Lukacevic v Coates Hire Operations Pty Limited
[2011] NSWCA 112
•06 May 2011
Court of Appeal
New South Wales
Case Title: Lukacevic v Coates Hire Operations Pty Limited Medium Neutral Citation: [2011] NSWCA 112 Hearing Date(s): 21 February 2011 Decision Date: 06 May 2011 Jurisdiction: Before: Giles JA at [1]; Hodgson JA at [73]; Handley AJA at [82];
Decision: (1) Leave to appeal granted.
(2) Dispense with the filing and service of a notice of appeal and further compliance with the Rules.
(3) Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: WORKERS' COMPENSATION - Medical assessment by approved medical specialist - Appeal to appeal panel - Worker's statement disputes history recorded by approved medical specialist - Statement rejected by appeal panel - Appeal panel confirms assessment of approved medical specialist - Worker seeks judicial review of appeal panel decision - Whether appeal panel erred in rejecting affidavit - Whether decision of appeal panel was Wednesbury unreasonable.
Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (C'th) s 5(2)(g)
Civil Liability Act 2002 s 43A
Workplace Injury Management and Workers Compensation Act 1998 Pt 7 of ch 7; ss 324, 325, 327, 328, 354Cases Cited: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales [2010] NSWCA 328; (2010) 57 MVR 80
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
Attorney-General of New South Wales v Quin (1990) 170 CLR 1
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 327
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation (1990) 96 ALR 153
Hennessy v Broken Hill Pty Ltd [1926] HCA 32, 38 CLR 342
The King v Connell; ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
Kruger v The Commonwealth (1997) 190 CLR 1
Lukacevic v Coates Hire Operations [2010] NSWSC 551
Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1976) 162 CLR 24
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Siddik v WorkCover Authority of NSW [2008] NSWCA 116; (2006) 6 DDCR 228
Ward v Shell-Mex BP Ltd [1952] 1 KB 280Texts Cited: Category: Principal judgment Parties: Damir LUKACEVIC (appellant)
COATES HIRE OPERATIONS PTY LIMITED (first respondent)
REGISTRAR OF THE WORKERS COMPENSATION COMMISSION (second respondent)
An Appeal Panel constituted under s 328 of the Workplace Injury Management Act 1998 (NSW) (third respondent)Representation - Counsel: C Jackson (appellant)
R R Stanton (first respondent)- Solicitors: Martin Bell & Co (appellant)
Sparke Helmore (first respondent)
Crown Solicitor's Office (second and third respondents)File number(s): 2009/297957 Decision Under Appeal - Court / Tribunal: Supreme Court - Before: Hislop J - Date of Decision: 04 June 2010 - Citation: Lukacevic v Coates Hire Operations Pty Ltd [2010] NSWSC 551 - Court File Number(s) SC 2009/297957 Publication Restriction:
Judgment
GILES JA : The applicant applied for leave to appeal from the dismissal of his claim that the decision of an Appeal Panel confirming the medical assessment of an approved medical specialist under the Workplace Injury Management and Workers Compensation Act 1998 ("the WIM Act ") be quashed on judicial review. Error was said to lie in the Appeal Panel's refusal to receive into evidence a statement of the applicant dated 10 March 2009 ("the applicant's statement"). The application was heard on full submissions as if an appeal, so that the appeal could be decided without further submissions if leave was granted.
The active respondent was the first respondent, the applicant's former employer. The other respondents, the Registrar of the Workers Compensation Commission ("the Commission") and the Appeal Panel, filed submitting appearances.
I have read in draft the reasons of Handley AJA, with whom Hodgson JA agrees. Respectfully differing from their Honours, in my opinion the Appeal Panel's refusal to receive the applicant's statement for the reasons they gave was Wednesbury unreasonable. Leave to appeal should be granted, the appeal should be allowed and the decision of the Appeal Panel should be quashed.
Background
The applicant was employed as a yard supervisor. He was injured at work on 20 February 2004. On 6 August 2008 he applied to the Commission to resolve a dispute, including over the degree of his whole person impairment from psychiatric or psychological disorder.
This was a medical dispute within the meaning of Pt 7 of Ch 7 of the WIM Act . It was referred for assessment by Dr Robert Gertler ("the AMS"), a consultant psychiatrist and an approved medical specialist for the purposes of Pt 7.
The AMS examined the applicant on 2 February 2009. On 10 February 2009 he certified a whole person impairment of 4 per cent. In the reasons accompanying the medical assessment certificate the AMS gave the opinion that the applicant had "developed a chronic adjustment disorder with mixed emotional features".
The reasons included an account of the applicant's "present symptoms", a statement of findings on "mental status examination", and the AMS's comments on medical reports with which he had been provided.
The account of the applicant's present symptoms was -
"Mr Lukacevic describes constant pain in the low back radiating down the legs. Although the pain is constant and affects his ability to sit or stand for long periods of time, he has become 'used to it'.
His appetite has diminished and he has lost several kilograms in weight.
His sleep is affected by pain, but also a tendency to ruminate about his previous work and the fact that he remains 'angry' at his former employer.
He described himself as easily irritable and cranky, with mood swings which range from feeling quite happy to feeling 'pissed off'.
He has occasional negative thoughts."
The findings on mental status examination were -
"On mental status examination, Mr Lukacevic presented as a man of stated age who appeared in some physical discomfort and who limited into the interview. He seemed anxious, his speech was somewhat pressured. There was no evidence of significant depression . There was no evidence of psychotic thought disorder, no delusions or hallucinations being present. He was oriented for time, place and person, and his memory for recent and past events appeared intact. His capacity for insight and his judgment seemed appropriate. His general intellectual level was in the average range." (italics added)
The comments on the medical reports included comments on reports of Dr Thomas Clark, consultant forensic psychiatrist, who had diagnosed post-traumatic stress disorder and assessed 19 per cent whole person impairment, and Dr D Kecmanovic, consultant psychiatrist, who had also diagnosed post-traumatic stress disorder -
" Dr T O Clark in his report of 24 July 2007 obtained a history similar to the history which I obtained from Mr Lukacevic. He was however of the opinion that the initial injury sustained by Mr Lukacevic was sufficient to warrant the subsequent diagnosis of a post traumatic stress disorder.
Dr Clark mentioned other symptoms which Mr Lukacevic complained of at the time consistent with that diagnosis, however at this interview Mr Lukacevic denied any continuing nightmares or flashbacks to the injury, nor any hypervigilance or avoidance phenomena .
Dr Clark also mentions that Mr Lukacevic's diagnosis had 'many features now of a dysthymic disorder' which would be more consistent with my diagnosis.
In assessing impairment Dr Clark found that Mr Lukacevic was mildly impaired in terms of ' Self care and personal hygiene' however I could not find any evidence to substantiate that.
He was in agreement with my assessment in the category of 'Social and Recreational Activities' however found Mr Lukacevic to be more impaired in the category of 'Travel'. Given that he came to the interview having travelled a long distance without apparent alteration in his emotional state, I remain of the opinion that he does not have any impairment in that category.
In terms of 'Social Functioning' Mr Lukacevic does maintain contact with his parents and sister who live elsewhere and there was no evidence that his relationships with them or others were severely strained, although as noted I did find evidence of some irritability which could affect relationships.
In terms of 'Concentration Persistence and Pace' I could find no evidence of 'moderate impairment' and in terms of 'Employability' Mr Lukacevic quite openly informed me that he would be prepared to accept a return to work for which he was suitably qualified and physically suited and had indeed been seeking such employment at the local club at Lightning Ridge .
Dr Kecmanovic psychiatrist in his report of 23 March 2008 provided a brief history which Mr Lukacevic described to me however I could not find evidence that Mr Lukacevic still complained of 'intrusive and distressing recollections of the event' or 'bad dreams related to the event'. I did not obtain a history of the severe symptoms which Dr Kecmanovic described and disagree with respect, with his diagnosis of a post traumatic stress disorder, chronic type ." (italics added)
In a table applying the Permanent Impairment Rating Scales from which he then derived the 4 per cent whole person impairment, the AMS recorded -
| PIRS Category | Class | Reason for Decision |
| Self Care and personal hygiene | 1 | No impairment. Lives independently. Cares for self. Does own shopping. |
| Social and recreational activities | 2 | Mild impairment. Will occasionally go to club, has contact with one friend. |
| Travel | 1 | No deficit. Able to travel from Lighting Ridge to Sydney without difficulty. |
| Social functioning | 2 | Has distanced self from family. Not in a relationship. |
| Concentration, persistence and pace | 1 | No impairment. Listens to music. Travels to artesian baths. No deficit evident during interview. |
| Employability | 2 | Mild impairment. Would accept employment which was suitable to his physical needs however may have difficulty because of irritability and some social withdrawal. |
The AMS said in the reasons that he had based his assessment of whole person impairment on "[t]he history provided, my findings on clinical examination, and the documentation provided". It is clear that he came to his diagnosis and assessment because of a history and findings of less severe symptoms than those on which Drs Clark and Kecmanovic had acted.
The appeal to the Appeal Panel
On 10 March 2009 the applicant appealed against the AMS's assessment pursuant to s 327 of the WIM Act , on the ground amongst others that additional relevant information was available which had not been available to him before the AMS's medical assessment or could not reasonably have been obtained by him before that assessment (s 327(3)(b)). Other grounds were that the assessment was made on the basis of incorrect criteria and that the medical assessment certificate contained a demonstrable error (s 327(3)(c), (d)). The applicant asked in the appeal application that he "be re-examined by an AMS who is a member of the Appeal Panel".
The applicant's submissions in support of his appeal included as grounds of appeal that the AMS had "failed to take an adequate and/or accurate history as required by the WorkCover Guidelines " and had "failed to record the history given during the examination". The submissions as to those grounds of appeal were -
" 1. Failure to take an adequate and/or accurate history
During assessment, the AMS did not take a detailed history from the Applicant. He did not question the applicant with respect to specific details about his self-care and hygiene, his social and recreational activities, his travel habits, his social functioning, his concentration levels or his employment capacity either before or since the accident. Had he taken materially relevant history, he would have determined the appropriate WPI.
2. Failure to record history given during the examination
The AMS failed to record in his MAC, the correct history as provided by the Applicant during the interview. Specifically, the Applicant submits that he informed the AMS of the following:
a. Recurring nightmares;
b. Insomnia;
c. Panic attacks;
d. Flashbacks; and
e. Suicidal thoughts.
These are not recorded in the MAC, and the AMS falsely alleges that the Applicant denied suffering from recurring nightmares."
The submissions included a further ground of appeal that the AMS had "failed to apply the correct Classes in each of the six scales in the Permanent Impairment Rating Scale ('PIRS') and consequently failed to provide an appropriate WPI Assessment". The submissions as to that ground were concerned with satisfaction of the classes having regard to the applicant's self-care and personal hygiene, his social and recreational activities, his impairment in travelling, his social functioning, his impaired concentration and his employability.
A further ground of appeal complained of failure to provide adequate reasons. That complaint was no part of the application for judicial review, and nothing more need be said of it.
The submissions in support of the appeal concluded -
" Re-examination by the Appeal Panel
A re-examination is necessary as a result of the AMS's failure to properly perform and record the examination and assessment.
Note in relation to additional evidence
The Applicant relies upon a Further Statement of Mr Damir Lukacevic which relates what took place during Dr Gertler's examination. It is noted that this Further Statement is evidence of the sort that may be admitted into appeal proceedings pursuant to subsection 328(3) of the Workplace Injury Management and Workers Compensation Act 1998, as has been clarified by the decision in Petrovic v BC Serv No 14 Pty Ltd and Ors ."
The additional evidence was the applicant's statement. It went beyond what had taken place during the AMS's examination. However, it included evidence directed to the parts of the AMS's reasons earlier italicised -
"1. I have read the report of Approved Medical Specialist (AMS), Dr Robert Gertler, psychiatrist.
2. Dr Gertler states 'there is no evidence of significant depression'. He does not report that I informed him that I have access to guns and I am often suicidal. I also explained to him how I don't care about anything anymore and how I don't want to do anything anymore, that I have become a complete recluse, as reflected by my move to Lightning Ridge. None of this is mentioned.
3. Dr Gertler states that I denied suffering continuing nightmares or flashbacks. This is not true. I note that in my statement to the Workers Compensation Commission dated 2 April 2008, I stated that I suffer from insomnia, panic attacks, increased heart rate and being tremulous and continuously sweaty. Dr Clarke recorded my complaint of nightmares, as did Dr Kesmanovic ('bad dreams'). It was never put to me that the situation was any different and I didn't state it was. I still continue to suffer from nightmares, often waking in a cold sweat. I get flashbacks every day. I informed Dr Gertler of this during my interview.
4. Dr Gertler asserts that he could find no evidence of impairment in 'Self care and personal hygiene'. I told him I have difficulty looking after myself. Dr Gertler did not ask me any questions about specifics of looking after myself. He simply asked me whether I could look after myself or if I needed any sort of help.
...
6. Dr Gertler asserts that I have only a mild impairment in social and recreational activities. He states that I occasionally go to the club and have contact with one friend. Dr Gertler did not ask what activities and hobbies I used to do prior to my accident and he did not ask whether I was unable to do them now. ...
7. Dr Gertler states that he doesn't believe I have any impairment in Travel [sic] as I came to the interview. He did not ask me about the trip, other than how I got to the interview. ...
8. Dr Gertler did not ask me any questions about how I feel about travelling. ...
9. Dr Gertler finds no evidence of relationships being severely strained. ... Dr Gertler did not ask any specific questions about my relationships he simply asked how I got along with my family.
10 ... I was not asked any questions about this type of relationship [becoming involved with someone else], any details of my history prior to the accident nor my reasons for not presently being in a relationship.
11. Dr Gertler did not ask, but I used to be extremely outgoing before my accident. Now I don't have any desire to know anyone or form new relationships.
12. Dr Gertler did not ask me any questions about my concentration levels. ...
14. The only question Dr Gertler asked me about in relation to employment was whether I had applied for any jobs. ... .
15. The whole appointment lasted for less than 30 minutes."
The first respondent filed a notice opposing the appeal, and in its submissions objected to the applicant's statement "being considered under the current appeal". The basis of the objection, after an initial submission that the Registrar could not consider it in determining whether the appeal could proceed ( WIM Act , s 327(4)), was -
"13. In the event the Appeal proceeds, the Respondent further submits that the statement should not be considered by the Medical Appeal Panel as the Applicant has [sic] ample opportunity to provide a statement addressing his symptoms prior to the AMS and was provided opportunity to discuss and advise the AMS of his condition during the examination."
The first respondent's submissions opposing the appeal otherwise appear sufficiently from the Appeal Panel's reasons later set out.
The Appeal Panel's decision
The Registrar's Delegate was satisfied that the appeal could proceed, and the appeal was referred to an Appeal Panel constituted by Ms Sue Duncombe, Arbitrator, and Drs Julian Parmegiani and Graham Vickery, psychiatrists and approved medical specialists. In reasons given on 13 May 2009 the Appeal Panel confirmed the AMS's medical assessment certificate.
After describing matters of background, the Appeal Panel said in their reasons -
" PRELIMINARY REVIEW
7. The Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines.
8. As a result of that preliminary review, the Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient medical evidence before it to consider, evaluate and determine the issues raised on appeal.
Fresh Evidence
9. Section 328(3) of the 1998 Act provides that the Appeal Panel is not to receive evidence that is fresh evidence, or evidence in addition to, or in substitution for, the evidence received in relation to the medical assessment appealed against, unless the evidence was not available to the appellant before the medical assessment, or could not reasonably have been obtained by the appellant before the medical assessment.
10. The admission of 'fresh evidence' into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 ('Ross'). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosort WCC10798-04). In Ross the Deputy President stated;
'A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly, that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case ( Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann V Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed the fundamental demands of fairness and justice in the instant case [sic]."
11. The Panel has determined that the following 'fresh evidence' should not be received in the appeal:
Statement of the Appellant dated 10 March 2009
12. The Panel has determined that the 'fresh evidence' should not be received in the Appeal because the Appellant comments on the process of the medical examination and there is an interest in finality of litigation which admitting the statement would not serve. For reasons of procedural fairness, the Panel could not consider the allegations made by the Appellant in the absence of a response from the AMS. That continual opening and re-opening of the evidence is not in the interests of justice and not contemplated as part of the appeal mechanism in the Commission."
As I have indicated, the applicant contended that the Appeal Panel erred in refusing to receive the applicant's statement into evidence. It is necessary to see how the Appeal Panel then dealt with the appeal.
In their identification of the evidence before them the Appeal Panel included the AMS's medical assessment certificate, with the observations -
" Medical Assessment Certificate
5. The parts of the medical certificate given by the AMS and issued on 10 February 2009 that are relevant to the Appeal are set out below:
a. The Appellant complained about section 4, History saying that it was insufficient.
b. At paragraph 7 of the MAC, the AMS stated that he 'has ... developed a chronic adjustment disorder with mixed emotional features'.
c. At paragraph 10, the AMS lists the factors upon which he based his PIRS assessment. The Appellant says that these factors exclude many that he told the AMS about during the interview.
d. The Appellant also complains about the PIRS rating form."
The Appeal Panel said under the heading "Submissions" that both parties had made written submissions, which were identified by date, and -
"20 The Appellant submitted that the AMS has failed into error on a number of grounds, specifically that -
a. Alleged failure to take an adequate and/or accurate history
b. Alleged failure to record history given during the examination
c. Alleged failure to apply correct PIRS classes
d. Alleged failure to provide adequate reasons.
21. The Respondent submitted that the Appellant had not established a proper ground for appeal and that the AMS had not erred in any of areas alleged.
22. Each of the complaints of the appellant will be dealt with below."
Then under the heading "Findings and Reasons" the Appeal Panel said, after reference to its role as expounded in decisions of this Court, that "[t]he Panel has accordingly conducted a review of the material before it and reached its own conclusion concerning the correct assessment of the impairments and losses suffered by the Respondent". They said that "[e]ach of the allegations of error, and the first respondent's response to those allegations, will be dealt with in turn below".
The Appeal Panel continued -
"Alleged failure to take an adequate and/or accurate history
28. The Appellant alleged that the AMS did not take a detailed history in that he did not question the Appellant with respect to specific details about his self-care and hygiene, his social and recreational activities, his travel habits, his social functioning, his concentration levels or his employment capacity.
29. The Respondent submitted that the AMS took a detailed history as recorded at pages 2-4 of th MAC. The Respondent also submitted that the AMS reviewed and made lengthy comments on the medical reports include in the Application and Reply which also contain details of the Applicant's injury, treatment and symptoms.
30. The Panel agrees with the Respondent in respect of this allegation. It is clear from the history recorded on pages 2-4 and from the PIRS classification analysis that the AMS has taken a history sufficient to allow him to assess the appellant in relation to this classification system. The AMS has also demonstrated that he has read each of the medical reports in the Application and Reply which also, in themselves, record the history and symptoms complained of by the Appellant.
31. The Panel is of the view that the AMS has not fallen into error in this manner and that he has taken an accurate history of the Appellant's injury and present condition to enable him to form the diagnosis he did.
Alleged failure to record history given during the examination
32. The Appellant alleged that the AMS did not record the history provided by the Appellant during the examination of
a. Recurring nightmares
b. Insomnia
c. Panic attacks
d. Flashbacks; and
e. Suicidal thoughts.
33. The Appellant also submitted that the AMS incorrectly recorded that the Appellant denied suffering from recurring nightmares.
34. The Respondent submitted that the AMS took a specific history that the Appellant denied suffering nightmares and flashbacks.
35. The Panel notes that the AMS noted that Mr Lukacevic's sleep is 'affected by pain, but also a tendency to reminate about his previous work and the fact that he remains "angry" at his former employer'. He also took a history that he had 'occasional negative thoughts'. The AMS also specifically noted a denial of any continuing nightmares or flashbacks. He did so in the context of noting the different history recorded by Dr T Clark on 2007. The AMS was alerted to the issue and recorded his observations and responses appropriately.
36. The Panel also noted the history recorded by Dr Clark that he 'says he does not sleep long enough to have nightmares'.
37. The Panel noted that the AMS recorded 'occasional negative thoughts' which indicates that the AMS was aware of the issue of suicidal thoughts and has not specially recorded this history. This is further evidence of the accuracy of the interview and examination.
39. The Panel is therefore of the view that the AMS has taken a correct history as given to him during the examination and has recorded those aspects of that examination and the Appellant's response where relevant to the diagnosis and assessment.
39. For these reasons, the Panel is not satisfied that this ground of appeal is made out."
The Appeal Panel continued, under the sub-heading "Alleged failure to apply correct PRS classes", by recording the parties' respective submissions and concluding -
"42. The Panel notes the reasons for decision included in the PIRS ratings. The Panel has formed the view that the reasons given justify the primary assessment and are sufficient and accurate based on the history given to the AMS. Specifically, the Appellant's evidence is that he lives by himself, cooks for himself some times, has his shopping delivered (because of physical difficulties carrying shopping), bathes every day, goes to the artesian baths himself, can travel without a support person (although travel away from his local area causes some anxiety), has distanced himself from his family but still does have contact with a friend, finds it difficult to relate in an employment situation. All of this evidence is consistent with the PIRS Category as assessed by the AMS for the reasons given by the AMS.
43. For these reasons, the Panel is not satisfied that this ground of appeal is made out."
The Appeal Panel dealt under its own sub-heading with the ground of appeal of inadequate reasons, and said that it also was "not made out". They then said -
"48. For these reasons, the Panel has therefore determined that the Medical Assessment Certificate dated 10 February 2009 given in this matter should be confirmed.
49 For the reasons set out in this statement of reasons, the decision in this matter is that: The Medical Assessment Certificate given in this matter should be confirmed."
The application for judicial review
In proceedings brought in the Administrative Law Division of the Court the applicant claimed that the Appeal Panel's decision be quashed. The trial judge, Hislop J, refused relief: Lukacevic v Coates Hire Operations [2010] NSWSC 551.
The grounds for relief and the arguments in support of them on appeal were refined from those in the Administrative Law Division, including effective abandonment of the ground that the Appeal Panel had no discretion to refuse to admit the applicant's statement, and the arguments were more wide-ranging in this Court. For those reasons, I do not think it profitable to go in any detail to his Honour's reasons. He held that the Appeal Panel had a discretion to refuse to receive fresh evidence in an appeal and that the exercise of the discretion had not miscarried, and also that "no different result would have ensued if the Statement had been admitted into evidence" (at [38]).
There was a discretion
Although the ground for relief was effectively abandoned, the point should be put to rest.
Section 328 of the WIM Act relevantly provides -
" 328 Procedure on appeal
(1) ...
(2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The WorkCover Guidelines can provide for the procedure on an appeal.
(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.
(4) ... "
The applicant's statement was not wholly evidence which was not available and could not reasonably have been obtained before the AMS's medical assessment. As well as saying what did or did not occur at the AMS's medical examination, the applicant repeated part of an earlier statement of 2 April 2008 and gave an account of his past or present states; for example, he said that he still had nightmares and that he had been fully independent prior to his injury but was now impaired in various ways.
However, what the applicant said about the AMS's medical examination was fresh or additional evidence which was not available to him before the medical assessment and could not reasonably have been obtained by him prior to the medical assessment. The parts of the applicant's statement which I have extracted above, subject to possible minor quibbling, satisfied the requirements of s 328(3), and it was not suggested and could not be suggested that that evidence was not relevant in the appeal.
The Appeal Panel did not distinguish between the parts of the applicant's statement which could not be received and the parts which could be received. They appear to have put the former aside, and their refusal to receive it was directed to the "comments on the process of the medical examination" (para 12). They did not refuse to receive the applicant's statement because s 328(3) precluded its reception, but because it "should not be received in the appeal" (para 11) as a matter of discretion for the reasons stated in para 12.
The nature of an appeal by way of review under s 328 of the WIM Act has been particularly considered in Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 327 and Siddik v WorkCover Authority of NSW [2008] NSWCA 116; (2006) 6 DDCR 228, with reference to the flexibility of the appeal. Nothing in its nature suggests that an Appeal Panel is obliged to receive into evidence fresh or other evidence meeting the requirements of s 328(3).
The WorkCover Guidelines at the time included in para 43 -
"The Appeal Panel, comprising two AMS's and an Arbitrator, will undertake a preliminary review of the documents. The parties are not present for this preliminary review. The Appeal Panel decides on the appropriate action to take in the appeal including whether the worker should be examined and if new evidence should be allowed. The Appeal Panel may set a date for an assessment hearing or may decide the appeal on the papers without further involvement from the parties."
The reference to new evidence in para 43 is apt to cover all evidence given on appeal, whether fresh, additional or in substitution for the evidence received by the approved medical specialist. There is an obvious relationship between whether the worker should be examined (in which case there may be examination by a member of the Appeal Panel, see the WIM Act , s 324(1)(c), (3)) and whether the new evidence should be allowed. The procedure under this paragraph is consistent with a discretion to refuse to receive evidence meeting the requirements of s 328(3), although it could refer only to deciding whether the new evidence was not available and could not reasonably have been obtained before the medical assessment.
The Commission is not bound by the rules of evidence ( WIM Act , s 354(2)), and an Appeal Panel could not be any more bound by the rules of evidence. Reception of evidence on appeal involves regard to relevance and, without being exhaustive, apparent credibility and capacity to affect the result. The fact that the evidence was not available and could not reasonably have been obtained before the medical assessment does not make its reception mandatory. Section 328(3) in this respect is exclusory, not inclusory.
In an adjudication between parties based on evidence, unless it is clearly negatived there must be a discretion to refuse to receive evidence if, despite relevance, justice between the parties or other good reason so requires: for example, evidence which is brought forward so late that it would be unjust to the other party to receive it and the injustice outweighs any injustice to the party bringing it forward in refusing to receive it. In an appeal there are additional considerations such as apparent credibility and capacity to affect the result.
I do not think that para 43 of the WorkCover Guidelines, which is concerned with procedure, confers a discretion, but as I have said it is consistent with a discretion not to receive evidence which otherwise meets the requirements of s 328(3).
The exercise of the discretion was Wednesbury unreasonable
There is Wednesbury unreasonableness, from Associated Provincial Picture Houses Ltd v Wednesbury Corporation ( 1948) 1 KB 223, where the exercise of a discretion is so unreasonable that no reasonable person could have so exercised it. It has long been accepted as a ground for judicial review of administrative action.
Lord Greene MR's formulation of unreasonableness has been criticised for circularity and vagueness (see for example Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation (1990) 96 ALR 153 at 166 per Gummow J, and the reference by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611 at [129] to "dissatisfaction with the inherent circularity of the Wednesbury test"). The language was nonetheless taken up in statutory provisions, notably in s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (C'th).
In Associated Provincial Picture Houses Ltd v Wednesbury Corporation at 227 Lord Greene distinguished between what a court may consider unreasonable and "something quite overwhelming". His Lordship's formulation has been explained with varying degrees of stringency, but in judicial review of administrative action a quite demanding level of unreasonableness has been required. This reflects, amongst other things, the separation between the exercise of executive and judicial power which, at Federal level, has constitutional dimensions. Thus in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1976) 162 CLR 24 at 42, where the asserted ground of unreasonableness was giving too much or too little weight to one consideration or another, Mason J cautioned lest a court "exceed its supervisory role by reviewing the decision on its merits".
It has been said that describing reasoning as unreasonable, even using Lord Greene's formulation, may be no more than an emphatic way of disagreeing with it, see for example Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J; re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [5] per Gleeson CJ; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122 at [34] per French CJ and Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. The same may be said of describing the exercise of a discretion as unreasonable. In Attorney-General of New South Wales v Quin (1990) 170 CLR 1 at 36 Brennan J said that Wednesbury unreasonableness "leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power", and that this basis for judicial review "is extremely confined". However, as was pointed out by Brennan J in Kruger v The Commonwealth (1997) 190 CLR 1 at 36, where a discretionary power is statutorily conferred the legislature must be taken to have intended that it be exercised reasonably; see also Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [116] per Gaudron J and Minister for Immigration and Citizenship v SZMDS at [123] per Crennan and Bell JJ.
The courts by their supervisory role keep the administrative decision-maker within its legislative authority. The Appeal Panel's discretion rests on its statutory function, and if the exercise of the discretion was so unreasonable that, beyond the court's strong disagreement, no reasonable person could have so exercised it, relief should be granted.
The scene was set when the Appeal Panel determined that a further medical examination was not necessary. If the Appeal Panel had itself conducted a further medical examination, no doubt that would have included taking a history from the applicant and hearing first hand his account of his symptoms and of the past and present psychiatric or psychological consequences of the work injury. The Appeal Panel could assess for itself the veracity, reliability and significance to finding a degree of whole person impairment of the history they took, having regard to the medical evidence and bypassing the issue of the AMS's alleged failure to take an adequate or accurate history and to record the history given during his examination of the applicant. But they did not take that course.
The Appeal Panel said that they had "conducted a review of the material before [them] and reached [their] own conclusion concerning the correct assessment of the impairments and losses suffered by the Respondent". The material before them included the AMS's medical assessment certificate, and it is evident that they focussed on it and, as the first respondent accepted in submissions, had regard to the history recorded by the AMS.
The Appeal Panel came to their conclusion by addressing and rejecting the applicant's grounds of appeal, relevantly the grounds of appeal founded on the AMS's alleged failure to take an adequate or accurate history and to record the history given during his examination of the applicant. They rejected the ground of appeal of failure to take an adequate or accurate history (para 31), and rejected the ground of appeal of failure to record the history given during the examination (para 39). They did the same as to the PIRS classes: the Appeal Panel considered that the AMS's reasons "justify the primary assessment and are sufficient and accurately based on the history given to the AMS" (para 42). That left intact the AMS's diagnosis (para 31), his diagnosis and assessment (para 39), and "the PIRS Category as assessed by the AMS for the reasons given by the AMS" (para 42). Hence the AMS's medical assessment certificate was confirmed.
Despite what the Appeal Panel said, this was not a case of an independent diagnosis and assessment, but one of rejecting challenges to the AMS's diagnosis and assessment and his consequential arrival at the degree of whole person impairment. In rejecting the challenges the Appeal Panel specifically found that the AMS "has taken an adequate and accurate history of the Appellant's injury and present condition to enable him to form the diagnosis he did" (para 31), and that the AMS "has taken a correct history as given to him during the examination and has recorded those aspects of the examination and the Appellant's response where relevant to the diagnosis and assessment" (para 38).
The reasoning to these findings is in some respects not entirely clear. For example, that the AMS had "taken a history sufficient to allow him to assess the appellant in relation to [the PIRS] classification system" and appeared to have read medical reports which recorded the history and symptoms of which the applicant complained (para 30) says nothing of whether the AMS had recorded an accurate history at the time of the AMS's medical examination. Reference to the AMS apparently being "alerted to the issue" of nightmares and flashbacks (para 35), and to seeing "evidence of the accuracy of the interview and examination" in his apparent awareness of the issue of suicidal thoughts (para 37), do not seem to bear upon the alleged failure to record the history given by the applicant. The Appeal Panel seem also to have reasoned that the applicant can not have complained of nightmares to the AMS because Dr Clark had recorded that he said that he did not sleep long enough to have nightmares (para 36), which does not follow where Dr Clark's report was in 2007. These examples are not exhaustive.
These examples, however, would go to merits review of the substantive appeal. The question is not whether the Appeal Panel was correct in determining, to the extent that they did, that as a matter of fact the AMS had not failed to ask the applicant about the matters which the applicant said he had not been asked about, and more particularly had not failed to record matters or had incorrectly recorded matters which the applicant had said to him, as alleged in the applicant's statement. The point for present purposes is that they did so having refused to receive into evidence the applicant's statement on which his complaints in these respects depended. They made positive findings that the AMS had taken an adequate and accurate, or correct, history and had recorded relevant "aspects" correctly, and had regard to the history recorded by the AMS notwithstanding that it was under challenge. The Appeal Panel's rejection of the ground of failure to apply the correct PIRS classes was founded on their acceptance that the AMS had accurately recorded the history given at the medical examination.
Making the positive findings, and thereby rejecting the challenges to the AMS's medical assessment certificate and leaving it intact, was the Appeal Panel's essential reasoning. They need not have taken that path to confirmation of the AMS's medical assessment certificate. Having refused to receive the appellant's statement into evidence, they could have taken the AMS's medical assessment certificate at face value because there was no evidence to impugn "the process of the medical examination", and come to their own conclusion on the medical evidence alone or on the medical evidence plus the AMS's medical assessment certificate. The path they took, however, involved determining the very issues to which the evidence they refused to received was directed, notwithstanding that without the evidence the applicant had nothing on which he could rely for his complaints concerning the AMS's medical examination and its recording.
The refusal to receive the applicant's statement must be considered in this context. For convenience, I repeat para 12 of the Appeal Panel's reasons -
"The Panel has determined that the 'fresh evidence' should not be received in the Appeal because the Appellant comments on the process of the medical examination and there is an interest in finality of litigation which admitting the statement would not serve. For reasons of procedural fairness, the Panel could not consider the allegations made by the Appellant in the absence of a response from the AMS. That continual opening and re-opening of the evidence is not in the interests of justice and not contemplated as part of the appeal mechanism in the Commission."
The Appeal Panel did not exercise their discretion for any reason to do with apparent credibility or capacity to affect the result.
That the applicant commented on the process of the medical examination was not of itself a reason for refusing to receive his statement. That was why the applicant's statement was relevant and was not excluded by s 328(3).
The perhaps obscurely expressed reasons should be read benevolently ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [271]-[272]). As I understand the Appeal Panel, if the comments on the process of the medical examination were received, procedural fairness would require that the first respondent have the opportunity to reply to the evidence, and receiving the two rounds of new evidence would be contrary to the need for finality in litigation. The need for finality in litigation was further expressed in the observation that "continual opening and re-opening of the evidence is not in the interests of justice and not contemplated as part of the appeal mechanism in the Commission".
There was here no question of continual opening and re-opening of the evidence, or of exceeding what was "contemplated as part of the appeal mechanism in the Commission". Putting aside the hyperbole, so far as the applicant commented on the process of the medical examination, the question was one of receiving evidence which fell within s 328(3). Reception of such evidence, and of evidence replying to it is clearly part of the "appeal mechanism". It was said in Siddik v WorkCover Authority of NSW at [100] that an appeal by way of review under s 328 may involve a hearing de novo . The operation of the "appeal mechanism" extends that far, beyond the reception of fresh or additional evidence.
Finality of litigation had no command against reception of the applicant's statement so far as he complained of what had occurred at and in the recording of the AMS's medical examination. The evidence could not have been brought forward at any earlier time. The Appeal Panel had determined, whether independently of deciding that the applicant's statement would not be received or together with that decision does not matter, not to have a further medical examination. It took the course of addressing and resolving the applicant's grounds of appeal by the essential reasoning earlier described. The evidence went fundamentally to the AMS's arrival at his assessment of whole person impairment and to the grounds of appeal, and refusal to receive it would emasculate the appeal because the Appeal Panel would decide the grounds of appeal dependent on the evidence without the evidence. There was no case against reception of the applicant's statement. The first respondent did not assert hardship or any like consideration against its reception, and it could not be suggested that the circumstances of the first respondent or its insurer called for finality by holding the applicant to the AMS's assessment of whole person impairment despite his complaints.
On one view, the applicant was denied procedural fairness because the Appeal Panel refused to receive his statement for the reasons in para 12 when the first respondent's opposition had been because the applicant had had the opportunity to put his symptoms to the AMS. That basis for opposition hardly answered the complaint of what had occurred in and in the recording of the AMS's medical examination, and the Appeal Panel gave no notice of refusal to receive the applicant's statement for their quite different reasons. This was not raised as a ground of judicial review, and I put it aside.
With respect to the Appeal Panel, in my opinion their decision to refuse to receive the applicant's statement for the reasons they gave was one to which no Appeal Panel, acting reasonably, could come.
In principle, the Appeal Panel could have been influenced to refuse to receive the applicant's statement in the exercise of their discretion because they did not consider it credible, or did not think the evidence would alter the result. The findings that the AMS "has taken an adequate and accurate history of the Appellant's injury and present condition to enable him to form the diagnosis he did" (para 31), and that the AMS "has taken a correct history given to him during the examination and has recorded those aspects of the examination and the Appellant's response where relevant to the diagnosis and assessment" (para 38) could suggest that the Appeal Panel came to one or a combination of these views, although as I have said the reasoning is not entirely clear. Assuming they did that albeit having already refused to receive the applicant's statement, and that it was open to them to come to the view as to credibility and/or effect on the result, does that have any consequences for Wednesbury unreasonableness of their decision to refuse to receive the applicant's statement?
I do not think that it does. Judicial review is essentially concerned with holding the administrative decision-maker to acting according to law, within its authority, and with due process. The boundaries of jurisdictional error are notoriously difficult, but as a general proposition the merits of the decision are not for the court, including that "[i]t is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator" ( Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 40 per Mason J). To reason that, although the Appeal Panel's refusal to receive the applicant's statement for the reasons they gave was Wednesbury unreasonable, it would have been open to the Appeal Panel reasonably to have refused to receive the applicant's statement for other reasons, would be to make on the merits a decision the Appeal Panel did not make, rather than test the decision they did make against Wednesbury unreasonableness. It is different where Lord Greene's formulation for Wednesbury unreasonableness in public law is taken up as an objective test in the private law of reasonable response to foreseeable risk of injury, as in s 43A of the Civil Liability Act 2002, see for example Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales [2010] NSWCA 328; (2010) 57 MVR 80 in particular at [88]-[89]. For judicial review, the focus is on the decision-maker's decision; cf The King v Connell; ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 per Latham CJ, in the context of exercise of a power if a particular opinion is formed referring to the basis of the exercise of the power being absent if the opinion "was arbitrary, capricious, irrational or not bona fide"; Minister for Immigration and Citizenship v SZMDS at [23]-[24] per Gummow ACJ and Kiefel J; [122], [129] per Crennan and Bell JJ.
Refusal to receive the applicant's statement was an interlocutory decision, by the reference to a preliminary review one made separately from the Appeal Panel's further consideration of the appeal. It is not clear whether at the time of the preliminary review the Appeal Panel had embarked upon, or foresaw, their course of making positive findings that the AMS had taken an adequate and accurate, or correct, history, and rejecting the applicant's grounds of appeal, whereby the AMS's diagnosis and assessment and PIRS scales were left intact. If not, when the Appeal Panel prepared their reasons of 13 May 2009 the manifest unreasonableness of refusing to receive the applicant's statement for the reasons they gave was exposed. The refusal should have been reconsidered, or the Appeal Panel could have determined to conduct its own medical examination and bypass the applicant's complaints as to the AMS's medical examination.
Disputed medical examinations
As Handley AJA points out, an Appeal Panel is not well equipped to resolve a factual dispute over what occurred at an approved medical specialist's medical examination. The approved medical specialist is a competent but not compellable witness "as to matters given in a certificate ... " ( WIM Act , s 325(4)); whether the competence would extend to evidence of what occurred at a medical examination, and whether the approved medical specialist's notes could be called for ( WIM Act , s 324(1)(b)) may be debateable, but even if it would and they could, the party seeking to reply to complaint over what occurred may have difficulty in doing so. Further, no encouragement should be given to an unscrupulous party alleging deficiency in the conduct or recording of a medical examination, and thereby achieving medical examination by the Appeal Panel because dispute over the allegation cannot readily be resolved. This is a particular concern in the assessment of psychiatric or psychological injury, less dependent on objective symptoms.
On the other hand, approved medical specialists and Appeal Panels are not infrequently faced with factual dispute, which must be resolved as best as can be done. The legislature has accepted this in providing for medical assessments in Pt 7 of Ch 7 of the WIM Act . It has not quarantined approved medical specialists by making them incompetent witnesses as to matters in their certificates. It is difficult to see how there could be excluded from an approved medical specialist's evidence outside an appeal an account of his examination, which might be disputed, and it might be thought that there is no reason to treat evidence in an appeal in a different manner. Against the prospect of an unscrupulous party should be placed the prospect of genuine error or misunderstanding (or conceivably worse) on the part of an approved medical specialist in the conduct or recording of a medical examination, to the detriment of an opposing party who should have a remedy.
The Appeal Panel did not refuse to receive the applicant's statement because it was not well equipped to resolve a factual dispute, or because of a perception that challenges to the conduct or recording of an approved medical specialist's medical examination were in some manner precluded under the WIM Act . No submissions along those lines were made to the Appeal Panel, nor was it submitted in this Court that these were relevant considerations.
Would there have been a different result?
As I have said, the trial judge held that there would not have been a different result if the applicant's statement had been received into evidence. His Honour said that the Appeal Panel had come to its own conclusion, and that -
"37. ... It did so having regard, inter alia, to the submissions by the plaintiff which relevantly replicated the issues raised by the Statement. The MAP, in considering the matter, was in no materially different position than had the Statement been admitted and been before it when its final determination was being made."
The Appeal Panel's reasons described the applicant's submissions quite fully, and thereby substantially took up the applicant's statement. But submissions are not evidence, nor would the evidence necessarily have been only the applicant's statement if it had been received and the first respondent had had occasion to rely on evidence in reply. I do not think that it can be said that the result would have been the same with the confidence appropriate for refusal of relief on discretionary grounds.
Leave to appeal
The degree of whole person impairment is important to the applicant. He may not achieve a better result if his appeal to an Appeal Panel is re-heard, but it cannot be concluded that he will not. Leave to appeal should be granted.
Orders
I propose the orders -
1. Grant leave to appeal and direct that the notice of appeal be filed within 7 days.
2. Appeal allowed.
3. Set aside the order dismissing the applicant's summons, and in lieu thereof order that the decision of the Appeal Panel confirming the AMS's medical assessment certificate be quashed.
4. Set aside the order that the plaintiff pay the first defendant's costs of the summons, and in lieu thereof order that the first defendant pay the plaintiff's costs.
5. First respondent pay the applicant's costs of the application for leave to appeal and the appeal.
HODGSON JA: I agree with the orders proposed by Handley AJA, and with his reasons.
I have considered the reasons given by Giles JA for his contrary view, and I respectfully disagree with them.
A certificate given by an approved medical specialist (AMS) must set out the reasons for the assessment and the facts on which the assessment is based: Workplace Injury Management and Workers Compensation Act 1998 ( WIM Act) s 325(2). These reasons and facts will necessarily include the history given by the worker to the AMS and the AMS's observations of the worker at the medical examination.
Suppose that the worker disputes that the history set out in the certificate was the history he/she gave, and/or disputes the observations recorded in the certificate. If so, the assertions of the worker on those topics, if they concern a matter relevant to the correctness of the certificate, could qualify as additional relevant information not available or obtainable before the medical assessment, within s 327(3)(b) of the WIM Act, and thus give a ground of appeal.
An appeal panel (AP) dealing with an appeal brought on that basis could properly determine that it should not entertain and rule on this kind of dispute between the worker and the AMS concerning what occurred on the occasion of the worker's examination by the AMS. It could then determine that, in those circumstances, the only effective way of dealing with the appeal would be for a member of the AP to conduct another medical examination: WIM Act s 324(3). This procedure itself gives rise to the possibility of procedural unfairness: see Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42.
A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.
In the present case, the AP did not spell out all those considerations; but it did point out that it would be inappropriate for it to entertain and rule on a dispute between the worker and the AMS concerning what occurred on the occasion of the worker's examination; and (in its final decision) it did note changes in the worker's histories to other doctors (this tending to count against the probative force of his assertions in the new evidence about the consultation with the AMS).
I do not think the preliminary decision to exclude the evidence, and the final decision, should be sharply separated: it was open to the AP to reverse its earlier decision on the admission of evidence. I think it was well open to the AP, having regard to the evidence it had, to maintain its non-admission of the worker's additional evidence, while at the same time concluding on the whole of the evidence that the AMS had taken an adequate history and recorded it correctly.
I do not think the decisions of the AP, considered as a whole, involved either a denial of procedural fairness or Wednesbury unreasonableness; and I do not think the reasons (or any deficiency thereof) suggest either denial of procedural fairness or Wednesbury unreasonableness.
HANDLEY AJA : This application for leave to appeal, heard as an appeal, challenges the validity of the decision on 13 May 2009 of an Appeal Panel (Panel) acting under the Workplace Injury Management and Workers Compensation Act 1998 (the Act) to confirm the Medical Assessment Certificate (Certificate) of Dr Gertler, an Approved Medical Specialist (AMS) of 20 February 2009.
Background
The Registrar of the Workers Compensation Commission referred to the AMS the assessment of the applicant's whole person impairment as a result of a psychiatric injury consequent on an injury at work on 20 February 2004.
The AMS examined the applicant on 2 February 2009 and issued his Certificate on 10 February. He assessed the applicant's permanent psychiatric impairment at 4% of the whole person (WPI).
On 10 March 2009 the applicant appealed against the assessment on the grounds in s 327(3)(b), (c) and (d), the availability of additional relevant information, the use of incorrect criteria, and the existence of a demonstrable error.
On 2 April 2009 the Registrar, acting under s 327(4), allowed the appeal to proceed being satisfied that at least one of the grounds had been made out on the face of the application and submissions. .
On 23 June 2009, following the decision of the Panel on 13 May, the applicant filed a summons for judicial review alleging jurisdictional error and error of law on the face of the record (patent legal error).
On 4 June 2010 Hislop J dismissed the summons with costs. The applicant then sought leave to appeal.
The matters relied on by the applicant, which remain relevant, are his allegations that the AMS failed to take a detailed history, and to record the history he was given.
The applicant relied in his appeal to the Panel on his further statement of 10 March 2009. This dealt with his history, his current symptoms, and what happened during his examination by the AMS. A further medical examination was also sought.
Section 328 (3) provides:
"Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the appellant before that medical assessment."
Section 328 (2) provides that the appeal is a review of the original assessment and the WorkCover Guidelines may provide for the procedure. Guideline 43 provides:
"The Appeal Panel, comprising two AMS's and an Arbitrator, will undertake a preliminary review of the documents. The parties are not present for this preliminary review. The Appeal Panel decides on the appropriate action to take in the appeal including whether the worker should be examined and if new evidence should be allowed. The Appeal Panel may set a date for an assessment hearing or may decide the appeal on the papers without further involvement from the parties."
Decision of the Panel
Following its preliminary review the Panel decided (para 8) "that it was not necessary for the worker to undergo a further medical examination because there was sufficient medical evidence before it."
The Panel also decided that the applicant's statement of 10 March 2009 should not be admitted. They said (para 12):
"... the Appellant comments on the process of the medical examination and there is an interest in finality of litigation which admitting the statement would not serve. For reasons of procedural fairness, the Panel could not consider the allegations made by the Appellant in the absence of a response from the AMS. That continual opening and re-opening of the evidence is not in the interests of justice and not contemplated as part of the appeal mechanism in the Commission."
The substance of the applicant's case was that the Panel erred in law by rejecting his request for a further medical examination because it had sufficient medical evidence before deciding whether they would admit the new evidence. By doing so they prejudged his claim that the AMS failed to accurately record the history he was given, and failed to consider dealing with that claim by arranging a further medical examination by a member of the Panel.
The Panel, so it was submitted, misdirected themselves as to the courses available to them for dealing with the applicant's allegations, or, what amounts to the same thing, asked themselves the wrong question.
The threshold questions are whether the new evidence fell within s 328(3), and if so whether the Panel had a discretion to reject that evidence, and whether its exercise of that discretion was vitiated by patent legal error, or was irrational. That was how Lord Diplock characterised Wednesbury unreasonableness in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410-411.
The applicant's statement contains lengthy details of his activities and habits before and after his work injury. In so far as this adds to the history and his statement of 2 April 2008, or the histories in the medical reports before the AMS, it was available and could reasonably have been obtained before the assessment and was not admissible.
In so far as the statement repeats information in the earlier statement or in the medical reports it was not evidence "in addition to ... the evidence received in relation to the medical assessment", and was not admissible.
There remains the evidence of what occurred during his medical examination by the AMS. This was "not available ... before that assessment" and "could not reasonably have been obtained" beforehand. It was additional rather than fresh evidence.
The new evidence, properly so-called, was as follows:
"2. Dr Gertler states 'There was no evidence of significant depression'. He does not report that I informed him that I have access to guns and that I am often suicidal. I have also explained to him how I don't care about anything any more and how I don't want to do anything any more, that I have become a complete recluse, as reflected by my move to Lightning Ridge. None of this is mentioned.
3. Dr Gertler states that I denied suffering continuing nightmares or flashbacks. This is not true ... I still continued to suffer from nightmares, often waking in a cold sweat. I get flashbacks every day. I informed Dr Gertler of this during my interview.
4. Dr Gertler asserts that he could find no evidence of impairment in 'Self care and personal hygiene'. I told him I have difficulty looking after myself. Dr Gertler did not ask me any questions about specifics of looking after myself. He simply asked me whether I could look after myself or if I needed any sort of help.
5. ...
6. ... Dr Gertler did not ask what activities and hobbies I used to do prior to my accident and he didn't ask whether I was unable to do them now. ...
7. Dr Gertler states that he doesn't believe I have any impairment in travel as I came to the interview. He did not ask me about the trip, other than how I got to the interview. ...
8. Dr Gertler did not ask many questions about how I feel about travelling ...
9. ... Dr Gertler did not ask any specific questions about my relationships. He simply asked how I get along with my family.
10. ... I was not asked any questions about this type of relationship [with a woman], any details of my history prior to the accident or any reasons for not presently being in a relationship.
...
12. Dr Gertler did not ask me any questions about my concentration levels ...
...
14. The only question Dr Gertler asked me about in relation to employment was whether I had applied for any jobs ... Dr Gertler did not question me about the type of work I thought I could do, or for how long I could perform it at any one time."
Section 328 does not, in terms, require the Panel to receive new evidence which meets the threshold in subs (3) and it cannot be required to receive irrelevant evidence.
Guideline 43 requires the Panel to decide, at its preliminary review, on "the appropriate action to take in the appeal", including whether "new evidence should be allowed". In my judgment this gave it the power to reject otherwise relevant evidence on discretionary grounds.
The next question is whether the Panel's exercise of its discretion was irrational or vitiated by patent legal error.
I reject the applicant's argument, based on the sequence of paras 8 and 12 of the Panel's reasons, that it decided that it was "not necessary" to have a further medical examination before it considered whether it would receive the new evidence.
The Panel considered both questions during its preliminary review. Guideline 43 required a decision on a further medical examination, and the allowance of new evidence, in that order. This probably explains the order in which the Panel recorded its decisions.
I would not infer from the Panel's reasons that it considered these questions in isolation. The collegiate discussion could be expected to range over both questions without any rigid separation of the issues. In my judgment the Court should apply the reasoning in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 271-2:
"When the Full Court referred to 'beneficial construction', it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector Of Customs v Pozzolanic (1993) 43 FCR 280. In that case, a Full Court of the Federal Court ... said that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons ... 'The reasons for the decision under review are not to be construed minutely and finally with an eye keenly attuned to the perception of error'. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleamed from the way in which the reasons are expressed."
The applicant's remaining arguments challenged the Panel's decisions that it was not necessary to conduct a further medical examination and that finality and procedural fairness justified its decision not to receive the new evidence [12]-[13].
In making the first of those findings the Panel said (para 8) that there was sufficient medical evidence before it to consider, evaluate and determine the issues raised on appeal without conducting a further medical examination.
The Panel must have been referring to the medical issues because the medical evidence alone would not enable it to determine the issues raised by the new evidence. If their reasons are given the required beneficial construction they can and should be read in this way. So read they do not disclose legal error.
The Panel's reasons for refusing to receive the new evidence (para 12) referred to the importance of finality in litigation, that procedural fairness for the respondent would entitle it to seek a response from the AMS, and the fact that the issues raised were "not contemplated as part of the appeal mechanism". In my judgment these were relevant considerations in the exercise of the Panel's discretion, and it cannot possibly be said that its decision was irrational.
Reasons of the AMS
The "new evidence" in the applicant's statement of 10 March 2009 directly challenged statements in AMS's reasons of 10 February 2009.
The AMS stated (p3) that the applicant's "sleep is affected by pain", that he has "a tendency to ruminate about his previous work", "remains angry at his former employer", and "has occasional negative thoughts". He moved to Lightning Ridge a year before "to get away from the city", has one mate in town, but "does not socialise" (p4).
The AMS stated that the applicant takes care of himself, and does not have any domestic assistance (p4). He found that the applicant's presentation was consistent with the history, his findings on clinical examination, and his presentation to other psychiatrists (p5).
The AMS diagnosed a chronic adjustment disorder with mixed emotional features (p4). He referred (p6) to the report of Dr Clark of 24 July 2007, who had obtained a similar history but "mentioned other symptoms which [the applicant] complained of at the time consistent with that diagnosis [of post-traumatic stress disorder]".
The AMS continued (p6):
" ... however at this interview [the applicant] denied any continuing nightmares or flashbacks to the injury, [and] any hypervigilance or avoidance phenomena. Dr Clark also mentions that [the applicant's] diagnosis had 'many features now of a dysthymic disorder' which would be more consistent with my diagnosis. In assessing impairment Dr Clark found that [the applicant] was mildly impaired in terms of 'Self care and personal hygiene'. However I could not find any evidence to substantiate that".
The AMS then referred to the report of Dr Kecmanovic of 23 March 2008 and said that the latter:
" ... provided a brief history consistent with the history ... described to me however I could not find evidence that [the applicant] still complained of 'intrusive and distressing recollections of the event' or 'bad dreams related to the event'. I did not obtain a history of the severe symptoms which Dr Kecmanovic described and disagree with respect, with his diagnosis of a post-traumatic stress disorder, chronic type."
The AMS then referred to the report of Dr Samuel of 16 July 2008 who obtained a similar history and found that the applicant "lived a solitary existence". That doctor did not diagnose a psychiatric illness.
The AMS recorded (p6) that the applicant denied having continuing nightmares, flashbacks, hypervigilence and avoidance phenomena, but the applicant said [20 (3)] "This is not true."
Allegations against AMS
The applicant's submissions to the Panel , signed by his solicitor, under the heading (p1) "2. Failure to record history given ..." stated: "the AMS falsely alleges that the Applicant denied suffering from recurring nightmares."
This is a serious and disturbing allegation which the Panel was not equipped to resolve in a just and convenient way.
The Act and the Guidelines do not enable a Panel to conduct anything resembling a trial with oral evidence on oath and cross examination.
It would be most unfortunate if an AMS could dishonestly or carelessly "verbal" an injured worker without the latter having any avenue for legal redress.
It would be equally unfortunate if a worker who complains of a psychiatric injury could treat an unfavourable certificate as an advice on evidence and, by allegations such as those made against the AMS, obtain a further psychiatric examination. This would enable a dishonest claimant to "adjust" his history to obtain a diagnosis which would give him a right to additional compensation or damages.
The psychiatric reports were based on the histories provided by the applicant and the clinical assessments of the doctors. There is no reference in any of them to objective evidence comparable to that available to other medical specialists.
Medical examinations by an AMS are not sound recorded, and a short hand record is not taken. Panels cannot require an AMS to produce his or her clinical notes and s 325(4) provides that an AMS is competent, but not compellable, to give evidence about matters in his certificate. The subsection modifies the common law established by Hennessy v Broken Hill Pty Ltd [1926] HCA 32, 38 CLR 342 where a member of a Medical Board was held to be competent and compellable: cf Ward v Shell-Mex BP Ltd [1952] 1 KB 280.
Section 320(6) provides:
"A matter or thing done or omitted to be done by an approved medical specialist in the exercise of functions under this Act does not, if the matter or thing is done or omitted in good faith, subject the approved medical specialist personally to any action, liability, claim or demand."
A worker in the position of the applicant may not be without remedy because the Supreme Court in its equitable jurisdiction may have power, after a trial, to set aside a certificate given in bad faith. The scope of this remedy need not be explored because there was, and could be, no trial before the Panel.
The Panel tested the applicant's allegations against other evidence.
The reasons of the AMS refer to a number of the omissions complained of. The applicant said [20(2)] that the AMS did not report that he was often suicidal and became "a complete recluse" when he moved to Lightning Ridge. In fact the AMS noted the applicant's "occasional negative thoughts" (p3), said that he did not socialise, and moved to Lightning Ridge "to get away from the City" (pp 4, 6).
The applicant said [20 (4)] that he told the AMS he had difficulty looking after himself and was not asked about the specifics. The AMS noted (p4) that the applicant, who moved to Lightning Ridge a year before, took care of himself and did not have any domestic assistance. Unlike Dr Clark he could "not find any evidence that the applicant was mildly impaired in self care and personal hygiene" (p6).
The applicant said [20 (6)] that the AMS did not ask him about his activities and hobbies before the accident, and whether he was able to do them now. However the AMS said (p4) that the applicant's continuing physical problems had an "effect on his lifestyle".
The applicant referred [20 (7), (8)] to the opinion of the AMS (p6) that he "does not have any impairment in [the travel] category" because he had travelled from Lightning Ridge for the examination "without apparent alteration in his emotional state" (p6). The applicant said "he did not ask me about the trip, other than how I got to the interview", and did not ask him how he felt about travelling. The AMS noted that the applicant went to the local artesian baths three or four times a week, and would occasionally go to the local club (p4).
The applicant said that the AMS did not ask specific questions about his relationships [20 (9), (10)], but simply asked how he got along with his family. However, as recorded above [49], he reported that the applicant did not socialise, but (p6) maintained contact with his parents and sister who live elsewhere. He also noted that Dr Samuel recorded that the applicant "lived a solitary existence" (p7).
The applicant complains [20 (12)] that the AMS did not ask him any questions about his concentration levels or [20 (14)] about the type of work he could do and for how long. The AMS reported (p7) under "Concentration, Persistence and Pace": "I could not find evidence of moderate impairment", and recorded (p7) that the applicant had sought employment at the local club.
Decision of Panel
Although the Panel gave brief reasons (paras 9-12) for refusing to receive the new evidence they later gave extended reasons (paras 28-39) for rejecting the allegations against the AMS.
The Panel noted (paras 29-30) that the AMS had read the other medical reports which recorded the applicant's history and complaints. Dr Clark [57], Dr Kecmanovic [58], and Dr Samuel [59] obtained a similar history, although in the case of the first two with some differences.
Dr Clark recorded (24/7/07) the applicant's chronic anxiety, depression and withdrawal (p2), that he had little social or outside life in contrast to his previous lifestyle (pp3, 4), and was isolated (p2). He had no partner and no wish for a relationship (p3). His parents had moved to Lightning Ridge and he was living in their home at Fairfield (p2). His travelling was restricted to the local area (p4) and he was no longer able to drive long distances (p2). He reported having flashbacks and being hypervigilant but did not sleep long enough to have nightmares (p4). He had thoughts of suicide (p4) and there were licensed firearms in the house (p6). He was unable to care for himself and live independently (p4). His concentration was not as good as it was (p4).
Dr Kecmanovic recorded (23/3/08) complaints of intrusive and distressing recollections and "bad dreams relating to the [accident]" (p2). The applicant's concentration had been disturbed (p2). He was socially withdrawn and had lost interest in usually pleasurable activities (p2). He was still living at his parents' home (p3). He did not wish to engage in a relationship. The doctor did not comment on the applicant's ability to look after himself.
Dr Samuel recorded (16/7/08) complaints that the applicant averaged only four hours sleep a night (p5), and was "a nervous wreck", although he did not appear nervous during the interview (p3). His concentration was normal (p5). He was living "a solitary existence" (p7) at Lightning Ridge (p4) because he could not "handle Sydney" (p3). He attended to his self care, cooks a little, did the cleaning (p5) and did not require domestic assistance (p8). He had suicidal thoughts (p5). He no longer had any hobbies (p4). The doctor did not record complaints of intrusive and distressing recollections, flashbacks, or nightmares.
The Panel referred (para 30) to the history recorded by the AMS (pp 2-4), his PIRS classification analysis (pp 5-6) and his consideration of the other medical reports (pp 6-7). They concluded that the AMS had "taken a history sufficient to allow him to assess" the applicant.
The Panel then considered the alleged failure of the AMS to record the full history he was given (para 32). They noted (para 35) that the AMS recorded that the applicant's sleep was affected by pain, his tendency to ruminate, his anger, and his statement to Dr Clark (para 36) that he did not sleep long enough to have nightmares. They said (para 37) that the reference to negative thoughts indicated that the AMS was aware of the suicidal thoughts, and (para 38) they found that he had taken the history "as given to him during the examination".
The Panel concluded (para 39) that they were "not satisfied that this ground of appeal is made out".
Conclusions
Changes in the applicant's histories between July 2007, when he saw Dr Clark, and February 2009 when he saw the AMS support the Panel's conclusions.
The applicant told Dr Clark that he could no longer drive (pp 2, 3), does not go out much, and his travelling was restricted to the local area (p4). Dr Kecmanovic, beyond noting that the applicant preferred to stay home (p2), did not record that history. The applicant told Dr Samuel that he does not drive because he lost his licence for driving under the influence (p5), and he told the AMS this happened six months earlier (p4).
The applicant travelled from Lightning Ridge for his appointments with Dr Samuel and the AMS without apparent ill effects or complaints at the time.
He told Dr Clark (p4) that he could not sleep long enough to have nightmares, but told Dr Kecmanovic that he had bad dreams (p2). He told Dr Samuel that he averages four hours' sleep a night (p5), and dreams of his managers (p3). Dr Samuel did not mention nightmares and the AMS said the applicant denied having continuing nightmares (p6).
There was an opportunity, after Dr Samuel's report was served, for the applicant's solicitors to arrange a refresher examination to enable one or both of their doctors to bring their reports up to date. No further report was served.
The Panel said (para 26) that it had conducted a review of the material before it and reached its own conclusions on the correct assessment of the applicant's impairment. They made positive findings that the AMS had taken an adequate and accurate history (para 31), and had correctly recorded the history he was given (para 38). They also made a negative finding (para 39) that: "For these reasons, the Panel is not satisfied that this ground of appeal [failure to record the history given] is made out".
The applicant had the onus of proving that ground of appeal.
The Panel's finding that he had not discharged that onus was a finding of fact, and there is no error of law on the face of the record: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 155-6 per Glass JA.
The applicant faced a most difficult task in attempting to discharge this onus in a Panel review on the papers.
In my judgment the applicant did not establish that the Panel's decision was affected by illegality or irrationality.
Since preparing the above, I have had the opportunity of considering the reasons for judgment of Giles JA and Hodgson JA in draft. I agree with respect with the reasons for judgment of the latter, and subject thereto adhere to my original reasons.
In those circumstances I would propose the following orders:
(1) Leave to appeal granted.
(2) Dispense with the filing and service of a notice of appeal and further compliance with the Rules.
(3) Appeal dismissed with costs.
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