A); late documents admitted pursuant to rule 67(4) of the Personal Injury Commission Rules 2021.
determinations made:	The Commission determines: 1. The matter is referred back to Medical Assessor Blom for reconsideration pursuant to s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 as follows: Date of injury: 29 July 2022 (deemed) Body system: Psychological Method: Whole Person Impairment 2. The materials to be referred to Medical Assessor Blom are to include: a. the Application to Resolve a Dispute and all attachments; b. the Reply and all attachments; c. the supplementary report of Dr Yajuvendra Bisht, dated 4 January 2023, attached to the Application to Admit Late Documents lodged by the respondent on 23 January 2023; d. the supplementary statement, dated 23 January 2023, lodged by the applicant under cover of a letter from his solicitor dated 23 January 2023; e. the documents attached to the Application to Admit Late Documents lodged by the respondent on 22 February 2023, and f. the documents attached to the attached to the Application to Admit Late Documents lodged by the applicant on 29 March 2023.

STATEMENT OF REASONS

BACKGROUND

Mr Paul Cheers (the applicant) sustained a psychological injury arising out of or in the course of his employment with Mid Coast Council (the respondent).
Liability for the injury had previously been disputed but, at a preliminary conference on
20 January 2023, I was informed by the respondent that liability for the injury was now accepted.
Agreement was reached between the parties for the matter to be remitted to the President for referral to a Medical Assessor for an assessment of the degree of permanent impairment resulting from the injury. The matter was to be listed for further conference on receipt of the Medical Assessment Certificate to deal with outstanding disputes in relation to claims for weekly compensation and treatment expenses.
A timetable was also established for the lodgement of late evidence, including a supplementary report from the respondent’s Independent Medical Examiner, Dr Yajuvendra Bisht, dated 4 January 2023. I directed that any late documents lodged in accordance with the timetable were, in the absence of objection, admitted in the proceedings pursuant to
r 67(4) of the Personal Injury Commission Rules 2021 and to be included in the materials to be referred to the Medical Assessor.
The report of Dr Bisht was lodged by the respondent in accordance with the timetable. No objection to its admission was made by the applicant in accordance with the timetable. In the circumstances, it was admitted in the proceedings by operation of my direction and should have been included in the materials referred to the Medical Assessor. Unfortunately, this was not done due to administrative error on the Commission’s part.
A supplementary statement, dated 23 January 2023, was also lodged by the applicant under cover of a letter from his solicitor in accordance with the timetable. No objection to its admission was made as provided for by the timetable. Unfortunately, this document also was not forwarded to the Medical Assessor.
On 22 February 2023, the respondent lodged a further Application to Admit Late Documents attaching bank records, a surveillance report and a photographic schedule to the surveillance report. The respondent submitted that it was in the interests of justice that the documents be put before the Medical Assessor.
An Application to Admit Late Documents was also lodged by the applicant on 29 March 2023 attaching the same supplementary statement and new clinical material.
Due to further oversight, neither of these Applications to Admit Late Documents was determined prior to the medical assessment.
On 14 April 2023, Medical Assessor Dr Graham Blom examined the applicant and a Medical Assessment Certificate in which the applicant was assessed as having 22% whole person impairment as a result of the psychological injury was issued on 20 April 2023. It is apparent that Medical Assessor Blom did not have before him any of the late material.
An Application to Appeal Against the decision of the Medical Assessor was subsequently lodged by the respondent relying, in part, on the failure to have regard to the supplementary report of Dr Bisht.
On 4 July 2023, the Division Head of the Worker’s Compensation Division issued a direction listing the matter before me to determine whether the matter should be referred back to Medical Assessor Blom, pursuant to s 329(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for assessment as an alternative to an appeal.
I was also directed to consider the admission of the late documents referred to above and to determine whether they should be referred to the Medical Assessor.
The parties appeared before me for preliminary conference pursuant to the Division Head’s direction on 6 July 2023. The applicant was represented by Mr Thomas Ryan. The respondent was represented by Mr Mark van der Hout. A representative from the insurer was also present. Oral submissions from both parties addressing the matters identified in the Division Head’s direction were heard and recorded and have been taken into consideration in making this determination.

FINDINGS AND REASONS

Section 329 of the 1998 Act relevantly provides a mechanism by which a further medical assessment may take place:
“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 President as an alternative to an appeal against the assessment as provided by section 327”
Sub-section 327(6) of the 1998 Act provides:
“(6) The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).”
The grounds for an appeal under s 327 of the 1998 Act are set out in sub-section (3):
“(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.”
Sub-section (4) further provides:
“(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.”
The effect of the foregoing provisions is that in order for a referral under s 329(1)(a) to be made, I must be satisfied that at least one ground of appeal in s 327(3) has been made out on the face of the application.
An alternative mechanism for reconsideration of a Medical Assessment Certificate is set out in s 329(1A) of the 1998 Act:
“(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.”
In Massie v Southern NSW Timber and Hardware Pty Limited,[1] in similar factual circumstances to those here, the Court found that where it appeared a relevant document had not been provided to the doctor conducting a medical assessment, it could not be said for the purposes of ss 329(1)(a) and 327(3), that the failure to supply the relevant document resulted in an “assessment based on incorrect criteria” or a “demonstrable error”. Sully J commented:
“Assuming that the contents of Dr. Harris’ report simply did not ever reach Dr. O’Neill in any form, it seems to me that if that is the only matter to which the Registrar could point as indicating a demonstrable error contained in the certificate as issued by Dr. O’Neill, then the matter is not capable of identifying a demonstrable error in the certificate. The contrary is not really contended in the application for leave to appeal. What that application is really contending is that it is demonstrable that Dr. O’Neill, through no fault of his own, did not take into account Dr. Harris’ report, and that Dr. O’Neill’s certificate, even if it is clearly sustainable on the whole of the material that Dr. O’Neill did in fact consider, should nevertheless not be permitted to stand because of a demonstrable need to reconsider the reasoning underpinning the certificate, and to do that taking into proper account Dr. Harris’ report.
What ought then to have been done, in fairness to all concerned, was to return the matter either to Dr. O’Neill, or if thought preferable to another accredited specialist, for a re-assessment based upon complete data. That would have accorded with the letter, as well as what seems to me to be the spirit of section 329 of the WIM Act.”
[1] [2006] NSWSC 1045.
The respondent submits, consistently with the observations of Sully J, as applied in Dar v State Transit Authority of NSW,[2] that the matter should be referred again to the Medical Assessor for reconsideration pursuant to s 329(1A) of the 1998 Act. Although the applicant has resisted that course, he has not articulated any persuasive reason why.
[2] [2007] NSWSC 260.
I find that the matter should be referred again to Medical Assessor Blom for reconsideration. This course preserves the parties’ further appeal rights and provides a more practical and fair remedy for the error arising from the failure to supply Dr Blom with the report of Dr Bisht and the applicant’s supplementary statement than referral to an Appeal Panel. There will be an order pursuant to s 329(1A) of the 1998 Act.
I note that the President’s powers in s 329 of the 1998 Act are vested in me as a non-Presidential member of the Commission by virtue of r 9 of the Personal Injury Commission Rules 2021.
In accordance with my previous direction, the materials to be referred to Medical Assessor Blom are to include the Application to Resolve a Dispute and all attachments; the Reply and all attachments; the report of Dr Bisht dated 4 January 2023 attached to the Application to Admit Late documents lodged by the respondent on 23 January 2023; and the supplementary statement of the applicant dated 23 January 2023, lodged under cover of a letter from the applicant’s solicitor, dated 23 January 2023.
Submissions were made by the applicant at the conference on 6 July 2023, that he would be prejudiced by the referral of Dr Bisht’s report of 4 January 2023 to the Medical Assessor. I note, however, that the report was admitted with the applicant’s consent at the preliminary conference on 20 January 2023, the same report having been served upon the applicant prior to that conference.
It will now be a matter for the Medical Assessor to determine what weight that report should be given in making his assessment of permanent impairment. The applicant will also be afforded an opportunity to make submissions as to its weight in the resolution of the outstanding claims for weekly compensation and treatment expenses.
What remains is to consider the admission of the further Applications to Admit Late Documents.
Sub-rule 67(4) of the Personal Injury Commission Rules 2021 provides for the admission of the late documents if I am satisfied that it is necessary to do so in the interests of justice.
The onus of establishing that it is in the interests of justice to admit late documents rests on the party seeking to have the documents admitted.[3] Relevant considerations in determining whether it is in the interests of justice to admit the late documents include:[4]
(a)    the extent of the prejudice to the other party, if any, that would result from granting leave to admit the late documents;
(b)    the effect, if any, on the timely resolution of the dispute;
(c)    the objectives of the Commission;
(d)    whether there is an acceptable explanation for the delay;
(e)    whether or not a refusal to admit the evidence would cause a substantial prejudice to the party making the application;
(f)    whether or not the delay was attributable to the legal representative and not the party;
(g)    the nature of the proceedings, and
(h)    general considerations of justice and fairness between the parties.
[3] Nelson Bay Pest Services v Morrison [2007] NSWWCCPD 135.
[4] See Procedural Direction PIC3 – Documents and late documents; Coles Myer Limited v Tabassum [2005] NSWWCCPD 16; and P & N Beverages Australia Pty Ltd v Hammoud [2008] NSWWCCPD 102.
Submissions were made at the preliminary conference on 6 July 2023 by both parties objecting to the admission of the other party’s late documents.
Turning to the respondent’s application of 22 February 2023, I note that it contains bank statements and surveillance material which the respondent says demonstrates a greater capacity to engage in activities outside the home than was suggested by the applicant’s evidence. That evidence is relevant to the Medical Assessor’s assessment of the psychiatric impairment rating scale (PIRS) category of social and recreational activities.
The applicant contends that it is prejudiced by the adverse credit inference sought to be drawn from that material. I note, however, that similar, older, material in support of the same inference was previously disclosed in the materials attached to the Reply. The applicant was questioned about those documents by the Medical Assessor previously. A similar opportunity to address the material would no doubt be provided in respect of the new material upon further examination. The applicant will also have an opportunity to respond to it in the resolution of the outstanding claims for weekly compensation and treatment expenses.
Submissions were made also by the respondent as to the weight that would be afforded to the material. This would, however, be a matter for the Medical Assessor to determine.
The new material was lodged with the Commission soon after it first became available to the respondent and well before Dr Blom’s first examination. The material is directly relevant to the Medical Assessor’s task and a refusal to admit it would cause significant prejudice to the respondent.
I am satisfied, in all the circumstances, that it is in the interests of justice that the documents attached to the Application to Admit Late Documents lodged by the respondent on
22 February 2023 be admitted in the proceedings and referred to the Medical Assessor.
Turning to the applicant’s Application to Admit Late Documents lodged on 29 March 2023, I note that this contains a duplicate copy of the supplementary statement dated
23 January 2023, recent certificates of capacity as well as clinical records not previously lodged from a treating accredited mental health social worker. These records are again directly relevant to the Medical Assessor’s task and likely to assist him in making an accurate and durable assessment.
The respondent has submitted that there is no explanation for the delay in providing the clinical records, which is true. It is apparent, however, that reports from the treating practitioner were previously provided to the insurer. The insurer could have sought the material had it so wished through a signed authority from the applicant or Direction for Production. The nature of the proceedings and the interest in ensuring that the Medical Assessor has before him as complete a picture of the treatment history as possible do, in my view, outweigh the submissions opposing the documents’ admission made by the respondent.
I note, incidentally, that although r 67(3) in the form which relevantly applied required the applicant to lodge the Application to Admit Late Documents not later than 14 working days before the medical assessment, r 67(4) nonetheless permits the documents’ admission on the grant of leave by a relevant decision-maker.
I am satisfied that it is in the interests of justice that leave be granted to the applicant to lodge the documents attached to the Application to Admit Late Documents dated 29 March 2023. Those documents are admitted in the proceedings and are also to be referred to the Medical Assessor.

[2023] NSWPIC 326

7 July 2023