Liao v Hammond Care
[2017] NSWWCCPD 40
•11 September 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Liao v Hammond Care [2017] NSWWCCPD 40 | |
| APPELLANT: | Yuhong Liao | |
| RESPONDENT: | Hammond Care | |
| INSURER: | Employers Mutual NSW Limited | |
| FILE NUMBER: | A1-7719/13 | |
| ARBITRATOR: | Mr G Egan | |
| DATE OF ARBITRATOR’S DECISION: | 2 May 2017 | |
| DATE OF APPEAL DECISION: | 11 September 2017 | |
| SUBJECT MATTER OF DECISION: | Reasons to be read as a whole: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; reconsideration pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; 5 DDCR 482; consideration of ‘delay’ as a factor; procedural fairness – Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1; issues not raised at first instance: Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 | |
| PRESIDENTIAL MEMBER: | Acting President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Wilson Fox Lawyers |
| Respondent: | Hicksons Lawyers | |
ORDERS MADE ON APPEAL: | 1. The Arbitrator’s decision dated 2 May 2017 is confirmed. | |
INTRODUCTION
This appeal challenges a decision of a Commission Arbitrator refusing, pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), to reconsider a Certificate of Determination dated 18 January 2016.
BACKGROUND
Yuhong Liao (the appellant) suffered conceded psychological injury, deemed to have occurred on 16 May 2012, whilst employed by Hammond Care (the respondent) as a care service employee. She commenced proceedings in the Commission claiming weekly benefits and medical expenses (no 1537/13), and also proceedings claiming lump sum compensation and medical expenses (no 7719/13). Arbitrator Edwards made orders that the two sets of proceedings be joined, and listed the matter for arbitration hearing on 15 April 2014. On 16 April 2014, the Arbitrator made orders by consent that the claims for weekly compensation and medical expenses be discontinued. The appellant’s claim for lump sum compensation was, by consent, referred to an Approved Medical Specialist (AMS) to assess the extent of her permanent impairment.
A Medical Assessment Certificate (MAC) of Dr Parmegiani, an AMS, was issued on 18 June 2014. The MAC concluded that the injury consisted of a temporary aggravation of a pre-existing condition, Schizophrenia, and that no permanent impairment resulted from the injury.
The MAC was appealed to a Medical Appeal Panel (MAP), which issued a decision dated 27 October 2014. The MAP accepted the views of the AMS regarding the condition of Schizophrenia, and its constitutional nature. However, the MAP said that the appellant had also suffered injury involving “an exacerbation of symptoms from a prior anxiety disorder”. The MAP said that the appellant continued to suffer from “this co-morbid condition”, which had “not resolved completely”. The MAP assessed permanent impairment of 24 per cent, which it reduced by 50 per cent for the proportion of the impairment which was due to the pre-existing condition of Schizophrenia, and certified whole person impairment resulting from the injury at 12 per cent. This assessed impairment was insufficient to entitle the appellant to lump sum compensation: s 65A(3) of the Workers Compensation Act 1987 (the 1987 Act).
The appellant sought reconsideration of the MAP decision under s 378 of the 1998 Act. In a decision dated 24 December 2014, the MAP concluded that the appellant had “not advanced any valid reason why the Panel should reconsider its decision”, and declined to do so.
The appellant, through her then solicitors, wrote a “complaint to the Registrar for review” dated 3 February 2015. The letter did not specifically seek any form of action from the Registrar, who replied on 27 April 2015. He said he was “satisfied that all relevant evidence was considered by the AMS and Medical Appeal Panel”, and that he intended “to take no further action in this matter on the basis of your letter”.
Ms Farrell, Deputy Registrar and Arbitrator, issued a Certificate of Determination dated 18 January 2016 (the COD). It noted that the 12 per cent permanent impairment assessment “did not reach the threshold for lump sum compensation”, and there was “no entitlement to lump sum compensation”.
The appellant, through her current solicitors, made an application by letter to the Commission dated 2 February 2017. It sought, pursuant to s 350(3) of the 1998 Act, that the COD “be rescinded for the purpose of appealing the Medical Assessment Certificate”. Alternatively the appellant sought “an order by the Registrar that the matter be referred for further assessment pursuant to section 327(6)” of the 1998 Act. This application came before Arbitrator Egan for telephone conference on 29 March 2017. He noted that the appellant had made submissions in her letter dated 2 February 2017. Consistent with the Arbitrator’s orders, the respondent put on written submissions dated 12 April 2017, and the appellant lodged written submissions in reply dated 18 April 2017. The Arbitrator determined the matter on the basis of the written material and submissions.
THE ARBITRAL DECISION
The Commission issued a Certificate of Determination dated 2 May 2017, accompanied by 12 pages of the Arbitrator’s reasons (reasons). After briefly reviewing the procedural background, the Arbitrator referred in detail to the MAC dated 18 June 2014, including the history, the findings on examination, and the conclusion by the AMS that the condition on examination was Schizophrenia, which was not work related. He noted the comment of the AMS that “the psychiatric opinions indicate confusion regarding diagnosis”, and that this “is not uncommon in persons whose schizophrenia develops insidiously” (reasons at [14]).
The Arbitrator referred to the decision of the MAP dated 27 October 2014, and the Panel’s view that the conclusions of the AMS, that “the appellant’s illness of schizophrenia occurred insidiously”, and that the aggravation was “temporary in nature”, were open (reasons at [21]–[22]). The Arbitrator referred to the reasoning of the MAP dealing with the assessment of 24 per cent permanent impairment, and the deduction of 50 per cent (reasons at [23]–[26]).
The Arbitrator referred to the appellant’s request, dated 19 November 2014, for reconsideration of the MAP decision, in which the “worker asserts that she does not have schizophrenia” (reasons at [27]). He referred to the reconsideration decision of the MAP dated 24 December 2014, in which the MAP said that the appellant had not “advanced any reason or relevant evidence to suggest a reconsideration was in order” (reasons at [32]). The Arbitrator noted the appellant’s letter to the Registrar dated 3 February 2015, in which “[v]arious assertions, previously made, were repeated”. He referred to the Registrar’s reply dated 27 April 2015, in which it was said the appellant sought “to re-agitate arguments already presented to the Medical Appeal Panel”, and that “litigation should not proceed interminably” (reasons at [35]).
The Arbitrator referred to medical evidence that post-dated the reconsideration by the MAP and the correspondence with the Registrar. There was an involuntary admission to Liverpool Hospital from 13 May 2015 to 2 June 2015, when the appellant was “brought in by Police after threatening to stab Dr Parmegiani … and end her own life”. She denied having Schizophrenia. There was a medical certificate from Dr Subhas, treating psychiatrist, dated 5 October 2015, in which he said that the appellant “has not displayed any schizophrenia” (emphasis in original) (reasons at [36]–[40]).
The Arbitrator noted that the worker’s current solicitors had arranged for her re-examination with Dr Akkerman, psychiatrist on 7 October 2016. That doctor diagnosed Major Depression, and said that the appellant “does not and never had suffered from schizophrenia”. Dr Akkerman described the diagnosis of the MAP, involving both Schizophrenia and Adjustment Disorder, as “not possible under DSM-IV and DSM-V” (reasons at [43]).
The Arbitrator described the issue before him as whether to exercise the discretion in s 350(3) of the 1998 Act to reconsider and rescind the COD dated 18 January 2016, to allow a further application to the MAP “to reconsider its decision of 27 October 2014”.
The Arbitrator said that the ultimate relief sought by the appellant was to have the MAP reconsider its decision of 27 October 2014, under s 378(1) of the 1998 Act. The merit of that ultimate relief was “relevant, if not central to the exercise of the discretion” under s 350(3), to rescind the COD dated 18 January 2016. The Arbitrator noted the appellant’s argument was not that she had recovered from Schizophrenia, or that it had remitted in some way. Her argument was that she never suffered from Schizophrenia, and the AMS had erred in diagnosing it. She argued the MAP had compounded this by adding a diagnosis of Adjustment Disorder which was said to be unavailable, “according to the DSM criteria”. The Arbitrator said that the appellant does not submit that “her condition, as she presents now, is in any way different to that with which she presented to the AMS”. The Arbitrator noted that the symptoms recorded by Dr Akkerman, in his report dated 7 October 2016, established “either the absence of symptoms relevant to schizophrenia, or a remission of those symptoms” (reasons at [67]–[72]).
The Arbitrator said that the relevance of this evidence from Dr Akkerman was to an argument that the AMS erred in making the diagnosis, as did the MAP in its “acceptance as to the availability of that diagnosis”. The Arbitrator said that the application was “an attempt to cavil with the clinical determination of the AMS and the Medical Appeal Panel based on differing opinions by other examiners”. The AMS had “noted the differing opinions by other examiners, and despite those opinions, arrived at his conclusions”. The Arbitrator said that the appellant “does not deny the existence of the paranoid behaviour, leading to Dr Subhas’s notes of a psychological condition of Paranoia, as noted by the appeal panel”. Her “perception of death plots against her, in the past and at the time of the AMS’s examination, is also not denied”. “The physical symptoms displayed to the AMS were previously displayed to other examiners, and are similarly not denied” (reasons at [72]–[74]).
The Arbitrator at [75] of his reasons said:
“In all the circumstances, I conclude that it is highly unlikely an AMS (if it were possible to be referred again) or the appeal panel is likely to take a different approach to that adopted by Dr Parmegiani at first instance.”
The Arbitrator set out the principles dealing with s 350(3) of the 1998 Act, summarised by Roche ADP (as he then was) in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel) at [58] of that decision. The Arbitrator identified delay as a factor which “weighs against exercise of the discretion”. Dealing with the evidence from “the hospitals and Dr Akkerman”, the Arbitrator considered it unlikely that such material would have led “either the AMS or the [A]ppeal Panel to conclude differently on the issue of whether schizophrenia was an appropriate diagnosis”. The different diagnoses “were already before them, as were the various clinical presentations”. “[T]he AMS was required to apply his judgment on the day of examination, as the [appellant] presented to him” (reasons at [76]–[78]).
The Arbitrator said that the diligence or competence of the appellant’s former solicitors was “not directly argued”. If there was mistake or oversight by a legal adviser, this was not a ground for reconsideration. The time limit on judicial review was relevant, but not sufficient to warrant exercise of the discretion, given the other factors (reasons at [79]). The appellant already had an opportunity to put matters to the Appeal Panel on reconsideration, when the matter was reconsidered in 2014. Litigation should not proceed indefinitely. Further reconsideration would “open up further administrative medical processes and appeals” (reasons at [80]).
The Arbitrator referred to Dr Akkerman’s view that the diagnosis of the MAP (Schizophrenia and Adjustment Disorder) was unavailable under DSM IV and DSM V. The Arbitrator noted that the WorkCover Guides for the Evaluation of Permanent Impairment (WorkCover Guides) – Third Edition applied in 2014 (at the time of the AMS and MAP decisions). The Fourth edition of the Guides has applied to assessments since 1 April 2016. Each of these editions of the Guides required that impairment rating be based on “a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based”. No recognised psychiatric system is mandated in the Guides (reasons at [81]–[83]). The Arbitrator said that Dr Akkerman’s opinion on this point was “an assertion, without explanation”, and described its merits as “doubtful”. He said that, in any event, the MAP decision was made on 27 October 2014, and Dr Akkerman’s further opinion was obtained about two years subsequent. It was an issue (the interpretation of DSM IV or DSM V) which did not require a further examination to be argued. He said that the delay in raising the point was “not addressed” by the appellant.
The Arbitrator refused the application to reconsider the COD dated 18 January 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 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 NATURE OF THE APPEAL
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.”
THE GROUNDS OF APPEAL
The Application to Appeal raises the following grounds:
(a) The Arbitrator erred in law in failing to correctly apply the decision in Samuel (Ground No 1).
(b) The Arbitrator erred in discretion by assuming that the removal of Schizophrenia would not have an effect on the amount of impairment (Ground No 2).
(c) The Arbitrator erred in fact by accusing the appellant of making petty or unnecessary objections against a proven misdiagnosis of Schizophrenia (Ground No 3).
(d) The Arbitrator erred in fact and discretion by determining that the appellant delayed in requesting a reconsideration of the Appeal Panel decision 2 years after the decision was made and that the time required to gather evidence to prove misdiagnosis by the Appeal Panel was excessive delay (Ground No 4).
(e) The Arbitrator erred in fact and discretion in deciding that the further relevant information that was not reasonably available at the time of the original assessment, would not aid in the interpretation of the appellant’s presentation and that the AMS or Appeal Panel would be unlikely to change their decision (Ground No 5).
(f) The Arbitrator erred in fact by assuming that the appellant was suggesting that her former legal representatives were incompetent and not sufficiently diligent to progress the matter in the Commission or Supreme Court (Ground No 6).
THE LEGISLATION
Section 350(3) of the 1998 Act provides:
“The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
Section 378 of the 1998 Act provides:
“378 Reconsideration of decisions of Registrar or Appeal Panel
(1) The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.
(2) Without limiting subsection (1), if the Registrar is satisfied that there is an obvious error in the text of a decision, the Registrar may alter the text of the decision to correct the error.
(3) Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).
(4) The reconsideration of a matter that is in response to an application for reconsideration must be completed within 2 months after the application is received.
(5) This section does not affect any other power under this Act or the 1987 Act to review or amend a decision.”
THE DECISION IN SAMUEL
The decision in Samuel reviews various authorities dealing with the reconsideration power, based on s 350(3) of the 1998 Act, and earlier equivalent statutory provisions. The Acting Deputy President at [58] set out a number of principles dealing with the power, which he distilled from the authorities. The appellant relies essentially on this summary of principle. Neither party submits that the summary of principle is other than correct. The passage in Samuel at [58] states:
“58. Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
1.the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2.whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3.whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
4.one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5.reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6.given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7.depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8.a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9.the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”
THE WAY IN WHICH THE CURRENT APPLICATION IS PUT
The current application was initially framed in the letter from the appellant’s solicitors to the Commission dated 2 February 2017. It described the relief sought as the rescission of the COD dated 18 January 2016, “for the purpose of Appeal against the decision of the Appeal Panel dated 27 October 2014 or alternatively to obtain a further assessment”. The letter went on to set out other provisions on which reliance was based:
(a) section 327(3)(b) of the 1998 Act, on the basis of “additional relevant information” that could not reasonably have been obtained before the medical assessment (there was reference to medical evidence from Liverpool Hospital, St Vincent’s Hospital, Dr Subhas and Dr Akkerman);
(b) section 327(3)(c) and (d) of the 1998 Act, on the basis of ‘incorrect criteria’ and ‘demonstrable error’ in the MAC of the Appeal Panel, as it combined diagnosis of Schizophrenia with Adjustment Disorder, which Dr Akkerman stated was unavailable on the basis of DSM IV and DSM V, and
(c) referral for further medical assessment pursuant to s 327(6) of the 1998 Act, as an alternative to appeal.
The letter said:
“The [appellant] will accept the Certificate of Determination to be rescinded for the purpose of appealing the medical assessment certificate.
Alternatively, the [appellant] will accept an order by the Registrar that the matter be referred for further assessment pursuant to s 327(6).”
The respondent, in its written submissions before the Arbitrator, correctly said that appeals pursuant to s 327 were available only from an AMS to a MAP. The MAP decision dated 27 October 2014 could not be appealed pursuant to s 327. The respondent accepted that there was provision in s 378(1) of the 1998 Act for reconsideration by a MAP, but noted that this process had already been invoked (the MAP decision dated 24 December 2014).
The appellant’s submissions in reply before the Arbitrator then sought that:
(a) the COD dated 18 January 2014 be rescinded pursuant to s 350(3) of the 1998 Act;
(b) the matter be referred for reconsideration by the MAP pursuant to s 378(1), with the fresh evidence on which the appellant relies, or
(c) alternatively, the matter be referred to an AMS “with all additional relevant information” for reassessment pursuant to s 329(1) of the 1998 Act.
Thus, the appellant no longer seeks to appeal the decision of the MAP, and no longer seeks to rely on the appeal provisions in s 327. The appellant maintained this approach to the relief that it sought, on this appeal. It is necessary that the COD dated 18 January 2014 be rescinded, before orders can appropriately be made for reconsideration or reassessment (see generally Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56).
GROUND NO 1
Although it is pleaded as a separate ground, Ground No 1 appears to have been inserted as a ‘catch all’. The appellant’s submissions on Ground No 1 quote Samuel at [58], and then state that Grounds Nos 2 to 6 explain how the Arbitrator’s reasons failed to appropriately apply the principles summarised in Samuel. For reasons given below, Grounds Nos 2–6 are rejected. It follows that Ground No 1 also is rejected.
GROUND NO 2 – THE EFFECT OF SCHIZOPHRENIA ON IMPAIRMENT
The Appellant’s Submissions
The appellant refers to the following passage of the Arbitrator’s reasons at [72], where he said (in part):
“Given that the condition of schizophrenia is accepted by all to be unrelated to work, this would have no effect on the amount of impairment relevant to the work injury. The only relevance of the evidence therefore, is to an argument that the AMS erred in the application of his clinical judgment to the diagnosis of the condition in the first place. The same can be said of the appeal panel’s acceptance as to the availability of that diagnosis.”
The appellant refers to the reasons of the MAP in the decision dated 27 October 2014 at [28]. The MAP said that the “proportion of her impairment due to her pre-existing Schizophrenia is at least of the order of 50 per cent”. The appellant submits that the only evidence before the MAP, of pre-existing Schizophrenia, was the MAC of Dr Parmegiani. The appellant submits “that there is now evidence to prove that the Appellant never suffered from Schizophrenia” (emphasis in original). The appellant submits that this “fresh medical evidence could not have been reasonably obtained prior to the diagnosis” by the AMS and the MAC. The appellant’s submissions at [30]–[31] state:
“30. It is therefore the case that if the matter were to be remitted to the Medical Appeal Panel, they will have to examine that the Appellant and determined that there is no Schizophrenia [sic]. Therefore, such 50% deduction for pre-existing Schizophrenia will have to be removed.
31. The fresh evidence will have material effect on the whole person impairment percentage relevant to the work injury and the outcome of the matter.”
The appellant’s submissions, at [32], identify the following alleged errors flowing from the above submissions:
“The Arbitrator has therefore:
(a) Not exercised his discretion fairly with regard to the relevant considerations and evidence in his possession (‘Schipp’).
(b) Not complied with his duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act) by causing severe prejudice to the Appellant and denying the Appellant procedural fairness.”
The Respondent’s Submissions
The respondent submits that the excerpt from the reasons at [72], quoted by the appellant, should be read in context. The respondent quotes the Arbitrator’s reasons in full from [69]–[72]. The respondent submits that, viewing this passage as a whole, it deals with the lack of symptoms, consistent with Schizophrenia, recorded in Dr Akkerman’s most recent report. The appellant’s presentation to Dr Akkerman “does not support a deduction on any future reassessment of WPI”. The respondent submits that the errors suggested by the appellant are not made out.
Consideration
The MAP decision dated 27 October 2014 included an assessment of permanent impairment based on the ‘PIRS’ criteria in the WorkCover Guides. It is not suggested that the manner of that assessment, which yielded whole person impairment (before deduction) of 24 per cent, was erroneous or otherwise inappropriate. The Panel then considered whether any proportion of the permanent impairment was due to a pre-existing condition or abnormality, and concluded that proportion was “at least of the order of 50 per cent”. This 50 per cent deduction, applied to 24 per cent, yielded a permanent impairment of 12 per cent, the whole person impairment which the MAP certified. The Arbitrator was clearly aware of this assessment process, including the effect of the deduction for the pre-existing condition of Schizophrenia. It was the fundamental outcome of the MAP decision dated 27 October 2014. The Arbitrator described these matters in his reasons at [24]–[26].
After quoting from part of the Arbitrator’s reasons at [72], the appellant submits:
“This is not just an argument with respect to the diagnosis of Schizophrenia by the AMS and Appeal Panel. The argument goes further, whereby removal of Schizophrenia as a diagnosis will materially impact the whole person impairment percentage.” (appellant’s submissions at [22]–[23])
It is apparent, from the reasons of the MAP at [21], that the Panel regarded the diagnosis of Schizophrenia as “clearly available”, and considered that the AMS had “clearly articulated … those symptoms of the appellant and those of his findings … upon which his diagnosis is based”. It considered that “the AMS was correct to find that the appellant’s diagnosis of Schizophrenia has no relationship to her employment” (at [22]).
The Arbitrator noted, at [71] of his reasons, that it was not submitted, on the application before him, that the appellant’s “condition, as she presents now, is in any way different to that with which she presented to the AMS”. The Arbitrator, at [71], noted that aspects of the appellant’s complaints, described in Dr Akkerman’s report dated 7 October 2016, involved denial of certain symptoms, such as beliefs that people were following her on the street, plotting against her, trying to poison her or that she was receiving messages from radio and TV. The Arbitrator described this as “in contrast to the observations by the AMS”. The AMS, setting out his “Findings on Mental State Examination” in 2014, referred to “a number of delusional beliefs” on the appellant’s part. These included that her manager Gwyn “wanted to kill her”, “would slash her throat”, and “followed her in a blue car”.
Apparently referring to such matters, the Arbitrator at [72] of his reasons said that, if Dr Akkerman’s findings on examination were accepted, the absence of such symptoms established either:
(a) the absence of schizophrenic symptoms, or
(b) remission of such symptoms compared with how they were before the AMS.
The Arbitrator said that Schizophrenia was “accepted by all to be unrelated to work”. He reasoned that this evidence then could only relate to “the diagnosis of the condition in the first place”. That is, the appellant did not argue that her condition was different (with remission of symptoms) compared with when she was assessed by the AMS. If there had been remission of symptoms, this could potentially result in some change in the level of whole person impairment, with or without acceptance of the diagnosis of Schizophrenia. As no such argument was pursued, the absence of various symptoms on Dr Akkerman’s examination, that had previously been observed by the AMS on his ‘Mental State Examination’, could relate only to the correctness of diagnosis of Schizophrenia “in the first place”.
The reasons at [72] flow to the Arbitrator’s statement, at [73] of the reasons, that “the application is an attempt to cavil with the clinical determination of the AMS and the Medical Appeal Panel based on differing opinions of other examiners”. This is essentially consistent with the argument the appellant pursues, on this application. Her argument is that the diagnosis of Schizophrenia was incorrect when it was made, by the AMS and the MAP. She bases this argument, that Schizophrenia was a “misdiagnosis”, on the opinions of other medical practitioners.
It is necessary that the Arbitrator’s reasons be read as a whole: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444 per Meagher JA. When the passage at [72] is read in context, it does not support an argument that the Arbitrator “erred in discretion by assuming that the removal of Schizophrenia would not have an effect on the amount of impairment”. It is quite apparent that the Arbitrator was well aware of the findings made by the AMS and the MAP, and the effect of these on the appellant’s entitlement to permanent impairment compensation. He described them in his reasons. Ground No 2 describes the alleged error, in general terms, as both discretionary, and a failure to do justice according to the substantial merits of the case. However the alleged error is described, it is not made out.
It should be noted that the Arbitrator’s decision under challenge is a discretionary one, pursuant to s 350(3) of the 1998 Act. The appellant’s submissions do not specifically address the principles in House v The King [1936] HCA 40; 55 CLR 499 (House v The King), (see also Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 per Heydon JA (Sheller JA and Studdert AJA agreeing) at [45]; Atomic Steel Constructions Pty Ltd v Tedeschi [2013] NSWWCCPD 33 at [58]).
The appellant, in her submissions in reply dealing with Ground No 2, makes voluminous factual submissions going to documents that the Arbitrator allegedly failed to consider, relevant to the availability of the diagnosis of Schizophrenia. These submissions do not respond to anything in the respondent’s written submissions, going to Ground No 2.
GROUND NO 3 – PETTY OR UNNECESSARY OBJECTIONS
The Appellant’s Submissions
The appellant refers to the Arbitrator’s reasons at [73]:
“It follows that the application is an attempt to cavil with the clinical determination of the AMS and the Medical Appeal Panel based on differing opinions by other examiners. The AMS clearly noted the differing opinions by other examiners, and despite those opinions, arrived at his conclusions. The appeal panel noted the AMS's approach to the matter in this way and concluded that it was appropriate. This is not a proper matter upon which a demonstrable error or other ground in s 327(3) may be established: Merza [v Registrar of the Workers Compensation Commission [2006] NSWSC 939].”
The appellant’s submissions state that she “denies” that the application is an attempt to cavil with the clinical determination of the AMS and the Medical Appeal Panel based on differing opinions by other examiners. The submissions go on to state that the appellant is not “making petty or unnecessary objections to the clinical opinions of the AMS or Appeal Panel”. The appellant submits that she “is seeking to establish, with additional relevant information that was not available at the time of the original assessment with the AMS, that the diagnosis of Schizophrenia is incorrect.” The appellant’s submissions at [37] state:
“The evidence mounted disproving the diagnosis of Schizophrenia cannot be taken lightly and it is only available for a medical professional to consider. There is no place for the Arbitrator to allege that the Appellant is attempting to cavil with the clinical determination of the AMS or Medical Appeal Panel.”
The appellant’s submissions at [45] say:
“It is the Appellant’s view that the comments made by the Arbitrator at paragraph 73 of his Statement of Reasons are not required and seem to be playing down the seriousness of proven misdiagnosis as referred to later in these submissions.”
The appellant goes on to say that the Arbitrator failed to exercise “his discretion fairly with regard to the relevant considerations and evidence, and failed to do justice between the parties. The second of these allegations includes a submission that the Arbitrator “caused severe prejudice to the Appellant”, and denied the appellant procedural fairness.
Respondent’s Submissions
The respondent submits that the Arbitrator did not “allege or make a finding of fact that the appellant was making ‘petty’ or ‘unnecessary objections’”. “These words, or words to that effect, were not used in the Arbitrator’s decision.” The respondent submits that there was evidence to support the diagnosis of the AMS and the MAP, and the Arbitrator did not err in saying that “the application was an attempt to cavil with the clinical determination of the AMS”.
Submissions in Reply
The appellant’s submissions in reply refer to the Oxford Dictionary, saying that it defines ‘cavil’ as “to make petty or unnecessary objections”.
Consideration
It is inappropriate that the appellant frames this ground of appeal on the basis of words which were not used by the Arbitrator, and which do not appear in his reasons. The word ‘cavil’ is frequently used in the context of litigation, for example a representative stating that s/he does not “cavil” with a ruling. In context, the Arbitrator’s meaning was relatively clear (see [45]–[48] above). The Arbitrator’s use of the word ‘cavil’ in the circumstances could not give rise to appealable error; his use of the term could not have affected the result.
The appellant submits, in a general sense, that the Arbitrator failed to exercise his discretion fairly, and denied the appellant procedural fairness. There is no reasoned analysis of how such consequences flowed from the Arbitrator’s use of the term ‘cavil’ (or the selected synonyms).
The appellant includes submissions under this ground dealing with other matters, essentially the availability of the diagnosis of Schizophrenia. This does not form any rational part of a ground of appeal dealing with the use of the term ‘cavil’.
It should be noted that the tone of the appellant’s submissions, dealing with Ground No 3, was unfortunate. The inclusion in the appellant’s submissions, at [45], of a statement that an Arbitrator’s comments were “not required”, and that the Arbitrator seemed to be “playing down the seriousness” of an issue, were unnecessary. They were argumentative, rather than going to whether appealable error could be identified, within the meaning of s 352(5) of the 1998 Act.
Ground No 3 is rejected.
GROUND NO 4 – DELAY
Appellant’s Submissions
The appellant refers to the Arbitrator’s reasons at [77]:
“Delay: The [appellant] says that two years after the MAC ‘were required to prove that she still has no presentation of schizophrenia’. This submission is made despite the fact the argument is that she never had schizophrenia, and the AMS and Panel were wrong to conclude she did. The difficulty in obtaining funding is said to also have contributed to the delay. Although the delay alone may not have been fatal to the application for reconsideration, on balance, I conclude that it weighs against exercise of the discretion, as the reasons proffered by the [appellant] are internally inconsistent with the primary complaint of misdiagnosis. The delay is excessive.”
Delay is one of the factors, identified in Samuel, which is relevant to whether the discretion in s 350(3) should be exercised. The Arbitrator regarded it as a factor which militated against exercise of the discretion in the appellant’s favour (reasons at [77]). The appellant argues that this involved error.
The appellant refers to her submissions in the letter dated 2 February 2017, where it was put on her behalf:
“The only opportunity the [appellant] had to prove that she does not suffer from Schizophrenia was some 2 years after the original AMS Assessment. This period of time was required to prove that she still has no presentation of Schizophrenia.”
The appellant’s submissions on appeal, referring to the above passage, say:
“What was meant by this was that it took approximately 2 years after the misdiagnosis to obtain all relevant evidence to prove that the diagnosis of Schizophrenia was in fact a misdiagnosis.”
The appellant then sets out a chronology of events from 24 December 2014 (the date of the MAP reconsideration decision) to 2 February 2017 (the date of the letter to the Commission requesting reconsideration of the COD dated 18 January 2016). The appellant submits that “there was no unreasonable delay by the Appellant or her solicitors” based on this chronology.
The appellant refers to the Arbitrator’s reasons at [80] where he said:
“The respondent points out that the Commission has a duty to do justice between the parties according to the substantial merits of the case. The [appellant] has, given the unusual circumstances of the MAC and the Panel’s conclusion, been afforded the rare opportunity of having an application for reconsideration to be put to the Panel already. If the merits of the matter warranted, evidence should have been put to the Panel then, not two years later. Justice must be afforded to all parties. The respondent has met the [appellant’s] claim, the appeal to the Panel, and the reconsideration application already. Those circumstances, and the principle that public interest that litigation should not proceed indefinitely [sic] weighs heavily against exercise of the discretion for further reconsideration to open up further administrative medical processes and appeals.”
The appellant submits that evidence could not have been put to the MAP at the time of the earlier reconsideration, as the evidence was not then available; “it took until at least 18 November 2016 to obtained [sic] sufficient evidence to determine reasonable prospects of success.”
The appellant’s submissions at [56] state:
“The Arbitrator is incorrect in stating that the Respondent has already met the Appellant’s claim. The Arbitrator has disregarded the mounting evidence against the misdiagnosis of Schizophrenia and not explained how the Respondent has met the Appellant’s claim.”
The appellant states that she accepts the Arbitrator’s statement, regarding the public interest principle, that litigation should not proceed indefinitely, and the principle weighs heavily against exercise of the discretion. She submits that she is not “making a fictitious claim or attempting to enliven an issue that has already been properly dealt with”. She seeks to provide the MAP with fresh evidence that was not reasonably available at the time of the earlier decisions by the AMS and the MAP.
The appellant refers to the Arbitrator’s reasons at [85] (the appellant’s submissions describe it as [80]):
“However, the opinion now relied upon to challenge the Panel’s decision on 27 October 2014 on the ground of an alleged fundamental misapplication of either DSM system, was not obtained until two years after the decision. The reasons proffered for the delay (which have been rejected on other grounds) could not apply to this issue. No further examination was required to argue this point. No significant lapse of time at all would be relevant to the delay in obtaining this opinion as it is a point of interpretation of DSM-IV or DSM-V. Even if the argument was capable of being sustained by the (or a) Panel, the delay in raising it is not addressed by the [appellant].”
The appellant submits that the first time the issue of error by the MAP, in its application of the DSM system, was raised was in the report of Dr Akkerman dated 7 October 2016. The appellant submits that she and her legal representatives could not raise the issue “until being made aware by a medical specialist with appropriate training in the DSM criteria”.
The appellant submits the Arbitrator’s discretion was not exercised fairly dealing with ‘delay’, or with respect to the public interest in litigation not proceeding indefinitely. She submits that she was prejudiced and denied procedural fairness.
Respondent’s Submissions
The respondent submits that ‘delay’ was properly considered as a relevant factor to the exercise of the discretion under s 350(3).
Relevant to the appellant’s chronology extending from 24 December 2014 to 2 February 2017, the respondent notes the following, and submits they were not adequately explained:
(a) Clinical notes from Dr Subhas, St Vincent’s Hospital and Liverpool Hospital were obtained on 9 March 2016, 26 May 2016 and 26 August 2016 respectively. It is not apparent when requests were made for this information.
(b) Dr Subhas provided a certificate dated 5 November 2015 saying the appellant had not displayed Schizophrenia, and a report dated 6 November 2015 saying that she had no signs of psychotic symptoms. Funding was not sought to bring the reconsideration application until 16 December 2016.
(c) It was unclear why there was further delay to obtain a further report from Dr Akkerman, when the appellant already had an up-dated report from Dr Subhas, the treating psychiatrist.
The respondent submits the Arbitrator did not make the errors alleged by the appellant, in support of Ground No 4.
Appellant’s Submissions in Reply
The appellant’s submissions in reply state that the respondent’s submissions accuse her current solicitors of failing to progress the claim, attempt to blame the lawyers for the delay, and “can also be seen as an attempt to accuse Wilson Fox Lawyers of professional negligence”. The submissions in reply include a chronology detailing the solicitors’ steps, from 27 April 2015 (the date of correspondence from the Registrar to the appellant’s former solicitors) to 2 February 2017 (the date of the letter to the Commission seeking reconsideration of the COD dated 18 January 2016). The appellant submits “there was no unreasonable delay by the Appellant or her legal representatives”.
The appellant refers to a telephone conference held in the matter on 29 March 2017. The appellant submits that “the Arbitrator was confused as to the nature of its application and its purpose”. The submissions recite the orders made by the Arbitrator, for written submissions by the respondent and the appellant, by 12 April 2017 and 19 April 2017 respectively. The appellant submits that “at no time before the Arbitrator’s decision was it indicated that delay may be an issue”. The appellant submits there was error in deciding there was excessive delay, without requiring specific submissions and further information on the issue.
Consideration
The appellant raises a number of arguments under this ground. I will deal with them separately.
The Submissions Argument
It is appropriate, at the outset, to deal with the argument that there was error by the Arbitrator, in having regard to ‘delay’ as a relevant factor, without requiring specific submissions and further information on the issue. The appellant refers to no authority in support of this submission.
The Arbitrator’s Direction, issued on 31 March 2017, provided:
“1. Teleconference occurred on 29 March 2016. The [appellant] was represented by Mr Hernandez, solicitor, and the respondent by Ms Stanwell.
2. Mr Hernandez clarified that the nature of the application is for reconsideration and revocation of Certificate of Determination dated 18 January 2016, and possibly for the exercise by me as an Arbitrator, of powers pursuant to section 329(1)(a) to refer the [appellant’s] lump sum claim for further assessment by an Approved Medical Specialist.
3. The [appellant] has filed submissions dated 2 February 2017 in support of the application.
4. By 12 April 2017 the respondent is to file written submissions in reply.
5. By 19 April 2017, the [appellant] is to file written submissions in response.
6. The matter may then be determined on the papers.”
The respondent and the appellant lodged submissions on 12 April 2017 and 18 April 2017 respectively. The appellant’s application dated 2 February 2017 made submissions consistent with addressing ‘delay’ (see the passage quoted at [64] above).
The respondent, in its written submissions dated 12 April 2017, did not deal with, nor did it make any concessions relevant to, the issue of ‘delay’. The appellant’s written submissions in reply, dated 18 April 2017, were consistent with addressing the issue of ‘delay’. At one point the appellant explained, in her written submissions, that she “did not have and was unable to obtain further relevant information to seek a reconsideration from the Appeal Panel until after the issuance of the Certificate of Determination dated 18 January 2016”. At another point the appellant submitted that “it was not possible for the [appellant] to obtain further relevant information (fresh evidence) as it could not possibly have been obtain [sic] without thorough investigation and expert opinion”. The appellant submitted (dealing with the respondent’s suggestion that Judicial Review was an appropriate course):
“The [appellant] did not delay in any way and could not reasonably have commenced Judicial Review until there were prospects of success. This was achieved upon receipt of the expert report of Dr Klaas Akkerman dated 7 October 2016. This is almost 25 months out of time.”
The appellant’s submissions in reply quoted a passage from the decision of Bishop J in Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; 9 NSWCCR 642 (Maksoudian) (on which Roche ADP relied in Samuel). That passage referred to a requirement that an applicant for reconsideration “has to move with appropriate speed and diligence to bring that matter to the Court’s attention”. The appellant additionally, in those submissions, quoted the passage from Samuel at [58], reproduced at [30] above. That passage at [3] includes reference to “the reason for and extent of any delay” as a factor, referring to Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412.
There are cases where a court or tribunal may deny a party procedural fairness, if it decides a case outside indications that were given by the decision maker during the running of the case, outside the way in which the case was run, or outside concessions made by the other party. In Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 (Ghaleb) Ipp JA (Mason P agreeing) at [78], after reviewing a number of authorities, including Stead v State Government InsuranceCommission [1986] HCA 54; 161 CLR 141, at [78] said:
“These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.”
In Ghaleb at [91] Ipp JA said:
“There has been a clear and serious denial of procedural fairness to the appellant. The judge did not only go beyond the case as conducted by the parties. He ignored what in effect were concessions by the respondent and, on material issues, made findings contrary to those concessions. In consequence, there has not been a fair trial.”
In the current matter, it is not suggested that the Arbitrator indicated in any way, in advance of his decision, the parameters within which he would decide the matter, nor that any concessions were made by the respondent, on the topic of ‘delay’. The appellant’s submissions in reply quoted from the decision of Samuel, including the specific reference in that decision to due regard being had to “the reason for and extent of any delay”. The appellant specifically requested that the Arbitrator should “consider the observations” of the Acting Deputy President in Samuel at [58]. There was nothing, in how the case was run, which suggests that the appellant was denied procedural fairness, by the Arbitrator having regard to ‘delay’, as a factor relevant to the exercise of his discretion pursuant to s 350(3) of the 1998 Act.
The appellant’s argument is clear, she does not have, and never had, the condition of Schizophrenia. In her submissions on this appeal, at [48], the appellant submits “the submission is that the Appellant has never suffered from Schizophrenia.”
The appellant also submitted, in her letter dated 2 February 2017 seeking reconsideration, that “[t]he only opportunity the [appellant] had to prove that she does not suffer from Schizophrenia was some 2 years after the original AMS Assessment. This period of time was required to prove that she still has no presentation of Schizophrenia.”
The Arbitrator, in his reasons at [77], placed reliance on this submission. There is an apparent contradiction, between the primary argument that the appellant never suffered from the condition, as the diagnosis was erroneous, and a submission that she was required to wait two years to prove that she still had no presentation of the condition. The Arbitrator described the reasons as “internally inconsistent”. It is apparent that the Arbitrator did not accept this as a satisfactory explanation of ‘delay’.
In the submissions on appeal, the appellant says that “[w]hat was meant” by the above submission was that “… it took approximately 2 years after the misdiagnosis to obtain all relevant evidence to prove that the diagnosis of Schizophrenia was in fact a misdiagnosis”. This explanation, of “what was meant” in the original submission, is simply inconsistent with the original submission. The way in which the Arbitrator dealt with the submission that was actually made to him was open to him, and appropriate. The explanation for the ‘delay’, given to the Arbitrator in the original submission, was not realistically available, given the argument the appellant pursued that there was a misdiagnosis, and she had never suffered from Schizophrenia. There was no error in the Arbitrator’s rejection of the explanation for ‘delay’ proffered in the submission made to him.
Was the Claim Met by the Respondent?
The appellant’s submissions take issue with a statement by the Arbitrator, in the reasons at [80], that the “respondent has met the [appellant’s] claim, the appeal to the Panel, and the reconsideration application already”. The appellant submits this is “incorrect”, and the Arbitrator has “not explained how the Respondent has met the Appellant’s claim” (submissions on appeal at [56]). This is pedantic. It is clear in context that the Arbitrator was not saying that the respondent had met the claim in terms of paying it. It was a reference to the respondent meeting the various applications relating to the claim. The remark was in the context of a paragraph of the reasons which referred to the “public interest that litigation should not proceed indefinitely”. This submission could not reasonably have been in support of any ground of appeal, and was simply argumentative.
The Presence of Delay
The appellant additionally challenges the proposition that there was “unreasonable delay” by her or her solicitors (appeal submissions at [52]). The appellant, in her submissions on appeal at [51], sets out various events which she submits “took place before it could be determined that there were reasonable prospects of success in applying for a reconsideration to the Medical Appeal Panel”. The period covered is in excess of two years, from 24 December 2014 (the date of the MAP reconsideration decision) to 2 February 2017 (the date of the application to the Commission to reconsider the COD).
The application before the Arbitrator was, as its first step, one to set aside the COD dated 18 January 2016. On one view of it, the delay to be considered on that application was about one year (January 2016 to February 2017). However, the Arbitrator at [67] of his reasons observed, accurately, that the merit of the “ultimate relief sought” (referral to the MAP for reconsideration) was “relevant, if not central, to the exercise of the discretion”. The appellant, in her submissions in reply before the Arbitrator, at pages 6–7, accepted the relevance of the passage in Samuel at [58] to the prospects of success of the application for referral for reconsideration by the MAP. The way in which the matter was presented was consistent with acceptance by the parties that the period from 27 April 2015 (the letter from the Registrar to the former solicitors) to 2 February 2017 was relevant to the issue of delay.
The appellant’s statement dated 17 January 2017 indicates that, after the correspondence from the Registrar dated 27 April 2015, she obtained the assistance of her current solicitors on 4 June 2015, with a view to investigating the prospects of success of an application for reconsideration of the MAP decision. The appellant’s statement dated 17 January 2017 at [27] infers that she obtained “ILARS funding to investigate”, before obtaining records from Dr Subhas, St Vincent’s Hospital and Liverpool Hospital.
The respondent raises three matters, in respect of which it submits that delay was not adequately explained (see [75] above). The appellant’s submissions, in reply on the appeal, at [45] say that the respondent’s submissions constitute an attack on how the appellant’s solicitors “progressed the claim”, are an attempt to accuse the solicitors of “professional negligence”, and suggest that the matter was “excessively delayed”.
The appellant’s submissions in reply at [48] state “[s]ince the Respondent is attempting [to] cross-examine Wilson Fox Lawyers, a Chronology of Events will be provided below”. That chronology refers to events, some of which are not established by evidence that was before the Arbitrator, or the chronology in the Application to Appeal (which is not challenged). There is no application to rely on fresh evidence on appeal. Such an application (had one been made) would be subject to s 352(6) of the 1998 Act, Practice Direction No 6 and the decision in CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501.
Matters to be considered should be restricted to matters that are in evidence, and the submissions and chronology in the Application to Appeal. After 24 December 2014 (the MAP reconsideration decision) the appellant’s previous solicitors wrote to the Commission on 3 February 2015, with what they described as “her complaint to the Registrar for review”. The Registrar replied on 27 April 2015, advising that he was “unable to provide any assistance”. The appellant was an inpatient at Liverpool Hospital Mental Health Unit from 13 May 2015 to 2 June 2015. She instructed her current solicitors from about 4 June 2015 (her supplementary statement at [26]).
The chronology, and the list of events in the submissions on the appeal at [51] (which set out a chronology) do not show much activity relevant to the claim until 5 November 2015, when Dr Subhas provided a certificate stating that the appellant “has not displayed any schizophrenia” (emphasis in original). Dr Subhas reported to the appellant’s general practitioner on 6 November 2015, including reference to the certificate stating the appellant did not have Schizophrenia. Clinical notes were obtained from St Vincent’s Hospital, Dr Subhas and Liverpool Hospital, on 26 May 2016, 6 June 2016 and 26 August 2016 respectively. Dr Akkerman examined the appellant on 7 October 2016, and reported on the same date. The submissions at [51] suggest the report was received on 18 November 2016.
The submissions state that legal aid funding to make a reconsideration application was sought on 21 November 2016, and approved on 16 December 2016. There followed a request to the insurer to concede the matter should be reconsidered (22 December 2016), a letter from the insurer declining this course (5 January 2017), preparation of a supplementary statement from the appellant (17 January 2017), and the letter to the Registrar requesting reconsideration of the COD dated 18 January 2016 (2 February 2017).
The issue of whether the appellant moved “with appropriate speed and diligence” (see Maksoudian quoted at [114] below) to raise the relevant matters of fresh evidence with the Commission, such that the discretion in s 350(3) should be exercised, was a matter in issue between the parties. The appellant’s letter dated 2 February 2017 contained some submissions relevant to the topic. It did not contain a chronology or timeline going to the issue. The appellant’s submissions in reply before the Arbitrator did not contain a chronology on the issue. They did say that it was “not until 5 November 2015” that “Dr U Subhas certified the [appellant] as not displaying any Schizophrenia”. The appellant submits “the fresh evidence could not possibly have been obtained any sooner than it was”.
The Application to Appeal contains a chronology. It also contains, at [51] of the submissions, a list of “events [that] took place before it could be determined whether there were reasonable prospects of success in applying for a reconsideration to the Medical Appeal Panel”. At [55] the appellant submits:
“The Arbitrator is not correct in stating that the evidence should have been put to the Panel at the time of the reconsideration. This is because the evidence was not available at the time and it took until at least 18 November 2016 to obtained [sic] sufficient evidence to determine reasonable prospects of success.”
18 November 2016 was the date of receipt of Dr Akkerman’s report dated 7 October 2016.
The respondent’s submissions responding to this, referred to at [75] above, raise valid points going to whether there was ‘delay’. They do not constitute an attempt to cross-examine the appellant’s solicitors, nor do they blame lawyers or accuse lawyers of “professional negligence”. They do not need to do any such thing. The appellant carries a persuasive onus, on the application to reconsider, to which ‘delay’ was relevant. The submissions simply deal with that issue.
The respondent submits the evidence does not deal with when requests were made for treating notes from Dr Subhas, St Vincent’s Hospital and Liverpool Hospital, given that such material was not received by the appellant until the early to middle part of 2016. The respondent also refers to the certificate of Dr Subhas dated 5 November 2015, stating that the appellant had “not displayed any Schizophrenia”. The respondent notes that an application for funding to bring the reconsideration application was not made until late 2016 (the correct date of the application is said, in the appellant’s submissions, to have been 21 November 2016). The respondent queries why it was necessary to delay until 7 October 2016 to obtain a further report from Dr Akkerman, when in late 2015 the appellant had a report from the treating psychiatrist to similar effect.
The Arbitrator said “[t]he delay is excessive” (reasons at [77]), and in his reasons at [80] said:
“The [appellant] has, given the unusual circumstances of the MAC and the Panel’s conclusion, been afforded the rare opportunity of having an application for reconsideration to be put to the Panel already. If the merits of the matter warranted, evidence should have been put to the Panel then, not two years later.”
The appellant, through her then solicitors, sought reconsideration of the decision of the MAP, in a letter dated 19 November 2014 (MAP reconsideration decision dated 24 December 2014 at [4]). Prior to that time, on 7 July 2014, the appellant saw Dr Subhas, with a copy of the MAC of Dr Parmegiani. The appellant was upset and angry about the decision. She mentioned her behaviour at the examination with the AMS, and “replayed how she was” in the AMS’s office (Dr Subhas’s report dated 8 July 2014). The appellant saw Dr Subhas again on 8 September 2014. She was still upset with Dr Parmegiani and the diagnosis of Schizophrenia. On that occasion Dr Subhas “reassured her and told her that there was no evidence to suggest that she has Schizophrenia” (Dr Subhas’s report dated 9 September 2014). The appellant saw Dr Subhas again on 11 December 2014, with a “copy of the Report from the Workers Compensation Commission”. She was “very bitter and angry with Dr Parmegiani for diagnosing her suffering from Schizophrenia”.
The MAP decision, dated 27 October 2014, indicates the MAP dealt with the matter, having access to “all the documents that were sent to the AMS for the original assessment”. This did not include the material from Dr Subhas referred to in the paragraph above.
By the time the appellant’s solicitors sought reconsideration of the MAP decision, on 19 November 2014, the appellant had seen Dr Subhas with a copy of the MAC of Dr Parmegiani, “replayed” to Dr Subhas how she had behaved at the AMS examination, and had been told by Dr Subhas that in his opinion there was no evidence to suggest that she had Schizophrenia. The above serial reports from Dr Subhas were directed to the appellant’s general practitioner, Dr Zaki, and it may be inferred originals or copies would have been available in the files of these doctors. It does not appear that the appellant sought to rely on this material in the reconsideration application before the MAP.
This material from Dr Subhas was before the Arbitrator, on the application to reconsider the COD dated 18 January 2016. Whilst this does not comprise all of the evidence ultimately relied on in the current application, it is evidence that had the potential to be persuasive. The evidence ultimately relied on largely comprises additional medical evidence to similar effect. On the appellant’s application, the MAP on 24 December 2014 reconsidered its earlier decision, in the absence of any application to rely on fresh evidence from Dr Subhas. The Arbitrator’s conclusion at [80] of his reasons, that “[i]f the merits of the matter warranted, evidence should have been put to the Panel then, not two years later” was appropriate and open on the evidence.
The Arbitrator’s conclusion at [77] of his reasons regarding ‘delay’ was open on the evidence, as was his conclusion at [80] of his reasons, regarding the failure to put further evidence to the MAP at the time of the reconsideration dated 24 December 2014. The Arbitrator’s factual conclusions in this regard do not disclose error.
It should be noted that the Arbitrator’s conclusions going to ‘delay’ were not determinative of his decision. At [77] of his reasons, he said that “delay alone may not have been fatal”, however, “I conclude that it weighs against exercise of the discretion”.
Ground No 4 is rejected.
GROUND NO 5 – WOULD THE FRESH EVIDENCE BE LIKELY TO AFFECT THE OUTCOME?
Bishop J in Maksoudian, dealing with the reconsideration power, at 645E said:
“There is no doubt that the discretion of this Court to reconsider is wide and far reaching. The task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as ‘fresh evidence’, namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court’s attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings: Hardaker v Wright & Bruce Pty Ltd (1962) 62 SR (NSW) 244 and Hilliger v Hilliger (1952) 52 SR (NSW) 105.” (emphasis added)
The Arbitrator’s reasons dealing with this topic are found particularly at [73]–[75] and [78]–[79]. At [74]–[75] the Arbitrator said:
“74. The additional material which it is ultimately sought to be presented to an AMS or an appeal panel reviewing the matter is therefore not, relevantly, additional material which would aid in the interpretation of the [appellant’s] presentation as before the AMS. The material relates to differing clinical opinions as to the appropriate diagnosis. It is not a situation analogous to, for example, advancing medical technology disclosing pathology that was hitherto diagnosable, such as a more precise MRI finding of a spinal condition. It is simply a re-interpretation of the [appellant’s] presentation on examination and her history. The [appellant] herself does not deny the existence of the paranoid behaviour, leading to Dr Subhas’s notes of a psychological condition of Paranoia, as noted by the appeal panel. Similarly, the presentation of the [appellant] before the AMS, for example in lying down and hiding behind a desk, is consistent with that presented to examining Dr Leonard Lee in October 2013. The [appellant] demonstrated the behaviour to Dr Subhas shortly after the Medical Appeal Panel original decision. The [appellant’s] perception of death plots against her, in the past and at the time of the AMS’s examination is also not denied. There is no suggestion from the [appellant] or her solicitors that there was any substance to those perceptions, based in fact. The physical symptoms displayed to the AMS were previously displayed to other examiners, and are similarly not denied.
75. In all the circumstances, I conclude that it is highly unlikely an AMS (if it were possible to be referred again) or the appeal panel is likely to take a different approach to that adopted by Dr Parmegiani at first instance.”
At [78] the Arbitrator said, in part:
“I consider the material is unlikely to have [led] either the AMS or the [A]ppeal Panel to conclude differently on the issue of whether schizophrenia was an appropriate diagnosis. The reasons are that the different diagnos[e]s were already before them, as were the various clinical presentations by the [appellant] as recorded by other examiners. A differen[ce] in opinion, is not a matter that would bind the AMS (Merza), and the AMS was required to apply his judgment on the day of examination, and as the [appellant] presented to him. The fact that the [appellant] subsequently presents to another examiner in the same wa[y] and a different conclusion is drawn is not a matter that makes it likely a different result would have been reached by the AMS or the Panel.”
The Appellant’s Submissions
The appellant submits that she did not have the assistance of an interpreter when examined by the AMS, and she was not examined by the MAP. She submits this was “a breach of procedural fairness”. It is submitted on her behalf that the AMS “misunderstood the Appellant’s presentation which led to a misdiagnosis of Schizophrenia”.
The appellant’s submissions refer to the Discharge Referral from Liverpool Hospital and the report of Dr Subhas dated 6 November 2015. She submits that each of these gave a diagnosis of “Underlying Histrionic Personality Traits”.
The appellant’s submissions quote at length from passages of DSM IV which deal with Histrionic Personality Traits and Disorder. A submission is then made:
“The above explains the presentation of the Appellant during the examination with the Approved Medical Specialist and is a strong reason as to why she was misunderstood.” (at [84])
The appellant’s submissions refer to a diagnosis of generalised anxiety disorder, and quote from a definition of the term in DSM IV and DSM V. The submission is then made:
“103. Even though this is an issue that must be dealt with by a psychiatrist, it is clear from the evidence and definition provided in DSM-IV and DSM-V that the Generalised Anxiety Disorder and Histrionic Personality Traits were the cause for the Appellant’s ‘perception of death plots …’ and ‘physical symptoms displayed to the AMS were previously displayed to other examiners’.
104. This is an issue that should be dealt with by the Medical Appeal Panel.”
The appellant submits that Dr Subhas and Liverpool Hospital “have now ruled out Schizophrenia”. The appellant states that in her view “the fresh evidence will persuade the Medical Appeal Panel and/or Approved Medical Specialist to change their opinion and provide a correct whole person impairment assessment” (emphasis in original). The appellant submits “the AMS or Medical Appeal Panel have not had the benefit of the conclusions drawn by Dr U Subhas, Liverpool Hospital and Dr Klaas Akkerman, that the Appellant has never suffered from Schizophrenia”. The appellant accepts that the Arbitrator was correct to “consider the likelihood of the evidence swaying the opinion of the Medical Appeal Panel, however caution is paramount to ensure that a medical opinion is left in the medical profession” (appellant’s submissons at [113]–[114]). At [115] she submits:
“It is therefore the Appellant’s view that the Arbitrator was incorrect to assume that a medical professional will not consider the opinions of other medical professionals. This issue should be left with the Medical Appeal Panel or AMS to consider and not in the ambit of the legal profession or Workers Compensation Commission.”
The appellant refers at length to DSM IV and DSM V dealing with adjustment disorders, and says it “seems” that Dr Akkerman was correct in saying that a diagnosis of adjustment disorder could not be made with a diagnosis of Schizophrenia. The appellant submits this issue “should be put to the Medical Appeal Panel for opinion as it is they who are qualified to provide medical opinion”. She also submits that she could not have been aware of the difficulty in combining diagnoses of Schizophrenia and adjustment disorder, until receipt of Dr Akkerman’s report dated 7 October 2016 (submissions on appeal at [119]–[124]).
The appellant makes a general submission that the Arbitrator’s discretion was not exercised fairly, discretion was not exercised to allow new evidence that would likely lead to a different result, and justice was not done according to the substantial merits of the case; again it is submitted that the appellant was prejudiced and denied procedural fairness.
Respondent’s Submissions
In relation to the submission about the absence of an interpreter at the examination with the AMS, the respondent submits that the AMS would have declined to perform the assessment if he felt that he could not understand the appellant properly. The respondent additionally submits that this argument was not raised previously. It was open to the Arbitrator to accept that the appellant took no exception to the absence of an interpreter at the AMS examination.
The respondent submits that the AMS was entitled to diagnose a pre-existing condition, and the MAP was entitled to accept the diagnosis without conducting a further examination.
The respondent submits that the AMS, and the specialist psychiatrists on the MAP, would be aware of the “definition and common features” of Histrionic Personality Disorder and Underlying Histrionic Personality Traits, and would have considered the possible application of these conditions. The AMS and the MAP “were in a better position to determine the appellant’s diagnosis at the time of their assessments than the appellant’s solicitor is now”. There was no error on the Arbitrator’s part in accepting the diagnosis of the AMS and the MAP. The respondent makes the same submission in regard to the appellant’s submission that the appellant’s perception of death plots, and physical symptoms displayed, were explained by the diagnoses of Generalised Anxiety Disorder and Histrionic Personality Traits, “the opinions of the AMS and the panel should be preferred over that of the appellant’s solicitor on issues of diagnosis”.
The respondent submits that the fresh evidence, relied upon as being persuasive, is the clinical notes of Dr Subhas, Liverpool Hospital and St Vincent’s Hospital, and Dr Akkerman’s report dated 7 October 2016. The respondent refers to the decision of O’Meally J in Galea v Ralph Symonds Pty Ltd [1989] NSWCC 4; 5 NSWCCR 192 (Galea). His Honour there drew “a distinction between fresh evidence and more evidence” (at 201A). His Honour at 201B also said:
“Even if it could properly be said that fresh evidence were now available the [appellant] must satisfy me that that evidence was not discoverable by the exercise of reasonable diligence at the time of the hearing before Williams J and that if believed would be at least a determining factor in the outcome of the case.”
The respondent also refers to the passage from Maksoudian quoted at [114] above, emphasising that the fresh evidence should be “material that with reasonable diligence could not have been put before the Court at the time of the original proceedings”, and that “would more likely than not have affected the outcome of the proceedings”.
The respondent submits that, as the ultimate intention is to seek a further reconsideration of the MAP decision dated 27 October 2014, it is appropriate to have regard to whether the fresh evidence could have been obtained at the time of that decision. The respondent refers to the Arbitrator’s reasons at [78], in which he said that different diagnoses were available at the time of that decision, as were various clinical presentations as recorded by other examiners. The Arbitrator did not conclude that it was “likely a different result would have been reached by the AMS or the Panel” due to evidence of subsequent presentations to different examiners who drew different conclusions. The respondent submits the Arbitrator “considered the relevant criteria”, consistent with Maksoudian and Galea.
The respondent submits that the appellant does not detail how the fresh evidence “goes beyond merely providing a differential diagnosis”. The appellant does not explain how the AMS or the Panel would have found the fresh evidence from Dr Subhas, Dr Akkerman, Liverpool Hospital and St Vincent’s Hospital “more persuasive than the opinions of the treatment providers and qualified doctors in the evidence at the time of their assessment”. The respondent submits the Arbitrator made no error.
Appellant’s Submissions in Reply
The appellant states that the appellant’s former solicitors did not raise the absence of an interpreter, at the AMS examination, in the appeal from the AMS. The appellant submits that there was “no evidence of schizophrenia”, the AMS “merely diagnosed the Appellant with Schizophrenia upon her presentation and responses, which were misinterpreted”. The appellant now “has the evidence to prove that she never had Schizophrenia, the Appeal Panel would have no choice but to re-examine the Appellant and consider the fresh evidence, rebutting any notion of Schizophrenia”.
The appellant “refutes the Respondent’s allegation that her solicitor is providing a medical opinion with respect to diagnosis”. The Arbitrator referred to DSM criteria (reasons at [86]), this “allowed the Appellant’s solicitor to provide clarification by paraphrasing segments of the DSM criteria”.
The appellant submits that the fresh evidence could not have been put before the AMS at the time of the original assessment, the first indication of that diagnosis was by the AMS. The appellant at [82] submits:
“If this evidence, that the Appellant does not have and never had Schizophrenia, were available before or at the time of the original assessment, it would have affected the outcome of the proceedings because the AMS would not have been able to diagnose the Appellant with Schizophrenia.”
Consideration
The Interpreter Argument and Re-examination
The appellant argues that she was denied procedural fairness, as an interpreter was not arranged for her examination with the AMS. The report of Dr Parmegiani contains a detailed history. It does not indicate that the absence of an interpreter was raised as an issue at the examination. The submissions made by the appellant, to the MAP, are summarised at [18] of the decision dated 27 October 2014. There is no indication that the absence of an interpreter was raised as an issue on that appeal. The decision of the MAP dated 24 December 2014, on reconsideration, also does not suggest that the absence of an interpreter at the AMS examination was raised as an issue.
It is noted that no interpreter was present when the appellant was examined at the request of her solicitors by Dr Akkerman, on 29 January 2013 and 7 October 2016.
The appellant’s solicitors’ letter dated 2 February 2017, making submissions and requesting reconsideration of the COD dated 18 January 2016, does not raise the absence of an interpreter. The appellant’s supplementary statement dated 17 January 2017 does not refer to the absence of an interpreter at the AMS examination, or to communication difficulties with the AMS. The appellant’s submissions in reply, before the Arbitrator, do not raise the point. Thus it was not raised as an issue, in the proceedings before the Arbitrator, seeking reconsideration of the COD dated 18 January 2016. The lack of an interpreter at the AMS examination was first raised in the appellant’s submissions on this appeal.
In Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 the High Court at [7] said:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
See also Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at [9], Inghams Enterprises Pty Ltd v Hickey [2017] NSWWCCPD 36 at [113]–[114].It is not, in the circumstances, appropriate that the appellant be allowed to raise for the first time, on this appeal, an argument based on the absence of an interpreter at the examination by the AMS.
An argument that the appellant was denied procedural fairness by the MAP, in it not conducting a re-examination of the appellant, was not raised in the appellant’s solicitors’ letter dated 2 February 2017, requesting reconsideration. The letter at one point said:
“The [appellant] does accept that the Appeal Panel based its decision on all paper evidence in their possession without interviewing or assessing the [appellant].”
The appellant’s submissions in reply before the Arbitrator at [4] described the diagnosis of Schizophrenia by the AMS as involving “demonstrable error”, and said “it should be noted that the Medical Appeal Panel made their decision on the evidence in their possession without interviewing the [appellant]”.
The appellant’s submissions on the appeal at [28] state:
“It is therefore not argued that the Appeal Panel erred in the way they reached their decision. The purpose of this application is to merely show the Medical Appeal [P]anel that there is now evidence to prove that the Appellant never suffered from Schizophrenia.”
The appellant’s submissions assert that “if the matter were to be remitted to the Medical Appeal Panel, they will have to examine that the Appellant and determined that there is no Schizophrenia [sic]”. The first suggestion (and it is not clearly made) that the failure of the MAP to re-examine constituted procedural unfairness, is in the submissions on appeal at [73]. For the reasons given above relating to the absence of an interpreter, that argument cannot be raised for the first time on this appeal. This is sufficient to dispose of this argument.
It should be noted that the appellant’s submission that, if the matter were “remitted” to the MAP, the Panel would “have to examine” the appellant and “determine that there is no schizophrenia” is incorrect. The issue of whether to conduct a re-examination would remain a discretionary matter for the MAP. In Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175, the Court of Appeal dealt with the power of a MAP to require that a worker undergo a re-examination, and an argument that there was error in its failure to do so in the circumstances of that case. Handley AJA (Allsop P and Giles JA agreeing) at [22] said:
“An Appeal Panel has all the powers of the AMS (s 324(3)), which include the power (s 324(1)(c)) to require the worker to submit to a medical examination. When exercising that power the AMS is not bound to consider whether such an examination would be ‘necessary or desirable’, the phrase used in s 324(1)(b) in relation to another power. The power to require a medical examination is not conditioned in this way. Their decision that such an examination was not necessary does not indicate that they did not address the right question.”
There is an apparent assumption in the appellant’s submissions, that it is purely a matter for the MAP whether it decides to conduct a re-examination (see her submissions in reply at [62]–[67]). It should be noted that the discretion of the MAP, going to whether it decides to conduct a re-examination, is subject to the decision in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792, in which Davies J at [33] said:
“However, if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.”
That is, re-examination was not (and is not) available to the MAP, for the initial purpose of assessing whether there was error in the MAC issued by the AMS. The power to reassess depends on the MAP first determining the existence of error in the MAC.
Would the Fresh Evidence Have Affected the Outcome of the Proceedings?
The material referred to the AMS included Applications to Resolve a Dispute in both sets of proceedings, and Applications to Admit Late Documents dated 8 February 2013, 13 September 2013, 15 January 2014, 20 March 2014, 15 April 2014 and 7 May 2014. The medical material referred to below, at [147]–[158], was furnished to the AMS (and the MAP) as attachments to those documents.
Mr Herrera, treating psychologist, in his report dated 1 June 2012, following an initial consultation, described the appellant’s presentation:
“Her behaviour was erratic throughout the interview. Throughout the interview she hyper ventilated, cried uncontrollably, pleaded for help in a loud voice and at one stage crawled on the floor begging for help and stated fearing for her life if she was forced to return to work. She became significantly distressed, upset and angry when speaking about her employer and false allegations, not being believed and feeling humiliated and loss of dignity. She spoke spontaneously and had difficulty responding to questions. She was a poor historian but also attended with documentation of previous work related grievances. She spoke erratically and at loud volume. Her affect was labile. There were no abnormalities of thought form or thought content but there appeared to [be] pre-occupation of a persecutory nature. Clinical tests of attention, concentration, orientation and short-term memory reveal these to be slow.”
At that point Mr Herrera diagnosed “emotional disturbances of depression and-anxiety [sic].”
Dr Synnott, psychiatrist, examined the appellant at the request of the insurer on 26 June 2012. He diagnosed Adjustment Disorder with Anxiety and Depressed Mood. He also said:
“… her manner at the consultation raises questions about her particular personality style – and whether she has a predisposition to anxiety and volatility, with a limited capacity for self-awareness and reflection.”
In a report dated 11 July 2012, Dr Synnott said “[i]n my opinion, her recent episode of described psychological symptoms arose in the context of her longstanding personality style”.
Dr Zaki, the general practitioner, in a referral letter dated 27 July 2012, described a history of “worsening anxiety and depression”, and said physical examination “showed high level of anxiety and depressed mood. Lately began to show possibly some form of paranoid idea about same work team the cause of the problem she said.” Dr Zaki’s certificates gave “reactive anxiety and depression” as the diagnosis.
A discharge summary from St Vincent’s Hospital dated 2 August 2012 said the appellant was a “43 yo female BIBA [brought in by ambulance] from solicitors office post having an emotional outburst”. The document gave the psychiatric diagnosis as “1. Situational Crisis 2. Histrionic Personality Style”. The observations included:
“During review she was noted to externalize and exaggerate her emotion and was in keeping with a histrionic personality style. She had no evidence of mood disturbance, was logical and directible, and had no symptoms of psychosis.”
Mr Herrera, in his report dated 16 November 2012, said there were “no abnormalities of thought form or thought content but there appeared to be a preoccupation of a persecutory nature”. Mr Herrera diagnosed “chronic adjustment disorder with mixed anxiety and depressed moods”.
Dr Akkerman, psychiatrist reported to the appellant’s solicitors, initially on 30 January 2013. He said “she presented in a very theatrical style. She would cry. She would shout. She would play with her skirt.” He said this “was not part of a Psychiatric condition… there is an element of Ms Liao exaggerating her condition. Possibly this has a cultural background.” Dr Akkerman said there was “some element of exaggeration”, but this was “on top of a genuine Major Depression”.
There were handwritten notes from Dr Subhas, the treating psychiatrist. The initial consultation was on 12 February 2013. The notes under “Mental State Examination” include the phrase “very histrionic”. Next to “Diagnosis” the doctor has written:
“Panic disorder Paranoid state ? Somatoform disorder Hypertension Histrionic Personality Disorder (Hysterical)”
There is also a report of Dr Subhas directed to the general practitioner dated 21 February 2013, relating to the consultation on 12 February 2013. It refers to panic attacks and suffering from anxiety. The penultimate paragraph reads:
“From the history this lady has given me, she is very histrionic and has difficulty sticking to her problem. She mentioned various incidents at the Nursing Home and has difficulty trusting people. She also spoke about her Panic Attacks. She definitely does tend to somatise when she is distressed, as she comes up with various aches and pains in her body. It appears that she has had a few Panic Attacks but it is a moot point if she has an underlying Hysterical Personality Disorder. [A]t this stage, I would continue her presen[t] medication and she definitely needs some support to help her deal with whatever has been worrying her especially the issues at work. One would need to rule out underlying Paranoia.”
Dr Lee, psychiatrist, reported to the respondent’s solicitors. His initial report dated 28 October 2013 included the history:
“She said she is always angry and yelling. The police are frequently called when she becomes difficult at Centrelink or the strata office. She said she loses control over everything.”
In the same report Dr Lee referred to his findings on examination, saying “[h]er behaviour appears regressed and histrionic and likely to be markedly exaggerated”, and “her presentation is markedly exaggerated, suggestive of dysfunctional personality traits”. He described her psychiatric condition, saying “to a highly significant extent it is caused by constitutional and personality factors”. He considered “she is likely to continue to exhibit histrionic and exaggerated behaviour with little apparent improvement with treatment in the context of an unresolved legal case”. Dr Lee, reported again on 20 January 2014. When asked to comment on Dr Akkerman’s diagnosis of Major Depression, Dr Lee responded:
“Major Depression is characterised by persisting depressive features but the duration of her symptoms tends to be brief and more consistent with histrionic personality traits.”
Dr Subhas, in his report dated 9 September 2014, referred to the appellant “creating a scene” at Coles, and to her being “upset” about the diagnosis of Schizophrenia by the AMS. Dr Subhas said that, on 8 September 2014, he “reassured her and told her that there was no evidence to suggest that she has Schizophrenia”. Dr Subhas wrote a certificate, apparently at the appellant’s request, dated 5 November 2015. It stated that Dr Subhas had known the appellant since February 2013, and since that time “she has not displayed any schizophrenia” (emphasis in the original). He said that the appellant suffered from “Panic Disorder and has history of Gen. Anxiety Disorder”.
Dr Akkerman, in his second report dated 7 October 2016, said that the appellant “does not and never had suffered from Schizophrenia”. Dr Akkerman speculated that “Dr Parmegiani likely misunderstood something that Ms Liao said. These were possibly related to cultural differences.” The appellant submits on “Underlying Histrionic Personality Traits” and “Histrionic Personality Disorder”, referring to the Liverpool Hospital Discharge Summary dated 2 June 2015 and Dr Subhas’s report dated 6 November 2015. The appellant submits at [103] that, based on the evidence and the definitions in DSM IV and DSM V, “it is clear” that Generalised Anxiety Disorder and Histrionic Personality Traits were the cause of the appellant’s “perception of death plots” and “physical symptoms displayed to the AMS”.
The appellant submits that “it is clear from the additional relevant information, the [appellant] does not have Schizophrenia” (letter 2 February 2017 at page 3.4). In her submissions in reply, before the Arbitrator, the appellant submitted at page 2.6 and page 3.5:
“At the time of the medical assessment with Dr Julian Parmegiani, the [appellant] had never been diagnosed with Schizophrenia and there was no evidence to support such a diagnosis.”
“It is clear from the evidence provided that Dr Julian Parmegiani made a demonstrable error with respect to the diagnosis of Schizophrenia.”
In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 the High Court at [47] (dealing with broadly similar Victorian legislation) said:
“The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: it is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.” (footnote omitted)
In State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 Campbell J applied the above passage in the context of the New South Wales legislation. His Honour said at [26]:
“Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons ... explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
The appellant’s submissions refer to the absence of the diagnosis of Schizophrenia, in the opinions of other medical practitioners, at the time the AMS formed his view. As the above passages make clear, it was not the duty of the AMS to perform a decision making role which involved choosing between competing arguments, or the medical opinions relied on by the parties. His function was to apply his own medical experience and medical expertise, in forming and giving his opinion, on the matter referred to him. He was not obliged to choose between the competing diagnoses of others who had previously assessed the appellant. He did not err, simply because he arrived at a diagnosis different to other medical practitioners.
The AMS gave reasons for the view which he formed, including reference to other medical evidence, at [10] of the MAC. He referred to “confusion” about diagnosis, which he described as “not uncommon in persons whose Schizophrenia develops insidiously. Multiple diagnoses are made, ranging from anxiety to mood disorders.” The appellant, on the appeal in reply, submits at [83] that Schizophrenia “cannot possibly be diagnosed at first instance”, and that “a correct diagnosis for psychological conditions takes time and cannot be accepted as correct without proper probing” (at [85]). These submissions do not refer to support in the medical evidence for their correctness.
The Arbitrator concluded that it was “highly unlikely an AMS (if it were possible to be referred again) or the appeal panel is likely to take a different approach to that adopted by Dr Parmegiani at first instance” (reasons at [75]). The AMS had “clearly noted the differing opinions by other examiners, and despite those opinions, arrived at his conclusions”, and the MAP concluded this “was appropriate” (reasons at [73]). The Arbitrator at [74] described the additional evidence relied on:
“The additional material which is ultimately sought to be presented to an AMS or an [A]ppeal [P]anel reviewing the matter is therefore not, relevantly, additional material which would aid in the interpretation of the [appellant’s] presentation as before the AMS. The material relates to differing clinical opinions as to the appropriate diagnosis.”
The Arbitrator concluded:
“I consider the material is unlikely to have [led] either the AMS or the [A]ppeal Panel to conclude differently on the issue of whether schizophrenia was an appropriate diagnosis. The reasons are that the different diagnos[e]s were already before them, as were the various clinical presentations by the [appellant] as recorded by other examiners.”
The appellant’s submissions on the appeal, at [110]–[115], refer to this passage of the reasons. The appellant submits:
“[T]he AMS or Medical Appeal Panel have not had the benefit of the conclusions drawn by Dr U Subhas, Liverpool Hospital and Dr Klaas Akkerman, that the Appellant has never suffered from Schizophrenia.”
The appellant submits that her presentation was explained by the diagnosis of Underlying Histrionic Personality Traits, referring to the Discharge Summary from Liverpool Hospital dated 2 June 2015 and the report of Dr Subhas dated 6 November 2015 (submissions on the appeal at [81]). It is submitted on her behalf that this also “is a strong reason why she was misunderstood” (submissions on the appeal at [84]). The appellant submits:
“… Generalised Anxiety Disorder and Histrionic Personality Traits were the cause of the Appellant’s ‘perception of death plots …’ and ‘physical symptoms displayed to the AMS were previously displayed to other examiners’.”
The appellant’s submissions refer to the Arbitrator not understanding psychiatric diagnoses (such as histrionic personality disorder), not having psychiatric qualifications, and not being expected to have in depth knowledge of psychological conditions (submissions on appeal at [87], [93] and [98]). Such submissions are disrespectful and do not assist the appellant in putting her case.
The appellant also submits that, in considering her application, “caution is paramount to ensure that a medical opinion is left in the medical profession” (at [114]), and at [115]:
“It is therefore the Appellant’s view that the Arbitrator was incorrect to assume that a medical professional will not consider the opinions of other medical professionals. This issue should be left with the Medical Appeal Panel or AMS to consider and not in the ambit of the legal profession or the Workers Compensation Commission.”
The reference to an assumption, that other medical opinions would not be considered, misquotes the Arbitrator’s reasons. What was said was that it was unlikely that the AMS or MAP would “conclude differently”.
The submission that “caution” is appropriate, such that the issue is left with medical professionals, misunderstands the nature of the application. The application, at its first step, is one to set aside the COD dated 18 January 2016. That involves the exercise of the discretionary power in s 350(3) of the 1998 Act. The power is exercised by the Commission, not by an AMS or a MAP, neither of which comprises the Commission: s 368 of the 1998 Act. The persuasive onus rests on the moving party, the appellant (Commonwealth v Muratore [1978] HCA 47; 141 CLR 296 at [11]). Whether that onus is discharged is not affected by the suggested need for “caution”. The appellant refers to no authority to support the proposition that “caution” should be exercised in the way submitted. Additionally, it is a submission that was not made before the Arbitrator, and the appellant should not be permitted to raise it on appeal (see [137]–[138] above). It is without merit.
Dr Akkerman’s speculation that the AMS likely misunderstood the appellant is without foundation. The proposition was adopted in the appellant’s submissions in reply on the appeal, at [61]:
“All that is being presented here is that the AMS misinterpreted the Appellant’s responses, which led to a misdiagnosis of Schizophrenia.”
The proposition is repeated at [63] of those submissions. There is no factual basis for the submission. Dr Akkerman speculated that misunderstanding may have occurred, in the absence of evidence that it did. The proposition cannot be accepted. Additionally, this again is an argument that was not made before the Arbitrator (although Dr Akkerman’s second report was in evidence), and it should not be raised on appeal.
The material that was before the AMS and the MAP is described, in large part, at [147]–[158] above. That material raised the potential presence of Underlying Histrionic Personality Traits and Histrionic Personality Disorder. There were various psychiatric diagnoses, including chronic adjustment disorder with mixed anxiety and depressed mood, reactive anxiety and depression, panic attacks and major depression. Dr Subhas referred to various possibilities including panic attacks, anxiety, paranoid state, underlying hysterical personality disorder, and the need to rule out underlying paranoia. In his report dated 21 June 2013, Dr Subhas said the appellant was “displaying a Pain Disorder”. Dr Subhas did not, in his material that was available to the AMS and the MAP, suggest a diagnosis of Schizophrenia. It could be reasonably inferred that, if he thought that such a diagnosis was appropriate, he would have referred to it.
It is apparent that Dr Akkerman, in his report dated 30 January 2013, did not consider that the appellant suffered from Schizophrenia. He included a single diagnosis, Major Depression, to which he thought there was some element of exaggeration. He said that this diagnosis was based on his mental state examination. The only previous condition of which he took a history was anxiety in 2008, from which the appellant said she had “fully recovered”.
Dr Akkerman, in his report dated 7 October 2016, expressed similar views. He said “[t]he diagnosis is Major Depression. She does not and never had suffered from Schizophrenia.” Dr Akkerman also said that senior psychiatrists such as himself, Dr Parmegiani, Dr Kossoff and Dr Glozier “generally do not treat patients with schizophrenia as their career progresses”. He said that he treated many patients with Schizophrenia as he practiced in the country, and suggested that his opinion should be preferred on that basis. This is speculative; there is no evidence dealing with the extent to which any of the other psychiatrists treat schizophrenic patients. Dr Akkerman also raised the issue about the availability of the two diagnoses made by the MAP, on the basis of DSM IV and DSM V. That will be referred to below.
Dr Subhas’s report dated 8 July 2014 described the appellant as “extremely upset and angry” about the Schizophrenia diagnosis, but did not specifically comment on the diagnosis. Dr Subhas’s report dated 9 September 2014 records that he specifically, on 8 September 2014, told the appellant “that there was no evidence to suggest that she has schizophrenia”. Dr Subhas’s certificate dated 5 November 2015 is consistent with this, saying “she has not displayed any schizophrenia”.
It was apparent to the AMS that the medical material with which he was furnished did not include a diagnosis of Schizophrenia by other practitioners. The AMS described a “review of psychiatric opinions”, in which he said “[m]ultiple diagnoses are made, ranging from anxiety to mood disorders.” The AMS considered that with “the passage of time, and the development of delusional ideas, a diagnosis of Schizophrenia has emerged.”
The appellant submits that the conditions of Generalised Anxiety Disorder and Histrionic Personality Traits were involved in causing delusional ideas (see the submissions quoted at [119]–[120] above). The difficulty with these submissions is that, when the AMS issued his MAC, he had access to material that included various anxiety based diagnoses, and multiple references to Histrionic Personality Disorder. He made his diagnosis when such material was before him, to be taken into account.
The further material relied on by the appellant includes specific statements by two doctors, Dr Akkerman and Dr Subhas, that the appellant did not, in their opinion, suffer from Schizophrenia. Neither of these doctors ever thought that she did, and both of them furnished opinions, which did not include Schizophrenia as a diagnosis, which were available to the AMS when his MAC was issued. The Arbitrator concluded that the additional material relied on by the appellant was not likely to lead to a different result before either the AMS or the MAP. This was because the substance of the different diagnoses and various clinical presentations were before the AMS and the MAP in any event (see the reasons quoted at [115]–[116] above). To adopt the language of O’Meally J in Galea, the appellant’s further evidence “can not accurately be described as fresh evidence; it is more evidence” (at 201A).
It follows that the Arbitrator’s conclusion, that it was unlikely that the additional evidence would lead to the AMS or the MAP taking a different approach, was well open to him on the evidence. He took appropriate matters into account. There is no error in the conclusion which he reached on this issue.
The Combination of Diagnoses by the Medical Appeal Panel
The appellant’s submissions, dealing with Ground No 5, refer to the view of Dr Akkerman, that diagnoses of adjustment disorder and Schizophrenia cannot be made together under DSM IV and DSM V. She submits that the issue should be put to the MAP (submissions on appeal at [117]). The appellant, elsewhere, states that she does not rely on this issue as a basis for reconsideration. In her submissions on appeal at [66]–[68] (dealing with this DSM issue under Ground No 4) the appellant submits:
“66. This is only an additional issue which shows that not only did the Medical Appeal Panel err by not examining the [appellant], but also erred in combining Schizophrenia with Adjustment Disorder.
67. Even though the Appellant does not rely on this as a basis for reconsideration, it merely highlights to the Medical Appeal Panel that a correct diagnosis must be made without the inclusion of Schizophrenia.
68. It is true that the Medical Appeal Panel is allowed to make their own diagnosis based on the evidence at hand including presentation upon examination (which did not happen), however such diagnosis must be in line with the relevant DSM criteria.”
The Arbitrator correctly observed, in his reasons at [81], that the third and fourth editions of the WorkCover Guides, require an AMS to make a diagnosis “based upon a psychiatric diagnosis (according to a recognised diagnostic system)”. No “‘recognised psychiatric system’ is mandated”. The Arbitrator observed that DSM IV or DSM V “are the commonly applied systems”. The Arbitrator also noted that the MAP did not “identify the psychiatric system used to diagnose Adjustment Disorder in addition to Schizophrenia” (reasons at [83]–[84]). It follows that the submission that the diagnosis “must be in line with the relevant DSM criteria” is incorrect.
The Arbitrator described Dr Akkerman’s opinion on this point as “an assertion without explanation”, and said the merits of the argument appeared “doubtful” (reasons at [86]). The Arbitrator’s reasons on this issue were open, and sufficient to justify a conclusion that Dr Akkerman’s evidence on this point would not be likely to lead to the MAP taking a different approach. It is noted, in any event, that the appellant did not rely on this point as a basis for reconsideration.
It follows from the above that Ground No 5 is rejected.
GROUND NO 6 – WAS AN ALLEGATION ABOUT FORMER LEGAL REPRESENTATIVES RELIED UPON?
The Arbitrator in his reasons at [79] said:
“It is not directly argued, but there is a suggestion in the way the procedural history is set out by the [appellant] that her previous solicitors were not sufficiently diligent or competent to progress the matter either in the Commission or in the Supreme Court. However, mistake or oversight by a legal adviser will not give rise to a ground for reconsideration. The fact that judicial review has time limitation is relevant, but is not, in my view, of sufficient persuasion to warrant exercise of the discretion, bearing in mind the other factors considered. If the [appellant] has a complaint against her solicitors, it is not a matter for the Commission to resolve.”
The Appellant’s Submissions
The appellant submits that there is no complaint made by her “against her current and former solicitors and the Arbitrator erred in fact by assuming there was some kind of mistake or oversight”. There are various other submissions made which restate that submission, or repeat submissions made under other grounds.
The Respondent’s Submissions
The respondent refers to the decision in Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29 (Hurst). It submits that the comments made by the Arbitrator at [79] did not constitute a finding of fact. It was “an observation that any complaint (whether actual or perceived) the appellant may have against her solicitor is an irrelevant consideration”. This is consistent with Hurst.
Consideration
The respondent’s submissions on this ground are clearly correct. The Arbitrator makes no finding in this passage, about the diligence or competence of the appellant’s solicitors. He observes that such a complaint, if made, would not constitute a basis for reconsideration consistent with Hurst. Ground No 6 simply involves a misreading of this passage of the Arbitrator’s reasons, and is rejected.
DECISION
None of the grounds of appeal have succeeded. The appellant has not established error within the meaning of s 352(5) of the 1998 Act. Error on the principles in House v The King is not established.
The Arbitrator’s decision dated 2 May 2017 is confirmed.
Michael Snell
Acting President
11 September 2017
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