New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales

[2013] NSWSC 1792

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
Hearing dates:	4 December 2013
Decision date:	11 December 2013
Jurisdiction:	Common Law
Before:	Davies J
Decision:	(1) An order in the nature of certiorari quashing the Medical Assessment Certificate of 18 June 2013 given by the Second Defendant in matter number WCC 009127/12 in the Workers Compensation Commission of New South Wales; (2) An order remitting the matter and the Third Defendant's appeal to the Second Defendant to be decided according to law. (3) The Third Defendant is to pay the Plaintiff's costs. (4) The Third Defendant to have a certificate under the Suitors' Fund Act 1951 if otherwise so entitled.
Catchwords:	ADMINISTRATIVE LAW - judicial review - determination of Appeal Panel of Workers Compensation Commission - appeal from Medical Assessor - grounds of appeal - powers of Appeal Panel - whether appeal confined to grounds specified - whether Appeal Panel could refer applicant for further assessment prior to finding error - whether Appeal Panel could have regard to further assessor's report - errors demonstrated - determination quashed - matter remitted to fresh appeal panel
Legislation Cited:	Suitors' Fund Act 1951 Supreme Court Act 1970 Workers Compensation Act 1987 Workplace Compensation Legislation Amendment Act 2010 Workplace Injury Management and Workers Compensation Act 1998
Cases Cited:	ASIC v Farley [2001] NSWSC 326; (2001) 51 NSWLR 494 Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 Haroun v Rail Corporation NSW [2008] NSWSC 160 NSW Police Force v Derek Fleming [2010] NSWSC 216 Pitsonis v Registrar of the Workers Compensation Commission [2007] NSWSC 50 Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88; (2008) 73 NSWLR 366 Siddik v WorkCover Authority of NSW [2008] NSWCA 116
Category:	Principal judgment
Parties:	New South Wales Police Force (Plaintiff) Registrar of the Workers Compensation Commission of New South Wales (First Defendant) Medical Appeal Panel of the Workers Compensation Commission of New South Wales (Arbitrator Eraine Grotte, Approved Medical Specialist Robert Gertler and Approved Medical Specialist Nicholas Glozier) Simon Wild (Third Defendant)
Representation:	Counsel: S Pritchard SC & P Perry (Plaintiff) Submitting Appearances (First and Second Defendants) P Stockley (Third Defendant)   Solicitors: Hicksons (Plaintiff) Submitting Appearances (First and Second Defendants) Walter Madden Jenkins (Third Defendant)
File Number(s):	2013/216253
Decision under appeal	Date of Decision: 18 June 2013 Before: Arbitrator Eraine Grotte; Approved Medical Specialist Robert Gertler; Approved Medical Specialist Nicholas Glozie

1. This is a claim for an order in the nature of certiorari against the Medical Appeal Panel of the Workers Compensation Commission of New South Wales. The decision in respect of which the order is sought is a decision of the Appeal Panel given on 18 June 2013.

Legislative framework

2. So that the course of events and the arguments can be readily understood it is necessary, first, to set out the relevant parts of the Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act").

319 Definitions

In this Act:

...

medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:

...

(c) the degree of permanent impairment of the worker as a result of an injury,

...

321 Referral of medical dispute for assessment

(1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.

...

322 Assessment of impairment

(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose.

...

324 Powers of approved medical specialist on assessment

(1) The approved medical specialist assessing a medical dispute may:

(a) consult with any medical practitioner or other health care professional who is treating or has treated the worker, and

(b) call for the production of such medical records (including X-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and

(c) require the worker to submit himself or herself for examination by the approved medical specialist.

(2) If a worker refuses to submit himself or herself for examination by the approved medical specialist if required to do so, or in any way obstructs the examination:

(a) the worker's right to recover compensation with respect to the injury, or

(b) the worker's right to weekly payments,

is suspended until the examination has taken place.

(3) This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part. An approved medical specialist who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under this section on an assessment of a medical dispute.

325 Medical assessment certificate

(1) The approved medical specialist 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 Registrar and is to:

(a) set out details of the matters referred for assessment, and

(b) certify as to the approved medical specialist's assessment with respect to those matters, and

(c) set out the approved medical specialist's reasons for that assessment, and

(d) set out the facts on which that assessment is based.

...

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,

...

327 Appeal against medical assessment

(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3) The grounds for appeal under this section are any of the following grounds:

(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,

(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error.

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

(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.

(6) The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).

...

328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.

(2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The 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) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel.

(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.

(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel. (emphasis added)

329 Referral of matter for further medical assessment or reconsideration

(1) A matter referred for assessment under this Part may be

referred again on one or more further occasions for assessment in accordance with this Part, but only by:

(a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or

(b) a court or the Commission.

...

Background

3. The decision of the Appeal Panel arises out of a claim by the Third Defendant arising from Post Traumatic Stress Disorder which he suffered from his employment in the Police Force.

4. The Third Defendant joined the Police Force on 29 July 1988 when he was 19 years of age. Although he initially simply worked at Surry Hills Police Station from October 1994 he was involved in specialist squads relating to drugs and organised crime where he acted as an undercover agent. It was particularly while working undercover that he had some experiences that have given rise to the condition from which it is now accepted he suffers. The worst incident was on 10 February 1998 where two masked criminals held a gun to his head, seriously assaulted him and robbed him.

5. He ceased work on 2 September 2010 and was medically discharged from the Police Force with chronic PTSD in October 2011.

6. On 9 March 2012 a report of Dr Peter Anderson, a psychiatrist retained by the Third Defendant's solicitors, assessed the Third Defendant as having a whole person impairment of 17%. Section 151H Workers Compensation Act 1987 prohibits the payment of any damages to a worker unless he is determined to have a permanent impairment of at least 15%.

7. On 14 June 2012 he was assessed by Dr Graham George who found him to have a whole person impairment of 10%. It appears to be this assessment which gave rise to the medical dispute.

8. On 8 August 2012 the Third Defendant filed an Application to Resolve a Dispute in the Workers Compensation Commission.

Procedural history

9. On 4 September 2012 he was referred for an assessment of permanent impairment to an approved medical specialist being Dr Norman Rose. On 1 November 2012 Dr Rose issued a Medical Assessment Certificate (MAC) where he assessed the whole person impairment of the Third Defendant to be 5%.

10. On 29 November 2012 an application to appeal against Dr Rose's assessment was filed by the Third Defendant. The prescribed form requires the applicant to identify which of the four grounds stipulated in s 327 of the 1998 Act are relied upon. The Third Defendant identified the ground in subs(3)(d), namely, that the MAC contains a demonstrable error. Section 4.2 of the application said this:

Are submissions attached detailing the grounds of the appeal?

There was then provision for marking either a Yes or No box. Underneath the boxes this appeared:

Failure to attach these submissions may result in the application being rejected.

11. The Third Defendant indicated that submissions were attached. Those submissions in relation to s 327(3)(d) said:

Dr Rose fell into demonstrable error when undertaking his assessment under Table 11.2 of Social and Recreational Activities, and his assessment under Table 11.5 of Concentration, Persistence and Pace.

The Submissions then dealt in detail with each of these categories known as the Psychiatric Impairment Rating Scales (PIRS).

12. On 23 January 2013 the Registrar's delegate decided that the Third Defendant satisfied an appeal ground in s 327(3)(d) of the 1998 Act and referred the matter to the Medical Appeal Panel.

13. On 28 February 2013 the Appeal Panel issued its preliminary review. It said this:

The Panel has considered the documents in the Appeal File including the:

Appeal form

File sent to original AMS

Original MAC

Written submissions from the parties.

The Panel has determined that the Appellant worker should submit him or herself for a clinical examination as follows:

Examination by:

Dr Robert Gertler (AMS Panel Member)

...

A report of the clinical examination is to be provided to the Appeal Panel and to the parties and is to address the following:

The workers (sic) medical history, where it differs from previous records.

Additional history since the original medical assessment certificate was performed.

Findings on clinical examination.

Results of additional investigations since the original medical assessment certificate.

14. On 1 April 2013 the Appeal Panel issued a further preliminary review. The Panel indicated that it had formed the preliminary view that the evidence showed that Dr Rose may have erred in respect of the classes assigned for the PIRS categories for Travel and Employability. On that basis it sought further submissions from the Plaintiff and the Third Defendant.

15. On 5 April 2013 the Plaintiff wrote seeking clarification of what the Appeal Panel was proposing to consider on the appeal. The letter said in part:

If the present position is that the Commission is considering not only the PIRS categories raised in the appeal but also the new categories of travel and employability (following the assessment of the worker by AMS Dr Gertler), then our client may instruct us to brief counsel in order to provide detailed submissions regarding the reasons why the respondent considers any consideration of those criteria (travel and employability) to be inappropriate in terms of section 328(2) of the 1998 Act.

16. The Appeal Panel advised on 9 April 2013 that they would be reassessing the additional categories as well.

The Appeal Panel's reasons and determination

17. The Appeal Panel issued its determination and reasons on 18 June 2013. To understand the arguments in the matter it is necessary to set out parts of the Statement of Reasons:

PRELIMINARY REVIEW

7. The Panel conducted a preliminary review of the original medical assessment on 25 February 2013 in the absence of the parties and in accordance with the Guidelines.

...

11. The Panel considered that Mr Wild could have qualified for class 3 because the recreational activity he engaged in, being paddling on his surf ski, was a solitary one and whilst a pleasurable pursuit, could be indicative of his choosing to remain quiet and withdrawn because of the impairing effects of his condition.

...

14. The Panel again considered that the explanation provided for class 2 by Dr Rose was a better fit for class 3. Given the Panel's doubts in respect of the classes ascribed by Dr Rose, the Panel considered that the best approach would be a re-examination of the worker.

...

EVIDENCE BEFORE THE APPEAL PANEL

21. The Panel has before it all the documents that were sent to the AMS for the original assessment and has taken them into account in making this determination. The documents

before the Panel also include:

Report of the examination carried out by Dr Robert Gertler, member of the Panel, on 13 March 2013, provided to the Panel on 19 March 2013.

22. Dr Gertler conducted an examination of Appellant on 13 March 2013.

...

DECISION MADE AFTER PRELIMINARY REVIEW WITHOUT HOLDING AN ASSESSMENT HEARING

32. The Appellant initially complained that Dr Rose's MAC contains a demonstrable error in that he erred in respect of his assignment of class 2 for both Social and recreational activities, and for Concentration, Persistence and Pace.

33. Dr Rose assessed Mr Wild as follows:

Self Care and Personal Hygiene - Class 1

Social and Recreational Activities - Class 2

Travel - Class 1

Social Functioning-Class 2

Concentration, Persistence and Pace-Class 2

Employability-Class 3.

34. The Panel was not satisfied that there was sufficient detail contained in the MAC to enable the Panel to determine the appeal in respect of the matters appealed against and that the appeal had raised sufficient doubt as to the classes assigned in respect of both Social and Recreational Activities and Concentration, Persistence and Pace. A re-examination of Mr Wild was conducted by Dr Gertler, and a copy of his report was provided to the Panel. The report and Dr Gertler's findings were the subject of discussion by the Panel at a further telephone conference on 28 March 2013.

35. As a result of that further discussion, it was considered that further submissions ought to be obtained from the parties because the Panel considered that the PIRS categories for Travel and Employability may need to be revised, because the evidence before the Panel was that Mr Wild has the capacity to travel alone but only to familiar areas, and otherwise must be accompanied, and that he is not able to work full-time, cannot work as a policeman, and would have difficulties with persistence.

36. The Panel requested further submissions, which were received from the Appellant Worker on 23 April 2013, and from the Respondent Employer on 30 April 2013.

...

39. The Panel shall deal with the Respondent Employer's submission that the amendment to section 328(2) in 2010 limits the review by the Panel to the matters raised on the appeal, being the Class ascribed to Social and Recreational Activities and Concentration, Persistence and Pace.

40. Section 328(2) of the 1998 Act was amended in 2010 to provide that the appeal is to be conducted 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".

41. Section 327(3) of the 1998 Act identifies the grounds for appeal. They are:

(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,

(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error.

42. The phrase "grounds for appeal" is also used in sub-sections 327(1), 327(4) and 327(5) of the 1998 Act. When the phrase is used it is with reference to the grounds identified in 327(3). Statutory interpretation principles are, in summary:

Legislation is read according to the plain, ordinary and natural meaning of the words, construing the words in a way that is consistent with the purpose of all of the provisions of the statute (Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355);

Context and legislative purpose "will cast light upon the sense in which the words of the statute are to be read", and "context" means the existing state of the law and the mischief to which the statute was directed to remedy (Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) [2009] 239 CLR 27;

A construction of the legislation which promotes the purpose or object of the underlying Act is preferred to a construction that would not promote that purpose (section 33 of the Interpretation Act 1987 (NSW)).

43. Applying these principles, the only available interpretation of the phrase "grounds of appeal" used in section 328(2) is that it refers to the grounds of appeal as identified in section 327(3). The phrase can be plainly understood, and is unambiguous. The appeal ground relied upon by the Appellant is that the MAC contains a demonstrable error.

44. In Merza v Registrar of the Workers Compensation Commission (NSW) [2006] NSWSC 939 Justice Hoeben stated that "it is sufficient for the purposes of this matter that I conclude that "demonstrable error" is an error which is readily apparent from an examination of the medical assessment certificate...".

45. The Medical Appeal Panel in this matter comprises two specialists in the relevant field, being psychiatry, and a legally-qualified arbitrator. In Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited and Ors [2006] NSWSC 235 [Brockmann], the Supreme Court stated that "the Appeal Panel is entitled to draw on the expertise of one of its members and to take account of that expertise". Although the Court was discussing the consequences of a re-examination, the Panel considers that in reviewing the MAC and determining whether a demonstrable error has occurred, it may rely in particular on the expertise of its Medical Panel Members. In the present case, the Panel considered, in the conduct of its preliminary review, that the classes assigned by the AMS possibly constituted a demonstrable error, thus requiring a re-examination in order to satisfy itself as to the appropriate assessment.

46. Once a re-examination is triggered, section 324(3) of the 1998 Act comes into play. It provides that the powers conferred on an AMS by section 324(1) are extended "to the assessment of a medical dispute in the course of an appeal or further assessment under this Part". It further provides that "an approved medical specialist who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under this section on an assessment of a medical dispute."

...

49. More generally, the role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116. The Court noted in Siddik that "it would be curious if the Appeal Panel could not cure an error in a conclusive certificate merely because the parties had not identified it with the result that a court could be required to determine the parties' rights on the basis of what, in the Appeal Panel's view, was an erroneous MAC".

...

52. The Panel is satisfied that it is able to conduct a re-examination of the worker, and to determine whether the original MAC issued by the original AMS contains a demonstrable error by reason that the AMS has assigned classes in respect of the PIRS categories, which do not accurately reflect the worker's functioning and behavioural consequences of the work-related injury.

53. The Panel has informed the parties of its intention to broaden the scope of the examination of the question of possible demonstrable error, and has given them the opportunity to provide further submissions, thereby affording the parties, procedural fairness. The Respondent employer has chosen not to make any further submissions in relation to Travel and Employability, but to focus on the question of whether or not the Panel is able to proceed in the way it has determined. This is a matter for the Respondent Employer and its legal representatives, but the Panel intends to proceed with its determination. In this regard the Panel reiterates that the Supreme Court in Brockmann stated that the Panel is not required to disclose its conclusions to the parties for comment in the same way that the AMS does not do so prior to the issuing of the MAC.

54. The Panel is satisfied that Dr Gertler has conducted a comprehensive and detailed examination of the worker, that he has obtained, and recorded, a full and complete history of the injury and subsequent treatment and events. Dr Gertler considered the worker's present symptoms, general health and social activities. He set out his findings on examination in the report to the Panel, and that report has been reproduced in the body of this decision in full. The Panel adopts Dr Gertler's findings on examination.

...

65. The Panel considers that the MAC issued by Dr Rose contains a demonstrable error, which was readily available to the Panel from an examination of the MAC, because the respective assignments of classes in the PIRS categories were not justifiable on the basis of all of the evidence before the AMS.

66. The Panel prefers the examination findings of Dr Gertler, and has based its assessment on those findings.

67. The ratings of 1 for Self Care and 2 for Social Functioning have not been disturbed.

68. The Panel's ratings are as follows:

Self Care - Class 1

Social and Recreational Activities - Class 3

Travel - Class 2

Social Functioning - Class 2

Concentration, Persistence and Pace - Class 3

Employability - Class 4

69. The median score is 1,2,2,3,3 and 4 - 2.5.

70. The aggregate is 15 which results in 15% WPI.

Grounds of appeal

18. The Plaintiff's grounds of appeal, set out in the Further Amended Summons filed in court on 4 December 2013, are as follows:

(a) There is an error of law on the face of the record, in that the record discloses that the second defendant, having determined at that evidence from the third defendant contained in a statement dated 29 November 2012 was inadmissible pursuant to section 328(3) of the Workers Compensation and Workplace Injury Management Act 1998 ("the 1998 Act"), proceeded to admit that evidence through the report of Dr Gertler.

(b) There is a further error on the face of the record, in that the record discloses that, prior to making any determination that the Medical Assessment Certificate of Approved Medical Specialist Dr Norman Rose dated 1 November 2012 contained a demonstrable error, the second defendant directed that the third defendant be examined by Dr Gertler. The second defendant's entitlement to direct a fresh examination was contingent upon a determination that the third defendant had established the ground of appeal identified in section 327(3)(d) of the 1998 Act.

(c) There is a further error on the face of the record, in that the record discloses that the second defendant relied upon the findings of Dr Gertler in the second defendant's determination of the allegation that the Medical Assessment Certificate of Approved Medical Specialist Dr Norman Rose dated 1 November 2012 contained a demonstrable error. The findings of Dr Gertler were irrelevant to that question and ought not to have been taken into account.

(d) There is a further error on the face of the record, in that the record discloses that the third defendant had appealed against the Medical Assessment Certificate of Approved Medical Specialist Dr Norman Rose dated 1 November 2012 on the following specific grounds under the Psychiatric Impairment Rating Scale:

(1) that Dr Rose had erred in assessing a class 2 (mild impairment) for 'social and recreational activities': and

(2) that Dr Rose had erred in assessing a class 2 (mild impairment) for 'concentration, persistence and pace'.

However, the second defendant, in breach of section 328(2) of the 1998 Act did not limit its review to the grounds of appeal on which the appeal was made.

19. The Plaintiff directed argument principally to two grounds being grounds (b) and (d). It was apparent, and the Plaintiff argued, that if ground (b) was upheld it would follow that grounds (a) and (c) would also be upheld.

Ground (b)

20. The Plaintiff submitted that the Appeal Panel was not entitled to direct the fresh examination by the Third Defendant, unless it found that there was demonstrable error in the Certificate. Such demonstrable error must be found without regard to further or extrinsic evidence.

21. In Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 Basten JA said:

[131] The other challenges to the decision of the Appeal Panel give rise to matters of some difficulty which do not require resolution. For example, a question was raised as to the power of the Appeal Panel to review the whole of the matter on the merits, once invested with jurisdiction. In other words, assuming that jurisdiction was attracted by a "demonstrable error" in one aspect of the decision of the medical specialist, which did not itself infect other parts of the certificate given by him, was the Appeal Panel limited to correcting the aspect of the certificate the subject of the error, or was it entitled (and required) to reconsider all aspects of the certificate? A related question was whether it was necessary for the Appeal Panel itself to identify relevant error, or whether it was sufficient that the Registrar had, pursuant to an unchallenged decision, found that it appeared to her that "at least one of the grounds for appeal specified in subs (3) exists": s 327(4).

[132] These questions are clearly not unrelated.

...

[137] Two factors suggest that such an approach [to deal only

with the error found] would also be appropriate in relation to the powers of the Appeal Panel. First, if the Appeal Panel's powers were at large, the need to specify grounds of appeal limited to particular categories, would be rendered largely otiose. Secondly, the Appeal Panel is not a tribunal which has any powers other than those necessary to deal with the appeals in question. Thus, unlike this Court, it is not necessary to consider whether broad existing powers are exercisable in a particular case or not. On a tentative view, the approach adopted by the primary judge in the present case may have been in error and the powers of the Appeal Panel may be limited to addressing, and if thought necessary, correcting, errors identified in the certificate granted by the approved medical specialist, as specified by the appellant. ...

22. In Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88; (2008) 73 NSWLR 366 Senior Counsel for the applicant, who was endeavouring to show demonstrable error in the Assessor's Certificate, argued that an error could be "demonstrable" even though evidence beyond the Certificate was required to establish it. Mason P, with whom McColl and Bell JJA agreed said:

[48] One thing, I think, is clear, namely that the "appeal" to the Appeal Panel is not intended as the opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than the Appeal Panel being invited to decide the application afresh. I agree with the observations of Basten JA in Vegan at 400 [137] when he stated that two factors suggested that the jurisdiction and powers of the Appeal Panel are limited:

First, if the Appeal Panel's powers were at large, the need to specify grounds of appeal limited to particular categories, would be rendered largely otiose. Second, the Appeal Panel is not a tribunal which has any powers other than those necessary to deal with the appeals in question.

[49] I am therefore driven to conclude that s327(3)(d) uses "contained" in the more intense meaning of having as a constituent part, comprising or including (Macquarie Dictionary). Thus understood, the paragraph requires the would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s 327(3) (a) or (b) being adduced in the appeal. This conclusion accords with that reached by Hoeben J in Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39] ("an error which is readily apparent from an examination of the medical assessment certificate and the document referred the matter to the AMS for assessment".)

23. In Haroun v Rail Corporation NSW [2008] NSWSC 160 Harrison AsJ said:

[19] A "demonstrable error" includes an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment. It embraces something more than an "obvious error" which the registrar can correct. An error will be demonstrable if it is capable of being shown. Factual errors, particularly of a medical kind, or errors of logic or analysis if they are readily demonstrable from an examination of the medical assessment certificate, will amount to demonstrable error - see s 325(3), Mewrza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [30]; Pitsonis v Registrar of the Workers Compensation Commission [2007] NSWSC 50 at [20]; and Smith v Liquip Services Pty Ltd [2007] NSWSC 687.

24. As in Pitsonis, the Third Defendant in this case wishes to assert that Dr Rose failed to obtain and record an adequate history and failed to place him in the appropriate classes for the two PIRS categories identified in the appeal submissions. The Panel, in any event, went beyond that to deal with two categories not so identified. In Pitsonis Mason P noted that the judge at first instance there (Malpass AsJ) said (Pitsonis v Registrar of the Workers Compensation Commission [2007] NSWSC 50):

[28] In so far as a challenge is made in this Court to his assessment on the basis that the certificate contains demonstrable error the case is maintained largely by way of the assertion of alleged error or inadequacy in the history which forms part of the certificate (there was also an apparent allegation of inconsistency between a finding that the plaintiff's memory was intact and the recorded history (she was a poor historian)). This allegation can be immediately put aside as I am not satisfied that it can be sustained.

[29] Generally speaking, in the present case, it is said that the error in, or inadequacy of, history was, inter alia, of the nature of either a failure to record or accurately record history that was given or a failure to ask relevant questions (see paragraphs 24 and 25 of the plaintiff's written submissions).

[30 In the present case, the initial problem confronting the plaintiff is the difficulty had in the demonstration of such error. There is an evidentiary hurdle which she could not overcome. All that the plaintiff can look to is competing assertion (made subsequent to the certificate) and speculation. The contents of the certificate do not support the assertion of error. In the circumstances the challenge failed at this threshold stage.

[31] The reaching of that view makes it unnecessary to further consider whether any alleged error could constitute a "demonstrable error" which the certificate contains.

25. Mason P said that the Associate Judge was correct in those conclusions. He went on to say:

[59] Those dependent on the applicant showing that the doctor failed to record or to record correctly things she had told him face a double difficulty. They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.

26. The Third Defendant submitted that paragraph 65 of the Appeal Panel's reasons showed that the Panel found demonstrable error in the Certificate as they asserted. The error was said to be "readily available to the Panel from an examination of the MAC". Any statements earlier in the reasons, such as those in paragraphs 11, 14 and 45, must be seen only as the Panel's preliminary view. Paragraph 65 should be taken to be the final opinion of the Panel.

27. Whilst also acknowledging some inconsistency between that statement and earlier paragraphs of the reasons the Third Defendant submitted that a hyper-critical approach to the Panel's reasons should not be taken. The Third Defendant pointed to what was said in Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36]:

The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:

... a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker ... the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.

28. The Third Defendant submitted also that s 324(3) was wide enough to permit the Panel to refer the Third Defendant for assessment by Dr Gertler even though they had only, at that stage, expressed a preliminary view about the correctness of the MAC. This was particularly because the subsection refers to "in the course of an appeal or further assessment under this Part".

29. I do not agree that a reading of paragraph 65 of the reasons shows that the Panel found demonstrable error from an examination of the MAC. In examining the reasons I bear in mind Handley AJA's admonition in Bojko.

30. In paragraph 11 of its reasons under the heading "Preliminary Review" the Panel said that it considered that the Third Defendant "could have qualified for Class 3". In paragraph 14 in the same section it said that given the Panel's doubts in respect of Classes 2 and 3 as ascribed by Dr Rose the Panel considered that the best approach would be a re-examination of the worker. Again, at paragraph 45 of its Reasons the Panel said that the Classes assigned by Dr Rose "possibly constituted a demonstrable error" and that that required a re-examination in order to satisfy the Panel as to the appropriate assessment. Paragraph 34 expressed similar sentiments.

31. The course of events related earlier and the reasons themselves show that it was at the preliminary stage where the Panel had some doubts (but had not otherwise reached a determination) about the classes assigned by Dr Rose that the examination with Dr Gertler was arranged. At that stage the Panel had no power to refer the Third Defendant for assessment because error had not been found.

32. The Appeal Panel's function was either to confirm the MAC or to revoke it and issue a new certificate - s 328(5). On one view, that subsection read together with s 329 might be thought to preclude the Panel making a referral at any stage for further assessment even from one of its own members. That would be an unfortunate result and would not sit easily with s 324(3) which appears to contemplate an assessment "in the course of an appeal". The Guidelines issued pursuant to s 376 of the 1998 Act would also appear to authorise such a further assessment (assuming paragraph 45 thereof is within power).

33. However, if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.

28. In any event, paragraph 65 made clear that the reason demonstrable error was readily available from an examination of the MAC was "because the respective assignments of classes...were not justifiable on the basis of all the evidence before the" Panel. That evidence included Dr Gertler's report. It is clear, therefore, that error was not found "contained" in the MAC. The point is emphasised in paragraph 66 where it said that the Panel based its assessments on Dr Gertler's findings.

29. What the Panel did was to obtain a further assessment from Dr Gertler in order to see whether Dr Rose was correct in the classes he assigned and, therefore, whether there was demonstrable error. They had no power to take that course. Indeed, it may be that the Plaintiff has in fact established a jurisdictional error in that regard although the Plaintiff does not claim other than that there is an error on the face of the record, being the reasons themselves. Such an error on the face of the record is established.

30. Despite what appeared in the Third Defendant's written submissions the Third Defendant did not ultimately maintain that jurisdictional error needed to be shown. Section 69(3) Supreme Court Act 1970 makes it clear that it is sufficient to show an error on the face of the record to obtain a writ in the nature of certiorari. That error need not be jurisdictional error: ASIC v Farley [2001] NSWSC 326; (20012) 51 NSWLR 494 at [9].

31. It follows that, in taking into account Dr Gertler's findings and assessment, the further error identified in ground (c) of the Summons is established. Further support for that conclusion is found in Mason P's approval in Pitsonis at [53] of what Malpass AsJ concluded at [30] of his judgment and in NSW Police Force v Derek Fleming [2010] NSWSC 216 at [25] and [33].

32. Similarly, for similar reasons to those given by the Panel for rejecting the fresh evidence constituted by the Third Defendant's statement, the Panel should also have rejected the material in Dr Gertler's report. The error identified in ground (a) is made out.

Ground (d)

39. The Third Defendant largely adopted the reasons of the Appeal Panel in support of his submission that the Panel was able to consider the two other PIRS than the ones specifically referred to in the submissions attached to the application to appeal. The argument may be briefly stated.

40. Section 328(2) limits the appeal to the grounds of appeal on which the appeal is made. In the first instance the words "grounds of appeal" must be a reference back to the words "grounds for appeal" in s 327. Since the Appeal Panel limited its reasons to a consideration of the ground in s 327(3)(d) it did not fall into error when considering the two other PIRS categories. There is nothing to suggest that a party is bound by what is contained in the submissions attached to the application to appeal. Further, s 324(3) expressly extends the assessment process to the course of an appeal. It was within the power of the Appeal Panel to refer the Third Defendant for assessment by Dr Gertler.

41. The 1998 Act was amended in 2010 by the Workplace Compensation Legislation Amendment Act 2010 following the Court of Appeal's decision in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. Prior to the amendments s 328(2) read:

The Appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal.

42. In that case McColl JA (with whom Mason P agreed) said:

[98] Further, while the express limitations on opening the gate to an appeal are suggestive of an appeal limited to the grounds identified by the appellant, there is much to be said for the view that when used in the context of the review of an MAC by a panel including two specialists, that they should be entitled to determine "the true and correct view": Chemler (at [30]). The purpose of setting up a panel with experts is to enable it to resolve questions within its expertise: Kalil v Bray [1977] 1 NSWLR 256 (at 262) per Street CJ (Moffitt P and Glass JA agreeing).

[99] Such an approach recognises the importance of the medical assessment in the process of determining an injured worker's rights to, and an employer's obligation to pay, workers' compensation and/or damages. Although the legislature has deliberately separated determination of those issues from the curial decision-maker, it would be a curious to find it intended that the Appeal Panel could not cure an error in a conclusive certificate merely because the parties had not identified it, with the result that a court could be required to determine the parties' rights on the basis of what, in the Appeal Panel's view, was an erroneous MAC. The inclusion of two specialists on the Appeal Panel must have been intended, in part, to permit them to bring their expertise to bear on the contents of the MAC.

[100] While a conclusion that an appeal by way of review may, depending on the circumstances, involve either a hearing de novo or a rehearing invokes a novel form of appeal, it ensures the legislature has created a flexible model which as I explain below assists the objectives of the legislature. In New South Wales Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; (2003) 56 NSWLR 691 at [103]-[104]) Hodgson JA (Santow JA agreeing) held that an appeal under s 15 of the Racing Appeals Tribunal Act 1983 involved both appeals of a de novo and rehearing nature.

[101] In my view it is inappropriate to resolve the issues by applying prescriptive labels to the nature of the s 328 review. I am, however, of the view that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. This is not a backdoor resurrection of the appellant's abandoned third ground of appeal, simply a recognition of the proposition that determinations, which affect the "rights, interests and legitimate expectations" of the parties, attract requirements of procedural fairness: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (at 584) per Mason J. This includes giving a party an opportunity to deal with material which can be characterised as credible, relevant and significant and adverse to the interests of that person: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 (at [14]-[18]) per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. The proposition that the Court may conclude the Appeal Panel could act of its own initiative on the basis that it accord the parties natural justice was raised in the course of argument, and not resisted by Mr Marsh.

43. Giles JA, whilst agreeing with McColl JA added the following:

[9] For a number of reasons, I do not think that as a matter of its powers the Appeal Panel was confined to the ground of appeal as stated in the first respondent's statement of the grounds.

While essentially neutral on the question, the description of the appeal as "by way of review of the original medical certificate", did not suggest a narrow power of review.

As McColl JA has explained, resolution of medical disputes by the system of assessments with provision for appeals is integral to the Commission's determinations, and can significantly affect common law remedies. While subject to s 327, the importance of the MACs also does not indicate a narrow power of review.

Accepting that s 327 is intended to reduce the opportunity to contest an AMS's assessment, once an appeal is proceeding on a ground for appeal under the section the Appeal Panel with its special expertise should not be hamstrung if it emerges that the ground for appeal has poorly stated or misstated by the party appealing, nor would it be just that an assessment of impairment open to appeal on a ground for appeal under s 327 had to be left intact for that reason.

Once an appeal is proceeding, it is difficult to see why the deterioration in the worker's condition (s 327(3)(a)) to which the Appeal Panel pays regard should be limited to that stated in the application to the Registrar, when there may have been further deterioration by the time the Appeal Panel conducts its review. Similarly, further additional relevant information (s 327(3)(b)) may become available. If the Appeal Panel is not tied on these grounds for appeal to what was stated in the appealing party's grounds for appeal, it should not be tied to what was stated in the appealing party's grounds for appeal on the other permissible grounds for appeal.

44. The Appeal Panel relied on what McColl JA said at [99] - see paragraph 49 of the reasons.

45. It seems to me that there are two errors in the approach to s 328(2) taken by both the Appeal Panel and the Third Defendant. The first error is to identify the words "grounds of appeal" in s 328(2) with the words "grounds for appeal" in s 327 see paragraph 43 of the reasons. The use of the different preposition may be thought to be significant.

46. To the extent that the Appeal Panel considered that s 328(2) was only limiting an applicant to any one of the grounds of appeal contained in s 327(3) by its use of the words "grounds of appeal" I consider that such a construction of the section is wrong. It overlooks the words which follow -"on which the appeal is made".

47. The Third Defendant did not argue for so wide a construction of s 328(2). The Third Defendant submitted that he had appealed on the basis of ground (d) and, therefore, that the Appeal Panel was entitled to consider all aspects of demonstrable error in the certificate. I do not agree with that submission.

48. I note that s 328(2) provides that the WorkCover Guidelines can provide for the procedure on an appeal. The Guidelines in fact make such provision. Guideline 42 provides:

Parties lodging an appeal, or opposition to an appeal, must use the approved forms and attach relevant submissions. ... If the party lodging the appeal does not use the approved form and attach relevant submissions, the appeal will be rejected.

49. The approved form of application to appeal against a decision of an approved medical specialist contains the notation that is set out in paragraph [10] above. Noting that the warning on the form appears to give a discretion where submissions are not filed with the application whereas the Guidelines do not, it is apparent that the submissions are, nevertheless, an integral part of the identification of the grounds of appeal. In that way if a party identifies in respect of a ground (d) appeal particular demonstrable errors, the appeal should be regarded as being confined to those matters. The grounds of appeal taken with the submissions will constitute "the grounds of appeal on which the appeal is made". In my opinion, that result is most consistent with what the amendments in 2010 must be taken to have intended.

50. The Third Defendant submitted further that the purpose of the amendments to the 1998 Act following Siddik was to confine the Appeal Panel to the particular ground set out in s 327(3) nominated in the application. The Third Defendant said that the issue in Siddik was unlike the issue in the present case because in Siddik the Appeal Panel found error on a different ground from those that had been specified in the application.

51. I do not agree that the issue in Siddik was different. The appeal relied on grounds (a), (c) and (d) - see at [4] per Giles JA and [21] per McColl JA. The Appeal Panel rejected those grounds but found a different error that fell within ground (c) but had not been identified by the appellant - see at [5] and [25] -[26].

52. In any event the present case must be determined on a proper construction of s 328(2). In my opinion the phrase "the grounds of appeal on which the appeal is made" is directed to greater particularity than simply categorising the appeal as being within one or more of the grounds in s 327(3). That is the purpose of requiring "submissions...detailing the grounds of the appeal.

53. In my opinion error has been demonstrated in relation to this ground of appeal.

Residual discretion and orders

54. The Third Defendant submitted that even if error was found I should exercise the residual discretion available in matters governed by s 69 Supreme Court Act and refuse relief. The reason for this was said to be because, when the Appeal Panel gave notice on 28 February 2013 ([13] above) that it was referring the Third Defendant for further assessment the Plaintiff did not object to this course.

55. I do not consider that this is any reason to refuse relief. I do not consider, for example, that it is more likely than not that if the Plaintiff had objected to the further assessment the Appeal Panel would have upheld the objection. Notwithstanding what the Plaintiff said in its letter of 5 April 2013 ([15] above) about the width of the appeal the Appeal Panel proceeded on the course it had embarked upon. Notwithstanding the Plaintiff's Further Submissions to the Panel following its indication that it would proceed to consider the additional categories the Panel made its determination which involved considering the extra categories and taking into account what Dr Gertler said about those categories.

56. The further issue remains, error having been found, of what orders should now be made. Certainly, an order in the nature of certiorari should be made quashing the Appeal Panel's determination. The Plaintiff then seeks that an order be made reinstating the MAC of Dr Rose or, alternatively, remitting the matter to the Panel to decide the appeal according to law, that is, in accordance with these reasons.

57. The Third Defendant's preferred position was that the matter should be remitted to the Appeal Panel. The Plaintiff's initial view was that I should make an order reinstating Dr Rose's Certificate but the Plaintiff subsequently submitted that it would not oppose the matter being remitted to the Appeal Panel.

58. The Third Defendant was always entitled to apply to appeal. He did so on certain grounds. The Appeal Panel should have decided the appeal on those grounds. The present proceedings have been brought to put the matter back into the position it should have been in if the Appeal Panel had acted according to law.

59. If I simply make an order that Dr Rose's MAC be reinstated there are two possibilities. One is that the Third Defendant will not be entitled to appeal from it out of time. That would be unfair to the Third Defendant. The other is that the Third Defendant would seek, and be granted leave to, appeal out of time but would appeal on grounds other than those previously raised. That would be unfair to the Plaintiff.

60. The better course is that the Appeal Panel (consisting of members other than comprised the Appeal Panel whose decision I have quashed) should now perform the task it ought to have performed when the appeal first came before it.

61. Accordingly, I make the following orders:

1. An order in the nature of certiorari quashing the Medical Assessment Certificate of 18 June 2013 given by the Second Defendant in matter number WCC 009127/12 in the Workers Compensation Commission of New South Wales;

2. An order remitting the matter and the Third Defendant's appeal to the Second Defendant to be decided according to law.

3. The Third Defendant is to pay the Plaintiff's costs.

4. The Third Defendant to have a certificate under the Suitors' Fund Act 1951 if otherwise so entitled.

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Decision last updated: 06 April 2020