Cook v Council of the City of Sydney - [2016] NSWWCCPD 51

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Cook v Council of the City of Sydney [2016] NSWWCCPD 51
APPELLANT:	Jamie Adrian Cook
RESPONDENT:	Council of the City of Sydney
INSURER:	Self-insured
FILE NUMBER:	A1-1522/13
ARBITRATOR:	Ms A Farrell
DATE OF ARBITRATOR’S DECISION:	6 June 2016
DATE OF APPEAL DECISION:	25 October 2016
SUBJECT MATTER OF DECISION:	Request by parties for re-examination of worker by Medical Appeal Panel refused; whether Arbitrator erred in issuing Certificate of Determination in accordance with Medical Appeal Panel findings; alleged denial of procedural fairness by not deferring the issuing of a Medical Assessment Certificate to enable worker to make further submissions; adequacy of reasons
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea Lawyers
Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 6 June 2016 is confirmed.

INTRODUCTION

This appeal concerns whether the Deputy Registrar acting as an Arbitrator erred in law by issuing a Certificate of Determination in accordance with a Medical Assessment Certificate (MAC) of a Medical Appeal Panel, in circumstances where the Medical Appeal Panel did not conduct a medical examination notwithstanding a request that it do so.
The appellant alleges that he was denied procedural fairness, by not being afforded an opportunity to provide submissions concerning the request for re-examination before the Certificate of Determination was issued.
The appeal also concerns an alleged failure of the Arbitrator to provide adequate reasons for her determination.

BACKGROUND

From November 2006 until 20 August 2008, the appellant worker, Jamie Cook, was employed by the respondent employer, Council of the City of Sydney, as a cleansing services officer. He was required to clean the streets using a street sweeper.
On 18 September 2008, Mr Cook lodged a claim against the respondent for compensation in respect of a psychological injury alleged to have been a result of bullying and intimidation by the employer’s depot manager of cleansing and waste.
On 14 October 2008, the respondent issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability for the claim. The respondent disputed that Mr Cook had been subjected to workplace bullying and disputed that he suffered a psychological injury arising out of or in the course of his employment. It also disputed that the employment was a substantial contributing factor to the alleged psychological injury, but if it was, the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer.
On 2 September 2011, Mr Cook claimed lump sum compensation in respect of 20 per cent whole person impairment as a result of psychological injury which arose from the “[n]ature and condition of employment from 2006 to 20 August 2008 (last date of employment)”. Mr Cook relied on the report of Dr Thomas Clark, consultant forensic psychiatrist, dated 2 May 2011.
On 5 September 2011, Mr Cook’s solicitors issued a letter to the respondent claiming lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as particularised above, together with a claim for lump sum compensation for pain and suffering pursuant to s 67 of the 1987 Act, weekly benefits from 20 August 2008 to date and continuing, and medical expenses.
Following a period of exchange of further and better particulars, on 31 May 2012, the respondent’s solicitors responded to the letter of 5 September 2011 declining the claim on the grounds asserted in its previous s 74 notice dated 14 October 2008. It also relied upon the reports of Dr Peter Snowdon, consultant psychiatrist.
On 24 January 2013, Mr Cook lodged with the Commission an Application to Resolve a Dispute (the Application). Mr Cook sought weekly benefits, medical expenses and lump sum compensation pursuant to ss 66 and 67 of the 1987 Act in respect of a psychological injury deemed to have occurred on 20 August 2010. The injury was described to have occurred as a result of bullying and harassment from employees of the respondent.
On 14 February 2013, the respondent lodged a reply to the Application, relying upon the s 74 notice and the reports of Dr Snowdon.
On 7 March 2014, a Certificate of Determination – Consent Orders was issued. The parties agreed by consent that the respondent would pay Mr Cook weekly compensation and medical expenses from 20 August 2008 to 31 December 2012. Mr Cook was referred to an Approved Medical Specialist (AMS) for assessment of impairment for psychiatric injury deemed to have occurred on 6 September 2011. Those consent orders were amended on 9 April 2014 and 10 April 2014, but nothing turns on the amendments.
On 4 April 2014, Mr Cook was examined by Dr Patrick Morris, AMS. On 15 April 2014, Dr Morris issued a MAC certifying Mr Cook to have 16 per cent whole person impairment in respect of the psychiatric and psychological disorders.
On 13 May 2014, the employer lodged an appeal against Dr Morris’s MAC. The application included a request that Mr Cook be re-examined.
On 9 February 2015, the Medical Appeal Panel revoked Dr Morris’s MAC and issued a new MAC certifying Mr Cook with seven per cent whole person impairment in respect of psychiatric and psychological disorders.
On 8 May 2015, Mr Cook commenced proceedings in the New South Wales Supreme Court seeking judicial review of the Medical Appeal Panel decision. On 18 December 2015, the Supreme Court ordered that the decision of the Medical Appeal Panel be quashed and the matter was remitted back to the Registrar to be further dealt with according to law.
On 19 January 2016, the Commission convened a new Medical Appeal Panel to determine the extent of Mr Cook’s impairment.
On 28 January 2016, Mr Cook’s solicitor sent a letter to the Commission noting that a new Medical Appeal Panel had been constituted to determine Mr Cook’s whole person impairment. The letter also recorded:
“We consider that it is absolutely essential for the worker to be re-examined by the Medical Appeal Panel, in order to ensure procedural fairness and to lessen the risk of any errors, and given the length of time since the medical examination by the Approved Medical Specialist.
Please advise us if you require further written Submissions as to why the worker should be re-examined by the Medical Appeal Panel.”
On 2 May 2016, the Medical Appeal Panel issued a MAC, revoking the MAC of Dr Morris. The new MAC records Mr Cook to have seven per cent whole person impairment in respect of psychiatric and psychological disorders.
Also on 2 May 2016, the Commission sent an email to the parties referring to the Medical Appeal Panel decision. The parties were informed that, among other things, a Certificate of Determination would be issued as soon as practicable.
On 10 May 2016, Mr Cook’s solicitor sent an email to the Commission referring the Medical Appeal Panel determination of 2 May 2016 and its letter of 28 January 2016. It noted that paragraph 15 of the medical appeal determination indicated that “after a preliminary review, the Panel determined that a re-examination was not necessary”. It then added:
“However, in our letter dated 28 January to the Commission, we specifically noted that a re-examination was essential and requested that the Commission advise us if further submissions were required.
Furthermore, we made several subsequent inquiries with the Commission for a response to our request for a re-examination of the worker.
Therefore, can you please urgently advise me why the Commission did not advise us that a preliminary review had been undertaken and give us an opportunity (as we specifically requested) to make further submissions in that regard.
…
These issues should be addressed by the Commission, otherwise there appears to be a clear breach of procedural fairness in this matter.”
In the morning of 6 June 2016, Mr Cook’s solicitor sent a further email to the Commission referring to its email of 10 May 2016 and seeking a response to that correspondence. The email requested that the Commission “defer the issuing of a final certificate until this issue has been addressed”.
In the afternoon of 6 June 2016, the Commission (constituted by the Deputy Registrar acting as an Arbitrator) issued a Certificate of Determination in accordance with the MAC of the Medical Appeal Panel. The Certificate of Determination is in the following terms:
“The Commission determines:

1.       The applicant suffers 7% permanent impairment resulting from psychological injury deemed to have happened on 6 September 2011.
2.       The applicant has no entitlement to lump sum compensation resulting from psychological injury deemed to have happened on 6 September 2011.
The Commission notes:
1.       That the respondent was ordered to pay the applicant’s costs as agreed or assessed by Certificate of Determination dated 10 April 2014.

Brief statement of reasons
2. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.
3. The applicant did not reach the threshold for lump sum compensation, as required by section 65A(3) of the Workers Compensation Act 1987.”

Mr Cook appeals the Certificate of Determination dated 6 June 2016.

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 in s 352(3) and (4) of the 1998 Act have been met.

GROUNDS OF APPEAL

Mr Cook alleges that the Arbitrator erred:
(a)     in issuing the Certificate of Determination under s 294 of the 1998 Act on 6 June 2016 based upon a MAC issued by a Medical Panel based on a PIRS (Psychiatric Impairment Rating Scale) rating determining his whole person impairment in circumstances where the Appeal Panel did not conduct a medical examination;
(b)     by denying him procedural fairness and acting “unreasonably in not deferring the issue of the Certificate of Determination to enable him to make a submission”, and
(c)     in failing to provide adequate reasons for the determination.

SUBMISSIONS AND CONSIDERATION

The alleged error of law (ground one)

Mr Cook’s submissions

The Medical Appeal Panel concluded, after conducting a preliminary review, that it was unnecessary for Mr Cook to be re-examined. Without conducting a medical examination, the Medical Appeal Panel made its own findings with respect to three PIRS categories, namely:
(a)     self-care and personal hygiene;
(b)     concentration, persistence and pace, and
(c)     employability.
Mr Cook submits that the Medical Appeal Panel “determined the rating for each of these categories without having any information available to it regarding Mr Cook’s current or recent symptoms”.
The WorkCover Guides for the Evaluation of Permanent Impairment (3^rd edition) (the Guides), Ch 11, state that the evaluation of permanent impairment requires a medical examination. Mr Cook submits the Guides require the assessment to be conducted on the basis of Mr Cook’s current symptoms and recorded on a PIRS rating form.
It is conceded that the Medical Appeal Panel has discretion as to whether it conducts a medical examination of the appellant/worker. However, if the Medical Appeal Panel does not have current evidence of the worker’s condition and decides to reject the assessment of the AMS and the medical experts relied on by the parties to form its own PIRS assessment, then, so it is submitted, the assessment must be done by examining the worker to determine the worker’s current or recent condition.
The Guides do not provide for a PIRS rating to be reached by a procedure where the Medical Appeal Panel as a whole simply reviews the documentary material and reaches its own PIRS rating based exclusively on that documentary material.
Section 322(1) of the 1998 Act provides that an assessment of the degree of permanent impairment of an injured worker must be made in accordance with the Guides. The Medical Appeal Panel has a statutory duty to comply with the Guides. The Medical Appeal Panel has no power to reach a PIRS rating otherwise than in accordance with the Guides, which require a medical examination.
Mr Cook submits that by reason of its non-compliance with the Guides, the Medical Appeal Panel’s decision is invalid (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355). As a consequence the Commission’s Certificate of Determination is also invalid.

The respondent’s submissions

The respondent submits that the first ground of appeal is misconceived because it is not within the jurisdiction of the Commission to determine whether medical examinations should be conducted by an AMS member of the Medical Appeal Panel. That decision is solely within the jurisdiction of the Medical Appeal Panel.
The Commission adopted its usual practice of issuing a Certificate of Determination approximately 35 days after the MAC or the Medical Appeal Panel decision was issued.
The respondent submits that Mr Cook’s dissatisfaction with the discretionary decision of the Medical Appeal Panel should have been ventilated either by way of an Application for Reconsideration under s 378 of the 1998 Act or by way of judicial review in the Supreme Court.
Nowhere is it suggested in the Guides that a second examination by an AMS is mandatory or required in the case of an appeal against an AMS assessment in a psychiatric impairment claim.
The requirement under the Guides for a medical examination by a psychiatrist was satisfied when Dr Patrick Morris, an AMS, assessed Mr Cook in April 2014 prior to issuing the MAC on 15 April 2014.
The respondent submits that there is nothing in the Guides to prevent a Medical Appeal Panel from reaching its own assessment of the PIRS rating based exclusively on the documentary material that is before it.
The Medical Appeal Panel considered and rejected Mr Cook’s application for re-examination by an AMS member of the Panel. The Medical Appeal Panel gave reasons for declining to exercise its discretion to arrange for a further re-examination, namely that the task of the Panel is confined to the grounds of appeal. Having regard to the grounds of appeal, namely incorrect criteria and demonstrable error, there were no elements of those grounds that the Medical Appeal Panel considered required re-examination. The respondent submits that those reasons disclose no error.
A decision by a Medical Appeal Panel to reassess the worker is discretionary. The circumstances will vary as to whether a Medical Appeal Panel can or cannot revoke a MAC for error without a further assessment by an AMS member of the Panel (New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33] and [35]).

Mr Cook’s submissions in reply

Section 324(1) of the 1998 Act gives an AMS a range of powers including the requirement for a worker to submit for examination by an AMS. Those powers extend to an AMS acting as a member of a Medical Appeal Panel. Mr Cook submits “the duties governing an AMS also apply. This includes the duty under s 322(1) to assess in accordance with the Guides”.
Mr Cook submits that:
“[i]n some cases the Guides may leave a discretion as to whether a medical examination is necessary. However where the Guides impose a duty to conduct a medical examination, clause 44 [sic, cl 45] is not a basis for disregarding that duty.”
The Medical Appeal Panel relied on the documentary material that it inferred had not been taken into account by Dr Morris. This was surveillance video taken on 17, 21, 22 and 23 November 2011, four and a half years prior to the second Medical Appeal Panel’s decision. He submitted that “[t]he Second Appeal Panel made a medical assessment and in doing so failed to comply with the Guides”.
A different outcome may apply where the Medical Appeal Panel confirms an existing assessment of psychological impairment made by an AMS who has conducted a medical examination relatively recently.

Consideration

The disputed compensation concerned a claim for permanent impairment compensation under s 66 of the 1987 Act. The parties are in dispute as to the quantum of any whole person impairment arising from the accepted psychological injury. That is the only issue in dispute.
The jurisdiction of the Commission to determine a dispute in respect of such a claim is qualified by s 65 of the 1987 Act. Where the dispute concerns the degree of permanent impairment, as in this case, that dispute must be referred to an AMS for assessment.The Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an AMS (s 65(3)). An assessment certified in a MAC is conclusively presumed to be correct as to those matters in any proceedings before the Commission with which the Certificate is concerned (s 326 of the 1998 Act).
There is a right of appeal on limited grounds to a Medical Appeal Panel against a medical assessment (s 327 of the 1998 Act). In addition, such a matter may be referred to the Registrar or the Commission for further assessment or reconsideration by an AMS (s 329 of the 1998 Act).
Section 328 of the 1998 Act sets out the procedure on appeal:

“328 Procedure on appeal

(1)    An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.
(2)    The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can provide for the procedure on an appeal.
(3)    Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.
(4)    When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.
(5)    The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.
(6)    The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.”

The Workcover Medical Assessment Guidelines (the Guidelines) are issued pursuant to the power under s 376 of the 1998 Act. The explanatory note to the Guidelines state that “[t]hese guidelines set out the procedures for the referral of medical disputes for assessment and appeal, and the procedures for assessment and on appeal under Part 7 of Chapter 7 of the 1998 Act”. Relevantly cl 45 (wrongly referred to a cl 44 by Mr Cook) provides:
“45. An appeal panel consists of two approved medical specialists and one arbitrator. The appeal panel may adopt any of the following procedures in accordance with the needs of the individual case:
•preliminary review (in all matters),
•‘on the papers’ review,
•further medical examination by an approved medical specialist on the appeal panel,
•assessment hearing.
Where a further medical examination is required, the registrar will advise the worker of the time and place of the examination. A support person (other than an agent or legal adviser) may accompany a worker to the examination. The worker should not bring any additional medical or other reports to the examination, unless specifically asked to do so. If it is necessary to bring x-rays or similar documents the worker will be advised of this in the letter from the registrar.
The registrar must be advised in advance if an interpreter is required for the examination.” (emphasis added)

The Commission’s Practice Direction No 11 sets out the process for the resolution of permanent impairment disputes lodged with the Commission. It provides, among other things, the procedure for the issue of a Certificate of Determination following a MAC. It provides:
“If there is no entitlement to compensation for pain and suffering arising from the assessment of the degree of permanent impairment, the Commission will determine the dispute and issue a Certificate of Determination in accordance with the Medical Assessment Certificate – after the expiration of the 28-day period for lodgment of an appeal against the Medical Assessment Certificate.”
Consistent with Practice Direction No 11, the Commission adopts a similar practice with respect to medical appeals. It is the Commission’s invariable practice with respect to medical appeals to issue a Certificate of Determination 35 days after the Medical Appeal Panel decision.
Where a party is dissatisfied with the outcome of a Medical Appeal Panel decision, as the respondent submits, there are two options available under the legislation.
First, it was open to Mr Cook to seek a reconsideration of the Medical Appeal Panel decision pursuant to s 378 of the 1998 Act.
Second, Mr Cook could have proceeded by way of a summons filed in the Supreme Court seeking judicial review of the Medical Appeal Panel’s decision pursuant to s 69 of the Supreme Court Act. Indeed, that was the remedy sought by Mr Cook after the first Medical Appeal Panel decision.
Mr Cook chose to adopt neither of the alternatives available to him. Instead Mr Cook seeks a review by the Commission of the exercise of the Medical Appeal Panel’s discretion in relation to the re-examination request. As the respondent submits, the Medical Appeal Panel noted at [13] of its decision that Mr Cook requested that the Medical Appeal Panel conduct a re‑examination.
At [14] of its decision, the Medical Appeal Panel noted that by letter dated 28 January 2016, Mr Cook’s solicitor also requested that Mr Cook be re-examined by the Medical Appeal Panel “in order to ensure procedural fairness and to lessen the risk of any errors, and given the length of time since the medical examination by the Approved Medical Specialist”. Therefore, Mr Cook’s solicitor’s request for the re-examination and the submissions in support of that request were before the Medical Panel when it determined whether or not to exercise its discretion to conduct a re-examination of Mr Cook.
At [15] of its decision, the Medical Appeal Panel gave reasons as to why it declined to exercise its discretion to arrange for an AMS member to re-examine Mr Cook. Those reasons were as follows:
“As a result of the preliminary review, the Panel determined that it was not necessary for the worker to undergo a further medical examination for the issues in the appeal to be determined. The task of the Panel is to ascertain whether the grounds for appeal against the MAC of Dr Morris are made out. These questions are set out in paragraph 4 above. There is no element of these grounds that the Panel finds requires re-examination.”
I accept the respondent’s submission that this appeal is misconceived. It seeks to circumvent the provisions of s 378 or judicial review by the Supreme Court, by having the Commission consider the merits of the exercise of the Medical Appeal Panel’s discretion with respect to the re-examination issue. The Commission has no jurisdiction to entertain such a submission in an appeal under s 352.
The Commission’s jurisdiction with respect to disputes in relation to claims for permanent impairment compensation was considered in Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 where Meagher JA (Leeming and Simpson JJA agreeing) held (at [53]):
“The jurisdiction conferred on the Commission by s 105 of the 1998 Act, subject to the exceptions in s 105(2) and (3), is to determine a limited class of matters. Those matters include disputed claims for compensation for permanent impairment. However where an aspect of any such dispute concerns the degree of permanent impairment resulting from an injury for which the employer is liable, the Commission is required to refer that medical dispute for assessment and must determine the disputed claim in accordance with that assessment. Its jurisdiction to determine that claim does not extend to making or acting on its own assessment or finding in relation to such a medical dispute. Nor does that jurisdiction permit it to rely on such an assessment or finding as determining whether there is a medical dispute to which Ch 7, Pt 7 of the 1998 Act applies.”
His Honour went on to hold at [54]:
“The relevant finding was made in proceedings for the determination of disputed claims to weekly compensation and medical expenses. No claim for lump sum compensation was made. Had such a claim been made and had it involved a dispute as to the degree of permanent impairment, the Commission’s jurisdiction did not permit it to determine that medical dispute by reference to its own findings; or that by reason of those findings there was no real or bona fide medical dispute. That was so irrespective of whether those findings were made in the course of determining the other claims, or in relation to the claim for lump sum compensation. In either case, if there was a medical dispute, it had to be referred for assessment, and decided by the Commission in accordance with that assessment.”
The relief sought by Mr Cook in this matter urges that the Certificate of Determination of 6 June 2016 be revoked and that the matter be referred to a new Medical Appeal Panel with a direction that the Medical Appeal Panel arrange a re-examination of Mr Cook to determine Mr Cook’s correct assessment of whole person impairment. The Commission has no jurisdiction to make such an order.
In Haroun v Rail Corporation (NSW) [2008] NSWCA 192; 7 DDCR 139, Handley AJA (McColl JA and McDougall J agreeing) held at [21]:
“Since the Arbitrator had no jurisdiction to decide the medical dispute he, referred [sic] had no jurisdiction to make findings which were binding on the AMS or the Appeal Panel. The finding of a person without jurisdiction cannot bind the person or persons with jurisdiction, and cannot even be persuasive.”
The submission that the Guides require a medical assessment, in this case by a psychiatrist, was satisfied, as the respondent submits, when Mr Cook was assessed by Dr Morris in April 2014. The submission that the Guides oblige a Medical Appeal Panel to conduct a second medical assessment is contrary to accepted authority and I reject it. The question of re-examination was a matter solely within the discretion of the Medical Appeal Panel (Pateman v Peninsula Village Ltd t/as Peninsula Village Retirement Centre [2007] NSWSC 586 at [113]).
Mr Cook asserts that the Medical Appeal Panel wrongly exercised its discretion to proceed in the absence of a re-examination because of a lack of contemporaneous medical evidence. The Medical Appeal Panel was well aware of Mr Cook’s contention, however, it was not persuaded that having regard to the grounds of appeal, a re-examination was necessary. There is nothing in the Guides that indicates that a second examination by an AMS is mandatory or required in the case of an appeal against an AMS assessment in a psychiatric impairment claim. It is clearly a discretionary matter for the Medical Appeal Panel.
The submission that the Medical Appeal Panel had no power to make its own findings without such an examination is untenable and I reject it.
As I have rejected the submission that the Medical Appeal Panel was in breach of the Guidelines in exercising its discretion not to grant the request for a re-examination of Mr Cook, it follows that the submission that the Medical Appeal Panel’s decision was invalid must also be rejected.
For these reasons no error of law is established, accordingly ground one fails.
For the sake of completeness, although I do not base my decision on it, I would add the following comments. Had Mr Cook been afforded the opportunity to make further submissions to the Medical Appeal Panel, it was not open to the Panel to accede to the request for a re-examination of the worker merely to ascertain his current medical status. The Medical Appeal Panel’s power to conduct an examination is only enlivened when it has determined that there is an error in the MAC: New South Wales Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 (at [33]).

The procedural fairness issue (ground two)

Mr Cook’s submissions

The Commission is bound by the principles of procedural fairness: Annetts v McCann [1990] HCA 57; 170 CLR 596.
Following the Medical Appeal Panel’s decision on 2 May 2016, Mr Cook sought an opportunity to present a case that by reason of the alleged error in the Medical Appeal Panel’s decision the Commission should not proceed to issue a Certificate of Determination. Notwithstanding requests made by Mr Cook on 10 May 2016 and on the morning of 6 June 2016, the Commission proceeded to issue the Certificate of Determination on the afternoon of 6 June 2016 without hearing further from Mr Cook.
It is submitted that the Commission failed to give the parties a reasonable opportunity to present a case before it issued the Certificate of Determination and denied Mr Cook procedural fairness. The Commission thereby acted unreasonably in proceeding without delay to issue the Certificate of Determination “foreclosing any opportunity for the appellant to make the submission”: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332.

The respondent’s submissions

The respondent submits that the Commission afforded Mr Cook procedural fairness by forwarding his letter dated 28 January 2016, which requested the re-examination by a member of the Panel, to the Medical Appeal Panel for its consideration.
Any submissions Mr Cook wished to make about whether an AMS member of the Medical Appeal Panel should re-examine Mr Cook should have been made in late January or early February 2016 and included in its letter of 28 January 2016. The Commission could not deny procedural fairness to Mr Cook by not acting itself on a request which it had no jurisdiction to determine.

Mr Cook’s submissions in reply

Mr Cook submits that there is an “implied statutory requirement to exercise the power under s 294 reasonably”. That requirement was not exercised reasonably because by issuing the Certificate of Determination when it did it foreclosed any opportunity for Mr Cook to present his case.
Mr Cook referred to the standard timeframe of 35 days for the Commission to issue a Certificate of Determination following a Medical Appeal Panel decision. It submits:
“If such a practice exists, it is an unpublished one, with which other parties may not be familiar. There is no requirement under the WIMWC Act or the WorkCover Medical Assessment Guidelines for the Commission to issue a s 294 certificate of determination in 35 days. There is a requirement to act reasonably by being willing to listen to, and allowing time to consider, a submission made by a party about a legal defect in the decision-making process.”

Consideration

Section 294 of the 1998 Act provides:

“294 Certificate of Commission’s determination

(1)    If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2)    A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.
(3)    If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.”

I do not accept Mr Cook’s submissions. Mr Cook had every opportunity to put submissions before the Medical Appeal Panel concerning his request for re-examination before the Panel issued its MAC and did so. It was inappropriate to request the Commission to consider whether any additional submissions were required.
The only role the Commission had to play in affording Mr Cook procedural fairness was to ensure that the submissions made on his behalf were put before the Medical Appeal Panel for its consideration. The Commission promptly did so and those submissions were considered by the Medical Appeal Panel.
The Medical Appeal Panel noted that the issues before it were limited to two matters, namely, incorrect criteria and demonstrable error. There were no elements of those matters that the Medical Appeal Panel considered required re-examination of Mr Cook in order determine the appeal.
The Medical Appeal Panel also noted that neither party had requested an oral hearing for the presentation of submissions. In those circumstances the Medical Appeal Panel dealt with the request for re-examination of Mr Cook in its reasons for decision, as is the usual procedure.
As I have previously stated, immediately following the issuing of the Medical Appeal Panel decision, the parties were notified by email on 2 May 2016 that in the absence of any dispute in relation to the worker’s entitlements under s 67 a Certificate of Determination would issue as soon as practicable. That is consistent with the Commission’s statutory duty under s 294.
In any event, by the time Mr Cook’s solicitors wrote to the Commission on 10 May the Medical Appeal Panel had already made its determination including a determination in relation to the need for re-examination. For the reasons already stated, the Commission had no jurisdiction to entertain any complaint in relation to the Medical Appeal Panel’s decision with respect to the re-examination in the absence of an Application for Reconsideration under s 378 of the 1998 Act.
I accept that it would have been preferable, as a matter of courtesy, for the Commission to inform Mr Cook’s lawyers that it could not accede to their request. However, I also accept the respondent’s submission that the Commission could not deny procedural fairness to Mr Cook by not acting itself on a request which it had no jurisdiction to determine.
It follows that ground two also fails.

Adequacy of reasons (ground three)

Mr Cook’s submissions

Mr Cook submits that the Commission had a duty to attach to the Certificate of Determination a brief statement setting out its reasons for the determination (s 294(2) of the 1998 Act). The Commission’s reasons consisted of two sentences indicating that the Certificate was issued in accordance with the MAC issued under the 1998 Act and stating that Mr Cook did not reach the threshold for lump sum compensation.
Mr Cook further submits:
“In circumstances where the Appeal Panel had made its own medical assessment with a PIRS rating without conducting a medical examination, and the Appellant had sought to make a submission as to why the Appeal Panel’s decision was erroneous, the Commission failed to give adequate reasons for its decision to issue the Certificate: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 [Kocak].”

The respondent’s submissions

Even if the Commission’s reasons as stated in the Certificate of Determination of 6 June 2016 were inadequate, which the respondent does not concede, any possible inadequacy did not amount to the Commission failing to exercise its statutory duty to fairly and lawfully determine the application. This is because the Certificate of Determination accorded with the MAC in the Medical Appeal Panel’s decision issued under Pt 7 Ch 7 of the 1998 Act: NSW Police Force v Newby [2009] NSWWCCPD 75 at [149]–[150] (Newby).

Mr Cook’s submissions in reply

As the High Court held in Kocak, in the context of a different statutory regime, the requirement to give a written statement of reasons requires an explanation as to the path of reasoning by which the Medical Appeal Panel reached its medical opinion.

Consideration

If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue a certificate as to the determination to the parties to the dispute (s 294 see [79] above)
Rule 15.6 of the Workers Compensation Commission Rules 2011 provides:
“15.6 Certificates of determination
(1) A statement of the Commission's reasons referred to in section 294 (2) of the 1998 Act is to include:
(a) the Commission's findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission's understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission's view of the case made by each of them.”
I accept the respondent’s submission that in order to succeed in having the Arbitrator’s decision set aside on this ground, Mr Cook must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise her statutory duty to fairly and lawfully determine the application: YG & GG v Minister for Community Services [2002] NSWCA 247. See also Young v Labourpower Recruitment Services Pty Ltd [2016] NSWWCCPD 37 (at [85]) and Newby (at [149]–[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).
The statutory duty to provide a brief statement of reasons must be read in the context of the overall statutory scheme for resolving permanent impairment disputes. While a MAC is conclusively presumed to be correct in respect of the matters listed in s 326(1)(a)–(e), it does not equate to a determination of the dispute by the Commission: Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; 5 DDCR 321. After a Medical Assessment Certificate is issued by a Medical Appeal Panel, the dispute must be returned to an Arbitrator for final determination.
Viewed in this context, in the absence of any further dispute requiring determination by an Arbitrator all that remains is for the Arbitrator to issue a Certificate of Determination to reflect the findings of the Medical Appeal Panel. In this context it was perfectly adequate for the Arbitrator to state, as she did, that the Certificate of Determination was issued in accordance with the MAC issued under Pt 7 Ch 7 of the 1998 Act and to note that Mr Cook did not reach the threshold for lump sum compensation as required by s 65A(3) of the 1987 Act. In my view the reasons given by the Arbitrator satisfied the statutory duty to provide brief reasons.
The reference to the decision in Kocak is of limited utility of the context of this appeal. The discussion in Kocak concerned the adequacy of reasons of a Medical Appeal Panel. The challenge on this appeal is not to the Medical Appeal Panel’s reasons but to the Arbitrator’s reasons when issuing the Certificate of Determination. Any alleged deficiency in the Medical Appeal Panel’s reasoning is not an issue that can be resolved by way of an appeal under s 352, for the reasons discussed.
It follows that ground three fails.

ORDERS

The Arbitrator’s determination of 6 June 2016 is confirmed.

Judge Keating
President

25 October 2016