Mizzi v State of New South Wales (New South Wales Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Mizzi v State of New South Wales (New South Wales Police Force) [2023] NSWPIC 53
APPLICANT:	Pauline Mizzi
RESPONDENT:	State of New South Wales (NSW Police Force)
principal Member:	Glenn Capel
DATE OF DECISION:	14 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; only issue was degree of impairment; applicant resided in South Australia when proceedings filed; accepted that the respondent was the State of New South Wales; issue raised regarding federal jurisdiction; Orellana-Fuentes v Standard Knitting Mill Pty Ltd, Attorney-General for New South Wales v Gatsby, Citta Hobart Pty Ltd v Cawthorn, Searle v McGregor, Watts v BKFY Pty Ltd and Jaffarie v Quality Castings Pty Ltd discussed; Held – a Medical Assessor (MA) assesses the degree of permanent impairment and issues a Medical Assessment Certificate; the Certificate of Determination issued by the Personal Injury Commission (Commission) merely quantifies an amount of compensation that is payable by the respondent, and orders that the compensation be paid; it is not arguable that the medical dispute involves the exercise of federal jurisdiction; claim remitted to the President of the Commission for referral to a MA.
determinations made:	1. It cannot be argued that the medical dispute in this matter, which requires an assessment of permanent impairment by a Medical Assessor, and the issue of a Medical Assessment Certificate and Certificate of Determination, involves the exercise of federal jurisdiction. 2. The claims for medical expenses and lump sum compensation for pain and suffering are withdrawn. I dispense with the requirement to file an Election to Discontinue. 3. The Application to Resolve a Dispute is amended as follows: (a) Systems Claimed: (i) left lower extremity (ankle and foot); (ii) right lower extremity (ankle and foot), and (iii) scarring (TEMSKI). 4. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 12 May 2008 (b) Body system / part: (i) left lower extremity (ankle and foot); (ii) right lower extremity (ankle and foot), and (iii) scarring (TEMSKI). (c) Method of Assessment: Whole Person Impairment 5. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents, and b. Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Pauline Mizzi (the applicant) is 52 years old and commenced employment with the State of New South Wales (NSW Police Force) (the respondent) as a mailroom clerk in 1997 and eventually became a radio communications officer in 2001.
There is no dispute that the applicant sustained injury to her ankles when she fell on the way to work on 12 May 2008. She was able to return to work on reduced hours on 28 August 2008 and gradually returned to full time hours. She commenced employment with the Australian Federal Police in October 2009.
Liability was accepted by Employers Mutual Ltd (the Insurer) and payments of weekly compensation and medical expenses were paid. Precise details are unknown.
The applicant’s solicitor served a notice of claim for medical expenses and lump sum compensation pursuant to ss 60, 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) on 30 September 2020. According to the permanent impairment claim form, the applicant resided in Kaleen in the Australian Capital Territory .
The insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) disputing that it was liable to pay permanent impairment compensation in respect of the left lower extremity because the applicant had not passed the threshold in s 66(1) of the 1987 Act and she was not entitled to compensation for pain and suffering pursuant to s 67 of the 1987 Act because when was not an exempt employee. The insurer did not determine the claim for medical expenses.
The parties engaged in some settlement discussions in respect of the right lower extremity, but the matter could not resolve.
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (the Commission) on 14 October 2022, the applicant claims incurred medical expenses pursuant to s 60 of the 1987 Act and lump sum compensation pursuant to ss 66 and 67 of the 1987 Act due to an injury sustained to her lower extremities on 12 May 2008.
According to the Application, the applicant resided in Penrith, but the address was in fact the address of the office of her solicitor.
According to the applicant’s statement dated 18 August 2022 and the history recorded in report of Dr Brook dated 24 November 2021, the applicant resided in Seaford Rise in South Australia.
In Reply filed on 4 November 2022, the respondent’s solicitor disputed that the applicant had standing to bring these proceedings because at the time of the filing of the Application, she resided in South Australia.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for a preliminary conference before Member Rimmer on
14 November 2022. Mr Spanner, solicitor, appeared on behalf of the applicant, and Mr Morrissey, solicitor, appeared on behalf of the respondent.
According to Member Rimmer’s outcome summary, the claim for lump sum compensation for pain and suffering was withdrawn, and Mr Morrisey advised that the insurer would accept liability for the medical expenses.
The question of federal jurisdiction was discussed and Member Rimmer issued the following Direction:
“The Commission directs:
1. Claim for lump sum compensation pursuant to s67 of the Workers Compensation Act 1987 is discontinued.
2.     Applicant to advise the Commission by 29 November 2022 as to whether the proceedings should be dismissed.
3.     If the applicant agrees with the respondent that the proceedings should be dismissed, the matter is to be referred to the Division Head of the Workers Compensation Division, Mr Glenn Capel.
4.     If the applicant disagrees with the respondent and advises the Commission that the proceedings should not be dismissed, parties are to file and serve written submissions.
5.     The applicant is to lodge and serve by 6 December 2022 written submissions as to whether the Commission would be exercising federal jurisdiction in determining this dispute.
6.     The respondent is to lodge and serve by 13 December 2022 written submissions in reply.
7.     At the conclusion of the time allowed for submissions the dispute will be referred to the Division Head of the Workers Compensation Division, Mr Glenn Capel.”
On 24 November 2022, Mr Spanner informed the Commission that it was the applicant’s position that the proceedings should not be dismissed.
Written submissions were filed by the applicant on 5 December 2022 and by the respondent on 13 December 2022. The file was referred to me on 7 February 2023.

ISSUE FOR DETERMINATION

The parties agree that the following issue is in dispute:
(a) whether the Commission is exercising federal jurisdiction in determining this medical dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents, and
(b) Reply and attached documents.

SUBMISSIONS

The submissions filed by the parties are remarkably similar. Both refer to a number of authorities that I will discuss below.
Both parties submit that the only issue in this matter is a medical dispute as to the degree of permanent impairment. This merely involves a medical assessment by a Medical Assessor and does not involve the exercise of federal jurisdiction. Accordingly the claim should be remitted to the President for referral to a Medical Assessor.

LEGISLATION

Commonwealth of Australia Constitution and Judiciary Act 1903

Section 75(iv) of the Commonwealth of Australia Constitution (the Constitution) provides:
“In all matters--
…
(iv.) Between States, or between residents of different States, or between a State and a resident of another State:

…
the High Court shall have original jurisdiction.”

Section 77(iii) of the Constitution provides that Parliament may invest any court of a State with federal jurisdiction.
Sections 38 and 39 of the Judiciary Act 1903 establish that matters between residents of different States or between a State and a resident of another State can be heard by a court of a State.

Personal Injury Commission Act 2020

Division 3.2 of the Personal Injury Commission Act 2020 (the PIC Act) enables persons with standing, with leave of the District Court, to commence proceedings in the Court for the determination of applications that the Commission cannot determine because they involve the exercise of federal jurisdiction.
Section 25 of the PIC Act provides:
“25 Definitions
In this Division—
compensation claim means—
(a) a claim for damages to which the Motor Accidents Compensation Act 1999 applies, or
(b) a claim for statutory benefits to which the Motor Accident Injuries Act 2017 applies, or
(c) a claim for damages to which the Motor Accident Injuries Act 2017 applies, or
(d) a claim for compensation or work injury damages to which the Workplace Injury Management and Workers Compensation Act 1998 applies.
compensation matter application—see section 26.
federal jurisdiction means jurisdiction of a kind referred to in section 75 or 76 of the Commonwealth Constitution…
usual decision-maker, in relation to determining a matter concerning a compensation claim, means the person or body (whether or not the President or Commission) on which the function is conferred or imposed by this Act or enabling legislation.”
Section 26 of the PIC Act provides:
“26 Applications involving federal jurisdiction may be made to District Court
(1) A person with standing to apply to the President or the Commission for a matter concerning a compensation claim to be determined by the usual decision-maker (a compensation matter application) may, with the leave of the District Court, make the application to the Court instead of the President or Commission.
(2) The regulations may make provision for or with respect to—
(a) who has standing to make an application for leave, and
(b) excluding or including applications as compensation matter applications.
(3) The District Court may grant leave for a compensation matter application to be made to the Court only if it is satisfied that—
(a) an application was first made to the President or Commission, and
(b) the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction, and
(c) the usual decision-maker would otherwise have had jurisdiction enabling the decision-maker to determine the application…”

The 1998 Act

Sections 325 and 326 of the 1998 Act deal with the medical assessments certificates and their status. They provide:
“325 Medical assessment certificate
(1)     The medical assessor to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.
(2)     A medical assessment certificate is to be in a form approved by the President and is to—
(a) set out details of the matters referred for assessment, and
(b) certify as to the medical assessor’s assessment with respect to those matters, and
(c) set out the medical assessor’s reasons for that assessment, and
(d) set out the facts on which that assessment is based.
(3)     If the President is satisfied that a medical assessment certificate contains an obvious error, the President may issue, or approve of the medical assessor issuing, a replacement medical assessment certificate to correct the error.
(4)     A medical assessor is competent to give evidence as to matters in a certificate given by the assessor under this section, but may not be compelled to give evidence.
326 Status of medical assessments
(1)     An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned—
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2)    As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”

REASONS

Federal jurisdiction is defined in s 25 of the PIC Act to mean “jurisdiction of a kind referred to in section 75 or 76 of the Commonwealth Constitution”.
Federal jurisdiction is the authority to exercise the judicial power of the Commonwealth and that includes the power to determine disputes between:
(a)    States; or
(b)    residents of different States; or
(c)    a State and a resident of another State.
The authorities confirm that the residency is assessed as at the date of filing of the Application[1].
[1] Foxe v Brown [1984] HCA 69; 59 ALJR 186; 58 ALR 542, [12]; Watson v Marshall & Cade [1971] HCA 33; 124 CLR 621, [2]; R v Oregan; Ex parte Oregan [1957] HCA 18; 97 CLR 323, [19], Momcilovic v The Queen [2011] HCA 34, [134], Ritson v State of New South Wales [2021] NSWPIC 409.
There is no dispute that at the time of the filing of the Application, the applicant resided in South Australia. She was employed by the respondent as an administration officer and was not an attested officer of the Police force. Therefore, she was not an exempt worker, meaning that the 2012 Amending Act applied to her and she was not entitled to receive compensation for pain and suffering pursuant to s 67 of the 1987 Act.
The applicant filed an Application in the Commission, so s 26(3)(a) of the PIC Act has been satisfied.
According to s 25 of the PIC Act, a “compensation claim” includes a claim for compensation or work injury damages under the 1998 Act, which is the nature of the present claim.
In Orellana-Fuentes v Standard Knitting Mill Pty Ltd[2], the Court of Appeal held that the Workers Compensation Commission was not a Court. A similar finding was made in Attorney-General for New South Wales v Gatsby[3] in respect of NSW Civil and Administrative Tribunal. There is no reason why the Commission would be treated any differently.
[2] [2003] NSWCA 146 (Orellana-Fuentes).
[3] [2018] NSWCA 254 (Gatsby).
The High Court in Citta Hobart Pty Ltd v Cawthorn[4] held that a tribunal could not decide whether a determination involved an exercise of federal jurisdiction, but such a determination was for a court to decide, unless “the claim or defence is ‘unarguable’ or if the claim or defence is ‘colourable’ in that it is made for the purpose of ‘fabricating’ jurisdiction”.[5]
[4] [2022] HCA 16 (Cawthorn).
[5] Cawthorn, [35]-[37] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ.
In Searle v McGregor[6], Kirk JA confirmed that:
“State tribunals are not forbidden by the principle from taking steps or resolving issues which do not involve the exercise of judicial power, even if the dispute might otherwise be seen to fall within the scope of what would have been federal jurisdiction (that is, if judicial power were to be exercised).”[7]
[6] [2022] NSWCA 213 (Searle).
[7] Searle, [14].
His Honour commented that the Commission was precluded from exercising judicial powers in matters that involved federal jurisdiction, but stated:
“…It is not precluded from exercising powers which are not judicial in relation to issues arising in the course of dealing with such disputes, even if any ultimate resolution of (say) a claim for damages would involve the exercise of judicial power needing to be determined by a court.”[8]
[8] Searle, [19].
His Honour continued:
“Senior counsel for Mr McGregor also sought to argue that there was a necessity under the legislative scheme for a claimant to be able to apply to the District Court even in circumstances where not all preconditions for commencing District Court proceedings had been met. He gave four examples:
(1)A claimant, prior to determining whether to pursue a damages claim, seeks to have a minor injury dispute medically assessed.
(2)A claimant, prior to determining whether to pursue a damages claim, seeks to have WPI medically assessed.
(3)The tutor of a brain injured child whose case will not be ready for an assessment of damages for years to come applies for an exemption from PIC assessment of damages at a time when the claim was not ready for an assessment of damages, in order to comply with the 3 year limitation period on the commencement of proceedings in the District Court.
(4)An unrepresented claimant seeks to have a settlement approved as required by s 6.23(2)(b) of the MAI Act.
The first and second examples involve medical assessments. Such assessments involve a doctor or medical panel reaching a conclusion based on their medical expertise. That conclusion appears then to be ‘the factum by reference to which the Act operates to alter the law in relation to the particular case’: R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 378 per Kitto J; [1970] HCA 8. Such assessments are a common feature of these type of statutory schemes: see eg Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43. It suffices to say that the suggestion that they involve an exercise of judicial power is counter-intuitive.”[9]
[9] Searle, [79]-[80].
In Watts v BKFY Pty Ltd[10], Principal Member Harris referred to the above authorities and considered whether medical assessments, reviews and appeals by Medical Assessors involved an exercise of judicial power. He stated:
“In Campbelltown City Council v Vegan, Basten JA observed that appeal panels constituted under the Workplace Injury Management and Workers Compensation Act, 1998 (the 1998 Act) ‘might not constitute an exercise of judicial power for the purposes of the federal Constitution, but they are functions properly characterised as judicial in nature, for the purposes of determining their incidents.’[11] In Islam and Worldon, the District Court also held that a medical assessor under the MAI Act does not exercise judicial power.
The observations by Basten JA are consistent with the distinction between a determination which is final and binding in adversarial proceedings without that determination being considered an exercise of judicial power: Tomlinson v Ramsay Food Processing Pty Ltd.[12]
It is likely that the finding that medical assessors in the Motor Accidents Division do not exercise judicial power (and determinations by review and appeal panels) would apply in both divisions of the Commission.”
[10] [2022] NSWPIC 700, (Watts)
[11] [2006] NSWCA 284; 67 NSWLR 372, [117].
[12] [2015] HCA 28 at [21] (Tomlinson).
Whilst it is true that the claim involves a resident of another state and the State of New South Wales, there is no liability dispute that requires a determination by a decision maker. If there was a dispute regarding an injury to a part of a worker’s body or a consequential condition, it would be arguable that a determination of such a dispute by a Member would involve the exercise of federal jurisdiction.
Section 325 of the 1998 Act provides that a Medical Assessor is required to provide an assessment of the degree of permanent impairment, and s 326 of the 1998 Act says that the Medical Assessment Certificate is conclusively presumed to be correct regarding the degree of permanent impairment and other matters.

The authorities confirm that in a worker’s compensation matter, a Member has the jurisdiction to determine issues of causation and other matters such as claims for weekly compensation and medical expenses, whilst a Medical Assessor has jurisdiction to decide a medical dispute within ss 319(c) and 319(d) of the 1998 Act[13].
[13] Rail Services Australia v Dimovski [2004] NSWCA 267, [112], Haroun v Rail Corporation New South Wales [2008] NSWCA 192, [16]-[22], Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264, [25] and [111]-[112], and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79, (Jaffarie).
In Jaffarie, Roche DP summarised the principles as follows:
“Notwithstanding the different approach by Emmett JA and Meagher JA, it is my view that the following principles apply to proceedings in the Commission:
·(a) questions of causation are not foreign to medical disputes within the meaning of that term when used in the 1998 Act. Assessing the degree of permanent impairment ‘as a result of an injury’, and whether any proportion of permanent impairment is ‘due’ to any previous injury or pre-existing condition or abnormality, both call for a determination of a causal connection (Bindah at [110]);
·(b) it is for the Commission to determine whether a worker has received an injury within the meaning of s 4 of the 1987 Act and whether there are any disentitling provisions, such that compensation is not payable for that injury (Bindah at [111] and s 105 of the 1998 Act);
·(c) the Commission’s jurisdiction is restricted by s 65(3) of the 1987 Act, which precludes the Commission (an Arbitrator or a Presidential member) from awarding permanent impairment compensation if there is a dispute about the degree of permanent impairment, unless the degree of impairment has been assessed by an AMS (Bindah at [111]);
·(d) the determination of the degree of permanent impairment that results from an injury is a matter wholly within the jurisdiction of the AMS or, on appeal, the Appeal Panel and is not a matter for determination by an Arbitrator (Bindah at [112]);
·(e) a finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (Haroun at [16] and [19]–[21]), and
·(f) it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues (Bindah at [110]; Tolevski at [35]).
This means that, to the extent that it held that all matters of causation are exclusively within the jurisdiction of the Commission, Peric cannot stand with Bindah, Tolevski and Austin. It follows that Mr Malouf’s submissions cannot be accepted. That is because, in a claim for lump sum compensation, the physical consequences of the injury (in relation to the assessment of whole person impairment as a result of the injury) are not within the exclusive jurisdiction of the Commission. They are within the exclusive jurisdiction of the AMS. That is so even if the matter also involves a disputed claim for weekly compensation and disputes about causation, which the Commission has determined.
However, it is accepted, as Emmett JA expressly acknowledged (at [111]), that it is for the Commission to determine whether a worker has received an injury within the meaning of s 4 of the 1987 Act (the one exception to this statement relates to loss of hearing claims, discussed below). It is also accepted, though it was not expressly considered in Bindah, that ‘injury’ in s 4 includes an injurious event and the pathology caused by that event.”[14]
[14] Jaffarie, [49]-[51].
Of course, these authorities predate the amendment to s 65 of the 1987 in January 2019.
Prior to 1 January 2019, s 65(3) of the 1987 Act provided:
“Determination of degree of permanent impairment
…
(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
The section was repealed by the by cl 2 of Sch 2 of the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act). This schedule commenced on the date of proclamation of 1 January 2019.
Savings and transitional provisions were added by the 2018 amending Act at cl 2(1) of Pt 19L of Sch 6, which provides:
“2 Application of amendments generally
(2) Except as provided by this Part or the regulations, an amendment made by the 2018 amending Act extends to—
(a)an injury received before the commencement of the amendment, and
(b) a claim for compensation made before the commencement of the amendment, and
(c)proceedings pending in the Commission or a court immediately before the commencement of the amendment.”
The second reading speech in respect of the Bill relating to the 2018 amending Act explained the reasoning behind the repeal of s 65(3) of the 1987 Act as follows:
“Schedule 2 to the bill provides for the Workers Compensation Commission to award permanent impairment compensation without referral to an approved medical specialist.
This amendment recognises that, in certain circumstances, the requirement to refer all permanent impairment disputes to an approved medical specialist was unduly delaying proceedings in the Workers Compensation Commission. The amendment will allow arbitrators to make determinations of permanent impairment by removing section 65 (3) from the 1987 Act, which requires all permanent impairment disputes to be referred to an approved medical specialist prior to the Workers Compensation Commission awarding permanent impairment compensation.”[15]
[15] Legislative Council 19 September 2018, Second Reading Speech of the Hon. David Clarke.
Therefore, the applicant’s claim is governed by s 65 of the current version of the 1987 Act.
Whilst Arbitrators and more recently Members have been able to award permanent impairment compensation without having to refer the medical dispute to an Approved Medical Specialist or Medical Assessor following the repeal of s 65(3) of the 1987 Act in January 2019, it does not mean that the decision maker can assess the impairment. A Member merely awards compensation based on assessments provided in the medical evidence.
The Certificate of Determination that the Commission issues following receipt of the Medical Assessment Certificate merely formalises the assessment provided by the Medical Assessor, quantifies an amount of compensation that is payable by the respondent, and orders that the compensation be paid. There is no determination per se, so I do not consider that it is arguable that an assessment by a Medical Assessor, and the Medical Assessment Certificate and the Certificate of Determination issued by the Commission, involves the exercise of federal jurisdiction. This is consistent with what Kirk JA said in Searle v McGregor.
Accordingly I propose to remit the matter to the President to appoint an examination by a Medical Assessor.
The Application is poorly drafted and does not reflect the assessments provided by Drs Harrison and Brook. Therefore, I propose to amend the Application so that it is consistent with the evidence. I will grant the parties liberty to apply within seven days of this decision if they have any concerns about the amendment.

FINDINGS

It cannot be argued that the medical dispute in this matter, which requires an assessment of permanent impairment by a Medical Assessor, and the issue of a Medical Assessment Certificate and Certificate of Determination, involves the exercise of federal jurisdiction.

ORDERS

The claims for medical expenses and lump sum compensation for pain and suffering are withdrawn. I dispense with the requirement to file an Election to Discontinue.
The Application is amended as follows:
(a) Systems claimed:
(i)left lower extremity (ankle and foot);
(ii)right lower extremity (ankle and foot), and
(iii)scarring (TEMSKI).

I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment as follows:
(a) Date of injury: 12 May 2008
Body system / part:
(i)left lower extremity (ankle and foot);
(ii)right lower extremity (ankle and foot), and
(iii)scarring (TEMSKI).
(b) Method of Assessment: Whole Person Impairment
The documents to be reviewed by the Medical Assessor are:
(a) Application and attached documents, and
(b) Reply and attached documents.

[2023] NSWPIC 53

14 February 2023