Fire & Rescue NSW v Clinen

[2013] NSWSC 629

Supreme Court

New South Wales

Medium Neutral Citation:

Fire & Rescue NSW v Clinen [2013] NSWSC 629

Hearing dates:

23 May 2013

Decision date:

28 May 2013

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1)  Proceedings dismissed;

(2)  Plaintiff to pay the first defendant's costs of the proceedings as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW - judicial review of a decision of a medical appeal panel constituted under s 328 Workplace Injury Management and Workers Compensation Act 1998 (NSW) - whether jurisdictional error or error of law on the face of the record - whether reasons of the panel inadequate
WORKERS COMPENSATION - worker exposed to sunlight in course of employment - claim for compensation for permanent impairment - whether any portion of the worker's impairment was "due to any pre-existing condition or abnormality" for the purpose of s323 Workplace Injury Management and Workers Compensation Act 1998 (NSW) - whether early exposure to sun constitutes a "pre-existing condition" for the purpose of s323.
WORDS AND PHRASES - "pre-existing condition"

Legislation Cited:

Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 60 MVR 194
Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365
Hope v Bathurst City Council (1980) 144 CLR 1
Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34
Simeon Wines Ltd v Bobos [2004] NSWCA 342

Category:

Principal judgment

Parties:

Fire & Rescue New South Wales (formerly NSW Fire Brigades (plaintiff)
Donald Clinen (first defendant)
An appeal panel of the Workers Compensation Commission constituted pursuant to s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (second defendant)
Registrar of the Workers Compensation Commission (third defendant)

Representation:

Counsel:
J. Sharpe (plaintiff)
T. Edwards (defendant)
Solicitors:
Thompson Cooper Lawyers (plaintiff)
Whitelaw McDonald (first defendant)
Crown Solicitor (second and third defendant)

File Number(s):

2012/395313

Judgment

1. The plaintiff employed the first defendant in work to the nature of which skin cancer may be due. I will refer to the plaintiff as the employer and the first defendant as the worker.

1. The employer seeks to have the decision of a medical appeal panel (the second defendant), constituted under s 328 Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM"), set aside, and also seeks remitter of the matter to the Registrar of the Workers Compensation Commission (the third defendant), for further reference to an appeal panel for determination according law.

1. In accordance with convention, the second and third defendants have filed submitting appearances.

1. The error identified, according to the employer's argument, is an error of law at Glass JA's "third stage" as discussed in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, by reference, inter alia, to Hope v Bathurst City Council (1980) 144 CLR 1 at 7. His Honour explained the position as follows at 157:

At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open (citations omitted). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found.

1. That statement was made in relation to the Court of Appeal's powers on an appeal from the former Workers Compensation Commission limited to a grievance "in point of law". In the present context, the employer has to establish that the error, if made good at all, is either jurisdictional error or error on the face of the record.

1. Alternatively, the employer relies upon inadequacy of the reasons given by the appeal panel for its decision. Basten JA has suggested that because the record includes the reasons for the impugned decision (s 69(4) Supreme Court Act 1970 (NSW)) a successful challenge on this ground "will inevitably be an error of law on the face of the record": Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 60 MVR 194 at 209 [61]; Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at 399 [130].

1. It needs to be borne in mind, as Mason J put it in Hope at 7, that "special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words". In such a case the question will be one of fact, not law. Such a conclusion in the present case would exclude error of law on the face of the record, but not necessarily jurisdictional error.

Legislative framework

1. Medical disputes and workers compensation claims are, in the first instance, resolved by assessment by an approved medical specialist, giving a certificate under s 325 WIM. (See part 7 ss.319 to 331 WIM). A medical dispute, as defined by s 319 WIM, extends to a dispute between a worker and an employer about "the degree of permanent impairment of the worker as a result of an injury" and, "whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion": s 319(c),(d) WIM.

1. Section 323 WIM is in the following terms:

(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.

(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.

Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).

(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.

(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.

...

Note. Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.

This provision is central to the issue between the employer and the worker in the present case. Section 68B Workers Compensation Act 1987 (NSW) ("WCA"), so far as material, provides:

(2) When determining the compensation payable by an employer in a case in which section 15 applies (disease of such a nature as to be contracted by a gradual process), section 323 of the 1998 Act applies to that compensation subject to the following:

(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the permanent impairment that is due to the worker's employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,

(b) for the purposes of paragraph (a),

"previous relevant employment" is employment to the nature of which the disease was due by a previous employer who is liable under section 15 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period),

(c) in the case of permanent impairment of the back, neck or pelvis, a reference in this subsection to previous relevant employment is limited to employment after the commencement of this Act.

(3) When determining the compensation payable by an employer in a case in which section 16 applies (an injury that consists in the aggravation, acceleration, exacerbation or deterioration of a disease), section 323 of the 1998 Act applies to that compensation subject to the following:

(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker's employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,

(b) for the purposes of paragraph (a),

"previous relevant employment" is employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration by a previous employer who is liable under section 16 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period),

(c) in the case of permanent impairment of the back, neck or pelvis, a reference in this subsection to previous relevant employment is limited to employment after the commencement of this Act. (Emphasis in the original)

1. I will deal with the background facts in a little more detail below, but it is convenient to point out now that the employer and the worker were not in dispute about the question of whether the worker suffered permanent impairment resulting from an injury. Rather, their dispute was whether any portion of the worker's impairment was "due to any pre-existing condition or abnormality".

1. In the first instance that dispute had been resolved by an approved medical specialist, Dr. Allan Mears, in favour of the worker. He certified that the worker suffered from a whole person impairment of 10 per cent made up of 5 per cent whole person impairment relating to facial disfigurement, and 5 per cent whole person impairment relating to bodily disfigurement. In the course of his reasons he answered a question about the applicability of s 323 WIM in the following terms:

There is no loss of efficient use or Whole Person Impairment due to a previous injury, pre-existing condition or abnormality [reasons at 8(e)].

1. Section 327 WIM permits an appeal against a medical assessment if certain conditions expressed in the section are satisfied. The available grounds are limited, but include a complaint that "the medical assessment certificate contains a demonstrable error": s 327(3)(d) WIM.

1. An appeal is to be made by application to the Registrar of the Workers Compensation Commission, and "is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out": s327(4) WIM.

1. In the present case, the Registrar was satisfied that the medical assessment certificate contained a demonstrable error in that the s 323 finding I have referred to above was not supported by adequate reasons. The appeal was referred to a medical appeal panel in accordance with s328 WIM, constituted by two approved medical specialists and one arbitrator, each of whom was "chosen by the Registrar", or rather in this case, the Registrar's delegate.

The decision of the medical appeal panel

1. Arbitrator Eraine Grotte, Dr Susanne Freeman, and Dr William Walker constituted the appeal panel. After reviewing the evidence and submissions provided by each of the parties, the appeal panel, in their unanimous decision, made certain findings and gave certain reasons. The central part of their reasoning process, relevant for present purposes, may be found at [27] - [31]:

27. Section 323(1) of the 1998 Act provides there is to be a deduction for "any proportion of the impairment that is due to any previous injury... or that is due to any pre-existing condition or abnormality"

28. In order to make a deduction the Panel must be satisfied the pre-existing condition, injury or abnormality is an ingredient in the overall permanent impairment (Moran v Thompson Adsett & Partners Pty Ltd (1996) 13 NSWCCR 484 and D'Aelo v Ambulance Service of New South Wales (1996) NSWCCR 139). This principle was confirmed by [her] Honour Justice Schmidt in Cole v Wenaline Pty Ltd (2010) NSWSC 78 where [her] Honour stated "Section 323 requires that a conclusion be reached as to whether or not any proportion of permanent impairment resulted from an earlier injury, pre-existing condition or abnormality".

29. Whilst there may be evidence of exposure to the sun in Mr Clinen's early years, there is no evidence of an earlier injury, pre-existing condition or abnormality. There is no evidence before the Panel, nor was there any evidence before the AMS, of any injury, condition or abnormality in respect of Mr Clinen's skin on his face or body that occurred prior to the commencement of his employment with the Appellant Employer. There is no evidence before the Panel, nor was there any evidence before the AMS, that Mr Clinen received any treatment for skin cancers/disorders/

disfigurement prior to his employment with the Appellant Employer.

30. The Panel is satisfied that there is no basis to make any deduction under section 323 of the 1998 Act.

31. For these reasons, the Panel has therefore determined that the Medical Assessment Certificate dated 30 August 2012 given in this matter should be confirmed.

1. The panel's powers under s 328 WIM include the power to confirm the certificate of assessment given in connection with the medical assessment appealed against, which is the power exercised in this particular case.

Short factual background

1. The worker was born on 23rd August 1930 and accordingly was 82 years of age on the date of the decision of the appeal panel. He joined the employer's service on 1st April 1955 at the age of 24 and retired on 26th February 1988. During his 33 years service he mainly worked on Sydney's northern beaches and worked outdoors most of the time. He was rostered on rotating shifts including evening and night work, but as part of his daytime uniform he used to wear short-sleeved shirts and shorts. During the period of his service no broad brimmed hat was supplied, rather he wore a peaked cap, and sun block was not provided nor used by him.

1. The worker had attained the rank of Station Officer during the last 18 years of his service.

1. The worker was first referred to a dermatologist in the late 1970s or early 1980s. A skin cancer was removed from the worker's forehead. Cancer treatment became "an ongoing job".

1. A claim for lump sum compensation for permanent impairment was made on behalf of the worker by his solicitor's letter dated 11th April 2011. The claim was based upon the "disease provisions" (see ss.15 and 16 WCA) and the date of the claim was said to be the deemed date of injury: see ss.15(1)(a)(ii) and 16(1)(a)(ii) WCA. A specialist medical report of Dr. Derrick J Adendorff was provided in support of the claim.

1. It was not clear which of the disease provisions was relied upon. The answers given by Dr. Adendorff to certain rolled up questions were ambiguous to the extent the expert's affirmative answer to questions seemed to accept that the worker's injury was both "a disease of gradual process" and "an aggravation of a disease of gradual process" arising from the worker's work duties.

1. The worker was examined by Dr. Stephen Shumack at the request of the employer. The history recorded by Dr. Shumack included the following:

He undertook the usual outdoor activities as a child in Ashfield, including cricket and football.

He likes swimming and did a fair bit of gardening up until recent years. He does have an outdoor pool in his house at North Curl Curl.

1. Dr. Shumack regarded the worker's condition as "attributable to accumulated sun exposure".

1. Dr. Shumack attributed most of that accumulated sun exposure to non-work activities. He was asked the following question and provided the answer below:

8. Is there evidence of a pre-existing condition? If so, has this condition been exacerbated by [the worker's] employment? Please provide details.

The pre-existing condition is pre-existing sun exposure. So in other words, further sun exposure sustained in the workplace environment has exacerbated [the worker's] underlying condition associated with pre-existing sun exposure prior to and away from his workplace environment. (Emphasis added.)

The submissions of the parties

1. The main arguments of Mr. J.L. Sharpe of counsel, who appeared for the employer, have been summarised at [4] - [6] above. He also relied upon two decisions of Schmidt J: first, Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [29] - [30]; secondly, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 at [88] - [89] and [95]. He argued that the error of law he had identified was jurisdictional error, at least in the sense, by reference to the passage from the reasons I have set out above at [15], that the appeal panel, if his argument was accepted, had either asked itself the wrong question or identified a wrong issue.

1. To the extent to which the argument was based upon the inadequacy of the appeal panel's reasons, learned counsel acknowledged that the natural remedy for failure to exercise a statutory power to provide reasons for a decision was an order in the nature of mandamus. Although no such relief was sought in the amended summons, the plaintiff relied upon Rule 36.1 Uniform Civil Procedure Rules 2005.

1. Mr. T.R. Edwards of counsel, who appeared for the worker, argued that the plaintiff had not demonstrated jurisdictional error or error on the face of the record. Counsel reminded the Court that the supervisory jurisdiction is essentially concerned with whether the appeal panel had properly applied the law and not with the process of making the particular findings of fact upon which the appeal panel had acted: Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at [35] - [36] per Brennan J (as his Honour then was).

1. Learned counsel argued that the appeal panel's conclusion at [29] of its reasons (see [15] above) that exposure to the sun prior to the worker's employment with the employer did not equate with a pre-existing condition or abnormality was legally correct. As it happens, said Mr Edwards, the conclusion was also factually correct, although that consideration may not be germane to the exercise of the Court's powers.

1. Mr. Edwards relied upon Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [29] - [33] and [37], in particular, the statement by Giles JA at [37] that "a genetic pre-disposition to [a disease] is not the same as [the disease] condition.... for the purpose of [s 323]."

1. Mr. Edwards argued that there was no inadequacy in the appeal panel reasons.

Determination

1. In my judgment, the argument of the worker is correct.

1. As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s. 323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice.

1. This case is a little different from Cole. There Schmidt J was concerned with the causal connection connoted by the phrase "due to". Her Honour made the pertinent observation that it was necessary for the evidence acceptable to the appeal panel to actually support the connection between a previous injury (here, pre-existing abnormality or condition) and the overall degree of impairment in the instant case. Here, as Mr. Edwards pointed out, I am concerned with a logically anterior question: did the evidence of Dr. Shumack, which the appeal panel seemed to accept, that there was exposure to the sun in the worker's early years, mandate a finding of pre-existing condition or abnormality within s 323 WIM as the only legally sustainable conclusion? In my judgment, it did not.

1. The analysis of Giles JA in Smart, to which I have referred, supports a legal distinction between a medical condition and the circumstance giving rise to it. The meaning of "condition" in ordinary language may extend to include a prerequisite to something else. The worker's exposure to sunlight in his youth, in that broad sense, is a pre-existing condition. But the word "condition" in the present statutory context, in my judgment, has a more limited meaning. In the context of legal causation, as with the meaning of the phrase "due to", one may refer to any one of the necessary "conditions" giving rise to a consequence as a cause, or prerequisite, of it. As a matter of causation, the worker's skin cancer is due to his exposure to sunlight, including during his youth before the commencement of his employment with the employer. But causation is not the presently relevant context.

1. The context here is provided by s 323 and arises from the juxtaposition of words "previous injury", with "pre-existing condition or abnormality". The natural meaning in that restricted context of "condition" is "medical or like condition" in the sense of a diagnosable, or established, clinical entity c.f. Simeon Wines Ltd v. Bobos [2004] NSWCA 342 at [17] per Sheller JA, Santow JA and Young CJ in Eq. (as he then was) agreeing. This, in effect, is what the medical appeal panel decided in the portion of its reasons set out above at [15]. This conclusion involves no jurisdictional error in the sense of either identifying a wrong issue, or posing the wrong question; or error of law on the face of the record, by misapplying the law. Far from being an error of law at Glass JA's third stage, in my view the appeal panel's decision was not only legally open, but also legally correct. For what it is worth, the contrary conclusion, for which the employer contended before the appeal panel was not open on the evidence as the appeal panel, in my view correctly, decided.

1. The legal duty of the medical panel to give reasons for it's decisions and its content are discussed by Basten JA in Vegan from 391 [98] to 399 [129], especially at 397 at [121] - [122]. It is not necessary to rehearse that discussion to decide the present case. In my judgment the medical panel made the ground of its decision legally and factually clear in the appropriately succinct reasons provided. Those reasons are more than adequate to discharge the legal duty.

1. My orders are:

(1)   Proceedings dismissed;

(2)   Plaintiff to pay the first defendant's costs of the proceedings after they have been agreed or assessed.

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Decision last updated: 28 May 2013